Mediation, a time-honoured approach to conflict resolution, boasts deep roots in India's cultural heritage. For centuries, traditional systems prioritized amicable settlements, with community-based mechanisms like the Panchayat system playing a vital role in resolving disputes long before the introduction of the British judicial framework.

These indigenous methods emphasized consensus-building and restorative justice, reflecting a preference for harmonious resolution over adversarial proceedings. Although the practice of mediation has continually evolved, its formal legal recognition within the Indian judicial system remained limited until recently.

The journey of mediation in India has been one of gradual formalization, culminating in the watershed moment of the Mediation Act of 2023. This legislation marks a significant step towards strengthening the legal framework for mediation and promoting its widespread adoption. To fully understand the current landscape, it's crucial to examine the historical context, trace the developmental trajectory of mediation practices, and acknowledge the persistent challenges that still need to be addressed. This exploration provides valuable insights into the potential of mediation to transform dispute resolution in India.

A Look Back - Historical Context:

• The practice of mediation boasts a rich and enduring history in India, predating the influence of British colonial rule. Its origins are deeply woven into the fabric of Indian society, reflecting a long-standing preference for amicable and collaborative conflict resolution.
• Prior to the introduction of the British legal system, village elders, possessing wisdom and experience, and respected businessmen, known as Mahajans, served as informal mediators in commercial disputes. Their guidance and expertise proved invaluable in facilitating mutually acceptable solutions, fostering trust, and maintaining harmonious business relationships.
• The Panchayat system, a traditional model of local governance, played a pivotal role in resolving conflicts within communities. These councils of elders, deeply rooted in local customs and traditions, acted as mediators, facilitating dialogue and compromise to address grievances and bridge divides.
• This traditional approach to conflict resolution offered distinct advantages:
  • Ensured quick and cost-effective resolutions, avoiding the complexities and expenses associated with formal litigation.
  • Promoted social harmony by emphasizing reconciliation and preserving relationships within the community.
• However, the arrival of British rule marked a turning point in the history of mediation in India. The British introduced the adversarial legal system, which placed greater emphasis on litigation and court-based dispute resolution. This system gradually eclipsed mediation, relegating it to the sidelines.
• The British judiciary favored litigation over alternative dispute resolution (ADR) methods, leading to delays in resolving disputes and contributing to court congestion. As a consequence, mediation lost its prominence and was largely neglected for many years, despite its proven effectiveness and historical significance.
   

Reviving Mediation - Post-Independence Efforts:

• Following India's liberation from British rule, a concerted push began to reintegrate mediation into the nation's legal framework. This initiative aimed to revive traditional methods of dispute resolution and align them with the modern legal landscape.
• Despite these efforts, a dedicated law specifically addressing mediation remained absent until 2023. Instead, mediation was promoted through various means, including guidance from the judiciary and the incorporation of relevant clauses within broader legal statutes. This piecemeal approach sought to encourage the adoption of mediation practices without a comprehensive legal foundation.
• A pivotal moment in the advancement of mediation came with the Supreme Court of India's intervention in the Vikram Bakshi v. Ms. Sonia Khosla case of 2014. This landmark case brought forth the critical need for structured mediation mechanisms, highlighting their potential to reshape the legal system.
• The Supreme Court's emphasis in the Vikram Bakshi case underscored the multifaceted benefits of mediation:
  • Beyond simply alleviating the burden of pending cases, mediation was presented as a transformative tool capable of fundamentally altering the approach to legal disputes.
  • Mediation shifts the focus from traditional adjudication, where a judge or court imposes a solution, to a collaborative settlement process.
  • This shift empowers parties to actively participate in crafting mutually acceptable resolutions, fostering a sense of ownership and satisfaction.
     
• Ultimately, the Supreme Court's pronouncements in the Vikram Bakshi case served as a clarion call for the formalization and expansion of mediation within the Indian legal system. This judicial endorsement paved the way for the eventual enactment of a dedicated mediation law in 2023, solidifying mediation's place as a vital component of dispute resolution.

The Legal Framework for Mediation in India:

For an extended period, mediation's adoption was gradual; however, several legal provisions began to lay the groundwork for its eventual embrace as a legitimate dispute resolution method.
A significant initial step was Section 89(1) of the Code of Civil Procedure, 1908. This provision empowered courts to actively suggest alternative dispute resolution (ADR) methods, including arbitration, conciliation, judicial settlement, and, importantly, mediation to parties involved in legal disputes. This marked a pivotal moment in legitimizing mediation within the formal judicial system.

The Arbitration and Conciliation Act, 1996 - Part III (Sections 61-81) - Conciliation, further contributed to the ADR landscape by establishing a legal structure for commercial conciliation. Sections 61-81 (Part III) of the Arbitration and Conciliation Act, 1996, dedicated to "Conciliation," played a crucial role in strengthening India's Alternative Dispute Resolution (ADR) system. This portion of the Act created a well-defined legal structure for commercial conciliation, offering parties a recognized and organized way to settle disputes outside of court. The legal framework clarified the conciliation process, including initiation, execution, and conclusion, thus bolstering trust in its application.

By formally incorporating conciliation into law, the Act also informed and educated the legal profession, businesses, and the judiciary about the advantages and practicalities of resolving disputes without litigation. While emphasizing conciliation, the Act's influence extended to encouraging broader adoption of ADR techniques, ultimately contributing to a more effective and accessible commercial dispute resolution system. The explicit definitions and procedures provided in these sections offered essential direction, transforming conciliation from a casual practice into a more formalized and legally supported method.

Section 12A of the Commercial Courts Act, 2015, fundamentally transformed the landscape of commercial dispute resolution in India, significantly elevating the status of mediation. By mandating pre-institution mediation for specified commercial disputes, this provision effectively positioned mediation as a critical and often obligatory first step, thereby dramatically enhancing its importance and utilization as a preferred dispute resolution mechanism.

By actively promoting the use of mediated settlements for commercial disputes, the Act established mediation as a favoured approach for resolving trade-related conflicts. This legislative move recognized the inherent advantages of mediation within the commercial sphere, particularly its efficiency in reaching resolutions and its ability to significantly reduce costs compared to traditional litigation. The Act fundamentally shifted the landscape by positioning mediation as a pragmatic and valuable tool for businesses navigating complex disputes.

Despite these encouraging legal provisions, private mediation faced a crucial hurdle. It lacked explicit legal recognition, which meant that participation in private mediation remained entirely voluntary, and any agreements reached through it were not legally binding. This absence of legal backing hindered the wider adoption of private mediation.

To address this deficiency and to fully harness the potential of mediation, the Mediation Bill, 2021, was introduced. This bill aims to provide a comprehensive and robust legal framework for mediation, effectively giving it the legal recognition and enforceability necessary to enhance its effectiveness as an alternative dispute resolution mechanism.

The Mediation Act, 2023 -A Significant Step:

India has significantly bolstered its commitment to mediation with the passage of the Mediation Act, 2023, marking a pivotal moment in the country's alternative dispute resolution landscape. This legislation is designed to provide a robust and streamlined legal foundation for the practice of mediation, offering a formal structure previously lacking in the Indian context.

A key objective of the Act is to grant legal recognition and enforceability to mediated settlement agreements, thereby enhancing their credibility and encouraging wider adoption of mediation as a viable dispute resolution method. By codifying these agreements, the Act assures parties that their mutually agreed-upon resolutions will be legally binding and upheld by the courts.

Further solidifying the framework, the Mediation Act, 2023, envisions the establishment of a regulatory body dedicated to overseeing mediation practices throughout India. This body will be responsible for setting standards, accrediting mediators, and ensuring ethical conduct within the profession, fostering trust and confidence in the mediation process.

To further promote the accessibility and utilization of mediation, the Act emphasizes the establishment of institutional mediation centres across the country. These centres will serve as hubs for providing mediation services, training mediators, and raising awareness about the benefits of this alternative dispute resolution mechanism.

While the Mediation Act, 2023, represents a significant step forward in formalizing and promoting mediation in India, a critical gap remains concerning its alignment with the Singapore Convention on Mediation (2019). Despite India's signatory status, the lack of ratification creates a potential impediment to the enforcement of mediated settlement agreements in cross-border disputes, thus limiting the Act's effectiveness in facilitating international commercial transactions.

The Singapore Convention is designed to facilitate the enforcement of mediated settlement agreements across international boundaries, offering a streamlined process for recognizing and upholding these agreements in signatory countries. India's non-ratification of the convention limits its ability to fully leverage the benefits of international mediation and could hinder the resolution of cross-border disputes involving Indian parties.

Contemporary Challenges in Mediation:

Despite the progress made, mediation in India faces several challenges:

• Lack of Awareness and Acceptance: Persistent lack of awareness and cultural resistance among litigants, legal professionals, and even some judges, stemming from a deeply ingrained reliance on traditional adversarial litigation.
• Institutional Weaknesses and Inconsistent Implementation: Inadequate and unevenly developed institutional infrastructure, leading to significant variations in the quality and availability of mediation services across different states and judicial districts.
• Legal Enforceability and Cross-Border Recognition: The critical issue of non-ratification of the Singapore Convention on Mediation (2019) severely hinders the international enforceability of mediated settlement agreements, limiting their utility in cross-border commercial disputes.
• Judicial Overload and Inconsistent Referral Practices: Systemic judicial backlogs and a lack of consistent judicial encouragement and referral to mediation, often due to time constraints and a perceived lack of judicial control over the process.
• Shortage of Qualified and Accredited Mediators: A significant deficit of adequately trained, accredited, and experienced mediators, particularly in specialized areas, impacting the quality and credibility of the mediation process.
• Funding and Accessibility: Limited funding and resources for mediation initiatives, resulting in restricted access for economically disadvantaged parties and a lack of investment in infrastructure and training.
• Enforcement of Mediated Settlements within India: Even though the Mediation Act, 2023 provides for the enforcement of mediated settlements, there could be challenges in the enforcement of mediated settlements if the parties do not adhere to the agreed terms.
• Online Mediation Challenges: With the rise of online mediation, challenges such as digital literacy, technological infrastructure limitations, and concerns regarding confidentiality and security need to be addressed.
• Lack of Data and Research: The lack of robust data and empirical research on mediation's efficacy and impact in India impedes the ability to accurately gauge progress and formulate evidence-driven strategies for improvement.

 
Conclusion and the Path Forward:
Mediation offers a transformative approach to resolving disputes in India, promising to alleviate the burden of extensive litigation backlogs and foster mutually agreeable solutions. The passage of the Mediation Act, 2023, marks a significant advancement in formalizing mediation as a recognized process within the legal system.

To fully unlock the potential of mediation in India, several key initiatives are essential. This includes expanding awareness campaigns and providing comprehensive training programs for both mediators and legal professionals. Furthermore, the establishment of strong and well-supported institutional mediation centres is crucial for providing accessible and reliable mediation services.

In addition, ratifying the Singapore Convention would strengthen India's position in international dispute resolution, while actively promoting court-annexed mediation programs can integrate mediation seamlessly into the judicial process. By prioritizing these efforts, India can establish mediation as a mainstream and effective alternative dispute resolution method, resulting in positive outcomes for individuals, businesses, and the overall efficiency of the court system.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565