Alternate Dispute Resolution Mechanisms: Mediation

Introduction

At the inaugural ceremony of the International Virtual Mediation Summer School, 2021, Chief Justice of India, Justice N. V. Ramana, the Chief Guest, held that the future of dispute resolution does not belong in courtrooms where advocates elaborately argue whilst dawning black gowns, rather it belongs to Mediation where the conflict resolution is quick, cost-effective and efficient.[1] Additionally, he added that traditional litigation lives on the idea of ‘winner-takes-all’ where one party to the dispute is content with the judgement while the opposing party is dissatisfied with the outcome who file an appeal with the higher courts of law leading to an increase in the workload of the said higher courts of law, wherein Mediation is motivated by the idea of ‘win-win’ where all the parties to the dispute are more or less satisfied with the outcome of the court of law.[2]

The high population of India translates into explosive litigation in India, which is plagued with long delays in dispute resolution; hence, the judiciary of India is turning to Alternate Dispute Resolution modalities to encourage honest dispute resolutions in a speedy manner.[3] Justice A. H. Ahmadi, the then Chief Justice of India, invited delegates from The Institute for Study and Development of Legal Systems (ISDLS), the United States of America to study and address the problem of backlogs in India’s Civil Justice System across the Supreme Court of India and respective High Courts.[4] One of the suggestions of the delegates was to amend Section 89 of the Code of Civil Procedure, 1908 with recommendations from the Justice Malimath Committee and the then Law Commission of India.[5] The Code of Civil Procedure (Amendment) Act, 1999 inserted Section 89 in the code, which was effective on July 01, 2002, wherein the Justice Malimath Committee’s recommendations saw itself in Sub-Section 1 where if the court of law feels that there exist certain elements of the settlement of a dispute resolution that may be acceptable to all the parties to the dispute, then the court of law shall formulate the terms of the said settlement and refer the same for Arbitration Clause A), Conciliation (Clause B), Judicial Settlement with a Lok Adalat Settlement (Clause C) and Mediation (Clause D) where the parties to the dispute may make observations and recommendations regarding the terms of the settlement, such that the provisions  of the following legal statutes apply for each settlement mechanism for alternate dispute resolution:

  1. Arbitration/ Conciliation: Arbitration and Conciliation Act, 1996 (Section 89, Sub-Section 2, Clause A).
  2. Lok Adalat: Section 20, Sub-Section 1 of the Legal Services Authority Act, 1987 (Clause B).
  3. Judicial Settlement: The court of law can refer the matter to either a suitable institution or a suitable person, wherein the said entity is deemed to be a Lok Adalat, wherein its proceedings are conducted under the aegis of the Legal Services Authority Act, 1987, for the said temporarily constituted Lok Adalat (Clause C).
  4. Mediation: A procedure established by the court of law for a compromise between the parties to the dispute (Clause D).

It is worth noting that the delegates and trainers of the ISDLS took up the first elaborate training of mediators in Ahmedabad in 2000 in collaboration with the Institute For Arbitration, Mediation, Legal Education and Development (AMLEAD) who conducted advanced training workshops; consequently, the Ahmedabad Mediation Centre (India’s first lawyer-managed mediation centre) and the Madras Mediation Centre (India’s first court-annexed mediation centre) was inaugurated on July 27, 2002, and April 9, 2005, respectively while the United States Educational Foundation in India (USEFI) conducted multiple training workshops in the cities of Mumbai, Hyderabad and Jodhpur.[6]

In a nutshell, an arbitration involves the gauging of the legal rights and wrongs of a dispute and its parties, wherein the decision of an arbitrator is final and binding on all the parties to the dispute even if the parties may or may not agree to the decision of the arbitrator, in a way an arbitrator adjudicates the matter in a similar way as a judge in a court of law; conversely, mediation involves the parties to the dispute to discuss amongst themselves to narrow their individual differences in the presence of a mediator who does not decide in the matters of the dispute. It is worth understanding that mediation is always a compromise, a ‘win-win’ situation since the binding agreement to the dispute resolution has been voluntarily agreed upon by all the parties to the dispute.[7]

 

Mediation

In the simplest of terms, a mediator is a facilitator in the proceedings of the dispute resolution process, wherein two parties who are at loggerheads with each other choose an impartial and unbiased third-party whose role exists to negotiate and arrive at a resolution that is acceptable to every party to the dispute using certain procedures and techniques without any scope for adjudicating any binding edicts on the said parties (i.e. the mediator cannot decide and make any decisions on behalf of the parties, i.e. the mediator cannot impose an outcome on the parties to the dispute.[8] Mediation opens the channels for the parties to exchange information and understanding of each other while promoting a productive level of emotional expression since it concerns itself with the differences in the perceptions and interests of the parties to the dispute.[9] One of the key metrics of mediation is the ability of the mediator to know the facts of the case that the parties are too reluctant to disclose to each other.

It is worth noting that the parties to the disputes can choose a mediator with the mutual consent of each other, wherein the parties to the dispute act like the decision-makers since the mediator cannot weigh in on what is right and what is wrong (or what is fair and what is unfair), rather a mediator can guide, suggest and help the parties to reach an agreement, upheld by all the parties.[10] It is worth noting that a mediator can call for joint meetings for all the parties to the dispute (conversely, the mediator can hold separate meetings for each party) where the mediator can draw compromising solutions to the dispute whilst providing advice and guidance to the parties; however, a mediator is barred from imposing their opinion on the parties since the mediator cannot try to convince the parties for a solution, wherein it is not mandatory for the parties to agree upon the proposed  solution of the mediator.[11] The mediator cannot force the parties to attend mediation if any one of them are not interested to continue; additionally, if the process of mediation does not yield any resolution, then the parties to the dispute can proceed with either traditional litigation in a court of law or arbitration.[12] Generally, the success rate of mediation is high due to a multitude of factors: a) Mediation takes place in a more relaxed ambience of an office rather than in a court of law, b) Mediation is a collaboration between the parties to the dispute; hence, it opens the channels for communication of information, grievances and concerns between the said parties, and c) The private nature of a mediation process ensures the confidentiality of the alternate dispute resolution.[13] One of the biggest advantages of Mediation is its inexpensiveness, wherein the cost of the single mediator is split equally between all the parties to the dispute as against each party being represented by their respective lawyer in the case of traditional litigation.[14] Mediation can be broadly divided into two categories: a) Court-Referred Mediation: A long-pending case in traditional litigation can be redirected to a mediator if the court of law believes that the case can be settled via mediation, wherein long-standing cases of divorce is generally offered for mediation, and b) Private Mediation: Professionally trained personnel or advocates or lawyers can become a mediator, wherein the mediation cases can stem from any person/ entity.[15] As against Court-Referred Mediation where the court of law refers a particular matter to a mediator, in Court-Annexed Mediation, the mediation services are provided  by the court itself where the judges, lawyers and litigants become the mediating participants to the mediation, such that when a judge refers a matter to a Court-Annexed Mediation, it maintains overall supervision on the mediation process and the mediator is from within the judicial system.[16]

In Court-Annexed Mediation, the court of law acts as the central entity for dispute resolution, such that the time-tested judicial principles of integrity and impartiality of Indian courts raise the confidence of the public in approaching the court for mediation where the alternate dispute resolution is overseen by a well-coordinated court in an expeditious and harmonized manner.[17] One of the forefront achievements of court-annexed mediation is the position of a court to reduce its own case-load by referencing it to a mediation process.[18]

In the case of Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344, Justice D. M. Dharmadikhari, Justice Y. K. Sabarwal and Justice Tarun Chatterjee held in the petitioner challenging the aforementioned amendment to the Code of Civil Procedure, 1908, that Section 89 of the Code of Civil Procedure, 180, is constitutionally valid. The judgement outlines two major modalities in the context of alternate dispute resolution: a) The rules and regulations to be followed for the dispute resolution mechanisms under Section 89 and b) The implementation procedures for the mediation process. The bench referred to a report created by a committee headed by Justice M. Jagannadha Rao, the then chairman of the Law Commission of India (and former Judge of the Supreme Court of India).[19] The following rules were held by the court as the Alternate Dispute Resolution Rules, 2003:

  1. The court of law shall hear and record the admissions and denials in the first hearing of a litigation suit and if the court believes that certain elements of the prospective settlement could be acceptable to all the parties to the dispute, then the court may formulate the terms of the settlement and present the same before the aforementioned parties for their consideration and observations, wherein the same observations must be submitted before the court within thirty days of the first hearing at the second hearing, wherein the court must reformulate the terms of the prospective settlement and then the court shall ask the parties to the dispute to opt for any one of the alternate dispute resolutions under Section 89 with the explicit, written consent of all the parties to the dispute to enter into an alternate dispute resolution process.
  2. If one of the parties to the dispute is a State (as defined under Article 12 of the Indian Constitution, including local authorities, statutory corporations and public sector undertakings), then the said public authority must nominate either a person or a group of persons as the authority to make decisions on the behalf of the State in the alternate dispute resolution process, wherein the said nomination must be communicated to the respective High Court of jurisdiction within three months of the commencement of the said rules, such that the said High Court must communicate the same to all the subordinate courts under itself.
  3. The burden falls upon the court to elucidate as it deems fit the various factors involved in the different alternate dispute resolution processes to the parties to the dispute before the said parties choose any one of the resolution processes. The factors and advice include: a) That the option of an alternate dispute resolution is more advantageous in terms of expense and time than a traditional tribal in the court of law, and b) That the option of arbitration is open to those the parties to the dispute who have no relationship between them, which ought not to be preserved while the option of conciliation and mediation is open to those parties who have a relationship between them, which ought to be preserved (ex: the parties to the disputes relating to matrimonial, maintenance, child custody.
  4. Within thirty days of receiving the advice and direction from the court, the parties to the dispute must communicate their choice in writing to the court about their preferred mode of alternate dispute resolution, wherein the court shall proceed to refer the matter to the competent entity for its competent due process within thirty days of the said application: Arbitration (Arbitration and Conciliation Act, 1996), Lok Adalat (Legal Services Authority Act, 1987), Judicial Settlement (the matter is referred to either an individual or an institution who shall be construed as a Lok Adalat for the dispute resolution under the Legal Services Authority Act, 1987 in relation to making a reference to the Lok Adalat), Conciliation (Arbitration and Conciliation Act, 1987), and Mediation (Rules of Mediation, 2003).
  5. If the the parties to the dispute are unable to reach a consensus regarding the mode of dispute resolution, then the court of law may provide an additional thirty days by means of issuing a notice to the parties to make the relevant choice. Additionally, if the parties to the dispute are unable to make a choice regarding the alternate dispute resolution mechanisms even after receiving an extension of thirty days by the court, then the court issues a notice to the parties (and their representatives) to fix the matter for a hearing on the question of making a reference to either conciliation or mediation. At such a hearing, if the court is convinced that there are some elements of the prospective settlement, which may be acceptable to all parties and if the relationship between the parties ought to be preserved, then the court may refer the matter for either conciliation under the Arbitration and Conciliation Act, 1996, or mediation under the Mediation Rules, 2003.
  6. It is worth understanding that the parties to the dispute who are represented by a friend or a guardian owing to the party being either a minor or a person of unsound mind (including persons with disability) need an explicit leave of the court (explicit permission/ consent of the court) to act on behalf of such person, wherein a certificate needs to be submitted by the representative illustrating that the settlement out of the alternate dispute resolution is for the benefit of the person so represented by the representative. In a nutshell, the court needs to approve the representation of a person with a disability in the alternate dispute resolution process.
  7. If the dispute resolution process (arbitration/ mediation/ Lok Adalat/ judicial settlement) does not lead to a satisfactory settlement for the parties to the dispute then the matter shall be referred back to the court with a direction by the court to the parties to appear before the court on a specific date, wherein the matter shall be dealt by the court in accordance with the law.

The bench of Justice D. M. Dharmadikhari, Justice Y. K. Sabarwal and Justice Tarun Chatterjee outlined the Civil Procedure Mediation Rules, 2003, in accordance with the Code of Civil Procedure, 1908:

  1. The mediation could be presided over by either a sole mediator (as agreed by all the parties to the dispute) or a nominated mediator where each party to the dispute nominates a mediator of their choice; however, if the number of parties is more than two (who have diverse interests in the dispute), then the parties ought to nominate their representatives, wherein the nominated representatives from all the parties to the dispute shall appoint a sole mediator for the mediation process; however, if the unanimity regarding a sole mediator cannot be reached, then the court is bound to refer a sole mediator for the process.
  2. Every High Court enlists a panel of mediators whose sole purpose is to appoint mediators for the alternate dispute resolution processes before the said High Court; additionally, every subordinate court (including the Courts of the Principal District, Sessions Court, Courts of the Principal Judge of the City Civil Court, etcetera) must enlist a panel of mediators with the approval of the said names by its respective High Court. In both, the aforementioned cases, the explicit consent of the individuals is compulsory before enlisting them in the panel of mediators for the court of law. It is worth noting that the qualifications, technical experience and professional experience of the prospective empanelled mediators are included in the list of the said panel.
  3. The bench added that the panel of mediators must have people from either of the following set of qualifications: a) Retired judges of the High Court b) Retired judges of the District and Sessions Courts, c) Retired Judges of the City Civil Courts (or courts of equivalent status), d) Advocate with a legal experience of no less than 15 years with any court of law in India, e) Expert professionals/ retired senior bureaucrats/ retired senior executives with no less than 15 years of professional experience, and f) The High Court may approve of certain institutions within its territorial jurisdiction who are experts in the field of mediation for their empanelling as a mediator.
  4. The court of law may disqualify an individual from its panel of mediators if any of the following conditions are met: a) The individual becomes of unsound mind, b) The individual has been declared to be insolvent, c) The individual has been charged with criminal charges of a grave immoral nature and the matter is pending before a criminal court, d) The individual has been convicted for a criminal charge of a grave immoral nature, e) The individual is at the receiving end of a disciplinary proceeding (with charges of a grave immoral nature) by the appropriate disciplinary authority; the proceeding either is pending/ ongoing or had concluded with punishment to the said individual, f) The individual is directly either interested or connected with the subject matter of the dispute unless a no-objection has been given by all the parties to the dispute in writing. The individual is directly related to any one of the parties to the dispute unless a no-objection has been given by all the parties to the dispute in writing, and g) The individual (legal practitioner) appearing for a party to the dispute is also representing the same party in the proceedings of another dispute/ suit. It is worth noting that the High Court has the discretion to disqualify certain individuals from its panel of mediators for certain categories as notified by the High Court from time to time. The mediator may voluntarily withdraw its name from the panel of mediators for any reason. At times the parties to the dispute raise doubt and provide relevant information to the court regarding the independence and impartiality of the mediator; consequently, the court is  tasked with conducting an inquiry against the said mediator while hearing the side of the mediator in the face of the allegations and if the court is satisfied with the doubt of the parties to the dispute, then the court shall remove the mediator with a reasoned order and replace the mediator with another mediator.
  5. The venue for conducting the mediation proceedings is any one of the following venues: a) Venue of the Lok Adalat (including the venue of any permanent Lok Adalat), b) Any location within the premises of the District Court as identified and decided by the judge of the said District Court, c) Any location identified and decided by the respective State Bar Council for the purpose of mediation, wherein the location is within the premises of the said State Bar Council, d) Any location identified and decided by the respective Bar Council of India for the purpose of mediation, wherein the location is within the premises of the said Bar Council of India, and e) Any location identified and decided by the parties to the dispute, subject to the approval of the respective jurisdictional Court.
  6. It is worth noting that the nomination of a mediator from the panel of mediators of a given court is done after considering the suitability of the said nominee in resolving the particular subject matter of the dispute, wherein the court shall give preference to the nominee who has either a proven record of successful mediations or a special qualification/ experience in mediation.
  7. Procedure of Mediation: a) Although the parties to the dispute are not compelled to settle as an outcome of the mediation, it is expected of all parties to participate in all the mediation proceedings in good faith with an inclination to resolve the dispute at hand, if possible. b) The the parties to the dispute may agree to the procedure employed by the mediator in the conduct of the mediation proceedings, wherein if any party does not agree to the said procedure employed by the mediator, then the mediator must convene a meeting whose date and time must be affixed after consulting with all the parties to the dispute, such that all parties must be present for the said meeting; conversely, the mediator may choose to conduct separate meetings with the parties. Ten days before the said meeting, each party must provide a brief memorandum to the mediator explaining their issues, which need to be resolved per the said party; additionally, the brief must contain not only the position of the said party in the face of the issues elucidated by them but also all the information (including documents, copies of previous pleadings, etcetera) reasonably required by the mediator to understand the issue at hand. The memorandums are mutually exchanged between all the parties. It is worth understanding that the mediator can view the original documents of either the parties to the dispute or the court if and only if the viewing is conducted in the presence of an officer of the court on a date and time fixed by the court. c) In the cases of more than one mediator, the mediator nominated by a particular party to the dispute should interact with other mediators to reach a consensus regarding the resolution of the dispute. d) For meetings as and when notified by the mediator, the parties to the dispute can be present either personally or via a representative counsel/ power of attorney; however, if a particular party fails to be present for a meeting, then the other parties to the dispute can approach the court seeking appropriate directions from the court to make the party attend the meetings of the mediator; additionally, if the court finds the said party’s absenteeism to be on unreasonable grounds, then the court can levy monetary action on the wrongdoing party. e) The mediator can opt for administrative assistance by an appropriate and suitable person or institution to facilitate the mediation proceedings if and only if the said assistance is consented by all the parties to the dispute in writing. f) At any given stage of a mediation proceeding, a party can offer the other party, a settlement without any prejudice, subject to a notice sent to the mediator; conversely, an offer with prejudice can be placed by one party in front of the other at any stage of the mediation proceeding, subject to a notice sent to the mediator.
  8. It is worth noting that the mediator of mediation is bound by the provisions of neither the Code of Civil Procedure, 1908, nor the Indian Evidence Act, 1872, rather the mediator is tasked with using the principles of justice and fairness to uphold the rights and obligations of the parties to the dispute. A mediator is not held liable for anything done in good faith (bona fide) during the mediation proceedings even if the mediator has omitted anything to be done by it during the mediation proceeding, wherein the mediator is immune from any criminal and civil action; additionally, the mediator cannot be summoned by any party to the dispute to appear in a court of law to testify in regard tothe information received by it or action taken by it or in respect of the drafts or records prepared by it or shown to it during the mediation proceedings.
  9. The process of mediation lasts for sixty days from the first time the parties to the dispute appear before the mediator and the process is automatically terminated at the expiration of the said sixty days, wherein an extension of no more than thirty days can be given by the court who referred the matter for mediation if and only if it is of the view that an extension is either necessary or useful for the resolution of the dispute. The request for an extension can be done either by the court itself as a suo motu cognisance or by the mediator or by the parties to the dispute, wherein the court shall hear the contentions of all the parties.
  10. In a situation where one party has disclosed some confidential information to the mediator in reference to the dispute, then the mediator is obligated to tell the other party about the said information if and only if the said disclosure is permitted by the former party; however, if the party has explicitly mentioned to keep the information confidential, then the mediator is barred to sharing the same with the other party. Similarly, any information, documents (including notes, drafts prepared/ submitted by either the party or the mediator), testimonials, statements by the parties (including the views expressed either verbally or non-verbally by either the mediator or the parties) in reference to the dispute (either written or oral), done either during the mediation meeting or outside of the mediation meeting, shall not be disclosed by either the party or the mediator to anyone, wherein complete confidentiality is maintained in reference to the events transpired during the mediation proceedings by everyone involved during the mediation meeting. It is worth noting that the mediation proceedings or meetings are barred from being recorded, either audio-visually or stenographically.
  11. The court who referred the matter for mediation shall not intervene in the mediation proceedings in order to maintain the impartiality of the mediator while upholding the trust of the parties to the dispute; however, communication between the court and the mediator is allowed in scenarios where such communication is necessary, subject to the explicit consent of the parties, such that the copies of the written communication are provided to all the parties to the disputes and their respective representatives. The mediator can communicate with the court in one of three situations: a) Regarding the absenteeism of any party, b) Regarding the resolution of the dispute, and c) Regarding the assessment by the mediator stating that the matter cannot be resolved by mediation.
  12. At the close of mediation, if the parties have arrived at a resolution to either all issues of the dispute or some issues of the dispute, then the resolution must be written and signed by all the parties to the dispute (if the party is represented by a counsel or a power of attorney, then the resolution must be signed by them); consequently, the mediator shall add a covering letter before forwarding the resolution to the court who called for the said mediation; however, if no resolution is achieved after the expiration of the mediation term, then the same is communicated by the mediator to the court in writing. Upon receiving the settlement from the mediator, the court shall issue a notice to all parties within seven days of the receipt of the aforementioned settlement, wherein the court shall fix a date (no later than fourteen days from the receipt of the settlement) and time to record the statements of all parties. a) If the settlement resolves all issues of the dispute, then the court shall proceed to pass a decree in accordance with the statements so recorded, and b) If the settlement resolves a part of the dispute and if the said part is severable from the other issues of the dispute, then the court shall proceed to pass a decree to the extent of the settlement covering the severed part without waiting for a decision of the court on the other unsettled issues of the dispute; however, if the settled issue is not severable from the other issues of the dispute, then the court is bound to wait for it to wait for the decision regarding the other unsettled issues.
  13. The consolidated fee of the mediator is fixed by the court itself after consulting with the mediator and the parties to the dispute, wherein a session-based fee may be fixed by the court for the mediator if the court deems it so. The fee of the mediator and the other costs of mediation (cost of administrative assistance and other ancillary expenses as directed by the court) is borne equally by all parties to the dispute, wherein the mediator may ask the parties to deposit equal sums (to the extent of 40% of the probable costs of the mediation) at the start of the mediation proceedings while the remaining 60% is deposited with the mediator at the conclusion of the mediation, wherein the mediator is obligated to submit all the necessary receipts and a statement of accounts to the court in the reference to the costs borne by the mediator in the course of the mediation. It is worth noting that the individual party is burdened with bearing the costs for production of witnesses, experts, etcetera, on its side during the mediation proceedings. If the parties to the dispute do not pay the requisite expense of mediation, then the mediator may move to the court following a written application by the mediator, wherein the court initially directs the concerned parties to pay and if the said parties continue to avoid paying the said fee, then the court can recover the said amount by passing a decree for the said amount. In situations where a particular party to the dispute is entitled to receive legal aid under the Legal Services Authority Act, 1987, then the said party’s share in paying the costs of the mediation (including the fee of the mediator) is provided by the respective Legal Services Authority.
  14. At the end, the mediator must at all times conduct the mediation proceedings not only in accordance with the applicable law but also with fairness, impartiality and integrity while upholding the confidentiality and trust of the parties and their actions in the proceedings. The mediator is tasked with finishing the mediation process in a professional manner with due diligence to the rules of mediation without making unreasonable promises to the parties about the outcome of the mediation; however, the mediator must give a fair idea about the procedural edicts of mediation to the parties to the dispute.

 

Drawbacks to Mediation

The comfort and relaxation of the mediation process dampen the whole truth from being revealed in front of the mediator since, in traditional litigation, the wrongdoer, victim and the witnesses are mandated to tell the truth in the court of law under Section 191 of the Indian Penal Code, 1860 (Perjury under oath is an offence),[20] wherein the concerned advocate has the discretion to pull the truth out by presenting pieces of evidence and other witnesses to the wrongdoer’s act.[21] Such formal rules are absent in mediation, creating room for the parties to the dispute to lie. There are higher chances of the failure of the mediation process since it greatly depends on the skill of the mediator and cooperation between the parties, wherein an unskilled and inexperienced mediator can lead to unresolved disputes in mediation; leading to a situation where the parties to the dispute have spent significant money, efforts and time only to find that the resolution of the dispute through mediation is impossible; hence, it is necessary to have an experienced and knowledgeable mediator for mediation.[22] Mediation relies heavily on the desire of the parties to resolve the dispute peacefully; however, it becomes difficult to convince all the parties to the dispute to accept a consensual negotiation.[23] The alternate dispute resolution process of mediation is limited to civil cases and not to criminal cases.[24]

 

Conclusion

Although mediation is cost-effective, faster and more efficient than traditional litigation per Chief Justice N. V. Ramana, the drawbacks of mediation discourage parties to a dispute to opt for the alternate dispute resolution process. The solution to the drawback is three-fold: a) Establishment of training centres across India for mediation, wherein professional and skilled training is provided to prospective mediators; additionally, the courts of India must include experts, skilled professionals and experienced legal practitioners in their panel of mediators to ensure faster disposal of pending litigation cases of a court via mediation, b) Establishment of Court-Annexed Mediation Centres, wherein the pending cases of the same court are transferred to its mediation centre, such that the mediation is overseen by the able court in a well-coordinated, expeditious and harmonious manner to ensure that the process of mediation resolves with a resolution acceptable to all parties to the dispute, and c) The Civil Procedure Mediation Rules, 2003, should be adhered in all mediation proceedings, such that the rules act as formal rules to guide the mediators and the court through the various problems faced by both, the parties and the mediators in the process of mediation; consequently, the strict adherence to the rules with a stringent oversight by the court results in making the mediation process more effective and efficient in a cost-effective paradigm.

 

References

  1. Shrutika Pandey, ‘Justice Does Not Always Require Black Gowns & Elaborate Arguments, Future Belongs To Mediation’: CJI NV Ramana, LIVE LAW (Jul. 22, 2021), https://www.livelaw.in/top-stories/cji-nv-ramana-mediation-future-dispute-resolution-justice-177981.
  2. Id.
  3. History, DELHI MEDIATION CENTRE. (n.d.), https://delhicourts.nic.in/dmc/history.htm (last visited Jul. 30, 2021).
  4. VED KUMAR ET AL., LB-602: ALTERNATE DISPUTE RESOLUTION 16 (Faculty of Law: University of Delhi ed., 2020), http://lawfaculty.du.ac.in/files/course_material/VI_Term/LB-602-%20Alternative%20Dispute%20Resolution%20-%20OK%20(1).pdf.
  5. DELHI MEDIATION CENTRE, supra note 3.
  6. VED KUMAR, supra note 4.
  7. What is the difference between arbitration and mediation? SIAC. (n.d.), https://www.siac.org.sg/71-resources/frequently-asked-questions/174-what-is-the-difference-between-arbitration-and-mediation (last visited Jul. 30, 2021).
  8. M. JAGANNADHA RAO, CONCEPTS OF CONCILIATION AND MEDIATION AND THEIR DIFFERENCES 4-5 (2003), https://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20rao% 201.pdf.
  9. Id.
  10. Shubhangi Sharma, Amazing facts to know about Arbitration, Conciliation and Mediation, iPLEADERS (Sep. 13, 2019), https://blog.ipleaders.in/arbitration-conciliation-and-mediation/# Mediation.
  11. Id.
  12. Ryan S. Nichols, “Mediation vs. Arbitration: What You Need to Know” SHUMAKER (Jun. 30, 2020), https://www.shumaker.com/latest-thinking/publications/2020/06/-mediation-vs-arbitration-what-you-need-to-know.
  13. Id.
  14. The Difference between arbitration and mediation, LEGAL LINE. (n.d.), https://www.legalline.ca/ legal-answers/53231-2 (last visited Jul. 30, 2021).
  15. Sharma, supra note 10.
  16. VED KUMAR, supra note 4, at 17.
  17. Id.
  18. Id, at 18.
  19. Salem Advocate Bar Association v. Union of India, 6 SCC 344 (2005) (India).
  20. Vinay P. Singh, India: Perjury and Indian Laws, MONDAQ (Dec. 23, 2019), https://www.mondaq.com/india/crime/878034/ perjury-and-indian-laws.
  21. Disadvantages of Mediation: Everything You Need to Know, UPCOUNSEL. (Oct. 20, 2020), https://www.upcounsel.com/ disadvantages-of-mediation.
  22. Id.
  23. Kopal Bansal, PROS And CONS Of Mediation As ADR, VIA MEDIATION AND ARBITRATION CENTRE (n.d.), https://viamediationcentre.org/readnews/MTcx/PROS-and-CONS-of-Mediation-as-ADR (last visited Aug. 02, 2021).
  24. Id.

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