The Court Annexure Mediation Mechanism: / An overlooked Avenue for Justice
Mediation , has a means of resolution of disputes, has been growing significantly over the past
few decades. It is considered to be the most appropriate method amidst the 'Alternative Dispute Resolution'
Mechanisms as it is cost effective, flexible, amicable and addresses the conflict in the most cordial of manners.
Mediation is a process in which a third party non-partisan party seeks to stimulate the voluntary and an unconstrained
agreement between the parties in conflict by using negotiation skills and communication techniques.
In the year 1996, the then Hon'ble CHief Justice of India. Mr. A H Ahmedi called for the institute for the Study and Development of Legal Systems (ISDLS), USA to take part in a national assessment of the backlog in the civil courts in India. Various studies were conducted there after to probe and look into the causes of delay in disposal of cases under achieve civil jurisdiction in India.
Based on the studies and suggestions to promote the alternative dispute resolution mechanisms, in the year 1999, the Parliament, on the recommendations of the Law Commission of India and the Justice Malimath Committee, amended Section 89 of the Code of Civil Procedure (Amendment) Act , 1999, which came into effect from 2002. The amended Section 89 provides for reference of disputes to various modes like, Arbitration , Conciliation, Judicial Settlement, Lok Adalat and Mediation. Though there were certain anomalies in the drafting of amended Section 89 but the same were set right later by the Hon'ble Supreme Court in Afcons Infrastructure Ltd and another Vs. Cherian Varkey Construction Co. Pvt Ltd.
In April 2005, the Mediation and COnciliation Project Committee (MCPC) was constitutes by the then Chief Justice of India. In April 2005, the first court-annexed mediation Centre was set up at Madras High Court in Chennai followed by Samashan in Delhi High Court, established in 2006. Bangalore Mediation Centre established in the year 2007. It is an initiative of the High Court of Karnataka. Today court-annexed Mediation Centre(s) have been established in Supreme Court and in almost all the High Courts across the country. Not only this , but various trianing programs / refresher programs are also being conducted for induction of new mediators apart from holding various refresher programs for already trained mediators.
The advantage of Court annexed Mediation is that the disputing parties, their lawyers all collectively participate in the process of mediation, with mediators. In the Court annexure Mediation, the process of Mediation begins the referral Judge and ends with the same judge as the settlement of the parties culminates into final order passed by the referral judge. The same sets of lawyers who represent the parties in the court retain there briefs for their clients for looking after their interest in the process of mediation. The lawyers who are perceived as litigating lawyers use their clients and helping them to resolve their disputes making by think out of the box and find creative solutions to their problems. The protective environment of the parties due to availability of the assistance of the lawyers does not change and side by side they enjoy their participative role in finding solution to their own problem. Since the law mandates mediation, the referral judge encourages mediation. the disputants enjoy getting more from the limited resources by resolving their disputes in the manner that benefits both. In this way the court remains the central institute for the dispensation of justice.
STATUTORY PROVISIONS DEALING WITH COURT REFERRED MEDIATION
Section 89 of COde of Civil Procedure laid down the foundation fir the Court Referred Mediation process in India. As Per section 89, where it appears to the court that their exist elements of settlement, the court shall refer the matter for Arbitration ; Conciliation ; Judicial Settlement including settlement through Lok Adalat or Mediation. The stage at which the court should explore whether the matter should be referred to ADR processes is after the pleadings are completed and before framing of issues, when the matter us taken up for preliminary hearing for examination of parties under Order 10 of the code. However , if for any reason, the court had missed the opportunity to consider and refer the matter to section 89 before framing of issues. In family disputes or matrimonial cases, the relationship becomes "hostile on account of the various allegations in the petition against the spouse , siblings. So, is the case in commercial disputes involving business partners or co-workers. The hostility further gets aggravated by the counter- allegations made by the respondent / defendant in the written statement. Therefore, wherver relationship is involved , ideal stage for mediation is immediately after service on the opponent more particularly beforre filing of response to the petition.
Cases from Trial Courts, High Court of Karnataka and Apex Court have been referred for Mediation to Bangalore Mediation Centre. In the Bangalore Mediaiton Centre,76,922 cases have been referred for Mediation Since 1st January , 2007 till 30 September 2020, out of which 60042 cases have been mediated. rest was not deemed to be fit for mediation on various grounds and thereby was referred back to the referral court. Out of the cases mediated, 38,961 cases were settled whcih constitutes 65% of the total referred cases.
ADVANTAGES OF COURT ANNEXED MEDIATION
In COURT ANNEXED MEDIATION the mediation services are provided by the court as a part and parcel of the same judicial system as against COURT REFERRED MEDIATION, wherein the court merely refers the matter to a mediator. The advantage of court annexed mediation is that the judges, lawyers and litigants become participants therein, thereby giving to them a feeling that negotiated settlement is achieved by all the three actors in justice delivery system. When a judge refers a case to the Court annexed mediation service, keeping overall supervision on the process, no one would feel that the system parts with the case. The Judge would feel that he refers the case to a mediator within the system. The same lawyers who appear in a case retain their briefs and continue to represent their clients before the mediators within the same set-up. The litigants feel that they are given an opportunity to play their own participatory role in the resolution of disputes. This will also give a larger public acceptance for the process as the same time tested court system, which has acquired public confidence because of integrity and impartiality, retains its control and provide an additional service. The court is the parental institution for resolution of disputes and if ADR models are directed under Court's supervision, atleast in those cases which are referred through courts, the effort of dispensing justice can become more co-ordinated. ADR services under the control, guidance and supervision of the court would have more authenticity and smooth acceptance. It would ensure the feeling that mediation is complimentary and not competitive with the court system.
COURT ANNEXED MEDIATION-LAW COMMISSION OF INDIA
In COURT ANNEXED MEDIATION the mediation services are provided by the court as a part and parcel of the same judicial system as against COURT REFERRED MEDIATION, wherein the court merely refers the matter to a mediator.