Why in the news? 

The Mediation Act, of 2023, formalizes diverse mediation forms, promotes amicable settlements and also addresses the judicial backlog. However, Chief Justice Chandrachud emphasized recently that we need a “mediate, not litigate” directive.

What is Alternative Dispute Resolution (ADR)?

• ADR refers to the methods of resolving a dispute, which are alternatives for litigation in Courts. Generally, it uses a neutral third party who helps the parties to communicate, discuss the differences, and resolve the dispute (civil disputes).
• The Malimath Committee Report (1989-90) underlined the need for ADR mechanisms as a viable alternative to conventional court litigation.

Important Provisions Related To ADR:

• Section 89 of the Civil Procedure Code, 1908: Provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then the court formulates the terms of the possible settlement and refer the same for ADRs.
• Legal provisions dealing with the ADR mechanism in India are the Legal Services Authority Act, 1987 (established Lok Adalat System) and the Arbitration and Conciliation Act, 1996.

Significance of ADR: 

• Speedy Justice: It is a well-known fact that the present Judicial System is extremely expensive and delaying. ADR methods typically resolve disputes faster than traditional court processes, which is crucial in reducing judicial backlog and providing timely justice.
• Cost-Effectiveness: ADR is generally less expensive than litigation, as it avoids the high costs associated with court fees, prolonged legal procedures, and extensive discovery processes.
• Confidentiality: Unlike public court proceedings, ADR processes are usually private, protecting the confidentiality of the parties and the details of the dispute.
• Preservation of Relationships: ADR methods, particularly mediation and conciliation, emphasize collaborative problem-solving and communication, helping to preserve or even improve relationships between parties.

Key provisions of the Mediation Act, 2023:

• It defines ‘Mediation’ and also expands the scope of mediation to statutorily recognize pre-litigation mediation, online mediation, community mediation and conciliation under the definition.
• Section 5 provides that the disputing parties, before filing any civil or commercial suit in any court, may “voluntarily and with mutual consent” take steps to settle the disputes by pre-litigation mediation.
• It is in line with the international practice of using the terms ‘mediation’ and ‘conciliation’ as declared by the UNCITRAL and as done previously by the Supreme Court of India in many of its judgments (Perry Kansagra vs. Smriti Madan Kansagra, 2019 and Amardeep Singh vs. Harveen Kaur, 2017).

Need to address flaws wrt Mediation Act, 2023:

• Experience Requirement for Mediators: Aspiring mediators must have 15 years of professional experience before qualifying to practice. This requirement might be too stringent and could limit the pool of potential mediators, hindering the growth of mediation as a viable dispute-resolution method.
• Disconnect in Legal Education: The current legal education and practice emphasize advocacy, which contrasts sharply with the neutrality required in mediation. This creates a disconnect as legal professionals need to unlearn and relearn skills when transitioning between roles, making the process inefficient.

How can we foster the next generation of Mediators?

• Integrated Approach: To bridge the gap between advocacy and mediation, there should be continuous, integrated learning. Legal professionals should be trained to switch roles seamlessly, maintaining and enhancing their skills in both areas throughout their careers.
• Innovative Training Methods: Co-mediation pairs novice mediators with experienced counterparts, allowing them to gain practical experience in real mediation sessions.
• Structured Mediation Training: Embedding mediation training within the law school curriculum can ignite early interest and equip students with essential dispute-resolution skills.
• Amendments: Revising the experience requirement to allow younger professionals to become mediators sooner could expand the pool of qualified mediators and accelerate the adoption of mediation practices.

Conclusion: According to CJI an “active effort must be taken by courts to make negotiations and mediation mandatory as part of case management and with adequate cooperation from all stakeholders, ADR can emerge as a tool of social justice in the country.

Mains PYQ: 

Q What are the major changes brought in the Arbitration and Conciliation Act, of 1966 through the recent ordinance promulgated by the President? How far will it improve India’s dispute resolution mechanism? Discuss. (UPSC IAS/2015)

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now