Mediation refers to a platform where the disputed parties; either on the request made by them prima-facie, or else referred by the court in which the suit is pending agrees to settle the said dispute through the mode of Alternative Dispute Resolution by appointing a mediator(A mediating agent in a physical, chemical, or biological process)[1] of non interest, who is there by notified by the Judge pendente lite, as it is governed by the principles of transparency, confidentiality, privacy and immunity[2]. In India Civil procedure code was amended only with the intent to promote mediation and to reduce the burden of pending litigation, procedural aspect of mediation law is guided by the Mediation and Conciliation Rules, 2004.
The concept of mediation is nothing novel as it has been a mode of dispute resolution since the ancient times pre-British to be apt; the process of resolving the disputes was through the advice of the person who was respected by both the parties to dispute. When the British rule began to flourish in India the Anglo-Saxon dispute resolution came up that supressed the practice of mediation during that era. Mediation has emerged itself as a boon to the parties, litigants and the courts as the decision herein, isn’t binding, however, on compliance of section 74[3] of the Arbitration and Conciliation Act1996 agreement such decision attains the status of award in similar with the award of arbitrator.[4] Whenever settlement is a possibility that can be achieved; in such instance module of mediation as dispute resolution can contribute as a peaceful and speedy remedy way of settlement. To avoid the unfair use of mediation method in order to deliberately delay the matter mediation rules states that on expiry of ninety days from the date fixed for the first appearance of the parties before the mediator/conciliator, the mediation/conciliation shall stand terminated, unless the Court, which referred the matter, either suo motu, or upon request by any of the parties, and upon hearing all the parties, is of the view that extension of time is necessary or may be useful; but such extension shall not be beyond a further period of thirty days’.[1]
Mediation can dispose the matter in a precise time of few days or months that may take multiple years via detail trial litigation, In a case of M.R. Krishna Murthi, Justice AK Sikri and Justice S Abdul Nazeer reiterated the need to enact the Indian Mediation Act at the earliest while deciding the matter related to motor accident claim and deciding the quantum for 40% disablement.[2] Nevertheless, Mediation has contributed in strengthening the financial health of nation by resolving many disputes related to NPA, wherein, huge funds of banks were blocked or turned NPA on account of borrower default, this not only improves the financial health of banking sector but also act as an strategy to reduce NPA burden.
The foremost strength and advantage of this alternative dispute resolution strategy is that Mediator/conciliator is not bound by Indian Evidence Act, 1872 or Code of Civil Procedure, 1908, but shall be guided by the principles of fairness and justice, having regards to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute(s)[3] thus, giving him an upper edge towards the same and subjected to less restrictions he/she can ameliorate down the decree with proficiency and dexterity, it is the prime reason that dispute can be settled in shorter tenure by reducing the substantial cost burden. In today’s era time is money and money is utilised to save the time, what if there is a befitting and felicitous remedy that can save both and resolve the dispute as well? In author opinion with tremendous amount of economic reforms and diversified transactions structure ranging from payment through technology gateways to crucial business agreement which involves huge amount of monetary, technology and human resource there is considerable need to strengthen the ADR structure across the country by amending the current dispute resolution laws and rules therein in synchronization with the present business environment which is more technology based, therefore, in my opinion, all disputes having element of technology in such disputes mediator must be one having basic knowledge about the computers or coding to promote and strengthen the mediation as a effective method among technology based start-ups or other businesses. Nevertheless, to promote alternative dispute resolution commercial Agreements must describe a mediation and arbitration as the dispute resolution mechanism instead of litigation.
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[1] https://www.merriam-webster.com/dictionary/mediator
[2] Rule 20, 21 and 22 of MEDIATION AND CONCILIATION RULES, 2004.
[3] The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.
[4] NATIONAL INSURANCE COMPANY LIMITED V. BOGHARA POLYFAB PVT. LTD 18 SEPT 2008
[5] Rule 18 of MEDIATION AND CONCILIATION RULES, 2004
[6] https;//barandbench.com/Indian-mediation-act-supremecourt-motor-vehicles-judgement
[7] Rule 11 of MEDIATION AND CONCILIATION RULES, 2004
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