Thursday, February 22, 2024

“Ethics of neutrality must be followed”

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With the new mediation law coming in force, JUSTICE ML MEHTA, chairman, Delhi Dispute Resolution Society, is optimistic that in future more international commercial disputes can be settled in India. In an exclusive interview with RAJSHRI RAI, editor-in- chief of APN channel, he explained about the changing landscape of mediation in India

Rajshri Rai: In today’s dispute resolution scenario, mediation is increasingly being used as a tool of problem resolution. If we have to define mediation in layman’s term what it could be?

Justice ML Mehta: Mediation is basically the resolution of dispute between two parties either in the family or society. Any type of dispute can be resolved by mediation, whether it is domestic or commercial. If both the parties agree to end the fight then mediation is the best possible way. In mediation there is a third neutral party known as mediator. He helps, assists and facilitates both the parties to resolve the dispute. The role of the mediator is to guide both the parties on the path of problem resolution; he cannot impose his decision on them. He shows them the way to resolution, shows them all the possible options available; removes all the misunderstanding between the parties. The mediator will explain the process of mediation as well. Generally, parties have strong opinions of they being right and the other party being in the wrong. This is a major stumbling block, which needs to be handled tactfully. The whole process is known as “Mediation”.

RR: In general terms, we presume that if any dispute occurs between two parties, then either they put in a complaint with the police or move court. Can you explain the underlying principles, processes and challenges inherent in the mediation process?

MLM: According to my experience, except some disputes all types of conflicts can be resolved, but what is most important is the mindset of the parties. Parties must have an open mind and a positive attitude. This helps the mediation process. But as mentioned, maximum disputes can be resolved, but not all.

According to the Schedule I of Mediation Act there is a list present which clearly states what types of disputes can’t be decided through mediation and the list is also not final, it is indicative in nature. If the court feels that the dispute has a crime aspect to it, for example cases of domestic violence, then mediation can happen in compoundable problems where compromise can take place. But the result of the mediation are not binding in nature until and unless approved by the court. Court will examine the decision whether it is workable or whether it is amenable to law. In this way all commercial or family disputes are amenable to settlement.

RR: Are there any guidelines for mediation process which needs to be adhered to by the parties and by the mediator?

MLM: The basic guideline is—parties should participate in good faith; the intention must be to resolve the matter and not to extend the matter; there must be neutrality and confidentiality; there must be self-determination; any party can step back from the process in between; the whole process is voluntary and there must not be any pressure quotient and mediation ethics of neutrality must be followed. There are the basic rules.

RR: Talking of mediation ethics what happens when ethics and neutrality is challenged? Does it not endanger the whole process? 

MLM: The biggest challenge of this process is to ensure that both the parties provide accurate and full information. Each party feels that his case is better and strong. This is human nature. The main challenge is how to change the mindset of the parties, how to show them the reality of their case in a easy and simple way. This is the toughest job of a mediator and so is the task to maintain neutrality. This is because if one of the parties feels that the mediator is not fair, he may walk out of the mediation process. That is why it is important that the mediator should maintain neutrality in his conduct.

RR: In the alternate dispute resolution (ADR) scenario, arbitration process also plays an important role in conflict resolution. Can you compare and contrast mediation and arbitration processes? 

MLM: Arbitration is a quasi-court process. Here, one party files a case while the other party gives response to it, rejoinders are filed and documents submitted. All procedures are to be followed which is very cumbersome, lengthy, tiring, and exhausting financially, physically and mentally. Mediation has nothing of all this. Herein, two parties come on board to resolve a conflict situation. In mediation, even case files are not necessary. Both the parties explain their cases, the mediator takes over and discusses the matter with them, takes both the viewpoints into consideration and tries to reach an amicable solution. If mediation is done properly, it is a win-win situation for both the parties as both parties go happy and satisfied.

RR: Mediation seems to be quite people-friendly. Can you explain the mediation process in detail?

MLM: The term mediation has been clearly defined in the Mediation Act of 2013. Various types of mediations, such as pre-litigation mediation, online mediation or ODR, community mediation are mentioned and approved. It is not necessary that only parties who have cases in court can adopt mediation for problem resolution. It can also be started by the parties who have agreements or no agreements. In such cases either they can go for pre-litigation mediation, which can be done before approaching the court, if case is pending before any court. 

Every court has a mediation centre. These mediation centres are in High Courts and in the Supreme court. It is mandatory for judges to refer the cases in mediation under Section 59 of CPC (Code of Civil Procedure). The judge can send the cases for mediation or conciliation if he finds there is a possibility of settlement. If a case pending in the court is settled in mediation, the court will announce or pass the decree which is binding on the party. 

If the case is not there in the court, then through pre-litigation mediation, online or through community, mediation issues are resolved. Firstly, it would be checked which forum it fits as there are some cases which do not require adjudication because there are no such legal issues between the parties which require the adjudication of the court. Thus, there is a need to get these types of cases out of courts, so that the burden of the court could be decreased. 

Arbitration is a sort of bigger court outside the regular court because the matters in arbitration are bigger and complex. Arbitration matters are matters which the courts cannot handle because courts don’t have sufficient time or which need specialisation or which have voluminous records and are very complex matters. There must be an agreement between the parties or there should be a contract only then the case will go into arbitration. The award, which is the judgment, is binding on the parties, but it can be appealed in a High Court.

RR: There is a pendency problem in the courts. The process of arbitration has also become time consuming.  So, is there any time limit for mediation so that cases don’t drag?

MLM: According to the rules prescribed by the Supreme Court and the High Court, the time provided for matter resolution is 60 days which can be extended further by 30 days with the consent of the parties. However, in the new Act, initially 120 days is provided which is extendable by 30 days. Within this period, the matter has to be settled. In 60 days, the parties are time bound, also the pressure increases on the parties to come to a solution. Generally, 120 days are not really required.  

RR: Can a budding lawyer be a mediator and engage in the process of mediation and earn something in the process. If fresh advocates work as mediators what experience is required?

MLM: As per the current law, advocates with a practice of 10 years, are eligible to take training for mediation which is of 40 hours. After the training, they have to settle around 10 cases, then they are assigned as co-mediator and finally they get a certificate after which they can be a mediator. 

But for cases which are not in courts, but are at pre-litigation stage, we relax the rule of 10 years’ practice and depend more on the aptitude of the candidate. We have appointed freshly passed law graduates as mediators and they are doing well. Some fresh law graduates have started their start-ups of mediation centres as well. In court-annexed mediation, the mediators are paid very less, for example just Rs 1,500 to Rs 2,000 per day. But currently, all this is ad-hoc. When the Mediation Council of India will come into being, one rule will be there which will be applicable for the entire country. As of now, every court and every centre has made its own different rule.

RR: Though mediation is being adopted as an effective ADR method there is no central regulatory authority to control mediation proceedings all over India. Is this not a serious lacunae?

MLM: As mentioned earlier, a significant mediation law has been notified. The law has got special provisions about the establishment of a regulatory authority by the name of Mediation Council of India (MCI). MCI is going to be a central body, a high-power authority, which will regulate all the working of mediation throughout the country. Below it will come mediation institutes, followed by mediation service providers. So, the entire hierarchy is provided for. The screening and appointment of mediators and their conduct and ethics all will be regulated. This is a central body, and in due course of time we may also have regional bodies.

RR: Today when national boundaries are being transcended by commerce, how effective is mediation as an ADR tool for resolution of global disputes?

MLM: Our economy is also burgeoning. Online business is peaking. We are also seeing lot of e-commerce happening, and as a consequence, more cross border e-commerce disputes as well. Mediations have become indispensable and an integral part of the justice delivery system. It is not only confined to the domestic arena, international disputes are also being resolved. I am sure that in coming time with more openings international commercial disputes will also be probably settled in India and India going to become international commercial hub.

RR: A common perception is that mediation hinders the regular justice process and sometimes runs contrary to principles of natural justice as well. It is probable that someone who is weak, will accept anything put forth to him. So would not justice be compromised in mediation?

MLM: You have asked a very valid question. In a few cases, such conditions may arise, especially when one party is very strong. Maybe in an owner-labour dispute the labourer would be prone to compromise if pressure is built on him. In such situations much responsibility lies upon the mediator to handle the matter deftly and with uncompromising neutrality. The mediator has to have strong communication skills, strong ethics to command faith and ability to dissuade pressure tactics.

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