Mediation, Conciliation and Arbitration are historically more ancient than the Anglo-Saxon adversarial System of law. Mediation was very popular amongst businessmen during pre-British rule in India. The Mahajans – the impartial and respected businessmen used to resolve disputes between members of the business associations by the end of the day.
The concept of mediation got legislative recognition for the first time in the Industrial Disputes Act, 1947. The conciliators appointed under Section 4 of the Act are “charged with the duty of mediating in and promoting the settlement of industrial disputes”. A complete machinery for conciliation proceedings is provided under the Act. The conciliators appointed under the Act and the services provided by them are part and parcel of the same administrative machinery provided under the Act. The Central Authority has been vested with duties to perform, inter alia, the following functions:-
- To encourage the settlement of disputes by way of negotiations, arbitration and conciliation.
- To lay down policies and principles for making legal services available in the conduct of any case before the court, any authority or tribunal.
- To frame most effective and economical schemes for the purpose.
- To utilize funds at its disposal and allocate them to the State and District Authorities appointed under the Act.
- To undertake research in the field of legal services.
- To recommend to the Government grant-in-aid for specific schemes to voluntary institutions for implementation of legal services schemes.
- To develop legal training and educational programmes with the Bar Councils and establish legal services clinics in Universities, Law Colleges and other institutions.
- To act in coordination with governmental and non-governmental agencies engaged in the work of promoting the cause of legal services.
The Arbitration and Conciliation Act, 1996 has made elaborate provisions for conciliation of disputes arising out of legal relationship whether contractual or not and to all proceedings relating thereto. It provides for commencement of conciliation proceedings, appointment of conciliators and the assistance of a suitable institution for the purpose of recommending the name(s) of the conciliator(s) or even appointment of the conciliator(s) by such an institution and submission of statements to the conciliator. It also provides that conciliator is not bound by the Code of Civil Procedure or the Evidence Act. It defines the role of the conciliator in assisting the parties in negotiating the settlement of their disputes.
The introduction of ADR mechanisms in the Indian justice system has raised great expectations and hopes in the minds of the litigants for a more satisfactory, acceptable and early resolution of their disputes. As stated above, legislative foresight in introducing ADR procedures and vesting ample power in the judicial administration to carry out the reforms, are now required to be supported by a strong will and administrative ability to provide for a redressing machinery to utilize ADR procedures with advantage.
Untill court annexed mediation services are made available, how can mediation reference be effectively made by the courts? The courts may have to depend upon private mediators or non-governmental organizations providing mediation services, if at all available. However, till mediation is popularized in the country as an accepted dispute resolution mechanism, litigants will be slow to accept private mediators. The questions are - where and to whom the court will refer the cases for mediation? Are there persons equipped, trained or experienced enough to handle complex civil and commercial disputes? How the courts will be able to monitor the cases sent to mediation? If appropriate machinery for providing mediation services is not made available, the moot question the administration will have to answer is – Are the ADR provisions introduced in legislation to remain in the statue books?
The answers can be found by drawing on the experience of and implementation of such provisions made in other countries who have successfully achieved the results. In USA the number of cases where the parties choose to go to mediation has shot up much higher in percentage than the ratio of disposal by the courts. However, USA took nearly 20 years to introduce court annexed mediation in their system as a result of continued efforts, experiments and research. Their rewards are that the parties are happier, the courts are less burdened and spared for cases that deserve handling by Courts and the system has become cost efficient.