ALTERNATIVE CONFLICT RESOLUTION MECHANISM

Justice Biplab Kumar Sharma

Former Judge, Gauhati High Court

Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time." (Abraham Lincoln)

In the field of resolving legal controversies, mediation offers a uniform method of dispute resolution, in which a neutral third party, the mediator, attempts to assist the parties in finding a resolution to their problem through the mediation process. In mediation, the parties can resolve their dispute through a written agreement and sign the document at the end of a successful mediation, thus producing a legally binding contract in some jurisdiction specified therein.

Mediation is simpler and has clearer rules than most other conflict resolution methods. It is employed at all scales from petty civil disputes to global peace talks. In a process of mediation, the mediator draws up an agreement with the free consent of both parties, which is sent back to the court for final settlement of the dispute.

Unlike a judge or an arbitrator, the mediator does not impose the ultimate and final solution on the parties. A mediator creates a conducive atmosphere under which the parties can reach an acceptable solution by mutual consent.

The concept of mediation is ancient and deep-rooted in our country. In olden days, disputes used to be resolved in a panchayat at the community level. Panches used to be called 'Panch Parmeshwar'. Now we have grown into a country of 140 crore people. With liberalisation, globalisation and tremendous economic growth, there is an explosion of litigation in our country. Though our judicial system is one of the best in the world and is highly respected, there is still a lot of criticism on account of long delays in the resolution of disputes in the courts of law. We have now reached a point where even an honest litigant is hesitant to approach the court for a decision on his dispute. Hence, we have turned to alternative forms of dispute resolution.

We tried the system of Lok Adalats and gave statutory recognition to it through the Legal Services Authority Act, 1987. But it is only a miniscule amount of litigation that has gone to the Lok Adalats, and even those cases are mainly compensation cases, house tax matters or small recovery disputes of big companies where only thematic calculations are to be made and there is hardly any dispute about the question of liability. The Arbitration & Conciliation Act, 1996, replaced the Arbitration Act, 1940; however, it has not been effective in reducing litigation. This is because a dispute can go to arbitration only if there is an arbitration agreement between the parties, and experience has shown that in a significant percentage of cases, the aggrieved party files objections to the award, and that sometimes takes several years for disposal.

Section 89 of the Code of Civil Procedure (CPC) was amended with effect from 01.07.2002, whereby mediation and judicial settlement were envisaged as modes of dispute settlement. It is now obligatory for the court, after framing of the issues, to refer the dispute for settlement either by way of arbitration, conciliation, mediation or judicial settlement. It is only when the parties fail to get their dispute settled through any of the alternative dispute resolution methods that a suit could proceed further.

In fact, mediation is widely used as an alternative to litigation for quick resolution of disputes in the USA, European countries and Australia, particularly in commercial and matrimonial disputes. In the adversarial system, a litigant becomes insignificant, almost a non-entity. He or she is a mute spectator to the battle fought on his or her behalf, sometimes on grounds that are too technical.

Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A mediator uses special negotiation and communication techniques to help the parties come to a settlement. The parties can appoint a mediator with their mutual consent, or the court, in pending litigation, can appoint one. Mediation always leaves the decision-making power with the parties. The mediator refrains from deciding what is fair or right, apportioning blame, or rendering an opinion on the merits or chances of success if the case is litigated. Rather, the Mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement. A mediator does not decide but leaves the decision-making power to the litigating parties. A settlement arrived at between the disputing parties in mediation is binding in as much as it is enforceable.

Mediation is now being encouraged in our country as a "structured method" where the conflicting parties have the unique scope to look at each other's views and appreciate and understand each other's problems more closely. It has been in practice in the USA and other advanced countries for a long time. It is recognised as one of the best tools for conflict management because mediation is probably the only means that can heal a conflict while resolving it.

In mediation, the parties decide the settlement terms, unlike in other ADRs. Nothing can be thrust upon them. A mediation centre provides a cosy environment for the entire process. The entire process and matters discussed during mediation remain confidential. In today's world, mediation has emerged as a tool to supplement the traditional court system.

Our Gauhati High Court has also framed mediation centres which came into existence in accordance with the mandate of Sec. 89 of the Code of Civil Procedure. Notifications to that effect regarding the constitution and reconstitution of the Mediation Monitoring Committee (Supervisory Committee) have been issued from time to time. There is a supervisory committee of the Gauhati High Court (principal seat) consisting of judges, judicial officers and other designated functionaries. Its duty is to oversee the functioning, performance and quality of mediation and compliance with laid-down mediation standards. In the process of mediation, the role of the referral judge is crucial. The referral judge is responsible for convincing the parties of the benefits of mediation in order to obtain their free consent.

The participant in the mediation process always derives immense pleasure from it, especially when it is successful. When mediation leads to successful dispute resolution, it dilutes the success story in litigation. In the words of Mahatma Gandhi, "...Both parties were happy with the result, and both rose in public estimation..." I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was indelibly burnt into me: a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises in hundreds of cases. I lost nothing thereby - not even money and certainly not my soul."