The Chief Justice of India has called for Legislation mandating Mediation as the first step in Resolving Disputes by Somesh Vaidya @LexCliq



On Saturday, Chief Justice of India NV Ramana emphasised the importance of enacting legislation to make mediation the required first step in the dispute settlement process.

Prescribing mediation as a mandatory first step for resolution of every allowable dispute will go a long way in promoting mediation. Perhaps, an omnibus law in this regard is needed to fill the vacuum”, he said.

The Chief Justice of India was giving the keynote presentation at the India-Singapore Mediation Summit, titled “Making Mediation Mainstream: Reflections from India and Singapore.” Chief Justice Ramana emphasised that many Asian nations, including India, have a long and rich heritage of collaborative and peaceful conflict resolution. The CJI made a reference to the Indian epic Mahabharata, which depicts an early effort at mediation.

The great Indian epic, the Mahabharata, actually provides an example of an early attempt at mediation as a conflict resolution tool, where Lord Krishna attempted to mediate the dispute between the Pandavas and Kauravas. It may be worthwhile to recall that the failure of mediation led to disastrous consequences.”

Furthermore, the CJI stated that mediation has been profoundly ingrained in the Indian culture for generations. Disputes in India have always been settled by the community’s chieftains or elders. Similarly, business conflicts were settled by merchants, either directly or through merchant groups, according to the CJI.

CJI Ramana also objected strongly to the widely reported figure that “pendency” in Indian courts had reached 45 million cases, which is interpreted as the Indian judiciary’s incapacity to deal with the case burden. The CJI described this as a “overstatement and an uncharitable analysis.”, the CJI added

The term pendency is used to refer to all cases which have not yet been disposed of, without any reference to how long the case has spent in the judicial system. This would mean, that a case that was filed yesterday gets added to the pendency statistic. This is, therefore, not a useful indicator of how well, or poorly, a system is doing.”

“The enormous volume of cases in the Indian legal system may have to be considered in the light of India being the world’s biggest democratic republic. The people have faith in the Constitutional enterprise, of which the judiciary is an essential component. Judges in India, particularly those in the Constitutional Courts, frequently work till the wee hours of the morning to complete their judicial and administrative caseloads “, he explained.

The CJI emphasised the importance of Legal Service Authorities in relieving the plight of society’s underprivileged groups and supporting ADR methods.

“Aside from raising legal knowledge, the National Legal Services Authority promotes alternative dispute resolution (ADR). The Lok Adalat (literally, People’s Court) is one such system.”

CJI Ramana went on to say that the introduction of Court Annexed Mediation in India began with a constitutional challenge to Section 89 of the Civil Procedure Code, in which the Supreme Court of India formed a Committee to develop Mediation Rules. These Rules were later adopted, and all High Courts were ordered to draught them.

Enumerating the shifting environment of mediation, the CJI noted that historically, the mediator was solely entrusted with playing a passive role in facilitating dialogue between parties. However, as increasingly complicated and sophisticated situations are submitted to mediation, the mediator is being requested to give more active support to the parties in reaching a resolution.

“When the function becomes advising, there is an inherent danger that the Mediator would lose neutrality, opening the door to temptations and extraneous considerations,” the CJI noted.

The CJI observed, highlighting a significant problem encountered by many mediators in view of the prevalent socioeconomic inequalities,

“What happens when one party is better situated- economically, socially and politically, than the other? What is the duty of a mediator if the settlement reached is patently unjust to the weaker party? Should the mediator be a silent spectator during such negotiations? Is the mediator merely concerned with enabling the parties to arrive at a settlement and not concerned with the terms of the settlement? These are just some of the questions which one must consider, particularly in a country like India with our diverse social fabric.”

The CJI, on the other hand, emphasised the need of popularising mediation in the Indian setting. Given the nation’s complex social fabric, he noted how mediation may be utilised as an “instrument of social justice.”

India, the world’s largest democracy, is home to many identities, religions, and cultures which contribute to its unity through diversity. This is where the rule of law, with an assured sense of justice and fairness, comes into play. Mediation, being the cheapest and simplest option available to the public at large, can be described as a tool of social justice in the Indian context“, the CJI added.

The CJI further stressed the need of instilling in mediators high ethical standards as well as unquestionable honesty and objectivity.

“…a more active involvement of the mediator in the process of mediation could open the doors to parties attempting to influence them. This necessitates the creation of an environment that prevents any such attempts from being made by an unscrupulous party. It requires that mediators be of good character and moral standing. For this, it is necessary, that Rules and Regulations governing Mediators are updated and implemented to ensure transparency and neutrality”, he said.

He also urged Indian states to build comprehensive ADR-friendly infrastructures. Recently, the state of Telangana announced plans to establish a cutting-edge ADR facility. This is a positive step, and I hope that more states would follow suit shortly, the CJI concluded.

Article by Somesh Vaidya

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