Presently, mediation in India comprises of two modes, inter alia, court referred mediation and private mediation.   Firstly, inclusion of mediation in the Code of Civil Procedure, Industrial Disputes Act, Companies Act 2013, the Hindu Marriage Act and the Family Courts Act, requires the courts to make every endeavour to refer a case pending before it for mediation.  Secondly, in private mediation a qualified personnel is appointed as a mediator on a fixed fee basis by the disputants themselves.   

Mediation enables access of justice in its own way; as it is conducted by a third party having no interest in the matter, in a manner as agreed by the parties, hence it makes the process simpler. Further, it involves conversation and compromise whilst resolving issues, thereby, provides for a fair solution, which is impossible in litigation as a court may not be able to provide a judgement which is acceptable by both parties. Furthermore, the only cost incurred in mediation is the fees of the mediator, administrative cost and the sum as agreed between the parties to settle the dispute, thereupon protects the disputants from burning a hole in their pocket. Also, absence of procedure naturally shortens the time required to resolve any dispute.   Subsequently, it overcomes all the barriers of access to justice by saving time, cost and providing confidentiality. Therefore, mediation is without an iota of doubt the click to the problems of congested court rooms, lack of manpower, delay, cost and complex procedures.  Nevertheless, despite the high probability of settlement that pre-litigation mediation provides, the number of cases referred remain abysmally low and that affects the development of mediation in the country.   Also, justice still remains inaccessible due to existence of barriers such as poverty, social and economic backwardness, unawareness, illiteracy, etc.

Despite being an integral part of the system and gaining exponential faith of the citizens,   judiciary has been subjected to several hinderances which disrupt justice.   Courts in India are largely affected due to poor infrastructure, magnified number of backlogged cases, inefficient training and shortage of judges.  The contenders are compelled to go through complex and costly procedures for enforcement of their rights, which they fail at due to illiteracy, abject poverty, unawareness, which in effect causes inequality.  Mediation is reckoned to be the best way of imparting justice.  Notably, mediation can fix the holes of the formal system, if executed properly, therefore, mediation is proposed as need of the hour which efficiently and expeditiously disposes off cases and enforces legal and contractual rights of all the sections of the society.  Thereby it can complement the overburdened formal justice system and make it more efficient and accessible to justice.  Nevertheless, mediation in India is not a ripened fruit yet and efforts need to be taken to strengthen the same.  The loose ends of mediation are visible when  not all cases actually proceed despite the efforts by the courts.  Moreover, even the cases that proceed for mediation may arrive at instances when the other party fails to abide by the terms of settlement   and ultimately approaches the judiciary for its enforcement,    which again raises a whole lot of concerns that litigation brings along with it.   

it is concluded that the existing dispute resolution system is incapable of dealing with the overflowing concerns of access to justice and by virtue of  the capacity to quickly dispose of cases, initiate dialogue, conduct proceedings orally, provide subject-specific expertise and make justice approachable, mediation is indeed the need of the hour to wide access to justice for all sections of the people. But, at this point, it fails to cement the existing gaps of access to justice as there remains a dearth of trainers and mediators, lack of regulation, distrust amongst citizens and inefficient funds. However, considering the fact that mediation is still in its development phase in India, it is demonstrated that if executed properly, it can fix the holes of the formal system, thereby making the whole dispute resolution system more efficient and accessible to justice.

Author: Sonam Chandwani, Managing Partner at KS Legal & Associates

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