Author: Krishang Sharma, Student, University Five Year Law College, University of Rajasthan.
Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.
INTRODUCTION
Mediation, as a method of alternate dispute resolution, has a long-standing history in the diplomatic arena. Hon’ble Chief Justice of India, N V Ramana, also asserted that our ancient epics like Mahabharata are one of the best examples of an early attempt at mediation as a conflict resolution tool, where Lord Krishna being the mediator attempted to mediate the dispute between the Pandavas and Kauravas. It also sets a great example of what happens if the mediation fails and how it may lead to disastrous consequences taking a lot of time.
Today in the modern era, the increase in commercial disputes has diverted the people’s interest towards mediation. The increased interest of people towards mediation depicts the dissatisfaction among the people regarding the cost, time, and complicated procedures as adopted in traditional dispute resolution systems.
An ounce of mediation is worth a pound of arbitration and a ton of litigation.[1]
-Joseph Grynbaum
Keywords: MEDIATION, ADR, CPA, CONSUMER RIGHTS, NEGOTIATION.
What is mediation?
“When a third party called a “mediator” uses special negotiation skills and communication techniques to help litigants bridge their differences and find a solution to their dispute. Mediation always leaves the decision-making power to the parties. A Mediator does not decide what is fair or right or apportion blame. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and eliminating obstacles to communication and settlement”.[2]
“As described by the Mediation and Conciliation Project Committee of the Supreme Court of India, ‘Mediation’ is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in settling. A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes. Mediation is a tried and tested alternative method of dispute resolution”[3]
Key terms used in the concept of mediation
Disputed parties– Parties claiming different interests or rights and holding opposite views in dispute are referred to as disputed parties.
Negotiation– The dictionary meaning of the term ‘Negotiate’ is to bargain for something to agree at some point. Negotiation is a process where two or more parties having conflicting interests in any dispute bargain among themselves to reach a settlement that they can both agree on. Negotiations are made by the parties through discussions between themselves or their representatives without the involvement of a third party.
Types of mediation
There are two types of mediation.
Court- Referred Mediation
When a legal matter has been filed before the court and when the court refers such matter for mediation under Sec. 89 of the Code of Civil Procedure, 1908 is known as Court-Referred mediation.
Private mediation
Private mediation is a process in which services of mediation are offered by qualified mediators on a private, fee-for-service basis to the Court, members of the public, members of the commercial sector, and the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.
Example: ASSOCHAM International Council of Alternate Dispute Resolution (“AICADR”)
Procedure For Mediating a Session
Introduction and Opening Statement
This is the very first stage of the mediation session. Here the mediator establishes trust among the parties of his neutrality and he makes the parties aware of the rights and the duties in the consumer protection law. He also tries to motivate the parties to an amicable settlement.
Joint Session
This session is meant to hear the issues in common with both parties. At this time the mediator gathers information about the issues and conflict and provides the platform for the parties to understand the perspective of each other. Further, this session is also used to understand facts, the issues, obstacles, and possibilities of settlement. A joint session ensures that each participant is being heard equally.
Separate Sessions
This session is specially designed to understand the issue at a deeper level and the hidden underlying intent of the parties. It helps the parties to express emotions and thoughts that they could not have disclosed in front of the other party. Being in a private session helps parties to realistically understand the case.
Also, the mediator may influence each party separately to find a way out of litigation and make a settlement.
Closing Session
This session is a closing session of a mediation process where both the parties jointly discuss whether to settle the dispute with each other or continue to litigation. If they mutually decide to settle the matter, the terms and conditions are discussed. The mediator forms a document where all the terms and conditions of the settlement are written, this agreement is called the settlement agreement. The mediator may sign the agreement to show that he is the witness of the settlement agreement. After this, the original signed agreement is sent to the referral body for passing the appropriate order by the agreement. The parties are provided with a certified copy of the agreement.
In case of disagreement for settlement, the case would be sent back to the referral body merely reporting “not settled”. The report will not contain any reason for which settlement did not happen and will not be fixing any responsibility on any one of the parties.
Exceptions for mediation
Consumer Protection (mediation) Rules state that the following matters cannot be resolved through mediation[4]–
- Matters related to medical negligence leading to death or previous damage
- Any such offences or defaults for which application for compounding the same has been submitted by one or many parties.
- Matters involving allegations of fraud, coercion, impersonation, forgery or fabrication of documents
- Matters which involve criminal and non-compoundable offences
- Matters involving the interest of the general public who are not the parties in front of the commission
- Matters where it is felt by the commission that there is no scope of settlement and mediation will be of no use.
Mediation in comparison with other countries
The concept of mediation is not limited to a country but it is a tool used to resolve conflicts all over the world. Some are examples where mediation is used as a tool to resolve conflicts
- In Bangladesh, mediation has been extremely successful in delivering justice to the poor sections of society.
- “In Japan, spouses mutually agree on the decision to divorce through a discussion process and then register the divorce with the local authorities”[5]
- In America, mediation is the norm of dispute resolution and litigation is the exception
- In England, the courts do not award costs if a litigant unreasonably rejects mediation as an alternative dispute resolution mechanism.
| No. of mediation centre in India | 839 |
| No. of mediators trained by MCPC | 6480 |
| No. of Cases referred to the centres since inception (up to June 2015) | 9,37,995 |
| Settled | 3,36,455 |
| Connected case | 38,764 |
Now in the case of India, mediation has shown significant results in dispute settlement, which is evident from the statistics below:
[Mediation and Conciliation Project Committee, Supreme Court of India, Mediation (2015)]
Legal Provisions
In CPA, 2019 Sec 74-78 deals with the concept of mediation in consumer disputes.
- Section 74- Establishment of consumer mediation cell.
“The central government and state government should establish the mediation cells as the national commission, a regional bench, a state commission, and a district commission. Every mediation cell should contain a list of – empanelled mediators, cases handled by the cell, and a record of proceedings, and every mediation cell should submit a quarterly report”.[6]
- Section 75- Empanelment of Mediators
“The consumer mediation cell has to maintain a panel of mediators on the recommendations of the selection committee and their tenure shall be of five years after which they may be entitled to re-empanelment for another term subject to conditions mentioned in regulations”[7].
- Section 76- Nomination of mediators from the panel
“It directs that the nomination of a mediator must depend on his/her suitability to dispute an issue”[8]
- Section 77- The duty of a mediator to disclose certain facts.
“The mediator must disclose any personal, professional, or financial interest in the outcome of the consumer dispute or anything that may raise a justifiable doubt as to his independence or impartiality”.[9]
- Section 78- Replacement of mediator in certain cases.
“The commission may replace the mediator if the information received gives rise to justifiable doubt for the commission. This information could be from the mediator or third party.” [10]
- Section 79- Procedure for Mediation
“This section specifies that the process of mediation has to take place in the mediation cell. The mediator knowing all the factors necessary may carry out mediation by the principles of natural justice. The mediation must be carried out in the manner and within the time specified in the regulations.”[11]
- Section 80- Settlement through mediation
“If the parties come to a settlement, then the mediator must reduce it into a written agreement which has to be signed by all the parties to the dispute or their authorised representatives. The mediator then shall prepare a report regarding the settlement and forward the same with the agreement to the concerned commission. If there is no consensus within the prescribed period (three months), the mediator then has to report the same to the commission.”[12]
- Judicial Development of the Mediation.
- “Afcons Infrastructure Limited And Another V. Cherian Varkey Construction Company (Private) Limited And Others”[13]
The Supreme Court held that “Mediation” is a well-known term and it refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. It is also a synonym of the term ‘conciliation’.
- “Nutan Batra V. M/S Buniyaad Associates (Fao (Os) (Comm) 42/2018 & Cm No. 9553/2018)”[14]
In this case, the Supreme Court held that the plaintiff is entitled to the refund of the court fees as the case satisfied the conditions laid down under section 16 of the Court Fee Act.
CONCLUSION & COMMENTS
There is a well-known phrase which is considered as a golden rule by many of the businesses matter small or large that is ‘consumer is the king’. I think this phrase is rightly justified as it is nothing but the choice of the consumer which sways the market in any given direction. Especially in today’s era of technology and e-commerce, consumers look at the reviews and ratings of the product or service and plan accordingly. But still, some consumers are not well equipped with all the technology in the modern era and tend to fall into fraud and tactics of the sellers.
The government has taken many steps to counter this problem and mediation is one of such measures taken by the government to resolve the consumer issues in the best way possible which mediation is beneficial for both, the businesses and the consumers. Neither of them willingly wants to indulge in litigation as it is a very time-consuming and expensive process and hence it is a win-win situation for both parties.
REFERENCES
- Online Articles / Sources Referred
- Ministry of Consumer Affairs, Food and Public Distribution, Government of India, Consumer Handbook on Mediation (2020)
- Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)
- Kanak Kanti Karmakar, A Legal Analysis of the Suitability of Alternative Dispute Resolution as a Rural Dispute Mechanism in Bangladesh, 4 JUS CORPUS L.J. 155 (2023)
- Cases Referred
“Afcons Infrastructure Limited And Another V. Cherian Varkey Construction Company (Private) Limited And Others”
“Nutan Batra V. M/S Buniyaad Associates (Fao (Os) (Comm) 42/2018 & Cm No. 9553/2018)”
- Statutes Referred
Section 74, Consumer Protection Act, 2019
Section 75, Consumer Protection Act, 2019
Section 76, Consumer Protection Act, 2019
Section 77, Consumer Protection Act, 2019
Section 78, Consumer Protection Act, 2019
Section 79, Consumer Protection Act, 2019
Section 80, Consumer Protection Act, 2019
[1] [Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)
[2] Mediation Center. District Courts Kinnaur, H.P. (n.d.).
[3] Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)
[4] Rule 4 of the Consumer Protection (mediation) Rules,2020
[5] Kanak Kanti Karmakar, A Legal Analysis of the Suitability of Alternative Dispute Resolution as a Rural Dispute Mechanism in Bangladesh, 4 JUS CORPUS L.J. 155 (2023)
[6] Section 74, Consumer Protection Act, 2019
[7] Section 75, Consumer Protection Act, 2019
[8] Section 76, Consumer Protection Act, 2019
[9] Section 77, Consumer Protection Act, 2019
[10] Section 78, Consumer Protection Act, 2019
[11] Section 79, Consumer Protection Act, 2019
[12] Section 80, Consumer Protection Act, 2019
[13] [2010 (8) SCC 24.]
[14] 2018 SCC OnLine Del 12916
