This is the author's point of view, and is not a reflection of the viewpoints of Mediate.com. This is part of a series to understand the interests of those who are debating COVID concerns.

For most of my grown-up life, my work has centered on taming people’s deep addiction to destructive conflict and turning it into something nicer. Like so many others at www.mediate.com, I am a mediator, facilitator, arbitrator, and negotiation consultant. Mediate.com has attracted an exceptionally fine population of practitioners.  

The mechanics of the process are simple and unchanged since its inception.  Many would have you believe it has evolved from what it was to what it is today. In the latest culture of mediation, styles and “one size does not fit all” continue to beat down traditional mediation.  It’s contended that mediator flexibility leads to success. The fear of emotions rising up scares almost all mediators. 

The Court shall not be the place where a resolution of dispute begins, rather, it should be the place where the disputes end after alternative methods of resolving them have been already exhausted. In the era of limited resources and unlimited human wants, conflicts are inevitable and thus, arises an incessant need for the resolution of these conflicts by a third person, who shall be just, fair and reasonable. However, with over 7.76 Billion population all around the world, and 1.37 Billion population in India itself, the number of disputes and conflicts can be reckoned. According to statistics, India has a ratio of 19 Judges per million people and more than 33 Million cases are pending (Hindu Business Line, para 2). The number may be multiplied and an estimate may be established about the astonishing amount of disputes and pendency of cases around the world. The humongous pile of cases not only has an impact upon delivering justice to the aggrieved but also upon the economy of the country. With the purpose in mind, the Judicial System has turned to Mediation for delivering answers. While fulfilling the same, Mediation has gone over a diverse phase, which can be compared to the changes in the landscape with the different parts of the day over the period of time. 

In this Essay, a similar comparison with the landscapes that the time portrays throughout the different parts of the day has been made with the Journey of Mediation in India. 

The Dawn Of An Era

The dawn symbolizes the beginning of something new. Mediation is the dawn of the Judicial System, the answer to the majority of the solutions, in more than one ways. Whenever a judge faces an issue upon determining a case, he looks back towards history, i.e. the precedents set by the earlier courts for the answer (Powell, Pg. 281). Moreover, most of the statutory laws made around the world are in consideration with the problems faced in the past by the societies and communities. Mediation is one of the best precedents that has ever been set for a solution to the crucial problems the Judicial System faces in India and worldwide. The roots of mediation in India can be traced back to the Mahabharata when the Kauravas and the Pandavas were fighting and Lord Krishna became the mediator. Before the colonial rule in India, businessmen engaged ‘Mahajan’ to resolve their disputes. Mediation was then observed in panchayats which used to address the issues of the villagers. The head of the panchayat, known as the ‘sarpanch’, used to make the disputed parties sit and listen upon their issue at a stretch to arrive at a solution suitable for both the parties. But under the ancient methods, if mediation failed, the same person was authorized to render a binding decision (Xavier, Pg. 273). 

For Mediation to be reinstated back in the Indian Culture, the Indian Judiciary could not have provided a better opportunity, to mark its presence back. With all the things going south, Judiciary had to come up with a solution, which shall compensate for all the limitations of the Court System. Arbitration, Mediation and Conciliation, the types of Alternate Dispute Resolution can be seen as the rays of hope for the Judiciary. Thus, the glimmer rays of sunshine, rose over the horizon, hoping for a positive outlook.

The Break Of the Day

The morning ought to be positive and sunny, to yield a powerful effect on the day. Similarly, Mediation ought to have a lasting first impression, for the process to have an impact on the System. In the black and white letters of the law, the early traces of Mediation in India can be found in the Industrial Disputes Act 1947. However, the absolute seeds were sown in the year 1996, when Arbitration and Conciliation Act was passed, and were further nurtured under Section 89 of the Code of Civil Procedure Amendment in 2002, which was passed by the Central Legislation. The introduction of Arbitration and Conciliation Act in the Indian Statutory Laws provided the gateway for Alternate Dispute Resolution in the State, to help the limitations of the Judicial System. Complimentary to the Amendment, the Government published the Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2003. Later in 2005, Justice R. C. Lahoti, the then Chief Justice of the Supreme Court, set up a Mediation and Conciliation Project Committee for training District Court Judges to make them competent for judicial mediation. For any system to work in India, it is necessary to develop and nurture strong roots, which cannot be demolished by the superior forces of Legislation or by the interference of Judiciary. It can be noted that the Legislation, unlike the Arbitration and Conciliation Act 1996, did not enact special legislation for Mediation. On the other hand, the process of Mediation was chosen to be given due authority and protection under the governing law of all civil matters in the Judiciary, which eventually extended to various other laws such as the Companies Act, 2013 and the Commercial Courts Act 2015, where the Legislation mandated pre-institutional mediation before seeking to resolve the dispute in the Courts.

Top Of The Noon

Noon is the time which symbolizes the peak working capacity of the Sun. In Mediation, the seeds have been sown and well nurtured. However, the task does not end at the spot. Once, Mediation was laid down in the roots of the statutory laws, it was time to see the implementation of these laws by the courts and the effectiveness of the results. A survey was conducted in the Courts of Maharashtra and Karnataka from the year 2011-2015, to check the implementation of Mediation in various Courts, Tribunals and other adjudicating bodies. In the Bengaluru Mediation Center, approximately 31,000 cases were referred to Mediation, out of which more than 16,000 cases were duly settled, with a success rate of 50.56%. Meanwhile, in the Delhi Mediation Center, approximately 13,600 cases were referred to Mediation, out of which more than 7,600 cases were successfully mediated with a success rate of 56.01%. Similarly, at the Allahabad Mediation Center, approximately 11,600 cases were referred to Mediation, out of which more than 2,800 cases were settled, with a success rate of 24.57%.

These numbers do not depict the success of mediation, rather the burden released from the heavy shoulders of the Judiciary. Every case settled through mediation is a win for the Courts.

Even if the success rate has been promising, the number of cases referred to Mediation has scope for improvement. The impact on the burden of the Courts shall only be reduced if and only a higher number of cases are referred to Mediation, to attempt amicable settlement between the parties. 

Afternoon Siesta

While mediation may look like a scrumptious lunch, there are side effects to a good meal. In the same way, the mediation was not an easy sail in the Indian Conditions. A system involves multiple stakeholders, who have their say in the functioning of the system. The key stakeholders in the Judicial System of any nation include the parties, the judges, the clerks and the advocates. For the Mediation’s sail, the judges, the advocates and the litigants are the east wind in the system. An understandable reason behind the same is the advocates have been using the loopholes of the Judicial System to fill up their pockets. Making money from every date extended further by the judge is the bread and butter of the Advocate. If the introduction of Alternate Dispute Resolution is done in the Judicial System, Mediation shall become Always Diminishing Revenue for the Advocates. Also, the Judges believe that Mediation shall eat up their Jobs, if all the cases are sent to mediation, no new cases shall be filed. In the interest of the Litigants, they are the people who are afraid of the changes and have believed in the Court Systems for years, due to the authority and power it holds in the eyes of the law. The reluctance in all of the abovementioned stakeholders has made one step backwards in every two steps forward when the need of the hour is being three steps ahead.

Moreover, there is a visible lack of Adequate Training of Mediators, which has often led to Evaluative Style of Mediation, rather than the Transformative Style. The latter is the key of Mediation, where the Mediators invest mentally in the dispute and try to transform the parties to negotiate their personal interests amongst themselves and settle the dispute, which does not deserve to be heard by a Judge, sitting in the courtroom in the first place. The challenges have reduced the likelihood of the impact Mediation ought to have on the open disputes. However, the afternoon siesta is taken to recharge the body, only for it to work harder, and better for the rest of the day. Even if the slow pace has had an impact, they have in no way stopped the process from going forward, with more challenges to face, and hard work to do. 

The Dusk To Remember

The time of dusk is the change in the Sun and Moon, creating a long-lasting impact on the viewer, with the unique charisma. However, the dusk for the mediation was not very bright. On the 8th of March, 2019, the Hon’ble Supreme Court of India, ordered one of the most politically sensitive cases in the nation to be referred to Mediation, where a panel of three highly educated and experienced people was to mediate between the representatives of the two most dominating religions of the largest democracy in the world, Hindu and Muslim. The case of Babri Masjid-Ram Janmabhoomi is not any ordinary case, nor a simple one.

Over the past few years, the concept of blending mediation with arbitration has attracted attention in the international arbitration community. Med- Arb is a hybrid dispute resolution mechanism; generally, parties first agree to mediate the dispute, or they resort to mediation after the arbitration proceedings have commenced; if the mediation ends in impasse, the dispute proceeds to arbitration or, as the case be, arbitration resumes. Moreover, if the dispute is resolved, generally, a consent award may be rendered.

Domestic violence is a prevalent problem in Canada.  Unfortunately, family violence is a genuine reality for many families. Mediation is a great alternative to litigation, saving families, time, stress and money.  Although mediation is not mandatory in family law matters in Ontario, per 7.3 of the Divorce Act, it is highly suggested.