17. See, Rule 11 of Delhi High Court Mediation/Conciliation Rules, 2004. 18.See, Rule 14 of Delhi High Court Mediation/Conciliation Rules, 2004. 19. See, Article on “Mediation – realizing the potential and designing implementation strategies” – by Justice D.Y. Chandrachud, at pg 7. 17. See, Order 23 Rule 3 , Code of Civil Procedure, 1908. “3. Compromise of suit.— Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1 [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect to the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith…” 21. See, Stroud’s Judicial Dictionary of words and phrases (Sixth Edition), compromise is defined as follows: ‘Compromise’, is a mutual promise of two or more parties there are at controversie” (Termes de la Ley). 22. See, Section 23(3A) of Code of Civil Procedure, 1908. “3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful”. 23. See, Section 23 of Code of Civil Procedure, 1908. “ [Explanation.—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]” 24. See, Triloki Nath Singh vs Anirudh Singh (Dead) Through LRs and ors , 2020 (6) SCC 629 , para 19-20.
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Mediation
One of the best ways to persuade others is with your ears by listening to them” – Dean Rusk
Background
Mediation has been used as a method of dispute resolution in a variety of different cultures for more than 3,000 years. The practice was first developed in Ancient Greece then in Roman Civilization ( Roman law, starting from Justinian’s Digest of 530 – 533 CE ) recognised mediation.
Romans used to recognize mediators by numerous names i.e “internuncios, me-dium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and mediator”.
Mediation at its core is a form of alternative dispute resolution ( in short, “ADR”) or “Appropriate Dispute Resolution”. It is a way of resolving disputes between two or more groups. Resolution of disputes through ADR has built inherently in Indian culture. From Vedic period onwards, Indian people have used non adversarial methods for resolving their disputes. Yajnavalkya and Narada , highlighted that Kula, SRENI and Puga tribunals were resolving the disputes in ancient India. Kula was a tribunal had resolved the disputes between the members of family, community, caste or races and tribes. SRENI was a tribunal consist of trade experts and it helped the traders to resolve their trade related disputes internally. Puga was a tribunal consist of people belong to various communities but from the same locality. These tribunals are considered as Panchayats and they followed a simple procedure for their decision making. The decision of Kula may be challenged before SRENI and the decision of the SRENI can be challenged before Pradvivaca and the final appeal was permissible before the king. These tribunals had taken decisions on the interest of the party and community.
In India, the importance of “Panchayat” has always been considered as relevant towards the society. There is a long and old tradition in India of the encouragement of the dispute resolution outside the formal legal system, disputes were quite obviously decided the intervention of elders or assemblies of learned men and out such bodies whether it is a property dispute, matrimonial dispute or sometimes even the criminal offense occurred within the limits of the local village were settled there.
But as India is moving forward to Modern Civilization, now people prefers to approach the Courts to enforce their rights and get impartial justice which they were not able to get in Panchayat. But a drastic effect came in, where people preferred more litigation then mediation, which ultimately led to increase in cases as the strength of the judges in India was not very high and therefore the results were /it led to delay in justice. By which Hon’ble Courts were facing extreme pressure. In this context a meeting was held on 4th December, 1993, at New Delhi under the Chairmanship of the then Prime Minister of India namely P.V. Narsimha Rao and presided by Chief Justice of India to consider various measures for liquidation of the large number of cases pending in Subordinate Courts/High Courts.
What The Law Says
Following the earlier occasionsThe Supreme Court of India after considering the problem finally started the process of reforms in the Indian Judicial System. Hon’ble Justice A.H. Ahmedi, the then Chief Justice of India in the year 1966, with his great efforts invited the Institute for the Study and Development of Legal Systems ( ISDLS) , USA to participate in a national assessment of the backlog in the civil courts of India. Studies were made in respect of the causes of delay in the civil jurisdiction in our country.
Law Commission in its 129th Report, considered the problem of pending litigation in Urban India in both the civil and criminal matters, and how Mediation can be a helpful mechanism for resolution of disputes.
The legislature by the Code of Civil Procedure (Amendment) Act, 1999, amended section 89 of the CPC with effect from 01.07.2002 whereby mediation was envisaged as one of the modes of settlement of disputes. The amendment in Section 89 was made on the recommendation of the Law Commission of India and the Justice Malimath Committee. By the Report of Law Commission of India , they mentioned the crisis of pendency of litigation in Civil Courts for a variety of reasons has made it impracticable to dispose of cases within a reasonable time. That Speedy Justice has just become a causality. The need for Alternative Dispute Resolution (inshort, “ADR”) to offload some burden from the Courts. India’s ADR jurisprudence is highly relied upon the America, where a huge bulk of cases are settled through ADR process, before the case even goes for trial. Section 89 of Code of Civil Procedure (in short, ”CPC”) states about the settlement outside and inside the courts. Sub-section (1) throws a bright light, to where Hon’ble court can refer. Subject to it, one of the main condition to refer to ADR is only when it [a]ppears to the court that there is a possibility for settlement between the parties. One of the most significant and uncomplicated ADR mechanism in daily life is “Mediation” [as referred in section 89(1)(d)] which in modern India, is applied in every next case considering the wastage of time and money in litigation.
In Salem vs UOI , while considering the constitutional validity of Section 89 of Code of Civil Procedure, a three judge bench adopted the definition of mediation as :-
“ Settlement by ‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.”
New Delhi being the capital of India and also the seats of all three branches of the Govt. of India. Just after the amendment in Section 89 of Code of Civil Procedure, 1908, Delhi High Court drafted its Mediation and Conciliation Rules in 2004 ,which states the procedure from appointment of a mediator/ conciliator to ethics to be followed by mediator/conciliator. Hon’ble Supreme Court enacted its Mediation Rules later in 2010 ,which stated the procedure from where can these rules be applied to when can a process of mediation be ended . “Mediation” has been a successful ADR mechanism and is the essence in India, to resolve disputes between the disputed parties, reasons being:-
- Non-Adjudicatory Process
- Conscience Process
- Less Burden on Courts
- Assisted Negotiation
- Not Delaying Justice
- Identifying Underlying Issues
- Meeting the Interests
- Maintains Privacy and Confidentiality
- Saves Time and Money
- Satisfaction of the Disputed Parties
- Fair and Equitable Manner
Following the guidelines in Salem vs UOI , with all due great efforts of Hon’ble Mr. Justice M. Jagannadha Rao Chairman of the Committee and Law commission of India enacted Alternate Dispute Resolution and Mediation Rules, 2003. But what first main question arises here is that what is the role of “Mediator” as it is the very root in the process of Mediation. A mediator is different from a judge or arbitrator as it neither weighs the evidence nor delivers a judgment as it is not bound by the provisions of Indian Evidence act, 1872 or Code of Civil Procedure, 1908 [17]. Its role is quite different than the deciding authorities we see in regular traditional courts. The very root role of mediator is that, it should be Neutral Third Party between the disputed parties, whose role is that he/she supposed to divert the disputed parties from the disputes within themselves to the bright side where they could end all the litigation by doing an amicable settlement on mutual conditions [18] A mediator should not be judgmental, but he/she should be an advisor. D.Y. Chandrachud,J., stated [19], “in enabling the parties to move forward for settlement, a mediator has to reflect on the percepts of ‘BATNA’ ,’WATNA’ , ‘LTANA’”. After resolving the dispute between the parties, mediator draws up the terms of the settlement, once it is read and signed in a conscious manner. Courts can pass a decree on the sole basis of that settlement itself. [20]
The second main question arises here is that whether any ‘Compromise [21]’ occurred between the parties, if not lawful in nature can be challenged or not? If we have a clear reading of Section 23(3A) [22], it throws a scintillating light that the compromise can’t be challenged on the grounds that it’s not lawful in nature. It includes an explanation within the Section 23 [23], which states that when can a ‘Compromise’ be declared invalid. Neither of it invalidate our Fundamental Right of ‘Right To Appeal’. In Triloki vs Anirudh [24] , it was held that:-
“It can be further noticed that earlier under Order 43 Rule 1(m), an appeal which recorded the compromise and decided as to whether there was a valid compromise or not, was maintainable against an order under Order 23 Rule 3 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act, aforesaid clause has been deleted, the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Order 23 Rule 3. Being conscious of this fact that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1-A was added to Order 43…”
“ Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23 CPC. As such, a right has been given under Rule 1-A(2) of Order 43 to a party, who denies the compromise and invites order of the court in that regard in terms of the proviso to Order 23 Rule 3 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute.”
(Emphasis Supplied)
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