Mandatory Mediation
Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
Author: Anjali Tiwari
What is Mandatory Mediation?- Mandatory Mediation- Meaning, Benefits, and Concerns of Mandatory Mediation
In simple meaning, Mandatory Mediation means parties to the dispute go or attempt Mediation. In this process, parties are pushed to at least attain the initial session of the Mediation for their related case.
Process help parties to reach a settlement in which a mediator is chosen by either a party or the courts. The mediator assists both parties in coming to a mutually agreeable and amicable arrangement that meets their needs. Additionally, it occurs at a comparatively earlier point of the trial.
Mediation is less formal, difficult, and expensive. It is typically advised for marriage disputes where the parties' connection needs to be maintained.
Mandatory mediation can therefore result in an agreeable resolution between the parties and save protracted court battles in the delicate area of family relationships. It takes less time than a court trial; mediation is a very quick process.
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Why Mandatory Mediation is required?- Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
A regular person is caught in a protracted legal process that lasts for years, which typically undermines the fundamental objective of our justice system.
Abraham Lincoln advised against suing due to the length of the legal process. He says you can persuade your neighbors to come to an agreement by demonstrating how the nominal winner is frequently the real loser in terms of costs, expenses, and time wasted in the legal process.
In developing nations like India, where the majority of people choose litigation as a dispute resolution method, there is excessive court overcrowding and a large number of cases pending on the docket, which has ultimately led to public dissatisfaction with the judicial system and its capacity to deliver justice, frequently proving the adage "Justice delayed is justice denied"
The Supreme Court of India declared in Hussainara Khatoon v. Home Secretary, State of Bihar that "the right to a quick trial is a basic right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Indian Constitution". Due to its capacity for swift justice, mediation has become a crucial procedure.
Mandatory Pre-Institution Mediation- Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
Section 12 A of the Commercial Act 2015 outlines the provision requiring the parties to exhaust pre-institution mediation remedies before bringing a lawsuit of a commercial nature.
With the intention of giving clarity to the pre-institution mediation procedure within a predetermined time range, the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, were created. However, the absence of mediators from other areas in the context of mediation is becoming more apparent.
Many commercial disagreements are challenging to settle peacefully because there aren't enough subject-matter experts to act as mediators.
Looking at the most recent case between Ganga Taro Vazirani vs. Deepak Raheja, we can see that it comprises a simple demand for the return of funds that the plaintiff gave to the defendant. The court determined that Section 12A is required because no attempt was made to resolve the disagreement.
This condition was determined by the court to be procedural and not need substantial fulfillment. Section 12A is waivable in order to ensure a swift resolution.
Before receiving authorization to file a lawsuit under Section 12A, the plaintiff must first consult with the mediator. The court observed that this technically runs counter to the legal justice system. The court did point out that mediation would be worthless if one party's claims and arguments were strong enough to win in court.
Benefits of Mandatory Mediation- Mandatory Mediation- Meaning, Benefits and Concerns of Mandatory Mediation
Quick: Because mediation takes much less time than a trial or arbitration, it can be held quite early in the conflict. This allows the mediator to focus solely on the pertinent problems and ignore any others.
Cost-effective: Mediation is always less expensive than a trial because it typically involves little to no preparation, is less formal and difficult than trial or arbitration, and can take place early in the conflict.
Protect Relation: Relationships can be protected via mediation, which Order 32A of the Code of Civil Procedure advises using because regular court procedure is not well adapted to the delicate subject of personal relationships. Therefore, obligatory mediation before a court trial can truly assist to maintain relationships because court cases typically label one person a winner and another a loser, which causes resentments to linger for a long time.
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Views of the Supreme Court on Mandatory Mediation- - Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
Salem Advocate Bar Association, Tamil Nadu v. Union of India, a major ruling by the Hon. Supreme Court of India, stated that court cases must make use of mediation, conciliation, and arbitration. This will significantly aid in the acceptability of required mediation as a remedy for ongoing issues in our legal system.
Concerns about Mandatory Mediation- Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
According to experts, submitting cases mandatorily may violate the parties' autonomy and restrict their ability to select the manner of dispute resolution.
However, there is no force to settle disputes through mediation; instead, parties are just introduced to the process. If mediation doesn't resolve their differences, they are free to initiate a lawsuit.
Lawyers have voiced strong opposition to mandatory mediation, believing it to be at odds with the process's consensual nature. However, their disagreement may be motivated by a concern over a potential decline in the number of cases coming their way; in this situation, the parties are not forced to reach an agreement against their will. Once they are involved, they will realize how beneficial the procedure is and take part in mediation.
Because it is a quicker way to settle disputes and can reduce the amount of time, money, and resources needed, mediation is an excellent resolution technique.
Even if it is unsuccessful, the parties can still take their disagreement to court to be settled. In conclusion, mandatory mediation benefits society as a whole and is an effective tool against delay, expense, and injustice.
Role of Mandatory Mediation at the International Level- Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
Mediation is divided into four primary parts, whether it is domestic or international. It contains disputants, mediators, conflicts, and resolutions. Meditation is a method of conflict resolution that is typically best for countries with diverse histories, cultures, and languages because it could result in significant misunderstandings.
Three primary aspects are extremely important in increasing the role of mediation throughout the entire process. It includes the mediator's function, the techniques and steps used during the process, and the characteristics of the disputing parties.
International Disputes
1) The parties to the Thailand-Philippines tuna export dispute preferred mediation over the WTO Dispute Settlement Body's adjudicative process, and they also preferred meetings mediated by the EU Trade Commissioner.
2) To prevent any disputes that might result from climate change owing to water scarcity in Syria, Lebanon, Israel, Jordan, and Palestine, the International Institute for Sustainable Development (IISD) took preventative action by conducting objective third-party research.
3) Multiple conflicts arose in the global environment in 2019, and the United Nations-led international community used mediation to promote peaceful coexistence.
4) The United Nations, the African Union, and neighbouring nations joined forces in The Gambia to mediate to avert a serious political catastrophe. This was also common in places like Iran and Sudan, to mention a couple.
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Conclusion- Mandatory Mediation- Meaning, Benefits and Concern of Mandatory Mediation
The world has been developing quite quickly in recent years. As a result of these developments, numerous disputes have begun to surface on an international level about a variety of issues. Each of them has been dealing with conflicts as a result of varying ideologies, approaches to diplomacy, policies, and other facts.
Previously, any conflict would result in a bloody war, but today, peaceful resolution of differences is preferred, and mediation has proven to be a very approachable method.
Discussions have often been favored by nations for arguments and debates. Today, as more nations step up to handle international diplomacy, the usage of mediation is fast rising. More and more nations will be willing to choose mediation over any drawn-out process in the future. Conflicts can be resolved through mediation, which also lessens hostility and antagonism between the parties. If the parties are open to exploring a negotiated resolution, mediators can be incredibly helpful.
To arrive at a mutually agreeable solution, mediation is a quicker, less expensive, non-binding, voluntary, consensual, and non-adversarial method.
Additionally, it helps the parties get along better. It is essential to view mediation as a requirement rather than an option. It ought to be used as a tool that is more efficient. In some ways, mediation still represents ignorance today.
Countries should start new, more reachable initiatives to practice successful mediation. Countries should make investments in dispute resolution procedures and broaden their application. The nations must see to it that the areas with mediation experience take action.
The United Nations can take on the most useful function in this situation. The scope of meditation attempts would increase if the UN found unanimity. International conflict mediation has benefited greatly from mediation thanks to its effective implementation method and the involvement of the mediators.
