विचार / लेख
पिछले दिनों लंदन में हुई एक महत्वपूर्ण बहस, 'इंडिया डिस्प्यूट 2022', में भारत की सुप्रीम कोर्ट के एक सीनियर वकील रविंद्र श्रीवास्तव ने भी हिस्सा लिया. उन्होंने अदालत से परे मामलों के बातचीत से निपटारे पर अपनी मौलिक बातें रखीं. वे बातें एक लेख के रूप में यहाँ पेश हैं.
Pardon me for beginning with a statement which may perhaps sound cynical to many. It’s that judicial system in India is on the verge of collapse ; reasons, some are evident to the public eye and some are hidden and some are so glaring but people are refusing to see . Courts are unable to cope up with the cases. Huge population, skewed judge population ratio, lack of infrastructure, shortcomings and delays in appointment of judges, compromise in merit and lack of sensitivity on the part of the Bar, are some of the well-known problems. Thus, mediation is the need of the hour; it should be the order of the day and the norm of complete disposition towards administration of justice. In the current scenario it is apposite that I give to you all in India
MEDIATION FIRST- LITIGATION LAST
mediation ecosystem in India
I see no alternative to ADR, I see no alternative to Mediation as ADR. Arbitration has also not proved to be successful in India. From my experience of 42 years of litigation practice, I can confidently say that MEDIATION has huge prospects of success in India. What is needed is a strong will, good intention, robust infrastructure, adequate mediation centres , ample, trained and qualified professionals of full time mediators, effective Court annexed mediation centres, highly credible mediation service providers and more than adequate funds and continuous government engagement. There is a need to have a separate department of ADR, a separate ministry which should solely look after successful implementation and regulation of mediation. The time has come to shun the adversarial system of justice and adopt amicable resolution of disputes with the help of capable mediators. While pre-litigation mediation being made compulsory in commercial disputes is a welcome idea, the success will depend upon the choice of the mediator who will play the most important role. The negotiating skills of the person to act as mediator having knowledge of the nature of disputes is the key to its s uccess.
How mediation can prove to be effective exercise specially in commercial space
In disputes, particularly in the commercial space, it is my belief that parties are generally willing to resolve their differences through an amicable resolution process. They are not only willing, perhaps, they feel more compelled to take recourse to a mediation like process, given the current system of justice which is rife with long delays, unfairly costly litigation and several other ill reputations of the judicial system. Arbitration in India is no better .Skill of successful mediators Laying emphasis on the growing need of mediation the question which arises is that what should be the skill set which a mediator must possess in order to achieve its end since the success of mediation depends largely upon the ability and skills of negotiation, persuasion and perseverance of the mediator to bring the parties to a point of narrowing their differences and amicably settling them. It requires not only the knowledge of the mediator about the nuances of the differences, his ability to perceive the psychological, emotional, factual -legal and practical aspects but the ability to convince the parties of a fair and logical outcome of the dispute. This requires, in the first place, utmost trust of the parties on the mediator which will come from the stature and standing, knowledge and skills of the negotiator - the referee. Rather than imposing or limiting the choice of mediator, the parties should be left free, as far as possible, in the first instance to choose their own mediator of mutual confidence. Only when they cannot, the role of a third authority should step in. Experience guides us that sometimes, a word of wisdom coming from a person of respect and authority, is taken as a command by the parties in difference. Mediator is only a facilitator, neither an adjudicator nor an arbiter. There is no specific academic qualification for a mediator. One needs a person with a good repute and integrity with a sense of fairness and above all, a passion for conflict resolution. He may be a professional, like lawyer, retired judicial officer, engineer, company secretary, chartered accountant, etc. He may also be a retired teacher, clinical psychologist, banker or a housewife. He can start a new profession as a Mediator and start professional practice from the comfort of the office or home. What is of utmost importance is that the mediator must be a good counsel or and listener. And he mediator should not be prohibitively expensive. A culture of pro bono mediation as service to the society needs to be developed. certified mediators in India ? In order to be formally trained as a mediator in India, an individual must undergo a 40-hours' training programme and conduct 20 mediation sessions under the Mediation and Conciliation Project Committee. But this does not seem to be enough. Trainers themselves will require intensive training.
Some problems in the Mediation Bill,
PRE LITIGATION MEDIATION CLAUSE 6&8 ;
MATTERS NOT FIT FOR MEDIATION CLAUSE 7 & FIRST SCHEDULE
This growing need for a formal mediation mechanism led to the introduction of the Mediation Bill. The upcoming law is a welcome step. The Mediation Bill 2021 is pending in the parliament. The parliamentary panel has submitted its report. It recommends ironing out of creases in some provisions. By and large, the model is good. But my concern is about the availability of mediation centres with proper infrastructure and more concerning is the availability of the capable mediators in adequate number. How to incentivise the parties in dispute to honestly and sincerely attempt mediation? These are the areas where the Bill is silent. It can not remain indifferent. The Mediation Council is more likely to become a White elephant as is the usual experience; overburdened and under staffed. Its functioning can tend to be very subjective and opaque. One single body as regulator for a country of 130 billions is of questionable efficacy. It can not manage the demands of the mediation as a system. Also, there is no minimum qualification for mediations prescribed in the Bill. It adopts an ad hoc system. A few hours of training courses cannot produce good mediators. We need full time, honest and committed professionals who are rigorously trained. Making pre litigation Mediation (perhaps the most controversial provision) compulsory is a good idea but lacks support of infrastructure and may result in blockage of access to justice . Mediation can be successful only when it is voluntary and not imposed. Parties should have maximum freedom about the choice of mode, modalities and mediators. An interesting but troubling provision finds place in Clause 7 and the First Schedule of the draft Bill which provides for disputes or matters which are not fit for mediation.
NEED TO BE MORE INCLUSIVE RATHER THAN EXCLUSIVE .
Rather than excluding disputes whole hog from mediation declaring them unfit and thereby, vastly debating the very purpose and intent of reconciliatory process, different legal schemes with different procedures and safeguards can be framed suited to settlement of specified categories of disputes. Rival interests of private parties and public interest and public policy can be balanced. Any restrictive model of Mediation Law is unlikely to serve the purpose. In disputes between the private party and the Government, there are disputes which are both reconciliatory and adjudicatory in nature. The Government should not keep itself away from mediation. Way forward to ensure success of Mediation In order to achieve the desired results the following are the ways to ensure success of Mediation process for amicable settlement of disputes -
COST EFFECTIVENESS; STRICT TIME LINE; GOOD MEDIATORS; GOVT SUPPORT;
MINIMUM COURT INTERVENTION; MAXIMUM ENFORCEMENT; ACTIVE
SUPPORTIVE ROLE OF BAR.
Each of these points do not detract from the idea of mediation, much less as the goal; rather it underscores the imperative need and importance of mediation; the only way to minimize the
horrific miseries of undergoing a costly, dilatory and in dignified litigation ordeal.
All the Good Luck to Mediation in India.
* Writer is a senior practicing lawyer in the Supreme Court of India.