By Shashank Tyagi
Resources are spent in achieving personal vendetta’s, time is wasted, and most of all, the judiciary becomes burdened with frivolous lawsuits. It is worth considering the possibility of mandatory mediation so as to discourage such lawsuits. Clash of ego’s also have some emotions behind them and mediation uses the power of empathy to bring forward the parties concerns, needs and drives them towards a mutual understanding. Litigation is cold, hard and there is always someone who wins or loses. At least in mediation, a settlement can be reached which the parties can live with.
Joining Hands for a solution
held that “The purpose of referring to the matter to Mediation Center is to cut-short agony and to see that the marriage between the parties which is no longer workable stands dissolved” So, we also require the judiciary to fully understand and appreciate the concept. The conservative approach of the lawyers, along with their unwillingness to sacrifice a major portion of their income, is a matter of concern. There have been conflicts between the bar and the bench, particularly because of professional interests. This is hampering wide-spread implementation. Judges have been quick to recognize the increased use of mediation as helpful to reduce the pendency of cases but lawyers are still to embrace it.
Following the mediation model as per the Supreme Court Mediation Training Manual, lawyers would not be able to plough as much money as they do in litigation. Assuming that they are willing to adopt mediation as an alternative, many lawyers are not even trained as mediators. They don’t have the requisite knowledge or skill set to conduct a mediation. Moreover, the effective mediators gain the trust of the client over time. It is not the case that lawyers do not know anything at all, India does not have enough lawyers to set an example through their work. This is similar to the problem the U.S.A. was facing in the 1980s.
However, what may be interesting to note is that even the litigants tend to file lawsuits just to satisfy their ego’s. In one such case, the Honorable Supreme Court has also acknowledged that the judiciary also has become overburdened due to ego clashes between the litigants. It is important to note that there is a severe need to reduce such cases. Matrimonial disputes have shown that the parties follow the policy of “live but don’t let live”. One such example is Naveen Kohli v. Neelu Kohli where multiple civil and criminal cases were filed by the parties against each other while a petition for divorce was pending. Such “Ego-Litigation” is extremely detrimental to the purpose of mediation. Parties tend to appeal to higher courts, even to the apex court, just so that they can drag the case on. Any average civil suit takes 5-7 years to be decided in any lower court. An additional 5-7 years are added in the appellate courts. This is what has been termed as “Litigation Pollution” by the Supreme Court of India. Mediation is entirely voluntary and that is why parties choose to instead opt for litigation.
Conclusion
The seeds have already been sown in India and although there may be obstacles for this tree to grow, there is no doubt that mediation will play an important role in the Indian Legal System in the future. Litigants do not want to wait for lengthy periods of time just to settle their dispute in court and neither do the judges want the backlog of cases pile up on their desks. The expectations of parties of legal services are changing and while we still do see instances of “Ego-Litigations”, the new requirement is “resolution” and not “litigation.” ADR is thought of as the alternative to going to court. Numerous cases have been settled by mediation but more work needs to be done. Possible solutions to these problems are:
- Conducting mediation training programmes for the Advocates.
- Spreading awareness about mediation as a route to faster settlements amongst the people of India.
- Applying the current Court-annexed mediation model to all district courts in the country with an aim to move away from this model in the future towards independent mediations.
- The law must be carefully scrutinized to allow persons from Non-Legal Backgrounds to become mediators. This can only happen if we shift from Court-annexed mediation in the future.
Finally, India is ready to see a phase where disputes are being settled amicably and much faster. The primary concerns are being tackled and the impact of mediation has just started to show. A young 30-year-old woman who wants to revert from an unhappy marriage could be into her fifties by the time she gets her legal relief, if she has to go through the judicial process of being granted a divorce. India is starting to show growth in speedy disposal of cases. It is not yet ready to implement commercial mediation on a widespread scale.
In Addendum, the focus must be on the disposal of matters which are clogging the courts such as the ones mentioned at the beginning of this paper. Somewhere in the future, the path may lead towards commercial mediations as well but for now and the foreseeable future, the impact of mediation that has been observed should spread further.