Weaving State-Funded Mediation into the Fabric of our Dispute Resolution Mechanism

Aaliya Waziri and Saurabh Shashi Ashok analyse how studies indicate that an early resort to mediation saves money and time thereby allowing parties to progress from their dispute with a satisfactory outcome.

An article by Harvard Law School states that countries that allocate serious resources to media-tion by intervening earlier than the litigation stage results reducing time and expense of protract-ed litigation¹ while countries like Australia, Ireland and Canada are examples of this. It is here that the Delhi Dispute Resolution Society (DDRS) has carved a niche worthy of being applaud-ed. Constituted under the Department of Law, Justice & Legislative Affairs, the DDRS is astate sponsored of the Delhi Government. The DDRS offers mediation services free of cost to the res-idents of Delhi. As per the Citizens Charter² of the DDRS, there are three classes of individuals who can qualify as mediators and they are as follows:

• Lawyers who have undergone training as prescribed by Mediation and Conciliation Project Committee (MCPC) of Supreme Court of India and have got the certificate of Trained Media-tor. This is post the minimum requisite of 40 hours of training.


• Respectable citizens of the locality who have to undertake prescribed training by Delhi Dispute Resolution Society;


• Retired officers, Judges, bureaucrats, public spirited persons, lawyers, Social Workers & re-spectable citizens etc.”

Given the array of matters that may be brought before the DDRS, non-legal practitioners with mediation training may be better equipped to deal with “subject matter mediation”. In the con-text of community based matters like family law related issues, “subject matter” expertise of me-diators could improve the overall quality of mediation services provided by the DDRS.Given this context, it will help to examine how other jurisdictions have fared in evolving dispute mecha-nism. The purpose of this comparative contrast is so we may borrow certain best practises from other countries and outline feasible solutions to plug the lacunae in the functioning of the DDRS.

We know that amatter, pending before before a court is not extinguished until a settlement is reached, i.e. the pendency lives on adding to the backlog of cases. Similar toprocedure wherein a client pays court fees and fees to their lawyer, court mandated mediation may not burn a hole through the client’s pocket but is nonetheless not free. The fundamental issue associated with institutions like the Delhi Mediation Centre (DMC) is that it requires litigants to go through A cumbersome court processes prior to availing mediation as a dispute resolution tool. Furthermore, the quality of mediators and approach to mediation is largely law-centric. This creates perception that court mandated mediation may be closely affiliated with contentious court proceedings. It is here that lateral mediation services like the DDRS that cane be accessed straight away, without any referral by Court, that shines in contrast. While DDRS offers pre-litigation mediation ser-vices, it also considers matters pending litigation before a Court. However, as noted in the Medi-ation Training Manual (Training Manual), the ideal time for matters to reach mediation is before the framing of charges (Pre-trial stage).³ Having said that, we propose the following suggestions to increase the efficiency of a well piled system such as the DDRS that yields maximum output.

Developing Awareness and Advocacy

Studies show that the intended effort of advertisers and their consequent advertisements is to have a "certain effect on the minds of possible customers"⁴. If a significant portion of the average middle strata our society is struggling with, lets say, parking space on a daily basis, what they need to see on a bill board near the traffic signal is an ad on dispute settlement, regardless of how trivial that dispute may be. Mediation advocacy is crucial for improving DDRS’s visibility. While jurisdictions like Singapore and Australia have relied on corporate advocacy to boost awareness and reform based agendas of mediation, the approach in the Indian context must necessarily meet its own symbiotic needs.

Additionally, we know that non-compoundable offences as per the Criminal Procedure Code and other offences under the Domestic Violence Act cannot be referred to mediation. Yet certain compoundable offences which are not aggravated in nature such as matrimonial and family dis-putes may be solved amiably if brought to mediation. All that needs be etched into the minds of the overburdened, hardworking, time-strapped middle class of this city is that there exists a cost-free solution to their problems. Once targeted advertising works its miracles, the wheels of medi-ation will pick up paced which will in turn draw people to its problem-solving premises.Public drives and grass roots campaigns may serve such a need. However, a task of this magnitude

would require an increased budget for the DDRS and coordination with the Mediation and Con-ciliation Project Committee.

Targeted Advertising and Marketing

We live in state of premium technology. We are inundated by advertisements telling us to invest more, exercise more, vote diligently, ask impertinent questions, challenge the norms, and protest against injustice. Wherever we turn advertisements are propagating political messages. We have an avalanche of advertisements that bear little interest to us. Specifically focusing on the Infor-mation and Broadcasting scheme in Delhi, we have advertisements on the MNREGA, Niti-Aayog, corruption scandals, and political tie-ups clouding our judgment every day. Yet what we actually truly need to see and hear, via advertisements and good marketing, is a ray of hope. People need to hear of schemes that will help them directly and personally, as opposed to several well endorsed schemes which are in fact inversely proportional to their interests. In this para-digm, effective marketing becomes key to bringing about greater visibility and establishing medi-ation as a long-term dispute resolution mechanism that may replace Courts in regards to medi-atable matters. Targeted programs aimed at building awareness about the pitfalls of protracted and cost-ineffective litigation; while also creating a minimum basic understanding of the signifi-cance and long term viability of mediation. In particular, the need of the hour extends to improv-ing society’s understanding of mediation that exists outside the purview of Court annexed medi-ation.

In order to improve visibility, misconceptions concerning mediation must adequately dispelled. In the Afconscase, the Court conflated judicial settlement and mediation which drew criticism. In order to improve awareness of mediation, there needs to be greater definitional clarity in regards to mediation as a form of ADR. Singapore, as a comparative jurisdiction, has adopted certain practises that contribute to boosting awareness of mediation processes in the country. Although mediation services are quite well organised in the country, certain practises have facilitated its online visibility. Given the proliferation of internet services in India, digital solutions are a viable alternative to current modes of marketing. Public awareness of developments in mediation can be boosted through web-ready content. In particular, the Singaporean system introduced an app called ‘Justice@StateCourts’ to keep citizens abreast of latest developments in the field.

Evolving a System of Referrals

Despite an Act which focuses on arbitration as a branch of Alternate Dispute Resolution, there is a void when it comes to regulations and rules on mediation. With landmark cases such as Afcons Infra v M/S Cherian Varkey Constructions⁵ and B.S. Krishnamurthy v B.S. Nagraj⁶ that elaborate on ADR and court mandated mediation, there subsists a dearth of procedure on mediation (as a forum, prior to moving the courts) that should ideally have delineated the referral of cases filed in a police station or before the Delhi Commission for Women (hereinafter referred to as DCW). There is an impending need for a legislation by the Delhi Government which will aid the po-lice and the DCW to refer cases filed before it which fit the bill of mediation thereby serving the purpose for which mediation as an avenue of alternative dispute settlement exists. If not then the goal of reducing the backlog remains utopian.

Conclusion

Legislative changes through statutory codification need to be brought about that essentially fruc-tify best practices and ensure more uniformity in mediation frameworks across mediation centres in the country. The chief justice of India, has often remarked on turning to Courts as a last re-sort. Justice Ramana has stressed the vital role that mediation plays atrestoring a relationship. With the Supreme Court setting a precedent litigants to opt for state funded mediation that pro-vides a amicable environment for parties to resolve conflicts, free of charge, with fewer hurdles to cross as opposed to traditional litigation - we may finally be reaching the precipice of weaving mediation into the fabric of our dispute resolution mechanism. However, this will require an in-vestment in resources and operations change. Ideally this would include modelling the existing statutory framework to account for the distinctive needs of court annexed mediation (Delhi Me-diation Centre) and private mediation (DDRS). Analysing other jurisdictions has resulted in the knowledge that inculcating mediation into our existing legal framework will bring a coherence in how we tackles disputes as a society. Making mediation the foundational element of conflict res-olution will only yield viability in our institutional responses. As lawyers, we witness attempts to frustrate the judicial process and delay justice dispensation by filing numerous proceedings on a daily basis.⁷ In light of this, perhaps community mediation that sustains the fabric of confidenti-ality and a substantial degree of party control is the way forward.

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