A Benign Modus Operandi: Settling Personal Disputes through Mediation and Negotiation in India

ABSTRACT: Given the incrementing backlog of cases in personal law matters, emerging dispute resolution mechanisms such as mediation and conciliation offer not only speedy but also an efficacious alternative. In this regard, there has been an amendment in the Code of Civil Procedure to include mediation.

Mediation and Conciliation as methods of alternative dispute resolution have got legal recognition through various judicial pronouncements. This Paper examines the statutory provisions for such mechanism, a perusal of judgments passed and the challenges it brings along. It concludes with certain set of suggestions which would strengthen this relatively new but emerging method of resolving disputes.

1. Introduction

With the ever increasing backlog of cases the realization has already doomed many that litigation alone might not be an appropriate recourse for seeking justice. The adversarial nature of judicial process too adds up to this deficiency. The aforementioned procedure of court is not interested in resolving the competing claims of the people involved in the dispute. It rather aims at endorsing one as winner and rejecting the other as loser , hence the conflict between the parties remains unresolved (Sheffield, 2010). Along with that there are many problems which are associated with our traditional system. The court rooms are congested, there is lack of manpower and resources , frequent delays take place, high cost is involved, and a cumbersome procedure naming a few speak out the need of better approach to this problem (S.B. Sinha).

Under the Code of Civil Procedure, 1908 express provisions are contained in the form of ORDER XXXII A, Rule 3 where under a duty is cast upon the courts to make efforts for settlement in suits relating to matters concerning a family. The object behind incorporation of such a provision under law emanates from a very simple but logical thought that in any kind of a family conflict an arrangement should be made whereby the parties agree to listen each other and arrive at some kind of amicable solution rather than going to the court and bearing all the unnecessary hassle.

Even if we research upon the comprehensive material present on conciliation we would realize that this concept is based upon a cluster of different set of ideas. Out of the various ideas some of the following appear quite prominently: that any family dispute should be resolved by retaining the power of decision making on the members of dispute rather than surrendering it to someone else; that it is beneficial if the process is not very formal; the approach should be that of restraint and not antagonism; that more focus should be put on compromise rather than pressurizing any one party Mediation/Conciliation is not a binding procedure and a neutral third party is involved in assisting the disputing parties to reach at a mutually agreed settlement. Mediation and conciliation can be inter-changeably used. In both procedures a mutually agreed settlement results in successful resolution of dispute between the parties though sometimes mediation is treated different from conciliation as in mediation the positive role of a neutral third party is given more importance than in conciliation.

The explanation for the concepts of Mediation and Conciliation and the underlying difference between them has been explained by Mr. Justice M. Jagannadha Rao, former judge of the SC of India and Chairman of Law commission who highlighted the role of the ‘mediator’ as one which is restricted to that of a ‘facilitator’ whereas that of a ‘conciliator’ is much more pro-active in the sense that he can put forward more proposals for the settlement of dispute and enjoys more power. Also he has the power of formulating and reformulating the terms and conditions of a possible settlement which is not there in the case of a mediator. (Dr. N.V. Paranjape, 2016)

Negotiation again is one another important type of decision making process in our life. Negotiation is persuasion through a dialogue. Negotiations which rely on merits and interests of parties involved is Principled Negotiation that can bring about a fair agreement, and preserve the good relationship between the disputing parties. It again is a non-binding procedure but involves a  direct interaction of the parties in dispute wherein one party approaches the other party with an offer of a settlement plan that is based on an unbiased assessment of their positions. The willingness to arrive at some negotiated arrangement and fairness on part of both parties are important for negotiation.

No one wins and no one loses. No party is disgruntled by the decision, because the settlement is reached out of free will and all the pros and cons are considered by the mediator. Both sides are in a win-win situation. The relationship between the parties remains unaffected to a great extent and there is no bitterness. Parties who would otherwise not like to see each other may re-establish a working relationship after mediation is concluded successfully. Instead of hatred, discord and bitter relationship as an outcome of adversarial proceeding there is tranquillity, accord and re-established relationship at the end of a consent based proceedings between the parties.

1. Legislative Approach

The Preamble of Constitution of India promises to secure socio-economic and political justice and equality of status and of opportunity to all the citizens. Article 39-A provides that the State shall ensure that the legal system operates in a manner which promotes justice for all and to make sure that no citizen is denied the opportunities of securing justice due to his or her economic or any other disability. The Law Commission in its 129th Report (129th Report of Law Commission of India, 1988)advocated the need for amicable settlement of disputes between parties and the Malimath Committee  recommended for the mandatory referral of disputes by the courts, after their issues are framed by courts, for resolving it by alternate means rather than litigation. Malimath committee stated that a legal sanction to a machinery for resolution of disputes and an alternative resort thereto is mandatory with the sole aim of reducing the large influx of litigation in courts on the civil side, number of appeals going to the higher courts and the efficiency of courts bolster by such implementation.

The Law Commission recommended that Conciliation Courts should be established all over the country with the authority to initiate conciliation proceedings in all cases at all levels. The objective behind the same was to further the cause of justice and to make sure that the judicial system works in an efficient manner.  Apart from other things the Commission proposed replication of Himachal Pradesh HC’s Conciliatory practices before, during and post trial for litigants including issues related to wills, inheritance, partition etc. It was due to the efficacious outcome of Himachal Pradesh’s experiment that paved way for resuscitation of alternate forums. Such processes cast duty upon judges to play a proactive role by taking necessary steps where it seems that there is a scope of settlement, to bring about reconciliation and to come up with some reasonable resolution that too diligently and swiftly (Ibid at 3).

As was recommended by the 129th Law Commission that Conciliation schemes should be implemented effectively and that an obligation be imposed on the courts to refer the dispute to alternate forums hence Section 89 was revised by Bill Code of Civil Procedure (Amendment) Bill initiated in 1997 keeping the aforementioned objective’s in mind. It was expected that initiating a suit in courts be the last resort if all other alternatives have been exhausted. The reinvigorated Section 89 brought in Judicial Settlement, Conciliation, Lok Adalats and Mediation in addition to Arbitration.

In the year 1999 Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec. 89 (Code of Civil Procedure 1908, 1908) in the Code of Civil Procedure 1908 which provided for reference of dispute pending before the courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002. Now Section 89 of the CPC has to be read with Order 10 Rule 1-A which empowers the Court to give directions for opting any one mode of alternative dispute resolution. Also Rule 1-B mandates the appearance before the conciliatory forum or authority. In case of failure of efforts of conciliation parties shall be asked to appear before the court on the fixed date under Order 10 Rule 1-C.

The Family Court Act 1984 under Section 5 clearly provides that the Government may after consultations with High Court associate with the Social Welfare Organization for holding of the family Court in order to reach at a settlement. Section 6 lays down provisions for appointment of permanent counsellors who could further effectuate settlement in family matters. Section 9 of the Family Courts Act, 1984 and Order XXXII-A of the Code of Civil Procedure, 1908 mandates the court to provide a fair chance for conciliation or negotiated settlement before adjudication commences. (Dr. N.V. Paranjape, 2016)

In respect of mediation of matrimonial disputes, it has to be taken into consideration that the factors weighing decisions of the parties are not always taken rationally. More often than not it is the irrational and temperamental factors which play important role in creation and settlement of disputes. Section 23 of the Hindu Marriage Act, 1955 also stresses upon a judge's role in making an attempt towards reconciliation. Mediation in respect of family matters is distinct in its form and content from that in respect of a commercial or a property disputes. While dealing with matrimonial disputes the mediator cannot only focus on the monetary or other tedious aspects but he also has to keep in mind the emotional aspect. To be fair it must be said that in fact the mediator focuses on the happiness of the parties which is more a matter of emotion than of reason. Also it is his or her prerogative to make sure that there is no or minimum damage caused to the parties.

1. Role played by Judiciary

Emphasizing the need for utilization of ADR’s including conciliation, mediation, etc. as means of settlement of disputes, the Apex court in Guru Nanak Foundation v Rattan Singh & Sons,D.A. Desai, J. ((2076), 1981) observed that the traditional court procedure was time consuming, complex and expensive in nature, hence some alternative was required which could prove to be less formal and more efficacious for resolution of dispute circumventing procedural claptrap. This led them to the Arbitration Act, 1940. However, the manner in which proceedings under this Act take place and without exception challenged in court, has made lawyers laugh and legal philosophers weep. There is enough material on record to prove that the proceedings under the Act have become highly technical, followed by tedious and cumbersome talks, at every stage providing a legal trap to the unwary. The otherwise Informal forum preferred by the parties for expeditious disposal of their disputes has by the decisions of the courts, been accoutered with ‘legalese’ of unforceable complexity.” 

The landmark judgment of Salem Advocate Bar association, T.N v Union of India,(344, 2005)is quite relevant in this regard as it acknowledged the fact that the intention of the legislature behind enacting Section 89 was that where it appears to the court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods. Conjugal disputes must be dealt by courts in a humane and sensible manner. Matrimonial issues are quite sensitive in nature and hence they must be handled carefully and legal provisions should be construed and interpreted keeping in mind the human nature of committing follies and their inherent weaknesses. Probably, the Legislature took all these particulars into consideration while enacting sub-section (2) of Section 23 of the Act hence making it mandatory for a court to make all efforts to bring about reconciliation between the parties. In Jivubai v Ningappa Adrishappa Yadwad,(SCC, 2007)the High Court of Mysore had pointed out that there can be no doubt that a duty is laid on the court to make every endeavor to bring about a reconciliation between the parties whenever the nature and circumstances of the case permit it to do so. Failure of the trial court to make such effort does not mean that appellate court at later stage should not undertake such exercise.

While interpreting Section 23 (2) of the Act, the court held that just because it seems that there is no scope of reconciliation the court should not give up on getting a reconciliation done all together. The attempt for reconciliation has to be made by the court from the very onset and not once the final hearing of the case is done and where the court has already proceeded to grant relief under the Act. It was also held that since it is the personal matter of the parties, their appearance in person before the court is all the more essential while the court proceeds to bring about reconciliation between them.

In the case of Gaurav Nagpal v Sumedha Nagpal,(Malimath Committee Report, 2013)the Hon’ble Apex court discussed at length about the need of conciliation in divorce proceedings and judicial separation keeping in mind the interest of the child. Offence under Section 498-A IPC is a non-compoundable offence but in certain cases if the parties consent and if it appears to the Court that there are chances of settlement, it should direct the parties to explore the possibility of settlement through mediation. Though it becomes the prerogative of Judges to ensure that this provision is not misused by the erring spouse to get out of the clutches of law. Further it should not in any manner reduce the objective and austerity of Section 498-A IPC, but its only aim should be to locate cases where the conjugal disharmony can be nipped in bud in a fair and impartial manner. The two possible outcomes of mediation are that either the parties decide to part company on mutually agreed grounds or they decide to mend their relation and stay together. In either case to effectuate settlement the complaint will have to be quashed. The High Court can be approached to in this regard and the complaint be quashed. In this process, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will further minimize the burden on the courts which will be in larger public interest.

The Family Courts Act under Section 9 also provides for undertaking efforts to settle matrimonial discord through mediation.  Even if a failure report is submitted by the counsellors the Family Court shall with the consent of the parties, refer the matter for mediation. In order to make sure that the resolution of the dispute is not inordinately delayed the Family Courts shall set a reasonable time-limit for mediation centres to complete the process of mediation. But in a particular case if it appears that there is good chance of settlement, the Family court enjoys the discretion of extending the time-limit. In cases where both parties consent and after applying its mind the criminal court dealing with the complaint under Section 498-A feels that there exist elements and a scope of settlement can at any stage and particularly, before they take up the complaint for hearing should refer the parties to mediation Centre. Though in this process it should be seen that the purport and austerity of Section 498-A is not diminished. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this discretion. The courts shall work out the mode of functioning by taking into account facts of each case. All mediation centres should endeavor to set up pre-litigation clinics, bring them to the fore by advertising and make effort to resolve the matrimonial discord before it reaches litigation. (Mediation Training Manual of India)

1. Role of a Mediator

A marriage counsellor should firstly endeavour to diagnose the problem. After that the next step should be to decide whether counsellor or mediator should venture into bringing about reconciliation or to attempt for separation. Some of the problems are so grave that an immediate solution can only be attained through separation. However, for parties sometimes, separation may not look to be very easy. Although nowadays our society progressively accepts the fact of failure in marriage still the repercussions attached to a divorce seeks a lot of attention and can’t be left on their own. The first and the foremost duty of the counsellor in such situations is to assist the parties to come at a decision whereby they agree to break the marriage. Sometimes such a decision may seem easy and sometimes it may seem difficult. Once that is done it becomes essential for the mediator to peruse upon the terms and conditions of the divorce which may include the question of custody of children, maintenance, share in property, etc. (Journal, 2009)

Davy has noticed that practitioners of family law case should aspire to achieve acceptable terms of settlement by resolving matters in an amicable manner and such a practice should avoid or minimize further personal degeneration to the reputation of parties involved. Due to the voluntary nature of this process sometimes the mediator may face such situation where either one of the party or may be even both parties show reluctance to approach a mediator. Here the role of the mediator becomes even more important since he has to win over the inhibitions of the parties by assuring them that such a process is not only voluntary but also provides for a participatory settlement of dispute and also by explaining it to the parties that they stand a chance to gain than to loose by authorizing mediation in their dispute. Now a basic problem which many family court judges and others involved in mediation and conciliation of the disputing couple face is that even though the parties consent to accept a mediator or counsellor they keep certain reservations. The duty of the mediator among other things involves stimulating the idea of openness and to bring out their objections for its proper disposal. Also the mediator should be skilful enough to help increasing the participant’s ability to communicate. Some writers and noticeably Davis have put across their view stating differences between mediation and other supportive activities such as counselling and therapy, while identifying the objectives of family mediation. For them the focus of mediators should be to enable the disputing parties to arrive at some shared decisions upon specific issues which divide them. (Courts, 1996)

1. Status in India.-

The concept of Alternative dispute resolution is not an unheard concept in India because the Arbitration act 1940 was already there. Therefore to accommodate the mandates, rules and conditions of UNCITRAL Model The Arbitration and Conciliation Act, 1996 has been enacted and formulated in India. To make smooth working of new laws passed in India there where some amendments made in the historical Code of Civil Procedure,(CPC) and after amendment section- 89  introduced. Further Section 89 (1) of CPC provides another option of settlement and solution of the disputes and cases outside of the courts instead of going through long litigation processes. It says that it is on the court’s discretion, if court thinks that there are some elements were the parties can agree upon than the court may formulate the terms and conditions for a possible solution between the parties without going through actual litigation process.

A study on commercial dispute resolution in South India has been done by a think tank organization based in Kochi, Centre for Public Policy Research. The study reveals that the matters referred by the courts for mediation in mediation centres in Bangalore has a success rate of 64%, and its counterpart in Kerala has an average success rate of 27.7%. Further, out of the three southern states (Karnataka, Tamil Nadu, and Kerala), Tamil Nadu is said to have the highest adoption of dispute resolution, Kerala the least.

• Arbitration-Arbitration and Conciliation Act, 1996
• Conciliation- less formal form of arbitration. 
• Lok Adalat- Indian villages had a long history of resolving matters through judgement of elder people of the villages. The concept of Lok Adalat is an improvement on this historical practice and based on Gandhian Principles.

1. International Trends

The Singapore Government has been working towards legislating on court mediation. The Women’s Charter (the governing statute on family disputes) has been amended and a new Section 47A has been incorporated which imposes a duty on the judge/ registrar to take into consideration any possibility of reconciliation in a divorce or judicial separation proceeding. The Government of Singapore has introduced the notion of a Family Court using a directive model of mediation which would cater to the need of dispute resolution with the ultimate objective of achieving an efficient system capable of producing, to a great extent a just and fair result that too at a reasonable cost. 

Voluntary mediation of divorces has been employed in states like Maine and in other states for several years. California introduced mandatory mediation for divorce in which child custody or visitation is a contested issue in the year 1981 (Adrian Loke, 1999) and in Maine in 1984. In California, mediation is only restricted to custody and visitation related issues. In Maine, all disputed issues must be mediated in case the parties have minor children and in case there are no minor children on the discretion of judge it can be ordered. In the year 1996 a commission set up in Ireland on Family Courts recommended that “The parties should be motivated for seeking independent legal advice before or during the mediation process. Where a party thinks about receiving legal aid and is waiting for an appointment to consult a Legal Aid Board solicitor, mediation should be put on hold till he/she receives such advice (Clark & Orbeton, 1986). Such provisions are to be incorporated in a Code of Practice”.

1. Concluding words and Suggestions

The visible trends in negotiation and the usage of law in general, can be seen as an evolution and a movement towards a more therapeutic process for the parties in issue. A therapeutic jurisprudence approach brings about more favourable outcomes, minimizes the conflict and stress experienced by both the clients and attorneys, and manifests into a more coherent discourse, saving both time and money of the clients. Taking into consideration the limited effectiveness of the adversarial style, and growth of negotiation as a more therapeutic process, it is but inevitable that aforementioned approaches will incorporate the elements of social sciences (Report, 1996).

Also Court appointed conciliation should be made compulsory for all litigations under section 125 of the Code of Criminal Procedure, 1973 whether it is for maintenance or for divorce. Presently it is the Magistrates who make their own efforts in bringing about a settlement in the sphere of maintenance. Also in criminal cases under Section 498 A efforts are made for a stable settlement. So do the matrimonial courts. Keeping in mind the workload of a judicial officer, the need of a professional counsellor or mediator is always felt for taking over counselling/mediation at different levels. Since legally as well as morally an obligation lies upon a Judge to make earnest attempt for reconciliation hence the primary part of the mediation proceedings must  be committed towards effort for reconciliation.

For a country like India which has a vast rural background if disputes get settled at the rudimentary stage it will be of great relevance. By such settlement there will be no ill-will and malevolence which will pave way for peaceful co-existence and harmony. It is pertinent to remember that had the elders' amicable settlement plan been acceded to, the great Kurukshetra War could have been avoided.

References

• (n.d.).
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