A fter 10 sittings at the Gurugram District and Sessions Court’s mediation centre over the past two months, Sunita’s family has decided to file a divorce case — having lost patience and hope for an amicable solution to her matrimonial dispute.
The trouble in her married life started soon after her wedding, four years ago, to Ramesh, who allegedly began to beat her for dowry. Sunita’s family claimed they made several efforts to sort out the matter through mutual discussion. A panchayat was also held but Ramesh did not mend his ways, they claimed, adding that he started beating and abusing Sunita a few months after the panchayat.
The matter then reached the Manesar police station, where an officer referred the case to a mediation centre.
“We are demanding that Sunita’s in-laws return ₹6 lakh spent on the wedding, but they [the in-laws] are offering only ₹1 lakh. The mediator said she could not pressure them [the in-laws] to agree to our demand. How can there be a solution without putting pressure on them,” asked Sunita’s brother Pradeep.
The family said they had never heard about mediation in the courts. But they felt that they had lost two months in mediation when the solution could only be reached by exerting pressure through the the police or the courts.
Satyawati, a Gurugram resident, echoed similar views. Sitting on a bench outside the mediation centre on the first floor of the court premises, Ms. Satyawati narrated the ordeal her daughter had faced since her marriage and how her son-in-law was now offering money to them in return for a divorce, but they were not ready for it. “How long can we let our daughter stay with us? What will happen to her after we die,” she asked.
“Had they [the in-laws] been so understanding to resolve it amicably, they would not have created trouble in my daughter’s life in the first place,” she argued, betraying little faith in the mediation process.
But not all stories about mediation end on a sad note.
Rameshwar, a retired government official, is a happy man. His daughter’s long-standing matrimonial dispute was resolved in the first sitting itself at the mediation centre. Since his son-in-law’s family was unwilling to involve their relatives to sort out their differences for fear of social ignominy, Mr. Rameshwar approached the police, who advised him to go for judicial mediation through trained mediators. And it worked.
Lawyer Pavitra Yadav, who acted as a mediator for the young couple, asserted that the mediator’s job was to be a “facilitator” and that a solution could be reached only when both parties mutually consented to the terms of the agreement.
She said that there was a huge difference between mediation by a trained person, who took a neutral view of the stance taken by the parties involved, and intervention by relatives, friends or the society at large.
“We listen to the parties without prejudice and do not impose a solution on them. We do not force them to reach an agreement but explain the financial and other costs of the legal process and advise them that an amicable solution is a better option,” said Ms. Yadav, who has been working as a mediator for over six years.
Recalling an instance of how a trained mediator could make a difference, Ms. Yadav said she once sorted out a dispute between a couple just by facilitating a communication between them.
“Since the fathers of the couple were retired Army colonels, they did not allow the husband and wife to talk to each other and sort out their differences, leading to trouble in their married life,” she said.
Almost three-fourth of the cases handled by Ms. Yadav are matrimonial disputes. The rest are cases of cheque bounce, recovery suits and property disputes.
Ms. Yadav said she believed that every lawyer must practice as a mediator during their career to develop a fresh approach towards dispute resolution.
“A mediator goes to the root cause of the dispute and tries to put an end to it without bitterness between the parties, unlike a lawyer who seeks solutions within the legal framework,” she said.
Ms. Yadav said she usually took two-three cases a day and did not mind holding sittings stretching for hours if she could sense a solution to the dispute in the offing.
Infrastructure, however, is a hindrance at the mediation centre. Warring parties sometimes feel uncomfortable sitting in an open room and discussing their personal matters in the presence of strangers. Ms. Yadav said the success rate could be improved with better infrastructure.
Allowing mediation at the pre-litigation stage is beneficial since bitterness between the parties is less at the start, said Ms. Yadav, adding that animosity between parties usually grew after they were involved in a protracted legal battle, making the process of mediation even more difficult.
Elaborating on the significance of Alternative Dispute Resolution (ADR) mechanism, including arbitration, mediation and conciliation, Chief Judicial Magistrate-cum-secretary Gurugram District Legal Services Authority, Narender Singh, said the purpose behind mediation was to lessen the burden on the judiciary, save time and also prevent the heart-burn caused due to litigation.
“Mediation is aimed at preserving relationships. It could be the relationship between a married couple or business partners. The criminal cases are not eligible for mediation, except for cases of cheque bounce,” said Mr. Singh.
Compared to developed countries like the United States and Canada, success rate for mediation process in India is poor, said Mr. Singh.
“In developed countries, the judiciary is the first resort in case of a dispute, but in India, the parties — before reaching the court — have already gone through several rounds of mediation at the family and society level,” he said.
“This leaves little scope for resolution of disputes through judicial mediation,” said Mr. Singh, adding that lack of awareness about ADR mechanisms and poor legal literacy also contributed to lesser success rate. The mediation success rate in Gurugram hovers around 30%.
No fixed qualification
Though there is no fixed qualification to be appointed as a mediator, all the 29 mediators at the Gurugram District and Sessions Court are lawyers.
The training of the mediators is an important aspect for the success rate. Earlier, trainers from abroad were invited to impart mediation training. But the Mediation and Conciliation Project Committee (MCPC), under Justice Madan B. Lokur, has groomed its own group of trainers. One such training programme, aimed at enhancing the skills of trainee mediators, was held in Gurugram last month.
In contrast to the mediation centre in Gurugram, the mediation centre at the Gautam Buddh Nagar District and Sessions Court boasts better infrastructure with separate air-conditioned cabins for the parties. But there are only three cabins — built six months ago — for eight mediators. The mediation success rate here is around 20% — less than in Gurugram.
“The lawyers of the parties are not always interested in an agreement reached through mediation as they stand to lose their fees. Around 80% of the cases referred for mediation are matrimonial disputes and the parties are rarely prepared for an amicable solution having already tried it before approaching the police and the courts,” Neelu Menwal, Secretary, District Legal Services Authority, Gautam Buddh Nagar, told The Hindu .
Lack of proper training for the centre’s mediators is another challenge. Ms. Menwal said that none of the eight mediators at the centre had undergone the mandatory 45-day training, and four posts were lying vacant — all factors contributing adversely to the success rate.
The national capital, however, boasts an envious track record with over 64% of all cases sent for mediation getting settled — making it one of the preferred methods of ADR mechanism.
Mediation success rate
Though yet to catch the fancies of popular culture, due to lack of legal literacy, mediation has great potential considering that a bulk of the 33 million backlog of cases in India lies at the doorstep of district and subordinate courts.
Delhi has six mediation centres — on the court premises of Tis Hazari, Karkardooma, Rohini, Dwarka, Saket and Patiala House Courts. The first mediation centre was opened at the Tis Hazari Courts in August 2005.
All combined, the mediation centres in Delhi have so far had 2.1 lakh cases referred to them, out of which over 1.3 lakh were settled amicably.
Judge in-charge of the mediation centre at Patiala House Courts Sunil Kumar Aggarwal said his centre has a success rate of over 50%. “But success rate depends on the nature of the cases,” he said.
Mr. Aggarwal said his mediation centre had good infrastructure as it was the latest in Delhi, inaugurated in 2015. A wide spectrum of cases, including criminal compoundable cases, which can be compromised between the parties, are settled through mediation here.
The explosion of litigation in recent decades made the justice delivery process protracted, hence a need was felt for ADR mechanisms.
Justice R.C. Lahoti, then Chief Justice of India, constituted the MCPC in 2005. Shortly after, a pilot project on mediation was initiated in Delhi in August 2005, and the first batch of senior Additional District Judges was imparted mediation training.
The trained mediators started judicial mediation from their chambers in August 2005. A permanent mediation centre with modern facilities was established at the Tis Hazari Courts complex in October 2005.
Subsequently, judicial mediation was started at Karkardooma Court Complex in December 2005, and a litigant-friendly and modern mediation centre was established five months later.
A dispute can be referred for mediation if one of the parties makes a request and the other party is not averse to the idea. But as the mediators have no legal power to issue summons, sometimes parties do not turn up for sittings, making it difficult to reach a solution.
If the parties come to the centre, the lawyers can assist them through mediation.
It has been found that wherever the parties are assisted by their advocates, a settlement is arrived at a bit early, as the lawyers can explain the weakness and strength of their respective cases. The proceedings before a mediator are informal and hence the parties can bring any of their kin to assist them.
Settlement through mediation, however, can sometimes be a tricky affair.
Case in point, a cheque-bounce case gets sent to a mediator. On the first day of mediation, the two parties settle their matter for an amount of around ₹1 crore, which includes all their liabilities. One party agrees to make payments in three instalments to the other party. But, subsequently, the liable party fails to make the first instalment. So, the parties enter another round of mediation and the terms are renegotiated so that payments can be made in smaller instalments. But one of the parties still refuses to honour the settlement and requests the court for another round of mediation. The case can remain pending this way indefinitely.
To make the mediation process short, there is a three-month period for a case referred for mediation to get settled. Otherwise the matter is treated as unsettled. A failed first attempt at mediation also does not mean the end of road.
It can be referred back to mediation on the plea of the parties.
(Names of the parties involved in mediation process have been changed to protect their identities)