Legal reforms panel supports law to encourage out-of-court

A proposal of the government to bring a law to provide legislative backing to out-of-court settlements to reduce court cases has received the backing of a high-powered committee set up to suggest legal reforms.
The Law Ministry had proposed before the Advisory Council of the National Mission for Justice Delivery and Legal Reforms that the process of mediation "should be given statutory backing by enacting a stand-alone law on mediation."
Now, the minutes of the meeting, held in February this year, suggest that several members have supported the idea, saying advocates and social activists should have a proactive role in mediation.

The Council, chaired by the Law Minister, usually meets twice a year. Representatives from the Supreme Court, the Bar Council and the Union Home and Law ministries and the Attorney General are its members.
As of now, the mediation process is mostly used to settle marital disputes and the new legislation could encourage such settlements in other areas also like landlord-tenant and industrial disputes which form a major chunk of litigations.
A note mooted by the ministry for the meeting said, "There is no legislation to back the mediation process in the country...The lack of any statutory backing to the mediation process is a cause of concern/apprehension in the minds of the parties regarding the validity/enforceability of the outcome of mediation. Therefore, some parties may prefer the lawyer-dominated, formal judicial process."

According to the minutes, jurist N R Madhava Menon expressed his agreement on the need for a separate law for mediation at both pre and post litigation stages.

Bar Council of India Chairman Manan Kumar Mishra
intervened in the discussion and felt that the task of pre- litigation resolution of disputes must be entrusted to the members of the bar and social activists. The judiciary's role, he felt, must come only after the mediation fails.
He was of the view that Legal Services Authority Act, 1987 needs to be revisited as the work being undertaken by the judges under this Act actually falls within the domain of lawyers.

Then Law Secretary P K Malhotra said in the absence of a standalone law on mediation, mediation centres have been opened by the courts and are being monitored by judges.
He said there is a need to have trained mediators as the skill sets required for mediation are completely different from the ones required for adjudication and arbitration.
Registrar (Judicial), Supreme Court Chirag Bhanu Singh told the Council that in Australia 80 per cent of the matters are decided before entering the formal judicial system.
Once the matter is filed, it goes to the court annexed mediator. If the mediator fails, then the matter enters the formal court system.

According to the Law Ministry note, many stakeholders have been sceptical of the applicability of mediation to the diverse Indian caseload at the pre-litigation stage.
If more and more litigations are resolved through out-of-court settlements, it will help reduce burden on courts in a country where 2.64 crore cases are pending.
"The apprehension of the effective application of mediation at the pre-litigation stage beyond matrimonial disputes and family matters and implementing the same in property, partitions, landlord-tenant, industrial disputes, cases containing elements of a crime is always present," the note said.
As of now, mediation process in the country is carried out through the Mediation and Conciliation Project Committee established by the Supreme Court.

Also, all mediation activities are being managed and headed by the High Court of the respective states where only the court annexed mediation process is available.
Unlike Lok Adalats, mediation is an alternative dispute resolution mechanism where the parties are encouraged to directly participate in the process aimed at settling the disputes keeping in mind the laws and the interests of the two parties.
"Pre-litigation mediation, therefore, is an extremely important aspect from the point of view of both, the parties and the judicial system. Giving parties an option to explore resolution through mediation at the pre-litigation stage without invoking the jurisdiction of the courts would be beneficial in terms of time, money and preservation of relationships," the document said.