Introduction
As rightly said by Abrahim Lincoln;
Discourage litigation and persuade your neighbors to compromise whatever you can point out to them and how normal the winner is often a loser in fees, expenses, cost and time.
The Author through this article is making a sincere effort in describing as to how Mediation (one of the modes of Alternative Dispute Resolution System) plays a key role in reaching out people and resolving their dispute, where at the times of covid-19 it has become difficult for people to access the legal procedure i.e. to sue and to be sued.
Hence the mediation can be a mode where people can access to resolve their dispute.
Meaning of ADRS
Before looking into the origin it is important for us to understand what is ADRS (Alternative Dispute Resolution System)? In general sense it can be understood as outer court settlement. And the modes are; Arbitration, Conciliation, Mediation, and Negotiation. Where Arbitration and Conciliation is formal,and mediation and Negotiation is informal in nature. The benefits of ADRS; Lower cost, less expensive, time saving, and improves relationship between the parties. The parties themselves can choose any one mode of ADRS and through their advocates file an application or the court itself can refer the matter to ADRS.
Origin
The concept of ADRS or Mediation is not new, it is since from ages. The essence of which can be seen at village level where the elders of the village become the head and resolve the disputes, this was known as punchayats and the decisions by these heads were final, it is an informal way of the mediation. Similarly we can see another instance in tribes or clan, where the head of the tribe resolve the dispute.
We can see this practice in the other parts of the world, like in case of Philippines the leader of the local area tried to resolve the disputes between the parties, similarly in case of Latin America an officer of the state could use the informal procedure to mediate between the parties.
Provision for ADRS in Indian Laws
Section 89 of the Civil Procedure Code, 1908 provides four methods to settle the disputes outside the court namely- Arbitration, Conciliation, Mediation and Lokadalats.
Before coming of the Legal Service Authority Act, 1985, Lok Nyayalayas did not have statutory recognition.
In case of Advocate Bar Association vs. Union of India;
The Supreme Court directed the setting up of the committee that would look into the implementation of various provisions including Section 89.
Position of Mediation in India
Hence, through this chart we can understand as to the number of cases settled and how far it was successful and another graph shows the number of disposed mediation cases from 2013 to 2017. Which shows that mediation needs more support and when a survey was conducted it was known that majority of people are not aware about the mediation and where not ready to opt the mediation as their means to resolve their dispute.
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Courts Practice In Relation To Mediation
In India there is a rapid increase in the cases and hence because of which the courts are overburdened and to reduce this, courts refer the matters to arbitration or mediation centers. Except the criminal cases the courts can refer the family disputes, property disputes, civil disputes for the mediation for its speedy disposal as according to section 18 of the Karnataka Civil procedure (mediation) Rules, 2005 prescribes the limit for the completion of mediation of a particular case i.e. 60 days from the date fixed for the parties appear for first time and extension can be seeked but it shall not be beyond a period of 30 days.
The Rise of Cases in Times of COVID-19
As we all are familiar with the fact that because of the breakdown of Covid-19 the government had taken decision of lockdown to ensure the safety of people, this inturn has led to a rise in disputes among the parties in all the matters especially in domestic violence, business, trade, and as a result of the lockdown people are not able to accesses the courts, and only the urgent matters are taken up by the courts.
Mediation in Times of Covid-19
The matters which are not categorized as urgent by the courts can be at most urgent to the parties based on their circumstances and as rightly said justice delayed is justice denied, hence the alternative solution to this problem can be mediation as it can be done through the use of technology by way of secured applications.
Therefore steps should be taken to promote mediation as it can play a crucial role and this can be done by way of spreading awareness, conducting seminars and workshops, and also as per Karnataka Civil Procedure (mediation) rules,2005-section 4 clause b it states that the legal practitioners with at least 15 years standing at the bar at the level of Supreme Court or High Court or District Court or Courts of equivalent status are qualified to be a mediator and hence fourth there are many advocates with such experience and hence can assist people during the period of covid-19 through mediation which can be taken place by of online.
Hindrances of Mediation
- There is no guarantee
- The decision of mediator is not binding on the parties.
- Lack of co-operation between the parties.
- In some cases it may not be cost effective.
- In mediation, parties cannot be compelled to participate and can withdraw from the proceeding at any time.
- Lot of people does not prefer to use technology.
Conclusion
Hence as every coin as head and tale similarly every system as its pros and cons hence the author through this article have discussed how mediation can be a boon in reaching out people and resolving their dispute and how it can be a hindrance through its disadvantages and how people can access to justice through mediation.
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