Modus operandi designed to resolute the difference of opinion between parties; it is possible with mutual consent containing a discussion to reach an understanding, this process is known as Mediation. The popular practice amongst parties to resolve their problems is successful mediation, as it is based on two-interrelated factors: There must be a willingness from both the sides of the parties to resolve their disputes and skill of the mediator to guide the parties to get them out of the dispute. There are benefits which parties can get as they have an opportunity to save money and time, convenient for those parties who can control the time, location, and duration of the proceedings. However, there are words which have been said by parties can be kept confidential and avoid the glare of publicity. It has been said that the practice of Mediation was prevalent in ancient India in form or the other, which is continuing in rural parts of the state. Mediation is one such practice to resolve disputes along with other methods like Alternative Dispute Resolution which has been recognized by the Civil Procedure (Amendment) Act, 1999 introduced Section 89.
Section 89 provides power to the court to refer the dispute for settlement or reconciliation with a purpose for an amicable, mutual and peaceful settlement. The purpose to bring in section 89 was to diminish the awaiting cases on the civil side of the courts. This Section will apply, only if there is an application or complaint from the defendant. After accepting the complaint, the judge shall see the elements for settlement which can be accepted by the parties or not and then, there will be the formulation for terms of the settlement. The parties will be allowed to scrutinize the conditions for settlement with their acceptance and changes, wherever is required, the court will reformulate the settlement and refer the same for Arbitration, Reconciliation, Judicial Settlement, or Mediation.
- To implement the mediation, The Supreme Court has set up a committee to draft up legislation.
- This would be sent to the Government as a suggestion.
- The panel will be headed by Niranjan Bhat who will recommend the suggestions for code of conduct for mediators.
- The mediators have emphasized upon the issues related to confidentiality, conflict of interest, neutrality, the enforceability of settlement and etcetera need to be addressed by the committee.
- There is a provision for the proceedings and settlements in Lok Adalat were there orders shall be like a decree of any other civil court.
- The suggestion was provided by The Chief Justice of India SA Bobde that, there must be an inclusion of courses on mediation in National Law Universities.
Commentary & Judgment:-
O.P. Dholakia v. the State of Haryana, (2000) 1 SCC 672, a division bench did observe in the case and gave the following Judgment,
“… Taking into consideration the nature of the offence in question and the fact that the complainant and the accused have already entered into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of the present case, to compound.”
A commentary which published to observe the offence punishable under Section 138 of the Negotiable Instrument Act, which mentioned that, “… Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution but is more a means to ensure payment of money. The complainant’s interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as a remedy for the holder of the cheque. If we were to examine the number of complaints filed which were `compromised’ or `settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a minuscule number continued.”
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
- Economic Times, Supreme Court forms committee to draft mediation law, will send to the government https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-forms-committee-to-draft-mediation-law-will-send-to-government/articleshow/73394043.cms
- Supreme Court Legal Services Committee, Benefits of Mediation http://sclsc.nic.in/Mediation_Center/100012
- Path Legal, Landmark Judgment on Mediation in Cheque Dishonour Case https://www.pathlegal.in/Landmark-judgment-on-mediation…-blog-1697410
- Code of Civil Procedure, 1908
- Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]