Let us mediate, not litigate

My journey of 55 years has moved from legal education to legal profession to judicial education.

The Mediation and Conciliation Project Committee was constituted by the Supreme Court of India to oversee the effective implementation of mediation and conciliation in the country. (File Photo)

Justice DY Chandrachud, Chief Justice of India, sometime back gave this slogan: Mediate and not litigate. The Central Government notified the Mediation Act, 2023 on September 15, 2023. Mediation is ventilation of human feelings. Mediation is democracy in action. Where people do justice among themselves. Mediators are healers. Peacemakers. Mediation provides balance to human wounds. Mediation helps in rehabilitation. The Act defines Mediation expansively. It includes any process where parties request a third person – Mediator to assist them in reaching an amicable settlement. It encompasses Pre-litigation and litigation mediation. Online mediation. Community mediation. Conciliation. Any other expression having a similar meaning. Mediation is a process to resolve human conflicts.

My journey of 55 years has moved from legal education to legal profession to judicial education. In my semi-autobiographical book: My Journey with Law & Justice, I have devoted one chapter to: The Dilemma of Joining the Bar. The concluding para of this chapter flows as follows: “It is said, be just before you are generous. Justice is Truth in action. We need to realize that justice is within us as a great yearning. We love Justice. Therefore, each one must contribute in doing Justice. This threefold journey has made me realize that we need to be ‘Healers’ of human conflicts. Mahatma Gandhi, a barrister, recorded that the true function of a lawyer was to unite the parties. The large part of his time during the 20 years of his practice as a lawyer was occupied in bringing out private compromises of hundred of cases. He added thoughtfully: ‘I lost nothing thereby – not even money, certainly not my soul’.

The problems of Indian legal system are the same as that of United States. The same can be summed up in the words of former Chief Justice Warren E Burger of Supreme Court of US in 1984: ‘The American legal system is too costly, too lengthy, too destructive and too inefficient for civilized people’. We in India also suffer from some of these maladies. Chief Justice Burger urged the American bar to explore mediation. To make mechanisms that can provide an acceptable result in the shortest possible time. Burger’s appeal got a positive response from the legal profession.

Mediation became a way of life. It took America by storm. The courtroom trial became the last resort. Most cases that were previously tried are now settled through mediation.

Sukhsimranjit Singh from Punjab (India) has been playing a pivotal role in the US. He has advocated mediation in different domains and jurisdictions. Mediation is in fashion. I urge and want that India must not lag behind. Mediate and not litigate is a potent message. In about 40% litigation, the government is involved.

The Govt. itself must workout ways and means to settle its disputes through the medium of mediation. Mediation Centers must be set up in different govt. departments. Article 350 of the Indian Constitution gives a right to every person to submit a representation for the redressal of his grievance to any officer or authority in the government. In view of this provision, the government may consider and give the relief or refer the same for mediation. My purpose in this piece is not to dissect the provisions of Mediation Act, 2023.

It is yet to come into force. The Mediation Council of India is to be set up. Thereafter, the council with previous approval of the Central Government will make regulations and rules consistent with the Act. This process will take some time.

Story continues below this ad

The Mediation and Conciliation Project Committee was constituted by the Supreme Court of India to oversee the effective implementation of mediation and conciliation in the country. MCPC was set up by Justice RCLahoti, the then Chief Justice of India by an administrative order of April 9, 2005. This committee has played a significant role during the last almost two decades. Now there is an urgent need of a handbook on Mediation and its fundamentals. Justice Madan B Lokur, Sriram Panchu and Justice Sudhir Kumar Jain can play a key role in this meaningful venture.

The future of mediation in India lies in its ability to impact the social change. The Act, 2023 should be implemented more in spirit than in form. Let us not forget that it is the spirit and not the form which keeps justice alive.

(The writer is Professor Emeritus and Former Director, NJA)

Stay updated with the latest - Click here to follow us on Instagram