“Intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute. In international law and diplomacy, the word denotes the friendly interference of a state in the controversies of others, for the purpose, by its influence and by adjusting their difficulties, of keeping the peace in the family of nations.”[1]
In the context of conflict resolution, "intervention" refers to the involvement of a third party in a disagreement between two opposing parties with the main objective of promoting facilitating them to work out their differences. This idea transcends interpersonal problems and has a significant bearing on international law and diplomacy, since states use their influence to mediate disputes and interfere in other states' issues in an effort to preserve international peace and harmony.
Mediation is a highly attractive option to litigation and other option Dispute settlement(ADR) procedures when it comes to dispute settlement techniques. Mediation should be chosen over the adversarial and frequently drawn-out legal process for a number of reasons.
Above all, mediation highlights the significance of preserving relationships. When maintaining connections is crucial, mediation offers a less combative and more cooperative forum for dialogue and the finding of common ground in issues that are personal, business, or diplomatic in nature. It enables people to voice their worries and cooperate to find a solution.
Parties in conflict are also given a sense of autonomy and control through mediation. In contrast to litigation, where a judge or jury renders the final verdict,mediation enables participants to actively participate in the process. This improves the resolution's perceived fairness while also opening the door to more creative and tailored solutions that can address the unique needs and worries of the parties. Mediation is an excellent option due of its effectiveness.
Legal measures can be costly and time-consuming, but mediation typically yields quicker and more affordable resolutions. The confidential setting of mediation sessions promotes honest and open communication between the parties. Not only does this confidentiality allow for more honest communication, it also protects sensitive information.
It is also known that mediation can reduce the emotional toll that litigation may have. A less hostile and more supportive environment considerably lessens the emotional burden on all individuals involved.
In company and globally, reputation management is essential. A party's reputation is usually harmed by litigation. Conversely, confidentiality is maintained during mediation, protecting the parties from negative publicity. Moreover,mediated agreements are frequently enforceable by law, providing the parties involved with a sense of confidence and guaranteeing that the settlements reached have the support of the law.
Rapid settlement is another benefit of mediation, which is crucial in situations that call for an immediate resolution. In addition, the fact that parties can usually select the mediator promotes confidence in the process and guarantees the impartiality and competence of the third party.
Lessening polarisation is one of the most significant aspects of mediation. In litigation, parties are often pitted against one another as winners and losers. Conversely, mediation aims to find solutions that both parties can agree with while promoting collaboration and, ideally, reducing differences.
According to Abraham Lincon, "discourage litigation." Whenever possible, try to get your neighbors to make concessions. Make it clear to them that, in terms of costs, fees, and wasted time, the nominal winner is frequently the true loser.The lawyer has a better chance of being a nice man as a peacemaker. [2]
In summary, mediation is preferred over litigation and other ADR procedures because of its cooperative, effective, and adaptable approach to dispute resolution. It is particularly suitable in circumstances where upholding relationships, protecting privacy, and coming to mutually agreeable solutions are essential.[3]
India has a long history of amicable, informal dispute resolution mechanisms.[4] The Panchayat [5]system was especially skilled at settling conflicts between close relatives and family members. "The village Panchayat is the time-honored method of deciding disputes of this kind...that it is comparatively easy for the panchayat to determine what is real, and that, as in this case, it avoids protracted litigation,[6]"the Privy Council said in upholding a Panchayat decision. Nevertheless, the adversarial system eventually rendered these unofficial and private groups obsolete.
Despite the Indian Constitution guaranteeing access to justice for all citizens, the adversarial system of centralized justice was kept in place.[7] In a comparatively short amount of time, the Indian court system faced a number of difficulties, such as backlogs of cases,delays, resource shortages, a shortage of judges, and poor infrastructure. To address these issues, alternative dispute resolution procedures were developed.
The 1908 Code of Civil Procedure was updated in 1976, and mediation for family disputes was first introduced. This amendment required courts resolving family conflicts to make an effort to reach a resolution when they thought it was feasible considering the facts and circumstances of the case. After a number of regulations pertaining to personal law disputes were modified, parties were urged to utilize conciliation techniques[8]. After family courts were established, formal evidence could not be presented without first requiring mediation. These family courts also appointed permanent counselors.
In regards to family mediation, the Supreme Court eliminated stringent procedural and evidentiary requirements while emphasizing the value of reaching socially desirable results. Mediation was encouraged even in cases involving criminal acts involving cruelty in the married home or domestic violence.
Private and voluntary conciliation was established for the resolution of business disputes by the Arbitration and Conciliation Act of 1996. The conciliator's role in this process was more interventionist than in mediation. A formal agreement between the parties is required before conciliation can start. The Act gave parties the option to choose the conciliator, the conciliator's nomination procedure, and the conciliation's venue. The parties could agree on the procedures to be followed during conciliation proceedings, which were not subject to the Code of Civil Procedure and Evidence Act. During the conciliation process, arbitration and litigation were not permitted by the parties. Any comments, concessions, or admissions made during the conciliation process were not admissible in later cases, and the procedures were kept confidential.
A procedure for creating, approving, and upholding conciliation settlement agreements was established by the law. These agreements carried the same weight and legal standing as arbitral awards. However, in order for settlement agreements to be enforceable, they had to go through a set of requirements,such as being signed by both parties and verified by the conciliator.
In order to expedite the settlement of disputes and lessen court backlogs, Section 89 of the Code of Civil Procedure was adopted in 1999. This section grants civil courts the authority to refer parties to alternative dispute resolution(ADR) techniques when settlement ingredients are present. This clause allowed references to Lok-Adalat, conciliation, arbitration, mediation, and judicial settlements. The Supreme Court upheld the legality of this particular section,highlighting the significance of resolving cases beyond the conventional legal system.
But the court ordered the Law Commission of India to develop guidelines for court-referred mediation under Section 89, pointing out that there was no legal framework for mediation. The Law Commission's recommended mediation guidelines were encouraged to be implemented by High Courts by the Supreme Court. Both the mediation process and the procedures for choosing an ADR method were outlined in these rules. They stressed that settlement agreements are legally binding,that mediators serve as facilitators, and that mediation should have a time limit. In addition, the Supreme Court rewarded parties by returning court costs in cases where mediation produced a settlement, and it established guidelines for implementing Section 89 referrals even in the absence of consent from the parties.
After being approved by the Lok Sabha on August 7, 2023, and the Rajya Sabha on August 1, 2023, the Mediation Bill of 2023 was signed into law by the President on September 14, 2023. The Mediation Act of 2023, also known as the"Act," was enacted by the Central Government and applies to the entire country of India through Notification No. CG-DL-E-15092023-248775. On the other hand, the Central Government may announce the date on which the Act will take effect.
[1] MEDIATION Definition & Legal Meaning. The Law Dictionary:Featuring Black’s Law Dictionary, 2nd Ed. Retrieved October 10, 2023, from https://thelawdictionary.org/mediation/
[2] Lincoln, A. (2008). Notes for a law lecture. In Collected works of Abraham Lincoln (Vol. 2). Wild side Press.
[3] Chatraborty, A. (2019). Resolving disputes with a healing effect: the practice of mediation in India. Brazilian Journal of Alternative Dispute Resolution, 4(8),61-84https://rbadr.emnuvens.com.br/rbadr/article/view/156/119
[4] McGuigan,R., & Popp, N. (2007). The self in conflict: The evolution of mediation. Conflict Resolution Quarterly, 25(2), 25(2), 221-238, http://doiorg/10.1002/crq.205
[5] Panchayati Raj is the oldest form of local administration in India. Panchayat is anassembly (ayat) of five (panch). Panchayats were traditionally made up of aged and wise persons chosen by the local community to settle disputes between individuals and villages. Mukhya or Sarpanch used to be the title of the panchayat's leader. This role is usually filled by the individual who is the oldest or most senior. (For further information, check What Is a Panchayat (pria.org))
[6] Sitanna v. Marivada Viranna (1934). AIR PC 105.
[7] Ramchandran, G., & Pandey, Y. (2020). Evolution and current scenario of mediation in India. Journal of Legal Studies and Research,6(5).
[8] Order32-A which was inserted in the Civil Procedure Code, 1908 by the Code of Civil Procedure (Amendment) Act, 1976.
