The Author, Manoj Sharma, is a practicing advocate who has been practicing in the Supreme Court of India and the High Court of Delhi at New Delhi for the past more than 25 years and also a trained Mediator in Delhi High Court Mediation and Conciliation Centre, New Delhi.
Samadhan/Settlement/Mediation is a very old and conventional Indian system for the resolution of disputes amongst the villagers/parties. The headman and the reputed old persons were chosen to mediate by the parties to the disputes to get their matter settled/resolved through such an independent headman or old reputed persons of the locality/village. Though such amicable settlements/compromises had no enforceability or any legal sanctity, they were agreed upon and accepted as tradition; however, such settlements/compromises were open to disagreement/violation in the future, at the convenience of the parties. With the change of time and development of the legal system and introduction of laws and legislations, disputes and conflicts have not only arisen many times but have also changed into more complex and complicated relationships, including commercial and industrial disputes.
The more complex the disputes, the more complex the process of Resolution and Adjudication. The Judicial System is trying hard to compete with the fast-growing legal disputes. However, the Judicial System and Courts are flooded with litigation, which has resulted in backlogs due to the time-consuming and complicated Procedure.
The long-drawn-out procedure and disposal of disputes in the judicial system pose a challenge. The backlog and delaying disposal of the disputes, more particularly commercial and Industrial disputes, has a cascading effect on the economy. In the time of globalisation, to keep pace with the development and growth of the economy, it is imperative and mandatory for a country to have an effective mechanism for the disposal/resolution of commercial and industrial disputes, as the same has a direct effect on the Foreign Direct Investments.
The mediation and conciliation is a growing effort to establish a system that is not only time-bound but also cost-effective. More importantly, the resolution of disputes attains finality, which is powered by judicial approval. The best part of the Mediation and Conciliation is to evolve a Consensual Justice where the parties in disputes have full control to lead their disputes with effective participation and their resolution.
The necessity for Mediation and Conciliation is felt all over the judicial system to give a platform of communication by a well-recognised platform to act as a Settler/Mediator who can help the parties to the disputes to open a dialogue in a friendly and conducive atmosphere. The need is felt and well addressed in Section 89 of Code of Civil Procedure which provides and governs the settlement by means of arbitration, conciliation, judicial settlement and mediation, while Section 89 is a substantive provision, Order X, Rule 1–A, 1 -B and 1-C is enabling provision for referring the matter to alternative dispute resolution.
The Legislation realizing the urgent need for Alternative Effective mode of Consensual Justice Delivery System, introduced a very effective Provision that is Section 12A in The Commercial Court Act, 2015 which mandates the Pre-Institution Mediation before filing a Claim/Suit of Commercial nature to resolve the disputes through the Mediation and Settlement, unless the urgent reliefs in the nature of Injunction/Stay are prayed for before the Court of law. By introducing the Statutory Provisions, the Mediation and Settlement is given more legal teeth as an Alternative Effective mode of dispute resolution.
The Mediation and Conciliation is a legal platform which is established by the Legislation and powered by the Judicial Authorities. The process of resolving disputes at the pre-litigation stage as well as at the stage of pending litigation is substantially and voluntarily adopted by all the stakeholders, whether personal, commercial or matrimonial disputes.
There is no doubt that Mediation and Conciliation are proving to be effective phenomena from the District Courts to the Constitutional Courts. As we say, the lawyers are also the officers of the Courts and play a vital role in the litigation and dispensing justice through the Courts. The Judicial System is recognizing the efforts put forth by the lawyers as Mediators and in some cases expert persons from the field of Commercial/Industry establishment of repute are chosen with formal exhaustive training to be the trained Mediators who help the parties to resolve their disputes in a conducive atmosphere and help them to boost their potential to settle/resolve their disputes themselves.
To make the Mediation and Settlement more of a part of the Legal System, experts are being chosen and trained to act as mediators in Commercial Disputes by providing them with special formal training and programs. The exhaustive stage-by-stage training are provided by the Judges, Senior Advocates, and by other legal luminaries for the better understanding of law and its Procedure.
That recently Hon’ble High Court of Delhi in one of its Judgment in (2023 Latest Caselaw 2136 Del) titled as “Sh.Chhatter Pal & Ors versus State & Anr.” has issued very comprehensive guidelines to be followed while preparing the Settlement Agreement pertaining to the matrimonial disputes with special reference to clauses dealing with criminal cases. The Court further resolved that Settlement Agreement in Mediation be also written in vernacular language so that the Parties to the disputes may understand better. The said guidelines are reproduced herein below.
“””(i) Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement.
(ii) Avoid Ambiguous Terms: The terms such as 'respondent', 'respondents', 'petitioner' or 'petitioners', in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.
(iii) Include All Details: The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.
(iv) Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.
(v) Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.
(vi) Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfilment of this condition.
(vii) Follow-Up Documents: The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.
(viii) Cases involving 498A IPC: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It is also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.
(ix) Criminal Complaints/Cross-cases: Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.
(x) Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.
(xi) Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints.
(xii) Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement””””
The process of Mediation has been conceptualized for quite some time now but at the same time it is powered by the Judicial System by making it a wonderful resolution mechanism in the fast growing judicial system. The Mediation and Conciliation Center consisting of trained Mediator has been proven as a boon to many litigants who were into long drawn pending litigation but the Mediation has cut the cost and time effectively. The most important aspect of the Mediation is, it is re-establishing faith and satisfaction in the general public to the Judicial System. Over a period of time, the Judicial System has realized the important and indispensible role and potential of mediation in eroding the huge pendency and backlogs of pending cases in the Judicial System.
The President of India Smt.Droupadi Murmu and the Chief Justice of India, Hon’ble Mr.Sanjeev Khanna, during the launch of the Mediation Association of India, stressed the urgent need and concern to adopt Mediation as an integral part of the justice-delivering system. His lordship very emphatically observed and stressed “Mediation to Resolve Conflicts, Lower the burden on Courts”.
The Chief Justice of India further while addressing in the convocation ceremony in Nagpur stressed on the importance of the Mediation and emphatically observed “Not All Disputes Suited for Courtrooms, Mediation is Mode for Redressal” and also said “Each Case has to be seen not from the Eyes of Legal Issues but as a Human Story”
The Chief Justice said the Mediation is an essential part of the system and emphatically stressed “The Mediation to resolve Conflicts, lower the burden on Courts”. He further observed that “Mediation can Enhance both the ease of Doing Business and Ease of Living and the same is not a lesser Form of Justice”. The Hon’ble President of India and the Chief Justice of India thoroughly stressed the importance of Mediation in the changing times.
The beauty of the Mediation and Conciliation is that none of the parties to the disputes looses anything from the cost to the physical and mental harassment. The process of Mediation is always a win-win situation to the stakeholders of the disputes.
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