Multiple dimensions of mediation

A good settlement strategy evolves depending on the interplay between different aspects of the dispute, write Shaneen Parikh and Shalaka Patil

India has grappled with the issue of lengthy delays in the court system, eliciting numerous attempts at speeding up the process, including setting up specialized tribunals and commercial courts and filling in vacancies to realize a full bench strength. However, justice may be best served if effective techniques are employed to resolve a dispute even before it formally enters the judicial system. The current Chief Justice, in a recent speech, emphasized the increasing importance of alternative dispute resolution (ADR). Given the labyrinthine court system in India, litigation takes time, which he recognized as being a “big deterrent”, necessitating a strengthening of ADR mechanisms, “such as through arbitration, mediation and conciliation, especially pre-litigation mediation”.

Mediation and conciliation

Mediation is not a recent concept in India. It has historically been undertaken by the older (presumably wiser), village elders, to resolve disputes between residents of the village. The Indian Arbitration Act, 1899, was the first formal statute dealing with alternative dispute resolution – by way of arbitration (initially applicable only to the Presidency towns). The Arbitration Act, 1940, which followed did not contain provisions for mediation/conciliation. In 1996 when the arbitration regime in India was overhauled, part III of the Arbitration & Conciliation Act, 1996 (A&C act), introduced provisions dealing with conciliation. Conciliation is referred to as assistance rendered to disputing parties by the conciliator, “in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute”. Although the words conciliation and mediation are often used interchangeably, the A&C act does not refer to mediation.

Shaneen Parikh is a partner and Shalaka Patil is a principal associate at Cyril Amarchand & Mangaldas