THE FAILURE OF A MEDIATION PROCESS, NEED FOR STRICTER MEDIATION LAWS AND THE IMPACT OF A WILFUL NON-COOPERATING PARTY IN A MEDIATION PROCESS
– Rajdeep Mantha & Pushkar Deshpande
Parties to a dispute have adopted Alternate Dispute Resolution processes for a long time. The very object of adopting dispute resolution mechanism outside court was to avoid the conventional litigation process in the already overburdened justice delivery system. Further, ADR also gave an opportunity to the disputing parties to expedite results and keep their disputes confidential. Sec 89 of the Civil Procedure Code gave a Court the power to analyze the facts and circumstances of a case and determine whether a matter is fit for mediation (or any other prescribed method of ADR). It is quite obvious that a court of law would be well equipped with the wisdom to determine whether a matter is fit for ADR in the form of mediation or not.
However experience has shown that certain parties in a mediation process are unwilling to co-operate with the process, which leads to an impasse and the consequent failure of mediation. Courts have often criticized the behavior of such parties; as such behavior defeats the purpose of mediation. Such situations have prompted Courts to contemplate that a penalty should be imposed on the non-cooperating party. However, the laws governing mediation at present do not contain any provision, which empowers a court to impose penalties in such situations.
This paper attempts to analyze whether there is any need for a law, which empowers the Court to impose penalties on willful non-cooperating parties in a mediation process. It also attempts to analyze what prompts parties in India to reject a mediation process and what other factors are responsible for the failure of a mediation process. Although the process in discussion is an alternative option, however, the amicable nature of the process gives rise to a question as to whether there is any need for stricter laws to govern the said process.
The Arbitration and Conciliation Act, 1996 was the first statute to introduce the Indian legal system to mediation. Introducing Sub-section (1) of Section 30 of the Arbitration and Conciliation Act, 1996, it encourages the parties involved to explore the option of mediation and conciliation despite arbitral proceedings having started and thereby empowers the arbitral tribunal to use mediation as a means of dispute resolution. Nevertheless, due to a lack of proper enforcement (or even formation) of any specific rules of mediation, this provision promoting mediation has almost been defunct.
This however, was rectified to a certain extent by the introduction of Section 89 of the Code of Civil Procedure, 1908 (introduced first in Section 30 of the Arbitration and Conciliation Act, 1996), which was concerned with exploration of the different methods of dispute resolution. Also, the notion of “judicial mediation” was first introduced by this section”. Relying on this, the Court, where satisfied that the circumstances are such that the parties can try and settle their disputes amicably in ways if tried, the Court may encourage the parties to seek out the methods of mediation, arbitration and other forms of alternate dispute resolution.
The growing importance of Mediation can be observed from the various findings of the Apex court. The court in the landmark case of case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions held that all cases relating to trade, commerce and contracts, consumer disputes and even tortious liability could normally be mediated. In Salem Advocate Bar Assn. (2) v. Union of India , the Supreme Court established a committee to draft rules, which govern mediation. Many High Courts in the Country adopted the draft rules framed by the committee.
Very recently, the Chief Justice of India, himself suggested the Ayodhya dispute to be referred to Mediation. Following in the same footsteps, the Law Commission of India in its 129th Report recommended that it should be made obligatory to refer matters for mediation by Courts. Despite being successful in various countries, mediation has not been able to make much headway in India mainly due to the lack of awareness regarding mediation and its benefits. It does seem to appear that there has been a lack of initiative on the part of the government, including that on part of the legal entities to spread awareness about mediation.
In India, even though the judges have been quick to identify the increasing usage of mediation as a helpful means for reducing case backlogs and delays, yet, lawyers in India have not been able to respond to mediation fast enough. Also, the current court assisted mediation centers hardly cater to this aspect of reaching out to the people.
CAUSES FOR FAILURE OF MEDIATION
Although Mediation as a form of adjudication process is quite effective, there are a number of factors because of which a mediation process fails. The following are the various causes and situation due to which a mediation process fails.
CHOICE OF MEDIATOR
Choosing a correct mediator is the first and foremost step that arties must take. The mediator has to have the right mix of legal, technical and interpersonal skills for the dispute at hand. He/she will need to secure the trust and respect of the parties quickly and build rapport. To be impartial is essential. As per the current provisions, the parties are free to appoint any person as a mediator. There is no, specific criteria for the appointment of a mediator. It is however, very important that the mediator must be an expert in the concerned field of work. The mediator’s neutral approach towards the parties and the dispute is of utmost importance. The impartiality of a mediator cannot be compromised with, as it would result in sever injustice.
POOR MEDIATION SKILLS
Poor mediation skills of the mediator often lead to failure of mediation. It is the mediator’s role to approach the parties and show them a pathway, which leads to settlement. The fulfillment of this goal depends upon the skills of the mediator. The techniques or standards of mediation practice adopted by the mediators for negotiation between the parties and for settlement of dispute has a pivotal role to play. The effort of the mediator is to ensure that through the mediation dialogue parties arrive at a solution, which is in their best interest.
As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement. This, the mediator can achieve if he understands and perceives the nature of his function correctly. As a facilitator, the mediator has to understand the underlying issues between the parties. In order to do so, the mediator has to open up communication between the parties and between the parties and himself. Choosing the mediator has to have the right mix of legal, technical and interpersonal skills for the dispute at hand. He/she will need to secure the trust and respect of the parties quickly and build rapport. To be impartial is essential.
ABSENCE OF LEGISLATION
Another obstacle in the success of mediation process is the absence of any legislation, which governs mediation. Although Section 89 of the Civil Procedure Code, 1908 gives powers to a Court to refer a matter to mediation, other than High Court Rules, there isn’t any legislation that specifically governs mediation. Absence of legislation is so far the biggest issue in successful implementation of Mediation process. It is important to have a specified legislation to regulate the process. In absence of any particular legislation, it has become an ambiguous procedure that fails to attain its objective. Absence of any regulation makes it a vague procedure,, sometimes enforced, by the court. In such a case, the courts attempt to refer the parties to a mediation becomes a futile effort. This again fails to give effect to the intention behind the intent of section 81 of the Civil Procedure Code, to reduce the burden on the Courts.
An adamant party is also responsible for hampering the mediation process. If the parties to a dispute have no intention to resolve the dispute, then naturally, the mediation will fail. A mediator or any other legal entity must counsel the parties to a dispute on what the purpose of mediation is and how it will benefit the parties. Only after realizing the purpose of mediation will parties want to successfully go through the mediation process.
CONFRONTATION IN JOINT SESSIONS
Joint Sessions between two parties to a dispute can also result in failure. A Joint session in the course of mediation can be confrontationist. This can often result in failure of mediation. Adversarial presentations can evoke strong negative feelings and disrupt the pursuit of a rational mutually acceptable compromise. Many mediators disfavor joint sessions except in rare cases.
In many mediation matters dealing with family issues, there is an element of spite and hostility. Such hostility makes it difficult for parties to act rationally and arrive at the best possible solution. In hostile situations, parties pay no heed to the grievances of the opposite party.
ROLE OF A NON- COOPERATING PARTY
According to the Webster’s Dictionary, Co-operate means ‘to act or work with another or others’. Therefore Non Co-operation would mean ‘not to work with another’. Mediation is an adjudication process where two parties engage in dialogue and compromise to arrive at an amicable solution. Based on the above meaning of non-cooperation, a non co-operating party in mediation would be one who is not ready to compromise and doesn’t wish to arrive at any amicable solution. If the parties do not arrive at any amicable solution then the mediation fails.
The reasons for failure of a mediation can be manifold: mistrust or unwarranted suspicion of one party; obstinacy, unwillingness to budge from previously held entrenched positions; plain uncouth or unpleasant behavior of a party, to spite the other.
CAUSES FOR NON CO-OPERATION OF A PARTY IN MEDIATION
It is to be noted that mediation is most popular in matrimonial and family law disputes, such as divorce, partition, and restitution of conjugal rights, protection of women from domestic violence, and dowry prohibition cases, contributing to nearly 80 per cent of the mediation docket in Bengaluru.
The emotional impact of issues such as those stated above on a party can be a cause for its non- cooperation. In Gandhimati v. Inspector of Police and Ors , the Petitioner filed a Writ Application before the Court praying that her daughter should be transferred to her Custody. However, the daughter refused and wished to stay with a person she had been living with. An emotional drama ensued in Court after which the Court referred the matter to mediation. However, the mediation failed, as the petitioner was adamant and did not wish to stay with the Petitioner.
In K.V Sindhulathavs K. Prakasan , when the husband filed for an application for restitution of Conjugal Rights, the wife refused to reside at the matrimonial home and made allegations inter alia of cruelty. However, there was no evidence, which substantiated her claim. In course of mediation, she decided to return to her matrimonial home by making certain demands. However, she reverted back to her old position and continued to make an adamant demand, not to stay with her Husband. The Court held that the wife miserably failed to substantiate her claims and upheld the order of the Family Court. The above cases fall within the causes of failure of mediation as laid down in SmritiMadanKangsara’s case.
In certain cases the situation is such that no compromise can be reached on a situation. It is unlikely that any compromise will be reached in a case where a husband was beating his wife. (Suresh Kumar vsKanti). It is also unlikely to resolve a dispute where there was an irretrievable breakdown of the marriage. In certain commercial cases, parties may not want to make any meaningful attempt to resolve their dispute through mediation. In Smt Shanti Devi vs Office of Insurance Ombudsman , the Insurance Company rejected the claim the deceased Insured’s wife. When the Ombudsman referred the matter to mediation, the Insurance Company’s representative was not willing to reconsider the claims and subsequently the mediation failed.
As stated above, mediation requires dialogue and compromise. Based on the above cases, it is clear that an adamant party can significantly hamper the mediation process.
IMPOSITION OF PENALTY ON NON-COOPERATING PARTY
It is to be noted that under Rule 8 of the “Commercial Courts (Pre institution Mediation and Settlement) Rules, 2018”, parties to a mediation are required to participate in “good faith” and “with an intention to resolve the dispute”. Under the ICC Mediation Rules parties are required to act in good faith . High Court Mediation rules across the Country also require that parties should act in good faith and attempt to resolve the dispute. The mediation rules of the Bombay High Court gives the power to Courts to impose costs if a party is absent for mediation proceedings without sufficient cause.
It is to be noted that the original draft of the rules framed by the Salem Committee also recommend an imposition of cost on a party who is absent for mediation proceedings without sufficient cause. However, many High Court mediation rules do not impose any costs on the parties in case of the abovementioned default. Mediation is a process, which gives both parties a lot of power to arrive at a settlement. If one party is not satisfied with the settlement, he has the right to be firm about what he/she wants. However, a court carefully assesses the nature of a matter before recommending the parties to resolve their dispute through mediation. The Supreme Court has laid down the importance of alternate dispute resolution in a number of judgments. If a Court believes that a matter can be resolved through mediation then it does so with significant experience in the respective field of law. Therefore, if a party remains absolutely adamant and refuses to arrive at any amicable solution, then a court may after looking at the facts and circumstances of the dispute, impose costs on the parties. Imposition of costs on a party’s conduct in mediation is not novel to Indian ADR law. Therefore there needs to be an effective legislation, which penalizes a non-cooperating adamant party in a mediation proceeding
Based on the above data it is clear that India needs an effective legislation, which lays down an effective structure for conducting mediation. The legislation should also include provisions for training centers and qualifications for mediators. Further, the legislation should also include provisions, which imposes a penalty on parties who are willfully non- cooperating and jeopardizing the mediation process. Intentional non co-operation should be treated as contempt if the parties have been referred to the mediation by a courts order. A penalty for a non co-operating party will ensure that the process of mediation is successfully implemented and the intent behind section 81 of the Civil Procedure Code is not defeated.