‘Devise law to make mediation agreements binding’: CJI SA Bobde
Mediation is an alternative method for resolving disputes between persons without resorting to the courts. In mediation proceedings, a mediator who is a neutral third-party facilitates a dialogue between the two sides in a dispute and works with them to help arrive at a settlement.
Chief Justice of India (CJI) SA Bobde on Saturday called for the introduction of a law to ensure that all settlements arrived at in mediation proceedings are binding, and spoke in favour of compulsory pre-litigation mediation to reduce the backlog of cases in courts and save the time of both the courts and litigants.
The CJI was speaking at the third edition of the international conference on Arbitration in the Era of Globalisation, organised by the Indian Council of Arbitration and the Federation of Indian Chambers of Commerce and Industry.
“I think the time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for the biggest drawback in a mediation agreement, that is to say the un-enforceability of an agreement arrived at a mediation, would ensure efficiency and also reduce the time pendency for parties as well as the courts. Maybe if some method could be found for certifying that an agreement has been freely entered into and for making it executable like a degree, mediation could become the most effective ADR (alternative dispute resolution),” he said.
Mediation is an alternative method for resolving disputes between persons without resorting to the courts. In mediation proceedings, a mediator who is a neutral third-party facilitates a dialogue between the two sides in a dispute and works with them to help arrive at a settlement.
However, there is no law regulating mediation in India, and the agreement arrived at after mediation is non-binding. Disputes are many times taken to the courts even after mediation, resulting in loss of significant time in mediation without any fruitful outcome.
The CJI also spoke about the importance of arbitration, calling it the most preferred mode of privately resolving disputes between parties.
“Today, arbitration plays an essential role in the global infrastructure of international trade, commerce and investment. As an integral member of the global community and a trading and investment giant, how India engages with international arbitration has important ramifications on international trans-boundary flows of trade, commerce and investments as a whole.”
He, however, noted that institutional arbitration has met with limited success in India and a robust bar dedicated to arbitration is critical for the development of institutional arbitration.
“..it is clear that for institutional arbitration to expand its footprint in India, it would require concerted support from all stakeholders, in particular members of the legal profession. A robust arbitration bar is critical to the development of institutional arbitration in India as it would ensure availability and accessibility of practitioners with knowledge and experience in the field of arbitration”, the CJI said.
Institutional arbitration is when an institution specialising in arbitration takes over the dispute and administers the arbitration proceedings between parties.
The problem, Bobde said, was that ADR mechanisms such as arbitration and mediation were seen as secondary options and unless that mindset changes, steps to reform and promote such mechanisms will remain ineffective.
The CJI also called for efforts to explore the use of artificial intelligence (AI) in arbitration, stating that AI-assisted arbitration holds immense promise for the arbitration community.
