In 2002, the Indian Civil Procedure Code, section 1908, was amended to require courts to refer cases for Alternative Dispute Resolution, including mediation, whenever there is an element of settlement in a case.
Thereafter, a judgment of the Supreme Court in the Afcon’s case held that Courts could refer cases mandatorily to mediation. This judgment observed that conciliation and mediation are synonymous. Taking recourse to this observation, when parties in private mediation seek enforceability beyond a binding contract, the mediator converts the mediated settlement into a conciliator’s award, which is binding and enforceable under the Indian Arbitration and Conciliation Act 1996. Thus, the judgment gives the legislative backing for private mediation.
There has been a sustained effort from the Indian government through legislation to incorporate provisions for amicable dispute resolution and mediation. The Micro Small and Medium Enterprises Development Act of 2006, The Companies Act of 2013, Real Estate Regulation and Development Act of 2016, Consumer Protection Bill of 2018, and the most recent ordinance to the Commercial Court Act (Ordinance 2018) makes it mandatory for commercial parties to try mediation prior to instituting a commercial suit. Clearly, there is a commitment to integrate mediation into the legal system in India.
Court annexed mediation centers have been established in many High Courts and mediation services are provided free of cost to the parties. Many experienced mediators from court programs are now establishing private mediation practice.
By Laila T. Ollapally, Justice K. Kannan (Ret.), Justice M.L. Mehta (Ret.), and Chitra Narayan, Senior Fellows-India, Weinstein International Foundation