October 14, 2024
There used to be litigations and disputes from ancient days among people and such litigations and disputes used to be amicably resolved by a group of village heads at the community level. Such experienced mediators used to be called as Punches. Most of the times the villages used to be the nodal points. The procedure was simple and the mediators and the parties used to come to certain acceptable logical conclusions. Transparency, community approval and acceptance of the parties used to play key role in resolving the issues. There was no chance of pendency of cases and there was no delay in justice. With passing of time our county was invaded, enslaved and the best practices and procedures once followed became obscure. We came in to a new era of courts and justice. The country have grown into 40 crore population with divergent cultures, believes and laws. The limited resources and procedures of justice created pendency crores of cases in the courts.
Realising the above facts, we have welcomed the old procedure, crafting it to suit the present generations in the form of ADR procedures. I trust the best of the ADR is MEDIATION. This voluntary process helps the needy to resolve their conflicts by negotiations. Here the participants together with the assistance of neutral trained mediator develop alternate options aiming to reach the amicable and consensual agreement accommodating the needs of all the parties. Free will, transparency, confidentiality, self-respect, self-confidence, empathy, reunion, win-win situation, retention of relationship and happiness being the core factors, Mediation stand the best of the ADR procedures which I love to practice.
LPS Counsel is established to provide Legal and Psychological services to the needy at a low cost. Providing legal advice / legal support through courts, providing psychological services, helping the parties to resolve their disputes amicably through counselling, mediation, arbitration and other ADR procedures is the basic objective of LPS. Both the founders of LPS C are advocates, counselling psychologists and trained mediators and arbitrators. Sri GVGR is a High an experienced High Court empanelled mediator.
If there is a case in any Court and if the parties are willing to resolve their case through Mediation, they can (all / both the parties together) can approach LPS C, have a primary consultation and submit a letter to the court that they want to try to settle their dispute through Mediation at LPS C with the help of a neutral and trained Mediator. With the approval of the court, they can approach LPS C and resolve their dispute amicably and the resulting Mediation Agreement / MoU may be submitted to the court. The court will honour the Mediation Agreement / MoU and after examination the court gives the same as a judgement.
The disputing parties can avoid fighting their case in the courts. They can together walk-in LPS C on an appointed date and time and attend private mediation sessions as per norms of Mediation under the guidance of well trained and experienced mediators. The process of mediation may take 5 to 8 sessions to come to an amicable settlement. The final registered mediation agreement or MoU signed by the parties and the witnesses will become a binding on the parties for ever.
Mediation in India dates back to the Vedic age. In ancient days, disputes were resolved in Panchayat at community level by Panch Parmeshwar, who acted as neutral third party.
Informal panchayats were used to resolve disputes between the parties Panchas used to settle disputes informally between the erring individuals or groups. With the onset of the British colonialism, mediation began to be recognized as a formal and legalized ADR mechanism.
Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalats in the Indian Judicial system. Enacted in1987, the Legal Services Authority Act gave a statutory status to the Lok Adalats in India and the Lok Adalats have been awarded the status of a civil court.
The Arbitration and Conciliation Act was enacted in 1996. It laid down a clear definition for conciliation mediation. Section 89 of the Civil Procedure Code (CPC), 1908 was inserted by the CPC (Amendment) Act, 1999 with prospective effect from 1/7/2002. As per the suggestions of ISDLS, new reforms were introduced in 2002 in the form of amendment of section 89 of the CPC which was disputed.
As per the Mediation Bill passed by the Rajya Sabha on 2nd Aug 2023 and by Lok Sabha on 7th Aug 2023, Mediation is a structured process where a neutral person uses special techniques to assist the parties in arriving at an amicable settlement of their disputes.
In India, there are Private mediation do not have clear structure and legal recognition, due to which people are hesitant to participate in the private mediation. Mediation Act 2023, is aiming to provide a solid legal framework and improve, institutionalise and formalise mediation process to improve the efficiency and effectiveness of Mediation.
Mediation is becoming popular for the last few years in India. Disputing parties are not much aware of Mediation and the processes involved. They are not even aware that Mediators trained by competent and approved organisations are available and they can help in generating options for resolving the disputes in an amicable way by negotiations within less time and at a very low expenditure. The settlement thus arrived with the help of a trained mediator as per norms of Mediation and condensed into writing in the form of a registered agreement or MoU will stand as a very good document in the court of law.
In general practice the disputing parties are being sent for counselling by police to available Psychologists. Lokadalats are the chief & practical source of ADR procedures being promoted by courts and the police where the compromise among the parties and amicable settlements are happening. All the district courts and High Courts have established Mediation and Arbitration Centres under District / State Legal Service Authorities. Trained advocate mediators are empanelled with all such courts and most of the suitable cases are being sent for Court annexed mediation.
The parties who come attend court annexed mediation do not have necessary knowledge and skill to use the platform of mediation aptly. They attend the mediation with half will to see whether any thing is possible. They generally have already fought for years in the courts. They have already spent good amount of money towards court fee, advocate fee, transportation to attend the courts. Their social and emotional status and egos are generally at a higher state. Advocates of the parties have already made their parties that they are at the edge of winning. These things stand as hindrances for compromise and settlement of the cases through mediation.
There is a need of pre-mediation counselling to the parties to prepare them for successful mediation. The fundamental principles of mediation are to be explained to the parties before they appear for mediation. Inculcation of positive attitude towards mediation, ability of analysing wants and needs, empathy and listening and communication skills to be followed in the process of mediation are to be made clear in the pre-mediation counselling to the parties, to make the mediations successful.
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