SPEECH BY HER EXCELLENCY THE PRESIDENT OF INDIA SHRIMATI PRATIBHA DEVISINGH PATIL AT THE INAUGURATION OF THE 'NATIONAL SEMINAR ON MEDIATION'
New Delhi, 7th July, 2012
Ladies and Gentlemen,
I am happy to inaugurate the 3rd National Seminar on Mediation being held under the auspices of Mediation and Conciliation Project Committee of the Supreme Court of India in collaboration with the High Court of Delhi. I convey my greetings to all present here. This occasion provides an excellent opportunity to share views and experiences on mediation, a very important Alternative Dispute Resolution method.
Under our Constitution, the judiciary is one of the fundamental pillars of the State. Our judiciary through its interpretations of legislation, adjudication of disputes, and its numerous well-considered and thoughtful judgments has established itself as a trusted institution. People have thus, approached the courts seeking justice and settlement of disputes in a large number of matters. This has also resulted in great pressure on the judicial system. Also, due to many reasons, access to justice for all, in particular the poorer sections, is yet an unachieved objective, which must be pursued. Neither the judiciary nor the Government is unaware of these challenges. There is a constant effort to improve and improvise, to expedite and fast track cases to deal with the pressures and stresses on the justice dispensing system. It was in the context of reducing the pendency levels in litigation and delays in disposal of cases that Section 89 of the Civil Procedure Code was amended. It enabled Courts to refer disputes for arbitration, conciliation, mediation or judicial settlement through Lok Adalats. This has brought a focus on Alternative Dispute Resolution mechanisms for settlement of disputes.
The logic in adopting the approach of mediation is based on the fact that it is an amicable way of bringing parties driven asunder, to sit together and find solutions to their differences. Mediation, indeed, has a long and varied history in almost all cultures of the world. It has existed in different kinds of formats that essentially provided conflicting parties an opportunity to state their case and efforts were made to reach a consensus. The modern-day mediation process is similar in the sense that it strives for a consensus. Lawyers must act as peacemakers and their first attempt must always be to resolve disputes. They can draw inspiration from Gandhiji's example. He spent a large part of his time during the twenty years of his practice as a lawyer, in bringing about private compromise of hundreds of cases.
In the rapidly changing contemporary world, the methods adopted to resolve increasingly complex issues will determine the maturity and the stability of the system. People are now looking for early solutions that can put an end to their differences, so that they can move forward to seize new opportunities, and not be held back due to pending disputes and non-clarity about their claims. It is here that mediation by offering a simple, quick and easy solution becomes relevant. However, there can be some questions in the minds of those who are looking at the mediation option. Whether their case is eligible and qualifies for a mediation process. What is the status of the outcome of mediation vis-a-vis judicial pronouncements? What are the advantages of mediation? The issue of concern for policy makers is whether the system has trained personnel and is adequately equipped to handle mediation.
The mediation option can be adopted for all civil disputes - family matters, in commercial differences, in joint ventures, partnership and professional liabilities, among many others. Hence, mediation can be availed of in a broad range of disputes. Proceeding ahead with mediation is voluntary and can happen only if parties agree to it. Mediation should be available at every level, most particularly at the district level to enable easy access to this option for contesting parties. Also, Government is the biggest litigant and there could be a system by which mediation could be effectively used for settling disputes where Government and its agencies are a party. Some innovative thinking in this aspect is necessary.
Disputes arise on account of differing angles of vision. Mediation attempts to reduce these divergent perceptions. A mediator must act as a catalyst to bring the disputing parties together, so that parties can become partners in finding a solution. This creates an opportunity to arrive at a win-win formula as mediation is built around a culture of give and take. When a dispute is resolved through this process, there is no winner or loser, for the parties agree to the solution, whereas in litigation there is always a loser. This is a positive outcome. A resolution found by the parties usually satisfies them and experience, the world over, has shown that such cases are rarely reopened. There are other advantages of mediation. Being a private process, it offers confidentiality which is generally not available in court proceedings. This allows parties to discuss matters frankly and openly. Mediation also avoids hostility, and this offers an opportunity to restore trust between them.
Another benefit of mediation over traditional court proceedings is that it has procedural flexibility. It can be conducted in a manner agreed to by the disputants. It may be a discussion, a meeting or more formal negotiating format. The parties can terminate the process at any point of time or ask for a change in mediator. Most importantly as compared to court procedures, considerable time and money is saved in mediation procedures.
What about the status of the outcome of mediation? If mediation succeeds, then the agreement signed by parties is sent to the Court without mentioning what transpired during the mediation proceedings, and the Court passes an order confirming the terms of settlement. Thus, those who take recourse to mediation can be assured that the process has the authority of a court judgment. In the event, that there is no agreement, the mediator only records that the process has been unsuccessful without any opinion or elaboration, so that the Court is not prejudiced in any manner. The courts take up the matter again. As correctly said by Justice Sandra Day O'Connor, a retired Judge of United States Supreme Court, "The courts should not be the places where resolution of disputes begin. They should be the places where the disputes end, after alternative methods of resolving disputes have been considered and tried."
I am told that approximately 2500 mediators have been trained, over 2 lakh cases have been referred to 337 mediation centres spread over the country. The Supreme Court of India has a mediation centre which sends the message that even at the apex court level, settlement through mediation is possible. This is good and should encourage mediation, which can definitely become a big movement in India, as an effective mode of settlement of disputes. There should be a campaign to create awareness about the availability and advantages of mediation. I am glad that a Mediation Manual has been released today. This should be helpful for promoting understanding of how to conduct the process of mediation, and interact with parties and the importance of adhering to basic principles like confidentiality. All this will make mediation effective and help build confidence among disputants about adopting this option. I believe that education in law schools must also train young minds to be as much listeners of the other side, as articulators of their own clients' grievances. It should teach them how to convert an adversary into a co-player of the same team. Future success of mediation will depend on the ability of young lawyers and judges of the next generation.
In the end, I wish the Conference success. I am confident that many innovative ideas will be generated in this Conference, as will greater understanding of the concerns of the parties.