Authored by - Ram Kumar
Designation - student, Chanakya National Law University, Patna
Mediation emerged as the most amicable tool to resolve the disputes between parties. The distinguishing feature of mediation is that it come up with innovative solution by maintaining the cordial relation between the parties.[1]This article deals with what are the new avenues where mediation can took place in India barring from those existing areas where mediation already take place.
1.) Mediation in Insolvency Disputes
Insolvency process under the Insolvency and Bankruptcy Code, 2016 is a time-bound process to be completed within 270 days but pendency of the cases may take many years to resolve the issue.[2]This is further aggravated by the appointment process of Insolvency professional and huge piling of cases at National Company Law Tribunal, which ultimately results in delay in the insolvency resolution process.[3]In such a situation, mediation may provide out-of box solution to the creditors by saving time and ensuring confidentiality.
A more recent example can be seen in[4] the Insolvency case of V.K. Parvinder Singh Vs. Intec Capital Ltd. and Anr.[5]where the Appellant tribunal set aside the order given by Adjudicating Authority and appoint a retired judge to mediate for the settlement claims of financial creditors. A mandatory pre-mediation for a particular set of cases, low-cost insolvency professionals, and time-bound mediation process to balance the creditor’s right is the need of the hour.
2.) Mediation in Intellectual Property Disputes
Litigation may took number of years to resolve the dispute , but the fact that any IPR right provided to any person /company for intellectual creation is limited for a particular number of years, and till the time decision comes from the court , the person/company may exhaust the IPR right.IPR disputes especially copyright and patent disputes requires specialists in order to understand the intricacies of the dispute, which is clearly missing in the existing legal framework.[6] The Indian courts itself realized the time-bound settlement of IPR disputes in case of Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwala[7] where it held that the disputes relating to IPR should be decided by trial courts itself within 4 months. In another case of Booz-Allen & Hamilton Inc v. SBI Home Finance Ltd. &Ors[8] the Supreme Court laid down the rule that all cases involving right in personamare arbitrable in nature while cases involving right in rem needs to be adjudicated by courts and tribunals and held that disputes relating to Intellectual property involves right in rem.
WIPO Arbitration and Mediation Centre currently acts as the leading centre to provide time and cost efficient solution for the parties through mediation.[9] Mediation gives the opportunity for parties to settle the dispute in easy time frame and comes to an agreement about ‘what constitutes infringement’ in the dispute.
3.) Mediation in Commercial Disputes
In India, mediation covers several advantages apart from the cost, time and confidentiality. The first effort towards mediation in commercial disputes can be seen in the case of Salem Advocates Bar Association, Tamil Nadu vs Union of India[10], in which Court refer for the mediation and conciliation process in commercial matters. Further effort has been made by the government by the Insertion of Section 12A in the Commercial Courts Act, 2015 which makes parties mandatory to go through pre-institution mediation before going for litigation. The parties can escape this process only in ‘urgent interim relief”.[11] The government has also framed the Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 (the PIMS Rules) to provide guidelines on the mediation process.[12]
India currently lacks the conducive environment for the commercial mediation. These efforts like insertion of Section 12A generates awareness regarding mediation in commercial matters. This will further push the need for trained mediators.
4.) Mediation in Criminal Disputes
Criminal matters keeps pending for number of years in courts which ultimately cause injustice and incur lot of costs toboth parties. Due to the backlog of cases in courts, it is now become impossible to provide timely justice by the courts even in heinous crimes like rape, murder, etc. Though court-annexed mediation exists for a long time, but it fails in many ways. In the criminal cases, parties can go for ‘pre-litigation mediation’ to resolve the dispute. In the case of DayawativsYogesh Kumar Gosain,[13] the Delhi High Court declared that even if there exists no express statutory provision for the criminal court to refer the parties to alternate dispute redressal mechanisms, there is no bar to utilizing it for the purposes of settling disputes.
Parties should use the tool of courts in criminal matters only when the culpability can be proved at the prima facie. Not resolving to courts will help in reducing cost, keeping identityof the victim confidential andhelps in saving time. Majority of the cases at the end of the litigation appears to be false and frivolous. Thus, mediation will further enable the parties to reach a settlement and will help in reducing backlog of cases.[14]
CONCLUSION
Court-annexed mediation exists in India for quite a long time, but time has now arrived to move towards Institutional Mediation as a means to settle the disputes. Not much change has been brought in the popularity of mediation after the establishment of Mediation and Conciliation Project Committee in 2005 by the Supreme Court of India.[15] Lack of a single Institutional Mediation Centre, regulatory framework, confidence among corporate sector for mediation are still some of the key issuing haunting India for a long time.Further, Indian companies should include mediation clause in their contract in order to promote mediation in commercial sector.
[1]Karia, T. Manisha, Effective implementation of Mediation in India: The way forward, Bar and Bench, (01 Aug 2020 14:02 PM), https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward.
[2]The Insolvency and the Bankruptcy Code, 2016, Sec.12.
[3]PoojaKateel, Mediation in Insolvency, 5thvioce, (01 Aug 2020 14:58 PM), https://5thvoice.news/legalnews/NzA3MA==/Mediation-in-Insolvency.
[4]SharmaAshutosh K. and Durafshan, Aliya, Future of Mediation in Insolvency Proceeding, Livelaw, (01 Aug 2020 17:56 PM), https://www.livelaw.in/columns/future-of-mediation-in-insolvency-proceedings-155887.
[5] [Company Appeal (AT) (Ins) No.968 of 2019].
[6]SwetaMadhu and BindalSaurabh, Alternative Dispute Resolution And The Law Of Intellectual Property, Singhania, (01 Aug 2020 18:44 PM), https://singhania.in/alternative-dispute-resolution-ip-law-india/.
[7] (2009)10 SCC 257.
[8] AIR 2011 SC 2507.
[9]Alternative Dispute Resolution, WIPO, (02 Aug 2020 10:06 AM), https://www.wipo.int/amc/en/.
[10](Civil) Nos. 496 and 570 of 2002.
[11]AggarwalRushab,Mediation and Misinterpretation of Section 12A of Commercial Courts
Act, Bar and Bench (02 Aug 2020 12:06 PM), https://www.barandbench.com/news/mediation-section-12a-commercial-courts-act.