Mandatory Pre-Litigation Mediation Should Be Introduced in Certain Categories like Matrimonial, Land Dispute: Ms Meghna Mishra, Partner, Karanjawala & Co

Ms Meghna Mishra, Partner, Karanjawala & Co has said, “Certain category of civil dispute like matrimonial, land dispute – mandatory pre-litigation mediation should be introduced. Given the Indian judiciary system is already clogged with so many cases and given the COVID-19 pandemic is expected to push the already clogged system to many more years, the importance of pre-litigation mediation could be manifold".  

India is ready to incorporate pre-litigation mediation into the system 

When involved parties take mediation independent of the court proceedings, it is called pre-litigation mediation. Ms Mishra gave the example of Italy where the pre-litigation mediation has been successful. Even in India, in the Babri Masjid case, the court asked for an out of court settlement, which suggests that the country’s ecosystem is ready to incorporate pre-litigation mediation into the system. 

Both Parties get a win-win situation in mediation 

Ms Mishra explained the process further: “What is the essential difference? In litigation, it is essentially a blame game. Blame has to be proved. One is judged a winner and the other is looser. In mediation, both parties get a win-win.” Ms Mishra strongly believes that the time has come to think and act differently. “Mandatory pre-litigation mediation puts the ball back in the parties involved. It will urge them to engage with each other and resolve disputes,” Ms Mishra said.  

Number of cases piling in the court can be brought down significantly

Undoubtedly, when mandatory mediation is in place even though in certain categories, the onus and the responsibility come down to the parties to solve the issues – have a discussion and make the right decisions. However, it can also be said that mediation could also give rise to the scope of sub-par settlement. Even though it is within the spectrum, the fact that a third party who resembles the law (as the judge in the court) is missing, it could entail the person who is powerful to get away with maximum benefit where the other party could settle for less as opposed to taking the trouble of going through the lengthy and laborious court proceedings.  However, one thing is likely that the number of cases that are piling in the court can be significantly brought down by its inclusion. 

Mediation is a viable option to resolve disputes 

According to Ms Mishra, the biggest challenges that the judiciary system is facing are that of delay and inadequate judge strength. She said, “I think it is the bitter truth; justice delayed is justice denied. Cases remaining unresolved – hurt both society and the economy. A large part of the Indian population is enchanted how the Indian legal system functions.” “Mediation is viable to resolve the disputes,” Ms Mishra said.