PIL filed in the Supreme Court for mandatory pre-litigation Mediation; is Mediation the way to forward in the post COVID-19 era?

The current petition in the Supreme Court of India

With the effects of the on-going pandemic on the legal fraternity, the need for alternate dispute resolution mechanisms is highlighted more than ever. Processes like arbitration, conciliation, and mediation have seen notable growth in the past few years and experts only expect it to soar in the post-COVID-19 era. Recently, a Public Interest Litigation (PIL) was filed in the Supreme Court of India by the Youth Bar Association of India seeking directions or guidelines to provide for mandatory pre-litigation mediation across the country.

As per the petition, the National Judicial Data Grid estimates 32.45 million cases remain pending across the courts of India as of May 24, 2020. Intending to deal with this issue of pendency of cases, the plea seeks formulation of a Standard Operating Procedure (SoP) that would ensure that parties mandatorily engage in mediation proceedings at a pre-litigation stage, i.e before the cases reach the courts. 

Judiciary’s response to Mediation

Pre-litigation mediation is an attempt to resolve the dispute amicably among the parties with the help of a neutral third party called Mediator. This can be time and cost-effective for the parties as they can be free of entanglements if the dispute reaches courts. Moreover, it can provide a win-win situation for both parties. By a Supreme Court judgment of 2013 (K. Srinivas Rao v/s D.A. Deepa), mediation centres across India were directed to be set up to settle matrimonial disputes at the pre-litigation stage. However, after seven years, only 3 High Courts out of a total of 25 High Courts have this mediation facility. 

Since the last decade, the judiciary has shown a keen interest in alternate dispute resolution mechanisms, especially that of Mediation. The Chief Justice of India SA Bobde is seen as a torchbearer in this regard. In an interview with Economic Times, he stated that “all (commercial) matters could be made to first go through pre-litigation mediation”. He is also advocating that law universities establish degree and diploma courses in mediation. In January of this year, the Supreme Court had even set up a panel to draft a law that would give a binding legal decree to disputes settled through Mediation. 

Businesses want faster and more cost-effective resolutions 

Businesses in the commercial sector are also welcoming this Mediation, particularly during this COVID-19 situation. Companies, specifically in the manufacturing, services, and real estate sectors are looking at mediation to end disputes with vendors, suppliers, consumers, and even lenders. When courts appear to be the only solution, the pending pipeline of cases greatly delays resolutions. “We are now more concerned about cutting costs wherever possible and legal costs can be a heavy burden," said the CFO at a leading Mumbai-based conglomerate to Economic Times. In the same ET article, Vijayendra Pratap Singh, head of litigation practice at law firm AZB & Partners, says there is an urgent need for a national pre-litigation mediation platform.

The culture of Mediation needs more popularisation and acceptance

Speaking about this specific PIL, Ms Tanu Mehta expressed her reservations. Ms Mehta, who is an independent legal counsel, mediator, and a conciliator empanelled at the Bombay High Court believes that the Mediation is definitely the need of the hour; however, it should not be made mandatory in all cases at a pre-litigation stage as such processes, if imposed, are susceptible to be abused. She further states that ‘the culture of Mediation needs more popularisation and acceptance in the public scenario to become a chosen form of dispute resolution for the parties.’

In this fast-paced world where everyone needs quick and cost-effective mechanisms, it seems that this pandemic has paved the way for such methods to flourish. Looking at the past enthusiasm of the Chief Justice of India and the Supreme Court, the petition has the potential to be accepted and implemented in at least in some form or in selected areas of disputes. The question then arises—whether the legal fraternity is equipped with professional and experienced mediators to which Ms Mehta responds in the affirmative.