INDIA-SINGAPORE MEDIATION SUMMIT - 2021

MEDIATION FOR EVERYONE: REALIZING MEDIATION’S POTENTIAL IN INDIA

Full text of the speech delivered By
Honourable Mr. Justice N. V. Ramana, the Chief Justice of India
Supreme Court of India

The Honourable Chief Justice of Singapore Mr. Sundaresh Menon

Mr Edwin Tong, Minister for Culture, Community and Youth, and

Second Minister for Law, Singapore

Mr. Justice A.K. Sikri, Former Judge, Supreme Court of India

Mr. Amitabh Kant, Chief Executive Officer, NITI Aayog

Mr George Lim, Chairman of the Singapore International Mediation

Centre

Honourable Judges (sitting and retired) from India, Singapore and

other countries

Distinguished Members of the Bar from across the world

Media persons

Distinguished Guests

Ladies and Gentlemen,

1. Namaskar.
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2. Let me start by expressing my gratitude to everyone involved in

organizing today’s event. A seemingly impossible task has been

made possible through everyone’s hard work and support. To this

end, let me appreciate and congratulate everyone at the Singapore

International Mediation Centre, CAMP, Mediation Mantras, and the

officers of the Supreme Court of Singapore and the Supreme Court

of India.

3. I am extremely pleased to share this platform with Honourable Mr.

Justice Sundaresh Menon, the very eminent Chief Justice of

Singapore. His kindness and generosity of spirit were apparent

during my earlier interaction with him.

4. I would also like to thank my dear brother, Justice Sikri, who has

been a constant source of support and help throughout this process.

His guidance throughout my time in the Supreme Court has been

invaluable.

5. I am delighted to be speaking at this event, as over the past eighteen

months we have not been able to interact due to the pandemic.

Meeting all of you, even online, gives me immense pleasure.

6. Conflicts are unavoidable in any society for a variety of reasons-

political, economic, social, cultural and religious. And with conflicts,

there is also the need to develop mechanisms for conflict resolution.

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 India, and numerous Asian countries, have a long and rich tradition

of collaborative and amicable settlement of disputes. The great

Indian epic, the Mahabharata, actually provides an example of an

early attempt at mediation as a conflict resolution tool, where Lord

Krishna attempted to mediate the dispute between the Pandavas and

Kauravas. It may be worthwhile to recall that the failure of mediation

led to disastrous consequences.

7. Mediation, as a concept, is deeply embedded into the Indian ethos.

Long before the arrival of the British adversarial system in India,

various forms of mediation were being practiced as a method of

dispute resolution. Disputes were often resolved by the chieftains or

elders of the community. Similarly, disputes relating to business

were resolved by merchants, either by direct negotiations or through

merchant bodies. However, the establishment of the British courts

system, in 1775, marked the erosion of community-based

indigenous dispute resolution mechanisms in India.

8. The British judicial system has ultimately become the framework,

with appropriate modifications, for the current judicial system in

India. A funny anecdote captures the attitude of Judges in this

adversarial system: when a judge was sipping his early morning

coffee, flipping through the newspaper, his granddaughter

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 approached him and said, “Grandpa, my older sister has taken away

my toy”. The judge’s immediate response- “Do you have any

evidence?”

9. The Indian judicial system is unique not only because of a written

Constitution, but also because of the immense faith reposed by the

people in the system. People are confident that they will get relief

and justice from the judiciary. It gives them the strength to pursue

a dispute. They know that when things go wrong, the judiciary will

stand by them. The Indian Supreme Court is the guardian of the

largest democracy. The Constitution gives wide ranging powers and

jurisdiction to do complete justice between the parties to bring to life

the motto of the Indian Supreme Court, “Yato Dharma Sthato Jaya”,

that is, “Where there is Dharma, there is Victory”.

10. Having said that, I think there are a few contributing factors that

have revived the Alternate Dispute Resolution (ADR) mechanisms in

India.

11. The first one relates to judicial delays. The often-quoted statistic that

“pendency” in Indian Courts has reached 45 million cases, which is

perceived as the inability of the Indian judiciary to cope with the case

load. This is an overstatement and an uncharitable analysis.

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12. The term pendency is used to refer to all cases which have not yet

been disposed of, without any reference to how long the case has

spent in the judicial system. This would mean, that a case which

was filed yesterday gets added to the pendency statistic. This is,

therefore, not a useful indicator of how well, or poorly, a system is

doing.

13. Rather, it is important to reduce “arrears” and “backlogs” in the

system. “Arrears” refer to delays that are unwarranted. Every delay

is not an arrear. Some cases of delay might be due to valid reasons.

On the other hand, “backlogs” refers to a situation where the number

of cases instituted in a period is more than the number of cases

disposed of in the same period.

14. There is no doubt that the issue of judicial delays is a complex

problem, not just in India. Several factors contribute towards such

a situation. One of them is an Indian phenomenon called - ‘luxurious

litigation’. It is a specific type of litigation wherein parties with

resources attempt to frustrate the judicial process and delay it by

filing numerous proceedings across the judicial system. Undeniably,

the prevailing pandemic has also contributed to our woes.

15. The sheer number of cases in the Indian judicial system may have

to be viewed in the context that India is the largest democratic

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 republic in the world. The people believe in the Constitutional

project, of which the judiciary is an integral part. Judges in India,

particularly in the Constitutional Courts, often burn the midnight

oil to meet their judicial and administrative case load.

16. The second factor which contributed to the growth of ADR, relates to

the increased access to justice in India. It can safely be stated that

the legal aid programme in India is one of the largest and most

robust. Under the Legal Services Authorities Act, 1987 the judiciary

has been given statutory backing and responsibility in ensuring

greater access to justice, and I can proudly state that it is one of the

greatest success stories of modern India. Nearly 70% of the Indian

population, particularly the poor, women, children, minorities,

senior citizens and the differently abled, are eligible for benefits

under various schemes run by Legal Service Authorities. As we enter

the silver jubilee year of the establishment of the National Legal

Services Authority, it is time to rejoice in the remarkable

achievements and to further strengthen the legal aid movement in

the country.

17. Apart from increasing legal awareness, the National Legal Services

authority encourages the settlement of disputes through ADR. One

such mechanism is the Lok Adalat (literally, People’s Court). Lok

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 Adalats are tasked with the responsibility of settling cases which are

referred to them from Courts, or by parties themselves, prior to

initiating litigation. To give you some indication of the scope of the

activities, over 7.84 million cases were settled by the Lok Adalats in

2019 and 2020. Nearly 3.94 million cases were settled at the pre-

litigation stage. This is despite the pandemic and was possible by

building an efficient Online Dispute Resolution system in India.

18. Another important factor that resulted in India’s shift towards ADR

mechanisms, relates to the opening of the Indian market- that is,

the major economic reforms undertaken in 1995. Laws were

required to be modified to keep pace with ever changing society and

its needs. There was a need to increase the confidence of investors

and businesses, both domestic and foreign, and allow them more

autonomy and control in resolving the disputes arising out of their

investments and business plans.

19. After India opened its economy, the Parliament enacted the

Arbitration and Conciliation Act, 1996 to bring the Indian arbitration

regime in line with the UNCITRAL Model Law. This was probably the

most important legal reform, which has received immense attention

by the Indian legal and business community. The law attempts to

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 put a framework in place that allows for maximum party autonomy,

with the least judicial interference.

20. ADR mechanisms, particularly mediation and conciliation, can

reduce pendency, save resources and time, and allow litigants a

degree of control over the process and outcome of their dispute

resolution process. Designed around a participatory model,

mediation and conciliation enable parties to become insiders to a

process that traditionally treated them as outsiders.

21. As a result, the focus has shifted to the flexible non-adjudicatory

dispute resolution processes of Mediation and Conciliation.

‘Mediation’ and ‘Conciliation’ are interchangeable expressions in

many jurisdictions. However, in India, the Conciliator has wider

powers than a Mediator. The Conciliator can make a proposal for

settlement and can formulate the terms of the settlement. The

mediator, on the other hand, only acts as a facilitator for the parties

to come to a settlement.

22. Unlike Conciliation, which is governed by the Arbitration and

Conciliation Act, 1996, mediation is not governed by any specific

statute in India. The Industrial Disputes Act, 1947 had a provision

regarding mediation. More recently the Commercial Courts Act,

2015 and the Real Estate (Regulation and Development) Act, 2016
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 have provisions relating to compulsory pre-litigation mediation.

Amendments have also been made to the Companies Act, 2013 and

the Consumer Protection Act, 2019 that allow for mediation. Most

importantly, a provision in India’s Civil Procedure Code (CPC)

empowering Courts to refer parties to mediation was revived by the

Parliament in 1999, being Section 89 CPC. However, it was left to

the Indian Supreme Court to give life to this Section of the Code.

23. The absence of any guidelines or rules for the operation of mediation

was being sorely felt and was one of the reasons that mediation was

not taken up. In a constitutional challenge to Section 89 CPC, the

Supreme Court of India appointed a Committee to draft Mediation

Rules, which were subsequently approved. All the High Courts were

directed to frame the rules. This led to the development of Court-

Annexed Mediation in India.

24. In the celebrated judgment of Afcons International, the Supreme

Court of India clarified certain ambiguities which were inherent in

the drafting of Section 89 CPC. The section, as it originally stood,

placed the cart before the horse. The Supreme Court held that it is

the duty of the Court to find out the suitability of ADR resolution of

a particular dispute and refer the parties for the same. Further, the

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 Court facilitated the enforceability of such settlements, by requiring

them to be made a part of the final decree.

25. Court annexed mediation, along with the mandate to refer matters

to ADR mechanisms under Section 89 CPC can be considered an

Indian adaptation of the “Multi-Door Court House” proposed by the

Harvard Professor, Frank Sander. The model suggested by Professor

Sander, included a Centre that would contain numerous dispute

resolution mechanisms under one roof. A screening would take place

and after a determination of the nature of the problem, the parties

would be referred to the appropriate “door” to resolve their disputes.

In the current Indian scenario, the “screening” provided for under

Section 89 CPC takes place within the Court. Subsequently the

Court may refer the matter to the appropriate ADR mechanism,

including mediation. Such mediation referrals often happen even in

the Supreme Court of India, and I have personally seen disputes that

have subsisted for decades get resolved through the process of

mediation, within a short time.

26. The Afcons International judgment also highlighted certain types of

disputes that it would be profitable for a Court to refer to mediation,

and certain other categories of cases wherein mediation might not

be appropriate. It may merit mentioning that most cases being

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 referred to court-annexed mediation relate to family or matrimonial

disputes.

27. Private mediations, which take place at the pre-litigation stage, are

also becoming more prevalent in the country. Most arbitration

clauses in commercial contracts have a multi-tiered approach,

where the first attempt to resolve the dispute between parties is

through mediation or negotiation. At this juncture, it might be worth

mentioning that the House of Lords held, in 1992, that agreements

to have “good faith discussion” before opting for arbitration or Court

litigation were not binding. On the other hand, India and Singapore

are among the few jurisdictions to have taken a different path and

made such agreements enforceable.

28. Apart from enhancing and clarifying the law as to mediation, the

Supreme Court of India also made an active effort on the

administrative side to improve the mediation landscape in India. The

Supreme Court Mediation and Conciliation Project Committee was

set up in 2005 by the then Chief Justice of India. Some of the

Committee’s most important activities relate to the training of

Mediators and Referral Judges throughout the country, along with

publication of Training Manuals.

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29. A development in 2019, which bears special mention relates to the

Singapore Convention on Mediation. This is intended to create a

framework for cross-border enforcement of international settlement

agreements marked a huge step forward. The Convention is

important for creating trust and faith with respect to international

commercial settlement agreements. India was one of the first

signatories of the Singapore Convention in 2019.

30. This brings me to the current state of mediation in India. There are

nearly 43,000 mediation centres in India. The data suggests that

since 2005, nearly 3.22 million cases have been referred and nearly

1 million cases have been settled by mediation upto March 2021.

31. Despite the encouraging figures, certain barriers persist with respect

to the adoption of mediation in India. Before ensuring the success of

Mediation in the country, it is necessary to address issues of

legitimacy, credibility, and acceptability of mediation. I would like to

leave you with some concluding thoughts regarding modern

mediation practice that I believe merit highlighting and deserve

discussion.

32. The first relates to the role of a Mediator in the dispute resolution

process. Traditionally, mediation was thought of as a facilitative

process. The Mediator played the passive, and limited, role of

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 improving communication between parties. He only needed to

ensure that parties understood the underlying issues and enabled

them to reach a beneficial resolution to their dispute. They therefore

acted only as a guide, leading the parties to the best solution.

However, with more complex and sophisticated problems now being

referred to mediation, particularly in the commercial arena, the role

of Mediators is changing to include both evaluative and advisory

participation. The Mediator is now being asked to provide more

active assistance to the parties to reach a settlement. He is expected

to assess the relative strengths and weaknesses of each party, and

suggest solutions based on the same. When the role becomes

advisory, there is an inherent risk of the Mediator losing neutrality,

opening up the door for temptations and extraneous considerations.

33. The second issue relates to the extent of ‘neutrality’ and ‘aloofness’

a mediator must possess during the process. You can call these

problems the mediator’s ‘moral dilemma’. The theory of mediation

contemplates two parties who are equal in bargaining capacity

seeking the assistance of the mediator to resolve their disputes. But

what happens when one party is better situated- economically,

socially and politically, than the other? What is the duty of a

mediator if the settlement reached is patently unjust to the weaker

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 party? Should the mediator be a silent spectator during such

negotiations? Is the mediator merely concerned with enabling the

parties to arrive at a settlement and not concerned with the terms of

the settlement? These are just some of the questions which one must

consider, particularly in a country like India with our diverse social

fabric. The requirements of substantive equality are a bedrock of

every Constitutional democracy, and these ideals must be reflected

even during the dispute resolution process.

34. Let me clarify that my intention in flagging these concerns is not to

discourage mediation, but to make it a more robust process. My

object is to initiate a debate and discussion in regard to the nature

and limits of the role of a Mediator, so that it can be clearly and

carefully calibrated. Rather, the mediator must be equipped to

understand the situation of the parties before him, and to choose

the appropriate approach. This can only be made possible with

carefully designed, in-depth and continuous training of Mediators. I

believe that it may be beneficial to take a leaf out of the book of the

aviation industry. Commercial pilots are mandated to train every

year. Such training usually contains a ‘simulator’ component,

wherein pilots are given multiple scenarios through which they must

safely land the plane in a flight simulator software. Mediators’

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 training programmes should contain such a component, and the

development of a game-like software for Mediators might be a useful

innovation to have in place.

35. This also brings me to another important factor- the need for ethical

standards and unimpeachable integrity and neutrality of mediators.

As I mentioned earlier, a more active involvement of the mediator in

the process of mediation could open the doors to parties attempting

to influence them. This necessitates the creation of an environment

which prevents any such attempts being made by an unscrupulous

party. It requires that mediators be of good character and moral

standing. For this, it is necessary, that Rules and Regulations

governing Mediators are updated and implemented to ensure

transparency and neutrality.

36. The points that I have highlighted are only illustrative, and any

solutions suggested are rudimentary at best. I am hopeful that the

present Summit will foster a dialogue from which solutions may

emerge. I am looking forward to the conclusions that emerge from

the interactions between practitioners in Singapore and India.

37. Given the growing scope of mediation, it is time for India to enter

mission mode. To popularise mediation as cheaper and faster

dispute resolution mechanism, a movement needs to be launched.

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 Prescribing mediation as a mandatory first step for resolution of

every allowable dispute will go a long way in promoting mediation.

Perhaps, an omnibus law in this regard is needed to fill the vacuum.

We must take note of the fact that a vast majority of litigants in India

belong to middle and poorer sections of society. They will find great

solace if mediation gets established as a reliable means of redress.

Needless to state, it will lead to a remarkable reduction in the

number of cases reaching the regular courts. Such a scenario will

enhance the efficiency of the judicial system.

38. India, the world’s largest democracy, is home to many identities,

religions and cultures which contribute to its unity through

diversity. This is where the rule of law, with assured sense of justice

and fairness come into play. Mediation, being the cheapest and

simplest option available to the public at large, can be described as

a tool of social justice in the Indian context. Such a party friendly

mechanism ultimately upholds the rule of law, by providing an

incentive for parties to utilize their autonomy to the fullest to arrive

at a just and equitable outcome.

39. Several States in India are currently coming to build a robust ADR-

friendly environment. Recently, the State of Telangana has come

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 forward to set up a state-of-the-art ADR facility. This is a welcome

move and I hope other States will soon follow.

40. Cooperation between India and Singapore is going to be a significant

factor in promoting alternate dispute redressal mechanisms in both

our countries, as well as in the entire subcontinent.

41. I would like to conclude with the words of Abraham Lincoln:

“Discourage litigation. Persuade your neighbour

to compromise whenever you can. As a peace-

maker, the lawyer has a superior opportunity of

being a good man. There will still be business

enough.”

THANK YOU

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