MEDIATION SPEECH (1)-1.pdf

SLIDE 1: Namaste I am Meena Kothari, a senior trained mediator and trainer I have a Bachelor's degree in Law and Commerce, also a Post Graduate Diploma in Journalism and I am a qualified tutor for students with special ability having B.Ed in Special Education. As part of the project led by NALSAR an...

SLIDE 1: Namaste I am Meena Kothari, a senior trained mediator and trainer I have a Bachelor's degree in Law and Commerce, also a Post Graduate Diploma in Journalism and I am a qualified tutor for students with special ability having B.Ed in Special Education. As part of the project led by NALSAR and MCPC, I am here today to share my thoughts on the topic “Appropriate and Inappropriate (Fit/Unfit) Cases for Mediation” Its necessary that if only appropriate cases are referred to mediation, only then there are fairly good chances of such cases being settled through mediation. SLIDE 2: I will be taking the presentation forward in the following order: Firstly introduction to mediation, Its benefits criteria appropriate and inappropriate cases judgments and lastly conclusion. SLIDE 3: Now we will discuss what is mediation and why So why we all are promoting mediation, can simply be explained when we fall ill.or have headache we cannot directly go for surgery, we would rather look out for home remedies, or some tablets or some rest. Similarly is the case with Litigation and Mediation. Not all disputes are required to go for litigation rather can be settled by mediation. Mediation helps in understanding the root cause of the disputes and assist the parties in amicably resolving the same. Mediation also helps in reducing the burden of pending cases in the courts. What is the definition of Mediation Mediation is a voluntary, party -centered and structured negotiation process where a neutral third party assist the parties in amicably resolving their dispute by using specialized communication and negotiation techniques. This is a process in which the neutral third party works with and assists the parties to negotiate a settlement by helping them communicate, identify their interest , create option for settlement and focus on achieving a practical and workable solution that amicably ends the disputes. SLIDE 4: So after discussing the definition of Mediation, let us see the benefits of mediation: Harmonious settlement: both parties are at a win – win situation. It’s a speedy process- The timeline for the disposal of cases in mediation is 120 days from the first date of appearance before the mediator as provided under sec 18 of the Mediation Act, 2023. Economical and future-oriented. Confidential or a private process Mediation is interest-based rather than right-based Mediation allows creative and flexible solutions.  Promotes Finality – There is no scope for any appeal, revision or further litigation. Refund of court fees is permitted as per rules in the case of settlement in a court referred mediation. Looking at the above advantages, The Mediation Act was enacted on 15th September, 2023 thereby recognizing and giving the statutory recognition to the mediation process SLIDE 5: The appropriate and inappropriate cases of mediation can be determined using the following criteria namely: Case suitability Factors for consideration such as the age of the case, emotional investment  of the parties, and the complexity of the issue involved. Exclusion criteria Objective assessment SLIDE 6: Now we begin with our primary agenda for today, by exploring the historic case of Afcons Infrastructure Ltd v. Cherian Varkey. In this decision, the Supreme Court has enumerated the categories of issues that are suitable and unsuitable for Mediation or ADR. The Afcons Judgement is said to be the “Geeta” of Mediation and hence must be read by all mediators, SLIDE 7: So in the present slide we find the Suitable Cases for Mediation Firstly 1) All trade, commerce, and contracts cases are fit for mediation such as disputes arising out of contracts : example all money suits and execution of contracts disputes relating to specific performance; like transfer of property disputes between suppliers and customers; disputes between bankers and customers like loan recovery and interest disputes; disputes between developers/builders and customers in real estate; disputes between landlords and tenants; like for eviction and rent recovery  disputes between the insurer and insured like life insurance, fire insurance, medical insurance, theft insurance, motor vehicle insurance. 2) Cases relating to relationships including matrimonial causes like maintenance, custody of children; restitution of conjugal rights, divorce, alimony etc ,disputes relating to partition among family members/coparceners/ co- owners; Disputes between partners in partnership SLIDE 8: Moving on to the next slide 3) All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes disputes between neighbors relating to easementary rights, conflicts  about landscape, encroachments, nuisance, etc.); employers and employees like for promotion, salary arrears; harassment at workplace disputes among members of societies with respect to maintainance charges, common facilities. 4)All cases under Law of Torts like claims for compensation in motor accidents and other accidents SLIDE 9: 5)All consumer disputes, such as disputes relating to a supplier like price of the goods supplied, manufacturer disputes relating to quality and quantity of goods service provider with respect to delivery schedule and delaying  payments who is keen to maintain his business/ professional reputation. 6) Criminal cases are not suitable for mediation but few criminal cases covered under Section 406/498A IPC and Section 138 of the Negotiable Instruments Act like cheque dishonour can be mediated. Uptil now we have spoken about suitable cases. now I am going to talk about a few Unfit cases which can be mediated Few of the cases which I have seen in mediation are 1. The probate of the will can be granted, only through the competent court. But if in a mediation, a partition suit is referred , and the parties concerned arrive at a settlement dividing the properties in a manner different from that given in the will, then even the will can be  ignored or overridden by such settlement through mediation. 2. Another example, in a case filed for declaring the marriage as null and void on the grounds of impotency, which case as such cannot be referred in mediation, but if the matrimonial dispute is referred to mediation and parties agree to take divorce by mutual consent under sec 13B of theHindu Marriage Act,1955 then the case filed by wife can be withdrawn and the settlement can be given effect. 3. Even though normally cases against Govt Departments are not fit for mediation for several reasons, but where Govt Department is third party and it has no vested interest in the dispute , such cases can be settled through mediation.  I had mediated a case where private parties arrive at a settlement with regard to agricultural land, the court passed a decree on the basis of such settlement and also directed the revenue authorities to make entries in the revenue record 4. One another case which I dealt with in Mediation which was partially fit and partially not was where two widows of the same deceased husband claimed a share in his pension eventhough the second marriage is illegal, to give share of property to the legitimate children of the second wife, the mediation settlement was made and enforced by the court. SLIDE 10 Supreme Court of India in Afscons Infrastructure Ltd V Cherian Varkey Construction Ltd had laid down the following categories of cases normally considered unsuitable for the ADR process SLIDE 11: Now we shall discuss the Unsuitable cases for Mediation: (i) Representative suits under Order I Rule 8 CPC which involve the public interest (PIL) or interest of numerous persons who are not parties before the court. (ii) Disputes regarding elected public offices like MP/MLA Elections (iii) Cases involving grant of authority by the court after inquiry, as for example, suits for grant of probate or. Will  (iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, Undue Influence, etc. (v) Cases requiring protection of courts, as for example, claims against minors, deities, and mentally challenged suits for declaration of title against the Government. (vi) Cases involving prosecution for criminal offenses. (Except Sec 138 of the Negotiable Instruments Act and Sec 498A IPC). SLIDE 12: Section 6 of the Mediation Act, 2023 red with the First Schedule, provides list of disputes not fit for mediation, which includes: a) Disputes against minors, deities, and persons with intellectual disabilities, b) Prosecution of criminal offenses, c) Any dispute relating to the levy, collection, penalties, direct or indirect tax refunds, d) Complaint filed with any statutory authority regarding the registration, or disciplinary actions of registered professional. e) Disputes which have an effect on the rights of a third party who is not a party to the mediation proceedings, except in matrimonial disputes where the interest of a child is involved. f) Any investigation, inquiry, or proceeding before the Telecom Regulatory Authority of India, SEBI, SAT, and under the Competition Act of 2002, etc. g) Land acquisition and determination of compensation under land acquisition laws. Exceptions can be made to the above by the government but the agreement cannot be enforced like the decree of the court. Though normally matrimonial disputes are suitable cases for mediation but where facts like mental illness, impotence, which requires a difficult process to prove, such cases may become unfit Even the cases where parties have fear of injury or death from the other side, such cases even though of a civil nature are not suitable for mediation. Even those cases which are fit for mediation but have an element of power imbalance will be considered to be unfit for mediation. Here are few examples of Appropriate cases which may practically turnout to be unfit for mediation In Mediation, I was assigned a matrimonial dispute , it seemed to be an Appropriate case for Mediation however, some community which have their own customary practises of marriages of girls of two families being married to boy of the other family, in exchange of his sister , niece getting married in this family. This is irrespective of the fact that the girl has attained majority. On dispute arising in one couple, they separate and even though there may not be any dispute but that happily married girl is also returned or forced out of her matrimonial home. Such exchange marriages in Rajasthan are called 'AATA -SAATA', which may be against the law or the public policy. Such a dispute when referred was very difficult and did not result in any settlement. This I am telling from my personal experience as a Mediator. Both families become hostile to each other and problems increase if there are children born out of such wedlocks. Another example of such cases is where after obtaining ex-parte Divorce decrees, sometimes even on the basis of not properly served summons on the wife, the boy marries another girl. That marriage cannot be said to be illegal. Problem arises when first wife gets the ex- parte divorce decree set aside by courts and claims restitution of conjugal rights. The mediator is faced with one husband and two wives. Such cases may give rise to serious complications and no easy and proper settlement of dispute can be found. Even such cases are inappropriate cases for mediation. Managing mediation with a large number of parties , pertaining to the issues of crowd control, creates a challenge to any mediator in Multiparty Mediation and hence such cases may become Unfit for Mediation. The Concept of Mediation received legislative recognition in India for the first time in the Industrial Disputes Act, of 1947. The conciliators appointed under Sec 4 of the Act are “charged with the duty of mediating and promoting the settlement of Industrial disputes”. SLIDE 13: The Supreme Court has given quite a few judgements on Mediation over the years, demonstrating its importance in modern times. Some of the judgements are as follows: Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344- The Apex Court established a Committee to expedite the implementation of Section 89 and ensure quicker justice dispensation. Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors (2010) 8 SCC 24-In this landmark Judgement, the Supreme Court of India authored by Justice Raveendran- not only suggested some amendments in Sec 89 of the Act but also laid down the detailed guidelines for cases fit for reference to mediation and cases which are not fit for mediation. Earlier I had also mentioned that Afcon judgment is the Gita of the mediation. So every mediator should read the full judgement K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226- The Apex Court held that criminal courts could also refer to mediation cases where a complaint has been filed under Section 498-A of the Indian Penal Code, 1860. Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032- This Judgement laid down the Guidelines for reference to mediation. SLIDE 14: Let us summarize today’s topics in a few points now: Definition of Mediation and Stages of Mediation Why Mediation is Important Criteria for Selecting a Case for Mediation Appropriate and Inappropriate cases given in the case of Afcons Infrastructure Ltd. Inappropriate cases as given under Sec 6 of the Mediation Act, 2023. Landmark Judgements in Mediation. Conclusion: There are only Illustrative list of Appropriate and Inappropriate cases. These are not rigid or complete examples. The court concerned has the Discretion to add or modify such cases for mediation. discretion to add or modify such cases for Mediation.