The high court has sent 25 cases filed before it for mediation since July and wants to start pre-litigation mediation across the state soon, a judge of Calcutta High Court said on Wednesday.
Justice Harish Tandon said that under the existing infrastructure only court-referred cases were going for mediation. Infrastructure is being upgraded so that parties can directly go for mediation before they move court.
Legal professionals said that in mediation, a neutral mediator helped contesting parties reach a mutually agreed settlement. The crucial advantage of mediation over adjudication and arbitration is that in the former a settlement is reached only when the contesting parties agree to the terms and conditions of the settlement, while in arbitration and adjudication it is the arbitrator and judge who pass an order, they said.
If mediation gains traction it can reduce the number of pending cases and several disputes could see quicker resolution.
Rukmani Menon, an experienced mediator from Bangalore, told Metro that mediation had to be completed within 90 days. “The mediation process cannot go beyond 90 days, whereas a court case can drag on for two or three years. Even after that, if one of the parties appeals against the judgment, the matter will drag on further,” she said.
Mediation is both time and cost effective, she added.
“In mediation, the settlement agreement (the final settlement) is drafted based on what the parties say, unlike in adjudication where a judge passes a judgment based on evidence and argument. The contesting parties sign the settlement agreement in case of mediation, which is possible only if the final agreement is acceptable to them,” said Menon, explaining that the chance of any one of the parties asking for the matter to be reopened after signing a settlement agreement was almost nil in case of mediation.
Menon was one of those who conducted a workshop organised by Calcutta High Court on mediation for all stakeholders such as mediators, litigants, advocates, law firms and judges of district and subdivision courts from Friday to Monday.
Justice Tandon said commercial, matrimonial and property disputes were some of the matters that could be settled through mediation. He added that the Supreme Court had in a judgment mentioned the matters that could be settled through mediation.
The judge also said that mediation became important against the backdrop of the huge backlog of cases in Indian courts. “The primary and most important problem plaguing the judiciary is the huge backlog of cases that needs to be tackled. The process of mediation is an effective tool to redress disputes,” the judge told a news conference on Wednesday.
A source in the high court said that there were 2.19 lakh pending cases in the court till June 30. The source added that 23 posts of judges were lying vacant. “The sanctioned judge strength of the high court is 72, while there are 49 judges at present. This naturally leads to a growing number of pending cases,” the source said.
He added that across Bengal there are 21.96 lakh pending cases. State law minister Moloy Ghatak had said in the Assembly this year that there were 156 vacant judges posts in the lower courts across Bengal.
Legal experts said confidentiality is another key distinguishing feature of mediation. The parties may request the mediator to not disclose something to the other side. When the settlement is reached, the agreement never goes to anyone other than the contesting parties. Besides, anything that parties learn first during the mediation cannot be used in courts if the mediation falls through, said Menon.
Justice Tandon also said that the judicial authorities were thinking about creating a dedicated website for mediation purpose that would have details of mediators and the procedures to follow.
An office for hearing the parties in mediation has been set up on Council House Street. The source added that the high court had a panel of 59 mediators. Besides there are mediators in all districts of Bengal, said Justice Tandon. “We want people to know that mediation is a tool they can use,” he said.