A Public Interest Litigation (PIL) in Supreme Court has been moved by the Youth Bar Association of India (YBAI)seeking directions or guidelines to provide for mandatory pre-litigation mediation across the country.
The plea seeks formulation of a Standard Operating Procedure (SoP) wshich would ensure that parties mandatorily engage in mediation proceedings at a pre-litigation stage, in a way to deal with the problem of pendency of cases.
The petitioner (YBAI )Youth Bar Association of India noting the concern over the rate at which cases are piling up in Courts across India rely on the use of alternate dispute resolution in order to control frivolous and vexatious matters coming up for litigation by affording an opportunity to parties to come together and settle their disputes amicably before any litigation can commence.
“…it is submitted that arrears are mounting by leaps and bounds and there is no respite in sight. This is particularly because institution of cases is much more than their disposal at all the levels of judicial administration. The fundamental requirement of good judicial administration is speedy justice. Quite often, frivolous, vexatious and luxurious litigations come up and add to the mounting arrears. Such type of litigation has to be controlled, rather stopped of YBAI . Efforts should be made to settle the disputes at the very threshold vide affording opportunity to the concerned parties to settle their disputes amicably. Mediation in general and ‘prelitigative’ mediation in particular is an alternative mode to settle the dispute amicably, and that too, at pre-litigative stage.”
The National Judicial Data Grid (NJDG) was citied to show their concernwhich have been referredwhile speaking at online seminars recentlyby sitting judges of the Supreme Court. As on 24th May, 2020,the total number of cases pending before the Courts in India is 32.45 million. The data reveals that 71.06% of civil cases are pending in ‘Original Jurisdiction’, and approximately 24.2% cases are found to be pending at the appearance or ‘admission’ stage.
Arguments have been raised that it may be examined that parties are not entirely keen to pursue the case, yet maximum pendency arises from this category where both sides of the dispute know each other. So,‘prelitigative mediation’ is an effective alternative mode to settle such disputes without allowing them to come till a stage where litigation is necessary.
The purpose laid behind mechanisms of Alternate Dispute Resolution (ADR), governed by the Arbitration and Conciliation Act, 1996 and the Civil Procedure Code, 1908 (CPC), specifically Section 89 of CPC, notes that “with the introduction of these provisions, a mandatory duty has been cast on the civil courts to endeavour for settlement of disputes by relegating the parties to an ADR process. The object of introduction of Section 89 was to ensure that Courts make an endeavour to facilitate out-of-court settlement through any of the five ADR methods as referred to in Section 89: (a) Arbitration, (b) Conciliation, (c) Judicial settlement, (d) Settlement through LokAdalat, and (e) Mediation.”
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(YBAI) Youth Bar Association of India mentioned that out of the three main methods prescribed for mediation, the pre-litigation method would serve the purpose best and it is the most productive as it offers the highest degree of privacy to parties as well as the greatest opportunity cost, along with other economic benefits.
“’Pre-litigation’ mediation is nothing but an attempt to resolve the dispute among the parties amicably with the help of neutral third party called Mediator before going to the court or even before filing litigation or sending a notice. It gives a chance to both the parties to end the dispute in a win-win position. In it issues can be sorted out sooner and this process is inexpensive compared to the expenditure incurred at every stage of the case/issues in litigation. To reduce the number of pending cases, the Government should work on a mechanism to introduce a pre-litigation mediation process for YBAI , so that avoidable cases can be prevented from reaching the courts and settle the issue effectively. It’s a step sine qua non to improve the judicial system in India.”
(K. Srinivas Rao v/s D.A. Deepa) in a judgement of 2013 given by the Supreme Court pan India Mediation centres were directed to set up a pre-litigation facility in order to settle matrimonial disputes at pre-litigative stage. Only 3 High Courtsdespite such directions, out of a total of 25 High Courts and their benches across 28 States and 8 Union Territories have complied.
Further it was submitted that while the Supreme Court showed some inclination towards setting up services for pre-litigation in matrimonial cases, there exists no “overarching framework for these services”. Hence, prayer of an institutionalized pre-litigation mediation model for YBAI, capable of can supplementing the court-connected model is explained.
Read the Petition here:
