The Bombay Chamber of Commerce and Industry has set up its Centre for Mediation and Conciliation (CMC), under the guidance of the Bombay High Court, to provide commercial dispute mediation services. At a time when organisations like World Bank have identified pendency of lawsuits and appeal tendency as roadblocks to doing business in India, CMC’s vision is to help create a harmonious business environment with enduring business relationships by encouraging dispute resolution through aided dialogue and concluding them swiftly, economically, confidentially and amicably.
CMC’s Chief Mentor is Sumit Banerjee, an engineer by profession and trained in mediation (He is also the Editorial Director this publication).
Speaking on the occasion of launch of CMC in Mumbai, Justice (retd) VM Kanade, who pioneered the cause of mediation as a judge of the Mumbai High Court, said “The government and the courts should make it compulsory for the parties in dispute to go for ‘Mediation’ before it can be taken to any other forum, like arbitration or go to court.” Identifying the statutory procedures involving mediation as the first step in resolving disputes as one of the main reasons for success of mediation in the US and UK, 97 per cent and 95 per cent of the disputes respectively in these countries are resolved through mediation. The basic thrust for this success comes from “statutory procedures”, he said that once they realise that they don’t have a good case they prefer to settle the matter through mediation process.
On the contrary, in India, the Civil Procedure Code puts an embargo on payment of costs and interest and the schedule is very old “and at the end of the day the party who loses doesn’t lose much,” Kanade explained. Stating that ‘mediation’ can be a means of reducing pending case in India, where three crore cases are pending, Kanade said that mediation is a cheaper and easier means of resolving disputes within a short span of time.
“Typically, under mediation the parties have control over the process, unlike in other processes where they are controlled by others. It is a win-win for all the parties, at the same time there is no compulsion,” said Kanade. If the views of parties are diametrically opposite, then there is no meaning in proceeding with mediation. At that time the other processes like arbitration and going to court can be pursued.
“During over 16 years when I was a judge I have made several attempts to promote mediation. We held conferences and seminars across the country which evoked a lot of research, enthusiasm and interest among the judges in the subject. But after a brief take off somehow it did not work out, for commercial litigation it did not receive good response,” he said.
Justice (retd) VM Kanade, who has served as a judge of the high court for 16 years, said that though several attempts were made to promote ‘Mediation’ as the first step of resolving disputes, it has gained prominence as a means of resolving family and property disputes and somehow it has not been successful in gaining prominence in resolving commercial disputes.
Speaking on the occasion, Banerjee said that in India, the average life of a case is 13 years and litigants in the country are paying an estimated Rs 30,000 per year towards court hearings, mediation could be the best means to resolve disputes without severing the relationship between the parties.
FN Subedar, President, Bombay Chamber said that courts should not be the place where dispute resolution begins if number of pending cases in India has to be brought down.