MANDATORY PRE-LITIGATION IN INDIA

MANDATORY PRE-LITIGATION IN INDIA

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Abstract

In general, Online Dispute Resolution (ODR) is a term used to define the use of Alternative Dispute Resolution (ADR) mechanisms with the help of technology and the internet.[1] In India, as an attempt to boost the status quo prevailing in the judicial system, introducing a mandatory pre-litigation, specifically mediation in its ODR form can be considered as a step forward. In words, pre-litigation mediation is a consensual process, where the parties come together and try to settle the dispute amicably before heading to court, indeed, with the support of an impartial mediator.[2]

Introduction

It is a fact that everyone, whether in the field of law or not, is aware of the massive load of cases before domestic courts worldwide, but it is fair to say that India has at least treble the number of cases in comparison with any other country, due to its enormous population, which is currently more than 1.3bn[3]. That overwhelming number of cases directly affects the efficiency of domestic court, and this is exactly when Alternative Dispute Resolution (ADR) came into play and has increasingly been a successful way of solving disputes in the 21st century. Lately, during the pandemic, at the time when most cases before domestic courts were halted, ADR was working efficiently, with a slight change, O instead of A, it became Online Dispute Resolution(ODR) which refers to the use of ADR mechanisms through technology and internet.[4] That switch was easily done in ADR due to its flexibility. While the domestic courts, which are rigid, took time to adapt and to switch to the virtual world. Even though the option of ODR was always there, the pandemic made it a necessary need instead of just an option. And this was exactly when everyone realized how important ODR is. At the same time, India wanted to move one step ahead of all other countries, by suggesting to amend its legislation by adding a ‘Compulsory Pre- Litigation” method, which means that any dispute cannot be taken into litigation directly, a step is mandatory and must be taken first before heading to courts, which is to try to settle the dispute by ODR means, mainly E-mediation.

THE BIRTH OF COMPULSORY PRE-LITIGATION IN INDIA:

Recently, the Youth Bar Association (YBA) of India has appealed to the Supreme Court, and suggested that ADR shall become a compulsory pre-litigation step. Mainly to abstain from adding to the enormous pendency previously existing before the courts of India. And this was the birth of that idea which was then predicted to have a great positive effect on the justice of India, if adopted.

The YBA stated that the use of ADR mechanisms would aid the control of frivolous claims before courts, by giving the parties to the dispute a chance to sit together and settle their disputes amicably before initiating any litigation cases. Furthermore, the YBA highlighted the purpose of ADR, which is governed by the Arbitration and Conciliation Act, 1996 and the Civil Procedure Code 1908, and stated: “With the introduction of these provisions, a mandatory duty has been cast on the civil courts to endeavor for settlement of disputes relegating the parties to an ADR process”.[5]

It is worth mentioning that the YBA supported their appeal with the judgment of 2013 by the Supreme Court in the case of K. Srinivas Rao vs D.A Deepa, when the Supreme Court had instructed to establish mediation centers in India with a view to settle any disputes arising out of matrimonial issues at a pre-litigation stage. That move was supported by former Chief Justice SA Bobde and Justices AS Bopanna and V Ramasurbramanian.[6]

ADVANTAGES OF COMPULSORY E-MEDIATION IN INDIA:

E-Mediation is basically a system-based instead of a face-to-face-based mechanism in which a third party called “the mediator” facilitates the process of settlement and negotiation between two or more parties through technology means.  E-Mediation has more advantages over litigation in general and even when compared to normal mediation, for instance:

– E-mediation would lead to final settlements of many disputes easily without going to courts, which would decrease the load and number of cases before domestic courts in India.

– E-mediation allows parties to access worldwide mediator expertise, beyond what is available in India, moreover, external experts can be consulted, or brought easily into the process if needed, regardless of their geographical location.

– E-Mediation through technology allow mediators to hold simultaneous private caucusing

with each party, saving time and efforts.

– E-Mediation can be recorded, and such records are protected and accessible, allowing more

seamless procedure and joint frames of reference.[7]

– E-Mediation would allow mediators and the parties to engage in discussion without the pressure of time and other dynamics related to synchronous, face-to-face conversations in normal mediation.

It is with this perspective in mind that the Indian legislative framework is striving to accommodate alternative dispute resolution through online mediums. It would be interesting to see how the legal system of India will adapt to Online Dispute Resolution in future.


[1] Author – Mazin Ezz

[2] Editor – Siddhant Singh

[3] India Population (2021) – Worldometer, Worldometers.info (2021), https://www.worldometers.info/world-population/india-population/.

[4] Betancourt, Julio César and Zlatanska, Elina, Online Dispute Resolution (ODR): What is it, and is it the Way Forward? (2013),  International Journal of Arbitration, Mediation and Dispute Management, https://ssrn.com/abstract=2325422.

[5] Kushi, Youth Bar Association Plea in Supreme Court. https://lawcutor.com/2020/10/13/youth-bar-association-plea-in-supreme-court-make-pre-litigation-mediation-mandatory/.

[6] Sujit Bhar, Dispute Resolution: Alternative and pre-litigation process,

[7] Ebner, Noam. M.S. Abdel Wahab, E. Katsh & D. Rainey, Online Dispute Resolution:

Theory and Practice, The Hague: Eleven International Publishing, (2012),

SSRN: https://ssrn.com/abstract=2161451

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