Sense of peace much better when parties agree to mediation: Justice Gita Mittal on ADR

Former Chief Justice of the Jammu & Kashmir High Court Gita Mittal advocated for mediation, saying that even if parties are not able to resolve disputes through this method and continue with litigation, the tension in the courtroom thereafter was visibly reduced..“The sense of peace in the community, in the courtroom, in the family is much better than it was when they agreed to go to the mediation,” she said..Justice Mittal was speaking at a webinar organised by the Indo-Canadian Business Chamber and Air Canada titled ICBC LeaderSpeak: Arbitration & Dispute Resolution (Perspectives from India & Canada), late on Thursday evening where she discussed new trends in India’s alternate dispute resolution (ADR) system, particularly drawing from her experience as a judge and now, an arbitrator..Justice Mittal observed that there was a lacuna in Indian arbitration laws with respect to emergency awards. She discussed judgments of the Supreme Court in which the legal validity of an emergency award even in the absence of legislative intervention was recognised.“An emergency award was upheld by the Supreme Court of India in a very recent decision on 6th of August 21, in a dispute raised by Amazon, wherein the Supreme Court recognised the legal validity of an emergency award without any legislative intervention, without any legislative provision for an emergency award in arbitration laws,” she said..Justice Mittal opined that the 1996 Act replaced the “very old and outdated” Arbitration Act of 1940 and completely modernised arbitration in India by providing that an arbitration award could only be set aside on very few grounds.However, she found, this gave rise to a different issue. Every challenge thereon was premised on this ground without any statutory definition of what would be included in “public policy.” However, she added that the legislature recognised this difficulty and addressed it in 2015.“It was very difficult for Courts to arrive at...there was no uniformity in what was resulting in the judicial decision making. The legislature saw the difficulty and in 2015, by statutory amendment, the contours of public policy were clarified and the scope of challenge to an arbitration award was curtailed by the amendment to section 34 of that Act.”Finally, she noted that in 2019, institutional arbitration was recognised, making space for two types of arbitration processes in the country. The amendment enabled parties to go to an arbitral institution and receive a nomination which is binding on the parties.“Now we have two types of arbitration, one is what is commonly called as ad hoc arbitration where parties nominate an arbitrator or an arbitral tribunal and they evolve their own procedures on agreed terms with the parties and proceed on that. The second is, there are arbitration institutions like the Mumbai Centre for International Arbitration (MCIA) and the ICADR, the Nani Palkhivala Arbitration Centre, you have several court-annexed arbitration centres, which are very popular.”.The judge found that the biggest advantages of arbitration were not only cost efficiency or speedy adjudication, but an opportunity to the parties to choose the arbitrators as well as the process which would be adopted to adjudicate the dispute.“You have a choice of the manner in which you will file your claims, counter claims, defence - you choose as to whether you will lead oral evidence or rely on affidavits or only rely on documentary evidence.”She drew attention to the fact that a lot of formalities required to be fulfilled by court procedure could be obviated and one could skip to the final stage of asking the arbitrator to examine the material and pass an award.“There is this huge comfort level that you have chosen the arbitrator but of course, you don't have a control over the outcome here, there is still adjudication.”Further, she stated that India had the advantage of the presence of several globally recognised offices such as the ICC, LCIA and SIAC that provide full services in India.“I understand that institutional arbitration has become so popular that MCIA saw a 150% rise in the increase in the case load of MCIA in 2020.”.Finally, the former High Court judge concluded by saying that India has very good facilities for arbitration and people from all over and not just India were arbitrating in India..The Indo-Canadian Business Chamber (ICBC) is the only organization based in India which is dedicated to promoting Indo-Canadian economic and bilateral relations. ICBC works closely with the High Commission of Canada in India on core issues and initiatives related to bilateral trade in the India-Canada business corridor.