Q. I have filed a complaint against a builder in the district commission for seeking a refund of Rs 45 lakh with interest and compensation. I am appearing in person. The commission has asked me if I am ready for settlement through mediation. The builder’s advocate is willing for mediation. I have asked for time to think over it. I want to know how mediation works, how reliable it is, and if both parties come to a settlement, what is the guarantee that the builder will honour his commitment. Do I have to pay any additional fees for the mediator besides the court fee for filing the complaint?
Neha Joshi, Goregaon
A. Mediation is a worldwide recognised process of alternative dispute resolution (ADR). It offers an alternative to traditional dispute resolution bound by the Civil Procedure Code and Evidence Act. It is often complicated, expensive, and involves frequent adjournments and appeals, leading to prolonged litigation. Mediation seeks to overcome the drawbacks of the traditional judicial system by providing simple, speedy, and affordable dispute resolution with the intervention of an independent, neutral mediator.
It is party-centric, unlike the advocate-oriented system in civil or consumer courts, where the court decides who is wrong and who is right. In mediation, the mediator helps the parties reach a resolution through mutual agreement, and if both parties agree, a Consent Terms or Settlement Agreement is drawn, signed, and authenticated by the mediator. This agreement is then sent to the Consumer Commission, which takes it on record and passes an order, giving the settlement binding effect.
The Consumer Protection Act, 2019, has provisions for dispute resolution through mediation. Each Consumer Commission has a panel of mediators, and the President of the Commission appoints a mediator from this panel based on the dispute’s nature. The President also decides the mediator’s fees, which are in addition to the court fees already paid. Both parties share the mediator’s fees equally. Mediation is always a voluntary process and as such no court or consumer commission can impose mediation on the parties against their will.
The courts can only suggest the parties for mediation if they find an element of settlement in the disputes before them. For any reason, if the party is not willing, the court cannot force the parties to accept the mediation. As such, in your case, you have to decide whether it is worth going for mediation. To take such a decision, one must know the benefits of settlement, which are many. If both parties agree to settle the dispute through mediation, the dispute comes to an end forever. Since both parties sign consent terms (mediated settlement agreement) no party can appeal against such agreed settlement. Such agreed settlement is binding on the parties and is enforceable in law. This obviates the possibility of an appeal, a second appeal etc.
This saves a lot of time and expenses of the parties on further litigation by way of appeals. You will thus note that the mediation under Consumer Protection Act is a legally recognised mode of dispute resolution offering many benefits. In case any party to the agreed settlement fails or neglects to comply with the agreed terms arrived at through mediation, the other party has a right to enforce these settlement terms as if it is an order of a court.
As such in your case, if the developer is agreeable to mediation, I would highly recommend that you should also opt for mediation. During the mediation process, you will have full liberty to negotiate the terms on which the dispute could be resolved the way you desire it. Of course, in such negotiations, parties are also expected to be flexible and must avoid being too rigid keeping in mind the long-term benefits of the mediated settlement.
(Advocate Shirish V Deshpande is chairman, of Mumbai Grahak Panchayat. Queries can be sent to him on email: [email protected])
