Mediation is one of the Alternative Dispute Resolution Methods contemplated under Section 89 of the Code of Civil Procedure enacted by the Parliament. In a landmark decision, India’s Supreme Court held that pre-litigation mediation is mandatory for all commercial suits initiated. The court held that Section 12A of the Commercial Courts 2015 Act, the enabling provision for pre-litigation mediation, is mandatory in nature. Thus, any commercial suit instituted before a commercial court under the 2015 Act without first exhausting the remedy of pre-litigation mediations shall be rejected under the Code of Civil Procedure, 1908.
Further based on the Parliamentary Standing Committee Report on Mediation Bill, 2022, the Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill, 2021. BCIC was part of the various discussions and have made representations. The Mediation Bill is in the final stage and will be passed soon. This will give a boost for the mediation process.
Bangalore Chamber of Industry and Commerce (BCIC), the apex Chamber in the State of Karnataka in association with Bangalore International Mediation, Arbitration and Conciliation Centre (BIMACC) signed a MOU on 5 th March 2021 for setting up of a “BCIC BIMACC Mediation Centre” amidst an elite gathering consisting of Mr. Justice Cyriac Joseph, Lok Ayukta, Kerala, Honorary Chairman, BIMACC, Former Judge Supreme Court of India and former Chief Justice of Karnataka and Chairman, BIMACC, Mr. T R Parasuraman, President, BCIC, Mr. Justice Deepak Verma Former Judge Supreme Court of India and former Chief Justice of Rajasthan and Honorary Vice Chairman BIMACC, Adv. B C Thiruvengadam, Honorary Director, BIMACC, Dr. L Ravindran, Vice President, BCIC, Adv. (Dr.) K V Omprakash, Chairman of Banking Finance & corporate Affairs, BCIC, Mr. N Venkatakrishnan, Mentor for the BFCA committee, BCIC and Mr. Raju Bhatnagar, Member, BCIC. Also, present during the sign off event were Ms. Justice Roshan Dalvi, former Judge, Bombay High Court and Mr. Justice Gururajan, former Judge, Karnataka High Court. However, due to COVID situation and other operational hitch the activities were slowed. However, Past President Mr. K R Sekar, immediate past Present President, Dr. L Ravindran and President, Dr. S Devarajan have given impetus to this drive and have made BCIC-BIMACC MEDIATION CENTER as one of the agenda of the year 2023-2024.
BCIC will perhaps be the first Chamber in India to provide mediation services for resolving commercial disputes among business houses, downsizing the long-time taken for settlement of disputes at the mutual interest of the parties involved. In recent times, the alternate dispute resolution mechanism has proven to be an efficacious method to resolve commercial disputes.
The members of the BCIC will benefit from the BCIC BIMACC Mediation centre to solve their disputes amicably and continue relationship even thereafter. As an initial step, BCIC will insist on its members to incorporate a clause for mediation in all its existing/future agreements.
BIMACC with its experience in dispute resolution shall be the Knowledge partner as per the arrangement between BCIC and BIMACC. The BCIC BIMACC mediation Centre through a Panel of trained and experienced mediators will ensure high quality mediation process as an alternative dispute resolution to the MSME and larger corporates. All Mediations at the BCIC BIMACC mediation Centre shall be conducted under the Rules of Mediation.
BCIC - BIMACC Mediation centre through its efficient Executive Board and Governing Council consisting of retired justices, accredited mediators and professionals conducts meditation in an efficient and professional manner.
| EXECUTIVE BOARD – 2023-2024 | ||||
|---|---|---|---|---|
| President | Sr. Vice President | Vice President | ||
| Dr. S Devarajan Sr. Vice President TVS Motors Company Limited | Mr. Vineet Varma Director Brigade Hospitality | Mr. Prashant Ghokale Managing Director Buhler India Private Limited | ||
| GOVERNING COUNCIL – 2023-2024 | ||||
|---|---|---|---|---|
| Chairman | Co Chairman | Co Chairman | Adviser | |
| Dr K V Omprakash Corporate, Economic Affairs and Legal (including BIMACC & ICSI Coordination) | D Ramprasad Practice Head ASA & Associates Chartered Accountants | Dr Srikanth Parthasarathy Managing Partner Chakra Venture Partners LLP | Mr Venkatakrishnan | |
| BCIC PANEL OF ACCREDITED MEDIATORS | |||||
|---|---|---|---|---|---|
| K V Omprakash, Advocate | Dr Srikanth Parthasarathy | Ganesh Subramaniam, CA | A Murali, CA & CS | Rajnish, Advocate | Raju Bhatnagar, Management consultant |
| BOARD OF GOVERNORS OF BIMACC | ||||
|---|---|---|---|---|
| Chairman | Vice Chairman | Co Chairman | ||
| Hon’ble Mr. Justice Cyriac Joseph former Judge Supreme Court of India and former member, National Human Rights Commission | Hon’ble Mr. Justice Deepak Verma former Judge Supreme Court of India | Hon’ble Mr. Justice S.R. Bannurmath former Chief Justice of Kerala High Court and former Chairman, Maharashtra State Human Rights Commission | ||
| OTHER GOVERNORS OF BIMACC | ||||||
|---|---|---|---|---|---|---|
| Mr. Ghanshyam Dass former CEO NASDAQ, South Asia | Mr. Vivek Kulkarni IAS Retd. former Secretary, Finance and IT & BT, Govt. of Karnataka | Ganesh Subramaniam, CA | Dr. Chenraj Roychand President Jain University | Mr. Naginchand Khincha FCA Chartered Accountant | Mr. C.N. (Madhu) Madhusudan CEO VectorSpan Atlanta GA, USA, former President NIIT USA NIIT Ventures | |
| Dr. Lalith Bhasin Advocate President SILF BAI and CIArb | Mr. K. G. Raghavan Senior Advocate | Ganesh Subramaniam, CA | Prof. (Dr.) S. Sivakumar Honorary Chairman of the Commonwealth Law Reform Commission (CLRC) | Mr. B. C. Thiruvengadam Advocate and international arbitrator and mediator | ||
| MEDIATION, CONCILIATION, NEUTRAL EVALUATION AND COLLABORATIVE SETTLEMENT | ||||||
|---|---|---|---|---|---|---|
| Hon’ble Mr. Justice Cyriac Joseph | Mr. A J Jawad | Mr. Shiv Kumar | Mr. Sreelal Warrior | Mrs. Uma Ramanathan | Mr. B. C. Thiruvengadam | |
Mediation in India is divided into two categories which are commonly followed:
Court referred Mediation:
The court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This type of mediation is frequently used in Matrimonial disputes, particularly divorce cases.
Private Mediation:
In Private Mediation, qualified personnel works as mediators on a fixed-fee basis. Anyone from courts to the public, to corporates as well as the government sector, can appoint mediators to resolve their dispute through mediation.
The mediator helps the disputing parties reach a conclusion based on their agreed upon terms. As it is a voluntary process and the parties retain all the rights and powers, any party can withdraw from the process of mediation at any phase without stating a reason. A Mediator is a facilitator who has no power to render a resolution to the conflict. The parties will work towards the solution as the mediator moves through the process, irrespective of whether a mediator is a legal professional or not, he cannot give legal advice while in the role of a mediator.
The mediation process is designed to give parties a better understanding of each other’s business needs. As such, each can look for a win-win solution that upholds their respective interests. The result always remains in the parties’ hands, which reduces potential risks that are so often associated with other forms of dispute resolution.
Mediation is a useful approach when parties in dispute have an ongoing relationship that they wish to preserve, such as a joint venture or long-term supply contract. With mediation, this is possible whereas there is unlikely to be any legal basis for seeking such relief in arbitration or litigation.
To sum up the MEDIATION Process is:
Mediation is beneficial for both the sides as the courts are less burdened and the parties are getting their issues resolved quickly with less hassles and in a smoother way.
You may be wondering now as to what the difference between a Mediation and Arbitration is.Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. in choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Arbitration is an effective method of resolving disputes outside court.
Arbitrator listens to facts and evidence and renders an award. Mediator helps the parties define and understand the issues and each side's interests. Parties present case, testify under oath. Parties vent feelings, tell story, engage in creative problem-solving.
| Arbitration | Mediation |
|---|---|
| Adjudication | Expedited negotiation |
| Arbitrators control the outcome. | Parties control the outcome. |
| Arbitrator is given power to decide. Final and binding decision. | Mediator has no power to decide. Settlement only with party approval. |
| Often extensive discovery is required. | Exchange of information is voluntary and is often limited. Parties exchange information that will assist in reaching a resolution. |
| Arbitrator listens to facts and evidence and renders an award. | Mediator helps the parties define and understand the issues and each side's interests. |
| Parties present case, testify under oath. | Parties vent feelings, tell story, engage in creative problem-solving. |
| Process is formal. Attorneys control party participation. | Process is informal. Parties are active participants. |
| Evidentiary hearings. No private communication with the arbitrator. | Joint and private meetings between individual parties and their counsel. |
| Decision based on facts, evidence, and law. | Outcome based on needs of parties. |
| Result is win/lose award—Relationships are often lost. | Result is mutually satisfactory—A relationship may be maintained or created. |
| More expensive than mediation, but less expensive than traditional litigation. | Low cost. |
| Private (but decisions are publicly available). | Private and confidential. |
Conciliation is another Alternative Dispute Resolution mechanism by which any third party, not necessarily neutral or independent, shall be appointed to facilitate a settlement between parties. The Conciliator, while adhering to confidentiality, may use persuasive skills to bring about a settlement. Conciliation, like mediation, is a voluntary process. BCIC-BIMACC provides a panel of Conciliators who again are drawn from a panel of mediators and arbitrators and prescribes its own rules.
The first step for alternate dispute resolution is that all the agreement should contain an enabling clause alternate dispute resolution.
“In the event of breach of the terms of this Agreement or in the event of any differences or disputes arising between the parties in regard to this Agreement or any matter relating thereto, the same shall be referred for Institutional Arbitration (either through a sole Arbitrator or a panel of arbitrators, as mutually agreed by the parties) by BCIC- BIMACC CENTRE, under the BIMACC Rules of Arbitration. The award of the Arbitrator shall be final and binding on the parties hereto and Arbitration shall be as per the provisions in force of the Arbitration & Conciliation Act, 1996. The Arbitration shall be conducted in English Language and the seat of Arbitration shall be in Bangalore.”
“In the event of breach of the terms of this Agreement or in the event of any differences or disputes arising between the parties in regard to this Agreement or any matter relating thereto, the same shall be referred for Private Mediation under the BCIC - BIMACC Rules by appointing a BCIC- BIMACC Approved Mediator and effort shall be made to ensure the disputes are resolved within 60 days from the date of first hearing by the Mediator, unless mutually agreed to be extended by all the parties, for such extended term. “
“In the event of breach of the terms of this Agreement or in the event of any differences or disputes arising between the parties in regard to this Agreement or any matter relating thereto, the same shall be first referred for Private Mediation under BCIC - BIMACC Rules by appointing a BCIC - BIMACC Approved Mediator and effort shall be made to ensure the disputes are resolved within 60 days from the date of first hearing by the Mediator, unless mutually agreed to be extended by all the parties, for such extended term. If no settlement is arrived at within 60 days, or within such extended time, the parties shall refer the dispute for Institutional Arbitration of BCIC - BIMACC for appointment of a sole Arbitrator by BCIC – BIMACC, under the BCIC - BIMACC Rules of Arbitration. The award of the Arbitrator shall be final and binding on the parties hereto and Arbitration shall be as per the provisions in force of the Arbitration & Conciliation Act, 1996. The Arbitration shall be conducted in English Language and the seat of Arbitration shall be in Bangalore.”
Revathi T – Hon. Registrar
Nethra –Admin – Honorary Asst. Registrar
Roopa, Co-Ordinator (BCIC)
Address: Bangalore Chamber of Industry and Commerce (BCIC), 101, Midford House, 1, Midford Garden, MG Road, Bengaluru 560001
Phone: 080 25583325, 26 /27 / 080 25582232
Email: roopa@bcic.in
Website: www.bcic.in