Better sense of peace when parties agree to mediation: Justice Gita Mittal

Better sense of peace when parties agree to mediation: Justice Gita Mittal

Former Chief Justice of the Jammu & Kashmir High Court was speaking at a webinar

Former Chief Justice of the Jammu & Kashmir High Court Gita Mittal has advocated for mediation among warring parties. She said that even if the litigators were not able to resolve disputes, the tension in the courtroom was visibly reduced due to mediation.

She was speaking at a webinar organized by the Indo-Canadian Business Chamber (ICBC) and Air Canada. At the ICBC LeaderSpeak: Arbitration & Dispute Resolution (Perspectives from India & Canada) webinar, Justice Mittal discussed new trends in India's alternate dispute resolution (ADR) system.

Speaking from experience as a judge and now, an arbitrator, she said, "The sense of peace in the community, in the courtroom and in the family, is much better when the parties agreed to go for mediation."

Observing the lacuna in the Indian arbitration laws with respect to emergency awards, she discussed the judgments of the Supreme Court. "An emergency award was upheld by the court in a dispute raised by Amazon, wherein it recognized the legal validity of an emergency award without any legislative intervention and without any legislative provision for an emergency award in arbitration laws," she said.

On the 1996 Act and future amendments, she maintained the Act replaced the "very old and outdated" Arbitration Act of 1940 and completely modernized arbitration in India by providing that an arbitration award could only be set aside on a few grounds.

Yet, 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 admitted, the legislature recognized this difficulty and addressed it in 2015.

Justice Mittal also noted that since 2019, "We have two types of arbitration. First, commonly called, as ad hoc arbitration is where the parties nominate an arbitrator or an arbitral tribunal. They evolve their own procedures on agreed terms with the parties and proceed on that. Second, institutions like the Mumbai Centre for International Arbitration (MCIA), International Centre for Alternative Dispute Resolution (ICADR) and the Nani Palkhivala Arbitration Centre (NPAC), have several popular court-annexed centres."

The judge said that the advantages of arbitration were not only cost efficiency or speedy adjudication, but also provided an opportunity to the parties to choose the arbitrators as well as the process for adjudicating the dispute.

"You have a choice of the manner in which you will file your claims, counter-claims and defence. You also choose as to whether you will lead oral evidence or rely on affidavits or rely only on documentary evidence," she simplified.

She further stated that India had the advantage of the presence of several globally recognized offices including the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA) and Singapore International Arbitration Centre (SIAC) providing full services.

"I understand that institutional arbitration has become so popular that MCIA saw a 150 per cent rise in the caseload in 2020," she said.

Justice Mittal appreciated that India had very good facilities for arbitration and people from across the world were arbitrating in the country.

The ICBC is the only organization based in India, which is dedicated to promoting Indo-Canadian economic and bilateral relations. It 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.