RESOLVING COMMERCIAL DISPUTES IN INDIA: FOCUS ON ‘MEDIATION’ AS AN EFFECTIVE ALTERNATIVE ‘TOWARDS
EASE OF DOING BUSINESS’
Disputes are inevitable in commercial transactions and this gets further complicated when it comes to cross-boundary commercial transactions. It has frequently been experienced that the parties to a commercial dispute, including international commercial transaction disputes, take a recourse to arbitration. Institutions like I.C.C., L.C.I.A. and I.C.S.I.D. have evolved and are handling the matters relating to international commercial disputes. While one may say that, the international dispute settlement mechanism in commercial matters is invariably ‘arbitration’, as parties do not prefer to choose litigation due to its inherent lacunae of delay and costs, the new methods or alternate methods of dispute settlement are still evolving. Mediation is one such method and has proven itself to be unique and quite successful settlement process when conducted by a skilled mediator. As regards its utility, mediation is more useful as compared to arbitration because of its principle of parties themselves coming to a settlement and ‘without prejudice’ process. However, the parties to a commercial dispute or an international commercial transaction dispute have not accepted mediation that readily. This paper explores the reasons behind that by examining the existing literature and the efforts put in by the countries in promoting mediation as a method of settlement of commercial disputes. It explores if ‘mediation’ can emerge as an important alternative to the dispute settlement mechanism for settling commercial disputes.