THE CONTEXT: In the recently concluded Monsoon Session, the Parliament has passed the Mediation Bill, 2021. The Bill provides a system of mediation for improving justice delivery. This article examines the Bill critically to enable the students in developing the right perspective.
WHAT IS MEDIATION AND HOW IS IT CONDUCTED?
- Alternate Dispute Resolution (ADR) refers to how disputes are settled outside the traditional court system. In India, modes of ADR include arbitration, negotiation, mediation, and Lok Adalats.
- ADR mechanism is quicker, cheaper, and more user-friendly than courts. It gives people an alternative way of resolving their disputes which is not possible in a public, formal and adversarial judicial system.
- Mediation is a voluntary process in which parties try to settle disputes with the assistance of an independent third person or the mediator. A mediator does not impose a solution on the parties but creates a conducive environment in which they can resolve their dispute.
- The mediation process depends on the choice of parties, and there are no strict or binding rules of procedure.
- Benefits of mediation include its voluntary and non-adversarial nature, the flexibility and confidentiality of the process, its speed and cost-effectiveness, and the finality of consensual settlements.
Existing Provisions for Mediation:
- At present, mediation in India may be:
1. Court referred: The courts may refer cases to mediation under the Code of Civil Procedure, 1908.
2. Court Annexed mediation centres: Mediation services are provided by private ADR centres or mediation centres, as well as centres set up by courts or tribunals.
3. Private, for instance, under a contract having a mediation clause and one of the examples is International Arbitration and Mediation Centre (IAMC) in Hyderabad for resolving commercial disputes and between Government of Telangana and common public.
4. As provided under a specific statute such as the Commercial Courts Act, 2015, the Consumer Protection Act, 2019, or the Companies Act, 2013, Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996.
THE SALIENT FEATURES OF THE BILL
VOLUNTARY MEDIATION
- Under this provision, mediation is a voluntary process, allowing parties to choose whether or not to pursue pre-litigation mediation for resolving their disputes.
DISPUTES NOT FIT FOR MEDIATION
- The Bill contains a list of disputes which are not fit for mediation.
- These include disputes:
1. relating to claims against minors or persons of unsound mind,
2. involving criminal prosecution, and
3. affecting the rights of third parties.
The central government may amend this list.
APPLICABILITY
- The Bill will apply to mediations conducted in India:
1. involving only domestic parties
2. involving at least one foreign party and relating to a commercial dispute (i.e., international mediation)
3. if the mediation agreement states that mediation will be as per this Bill.
- If the central or state government is a party, the Bill will apply to:
1. commercial disputes
2. other disputes as notified.
TIMELY COMPLETION OF MEDIATION PROCESS
- The mediation Bill states that proceedings must be completed within 180 days and this includes the extension period.
APPOINTMENT OF MEDIATORS
- Mediators may be appointed by:
1. the parties by agreement
2. a mediation service provider (an institution administering mediation).
- They must disclose any conflict of interest that may raise doubts on their independence. Parties may then choose to replace the mediator.
MEDIATION COUNCIL OF INDIA
- The Bill establishes the Mediation Council of India.
- The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
- Functions of the Council include:
1. registering mediators
2. recognising mediation service providers and mediation institutes
3. grading mediation service providers
4. laying down standards for professional conduct of mediators, mediation service providers, and mediation institutes.
FINAL AND BINDING
- Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
- They may be challenged on grounds of:
1. fraud
2. corruption
3. impersonation
4. relating to disputes not fit for mediation.
COMMUNITY MEDIATION
- Community mediation aims to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
- It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).
THE SIGNIFICANCE OF THE BILL
LEGAL RECOGNITION
- The Bill is expected to give a legal framework to a mode of dispute resolution that has largely been informal so far.
- The legal intervention would provide statutory recognition to mediation and enable growth of a culture of settlement of disputes, out of court.
EASE OF DOING BUSINESS AND PEACE AND HARMONY
- Another striking feature of the Bill is community mediation that may be attempted to resolve dispute which likely to affect the peace and harmony among residents of a locality and will create conducive environment for businesses.
- The Bill also has provisions for settlement of commercial disputes to ensure that mediators are able to handle complex commercial disputes arising out of business dealings, thereby creating confidence in the business community.
- It not only helps in preserving the relationship amongst the parties offering ease of business but also contributing in the growth of the economy.
ENFORCE ABILITY OF AWARDS
- The mediation Bill seeks to institutionalise mediation and provide for enforcement of settlement agreements resulting from mediation as an alternative to litigation in the courts.
CONFIDENTIALITY
- India has a litigant society where individuals, governments and institutions resort to litigation and take even simple disputes to court.
- In this respect, maintaining confidentiality is must, and will the Bill is non-adversarial in nature and based on consent which ensure confidentiality. Also, the process is more flexible than other resolution routes.
ADHERENCE TO INTERNATIONAL CONVENTION
- As India is a signatory to the Singapore Convention on Mediation
(formally the United Nations Convention on International Settlement Agreements Resulting from Mediation), it is appropriate to enact a law governing domestic and international mediation.
MEDIATION AND ACCESS TO JUSTICE
As per Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted. In this respect, mediation can help promote easy and speedy justice delivery in the following ways.
COST EFFECTIVE
- Mediation is a cost-effective dispute resolution process because it is much cheaper, it can help to curb the upward spiral of legal costs and legal aid expenditure too, which would benefit the parties and the taxpayers.
FASTER PROCESS
- This Bill makes the process a time-bound mechanism which saves time and money of parties by bringing down the time period to 180 days in total.
- As this process is faster than that of the courts, it reduces the burden on the courts.
LESSEN HUGE PENDENCY
- The courts are weighed down by a huge backlog of cases and at the present pace of work, it will take decades to clear the backlog.
- The Bill has been conceived as a help for unclogging courts reeling under massive pendency of cases by providing an institutional mechanism to promote mediation before a dispute is taken to the court.
- The Bill also aims to reduce the burden on courts by encouraging warring parties to resolve their own disputes with the assistance of trained mediators and mediations facilitated by authorised mediation institutions
ACCESSIBLE AND AFFORDABLE
- As, the courts are costly and time taking, many people couldn’t afford going to courts which is unfair to them. But justice is not something that belong to a class of people, it has to be accessible to all irrespective of any economic status, etc, without any discrimination.
- The Bill has expanded the possibility of better availability and increased access to mediation.
FLEXIBLE AND RESPONSIVE
- The mediation Bill provides for enough flexibility and is responsive for both the parties to give them opportunity to tell their part of the stories which ensures equality of justice.
CRITICISM OF THE BILL
EXCLUSION OF GOVERNMENT
- The Bill excludes governments which is one of the biggest litigants, from the scope of civil mediation.
- It defeats the purpose of the Bill and governments shouldn’t get special treatment and should be treated as ordinary litigants.
EXCLUSION OF LAWS
- The Bill excludes some laws, such as the law on Family Courts Act, 1984, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Sexual Harassment of Women at Workplace Act, 2013.
- These are disputes where sensitive relationships are involved and the adversarial processes therein may be misused.
- Hence a choice of forum is necessary for effective justice delivery in these cases.
NO PROVISION FOR ENFORCING CERTAIN INTERNATIONAL MEDIATED SETTLEMENTS
- The Bill will apply to international mediation only if they are conducted in India.
- It does not provide for enforcement of settlement agreements resulting from international mediation conducted outside India.
- It can affect India’s image in the international scenario as India being a party to Singapore convention.
LACK OF REPRESENTATION OF PRACTICING MEDIATORS IN THE COUNCIL
- The extent of mediation competence in the Mediation Council that is to be set up is inadequate as only one member among the entire Council is compulsorily required to have the knowledge of mediation law.
- The Mediation Council, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience. This is unlike other professional regulators such as the Bar Council of India.
REQUIRING CENTRAL GOVERNMENT APPROVAL
- The Mediation Council requires prior approval from the central government before issuing regulations related to its essential functions which may not be appropriate.
- This may also be questioned since the central government may be a party to mediations.
THE WAY FORWARD
- Need to Raise Awareness: The Mediation has to be encouraged by making people aware of its need. More mediation institutions has to be promoted as well as there can be training programmes on such mechanisms. As mediation requires a change in mindset, a good experience of mediation is the best way to convince litigants to use mediation.
- Application of Mediation Provisions to Governments: As per former CJI N V Ramana, government forms the biggest litigant accounting for nearly 50%. Hence the exemptions given to the governments need to be reduced to ensure the effectiveness of the mediation system.
- Ensuring Transparency: Any mediation process must be free of extraneous pressures, just like a law court, in order to be meaningful. The process must also earn the trust of the people. Mediation will help in the future if these conditions are fulfilled.
- Infrastructure: Enough of infrastructure should be set up at the earliest and it must be ensured that the mediation system is neutral and unbiased.
- Proper Representation: The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution. As Mediation is a craft and skill-based and those who have training, experience, knowledge of mediation law and autonomy are required for leadership.
- International Scenario: The Bill needs to be in greater harmony with the Singapore Convention, which eases cross-border dispute settlement. It will benefit the country and the legal framework is necessary for ratification. Various countries including Australia, Singapore, and Italy have standalone laws on mediation where parties may withdraw from the mediation process after two sessions.
THE CONCLUSION: The statutory recognition to mediation for collaboration, dialogue, reconciliation and problem-solving is an achievement in order to enable a faster resolution of disputes. However, there are several issues and the Bill should be implemented after discussion with stakeholders.
MAINS QUESTIONS:
Q.1 What do you understand by Mediation? Do you think that the Mediation Bill 2021 can promote better access to justice and reduce pendency in judiciary? Argue.
Q.2 “The Mediation Bill 2021 aims at institutionalizing mediation in India but its implementation suffers from multiple challenges”.
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