Mediation Bill

Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill 2021, meant for institutionalisation of mediation and establishment of the Mediation Council of India.

What is Mediation?

• Alternate dispute resolution (ADR) refers to means by which disputes are settled outside the traditional court system.
• In India, modes of ADR include Arbitration, Negotiation, Mediation, and Lok Adalats.
• Mediation is a voluntary process in which parties try to settle disputes with the assistance of an independent third person (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.
• As a mode of ADR, mediation helps reduce the case burden on courts.

Mediation in India –

• At present, mediation in India may be —
  • • Court referred (courts may refer cases to mediation under the Code of Civil Procedure, 1908),
    • Private (for instance, under a contract having a mediation clause), or
    • As provided under a specific statute (such as the Commercial Courts Act, 2015, the Consumer Protection Act, 2019, or the Companies Act, 2013).
• Mediation services are provided by private ADR centres or mediation centres, as well as centres set up by courts or tribunals (known as court annexed mediation centres).

Features of the draft Mediation Bill, 2021 –

The main features of the Bill are –

• The draft Bill proposes for pre-litigation mediation and at the same time safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case an urgent relief is sought.
• The successful outcome of mediation in the form of Mediation Settlement Agreement (MSA) has been made enforceable by law. Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
• The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
• The registration of Mediation Settlement Agreement has also been provided for with State/District/Taluk Legal Authorities within 90 days to ensure maintenance of authenticated records of the settlement so arrived.
• Provides for establishment of the Mediation Council of India.
• Provides for community mediation.

Concerns raised by the committee –

• Making pre-litigation mediation compulsory —
  • • The committee has cautioned against making pre-litigation mediation compulsory.
    • It also warned the Centre against the provision to give higher courts the power to frame rules for mediation.
    • As per the committee, making pre-litigation mediation mandatory may actually result in delaying of cases.
      • It may prove to be an additional tool in hands of truant litigants to delay the disposal of cases.
    • The panel has suggested that pre-litigation should be made optional and introduced in a phased manner instead of introducing it with immediate effect for all civil and commercial disputes.
• Regarding definition of Mediation —
  • • The members also said that the existing definition of ‘mediation’ needs to be reframed.
    • They said since the definitions are given in Clause 3 of the Bill, there is no need to define ‘mediation’ separately in Clause 4.
• Regarding Mediation Council of India —
  • • According to present provisions in the Bill, people dealing with problems relating to ‘Alternative Dispute Resolution’ can become members and chairman of the council.
    • The panel insists that the Chairperson and full time Members to have ‘shown capacity’ and ‘knowledge and experience’ in ‘mediation.’
    • Also, the panel has recommended that such Mediation Councils should be instituted in the States as well.