December 6, 2022

Good morning. It is a short newsletter today with just the feature story. We discuss whether the Mediation Bill 2021 is a step forward.

📰 FEATURE STORY

Mediation Bill 2021 – A Step Forward?

It is common knowledge that the Indian judiciary is synonymous with lackadaisical and tardy processes of the courts. The backlog of cases in the judiciary is enormous and as a way of combating this, the Mediation Bill was introduced in the Rajya Sabha on December 10, 2021. In a country with crores of pending cases, mediation is set to become an effective alternative dispute resolution mechanism. While the Bill has the right intentions, there is a lot of work to be done.

Context

Mediation is a form of alternative dispute resolution, where parties attempt to settle their dispute outside courts with the assistance of an independent third person called the mediator. The purpose of the Bill is to encourage and enable institutional mediation for the settlement of disputes in India. Additionally, it intends to make online mediation an acceptable and affordable procedure while promoting community mediation. It suggests codifying the legislation on mediation and establishing procedures for enforcing settlement agreements established through mediation.

On December 20, 2021, the Mediation Bill, 2021 was introduced in the Rajya Sabha, and the Parliamentary Standing Committee was tasked with reviewing the Bill. The Rajya Sabha received the committee’s report on July 13, 2022. In its report, the Committee highlighted important recommendations for amending the Mediation Bill in order to institutionalize mediation and establish the Mediation Council of India.

Although mediation was not specifically governed by the law in India, it was covered by a number of other statutes, including the Code of Civil Procedure (1908), the Arbitration and Conciliation Act (1996), the Companies Act (2013), the Commercial Courts Act (2015), and the Consumer Protection Act (2019). The Supreme Court of India’s Project Committee on Mediation and Conciliation describes mediation as a tried and tested alternative to traditional conflict resolution methods.

It is further appropriate to adopt legislation governing both domestic and international mediation since India is a signatory to the Singapore Convention on Mediation (officially known as the United Nations Convention on International Settlement Agreements Resulting from Mediation).

VIEW: The Mediation Bill is a step forward

The Bill recognizes that mediation has matured and should be recognized as a profession, which is a significant improvement over the court-annexed mediation schemes’ honorarium-based part-time model. The Bill recognizes the significance of training programmes for mediators and service providers offering structured mediation in accordance with their guidelines. Pre-litigation mediation is also provided. Although such a remarkable move, it is designed to be easy to implement.

The mediator must explain the process to the parties in at least one substantial session with them. After that, they are free to decide whether to keep going with the mediation or completely discontinue it and pursue legal action. They can even skip mediation at the beginning and return to it after resolving the problem of interim relief if any urgent interim orders are required.

The Bill also eliminates confusion caused by the use of the terms “conciliation” and “mediation” in separate statutes by selecting the former in accordance with international practice and broadly defining it to include the latter. Additionally, it recognizes online dispute resolution, a process that is going to move mediation from the wings to centre stage in a world that COVID-19 has changed.

The Singapore Convention on Mediation, to which India was a significant party, provides for the enforcement of commercial settlements achieved through international mediation between parties from different nations. Contrary to the fresh hassles that the litigation decree or arbitration award present at the time of enforcement, the Convention assures disputants that their mediation settlements will be enforced without much difficulty around the world.

COUNTERVIEW: The Mediation Bill needs work

It is anticipated that this Bill will establish India as a centre for international commercial conflict mediation, and organizations are already being established in this regard. The exact opposite may also happen. This is because international mediation that takes place in India would not be treated by the Bill as domestic mediation. The latter gives the settlement the status of a court’s judgment or decree. That is great for instances involving Indian parties, but it is terrible when one party comes from outside India.

According to the Bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court, whether or not there is a mediation agreement between them. Without a valid reason, parties that miss pre-litigation mediation may be penalized. However, according to Article 21 of the Constitution, having access to justice is a fundamental right that cannot be denied or restricted. Making mediation anything other than voluntary would be a denial of justice.

In addition, pre-litigation mediation will be performed in accordance with the rules or norms established by the Supreme Court or High Courts, as stated in Clause 26 of the Bill. The Committee, however, objected to this. It stated that Clause 26 went against the spirit of the Constitution. In countries that follow the Common Law system, it is a healthy tradition that in the absence of statutes, apex court judgments and decisions carry the same weight. The moment a law is passed, however, it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, Clause 26 is unconstitutional.

Reference Links:

The Mediation Bill is a step in the right direction – The Leaflet
Explained | The Mediation Bill, 2021 – The Hindu
Mediation Bill, 2021: Necessity Or Over-Complication? – Mondaq
Mediation Bill allows mediation on par with arbitration and litigation – The Economic Times
Mediation Bill: Not getting the Act together – The Hindu
Analysis Of The Mediation Bill, 2021 – Mondaq

What is your opinion on this?
(Only subscribers can participate in polls)

a) The Mediation Bill 2021 is a step forward.

b) The Mediation Bill 2021 needs work.