The Mediation Bill of India: An Analysis

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• Introduction

The Mediation Bill was introduced in Rajya Sabha in 2021. It seeks to promote Mediation [including online] and provide for enforcement of settlement agreements resulting from Mediation.
Due to significant opposition, the bill was sent to standard committee. There are 24 departmental related standing committee in parliament 16 out of this works under Lok Sabha and 8 out of this Works under Rajya Sabha.
The Parliamentary standing committee on Personal grievances, law and justice which was headed by Bhartiya Janta party MP Sushil Kumar Modi presented his report on Mediation Bill to the chairman of Rajya Sabha Venkaiah Naidu and to the speaker of Lok Sabha Om Birla.

• What Is Mediation?

Mediation is a form of Alternative Dispute Resolution [ADR] where parties try to solve their dispute outside court with the assistance of Mediator

. It is a voluntary process.
Parties appoint a neutral third person whose name is Mediator to resolve their dispute.
Mediation process depends upon the choice of parties and there are no binding rules of procedure.
Whatever the solution mediator gives does not bind the parties it is basically an informal mechanism to resolve the dispute.
Mediation process is still being done in India but court always gives order for mediation but no particular set of rules or guidelines regarding mediation is there.
Mediation bill was made to make a separate mediation law.

• Various Acts or laws in which mediation is expressed

1. The code of civil procedure 1908
2. The Arbitration and conciliation act 1996
3. The Companies act 2013
4. The Commercial court act 2015
5. The Consumer Protection act 2019

¹ 1609-Preli.p65 (prsindia.org)sec 22

• Key Features of the Bill

1. Applicability
   As per section 2 of mediation bill this mediation act will apply where mediation is conducted in India-
   I. All or both parties habitually reside in or incorporated in or have their place of business in India
   II. The mediation agreement provides that any dispute shall be resolved in accordance with the provisions of this act
   III. International mediation ²

2. Exception
   Cases where no mediation is applied
   I. When the claim is against a minor or unsound mind
   II. Prosecution of criminal offences
   III. Affecting the rights of third party
   IV. Relating to levy or collection of taxes

3. Mandatory Pre litigation Mediation
   This Mediation bill says that before approaching any court parties must try to settle the dispute by mediation.

4. Time limit for the settlement of dispute
   I. Process of mediation will be confidential
   II. Parties must do minimum 2 session of mediation and then if party wants can withdraw after that
   III. It is compulsory that final outcome of mediation should come within 180 days and more 180 days extension can be given

5. Mediators
   I. Mediators will only assist the parties and not impose settlement and outcome of mediation is not binding on parties
   II. Any conflict on interest of mediator to the case shall be declared
   III. Parties themselves can appoint mediator or mediator can be appointed by mediation service provider of mediation council of India

1609-Preli.p65 (prsindia.org)sec ²

6. Mediation council of India [MCI]
   I. Central government will establish MCI and it will consist of 7 members which will be appointed by central government and will consist of 1 chairperson + 2 full time members + 3 ex officio members +1 part time member.
   II. MCI will register the mediators and will regulate the mediation service provider and institute
   III. This bill will not apply to legal service authorities act 1987, Industrial Relations code 2020 etc.

7. Community Mediation
   The bill provides for community mediation to resolve disputes which may affect the peace and harmony of the locality. A panel of three members will be formed in every community.

8. Settlement of mediated settled agreement
   The agreement of the settlement between the parties in dispute shall be binding and final.
   This binding effect gives such agreement the status of decree.
   However, the outcome can be challenged on the ground of fraud, corruption and dispute not related to cases fit for mediation

• Need of Mediation in India

A. As of May 2022, over 4.70 crore cases are pending in courts across different levels

B. 4.1 crore are the subordinate court level, 59 lacs at High Court and 70 thousand cases in Supreme court

C. Out of this 1.8 crore cases are civil cases

D. 1.82 lacs cases are pending for 30 years

³ Over 4.70 crore cases pending in various courts: Govt (moneycontrol.com)

• Parliamentary Committee Report

In this report it was said that some changes should be made in this bill.4 Parliament said that mediation should there as there are burden of cases on High court, Supreme court and subordinate court.

✓ changes which are needed as per parliament committee report are:

1) Pre- litigation –

It is mentioned that it is mandatory for every commercial case to first to attempt to settle the case through mediation will lead to wastage of time
It was recommended that pre-litigation should be made optional.

2) Non- Applicability–

Parliament questioned on Non applicability of mediation bill on tax matters as it involves government.
It was recommended that mediation bill should be applicable on tax matters.

3) Mediation Council of India

It was said that the members which are appointed for this committee shall be appointed through selection committee and the selection committee shall consists of experts who have expertise in mediation process or legal process.

4) It was suggested that if mediation council will be on central level then how much cases they will handle. So, it would be better that in each state mediation council should be established.

5) Identification number should be issued to each mediator by the medication council

6) Medication council of India to hold training sessions for the mediators and sufficient credit points should be given to them to be able to continue their work

7) Time limit for outcome of mediation which was 180 days + 180 days should be reduced to 90+ 60 days

(⁴ Parliamentary panel submits report on Mediation Bill, 2021 | Latest News India – Hindustan Times)

• Pros of Mediation

a) Cost Effective
Less money will be used as compared to the money used in court cases

b) Informal
No strict rules and procedure

c) Confidentiality of the process
All the information and evidence which are presented during the mediation process is kept confidential thus no outside party have access to the mediation proceedings.

d) Convenient
The parties can control the time, venue and duration of proceeding to a large extent

e) Flexible
There is no set of formula for mediation. Different mediators have different style. It can effectively be used at any time during the course of the dispute.

f) If solution can not be achieved then other options are also available

g) Speedy Process
The amount of time needed for mediation is less as compared to the time needed for trial or arbitration.

• Cons of Mediation

i. Many people don’t know about mediation but they know about court proceedings
ii. Uncooperative parties can render mediation a waste of time
iii. Unskilled mediator can lead to unprotected resolution
iv. Party withholding information can make mediation difficult
v. All parties must agree to the resolution and results are not guaranteed

Conclusion

Despite the challenges, the Mediation bill is a great initiative towards solves the problems relating to judicial infra and pending cases. It is a cheaper and faster dispute resolution mechanism.
International convention centre Hyderabad stated that “The court should be the last resort for dispute resolution. Therefore, one should look for the choices of alternative dispute resolution.”
Until now, India does not have any concrete legislation governing mediation.
But the draft bill suffers from many drawbacks which is mentioned in Parliamentary committee report such as pre litigation shall not be made mandatory as it will lead to wastage of time and online mediation shall also be included in the bill as it is necessary in today’s time. The suggestions which are mentioned in report shall be looked into and a separate mediation act should be made.

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(Written by Ms. Diya Saini for IPI)

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