Bill in Rajya Sabha to formalise pre-litigation mediation

• The Centre introduced in the Rajya Sabha the Mediation Bill, 2021, which institutionalized the Alternative Dispute Resolution (ADR) mechanism of pre-litigation mediation in matters of civil or commercial dispute before parties approach a court or a tribunal.

About:

• Mediation Council of India: The Bill provides for the establishment of the Mediation Council of India.

• Section 6 of the Bill: says that any party before filing any suit or proceedings of civil or commercial nature in any court shall take steps to settle the dispute by pre-litigation mediation in accordance with the provisions of the proposed law.

• Objectives: The objectives of the Council would be to promote mediation and to develop India as a robust centre for domestic and international mediation, make regulations for registration of mediators, grade mediation service providers, specify criteria for recognition of mediation institutes and mediation service providers.

• Arbitration and Conciliation Act, 1996: The Bill subsumes conciliation under Part III of the Arbitration and Conciliation Act, 1996, and uses “conciliation” and “mediation” interchangeably.

• Deadline: The Bill sets a period of 180 days for completing the mediation process which is further extendable to a maximum period of 180 days with the mutual consent of the parties.

• Binding on the parties: The mediated settlement agreement resulting from mediation which will be final and binding and will be enforceable in accordance with the provisions of Code of Civil Procedure, 1908, in the same manner as if it were a judgment or decree of a Court.

• Conduct of community mediation: with consent of parties for disputes which are likely to affect peace, harmony and tranquility amongst the residents or families of any area or locality.

• Indicative list of matters which are not fit for mediation: This include disputes which by virtue of any law for the time being in force may not be submitted for mediation,

• Disputes involving allegations of serious and specific fraud,

• Fabrication of documents,

• Forgery,

• Impersonation,

• Coercion,

• Disputes relating to claims against minors, deities;

• Persons with intellectual disabilities,

• Disputes involving prosecution for criminal offenses,

• Proceedings before various Commissions and appellate tribunals,

• Land acquisition and determination of compensation under land acquisition laws, or any provision of law providing for land acquisition and any other subject-matter of dispute which may be notified by the Centre.

Issues

• No comprehensive law: ADR mechanism of mediation finds mention in various existing laws, but there is no comprehensive law governing the various aspects of mediation.
• Open-ended and ambiguous: Certain provisions have been left open-ended and ambiguous by the drafters, which need to be addressed urgently.
• Lack of infrastructure: India does not have enough infrastructures, such as no. of mediators and mediation centres etc for mandatory mediation.
• Counterproductive: forcing unwilling parties to go for mediation can be counterproductive.

Significance

• Effective dispute resolution: The Bill promises an effective dispute resolution process.
• Impact on doing business: The legislation can have a significant impact on the economy and doing business in the country.
• Reduces the burden on the courts: Mediation results in amicable resolution of disputes in civil, commercial, family and matrimonial matters and fosters collaborative approach, reduces the burden on the courts, and preserves relationships amongst disputants.
• Interests of all the stakeholders: Bringing a comprehensive mediation law and providing for online mediation may serve the interests of all the stakeholders as an effective alternative mechanism for resolving disputes.