MEDIATION: ANALYSIS OF MEDIATION DRAFT BILL 2021

Introduction

Mediation is a part of alternative dispute resolution (ADR) in which parties try to solve their disputes amicably, unlike litigations. The need for ADR can not be ignored when there is a huge number of pending cases from a musiff court to the court of CJI. ADR includes arbitration, negotiation, conciliation, and mediation. The toll for pending cases in India has reached the 4.70 crore mark including 70000 pending cases in the supreme court only, as informed by the union law minister Mr. Kiren Rijiju in the parliament.[1] These numbers are scary if we look at the number of judges in the supreme court and high courts, which is 34 and 1104 (of which 34% are vacant) respectively. Looking at these figures, it becomes imperative to have mandatory ADR in some cases. This article shall cover what mediation is and the recently introduced mediation draft bill 2021.

What is mediation?

It is a way of resolving disputes in which parties voluntarily take part and reach a settlement with the help of a neutral third party(mediator). The decision of the mediator is non-binding and the process is also a non-adversarial one. As there is no win or lose, it tries to create a friendly environment between the parties to reach a settlement through negotiation. It focuses on making a win-win situation for the parties.[2]

Types of mediation

There are mainly two types of mediation:

  1. The court-annexed mediation: Section 89 of the civil procedure code was amended in 1999 to provide for such type of mediation for settling disputes via mediation and to empower courts to refer a matter to mediation if they think it can[3]. Usually, divorce and matrimonial cases are referred to court-annexed mediation.
  2. Private mediation: In this type of mediation a private mediator is appointed by the parties to mediate the case. A fixed amount of money is paid by the parties for that purpose.
Features Of Mediation Draft Bill 2021

There is no codified law on mediation in India till now. However, a bill has been introduced in Rajya Sabha on 20 December 2021 to make it at par with arbitration and other ADR mechanism. Although, it is taking its final shape in the standing committee.[4] The following are the features of the bill:

  1. Mandatory pre-litigation mediation: The bill would make it mandatory for the parties to take up mediation in civil and commercial disputes before approaching courts.[5] However, the parties can withdraw after taking at least 2 sessions.
  2. Time limit for the settlement of dispute: A time limit of 180 days has been fixed under the bill for settling the disputes. However, an additional extension of 180 days is allowed with the consent of the parties. In court-annexed mediation, the proceedings shall be as per the rules framed by the supreme court or high courts[6].
  3. Mediation council of India: The council shall consist of: 1) the chairperson,2) two full-time members with experience in ADR, 3) three ex officio members, and 4) one part-time member from the industry body. The function of the council will be to regulate and give training to the mediators and centers providing the same services.[7]
  4. Status of mediated settled agreement: The settlement agreement between the parties in disputes will be binding and final. This gives such agreements the status of a decree. However, they can be challenged on the ground of fraud, corruption, impersonation, and dispute not related to cases fit for mediation. It shall be enforced as per the provisions of the code of civil procedure 1908.
  5. 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]

It cannot be denied that mediation is the need of the hour(looking at the number of cases pending, scarcity of judicial infra, and vacancy of judges at high courts and subordinate courts). Therefore, the move of introducing the mediation bill in the parliament by the government can prove to be a milestone in encountering the pending number of cases and other problems like judicial infra. However, there are some challenges and key issues in the bill and its enforcement.

Challenges

There is a saying that change is always hard to accept but it is inevitable. The need for the change to bring mediation to the mainstream and make it a mandatory part of the justice delivery system in the country has been recognized by experts, judges, and the government. Therefore, the mediation draft bill was introduced in Dec 2021. However, there will be some challenges that the government and authorities will have to encounter during its implementation.

Following are the most important challenges coming in the way:

  1. Public mindset: It won’t be easy for the general public to accept mandatory pre-litigation mediation. Parties who are unwilling to mediate would defeat the essence of mediation. The essence of mediation is that parties voluntarily take part with equal consent of all the disputing parties. mediation in other developed countries has proved to be a successful initiative because the public and the business houses accepted it with zeal.[9]
  2. Mediation council of India: the draft bill envisages the formation of a mediation council of India. However, the bill is silent over some main things:
    1. The bill should make the membership of the practicing mediators mandatory on the council.
    2. The bill is silent over which entities will be recognized as the mediation center by the council.
    3. The requirement of approval central government before releasing any regulation by the council under the bill can pose a challenge to the working and autonomy of the council.
  3. Role of advocates: We should not forget the role of advocates before introducing any change in the legal industry as they are the ones who are approached by the parties before anyone else and the advice of an advocate plays a vital role in making up of client’s mind for taking a remedy in a dispute. Therefore, regular sessions on the topic of mediation should be conducted in every court from bottom to apex.
  4. International mediation: The bill does talk about the international mediation settlement agreement resulting from a mediation conducted in India where one of the parties is a foreign party. It gives the status of a court decree to such settlement agreements. However, the bill is silent on the enforcement of the settlement agreements resulting from mediation conducted outside India. Also, India is a signatory to the Singapore mediation convention (U.N on settlement agreement resulting from mediation), which recognizes this kind of settlement agreement, unlike mediation draft bill 2021.[10]

Conclusion

Despite the above challenges, the mediation draft bill is indeed a great initiative toward solving the problems related to judicial infra and pending cases. The bill is already under consideration of the standing committee on personnel, public grievance, law, and justice and taking its final shape. Any positive change can become an imposition without the support of the public. The success of mediation in developed countries could have never been possible if the public had not been open in arms for it. The requirement of at least two mandatory mediation sessions under the bill, along the lines of Italy, Brazil, and Turkey, should be seen as a positive step by the public. The public should also know that they have an unconditional right to withdraw at any time after two sessions. Government shall also have to be careful in listing the cases that will be fit for mediation. There are already 4.70 crores pending cases in courts[11], which is alarming. Mediation is the need of the hour. Therefore, no negligence can be afforded during its introduction and implementation as the pending number of cases is on the rise and the clock is ticking. Therefore, the following suggestions should be considered:

  1. To change the public mindset, more and more public engagement sessions related to mediation should be held. Also, regular sessions for advocates practicing in lower courts and high courts should be conducted so that advocates could convey the advantages of mediation to their clients.
  2. Effective participation and autonomy in the mediation council of India should be ensured.
  3. India is a signatory to the Singapore mediation convention but has not ratified it yet. Like the Singapore convention on mediation, India should also recognize the settlement agreement resulting from international mediation.[12]

Author(s) Name: Lovesh Mamnani (Campus Law Centre, University

of Delhi)

References:

[1] Over 4.70 crore cases pending in various courts: Govt(Mar 25, 2022), Economic times, https://economictimes.indiatimes.com/news/india/over-4-70-crore-cases-pending-in-various-courts-govt/articleshow/90447554.cms, ( accessed on May 11, 2022)

[2] Soumya, India: Analysis Of The Mediation Bill, 2021 (25 Apr 2021), https://www.mondaq.com/india/arbitration-dispute-resolution/1186378/analysis-of-the-mediation-bill-2021 (accessed on May 7, 2022)

[3] Civil procedure code, 1908

[4] ‘Mediation Bill 2021’ referred to Parliamentary Standing Committee’s public grievances dept for examination, report Read more At:   https://www.aninews.in/news/national/general-news/mediation-bill-2021-referred-to-parliamentary-standing-committees-public-grievances-dept-for-examination-report20220128145644/   

[5] Mediation Draft Bill, 2021 https://legalaffairs.gov.in/actsrulespolicies/mediation-bill-2021

[6] See Supra note 2

[7] Mediation bill, 2021, http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/Mediation-RS%20int-20%2012%2021-E.pdf  ( last accessed on May 7, 2022)

[8]  See Supra note 5

[9] Maulik Vyas, Mediation Bill allows mediation on par with arbitration and litigation: Centre for Advanced Mediation Practice founder, (Feb 23, 2022), https://economictimes.indiatimes.com/news/india/mediation-bill-allows-mediation-on-par-with-arbitration-and-litigation-centre-for-advanced-mediation-practice-founder/articleshow/89781107.cms  (accessed on May 7, 2022)

[10]Singapore mediation convention (convention text)  https://www.singaporeconvention.org/convention/text. Last accessed on May 11, 2022

[11] See Supra note 1

[12] See supra note 10