The Mediation Bill 2021, a landmark legislation aimed at streamlining mediation proceedings and fostering efficient dispute resolution, has secured parliamentary approval in both houses. This significant development establishes India’s dedicated legal framework for mediation, known as “Samadhan.” While this marks a positive step forward, it is important to address certain aspects of the bill that require refinement for optimal effectiveness.
The Mediation Bill, 2021
Introduced in the Rajya Sabha in December 2021, the Mediation Bill is the outcome of a thorough review by the Parliamentary Standing Committee. Its primary objective is to institutionalize mediation as a formalized process and to establish the Mediation Council of India.
Key Features of the Bill
- Pre-Litigation Mediation Mandate: Parties involved in civil or commercial disputes are required to attempt mediation before resorting to court proceedings or specific tribunals. Additionally, even if pre-litigation mediation fails, parties can be referred to mediation by the court or tribunal upon their request.
- Disputes Unsuitable for Mediation: The bill enumerates disputes ineligible for mediation, such as those involving minors, persons with unsound minds, criminal prosecutions, and rights of third parties. The central government has the authority to modify this list as needed.
- Applicability: The bill is applicable to mediations conducted within India. Involving at least one foreign party and related to commercial disputes (international mediation) as stipulated in the mediation agreement. In cases where the central or state government is a party, extending to commercial and notified disputes
- Mediation Process: Mediation proceedings are to be confidential and concluded within 180 days, extendable by mutual consent for another 180 days. Parties are allowed to withdraw after two sessions. Court-annexed mediation follows rules established by the Supreme Court or High Courts.
- Mediators: Mediators can be chosen by parties or a mediation service provider, subject to revealing any conflicts of interest that might compromise their impartiality. Parties have the option to replace mediators based on such disclosures.
Parliamentary Committee Concerns and Recommendations
- Pre-Litigation Mandate: The committee raised concerns about the coercive nature of mandatory pre-litigation mediation. It argued that such a mandate could result in case delays and potentially be exploited by litigants seeking to prolong proceedings.
- Clause 26 Controversy: The committee opposed Clause 26, which grants the Supreme Court or High Courts the authority to formulate laws related to pre-litigation mediation. This provision was deemed contentious.
- Exclusion of Non-Commercial Disputes: The committee questioned the exclusion of non-commercial disputes involving the government and its agencies from the bill’s provisions.
- Appointment of Mediation Council Members: Discussions were held regarding the qualifications and appointment procedures for the Chairperson and Members of the proposed Mediation Council.
Union Cabinet’s Acceptance and Refinements
- Accelerated Mediation Timeline: The Union cabinet embraced the committee’s suggestion to reduce the mediation process timeframe from 180 to 90 days, enhancing efficiency.
- Voluntary Pre-Litigation Mediation: Shifting pre-litigation mediation from mandatory to voluntary aligns with the core principle of voluntariness in mediation.
- Recognition and Enforcement of Agreements: Recognizing and enforcing settlement agreements stemming from mediation align with India’s commitment to the Singapore Convention on International Settlement Agreements.
- Revisiting Specific Bill Provisions
- Limited Grounds for Challenging Agreements: Reassessing the defined limited grounds for challenging settlement agreement enforcement, especially as some issues like fraud may surface after the agreement is made.
- Technical Flaw in Clause 8: Examining Clause 8’s stipulation for seeking interim relief only in “exceptional circumstances,” as the term lacks clear definition and contradicts established principles.
- Online and Community Mediation: Considering accessibility barriers for online mediation due to limited internet penetration, and reevaluating the requirement for a panel of three mediators in community mediation for enhanced flexibility.
- Government’s Inclusion in Mediation: Debating the limitation on the government’s participation in mediation to commercial disputes, while acknowledging the government’s substantial litigant role.
Way Forward
- Legal Aid Infrastructure: Establishing legal aid centers with robust IT infrastructure can address challenges posed by online mediation, especially in remote areas.
- Including Government-Related Disputes: Incorporating government-related disputes into the bill’s scope could foster trust among stakeholders and contribute to reducing backlog.
UPSC Mains Questions
- How does the shift from mandatory to voluntary pre-litigation mediation align with the fundamental principles of mediation?
- What are the potential challenges of enforcing settlement agreements arising from mediation, considering the limited grounds for challenging their enforcement?
- In the context of online mediation, how can India overcome the limitations posed by limited internet access in certain parts of the country?
- Why is the inclusion of government-related disputes essential for enhancing the credibility of mediation and reducing litigation backlog?
