Government of India has been taking various policy initiatives for promotion and strengthening of Alternative Dispute Resolution (ADR) mechanisms through amendment in existing laws and by enactments, for facilitating quick disposal of disputes, outside of traditional court systems. As a continuation of the exercise, bringing a standalone law on Mediation is under consideration.

Since the laws on Mediation are contained in several enactments including Rules and Regulation, it was felt necessary to ascertain the present statutory framework on mediation and bring an umbrella legislation including amendments in the existing laws. The Bill takes into contemplation the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably. Further, it has also become expedient to enact a law in mediation on issues of domestic and international mediation as India is a signatory to the Singapore Convention on Mediation. Accordingly, a draft bill with the objective to promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes commercial and otherwise, enforce domestic and international mediation settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as an acceptable and cost effective process and for matters connected therewith or incidental thereto has been prepared.

Objectives

• To advocate, encourage, and enable mediation, particularly institutional mediation, as a means of resolving commercial and other types of conflicts.
• To enforce local and international settlement agreements reached through mediation.
• To establish a body for mediator registration and to promote community mediation.
• It has been created to make online mediation an acceptable and cost-effective method, as well as for topics related to or incidental to it.

Features of the bill

• The draft Bill proposes for pre-litigation mediation and at the same time safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case an urgent relief is sought.
• The successful outcome of mediation in the form of Mediation Settlement Agreement (MSA) has been made enforceable by law. Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
• The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
• The registration of Mediation Settlement Agreement has also been provided for with State/District/Taluk Legal Authorities within 90 days to ensure maintenance of authenticated records of the settlement so arrived.
• Provides for establishment of the Mediation Council of India.
• Provides for community mediation.

Significance

• To begin with, it acknowledges that mediation must be considered as a profession. In comparison to prior mediated methods, this is a substantial advancement.
• Second, it recognises the need of mediator training institutes and service companies providing organised mediation under their standards.
• It is made to be simple to use. At least one substantive session with the mediator is necessary, during which the process is described to the parties. They then have the option of continuing or terminating the mediation and proceeding to court if they so want. Furthermore, if an urgent temporary order is required, they can skip mediation at the outset and return to it when the interim relief problem is resolved.
• It eliminates the ambiguity that arises from the use of the terms “mediation” and “conciliation” in separate legislation. The law has a broad definition of mediation that is consistent with international practise. Conciliation is now part of the broader scope of mediation.

Concerns

• To begin with, it regards international mediation in India as domestic mediation. The following are the ramifications of this:
  • It would jeopardise India’s ambition to become a centre for international business mediation. Because the domestic mediation settlement is given the status of a court decision or decree.
  • This will be beneficial in situations involving Indian parties, but harmful in those involving foreign parties.
  • This is because the Singapore Convention does not apply to settlements that already have a judgement or decree attached to them. As a result, parties may miss out on the significant benefits of global enforceability if cross-border mediation is performed in India. As a result, parties are obliged to undergo mediation outside of India.
  • If this drafting discrepancy is not corrected, India’s goals of becoming strong hubs and the ease of doing business would be jeopardised.
• Second, there is a defect in the regulating mechanism. A retired senior judge, a person with knowledge in Alternative Dispute Resolution (ADR) law, and an academic who has taught ADR are the three members of the Council. It does not, however, have a single mediator.

• Finally, the bill specifies a comprehensive list of conflicts that should not be resolved by mediation. As a result, any resolution of conflicts involving them requires the consent of the court, thereby ruling out the prospect of a beneficial mediated settlement in certain circumstances. For instance, fraud, disputes involving claims against children, patent and copyright lawsuits, and TRAI actions, to name a few.

When given a correct legislative structure, the bill will allow for speedier dispute settlement. It would result in the plaintiffs’ trust in the government’s judicial and legislative branches being restored.

How to structure

1. Give an intro about the bill
2. Discuss the features
3. Explain the significance of the bill on Alternate dispute resolution mechanism and back your arguments with facts and data
4. Suggest way forward and conclude

Reference:

1. https://www.thehindu.com/opinion/op-ed/a-bill-that-could-alter-the-mediation-landscape/article38209819.ece