Introduction

• While addressing at the India-Singapore Mediation Summit in July 2021, the Chief Justice of India (CJI) said that mediation should be made obligatory as the first step in conflict settlement and that legislation should be enacted to that effect.
• In December 2021, while addressing the International Arbitration and Mediation Centre (IAMC) in Hyderabad, the Chief Justice of India said that courts should be used as a last resort for conflict settlement and that individuals should investigate other dispute resolution methods (ADR).
• In December 2021, Rajya Sabha introduced the Mediation Bill, 2021. It aims to encourage mediation (including online mediation) and to ensure the execution of mediation-agreed settlements. 

Mediation: What Is It?

• Mediation is an alternate method of resolving disputes (ADR).
• It is a method of resolving disputes in which two or more parties agree to work together with the assistance of a third, neutral person who leads them through the process.

What are the most significant provisions of the 2021 Mediation Bill?

• The Bill resolves the ambiguity created by the use of the term’s “mediation” and “conciliation” in separate legislation. The measure includes a broad definition of mediation consistent with international practice. Conciliation has been classified as part of the broader category of mediation.
• Bill establishes a mechanism for pre-litigation mediation. Simultaneously, it protects the plaintiffs’ right to seek immediate redress from competent adjudicatory forums/courts.
• The successful conclusion of mediation has been made enforceable by law in the form of a Mediation Settlement Agreement (MSA).
• The mediation process safeguards the procedure’s secrecy and offers protection from disclosure in specific circumstances.
• The Settlement Agreement may be recorded with the State/District/Taluk Legal Authorities within 90 days to guarantee the continued preservation of verified documents of the settlement reached.
• The Act establishes the Indian Mediation Council.

Why is it necessary for India to advance the cause of mediation?

• There is currently no standalone legislation in India, despite the fact that mediation is recognised by several specific statutes, including the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019.
• The Tamil Nadu Mediation and Conciliation Centre is a Madras High Court project that establishes India’s first court-annexed institution with a mediation centre in each district. Since its inception in 2005, it has resulted in a considerable reduction in the pending status of referred cases.
• India is a signatory to the Singapore Convention on Mediation (United Nations Convention on International Settlement). As such, enacting legislation governing local and international mediation is appropriate.

What are the benefits of the 2021 Mediation Act?

• The law will streamline the resolution of disputes outside of the regular judicial system.
• Mediation facilitates the settlement of conflicts in civil, business, familial, and marital matters amicably. It contributes to the development of a collaborative approach, alleviates court workload, and safeguards the relationships of disputants.
• By eliminating delays in the regular judicial procedure, the Act has the potential to have a major beneficial effect on the country’s economy and business climate.
• Enacting complete legislation and allowing for online mediation may serve as an effective alternative conflict resolution option for all stakeholders.
• The Bill stipulates that ‘any disagreement between residents or families in any region that is likely to impact peace, harmony, and calm may be resolved via community mediation. Additionally, the courts have the authority to submit to mediation any issue involving compoundable or civil marital offences.
• Thus, resolving any of the above-mentioned problems via mediation may result in the compounding of a criminal offence stemming from civil or commercial disagreement. As a result, it may alleviate some of the load on law enforcement.

What are the worries about the 2021 Mediation Bill?

• Cross-border mediation is impacted by the Bill because foreign mediation undertaken in India is treated as domestic mediation. Additionally, in India, the settlement is treated as a court decision or decree.
• The Singapore Convention does not apply to settlements that have already been granted the status of a judgement or decree. As a result, conducting cross-border mediation in India would obviate the enormous advantages of global enforceability.
• The Mediation Council has comprised of three members: a retired senior judge, a person knowledgeable with Alternative Dispute Resolution (ADR) legislation, and an academic who has taught ADR. It, however, has no single mediator.
• While mediation is a method of resolving disputes and falls under the purview of the court, the bill excludes the Chief Justice of India from making appointments.
• The bill contains a lengthy list of conflicts that should not be tried. By doing so, it requires the court’s consent for any resolution of conflicts involving them, therefore ruling out the prospect of a favourable mediated settlement in certain instances. For instance, fraud, disagreements over claims against children, patent and copyright lawsuits, and processes before the TRAI, among others.

How may India’s mediation system be improved?

• The bill has many open-ended and unclear provisions that must be addressed immediately.
• To guarantee global enforceability, the settlement reached in India should not be elevated to the level of a court judgement or decree.
• India lacks the necessary infrastructure for mandatory mediation, including a sufficient number of mediators and mediation centres. The government must assist them in order for the mediation process to go more smoothly.
• The National and State Legal Services Authorities should distribute further information about mediation and alternative dispute resolution (ADRs) so that they are the first option considered by prospective litigants.

Conclusion:

Alternate Dispute Resolution has been effective in resolving backlogs of cases at all levels of the court – Lok Adalats alone has disposed of more than 50 lakh cases annually on average over the previous three years. Mediation, too, has a similar effect. As a result, the government should address the issues raised by the mediation law and guarantee that it is properly implemented.