The process of mediation involves the parties meeting with a neutral third party who helps them resolve their disputes. In this context, the Draft Mediation Bill 2021 is the result of India’s long-term effort to create comprehensive legislation on commercial mediation. The Union Law Minister introduced the Bill into the Indian Parliament in December 2021, and it was then sent for discussion to the Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice (the “Committee”).
However, the Indian Civil Procedure Code (1908) (“CPC”) recognition of a mediated settlement agreement is one of Bill’s many commendable characteristics. Apart from this, the right of parties to urgently seek interim relief in court prior to the start of mediation proceedings or while they are ongoing, provisions relating to timely completion of mediation proceedings, community mediation, and creation of a Mediation Council of India to institutionalise mediation are few other attributes of the Bill.
Through this blog, we will attempt to provide a detailed view of the Bill, and its necessity in today’s context.
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What do you mean by mediation?
One of the alternative dispute resolution methods is mediation, in which the two parties to a disagreement are guided and helped to reach a compromise or settlement by an impartial third person. A third party who serves as a neutral and objective advisor, as well as aids in resolving the two parties, is called a mediator.
However, mediation is a voluntary process that may only begin if both parties agree to it. The method is economical because neither party is overburdened, and both parties contribute equally to the cost of the mediation process and the mediator’s fee. Additionally, it follows a quick and simple procedure. Moreover, this approach is typically used by high-tech organisations and corporations to settle disputes.
The necessity of a Mediation Bill in India
Arbitration, mediation, conciliation, negotiation, and Lok Adalats are all forms of alternative dispute resolution used in India. All of these offer a method for resolving conflicts outside of traditional courts. Based on facts, in mediation, a mediator does not enforce any agreement or settlement on the parties; instead, they are given a setting to discuss their differences and come to an amicable agreement. Currently, mediation does not have a standardized legal procedure and is not overseen by a specific authority. Additionally, there is a lack of official authority and standardisation in the procedure.
In such a case, appropriate mediation legislation must be passed in order to lessen uncertainties. Moreover, the courts won’t have to deal with as many open cases. Therefore, a bill on mediation was submitted to the parliament in 2020 with this goal in mind, and it has since been referred to several standing committees for advice and recommendations.
Let us have a glimpse at the highlights of the Mediation Bill 2021
The Mediation Bill 2021 gives a thorough explanation of all the requirements for the mediation process, as well as an explanation of mediated agreement settlements. Listed below are the important highlights circulating the Bill:
- The Bill demands individuals attempt to resolve civil or business issues through mediation before going to any court or tribunal. After two mediation sessions, a party may end the mediation. The parties may extend the 180-day mediation period by an additional 180 days if they agree to do so.
- India’s Mediation Council will be established, whose duties include recognising mediation service providers, mediation institutes, and mediators (which train and certify mediators).
- The Bill specifies which issues are unsuitable for mediation (such as those involving criminal prosecution, or affecting the rights of third parties). However, this list may be changed by the national government.
- Any person may be chosen as a mediator if both parties agree to it. If not, they may submit an application to a mediator service provider to have one of its mediators appointed.
- The agreements reached through mediation will have the same legal power and effect as court orders.
Prominent Features of the Mediation Bill 2021
- It describes the idea of pre-litigation mediation and provides a uniform definition and meaning of mediation, mediators, and other legal terms.
- The Bill outlines the obligations of mediators, their duties, and the procedures for hiring, dismissing, and replacing them. Additionally, it covers funds, accounts, and required audits, and offers guidelines for mediators’ service providers.
- It encourages the use of institutional mediation as a dispute-resolution method.
- It also includes conflicts that fall outside of Bill’s exclusionary clause for mediation.
- It also specifies the measures to be taken in such a process and grants the courts and tribunals the authority to send a case to mediation.
- It states that all agreements or settlements reached through mediation will be legally binding on the parties and might have the same impact as if they had been approved by a judge.
- The Bill gives the parties the option to withdraw from mediation procedures or ask for a different mediator.
- It considers the difficulties in enforcing mediated settlement agreements.
- The creation of the Mediation Council of India, a formal legal body to deal with mediation and problems resulting from its methods, is one of the Bill’s most significant features.
- It goes into further detail on the idea of community mediation and its processes.
- The council’s membership, incorporation, retirement, and termination, as well as its duties and authority, are all outlined in this Bill.
- Most importantly, the Bill includes provisions for online mediation in order to achieve the goal of digital India.
As a whole, the Bill can reduce the rate of crime and punishment that is frequently occurring in India. All of these mentioned features sum up the importance of this Bill, and how it can help to lessen any conflict. Be it land-related disputes, corporate litigation, or similar issues the Bill can have a positive impact on such matters.
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To sum up, mediation differs from the traditional court system. There is no need for a specific courtroom or to appear in court during this process. But, there isn’t a single piece of legislation in the nation that covers mediation, therefore the parliament introduced a Bill in this area in 2021 to close this gap. As a whole, the Mediation Bill 2021 seeks to change the mediation environment in India by promoting, bolstering, and consolidating the law on commercial mediation within the Indian legal system.
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1. What are the main duties of mediation service providers?
As per Section 42, maintaining a panel of mediators, selecting a mediator from the panel to conduct mediation proceedings, providing sufficient infrastructure for the smooth conduct of all the sessions and proceedings,
encouraging the mediators to follow a professional and ethical code of conduct, and registering settlement agreements are some of their main responsibilities.
2. What are the different principles of mediation?
Confidential proceedings, voluntary participation of parties, the satisfaction of the parties, impartial mediators, and confidential proceedings, are among the important principles of mediation.
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4. How would you define online mediation?
This type of mediation can be done at any time using electronic tools over a computer network, as stated in Section 32 of the Bill. The only need is that the secrecy of the proceedings is upheld during the mediation.