There has been a lot of talk about how the Indian Judiciary has been overburdened with cases. It is true – the Indian judicial system is one of the slowest mainly because along with our huge population, comes the huge amount of cases that are being filed regularly. Dispute between two separate entities is as natural as cooperation. And when this happens, people move to court to settle these disputes once and for all.
However, in light of how litigation in our country is a cumbersome and expensive process that goes along at a snail’s pace for most people, ADR (Alternative Dispute Resolution) methods are gaining popularity. Even the central government has pushed for a new bill on an ADR technique known as mediation to lay down a framework to resolve disputes quickly and cost-effectively. This blog discusses the key features of this new Mediation Bill 2021 – so read on to find out what it is all about.
History of ADR in Indian Law
There are usually five methods under alternative dispute resolution (ADR) mechanisms in our country:
- Lok Adalats
In India, there is no standalone mediation act like various other countries such as Singapore, Ireland, Australia or Belgium have. However, there has been mention of several ADR mechanisms including mediation in several acts, like:-
- The Code of Civil Procedure, 1908,
- The Arbitration Mediation and Conciliation Act, 1996,
- The Companies Act, 2013,
- The Commercial Courts Act, 2015, and
- The Consumer Protection Act, 2019.
The Calcutta High Court has also framed The Civil Procedure Mediation Rules 2006, exercising the rule-making power of the Code of Civil Procedure, 1908 to pave the way for ADR techniques like arbitration, mediation, and conciliation to adhere to a proper legal framework.
Also Read: How Will The Mediation Bill 2021 Help Reduce Conflict?
Mediation and its Principles
Mediation is a form of ADR or alternative dispute resolution technique that involves two disputing parties reaching a mutual agreement or settlement with the help of a mediator, who must be a neutral third party. Even though it is a quasi-legal concept, many big corporations and tech companies use mediation to settle disputes even now, without a proper mediation and conciliation act in place, because the outcome of a mediation session is still legally binding. Not to mention way easier and less time and money-consuming than opting for litigation in court.
There are various principles that are inherently a prerequisite of a successful mediation session. These are discussed below.
One of the most important prerequisites for a mediation session is the voluntary agreement of both parties to participate in it. Only consent by both parties without any fraud, force, coercion, or threat ensures active participation that can end in a mutually agreed upon agreement.
Mediators that are assigned have to ensure that none of the proceedings of the mediation session gets leaked by either of the parties or themselves. A dispute resolution lawyer cannot mediate while sacrificing confidentiality.
Impartial mediators are paramount so that they can be neutral and guide the proceedings to an outcome that is mutually beneficial to both parties. On top of that, mediators are also required to explain the advantages of mediation for both parties.
Mutual Satisfaction of the Parties
No mediation session, whether it is mandated by the court or done as a pre-litigation measure, can be successful if both parties cannot reach an agreement mutually with the help of mediators.
Mediation Bill 2021 and its Key Features
The Mediation Bill, 2021 was introduced in the Rajya Sabha in December 2020, after which it was sent to the Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice for further deliberations following vicious opposition. It aims to make court mediation mandatory, before moving to the litigation process if the mediation is not successful. Let us discuss the key features of the Mediation Bill now.
The provisions of the bill will apply to mediation proceedings in India, if:
- The parties involved habitually reside or are incorporated in India
- The dispute is of a commercial nature and at least one party is a foreign party
- It is mentioned in the mediation agreement that the proceedings would fall under the bill
- The bill will only apply to central and state governments if:-
- The dispute is of a commercial nature
- Other disputes as notified.
Mandatory Pre-litigation Mediation
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The bill mentions that mediation proceedings should be completed within 180 days, which can be extended further by 180 days with the consent of both parties. The parties can also choose to withdraw after two sessions.
Mediated Settlement Agreement
The settlements reached through mediation, whether it is for a civil case like divorce mediation, or a commercial case, are enforceable by law. They are to be enforced in accordance with the Code of Civil Procedure, 1908. In case the mediated settlement is to be challenged, either party can do so on the grounds of:-
- Gross impropriety
There is also a provision enabling online mediation in the Mediation Bill 2021, in tandem with the government’s dream of a fully digital India. Online mediation can be fully or partially adopted with the consent of both parties through tools like video and audio conferencing through secure networks.
Mediation Council of India
The bill also talks about the formation of a Mediation Council of India which will govern mediators and perform the functions and duties mentioned in the bill.
Mediation Service Providers and Institutes
The bill also talks about the formation of mediation institutes and service providers that shall be graded by the Mediation Council of India. These will perform the following functions:
- Maintaining and accrediting mediators
- Providing mediation services
- Providing infrastructure and support to conduct mediation proceedings
- Registration and filing of settlements
Community mediation is also a feature of this bill, that can be used for settling disputes that affect a local community, like the residents of a locality for example. This is to be done with a panel of three mediators.
There is a provision for a fund called the Mediation fund that is to be maintained by the Mediation Council for promoting, encouraging, and facilitating mediation in the country.
Also Read: The High Rate Of Divorce In India And Its Effect On Society
While the Mediation Bill has its disadvantages, like the mandatory nature of mediation suggested, which goes against the very principle of consent and voluntary participation, there is no doubt that once the bill is passed, it will be a great boon to the judiciary. Especially with family court mediation, many small cases will cease to be a burden to the judiciary, lightening its caseload. In case you want to experience the cost and time effectiveness of mediation for yourself, get yourself a mediation lawyer from Lex Solutions, one of the best law firms in Chandigarh.
1. Why is there a sudden focus on Mediation?
There exist several independent laws for mediation in many countries, as mediation is a proven strategy for dispute resolution. The Singapore Mediation Convention, which aims to facilitate international trade by providing standard rules for the resolution of commercial disputes has 55 signatories, including India. While India has not yet ratified this, it seems it is going in that direction with this bill.
2. Is the bill in effect?
No. The Mediation Bill 2021 is still being ratified and might go through several revisions before it can be brought into effect as an enforceable Act.
3.Is mediation useful for criminal cases?
No. ADR techniques like mediation do not apply to criminal cases.
4. Can I ask for a different mediator if I’m not satisfied?
Yes. You can ask for a different mediator according to the Mediation Bill 2021. It has the provision to appoint a mediator for you within 7 days if the one appointed does not feel like a neutral third party to either party involved in dispute resolution.
5. Who will form the Mediation Council of India?
- The council will be composed of a chairman, two full-time members with previous experience in mediation, and 3 ex-officio members appointed by the government.