Disagreement between two or more people is as natural as cooperation. While we humans are social creatures that have advanced so far due to mutual cooperation, disputes are an unremovable part of our society too as we also possess individuality. Which leads to differences in opinion that spin out of control and become disputes. When such disputes happen, people approach courts to come to settle them once and for all.
Now, if the Indian Judiciary is well known for one thing, it is definitely its inefficiency to solve cases on time. No surprise there too, as our judiciary is grossly overburdened by the amazon of cases that are filed on a regular basis by our huge population. The process of litigation, i.e., fighting a case in court, is also very resource intensive – financially and in terms of time. Hence, ADR (Alternative Dispute Resolution) methods are gaining popularity in India, one of which is mediation.
This blog examines the Mediation Bill 2021 – a new bill that has been introduced by the Central Government to lay down a framework for mandatory mediation for civil cases in our country. Read on to find out about ADR techniques, and the essential features and implications of this new bill.
ADR in Indian Law
In Indian law, there is no separate mediation act as you might find in the laws of several countries like Singapore, Australia, Ireland, or Belgium. However, there have historically been five types of mediation techniques – Negotiation, Mediation, Conciliation, Arbitration, and Lok Adalats in practice in our country. These practices are supported by the flowing acts:
- The Code of Civil Procedure of 1908
- The Companies Act of 2013
- The Consumer Protection Act of 2019
- The Commercial Courts Act of 2015, and
- The Arbitration, Mediation and Conciliation Act of 1996.
Mediation - Meaning and Principles
Mediation is one of the most common alternate dispute resolution techniques that were used by corporations and tech behemoths to settle disputes among each other. This is simply due to the fact that cases involving these large companies always end in huge payouts to the other party, on top of incurring an insane amount of fees. The mediation process is usually always cheaper and quicker than settling a dispute in court too and its outcome is still legally binding.
Mediation refers to a process in which the two parties in a disagreement or dispute are guided to reach a mutually agreeable and beneficial settlement through the help of an impartial third party. This third party is called the mediator. Let us now look at a few principles that are prerequisites to mediation in law:
- Voluntary participation
- Impartial mediators
- Mutual Satisfaction of the Parties
Also Read: The Key Features Of The Mediation Bill 2021
Essential Features of the Mediation Bill 2021
The Rajya Sabha of the Indian Parliament, in December 2020, introduced the Mediation Bill, 2021. After that, it was sent to the Parliamentary Standing Committee on Personal, Public Grievances, Law & Justice for further deliberations when it got vicious opposition upon introduction. Let us now look at a few main features of the mediation bill now.
1. The bill provides uniform definitions of pre-litigation mediation, mediators, and other associated legal terms while outlining the obligations of mediators.
2. It also lists conflicts that fall outside its purview, such as criminal cases.
3. It also provides the framework for the hiring, dismissing, and replacement of mediators and calls for the establishment of a Mediation Council of India to govern them. The bill also provides guidelines for mediation service providers who will provide dispute resolution lawyers.
4. It makes the process of institutional mediation mandatory for all cases that don’t fall outside its jurisdiction.
5. The bill specifies the process of how pre-litigation mediation will be conducted and gives courts and tribunals the authority to suggest mediation for a case.
6. It also allows the parties that take part in a mediation session to withdraw from mediation procedures if they are not satisfied with the impartiality of the appointed mediator or request a different mediator.
7. It states that the agreement reached between both parties after a successful mediation session will be legally binding, just like a court sentence. However, it also considers the difficulties that might arise in enforcing a mediated settlement agreement.
8. The mediation bill goes into detail on the idea of community mediation and its processes.
9. The process of membership of the Mediation Council of India, its incorporation, the retirement of its members, termination of duty, etc, are all thoroughly outlined in the bill.
10. Lastly, the bill also includes provisions for the process of online mediation in a Digital India.
Application of the Mediation Bill
The Mediation Bill of 2021 clearly states that its provisions will only apply to mediation proceedings if they meet the following conditions:
- The parties reside permanently or habitually in India
- The dispute is commercial in nature and at least one party is a foreign national
- The mediation agreement states the mediation proceedings fall under the bill
- The bill will apply to federal and state governments if the dispute is of a commercial nature or it belongs to any other dispute as notified in the bill.
Implications of the Mediation Bill
There are many implications for the Mediation Bill 2021. The main reason why it faced so much opposition even though the Indian Judicial system is in dire need of a standardized mediation law to decrease its load is because of these implications. Let us look at a few of them now:
- The very idea of mandatory mediation goes against its principle of voluntary participation, which many argue is why it works so well.
- The members of the Mediation Council are not professional mediators, which raises questions as to why they must govern the body.
- The bill has no provision for the settlement of disputes that occur outside of India.
So even though the mediation bill is seen as a step in the right direction by many, there are many shortcomings or oversights that must be dealt with before it comes into effect as an act. Even if it’s not court-mandated yet, mediation is a great way to solve disputes whether commercial, marital, or others, as it is always less time-consuming than litigation. A mediation lawyer from Lex Solution will also come in cheaper than the expenses that you might have to incur fighting a case in court over years or decades.
1. What is the minimum number of days a mediation session can go on for?
According to the Mediation Bill 2021, the mediation process should be completed within 180 days. If it doesn’t lead to a settlement, the court may propose another session. The parties can wish for a 180-day extension on a session if they wish to too.
2. Which law allows for the enforcement of mediated settlement agreements?
The Code of Civil Procedure, 1908 allows for the enforcement of mediated settlement agreements.
3. What has been said about community mediation in the Bill?
In the mediation bill, community mediation has been provisioned to be used for disputes that affect a local community. This has to be done with a panel of three mediators, who are well-respected in the community and impartial.
4. What is the mediation fund?
The mediation fund is a fund that is to be maintained by the Mediation council of India for promoting, facilitating, and encouraging the use of mediation for dispute resolution in India.