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A Push to Mediation in Indian courts: Draft Mediation Bill 2021
Mediation is a dispute settlement process in which the parties are encouraged to reach an agreement with the help of a qualified mediator who serves as a facilitator. The mediator has no authority, and the process is entirely voluntary and private. Mediation is a complex method of settling problems that, when resolved through the judicial system, might take years and worsen the relationship between the parties, as in marital cases and family enterprises.
The total number of civil lawsuits pending in federal and state courts around the country are numerous. In district and taluka courts, there are a total of 1,07,08,893. In high courts, there are 40,77,604 cases. The increased importance and popularity of alternative dispute resolution procedures can be attributed to high pending cases and the resulting delays. Mediation, conciliation, and arbitration are some of these options. While arbitration is governed by statute, mediation is governed by the Code of Civil Procedure and the norms of the mediation centres established by several high courts.
The Draft Mediation Bill, 2021, was announced by India's Ministry of Law and Justice on November 5th, asking for comments and ideas from all stakeholders. The bill aims to promote, support, and enable mediation, particularly institutional mediation, in the country. "Because the laws on mediation are contained in numerous enactments including rules and regulations," the Ministry noted in a press release, "it was thought necessary to ascertain the current statutory framework on mediation and bring an umbrella legislation containing revisions to the existing laws."
The draft legislation proposes enforcing domestic and international mediation settlement agreements, establishing a body for mediator registration, encouraging community mediation, and making internet mediation a viable and cost-effective option.
Key features of the Bill:
The Draft Bill proposes pre-litigation mediation while also protecting litigants' rights to contact competent adjudicatory forums/courts in the event of an urgent relief request. The 'pre-trial mediation' process is a mechanism for pre-trial alternative conflict resolution that was added to Section 89 of the Code of Civil Procedure (by Amendment Act of 2002).
The 2021 Mediation Bill aims to create a stand-alone statute that will control both local and international mediation. The Bill also specifies the grounds for challenge and makes the successful outcome of mediation enforceable by law. The key features of the bill also include creating an Indian Mediation Council and fostering mediation in the community. The successful outcome of mediation in the form of a Mediation Settlement Agreement (MSA) has been made enforceable by law, according to the Draft Bill. Because the Mediation Settlement Agreement is based on a mutual agreement between the parties, it can only be challenged on restricted grounds. Only fraud, corruption, extreme impropriety, and impersonation can be used to challenge a mediation settlement agreement. The Bill also contains a list of disputes that cannot lend themselves to the mediation process.
As envisioned in the Bill, the Draft Bill allows the Central Government to pass relevant legislation to provide mediation settlements the status of an order, judgement, or decree, as well as establish the Mediation Council of India and provide for the recognition of mediation service providers. The Draft Bill also includes community mediation in its scope. According to the bill, any conflict among residents or families of any area or location that threatens peace, harmony, or tranquility may be resolved through community mediation.
Gaps in the legislation:
One of the grounds on which an international mediated settlement might be challenged under the Bill is if it is in violation of India's "public policy." The word 'public policy' has a broad meaning and could be abused by political parties. A number of clauses in the stated Bill are unclear and need to be clarified. Despite the fact that the Bill includes a list of disputes that may or may not be suitable for mediation, there is a compelling need to include particular tests, rules, or criteria to determine whether the disputes are suitable for mediation.
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