The Mediation Bill, 2021

GS paper 2

Syllabus: Parliament- Structure, functioning and conduct of business etc

Directions: Important for Prelims and mains, can be asked directly in mains

Source: The Hindu

Context:

• The Mediation Bill, 2021 was introduced in the Rajya Sabha with the Parliamentary Standing Committee being tasked with a review of the Bill.

Committee recommendations on bill:

• Institutionalizing mediation
• Establishing the Mediation Council of India.

Laws containing mediation provisions:

• Code of Civil Procedure, 1908
• Arbitration and Conciliation Act, 1996
• Companies Act, 2013
• Commercial Courts Act, 2015
• Consumer Protection Act, 2019

Key features of the Bill:

• Aim:
  • To promote, encourage, and facilitate mediation, especially institutional mediation.
  • To resolve disputes, commercial and otherwise.
• Mandatory mediation: Before litigation.
• Rights of litigants: It safeguards the rights of litigants to approach competent adjudicatory forums/courts for urgent relief.
• Mediation Settlement Agreement (MSA): It will be legally enforceable and can be registered with the State/district/taluk legal authorities within 90 days.
• Mediation council of India: The Bill establishes the Mediation Council of India and also provides for community mediation.

Need for Mediation:

• Mediation and Conciliation Project Committee of the Supreme Court of India: It describes mediation as a tried and tested alternative for conflict resolution.
• India is a signatory to the Singapore Convention on Mediation: It is appropriate to enact a law governing domestic and international mediation.

Concerns with the Bill:

• Pre-litigation mediation is mandatory for both parties: Before filing any suit or proceeding in a court, whether or not there is a mediation agreement between them.
• Fundamental right: Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost.
  • Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted.
• Denial of justice: Mediation should just be voluntary and making it otherwise would amount to denial of justice.
• Clause 26 is unconstitutional: The Committee objected to this.
  • In countries that follow the Common Law system, it is a healthy tradition that in the absence of statutes, apex court judgments and decisions carry the same weight.
• Conducting cross-border mediation in India: It will exclude the tremendous benefits of worldwide enforceability.

Conclusion:

• In order to enable a faster resolution of disputes, the Bill should be implemented after discussion with stakeholders.

Insta Links:

A Bill that could alter the mediation landscape

Mains Links:

Q. Critically analyze the provisions of the Mediation Bill, 2021.