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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.