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Sansad TV: Committe Report : The Mediation Bill

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Introduction:

A quick and affordable justice to all is one of the desired goals of any justice delivery system. However, the sheer size and population of the country and ever- increasing disputes in the society have led to a humongous rise in litigation which has over-burdened the Judiciary. Coupled with low judge-to-population ratio and unfilled vacancies of Judges at all levels, the caseload has risen to an unmanageable proportion. The objective of the Mediation Bill is to promote, encourage and facilitate mediation especially institutional mediation for resolution of civil and commercial disputes, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as an acceptable and cost-effective process.

Mediation:

  • In India, though mediation finds legitimacy in some specific laws such as the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019, there is no standalone legislation as yet.
  • The Tamil Nadu Mediation and Conciliation Centre, an initiative of the Madras High Court and India’s first court-annexed facility with a mediation centre in every district, which was inaugurated in 2005 has significantly reduced the pendency of referred cases.

Pre-litigation mediation:

  • The Bill mandates parties to attend at least two mediation sessions. A cost may be imposed on them if they fail to attend the sessions without reasonable cause.
  • The Committee observed that by mandating pre-litigation mediation, parties will have to wait for several months before being allowed to approach a court or tribunal. This may result in delaying of cases.
  • The Committee recommended reconsidering mandating prelitigation, making it optional and introducing it in a phased manner.
  • The Bill also provides that prelitigation mediation will be applicable to matters pending before a tribunal. The Committee noted that there is lack of clarity as to how such matters can come under the purview of pre-litigation mediation.

Timeline for mediation:

  • Mediation process must be completed within 180 days, which may be extended by another 180 days. The Committee recommended reducing it to 90 days with an extension of 60 days.

Disputes not fit for mediation:

  • The First Schedule of the Bill specifies disputes not fit for mediation. The central government may amend this list. The Committee noted that this amounts to excessive delegation.
  • It recommended that the number of disputes in the Schedule should be reduced to ensure that maximum number of disputes go through prelitigation mediation.
  • Disputes involving disabled people should not be excluded from the purview of mediation and courts should be empowered to refer suitable cases for mediation.
  • The Schedule also includes disputes affecting the rights of third parties. The Committee noted that this will affect mediation in matrimonial cases where children are involved. It recommended allowing mediation in such cases.

Mediation Council of India:

  • The central government will establish the Mediation Council of India. Members of the Council include a chairperson and two full-time members with experience in mediation or alternate dispute resolution (ADR).
  • The Committee noted that this may lead to appointment of members with experience in ADR mechanisms other than mediation.
  • The Bill provides for multiple regulating authorities for mediation service providers and institutes. The Committee recommended to make the Mediation Council of India the single authority to regulate all mediation service providers and institutes

Confidentiality in proceedings:

  • Parties in a mediation proceeding are required to keep information relating to the proceedings confidential.
  • The Committee noted that there is no punishment/ liability for breaching confidentiality.
  • It recommended that the Bill should provide for a provision for cases of breach of confidentiality.

International mediation:

  • The Bill does not apply to international mediations conducted outside India.
  • The Singapore Convention provides a framework for cross-border enforcement of settlement agreements resulting from international mediation.
  • The Committee recommended revisiting the definition of international mediation so that the Bill can be brought in line with the Convention in the future.

Conclusion:

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