Alibi and Witness: Key Differences

 A Critical Examination of the Mediation Bill, 2021: India's Dispute Resolution Future

Mediation is an example of ADR. ADR, or Alternate Dispute Resolution, refers to methods for resolving disagreements between people that do not include a formal trial. ADR processes are less formal than typical court proceedings and help to save money while obtaining quick results.

Mediation is a method of settling disagreements with the assistance of a neutral third party who, while leading the process, assists the disputed parties in reaching an agreement. It is a voluntary approach that does not impose a solution but rather offers a conducive environment for disputing parties to come to an agreement.

Also Read: Purpose and Powers of the Court to Issue Commissions

This third, impartial party is referred to as a mediator, who is not a judge but rather a facilitator who assists the parties in finding common ground and communicating. And, if agreed upon, the mediator's decision can be binding on the parties, just like a court ruling. Mediation, as a kind of ADR, is not a new concept in India; it has been practiced for centuries. Previously, informal panchayats were employed to settle disputes between two sides, with the village chief or the old acting as mediators.

This gained popularity after Lok Adalats were reintroduced into our nation's judicial system, with their verdicts given the same weight as those of a civil court. The Arbitration and Conciliation Act, enacted in 1996, established precise definitions and established a streamlined set of norms in this regard.

Why Is A Mediation Bill Required?

As of August 2, 2022, the Supreme Court of India has 71,411 pending cases, of which 56,365 were civil cases and 15,076 were criminal cases. As of July 29 of this year, 59,55,907 cases were pending in 25 High Courts across the country. Backlogs in subordinate courts total 4.13 crores.

This demonstrates the overcrowding in the Indian judicial system, which is exacerbated by a shortage of judges, flexible procedures, and resources. India still has a long way to go in order to clear its backlog of cases.

As a result, in order to address the problem of arrears and delays, ADR, and notably Mediation, become critical, and it becomes necessary to bring it within certain legislative boundaries. Mediation was previously governed by the Code of Civil Procedure or the regulations established by mediation institutes of several High Courts.

However, the federal government has already presented a draft mediation bill with the goal of institutionalizing and formalizing the mediation process in India. With the passage of the bill, mediation may become more popular as a means of obtaining prompt and enforceable remedies in a structured informal framework in which the parties play an active role. As a result, this bill is critical.

The measure has not yet been passed and is currently being referred by the Parliamentary Standing Committee on Law and Justice, which has recommended certain important revisions in the bill. The bill's passage is eagerly anticipated, and it will usher in a new era of conflict resolution in the country.

Current Situation

At the moment, mediation in India could be:

Referred to the Court (under Code of Civil Procedure, 1908)

Private (under a contract) (under a contract)

According to the provisions of a certain statute (for example, the Companies Act, 2013 or the Consumer Protection Act, 2019), these services are supplied by private ADR centers or centers established by the respective courts or tribunals.

This is referred to as court-annexed mediation. Also, in the 129th report of the Law Commission of India, it was proposed to make it mandatory for the Court to send conflicts to mediation for resolution. It was mentioned in the landmark 2010 case of Afcons Below Ltd. v. M/s Cherian Varkey Constructions.

Another major ruling came from the Supreme Court in 2013 in the case of B.S. Krishna Murthy v. B.S. Nagraj 5, in which it authorized the family court to submit matters involving maintenance, custody, and other issues to mediation with the cooperation of the parties. One of the most well-known cases resolved through mediation was the takeover of MTN, the South African telecom company, by Mukesh and Anil Dhirubhai Ambani.

The Bill's Key Features

Bill Implementation:

The provisions of this law would apply to mediation proceedings held in India if and only if the following conditions were met:

Only domestic parties are involved, which means that all parties live or are incorporated in India.

The issue is commercial in nature, and at least one of the parties is from another country.

If it is mentioned in the mediation agreement that the procedures will be conducted in accordance with this bill,

If the central or state government is a party to the bill, it will apply in the following circumstances:

It's a business conflict.

Other notified conflicts

Mediation Before Litigation:

Before addressing any tribunal or filing any suit in court, the parties in conflict must take steps to settle their issue, whether commercial or civil, by resorting to pre-litigation mediation, even if a mediation agreement does not exist. Though the parties wish it, the court or tribunal might refer them to a mediation proceeding even if they were unable to resolve through pre-litigation mediation.

Mediators are appointed:

Unless otherwise agreed, the mediators can be appointed by the parties and of any nationality, provided that the foreign mediator has the requisite qualifications that may be specified in domestic regulations. The mediator can also be appointed by any institution that provides mediation services, subject to the person's acceptance. In the event of a conflict of interest or doubt, the parties have the option of replacing the mediators. The bill also specifies the procedures and procedures to be followed in order to terminate or replace a mediator's mandate.

Proceeding with Mediation:

The mediation proceedings must be concluded within 180 days (may be extended by the parties for 180 days). These procedures must be kept private. Furthermore, after two sessions, the parties may choose to withdraw from this process. Mediation annexed by a court must be done within the limitations of the court's guidelines and within their territorial authority. The mediator shall determine the language(s) to be used during this procedure with the parties' cooperation. The mediator is not bound by the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908 (5 of 1908) (1 of 1872).

Agreement Reached Through Mediation:

Agreements reached through mediation and formally signed by the mediator and the parties in dispute are binding and enforceable in law, much like court judgements. Subject to section 29, it shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a judgment and/or decree passed by a court, and may accordingly be relied on by any of the parties or persons claiming through them, as a defense, set off, or otherwise in any legal proceedings. If any party wishes to challenge the mediated settlement agreement, they may do so in court or before a body with competent authority on the following grounds:

Fraud;

Corruption;

Gross immorality;

Impersonation.

Unless otherwise agreed, all fees, including the cost of the mediation service provider, mediator's fee, and so on, must be shared equally by both parties.

Online Dispute Resolution:

Online mediation refers to the use of computer programs and networks to conduct mediation procedures, including pre-litigation mediation, as defined in this act, via secure rooms, encrypted e-mail services, and audio and video conferencing. This must be done in accordance with the Information Technology Act of 2000. With the parties' cooperation, online mediation can be used entirely or partially. This must be accomplished by taking all necessary precautions to ensure the secrecy and integrity of the proceedings. This must be communicated in accordance with the IT Act of 2000 requirements.

India's Mediation Council:

Through publication in the Official Gazette, the federal government must establish an organization to be known as the Mediation Council of India, to achieve the purposes of this law, which would perform the tasks and duties described in the bill. The council must be a body corporate with the same name, with a common seal, perpetual succession, the right to withhold or dispose of property (immovable and movable), and the ability to engage into contracts.

The council must comprise a chairperson, two full-time members with mediation and ADR experience, three ex-officio members, including the Law Secretary and the Expenditure Secretary, and one part-time member. The Council's functions will include registering mediators, developing norms and guidelines, promoting local and international mediation in India, recognizing mediation service providers and institutes, and so on.

Providers of mediation services and mediation institutes:

According to the requirements of this bill, the mediation service providers recognized by the council must be rated in accordance with the Council's regulations. The service providers can execute the following functions: a) Maintaining and credentialing a panel of mediators. b) Offering mediator services to facilitate mediation. b) Providing infrastructural and other associated assistance in order to carry out the mediation proceedings. d) Registering and filing the mediated settlement agreement in accordance with the provisions of this bill. The council shall also recognize Mediation Institutes, which shall operate in accordance with the Council's regulations.

Mediation in the Community:

Community Mediation can be used to mediate disputes that are likely to harm/affect the peace and harmony of the local families or people. This must be done through a panel of three mediators, which may include representatives from resident welfare organisations, a well-known local figure, or anybody else judged acceptable. The District Magistrate or Sub-Divisional Magistrate can form a panel to facilitate the binding settlement of a communal dispute for which an application has been filed by either party.

Fund for Mediation:

The Mediation Council must establish a fund called the "Mediation Fund" for the purpose of promoting, supporting, and facilitating mediation in our country. The grants granted by the Central and State governments, the amount deposited by others to contribute to this, the interest earned on investments made from this, and any other resources received must be credited to the fund. The accounts of the Mediation Council will be audited by the Comptroller and Auditor General of India.

Important Points:

Mediation, unlike arbitration or litigation, is a voluntary dispute resolution method with the permission of the parties that does not entail their judgement. Pre-litigation mediation for commercial and civil issues is mandated by the Mediation Draft Bill. This defeats the objective of mediation, which is mostly a voluntary process. If the parties are hesitant to mediate, it may potentially cause more delay in the resolution of the issue.

The Bill also requires that the mediators who preside over the proceedings be registered with the Mediation Council of India, a recognized mediation service provider chosen by a Court-annexed mediation center, and a Legal Service Authority. The requirement to register them at all four locations complicates and redundantizes the process.

The Draft Bill does not state whether a Mediation Service Provider may be a corporation.

The Bill states that the majority of the Council's activities would be carried out by adopting regulations, which must be adopted after receiving permission from the Central Government. The Council would only play a ceremonial role if the Government decided to exercise its duties. In some situations, the government may be a party to the mediation procedures, resulting in a conflict of interest.

The Draft Bill also lacks any responsibilities or repercussions for failing to register a Mediated Settlement Agreement.

The Bill makes no provision for settlement agreements reached through foreign mediation performed outside of India. Despite being a signatory to the Singapore Convention in August 2019, India is failed to ratify it. The Convention addresses the implementation of cross-border settlement agreements reached through international mediation. This is not addressed in either Part I or Part III of the Bill.

Section 22 of the law addresses the need for confidentiality on the part of both the parties in dispute and the mediator. However, the clause makes no mention of any punishment or culpability for willful violation of the principal goal of protecting confidentiality.

The Singapore Convention and Its Implications for Mediation in India

The Singapore Mediation Convention, also known as the United Nations Convention on International Settlement Agreements, has 55 signatories, including India. This Convention seeks to facilitate international trade by establishing standard, unified norms for resolving commercial disputes in a global context. However, India has yet to ratify this, which becomes necessary in order to reap all of the benefits and advantages of mediation.

With its ratification, a settlement agreement achieved through international 'commercial' mediation would be legally binding, according to Article 3 of the Singapore Convention. Ratification would also bring domestic laws into line with the Convention. Furthermore, Article 5(1)(e) states that mediators must adhere to particular requirements in order to offer a professional, ethical environment for mediation.

In order for India to ratify the Singapore Mediation Convention, the Indian Parliament must pass legislation implementing the Convention under Article 253 of the Constitution. The demand for legislation has increased because it is a more cost-effective approach that also saves businesses and foreign connections.

Settlements achieved through this Convention are anticipated to be enforceable and will not be referred back to arbitration, even if the other side defaults. Thus, India's acceptance of the Singapore Mediation Convention will aid in the resolution of disputes with parties outside of India, allowing them to skip the contractual path of obtaining implementation.

Conclusion

To summarize, there is no denying that the Bill, in its current form, has both advantages and negatives, and that it is a step in the right direction in terms of encouraging and facilitating mediation. It would not only bring uniformity, but also simplicity and confidence among the public to use mediation as a form of dispute settlement outside of the courtroom.

At the same time, the Bill contains several gaps and concerns that must be resolved before allowing it to enter into effect in order to ensure that the Act, when adopted, contains unambiguous measures to offer better legal underpinning. In addition, the government must take steps to make the general public aware of mediation and its benefits, as well as heavily promote it, so that people can reap the benefits.

This will also serve to relieve the country's beleaguered legal system and will become a popular tool to settle corporate and family issues in the near future.