INTRODUCTION
To promote and strengthen the position of mediation as an effective Alternative Dispute Resolution (“ADR”) mechanism, the Ministry of Law and Justice on 5th November 2021, released the Draft Mediation Bill 2021 (“Draft Bill” / “Bill”) in the public domain. Since the laws on Mediation are contained in several enactments including Rules and Regulations, it was felt necessary to ascertain the present statutory framework on mediation and bring umbrella legislation including amendments in the existing laws. The Bill takes into contemplation the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably. Further, it has also become expedient to enact a law in mediation on issues of domestic and international mediation as India is a signatory to the Singapore Convention on Mediation.
Accordingly, a draft bill to promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes commercial and otherwise, enforce domestic and international mediation settlement agreements, provide for a body for the registration of mediators, to encourage community mediation, and to make online mediation as an acceptable and cost-effective process and for matters connected therewith or incidental thereto has been prepared.
WHAT IS MEDIATION
Mediation is an alternative method of resolving disputes without going to court. It is a structured, voluntary, and interactive negotiation process between parties where third neutral parties use specified communication and negotiation techniques to help parties to fulfill their objectives. The focus of parties lies in the interests, needs, and rights of parties.
MEDIATION IN INDIA: LAWS
The use of mediation as an alternative dispute redressal mechanism dated back to centuries before the British come to India. Back then informal Panchayat was used to resolve the disputes between the parties. Till date, a neutral third party used to settle the dispute informally between the groups or tribes in India. However, with the onset of British colonialism, mediation begin to be recognized as a formal and legalized alternative dispute redressal mechanism. Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalat in the Indian judicial system.
The development of mediation as an ADR mechanism can be attributed to Section 89 of Civil Procedure Code, 1908 which was inserted by the CPC Amendment, Act 1999 with respective effect on 1st July 2002. This particular development was due to the efforts of Hon'ble Mr. Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had invited the Institute for the Study and Development of Legal System (ISDLS) to India for a national legal exchange program between India and the USA. They define the institutional backlog in the Indian judicial system and suggest the ADR mechanism. So reforms have been made in 2002 to form of amendment section 89 of CPC. This amendment was challenged by a group of lawyers in the Malimath committee and the 129th Commission was constituted for this report. The supreme court in the case Advocate Bar Association vs Union of India made it mandatory for Court to refer the case for the alternative if they were so pleased and this is one of the landmark development of mediation in India. Under honorable Mr.Justice R C Lahoti, a mediation and conciliation committee was also established. It was initiated from the project on mediation in Delhi in the year 2005. A permanent meditation Centre was also inaugurated at Tis Hazari Court Complex and judicial mediation was started at Karkardooma Court Complex. Two mediation Centers were also inaugurated, Karkardooma in Delhi and another in Patiala court in 2015.
This, mediation as an alternative dispute Redressal mechanism has received significant importance over the years.
MEDIATION BILL, 2021
Section 4 of draft mediation bill 2021, defines mediation,
‘mediation means a process, whether referred to by expression mediation, pre-litigation mediation, online mediation, conciliation or an expression of similar import, whereby parties request a third person or persons to assist them in their attempt to reach an amicable settlement of the dispute'
The definition of mediation is taken from article 2(3) of the United Nations Convention on International settlement agreement resulting from mediation (Singapore convention on mediation).
Features-The draft bill proposes for pre-litigation mediation and at the same time safeguards the interest of litigants to approach the competent adjudicatory forum in case of urgent relief is sought. If the outcome of mediation is successful then the Mediation settlement agreement (MSA) has been enforced by law. This bill also protects the confidentiality of mediation undertaken and provides immunity in certain cases against its disclosure. Since a mediation settlement agreement is out of a consensual agreement between parties, if they are not agreed to the decision, they can challenge the same on the limited ground. The bill stipulates the time limit of 90 days for completion of mediation and if they agree 90 days can be extended. . Since mediation settlement agreement is out of the consensual agreement between parties, if they are not agreed to the decision, they can challenge to the same on the limited ground. This bill also provides for the establishment of the mediation council of India. It provides for community mediation.
Why necessary- The search in India for stand-alone mediation law, has led to the formulation of draft mediation bill 2021. Since the law on mediation is made in different enactments including rules and regulations it felt necessary to make and to reframe work on mediation and bringing all the legislation including amendments in existing laws.
TYPES OF MEDIATION
1. Facilitative mediation- In this mediation, a professional mediator attempts to facilitate negotiations between the parties they recommend and encourage them to reach their voluntary solution by exploring each other's interests. In this, mediators tend to keep their views regarding the conflict hidden.
2. Court-Mandated mediation- Although mediation is typically defined as completely a voluntary process in this court is interested in promoting a speedy and cost-effective settlement. When parties and their attorney are irrelevant to engage in mediation, their odds of setting through court-mandated mediation are as low, as they may just be going to the motion. But when the parties on both sides see the benefit of engaging in the process settlements rates are much higher.
3. Evaluation mediation- A type of mediation in which material is more likely to make a recommendation and suggestion and to express opinions. Instead, the focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations.
4. Transformative mediation-Mediator focuses on empowering disputants to resolve the conflicts and to recognize each other needs and interests.
CONCLUSION
To conclude, it cannot be denied that the Bill has its fair share of positives and is indeed a step in the right direction as far as the recognition and promotion of mediation is concerned. A stand-alone law on mediation would not help in generating greater confidence and trust in the mediation process, but would also make it easier for businesses and commercial entities to resolve disputes in India. At the same time, it is imperative that the gaps and concerns highlighted above are addressed by the drafters, to ensure that the Mediation Act, as and when enacted, contains clear and elaborate provisions which, in practical terms, facilitate the ADR mechanism of mediation.
REFERENCES-
1. https://blog.forumias.com/draft-mediation-bill-issued-for-public-consultation/
2. https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1769531
3. https://www.scconline.com/blog/post/2021/11/06/centre-seeks-comments-on-draft-mediation-bill-2021/