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The article ‘ New Age Mediation: Analysis of Mediation Bill, 2021’ by Atulit Raj describes the implications of the Mediation Bill, 2021 while pressing on the need in the Indian context. In India, the foremost legal recognition to mediation has been given in the Code of Civil Procedure, 1908. The idea behind the Mediation Bill, 2021 is to encourage, promote and facilitate mediation. The bill provides various features that must act as a boon to the common masses.

The author highlights that the step which the Department of Legal Affairs has taken must be beneficial in order to diminish the burden on traditional courts along with speedy resolution.

Introduction: Mediation in India

In India, mediation had an unformalized status i.e., there existed no dedicated legislation on mediation in India – this posed a great roadblock for mediation to shine as a prospective resolution mechanism.

Unlike the easy accessibility of the arbitration process, merely, to initiate a mediation proceeding, it was necessary to list mediation as a dispute resolution clause in contracts, invoke Courts to enforce Section 89 of the Code of Civil Procedure, etc. – to make the situation worse, there existed great ambiguity under Section 89 of the CPC which portrays a lack of uniform rules of procedure governing mediation thereby stripping down the benefits of the process.

 New Age Mediation: Analysis of Mediation Bill, 2021

Overview: The Mediation Bill, 2021

The Mediation Bill, 2021 (“the Bill”) aims at incentivizing the public by upholding the spirit of the ADR mechanism– Firstly, by mentioning the “Neutrality Principle” and “Confidentiality”, the Bill seems to restore the faith in the Mediation process and turns it in a solid prospective for dispute resolution.

Secondly, by discussing the modalities such as listing the disputes not fit for mediation, mediator’s role & eligibility, proceedings’ time limit, grounds for challenging a mediated settlement, etc., the Bill clears room for interpretation and makes it accessible for the people and the officials to work on clear terms without ambiguity. Lastly, the Bill sheds light on multiple benefitting ideas such as the establishment of the Mediation Council of India, provisions regarding Community Mediation, Recognition of Online Mediation, etc., this helps people in the new age of mediation.

Why mediation

There is a pressing need to uphold mediation as a process of justice delivery in the Indian landscape with a particular focus on the adoption of online mediation –

• Firstly, it saves time for both the courts and the parties involved because it is a simpler process.
• Secondly, it paves the way for swift justice to be delivered, for instance, it can be very effective for the rural community because of minimal litigation costs.
• Lastly, the parties have control over the trigger, and they can direct the proceedings to their advantage. Reviewing the number of pending cases, the Bill is of great significance in making mediation an accessible means of conflict resolution as it is the cheapest and simplest tool of social justice available to the public at large.

Mediation Bill: Merits & Demerits

i) A stand-alone mediation law

India is a signatory of international conventions pertaining to mediation, given the fact that certain provisions under-with do not reciprocate appropriately in the Indian context, the lawmakers are pressed to rethink the implementation – a stand-alone mediation law becomes a need of the hour. The purpose of having a stand-alone mediation law is to undo the diversity that existed across different legislations and chase uniformity.

The demand for a separate mediation law has resulted in the creation of the Bill, which aims to give the process sanctity while also providing a common platform for its practice and removing inconsistencies between existing legislations – for instance, the Bill reaffirms the Supreme Court’s landmark decision that says

“mediation” and “conciliation” are synonymous, further, pre-litigation mediation and online mediation are also included in the term “mediation” as per the Bill.

The Bill’s aim is to resolve civil and commercial disputes through mediation, it has the potential to relieve some of the strain on law enforcement agencies, further, the proposed law of mediation, has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the path to the compounding of certain criminal offences, may eventually relieve some of the pressure on the police.

ii) A promising prospect

• Firstly, the Bill poses a great step to establishing a set of guidelines to resolve disputes while stressing the importance of “public policy”, “gross impropriety”, and “community mediation” in order to form a robust policy that is to cater to a country with a large number of litigators i.e., India – for instance: individuals and communities may embrace community mediation as an empowerment tool for reclaiming control of their affairs from the Courts.
• Secondly, the backlog in our courts is a cry for effective alternative dispute resolution – it is quite difficult to either maximize courts’ capacity as it may lead to problems relating to the area, facilities, and management will arise, and the great issue of determining the number of judicial officers are needed in any taluka or district.
• Thirdly, the Bill could be viewed as an attempt to enhance the ease of doing business like the availability of various dispute resolution systems attracts individuals and businesses.
• Lastly, the Bill solidifies mediation’s position in India as a sought-after mode of Alternative Dispute Resolution by addressing the majority of concerns about the mediation process and paving the way for mediation to become the first-stop dispute resolution method for domestic and cross-border disputes.

iii) Noting complications

• Firstly, establishing the supremacy of the ‘fundamental policy of Indian law’ over mediated settlements.
• Secondly, there exists great vagueness in multiple provisions – for instance, the Bill does not clarify what rules would regulate an international mediation that takes place in India, there is nothing mentioned about the repercussions of failing to register a mediated settlement agreement, the notion of ‘community mediation’ marks similarities to Khap panchayats, which was subjected to great criticism in the past, etc.
• Lastly, the Bill seems to miss out on addressing some of the key nuances of the process which may act as a deterrent – for instance, missing out on some of the key issues specified (with regard to confidentiality) under the Civil Procedure Mediation Rules, the ambiguous nature of Section 21 is in contravention of landmark judgments and international settlement legislations and can lead to judicial intervention thereby hindering the mechanism, there is a serious lack of solid infrastructure which is necessary to practice the process of mandatory pre-litigation mediation, etc.

The Bill consists plethora of unanswered questions which pose a great deterrent in facilitating the ADR mechanism of mediation.

Conclusion

“Peace is not the absence of conflict but the ability to cope with it”

– Mahatma Gandhi

Mediation holds the potential to become the first-stop dispute resolution method for domestic and cross-border disputes, it requires a significant shift in stakeholder mindsets, awareness of the process, and redefining of our approach for the growth and sustainability of the process in India.

The Bill recognizes that mediation should be treated as a profession rather than as a part-time honorarium-based job as it is in court-annexed mediation schemes. Further, the Bill calls for mandatory mediation therefore it is safe to assume that party autonomy will be preserved and that the Bill will not jeopardize the self-determination of mediating parties in any way.

While it is too early to comment on its effectiveness, the Bill is a welcome change to the legislative regime. However, its success will now be determined by how it is implemented by both the executive and the judiciary.

References:

[1] The Mediation Bill, 2021, PRS Legislative Research, Available Here 

[2] Shaswat Awasthi Akash & Thomas Jose, Draft Mediation Bill, 2021: A Preliminary Analysis, Available Here

[3] Kingshuk Banerjee and Nidhi Kulkarni, India: Draft mediation bill, 2021, Available Here

[4] Centre for Alternate Dispute Resolution, Available Here 

[5] Khushi Dua, Decoding India’s draft Mediation Bill 2021, Available Here