04 Oct The Mediation Bill, 2021
The Mediation Bill 2021
The topic is based on The Mediation Bill 2021. It talks about how The mediation bill impacts Indian Polity and Governance-constitution.
The Parliamentary Standing Committee on Law and Justice has recently completed the review of the Mediation Bill, 2021. It has recommended various changes to the bill. The bill was introduced for institutionalizing mediation in India and establishing the Mediation Council of India.
MEDIATION AND OTHER ALTERNATIVE DISPUTE RESOLUTION (ADR)TECHNIQUES
ADR is the process by which disputes between the parties are settled or brought to an amicable result without Judicial intervention. Hence, disputes are settled outside the traditional court system. This ensures efficiency and speedy justice. It can be of the following types:
- Arbitration: In arbitration, the dispute is submitted by an agreement of parties to an arbitral tribunal. The tribunal passes a binding decision which is known as an ‘award’. Procedural technicalities are avoided in the proceedings.
- Mediation: A Mediator is appointed who guides the parties and helps them reach a mutually acceptable resolution to the dispute. A mediator in an impartial third person. He helps to facilitate dialogue and discussions between the parties in dispute.
- Conciliation: It is a nonbinding procedure in which a conciliator who acts as a neutral third party, assists the parties to reach an amicable settlement of the dispute. A Conciliator plays a more proactive role than a mediator. Parties can accept or reject the decision of the Conciliator. However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both parties.
- Negotiation: Negotiation is a dialogue intended to resolve disputes In negotiation, no third parties are involved. Rather, the disputing parties sit down and discuss terms to arrive at a negotiated settlement. Terms that best suit the mutual interest of both parties are finalized.
HIGHLIGHTS OF THE MEDIATION BILL, 2021
- Pre-litigation mediation: The bill mandates disputing parties to undergo mediation before approaching a court or tribunal.
- Time limit: It sets a timeline of 180 days to complete mediation which can be further extended by another 180 days.
- Mediation Council of India: A mediation council shall be established to register mediators.
- Binding agreements: It makes mediation agreements binding and enforceable
- Disputes unfit for mediation: It also lays out which disputes are not fit for mediation: These include disputes relating to claims against minors, disputes relating to claims against persons of unsound mind, disputes involving criminal prosecution, and disputes affecting the rights of third parties. This list is not exhaustive and Central Government has the power to amend it.
- Appointment of mediators: Mediators may be appointed by either the parties to the agreement or by a mediation service provider.
- Agreement binding in nature: Agreements formed out of mediation shall be considered final and binding and enforceable like a judgment of the court.
- Applicability: It applies to domestic as well as international mediation.
- Community mediation: where the dispute in question is likely to affect peace, harmony, and tranquility amongst the residents or families of any area or locality, community mediation may be resorted to. A panel of three mediators can be made comprising of people of standing and integrity who are respected in the community or representatives of resident welfare associations
NEED OF THE BILL
- The ex-CJI, N. V. Ramana while giving a speech at the India-Singapore Mediation Summit emphasized the need for a law to be made on mediation. He stated, “Mediation should be made mandatory as a First Step in Dispute Resolution”. The following are the significance of the bill”
- There was no separate law until now which dealt solely with mediation. The arbitration and conciliation act, of 1996 did not give enough emphasis to mediation. Hence, a separate law on mediation will help to reduce the backlog of cases, especially in commercial matters.
ISSUES WITH THE BILL
- The provision of mandatory pre-litigation mitigation conflicts with Article 21 of the constitution. The bill imposes costs on parties who fail to attend the pre-litigation mediation. But Article 21 of the Constitution provides access to justice as a constitutional right that cannot be restricted or curtailed.
- The Bill considers international mediation to be domestic when it is conducted in India and the resultant settlement agreement is recognized as a judgment or decree of a court. However, the Singapore Convention does not apply to settlements that already have the status of judgments or decrees. Therefore, the benefits of the convention will not apply in the cross-border mediations conducted in India.
- The Bill does not require the representation of practicing mediators in the Mediation Council. The Council will consist of seven members, including two full-time members having experience in mediation or ADR, and ex-officio members such as the Law and the Expenditure Secretaries. The Bill fails to provide a practicing mediator to be a member of the Council.
- Central Government approval is needed by Council before issuing regulations. This goes against conflict of interest as the government may also be a party to the mediation.
It is imperative to hold consultations with all stakeholders. During the Ease of Doing Business rankings, India ranked poor in enforcing contacts. The Mediation Bill is a significant step to improving this and providing speedy justice. The issues of the bill should be addressed to make India an international mediation hub for easy business transactions.
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