Policy Update
Ishan Singh
Background
On 14th September 2023, the Mediation Bill (2023) received the President’s assent and was referred to as the Mediation Act (2023). This bill seeks to support and encourage mediation as a substitute for traditional dispute resolution methods. This can be called a step towards the ADR mechanism, which stands for alternative dispute resolution mechanism. ADR mechanisms are methods for resolving disputes outside the traditional courtroom litigation process. They are designed to be more efficient, cost-effective, and flexible.
However, this is not the first time that alternative ways to justice have been encouraged. Arbitration and Conciliation Act, 1996 under section 30 provides that an arbitrator may use mediation, conciliation or other procedures to settle. Section 89 of the Code of Civil Procedure, 1908 provides that the judge will encourage the parties to resolve their disputes through the ADR mechanism.
The first question that arises is what is mediation? Mediation is the practice of solving disputes through a mediator who facilitates disputing parties into a settlement. Using specific communication and negotiation strategies, a neutral third party mediates disputes through an organized process. The mediation process has the clear support of the litigants involved. Instead of imposing a solution, a mediator fosters an atmosphere where disputing parties can work out any issues.
The bill aims to standardize and institutionalize the practice of mediation through legal framework and institutional support. The conventional legal system is frequently criticized for being costly, time-consuming, and adversarial. Consequently, the use of alternative dispute resolution (ADR) techniques like mediation has increased.
A more cooperative approach to conflict resolution is provided by mediation, which can produce results that are more rapid, affordable, and agreeable to both parties. The act was enacted by the Central Government and applies to the entire country of India through Notification No. CG-DL-E-15092023-248775. However, the Central Government may announce the date on which the Act will take effect.
History of Mediation
In India, the idea of mediation has always existed; it is not particularly revolutionary. Indians have long used this method of resolving conflicts, going back to the days when the elders made decisions. In addition, Panchayat support was given in the Indian villages.
Problems continued even after India attained independence and began to arise rapidly. The complexity of society led to the emergence of issues that prevented earlier dispute resolution. In addition, the long-lasting effects of colonial rule attracted people to the adversarial dispute resolution system, which replaced the conventional approach and increased the number of cases instituted.
Applicability
As per section 2 of the Mediation Act 2023, this Act will be applicable in mediations conducted in India if one or both of the following conditions are met:
- all parties regularly reside in, are incorporated in, or have their place of business in India;
- the mediation agreement specifies that any disputes will be settled in compliance with this Act’s provisions; or
- a global mediation is in place; or
- wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations and local bodies, including entities controlled or owned by such Government and where the matter pertains to a commercial dispute; or
- in any other type of dispute, if the Central Government or a State Government deems it appropriate and notifies the parties periodically for resolution through mediation under this Act, in which case the parties—including the Governments, agencies, public bodies, corporations, and local bodies—together with their entities controlled or owned.
Exclusions
The Act’s section 6 contains a list of disputes which are not fit for mediation. These include disputes relating to claims against minors, deities or persons of unsound mind, involving criminal prosecution, and affecting the rights of third parties, Land acquisition and determination of compensation under land acquisition laws or any provision of law providing for land acquisition, Any investigation, inquiry, or proceeding before the Telecom Regulatory Authority of India, Telecom Disputes Settlement Commissions, Securities and Exchange Board of India, Securities Appellate Tribunal, Appellate Tribunal, and under the Competition Act of 2002, etc.
Pre-litigation Mediation
The bill mandates pre-litigation mediation, in certain cases, before filing a case in the court. These generally include:
- Commercial Disputes: Business-related conflicts, including contractual disagreements and partnership disputes.
- Family Disputes: Issues related to divorce, child custody, and alimony, excluding cases involving domestic violence.
- Civil Disputes: Non-criminal matters involving private parties, such as property disputes and neighbourhood conflicts.
- Employment Disputes: Conflicts between employers and employees, including wrongful termination and workplace discrimination.
Mediator
The Act’s Chapter IV addresses mediator supervision and qualifications. Under certain circumstances and taking into account their credentials, experience, and accreditation, the Act permits the appointment of foreign nationals as mediators. It also takes into account the parties’ preferences for the mediator’s identity and procedure for appointment. In addition, the recently enacted legislation proficiently tackles the possibility of conflicts of interest emerging during mediation proceedings and institutes a precisely defined protocol for disclosing any situation that might give rise to a conflict of interest in order to handle any circumstances.
Mediation Council of India
The Mediation Council of India will be founded by the national government.
- The members of the Council will be a chairperson,
- three ex-officio members (the Law Secretary and the Expenditure Secretary among them),
- two full-time members (with mediation or alternative dispute resolution experience),
- a part-time member of an industry body.
The Council’s responsibilities encompass the following: (i) mediator registration; and (ii) accreditation of mediation institutes and mediation service providers.
Mediated Settlement Agreement
Agreements resulting from mediation will be binding and enforceable in the same manner as court judgements, excluding community mediation. It can be challenged on the grounds of:
- Fraud
- Corruption
- Impersonation
- Relating to dispute not fit for mediation
Community Mediation
Any dispute that is likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.
A panel of three members shall be constituted for community mediation.
Performance
As per the statistics published by the National Legal Authority, a statutory body established under the Legal Service Authorities Act, of 1987, approximately 0.11 million cases were settled through mediation between April 2022 to June 2023. However, from a close perspective, the number remains low with more than ten million civil cases pending before Indian courts. This is because India lacked a statutory mediation framework, which is why the bill was introduced in the first place.
However, the COVID-19 outbreak has increased the volume of applications for mediation as a means of resolving disputes. In India, voluntary mediation between parties needs a lot of encouragement from all. The NALSA Mediation Report for April 2022 to May 2022 states that 11820 cases were resolved through mediation, 398 ADR Centers, 569 Mediation Centers, 5320 Judicial Officers Mediators, 8423 Lawyers Mediators, and 2863 Any Other Mediators are available in India. 19158 cases have been resolved through mediation in India as of right now, with 958 mediation centres operational. Parties can register for mediation as a means of resolving disputes by visiting a web portal developed by NALSA.
Impact
Tackling the Pendency of Cases: As of May 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts. (PRS Legislative research). Therefore, we need a robust arrangement to reduce the pendency of cases in the courts of India. Mediation settlement can reduce the pendency with a significant account.
Cost-effective and time saving: Mediation offers several advantages over traditional legal methods of dispute resolution. The first advantage is that mediation is cost-effective, and the parties involved can save significant amounts of money on legal fees. The parties can avoid drawn-out court cases and legal battles by using the mediation process, which is typically faster than traditional legal methods.
Amicable Settlement: Through the guidance of an impartial mediator, mediation fosters cooperative and transparent communication, leading to amicable resolutions. This procedure is discreet, and economical, and maintains relationships while lowering resentment. Without the adversarial atmosphere and excessive expenses of traditional litigation, parties maintain control over the resolution process and arrive at mutually agreeable solutions.
Emerging Issues
There are various provisions of the bill which can be problematic. It has been discovered that during mediation negotiations, minority disputants and mediators have received less equitable treatment, and disputants have received lower compensation. Lawyers have not selected mediators from a variety of groups, as a result of which ethnic minorities are underrepresented. Professional associations and mediation service providers need to make mediation as strong as the conventional litigation process and provide opportunities for mediators with a variety of backgrounds.
The quality of mediation services offered by mediators will be one of the difficulties. Wealthy parties to a dispute may use expert mediation services, while others may use government agencies. Similarly, professional mediators may handle complicated cases requiring their expertise, while non-complex cases may go to non-professional mediators for government agencies. The cost of mediation will be crucial, particularly in the Indian context, and controlling it will be extremely difficult for the Indian administration.
Way Forward
In conclusion, the Mediation Bill 2023 represents a significant step towards promoting mediation as an effective alternative dispute resolution mechanism. The bill has the potential to improve the efficiency of the legal system and increase access to justice by lessening the burden on courts and facilitating faster, more amicable resolutions for disputing parties. But for it to be successful, it must be implemented well, which means creating a strong regulatory framework, training mediators, and educating the public.
REFERENCES
- Srivastava, A.(2024). Mediation Future of Dispute Resolution. University of North Bengal
- MediationAct, (2023). THE GAZETTE OF INDIA
- Assessing the Mediation Act, ( 2023). A Leap Forward in Dispute Resolution. Prime Legal
- Mediation Act, (2023). latest amendments. Barandbench
- Mediation Act, (2023). Easing Judiciary Workload. Drishtiias
- Breaking Down the Mediation Bill, (2023). Critical Features. Ficl
- India: Transforming Dispute Resolution In India: An Overview Of The Mediation Act, (2023). Mediate
- Settlement through Mediation Report April 2022 to May 2022, (2022). National Legal Services Authority
- Sumeda, (2022). Explained | Over 47 million cases pending in courts: clogged state of Indian judiciary. The Hindu
- Sharan, M. K. (1978). Court Procedure in Ancient India, on the Basis of Dharmaśāstra Literature. India: Abhinav Publications.
- Murphy, J. (2015).The Critique of the Adversary System and the New Paradigm as a Response. NYU PRESS ONLINE
About the Contributor – Ishan Singh, a research intern at IMPRI pursuing his bachelor’s degree in B.A. (Hons.) Political Science from Kirori Mal College, University of Delhi.
Acknowledgement – The author would like to thank Dr Arjun Kumar, Ms.Vaishali Singh, Ms Aasthaba Jadeja, Dhruv Tapadia and Shivashish Narayan who helped me throughout this article and reviewing the same.
Read more at IMPRI:
Carbon Border Adjustment Mechanism (CBAM) 2023
Pradhan Mantri Formalisation of Micro Food Processing Enterprises Scheme, 2020
