Exploring the Mediation Bill 2023: Promoting Alternative Dispute Resolution in India

The Mediation Bill was passed in the recent Lok Sabha session. The Bill aims to promote mediation. Learn about the Mediation Bill 2023 and its implications for alternative dispute resolution in India, examining its key provisions, challenges, and potential solutions.

About Mediation

• It is a method of alternative dispute resolution (ADR) used to resolve conflicts, disputes, and disagreements between parties with the assistance of a neutral third party, known as a mediator. 

Role of Mediator

• The mediator does not have the authority to impose a decision or judgment but instead helps the parties involved in the dispute come to a mutually agreed-upon resolution.

Characteristics of the Mediation Process

Here are some key characteristics of mediation:

1. Voluntary Process: It is upon the parties if they are willing to be part of the mediation process.
2. Neutral Mediator: The mediator is an impartial and unbiased individual who does not take sides. They just manage the process to find a common ground.
3. Informal Process: Mediation is less formal than a courtroom trial.
4. Self-Determination: In mediation, the parties have control over the outcome. They work together to find solutions that are mutually acceptable, rather than having a decision imposed upon them by a judge or arbitrator.
5. Wide Applicability: Mediation can be used to resolve a wide range of disputes, including family conflicts, workplace disputes, business disagreements, community issues, and more.
6. Cost-Effective: Mediation is often more cost-effective and quicker than going through a formal legal process.

Types of Mediation

• Mediation referred by the Court

A judge or the court may refer a case to mediation, either at the request of one of the parties or at the court’s own discretion.

• Private Mediation

It is a process where parties involved in a dispute voluntarily choose to engage a neutral third party, known as a mediator, to assist them in resolving their issues.

Need for More Mediation than Legal Trials

The need for more mediation than legal trials arises as it is a valuable tool for resolving conflicts efficiently, equitably, and constructively. It helps individuals and organizations to avoid long legal battles. It fosters better understanding and cooperation among the parties.

Singapore Convention on Mediation

It is an international treaty aimed at promoting and facilitating the enforcement of settlement agreements resulting from international commercial mediation. The convention was adopted in Singapore on August 7, 2019, and is also often referred to simply as the “Singapore Convention.”

Key Features of Mediation Bill 2023

1. Provision of Pre-litigation Mediation: Before resorting to legal action in a court or specific tribunals, parties are required to make an effort to resolve civil or commercial disputes through the mediation process.
   
2. Applicability: The Act will apply to mediations conducted in India involving:
   1. only domestic parties,
   2. at least one foreign party and also have a relation to a commercial dispute,
      
3. Mediation Council of India: The Bill makes provisions for setting up the Mediation Council of India. 
4. Timeline of Mediation Process: Mediation proceedings must be completed within 180 days. 
   
5. Matters fit to be resolved by mediation:
   1. disputes against minors or persons with intellectual disability,
   2. prosecution of criminal offences, 
   3. any dispute relating to levy, collection, penalties, direct/indirect tax refunds, 
   4. any investigation, inquiry or proceeding before the Telecom Regulatory Authority of India, Telecom Disputes Settlement and Appellate Tribunal and under the Competition Act, 2002, etc
   5. The Mediation Act is also intended to apply beyond civil and commercial disputes.
      
6. Mediation Agreement:
   1. The agreements resulting from mediation shall be final and binding. They shall be enforceable as that of any other court order.
      
7. Pre-Litigation Mediation and the Power of Courts to Refer the Parties to Mediation:

The provisions of the Bill do not impede the authority of any court to refer disputes, specifically those related to compoundable or matrimonial offenses arising from or connected to civil proceedings between the involved parties, to mediation when deemed suitable.

Issues with the Mediation

1. Issue of Mandatory Mediation: Mandatory mediation may raise questions about the seriousness of the parties’ participation.
2. Violation of Fundamental Rights: According to Article 21 of the Constitution of India access to justice is a fundamental right. Thus, mandating pre litigation is a violation fo this right.
3. Mediation Council of India: The Mediation Coucil can issue regulations only after the approval of the Central government. This impinges on its autonomy and authority.
4. Shortage of Skilled Mediators: India currently has a limited pool of trained and experienced mediators, which presents challenges in delivering mediation services across diverse sectors and for varying types of disputes.
5. Social Perceptions: In certain instances, individuals may be reluctant to consider mediation due to concerns regarding societal perceptions. They may fear that opting for mediation could be interpreted as a sign of vulnerability or a willingness to compromise.

Way Forward

1. Gradual Implementation of Compulsory Pre-Litigation Mediation: There is a need to introduce mandatory pre-litigation mediation in a stepwise fashion.
2. Capacity Building of existing mediators and training of new mediators.
3. Incorporation of technologies like AI for legal processes. 

Sources:

NISHITH DESAI