Draft Mediation Bill, 2021

November 9, 2021

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The Ministry of Law and Justice has placed the Draft Mediation Bill, 2021 in the public domain to seek feedback and suggestions from all stakeholders.

Need of Mediation Bill

Strengthening of Alternative Dispute Resolution (ADR):
- The Government has been taking various policy initiatives for the promotion and strengthening of ADR mechanisms.
- It would facilitate quick disposal of disputes, outside of traditional court systems.
- Bringing a standalone law on Mediation is a continuation of the exercise.
Unify the different enactments and rules and regulations related to Mediation:
- The laws on Mediation are contained in several enactments including different Rules and Regulations.
- It was necessary to ascertain the present statutory framework on mediation.
- The need was regularly felt for bringing umbrella legislation including amendments in the existing laws.
Aligning Indian Norms with International practices:
- The Bill takes into contemplation the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably.
Singapore Convention on Mediation:
- India is a signatory to the Singapore Convention on Mediation.
- Hence, it has also become expedient to enact a law in mediation on issues of domestic and international mediation.

Objectives of the Bill

To promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes commercial and otherwise,
To enforce domestic and international mediation settlement agreements.
To provide for a body for the registration of mediators, to encourage community mediation.
To make online mediation as an acceptable and cost-effective process and for matters connected therewith or incidental thereto has been prepared.

Main Features of the Bill

The draft Bill proposes for pre-litigation mediation.
- At the same time, it also safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case urgent relief is sought.
The successful outcome of mediation in the form of a Mediation Settlement Agreement (MSA) has been made enforceable by law.
- Since the MSA is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
The registration of MSA has also been provided with State, District, Taluk Legal Authorities within 90 days
- To ensure maintenance of authenticated records of the settlement.
Provides for the establishment of the Mediation Council of India.
Provides for community mediation.

Conclusion

The bill, when provided with a proper legislative shape, will enable a faster resolution of disputes.
It would result in the restoration of faith of the litigants in the judicial and lawmaking arms of the government.

Alternate Dispute Resolution Mechanisms

Generally, it uses a neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute.
It offers to resolve all types of matters related to civil disputes, as explicitly provided by the law.
It is capable of providing a substitute for the conventional methods of resolving disputes.
Important Provisions Related To ADR
- Section 89 of the Civil Procedure Code, 1908: Provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then the court formulate the terms of the possible settlement and refer the same for ADRs.
- Acts dealing with ADR
  - Legal Services Authority Act, 1987 (established Lok Adalat System)
  - Arbitration and Conciliation Act, 1996

Arbitration:
- The dispute is submitted to an arbitral tribunal which makes a decision on the dispute that is mostly binding on the parties.
- It is less formal than a trial and rules of evidence are often relaxed.
- Generally, there is no right to appeal an arbitrator’s decision.
- Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.
Mediation:
- An impartial person called a “Mediator” helps the parties try to reach a mutually acceptable resolution of the dispute.
- He/she does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
- It leaves control of the outcome with the parties.
Conciliation:
- It is a non-binding procedure in which an impartial third party, the conciliator, assists the parties in a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
- It is a less formal form of arbitration.
- The parties are free to accept or reject the recommendations but if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

Need and Significance

The inefficiency of the judiciary to deal with pending cases and clogging with long unsettled cases.
- Even after setting up fast track courts, the number of pending cases are still piling up.
Delays in litigation should be mended by referring disputes to ADR for settlement, which would prove to be an effective counter to reduce pendency.
These provide scientifically developed techniques to the Indian judiciary which helps in reducing the burden on the courts.
Its motive is to provide social-economic and political justice and maintain integrity in the society enshrined in the preamble.
ADR is founded in such Fundamental Rights, Article 14 and 21 which deal with Equality before Law and Right to Life and Personal Liberty respectively.
It also strives to achieve equal justice and free legal aid provided under Article 39-A relating to the Directive Principle of State Policy (DPSP).
Also, the Malimath Committee Report (1989-90) underlined the need for ADR mechanisms as a viable alternative to conventional court litigation.

Source: PIB