Mediation Bill

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    • Recently, the Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.
      • The Mediation Bill is meant for institutionalisation of mediation and establishment of the Mediation Council of India.

    Panel recommendation 

    • The panel cautioned against making pre-litigation mediation compulsory and warned the Centre against the provision to give higher courts the power to frame rules for mediation.
    • The panel has recommended that the compulsory provision of pre-litigation mediation should be reconsidered and it should be offered as an option to only those who are willing to mediate.
    • Pre Litigation Mediation should be introduced in a phased manner instead of introducing it with immediate effect for all civil and commercial disputes.
    • Panel objected to Clause 26 of the Bill, as it is against the spirit of the Constitution. Specific provisions should be made about court annexed mediation in place of existing provisions of clause 26.
      • It provides that court annexed mediation including pre-litigation mediation in court annexed mediation centre shall be conducted in accordance with the practice, directions or rules by whatever name called by the Supreme Court or the High Court.
    • The appointment of the Chairperson and Members of the Mediation Council of India should be made by a selection Committee constituted by the Central Government.
    • The existing definition of ‘mediation’ needs to be reframed. Redefine the term ‘mediation’ such that it reflects the intent of the provisions contained in Clauses 17 and 18 of the Bill.
    • Reasons for such recommendations:
      • Making pre-litigation mediation mandatory may actually result in delaying of cases.
      • It may prove to be an additional tool in the hands of truant litigants to delay the disposal of cases.
      • Keeping in view the wide spectrum of duties and responsibilities assigned to the Mediation Council of India, mediation councils should be instituted in the States as well.
      • Since the definitions are given in Clause 3 of the Bill, there is no need to define ‘mediation’ separately in Clause 4. 

    Mediation Bill

    • 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.
    • The qualifications and appointment of the Chairperson and Members of the proposed Mediation Council
      • The Chairperson and full time Members to have ‘shown capacity’ and ‘knowledge and experience’ in ‘mediation.’ 
      • According to present provisions in the Bill, people dealing with problems relating to ‘Alternative Dispute Resolution’ can become members and chairman of the council.

    Various Modes of Alternative Dispute Resolution

    • 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.
    • Negotiation:
      • It is another form of ADR for resolving disputes. 
      • The parties agree upon a course of action and bargain for advantage.
      • Sometimes they try to adopt a creative option that serves their mutual interests.
      • It is the most common form of resolving a dispute and this process solves most disputes. 
    • Lok Adalat:
      • It  is yet another form of ADR created as per the requirements of people in particular areas. 
        • Camps of Lok Adalat were initially started in Gujarat in 1982 and now they have been extended to all over India. 
      • The main purpose of establishment of Lok Adalats is to diminish the heavy burden of pendency of cases in the Courts which were of petty nature. The seekers of justice are in millions and it is becoming rather a heavy burden on the courts to dispose of such matters keeping in view the ever increasing litigation.

    Image Courtesy: Mediation Centre 

    Way Ahead

    • The bill should be provided with a proper legislative shape after discussion with the stakeholders.
    • Such a bill will enable a faster resolution of disputes.
    • It would result in the restoration of faith of the litigants in the judicial and law making arms of the government.

     

    What is Alternative Dispute Resolution?

    • ADR refers to the methods of resolving a dispute, which are alternatives for litigation in Courts.
    • 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

    Need for Alternative Dispute Resolution(ADR)

    • It is a well known fact that the present Judicial System is extremely expensive and delaying. The parties to a dispute have to wait for Justice for years. 
    • This lengthy and expensive process of litigation has reduced the faith of common people in the Judicial System being followed by the Courts. 
    • These weaknesses of the Judicial System have given birth to alternative remedies for the disposition of disputes. 
    • Alternative remedies provide cheap and speedy Justice and that is the reason that ADR mechanism is being preferred by the disputing parties for the resolution of their disputes.
    • The Malimath Committee Report (1989-90) underlined the need for ADR mechanisms as a viable alternative to conventional court litigation.

    Source: TH