Understanding the mediation bill
In India, mediation’s beginnings date back to amendments to Section 89 of the Code of Civil Procedure, 1908, which brought in court-annexed mediation, the Arbitration and Conciliation Act, 1996, which designed the use of mediation without court intervention, the 2005 Salem Bar judgment, which upheld the amendments and directed rules to be framed to implement it, and the 2010 Afcons judgment, which explained and clarified the enactments, correcting legislative missteps.
With the pendency of cases crossing the 45-million mark, burdening the three-tier justice delivery system, Chief Justice of India (CJI), justice NV Ramana, in his address at the inaugural Singapore-India Mediation Summit, 2021, stated that mediation should be made mandatory as the first step for dispute resolution and a law should be framed in this regard.
The demand for a separate mediation law has led to the formation of the Mediation Bill, 2021, which intends to provide sanctity to the process as well as provide a common platform for its practice and remove inconsistencies between existing legislations. The bill adopts the view of the Supreme Court in the 2010 Afcons judgment that “mediation” and “conciliation” are synonymous.
The bill states that the mediation settlement agreement will have the status of a judgment or decree of a court, which will be binding. This will go a long way in ensuring that agreements arrived at through mediation are recognised and enforced by law.
Section 6(1) of the bill obligates a party to take steps to settle the disputes by pre-litigation mediation before approaching any court or tribunal. This will be a mandatory requirement and is a remarkable step. The mediator can be one chosen by the parties or one selected by the recognised service provider. Parties are required to have at least one substantive session with the mediator where the process is explained to them. Thereafter, they are free to continue or terminate the mediation and follow the litigation path if they so decide. Further, if any urgent interim order is needed, they can bypass mediation.
In Singapore, the rules provide for the court, while awarding costs, to consider the parties’ conduct concerning any attempt at resolving the cause or matter by mediation or any other means of dispute resolution.
Schedule II to the bill sets out cases exempt from mediation. However, there is no need for demarcating the areas wherein pre-litigation mediation is not permissible. Instead, the endeavour should be made to provide the mechanism to refer as many disputes as possible with the exclusion of matters which can only be decided by a court of law.
Section 36 of the bill provides that for a chairperson to be a judge or an eminent person to be appointed by the central government. This is a drastic departure from the mediation bill drafted by the committee of mediators. The present composition does not suit a professional body and is more aligned to being a governmental regulator. Members of the council should be those who have expertise in mediation. All appointments to the council must be done by the CJI and should not be handled exclusively by the executive.
Online mediation has been defined under Section 32 (1). To enable transparency, privacy, and security of the interest of the parties, the chapter providing for online mediation must include a detailed provision relating to confidentiality clauses. It should provide for a confidentiality agreement and set out confidentiality norms of the mediation process and safeguards that extend to parties and mediators.
Community mediation has been embraced as an empowerment tool for individuals and communities to take back control over their affairs from the courts. The ultimate objective is to create a parallel, citizen-run, and community-centred dispute resolution system. As per Section 47 of the bill, any dispute likely to affect peace, harmony and tranquillity among the residents or families of any area or locality may be settled through community mediation. To ensure that mediation can penetrate across the country, a mediation cell system can be created across gram panchayats in rural areas, and to further strengthen the mediation process, elders can be trained to carry out effective mediations.
The bill places international mediation in the part dealing with domestic mediation being conducted in India, which will result in these settlements losing the benefit of the Singapore Convention for enforcement of commercial mediation settlements across the world. Hence, the parties in such cases would prefer to mediate their disputes out of India, and our hopes to build a robust capacity to handle such disputes will come to naught.
In conclusion, mediation, being the cheapest and simplest option available to the public at large, can be described as a tool of social justice. A separate legislation for mediation and rules will indubitably address most concerns around the mediation process and pave the way for making mediation the first-stop dispute resolution method for domestic and cross-border disputes. In addition to the reforms discussed above, a great deal of shift in mindset of stakeholders, awareness about the process, and redefining our approach to mediation is essential for growth and sustainability of the mediation practice in India.
Sriram Panchu is President and Nandini Gore is Vice-President, Mediators India & Sr. Partner at Karanjawala & Co., Advocates
The views expressed are personal