Mediation Bill

9th December, 2021 Polity

Figure 1: No Copyright Infringement Intended

Context:

Government of India has released a Draft Mediation Bill 2021 for promotion and strengthening of Alternative Dispute Resolution (ADR) mechanisms in India.

Mediation is a process where an impartial third party is appointed to facilitate structured negotiation between disputing parties and help them reach a mutually agreeable settlement.
It is known as an Alternative Dispute Resolution (ADR) mechanism, in other words, an alternative for litigation in courts.
India is a signatory to the Singapore Convention on Mediationwhich assures disputants that their mediation settlements will be enforced without much difficulty across the world.

It recognises mediation as a profession, which is a huge improvement over the part-time honorarium basis it has in the court-annexed mediation schemes.
The Bill acknowledges the importance of institutes to train mediators, and service providers to provide structured mediation under their rules.
It provides for pre-litigation mediation.
The Bill does away with the confusion emanating from using both expressions ‘Mediation’ and ‘Conciliation’ in different statutes by opting for the former in accordance with international practice, and defining it widely to include the latter.
It also recognises online dispute resolution.
It provides for enforcement of commercial settlements reached in international mediation viz between parties from different countries as per the Singapore Convention on Mediation to which India was a notable signatory.
The Convention assures disputants that their mediation settlements will be enforced without much difficulty across the world, unlike the fresh headaches that the litigative decree or arbitration award presents at the time of enforcement.
It is expected that this Bill would make India a hub for international mediation in the commercial disputes field, and indeed institutions are being opened for this purpose.

It treats international mediation, when conducted in India, as a domestic mediation.
It would hamper India’s dream to become a hub for international mediation in the commercial disputes field. Because, the settlement under the domestic mediation is given the status of a judgment or decree of a court.
This will be good for cases between Indian parties, but disastrous when one party is foreign.
Accordingly, if cross-border mediation is conducted in India, parties may lose out on the tremendous benefits of worldwide enforceability since Singapore Convention does not apply to settlements. So, parties are forced to go elsewhere other than India to conduct mediation.

The Council has three members, a retired senior judge, a person with experience of Alternative Dispute Resolution (ADR) law and an academic who has taught ADR. However, it doesn’t have a single mediator.

the bill provides for a long list of disputes which should not be mediated.
By doing so, it provides that any settlement of disputes involving them needs the court’s approval there by denying the possibility of a beneficial mediated settlement in these cases.
For example, Fraud, Disputes relating to claims against minors, Patents and copyright cases, proceedings before the TRAI etc.

Eventually, this draft bill, needs a wider level of discussion and consideration amongst all stakeholders that will enable a faster resolution of disputes resulting in the restoration of faith of the litigants in the judicial and lawmaking arms of the government.