|Introduction: Define mediation.|
Body: List out the potential benefits and drawbacks of the Mediation Bill.
Conclusion: Way forward
Mediation in litigation refers to a form of alternative dispute resolution (ADR) in which a neutral third party, known as the mediator, assists the disputing parties in reaching a mutually acceptable settlement to their legal dispute. Unlike a traditional court trial, where a judge or jury makes a final decision, mediation aims to facilitate communication and negotiation between the parties themselves. The Mediation Bill 2021 will be introduced in the Parliament which aims at institutionalising mediation and establishing the Mediation Council of India.
What are the potential benefits of the proposed bill?
- Reduce backlog of cases: The data available indicates that more than 4.1 crore cases are pending in district and taluka courts and approximately 59 lakh cases are pending in different high courts, 71,000 cases are pending before the Supreme Court. Given this backlog the ADR mechanism can be an important tool in increasing access to justice by providing redress and settlement of disputes in a non-adversarial manner, free from the formalistic procedural practices of the law.
- International commitments: The proposed bill indicates India’s strong commitment to ADR by becoming one of the first group of signatories to the Singapore Convention on Mediation.
- Safeguards citizen rights: The mediation process is non-adversarial and based on consent. It safeguards the rights of litigants to approach competent adjudicatory forums/courts for urgent relief. The process is confidential and provides immunity against disclosure of cases.
- Mandatory pre-litigation: The proposed bill proposes mandatory pre-litigation of at least 2 sessions in civil and commercial disputes. The outcome of the mediation process in the form of a Mediation Settlement Agreement (MSA) will be legally enforceable and can be registered with the State/district/taluk legal authorities.
What are the drawbacks of the proposed bill?
- Coercive nature of bill: The feature of mandatory pre-litigation can be used by one party to coerce another party even if they are unwilling to opt for ADR. The feature can be seen to violate Article 21 of the Constitution, access to justice is a constitutional right, which cannot be fettered or restricted.
- Excludes Government: The proposed bill attempts to exclude government, one of the biggest litigants, from the scope of mediation is disappointing.
- International Mediation: The fact that an international mediation will only be taken into consideration if it is held in India is another significant problem. However, the Bill makes no mention of settlements or agreements reached through external international mediation. The Bill makes no mention of whether or not such agreements will be upheld or challenged.
- Qualifications: There is ambiguity regarding the qualifications and experience required to be a member of the Mediation Council of India.
The Bill ought to be enacted following consultation with stakeholders to facilitate a quicker resolution of disputes. The proposed feature of community mediation is a welcoming step in the process of ADR.