The Mediation Bill, 2021

Source: The post is based on the article “The Mediation Bill, 2021” published in The Hindu on 4th October 2022.

What is the News?

The Mediation Bill, 2021 was introduced in the Rajya Sabha. The Parliamentary Standing Committee is tasked with a review of the Bill. The committee’s report to the Rajya Sabha was submitted recently.

In its report, the Committee recommends substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

What is Mediation Bill, 2021?
Read here: Mediation Bill, 2021
Why does India need to promote mediation?

Benefits of mediation: The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution.

Must read: Mediation Bill: Salient Provisions, Potential Challenges and the Way Forward – Explained, pointwise
What are the concerns with the Mediation Bill, 2021?

The bill proposes mandatory mediation before litigation: But, as per Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted. Mediation should just be voluntary and making it otherwise would amount to the denial of justice.

Clause 26 of the Bill: According to Clause 26 of the Bill, court-annexed mediation, including pre-litigation mediation, will be conducted in accordance with the directions or rules framed by the Supreme Court or High Courts.

The Bill considers international mediation to be domestic when it is conducted in India with the settlement being recognised as a judgment or decree of a court.

The Singapore Convention does not apply to settlements that already have the status of judgments or decrees. As a result, conducting cross-border mediation in India will exclude the tremendous benefits of worldwide enforceability.

Read more: Mediation Bill: Not getting the Act together
What are the recommendations of the Committee?

The Committee recommends substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

Clause 26 is unconstitutional: The committee stated that Clause 26 went against the spirit of the Constitution. In countries that follow the Common Law system, the absence of statutes, apex court judgments and decisions carry the same weight.

The moment a law is passed, then it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, Clause 26 is unconstitutional.

Read more: Encouraging mediation to settle disputes
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