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Explained | The Mediation Bill, 2021
Oct 06, 2022
Our today's edition of Current Affairs is here. Read to know more about The Mediation Bill, 2021. Also, find the topic's relevance to the UPSC CSE syllabus below:
For Prelims: Alternate Dispute Resolution, Lok Adalats, Parliamentary Standing Committee
For Mains: Alternate Dispute Resolution(ADR) Mechanisms, Mediation Bill, Mediation, Arbitration,
Recently the Parliamentary Standing Committee recommended substantial changes to the Mediation Bill.
What is Alternate Dispute Resolution? Critically analyze provisions of the Mediation Bill, 2021.
The Mediation Bill, 2021 was introduced in the Rajya Sabha in December, 2021.
The Parliamentary Standing Committee was tasked with a review of the Bill.
The committee’s report to the Rajya Sabha was submitted in July, 2022.
In its report, the Committee recommends substantial changes to the Mediation Bill, aimed at institutionalizing mediation and establishing the Mediation Council of India.
Legal Provisions in India for Mediation
There is no standalone legislation for mediation in India. There are several statutes containing mediation provisions, such as
The Code of Civil Procedure, 1908,
The Arbitration and Conciliation Act, 1996,
The Companies Act, 2013,
the Commercial Courts Act, 2015,
The Consumer Protection Act, 2019.
Need of Single Law on Mediation
In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.
The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution.
As India is a signatory to the Singapore Convention on Mediation (formally the United Nations Convention on International Settlement Agreements Resulting from Mediation), it is appropriate to enact a law governing domestic and international mediation.
Key Features of the Bill
The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal. A party may withdraw from mediation after two mediation sessions.
The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.
The Mediation Council of India will be set up. Its functions include registering mediators, and recognising mediation service providers and mediation institutes (which train and certify mediators).
The Bill lists disputes that are not fit for mediation, such as those involving criminal prosecution, or affecting the rights of third parties. The central government may amend this list.
If the parties agree, they may appoint any person as a mediator. If not, they may apply to a mediation service provider to appoint a person from its panel of mediators.
Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.
Concerns and Issues With the Draft Bill
According to the Bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court. However, as per Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted.
The Mediation Council, established to regulate the profession of mediators, may not have representation of practicing mediators with adequate experience. This is unlike other professional regulators such as the Bar Council of India.
The Bill applies to international mediations only if they are conducted in India. It does not provide for enforcement of settlement agreements resulting from international mediation conducted outside India.
As per the Singapore Convention, conducting cross-border mediation in India will exclude the tremendous benefits of worldwide enforceability.
On one hand, the Mediation Bill could lead to more out of court settlements and reduce the pendency in courts. On the other hand, mandating mediation goes against its voluntary nature.
In order to enable a faster resolution of disputes, the Bill should be implemented after discussion with stakeholders.
If the issues of the Bill aren’t fixed, our aspirations to become an international mediation hub for easy business transactions could be crushed before they’ve even begun.
ADR and Mediation Alternate dispute resolution (ADR) refers to means by which disputes are settled outside the traditional court system. In India, modes of ADR include arbitration, negotiation, mediation, and Lok Adalats.
Mediation is a voluntary process in which parties try to settle disputes with the assistance of an independent third person (the mediator). A mediator does not impose a solution on the parties but creates a conducive environment in which they can resolve their dispute.
The mediation process depends on the choice of parties, and there are no strict or binding rules of procedure.
Advantages of Mediation Its voluntary and non-adversarial nature. The flexibility and confidentiality of the processIts speed and cost effectiveness, The finality of consensual settlements. As a mode of ADR, mediation may also help reduce the case burden on courts.
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