The Mediation Bill 2021

Mediation Bill 2021: About

• Aim of the Mediation Bill : The Mediation Bill aims to promote, encourage, and facilitate mediation, especially institutional mediation, to resolve commercial and other disputes.
• Mandatory mediation: The Mediation Bill proposes mandatory mediation before litigation. The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.
• Rights of litigants: The Mediation Bill protects the rights of litigants to approach competent adjudicatory forums/courts for urgent relief.
• Confidentiality: The mediation process will be confidential, and immunity is given against its disclosure in certain cases.
• Legal enforceability: The mediation outcome in the form of a Mediation Settlement Agreement (MSA) will be legally enforceable and can be registered with the State/district/taluk legal authorities within 90 days to ensure legal records of the settlement.
• Mediation Council of India: The bill sets up the Mediation Council of India and provides for community mediation. The council also registers mediators and recognizes mediation service providers and mediation institutes.
• Not fit for mediation: The Mediation Bill lists disputes that are not fit for mediation (criminal prosecution or affecting the rights of third parties). The central government can amend this list.

Mediation Bill: What is Mediation?

• Mediation: Mediation is an Alternative Dispute Resolution (ADR) mechanism, wherein, an impartial third party assists the disputing parties to resolve their differences through discussions.
• The Mediation Bill, 2021 was introduced to institutionalize mediation and establish the Mediation Council of India.
• Since India is a signatory to the Singapore Convention on Mediation, it is necessary to enact a law governing domestic and international mediation.
• Legislations for mediation:
  • Statutes such as the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019 have provisions for mediation. There are no standalone legislations.

Mediation Bill: Concerns w.r.t.

• Violation of constitutional right: The Mediation Bill says that pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court.
• Parties who do not attend pre-litigation mediation without a reasonable reason may be penalized.
• This will violate rights under Article 21 of the Constitution, which provides access to justice as a constitutional right which cannot be restricted.
• Clause 26 of the Mediation Bill : The clause says that court-annexed mediation, including pre-litigation mediation, must be conducted in accordance with the rules framed by the Supreme Court or High Courts.
• Once a law is passed, it becomes the guiding force rather than the instructions or judgments given by the courts. This goes against the spirit of constitution.
• Cross-border mediation within India: The Mediation Bill states that international mediation conducted within India will be considered domestic, with the settlement being recognised as a judgment or decree of a court.
• However, the Singapore Convention does not apply to settlements that already have the status of judgments or decrees.
• Conducting cross-border mediation in India will take away the tremendous benefits of worldwide enforceability.

Mediation Bill: Way forward

• Discussion with stakeholders: The Mediation Bill should be implemented after discussion with stakeholders to enable a faster resolution of disputes.
• Fixing issues: If issues in the bill are not fixed, India’s aspirations to become an international mediation hub for easy business transactions would not fulfill.

Sharing is caring!