Ms. Kiran Bhardwaj is a Senior Mediator in the Supreme Court of India, Karkardooma Court, and Rouse Avenue Court. She is also an Advocate-on-Record. In Supreme Court, she has the credit of settling the highest number of cases. Having an expert in the field, she has shared her views on Mediation and the new Mediation Bill, 2023.

Introduction

Foundation Stone for the new age Legal System has been installed in the Lok Sabha by the Government of India which would probably reduce the workload of the judiciary. The present judicial system is struggling with its biggest trouble which is a backlog and above that, it is the institution of new cases, that makes the system paralyzed.

The Government as well as the Courts have been working in not only disposing of more and more cases but also trying to find a way out where the litigation does not reach the court. The same is probably the stronger ADR- Alternative Dispute Resolution.

The new Mediation Bill, 2023 is certainly a progressive legislation for amicable dispute resolution which would not only resolve the dispute quickly but also in an amicable manner. The dispute resolved through courts has its other implications but when the same is resolved through ADR, the parties to the dispute are happy since this mechanism is speedy, cheap, voluntary, and transparent. Over the Mediation, the disputes are resolved amicably and because of the above-stated characteristics, the parties are in a win-win situation all the time. The mediators are always neutral persons who patiently hear the claims of both parties at length and try to bring out a solution so that further disputes are not created.

The new Bill would be an effective tool in the hands of parties which would bring an end to the dispute forever and the credit of the same shall be given to the stakeholders who have recognized the power of this process and worked very hard to get statutory recognition for collaboration, dialogue, reconciliation and problem-solving.

The new Mediation Bill has been introduced in the line of the Arbitration Act but Section 19 clarifies the Mediation different from Arbitrator as (a) the mediator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject matter of the mediation proceedings; (b) the mediator shall not be presented by the parties as a witness in any arbitral or judicial proceeding. The Bill has XI Chapters and Ten Schedules.

The Good Side

The Bill has raised the likelihood of improved availability and access to mediation. Court-annexed mediation remains a significant arm, with services provided for free or at a low cost. Private mediation is referred to as 'institutional mediation,' in which service providers provide mediation services. These institutions must maintain a panel of mediators and charge professional fees.

Parties can select the mediator they believe is best suited to their case. It is more of service like other services such as mobile, medical and education. The Bill provides the potential for the development of a strong private mediation sector.

The essential characteristics of mediation, such as secrecy, self-determination, and voluntariness, are well protected.

Section 2 (c) of the Bill has introduced a ‘Council’ which has been given the power to regulate the entire setup, process, and functioning of the Mediation.

Section 4 defines Mediation as “Mediation’ shall be a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby party or parties, request a third person referred to as mediator or mediation service provider to assist them in their attempt to reach an amicable settlement of a dispute.”

Section 23 of the Bill protects against admission and provides a right against disclosure. All mediation communication is kept strictly confidential.

Section 21 of the Bill requires that the mediator's non-settlement reports do not reveal the reason for the non-settlement. A mediated settlement must be the result of self-determination, according to the concept of mediation in Section 2(h).

Section 24 of the Bill provides that any party may freely drop out of the mediation procedure at any time during the process.

Section 27 of the Bill provides for the enforcement of a mediated settlement agreement as if it were a court judgment or decree.

Section 28 of the Bill gives the mediation an enforcement value where it speaks “A mediated settlement agreement resulting from a mediation signed by the parties and authenticated by the mediator shall be final and binding on the parties and persons claiming under them respectively and enforceable as per the provisions of sub-section”

The Bill has also provided in Section 30 about the cost of mediation wherein it has been stated that the expenses would be borne by both parties equally.

The Bill protects online mediation. Mediation can take place virtually, online, or in a mixed setting. This makes participation in the system more convenient and enables for a wider reach.

By the introduction of the Bill it has been stated that a “Mediation Council of India” (MCI) would be established to oversee and maintain standards, as well as to establish an ethical code of conduct for mediators, service providers, and training institutes.

The Bill applies to business disputes with the government. Any other conflict with the government could be resolved if mediation schemes or rules are developed. Actions made in good faith by the authority are protected if they are done with the written agreement of the competent authority. This is a good start.

The possible Lacunas

The definition of 'Mediator' in Section 2(h) distinguishes between those who are registered with the MCI and those who are not. This increases the number of available mediators. A Mediated Settlement Agreement (hereinafter referred to as MSA) can be enforced as court judgments or decrees. This provision may be abused if random agreements are converted to MSAs in order to get faster enforcement under the Bill. If there is a power imbalance, weaker parties may be exploited. To mitigate this risk, the execution as a court judgment or decree could be limited to mediation conducted by a registered mediator.

Any challenge to an MSA must be brought within 180 days (Limitation) of the date on which the party making the challenge obtains a copy of the authenticated MSA. If the reason for the challenge is fraud, corruption, or impersonation, it would be more suitable to calculate the term for the challenge from the date of knowledge, as anticipated by the Limitation Act.

The First Schedule identifies as 'not suited for mediation' problems involving juveniles, deities, people with intellectual disabilities, people of unsound minds, and people with disabilities who require a lot of help.  All such people, however, are protected by distinct laws that provide for guardianship when they are unable to make legally binding decisions. Excluding such people from mediation would be discriminatory and would deprive them of simple access to justice.

Similarly, conflicts involving professions such as lawyers, doctors, and chartered accountants in regard to registration, discipline, or misconduct are barred. Tortious liability disputes, such as negligence, are recognized in many jurisdictions and have been shown to be particularly ideal for mediation. It is critical to emphasize that such complaints can be resolved through mediation. Such mediation has significant educational value, and it is anticipated that even allegations of negligence may be dismissed by a wide stroke.  

The Second Schedule deals with legislation that are not superseded by the Mediation Bill. This list includes the Family Courts Act of 1984, the Maintenance and Welfare of Parents and Senior Citizens Act of 2007, and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013. Conciliation is carried out in such legislation by the conciliation officer/Internal Complaints Committee, who are also the authorities to make findings in the adversarial investigation they perform.

Misuse of the adversarial process could have serious effects, hence a forum selection is required for successful justice delivery in these circumstances. Unfortunately, the mediation process, which has the intricacies to properly address these issues, is not an option.

The required provision for pre-litigation mediation was intended to remain dormant and, if mediator capacity improves, to be triggered appropriately via alerts. Because mediation necessitates a mental shift, having prior mediation experience is the most effective approach to persuade litigants to use mediation. Mandatory pre-litigation mediation has the ability to accelerate a shift in the litigants' thinking.

The proposed Mediation Council's level of mediation expertise appears to be insufficient. Only one member of the entire Council is expected to be conversant with mediation law, which does not guarantee acquaintance with the complexities of mediation. Mediation is a skill which requires training, experience, and autonomy.

Despite being stated in the Bill, international mediation has not been addressed. This is an oversight that must be corrected as soon as possible.

Under the Tenth Schedule, the Consumer Protection Forum does not have the authority to refer matters to mediation on its own initiative. This could be an error, as it is available in the Bill's Eighth Schedule for the Companies Act tribunals.

Community mediation is a step forward, but its meaning is vague. The approach requires three mediators to serve on the panel. Even though it must be recorded, the MSA cannot be enforced. The provisions are time-consuming and inconvenient to use.  

Mediation Council of India

The Central Government has in a way tried to balance the composition of the Council set up under the Bill which consists of one Chairperson, two full-time members, three ex officio members and one part-time representative from the Ministry of Commerce and Industry.

The Chairperson and the two full-time members are stated to be persons of having knowledge and experience in law relating to the mediation of Alternative Dispute Resolution Mechanisms.

The ex officio members would be from the Department of Legal Affairs, Ministry of Law and Justice and from the Department of Expenditure, Ministry of Finance and one Chief Executive Officer.

The tenure of the Chairperson, Full-time members and Ex-officio members is four years and also eligible for re-appointment and the maximum age is determined to be seventy years.

Conclusion

It’s possibly a great initiation by the Government. If the same is implemented properly by framing rules, thereunder, it would be one of the best laws introduced in recent times. The Government would have to address the lacunas of the law before the Act is coming into force. This is a progressive law with a wider reach. This is also required to be advertised by the Government for a better reach of people like the Consumer Protection Laws. There are numerous reasons for the Indian mediation community to rejoice. India has undoubtedly made significant progress. 

Related Stories:-

Supreme Court rejects PIL Seeking Compulsory Pre-Litigation Mediation

Share this News