THE MEDIATION BILL, 2021

Source: indianexpress

1.CONTEXT

The Mediation bill 2021 was introduced and the Parliament standing committee was tasked to review the bill. The standing committee submitted its report and recommended substantial changes.

2.LEGISLATIONS RELATED TO MEDIATION

• Code of civil procedure 1908
• The Arbitration and conciliation act 1996
• The companies act 2013
• Commercial courts act 2015
• Consumer protection act 2019
• India is a signatory to the Singapore convention on Mediation ( formally the United Nation convention on International Settlement Agreements Resulting from Mediation )

3.FEATURES OF THE BILL

• The bill aims to promote, encourage and facilitate mediation, especially institutional mediation, to resolve disputes, commercial and otherwise.
• Bill proposes mandatory mediation before litigation.
• It safeguards the rights of litigants to approach competent adjudicatory forums /courts for urgent relief.
• The mediation process will be confidential and immunity is provided against its disclosure in certain cases.
• The outcome of the mediation process in the form of a Mediation Settlement Agreement will be legally enforceable and can be registered with the state /district /taluk legal authorities within 90 days to ensure authenticated records of the settlement.
• The bill establishes the Mediation Council of India and also provides for community mediation.

4.CONCERNS OVER THE BILL

1. According to the bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceedings in a court, whether or not there is a mediation agreement between them. Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost.

However, as per article 21 of the constitution, access to justice is a constitutional right that cannot be fettered or restricted. Mediation should be voluntary and making it otherwise would amount to the denial of justice.

2. According to clause 26 of the bill, court-annexed mediation, including pre-litigation mediation, will be conducted following the directions or rules framed by the Supreme Court or High courts

However, the committee objected to this. It stated that clause 26 went against the spirit of the constitution. In countries that follow the common Law system, it is a healthy tradition that in the absence of statutes, apex court judgments and decisions carry the same weight. The moment a law is passed, however; it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, clause 26 is unconstitutional.

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

As a result, conducting cross-border mediation in India will exclude the tremendous benefits of worldwide enforceability.

5.CONCLUSION

To enable a faster resolution of disputes, the bill should be implemented after discussion with stakeholders.