The Mediation Bill, 2021

Context

The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill aimed at institutionalizing mediation and establishing the Mediation Council of India.

Background

There is no standalone legislation for mediation in India.
The Mediation Bill, 2021 was introduced in Rajya Sabha in December 2021, with an aim to reduce the pendency of cases in courts.
Later, the Parliamentary Standing Committee was tasked with a review of the Bill.
The committee’s report to the Rajya Sabha was submitted on July 13, 2022.

India is a signatory to the Singapore Convention on Mediation (formally the United Nations Convention on International Settlement Agreements Resulting from Mediation)

Mediation in India:

Famous Mediation Cases - landmark decision by Supreme Court of India:

Perry Kansagra Vs Smriti Madan Kansagra on 15 February, 2019
Afcons Infra Ltd Vs M/S Cherian Varkey Constructions (2010)
B.S. Krishnamurthy v. B.S. Nagaraj (2013)

Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
It is a voluntary process where the disputing people decide to mutually find a solution to their legal problem by entering into a written contract and appointing a mediator.

Mediation India is divided into two categories which are commonly followed:

Court referred Mediation: The court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908.
- This type of mediation is frequently used in Matrimonial disputes, particularly divorce cases.
Private Mediation: In Private Mediation, qualified personnel works as mediators on a fixed-fee basis. Anyone from courts, to the general public, to corporates as well as the government sector, can appoint mediators to resolve their dispute through mediation.

Alternate Dispute Resolution (ADR)

Alternate Dispute Resolution (ADR) refers to the means by which disputes are settled outside the traditional court system.
There are the modes of ADR in India:
- Arbitration
- Negotiation
- Mediation
- Lok Adalats

Key Feature of the Bill:

The Mediation Bill, 2021 seeks to promote mediation, particularly institutional mediation, and provide a mechanism for enforcing mediated settlement agreements.

It 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 (MSA) will be legally enforceable.
The agreement can be registered with the State/district/taluk legal authorities within 90 days to ensure authenticated records of the settlement.
Mediation Council of India: The Bill establishes the Mediation Council of India and also provides for community mediation.
- The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR).
- Three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
- Functions of the Council include:
  - Registration of mediators
  - Recognizing mediation service providers
  - Mediation institutes (which train, educate, and certify mediators).

Concerns with the Bill:

Mandatory Pre-Litigation: Making pre-litigation mediation necessary may result in case delays. Also, parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost.
Denial of Justice: As per Article 21 of the Constitution, access to justice is a constitutional right that cannot be fettered or restricted. Mediation should just be voluntary and making it otherwise would amount to the denial of justice.
Clause 26: The panel was against clause 26^th clause of the draft gives power to the supreme court or the High court to make laws of pre-litigation according to them. The committee has objected to this, it has stated that Clause 26 goes against the spirit of the Constitution.
Appointments: The panel had discussions also about the qualifications and appointment of the Chairperson and Members of the proposed Mediation Council.
Worldwide Enforceability: 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.