INTRODUCTION
Mediation, is an Alternative Dispute Resolution method. It is basically an out-of-court settlement taking resort to a third-party intervention which encourages parties to resolve their dispute without engaging in litigation. The third party in the process is called as a mediator, the settlement reached is binding on the parties and the best part is that it is a completely voluntary process. A mediator creates a conducive environment wherein the parties agree on certain terms and come to a solution; this means that the mediator is not involved in the decision making but Acts as a facilitator of an amicable settlement.
The key difference between mediation as an alternative dispute settlement mechanism and other methods like arbitration and conciliation is that in the former the final decision is a mutually agreed settlement by both the parties whereas in the latter, the third-party intervention or the arbitrator and conciliator are the neutral adjudicator who have the final say in the decision. This is the reason of its popularity in the settlement of matrimonial disputes involving divorce, child custody etc.
It is not a new practice introduced in India, it finds a place in the Section 89(1) of the CPC (Code of Civil Procedure, 1908).[1] This provision comes with the aim to provide swifter justice as opposed to the long and tiresome litigation process. It also helps in lowering the burden of judiciary and speedy disposal of the cases. The section 89 of the CPC, 1908 provides for the courts to refer a case for Mediation or Arbitration, Lok Adalat or Conciliation.
The Mediation Act, 2023 received the presidential assent on 14th September 2023 and was notified by the Ministry of Law and Justice on 9th October 2023. The main objective of the Act is to facilitate the institutional mediation and establish a body for registration of mediators. Inter alia, encouraging community mediation and validating online mediation are also the objectives of the Act.
ANALYSIS OF THE PROVISIONS OF THE ACT
Definition of mediation
Section 3(h)[2] of the Mediation Act 2023 (hereinafter ‘the Act’) mediation is defined as amicable settlement of the dispute by the parties with assistance of a third party who is the mediator who does not have authority to impose the settlement on the parties. It recognizes different modes of mediation and broadens the scope and ambit of mediation to include pre-litigation mediation, community mediation, online mediation, conciliation or an expression of similar import.
Interestingly, conciliation is also included within the meaning of mediation, which in turn renders the provisions of conciliation in the Arbitration and Conciliation Act, 1996 [3] as superfluous.[4]
Applicability of the Act
The section 2[5] of the Act specifies the conditions for applicability of the Act, however it may be noted that the place of conduction of Mediation should be India, hence it does not apply to the mediations conducted outside and does not provide for enforcement of such settlements.
Mediation Agreement
The section 4[6] of the Act provides for a mediation agreement to be in writing by or between the parties and anyone claiming through them to refer the disputes to mediation. It can be in form of a mediation clause or a separate agreement for mediation. The parties can submit to mediation prior to the arising of dispute by an agreement or even after the disputes have arisen it can be referred to mediation by agreement.
Pre-Litigation Mediation
The section 5[7] of the Act, recognizes the Pre-Litigation Mediation and section 5(1) provides that parties may voluntarily and with mutual consent settle the disputes by pre-litigation mediation. This is a welcome step, as it is an efficient way of trying to amicably settle the dispute before delving it the realm of the long litigation process. It saves resources, money and time of the parties and even the courts. It also maintains confidentiality of the dispute as addressed by the section 22[8] of the Act.
Matters not fit for Mediation
The Act under section 6[9] read with the first schedule provides for the disputes not fit for mediation. Some of them are – disputes involving prosecution for criminal offences, disputes relating to the claims against minors, deities, persons with disabilities, mental illness or persons of unsound mind, proceedings or disputes falling under jurisdiction of National Green Tribunal etc. It also gives power to the Central Government to notify any other subject matter not fit for mediation. It provides flexibility to mold it according to the needs.
Time Bar to Mediation
The Act under the section 18[10] provides that any mediation carried out under the Act must be completed 120 days from the first day of hearing before mediator, which can be extended to a maximum of 60 days, thus being 180 days. This ensures the speedy disposal of the cases, in order to preserve the object of mediation.
Online and Community Mediation
The Act also recognizes Online mediation in the section 30[11], which states that with the written consent of the parties, mediation can be conducted using computer networks and electronic form in a manner as may be specified, the only caveat being maintaining the confidentiality of the proceedings, and mediator may make any such appropriate steps to ensure integrity and confidentiality of the proceedings. This again is a welcome step as it may help in money, resources and a lot of time, especially in pre-litigation stages this offers comfort to the parties.
Another feature is the community mediation, under section 43[12] of the Act wherein any dispute likely to affect peace, harmony and tranquility amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute. For this, Act prescribes a panel of community mediators under section 43(4) and 43(5) along with the procedure under section 44 of the Act. Although this was being practised in some States, but now there can be uniformity in the procedure, in linen with the provisions of the Act.
MEDIATION COUNCIL OF INDIA AND MEDIATION SERVICE PROVIDER
The Act provides for a Mediation Council of India (‘the council’ hereinafter), under section 31[13] which is a body to promote domestic and international mediation throughout India and develop it as a robust center for mediation. The council will lay down the guidelines for the continuous education, certification and assessment of mediators by the recognized mediation institutes and also provide for manner of conduct of proceedings, registration of mediators and laying down professional and ethical standards of conduct for mediators.[14]
Section 40[15] of the Act provides for a Mediation Service Provider which includes a body or an organization, or an authority constituted under the Legal Services Act, 1987, or a court annexed mediation center, or any other body as notified, provided any of these are recognized by the Mediation Council of India for conduct of mediation proceeding. The functions of these mediation service providers include accreditation and maintaining a panel of mediators, providing mediators for mediation proceedings, promoting professional and ethical conduct amongst mediators etc.[16]
CONCLUSION
The recognition and formalization of the process of mediation through this legislation is a formidable effort by the government in promoting the growth of the Alternative Dispute Resolution in India. The Mediation Act recognizes institutional, online, and community mediation as efficient ways of resolving disputes in a speedy manner. It offers parties an effective platform to resolve conflicts voluntarily and by mutual consent, bypassing the prolonged courtroom litigations. It not only gives a formal framework for mediation but also fosters a culture of resolution of disputes amicably and by mutual trust and cooperation. Though there are certain shortcomings like it does not address the International Mediation, where place of mediation is not India, but considering the Act to be the first stepping stone towards a systemized and institutionalized form of mediation, the progress it brings about is impressive.
Author(s) Name: Saumya Tripathi (Dr. Ram Manohar Lohiya National Law University, Lucknow)
Reference(s):
[1] Code of Civil Procedure 1908, s 89(1).
[2] Mediation Act 2023, s 3(h).
[3] Arbitration and Conciliation Act 1996.
[4] Apporva Misra and Nishant Revalia, ‘Mediation Act 2023 Latest Amendments: A Complete Guide’(Bar and Bench, 18 October 2023) <https://www.barandbench.com/law-firms/view-point/mediation-act-2023-latest- amendments-guide> Accessed 9 December 2023.
[5] Mediation Act 2023, s 2.
[6] Mediation Act 2023, s 4.
[7] Mediation Act 2023, s 5.
[8] Mediation Act 2023, s 22.
[9] Mediation Act 2023, s 6.
[10] Mediation Act 2023, s 18.
[11] Mediation Act 2023, s 30.
[12] Mediation Act 2023, s 43.
[13] Mediation Act 2023, s 31.
[14] Mediation Act 2023, s 38.
[15] Mediation Act 2023, s 40.
[16] Mediation Act 2023, s 41.
