ANCIENT MEDIATION CONCEPT
Mediation is not a novel concept for India; we heard the concept of Mediation since the Mahabharta period, where Lord Krishna used the method of Meditation at that time for resolving the issues, which arose between Kaurva and Pandava in Hastinapura. If we try to understand the notion of Mediation, what is Mediation in the Mahabharata period? The simplest way to define Mediation is to settle a dispute with a win-win situation by using your skill, colloquially we understand as Sam, Dham, Dand, and Behad. In addition, Lord Krishna mindfully came as a mediator and tried his best to settle the dispute in the king’s court in the presence of Bhisham, Dronacharay, and Shukracharya. Recently, the Chief Justice of India N.V. Ramana said at the Indian Singapore Mediation Summit “Mahabharata an early attempt at mediation, mediation embedded in Indian ethos.”
If we trace the history of the Mediation concept across India then the concept of Mediation found in Israel also around 960 B.C.; where there were some instances present when King Solomon acted as a meditator between two ladies related to the issue of maternity; King Solomon resolved the dispute by giving them equal lawful right on a kid. In addition, around 4500 and 1900 B.C.; where mediation instances were traced in Mesopotamia in Sumerian civilization in the present time it is known as (Middle East countries). According to the ancient concept of Mediation, it was to resolve disputes impartially without any hidden motive.
The concept of Mediation became prominent among business class people due to the nature of its sector disputes arise between businesspersons, and down in the history ‘Mhajans’ were appointed as a mediator to resolve their dispute among business class men. On the other hand, in tribal communities, ‘Panchas’ were appointed for resolving their disputes which is still prevalent in most tribal parts.
EMBARK OF MEDIATION IN ADVERSARIAL SYSTEM OF INDIA
The first statute in India came in 1996, as an Arbitration and Conciliation Act, 1996 where the mediation concept was introduced and stipulated under Section 30 sub-section (1) however, this Act 1996, was not effective, and due to lack of proper implementation Mediation concept became water-downed subsequently, Section 89 was introduced in the code of civil procedure, 1908, which is related to the different methods of dispute resolution to make it effective and efficient so that mediation concept will not become defunct. In the Moti Ram (D) Tr. LRs and Anr v. Ashok Kumar Anr– “Supreme Court, in this case, declared in the year 2011 that mediation proceedings were conducted confidentially and only an executed settlement agreement or a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator.”
The famous Malimath Committee Report addressed the valid and cogent issues related to the Mediation; the bottom line of this report was to make the mediation mechanism a long-term mechanism for common people to resolve the disputes and reduce the pending cases from the court.
Another 129th Report of the Law Commission addressed the method and suggestions for the effectiveness of the mediation process they are-
- The establishment of the Nagar Nayalaya consisted of a professional Judge and in the Gram Panchayat appoints the two lay Judges with the same power and authority.
- Suggested the establishment of the Neighbourhood Justice Centers in their vicinity; closely work related to the resolution of a dispute.
- Moreover, two Judges headed the Rent Courts and dealt with the cases with no appeal but only review power if there is any question of law in the district court.
Two landmark Judgments are essential to discuss in respect of Mediation they are Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (p) Ltd– “Supreme Court held that the matters related to commerce, trade, contracts, consumer disputes, and tortious liability all come under the ambit of Mediation and can be mediated.” Another case MR Krishan Murthi v. New India Assurance Co. Ltd– “Supreme Court, asked the government to consider the feasibility of enacting an Indian Mediation Act to take care of various aspects of Mediation in general. The court gave the directions to the government to examine the feasibility of setting up a Motor Accident Mediation Authortiyty by amendments required in the Motor Vehicle Act and also directed to set up the Motor Accident Mediation Cells that act as an independent body and work under the patronage of NALSA or handed over to MCPC.”
Mediation has become effective because of amendments that took place in other laws which bolster the Mediation mechanism and they are, the Commercial Courts Act 2015 inserted the Section 12A by 2018 amendment and made pre-litigation Mediation compulsory before the filing of the suit under this Act, The new Consumer Protection Act, 2019 introduced the concept of Mediation should be the first choice under Section 37-38 and procedure should be followed under Section 74(3) of the Act read with Section 101 (2) (zf) and Section 102(2)(p) of the Act. Further, appointment power is vested to the Central and State government regarding Consumer Mediation Cells for dispute resolution. Furthermore, India is a signatory member of the Singapore Convention that recognizes international settlements too.
DECIPHERING THE MEDIATION BILL 2021
The Mediation Draft Bill 2021 is the first step by the legislature concerning the expeditious disposal through mediation mechanism separate law; it’s just a embark in the speedy justice to the citizens; in this draft, great initiatives taken by the lawmakers and loopholes are also there which needs to be modified to make it effective.
Mediation Draft Bill 2021 some new addition which is appreciable such as mediation agreements, mediation communication via electronic means, mediation service provider, online Mediation, Section 3(m) includes successor as party after death of deceased, pre-litigation Mediation, establishment of the Mediation Council of India, enforcement of international mediation settlement agreements, bill also discern the importance of training of meditator, parties also have substantive session with the mediator afterwards both parties can decide to go for litigation or continue the mediation process, through this mediation bill the confusion between “conciliation” and “mediation” also cleared by the separate definition of both in different statutes, encourages the international commercial disputes between the different parties through Singapore Mediation Convention to which India is a signatory, and predominately this bill approved Mediation not just a part-time job but as a profession which will open the path-breaking avenues for posterity in this arena.
Everything has a double-edge sword; Mediation Bill 2021 has some drawbacks & there are some suggestions to this bill so that the final draft will be error-free and fulfil its purpose without any impediment. As per the nature of this bill is not meeting with expectations what is expected regarding Mediation at the international level conversely happen because mediation bill deals with domestic Mediation, this bill mentioned the term the “dispute settlement at latter” which gives the status of a judgment or decree, however, this step is brink if another party is foreign, Section 2 (i) (iii) needs to define mindfully the phrase used by the lawmakers related to the territorial jurisdiction “place of business having a closet relationship to the mediation agreement” is left us with umpteen of vague interpretation; it will arise the conflicts because of its ambiguity and the council committee members do not have mediator, the appointment of members is still uncleared; Mediation comes under the gamut of judiciary then why appointment making power is not vested to the Chief Justice of India?
CONCLUSION
By and large, all the facts and contentions discussed related to the Mediation Draft Bill 2021; gives us new room to discuss more it in terms of the growth of the mediation mechanisms; we should be optimistic, after decades Mediation concept is finally addressed as an integral part of our legal profession not just an option but the first choice before litigation. Mediation draft bill 2021 is a plume to our legal profession, and all the suggestions mentioned should be considered to remove the gray areas before the final enactment of this mediation bill. In the end Mahatma Gandhi, lines are true “I realized that the true fiction of a lawyer was to unite parties, a large part of my time during the 20 years of my practice as a layer was occupied in bringing out a private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”
Author(s) Name: Samriddhi Rai (Banasthali Vidyapith, Rajasthan)
