Introduction
The number of cases pending in Indian courts is increasing, so the judiciary is encouraging the adoption of Alternative Dispute Resolution to solve the disputes between the parties. Alternative Dispute Resolution is a process by which parties can mutually agree on a decision regarding the dispute between them. Alternative Dispute Resolution comes out as an effective and easy way to settle disputes between parties. There are various ways of alternative Dispute resolution like Arbitration, Negotiation, Conciliation, and Mediation. Mediation is a process in which a neutral third party known as a mediator facilitates negotiation between parties. This process requires the consent of both parties and is a voluntary process. The process of mediation requires both parties to participate and make compromises to resolve the dispute. Mediation provides opportunities for the parties to make communication or bargain regarding their issues. It is different from litigation as there is no win or loss, both the parties agreed on a decision that is in their favor. Various legislations have provisions related to meditation in India.
Legislative Framework regarding Meditation in India
Mediation is not a new concept in India. From ancient times mediation is being used to solve disputes between parties. In Maharashtra, Lord Krishna also used the Mediation process to solve the dispute between Kauravas and Pandavas, and in modern times we can see the panchayat system in villages to solve disputes by mediation. There are certain legislation and statutes which provide the provisions related to mediation as a mode of settlement of disputes. Section 89 of the Code of Civil Procedure, 1908 provides for any mode of alternative Dispute Resolution to solve the disputes outside court that are by Arbitration, Conciliation, or Lok Adalat. It provides that the court after recording the admission of documents shall direct the party to settle disputes outside court by alternative dispute resolution. Order XXXIIA of the Code of Civil Procedure, 1908 also recommends mediation to solve disputes in the matter related to matrimonial, family, maintenance, and custody. Industrial Disputes Act, 1947 also have provision related to mediation. According to Section 4 of the Industrial Disputes Act, to mediate and promote the settlement of disputes in industry conciliators are being appointed for conciliation proceedings. Legal Services Authority Act, 1987 provides for the establishment of Lok Adalat to settle disputes through an alternative dispute resolution process. Mediation and Conciliation Rules, 2004 was enacted to give definite rules and procedures for the mediation process in India. Consumer Protection Act, 2019 provides a complete chapter for solving disputes through mediation before approaching a consumer redressal agency. So, we can see various legislations provide a mediation process to resolve disputes between the parties.
Mediation Bill, 2021
In India, there is no separate legislation for mediation. Mediation has been governed through different statutes in their respective areas. There are over millions of cases pending in India which triggered the need for use of mediation as the first step in dispute resolution. This need led to the introduction of the Mediation Bill, 2021 which aims to provide separate legislation for mediation and to bring it on a common platform. The bill was introduced in Rajya Sabha on 20 December 2021. This bill was introduced to overcome the loopholes in the mediation process as provided in different legislations. It has several appreciable provisions like the establishment of the Mediation council, online mediation, enforcement of mediation decisions, international mediation agreements, etc. It has the provision of Pre-litigation mediation, in civil or commercial cases the parties must try to settle the dispute before approaching any court[1]. The court and tribunal have the power to send the parties to settle through meditation at any stage of the case[2]. Section 22 of the bill provides for a “Mediation Settlement Agreement” and the agreement will be binding on the parties if it is signed by them. The bill proposes to establish the Mediation council of India to promote national and international mediation in India[3]. The members of this council should be judges from Supreme Court and High courts, experts in the mediation field, and government officials. The bill also proposes community mediation to resolve the community-related dispute which will promote harmony and peace in society[4]. Community mediation will be a great step to resolve the disputes between the parties without approaching court which saves the time of people as well as the court. The bill provides a time limit of one hundred and eighty days from the date of the first appearance of parties for the mediation process[5]. Under the bill, anyone can be a mediator whether national or of any other nationality provided that they must satisfy the condition provided in the bill. The parties are free to choose the procedure for the appointment of the mediator. The Mediation Bill also provides for online mediation which can be conducted through an app or any electronic mode[6]. The parties at any stage of meditation can choose online mediation for resolving the dispute. Some areas need further clarification in the bill like it does not provide qualifications for the mediator, the bill does not provide provisions that govern international mediation in India, and the effect of non-registration of mediation agreement has not been provided in the act. The bill provides for mandatory pre-litigation mediation which could reduce the motive of mediation where the parties are not interested in mediation.
Conclusion
Mediation as an Alternative Dispute Resolution is growing in India. This process helps the parties to save time and money as compared to disputes resolved in courts. Mediation is a voluntary process in which both parties resolve disputes by appointing a mediator. Different legislations in India provide for mediation in their respective areas. As the interest of parties in resolving their disputes through mediation is increasing, it triggered the government to introduce separate legislation for mediation. Thus, in 2021 the Union Law Minister tabled the draft bill in parliament. Various effective provisions in this draft bill will increase the interest in the mediation process for resolving the dispute. This bill will have a positive impact and will be beneficial as it will reduce the burden of cases in court. Its provisions will be effective in resolving disputes between the parties.
Author(s) Name: Aadya Dipti (Banasthali Vidyapith, Rajasthan)
References:
[1]The Mediation Bill, 2021, S 6, Bill No. XLIII of 2021, Act of Parliament (India).
[2]The Mediation Bill, 2021, S 6, Bill No. XLIII of 2021, Act of Parliament (India).
[3]The Mediation Bill, 2021, S 33, Bill No. XLIII of 2021, Act of Parliament (India).
[4]The Mediation Bill, 2021, S 47, Bill No. XLIII of 2021, Act of Parliament (India).
[5]The Mediation Bill, 2021, S 21, Bill No. XLIII of 2021, Act of Parliament (India).
[6]The Mediation Bill, 2021, S 32, Bill No. XLIII of 2021, Act of Parliament (India).
