Mediation Bill: An Incomplete Settlement

Context: 

Recently, the Mediation Bill, 2021 was passed by the Rajya Sabha.

• It is in line with India’s commitment as a signatory to the Singapore Convention i.e., United Nations Convention on International Settlement Agreements Resulting from Mediation. 

Provisions of the Bill:

• The Mediation Council of India will be set up to register mediators and recognize mediation service providers and institutes.
• Reducing the time for concluding a mediation from 180 to 90 days. 
• Recognition and enforcement of settlement agreements arising out of mediation. 
• The Bill introduces the concepts of “online” and “community” mediation.

Concerns Arising from the Bill:

• Making pre-litigation mediation mandatory, mandating mediation goes against its voluntary nature.
• The Mediation council may not have representation of prctising mediators with adequate experience.
• A prior approval from the central government is required by the Mediation Council before issuing regulations related to its essential functions. It is not clear why such prior approval is required.
• The bill applies to international mediation only if they are conducted in India. It does not provide enforcement of outside India.
• Clause 8 of the Bill entitles a party to move the Court, before the commencement or during mediation, for interim relief, only in “exceptional circumstances”, which is neither defined nor compatible with the settled principles of seeking interim relief before the civil courts.
  • No appellate recourse against an order passed under this proposed section.
• For online mediation, there is less penetration of internet accessibility. As per a recent NITI Aayog report only 27 percent of India possess compatible devices. 
• For community mediation, a panel of three mediators is a must, which is an unnecessary requirement and against the flexibility of the mediation.
• Restriction on the responsibility of the government to participate in mediation proceedings arising only out of “commercial disputes” is against the objective of the legislation. 
• The Bill is more on form than on spirit where the ordinary citizen will now require even more handholding to get justice.

The Path Ahead: 

• Mediation should be promoted as a preferred and voluntary mode of securing justice. 
• For online mediation to be a success, there is a need to increase bandwidth accessibility.
• Setting up legal aid or access to justice clinics is a need with adequate IT infrastructure.
• It is a  golden opportunity for the government to change the adverse perception against them, that would build confidence amongst all stakeholders and have also helped in reducing the pendency backlog.

News Source: The Indian Express