Introduction:
On December 20, 2021 the Mediation Bill, 2021 was introduced in Rajya Sabha. A form of alternative dispute resolution (ADR), where parties attempt to settle their dispute (outside courts) with the assistance of an independent third person (mediator) is termed as Mediation. To promote mediation (including online mediation), and provide for enforcement of settlement agreements resulting from mediation is what the bill sought to.
Some of key highlights of the Bill include:
• Applicability: In India where: (i) all parties reside in, are incorporated in, or have their place of business in India, (ii) the mediation agreement states that mediation will be as per this Bill, or (iii) there is an international mediation (i.e., mediation related to a commercial dispute where at least one party is a foreign government, a foreign national/resident, or an entity with its place of business outside India) the Bill will apply to mediation proceedings conducted. If the central or state government in these cases is a party, the Bill will only apply to: (a) commercial disputes, and (b) other disputes as notified by such government.
• Pre-litigation mediation: A person must try to settle the dispute by mediation before approaching any court or certain tribunals as notified in case of civil or commercial disputes. The court or tribunal may at any stage of the proceedings refer the parties to mediation if they request for the same even if the parties fail to reach a settlement through pre-litigation mediation.
• Disputes not fit for mediation: Those disputes which are not fit for mediation include: , claims against minors or persons of unsound mind, involving prosecution for criminal offences, affecting the rights of third parties, and relating to levy or collection of taxes. This list of disputes may be amended by the Central government.
• Mediation process: Proceedings of the mediation shall be confidential. After the first two mediation sessions a party may withdraw from mediation. Within 180 days (even if the parties fail to arrive at an agreement) the mediation process must be completed, which may be extended by another 180 days by the parties. The process must be conducted in accordance with directions or rules framed by the Supreme Court or High Courts in case
of court annexed mediation (i.e., mediation conducted at a mediation centre established by any court or tribunal).
• Mediators: The parties are assisted by mediators to settle their dispute, and cannot impose a settlement on the them. The parties by agreement, or a mediation service provider (an institution administering mediation) may appoint mediators. Any conflict of interest that may raise doubts on their independence must be disclosed by mediators and then the Parties may then choose to replace the mediator.
• Mediation Council of India: The Mediation Council of India shall be established by the central government. Consisting of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including Secretaries in the Ministries of Law and Justice and Finance), and one part-time member (from an industry body) the Council shall be formed. Registration of mediators, and recognising mediation service providers and mediation institutes (providing training, education and certification of mediators) shall be functions of the council.
• Mediated settlement agreement: Agreements that shall result from mediation must be in writing, signed by the parties and authenticated by the mediator and the agreements will be final, binding, and enforceable in the same manner as court judgments (except agreements arrived at after community mediation). Only on grounds of fraud, corruption, impersonation, or relating to disputes not fit for mediation Mediated settlement agreements (besides those arrived at in court referred mediation or by Lok Adalat or Permanent Lok Adalat) may be challenged.
• Community mediation: Disputes likely to affect the peace and harmony amongst residents of a locality may be attempted to be resolved by community mediation. A panel of three mediators (may include persons of standing in the community, and representatives of RWAs) shall conduct such interviews.
• Interface with other laws: Other laws on mediation (except certain laws such as the Legal Services Authorities Act, 1987, and the Industrial Relations Code, 2020) shall be overridden by the Bill. Consequential amendments in certain laws (such as the Indian
Contract Act, 1872, and the Arbitration and Conciliation Act, 1996) are also made by the
Bill.
This article is written by Ruel Correia of Amity University.
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