Mediation Act 2023: What hope lies for the judiciary
(Relevant for General Studies Paper | Polity| Prelims/Mains)
Mediation Act 2023: What hope lies for judiciary
During the most recent monsoon session of Parliament, both chambers approved the Mediation Bill, 2023, which, following the President of India’s assent has now become the Mediation Act, 2023. This legislation aims to foster mediation, particularly institutional mediation, and establish a framework for upholding mediated settlement agreements.
Mediation
- Mediation serves as a voluntary and binding procedure where an impartial and unbiased mediator assists conflicting parties in achieving a resolution.
- The mediator’s role is not to impose a solution but to foster a conducive atmosphere for the disputing parties to address all their grievances.
- Mediation has established itself as a well-established alternative to dispute resolution, with notable success stories in urban centers like Delhi, Ranchi, Jamshedpur, Nagpur, Chandigarh, and Aurangabad.
- This structured process entails a neutral individual employing specialized communication and negotiation techniques, a method that litigants involved in mediation have wholeheartedly embraced.
- Beyond mediation, various other dispute resolution approaches exist, including arbitration, negotiation, and conciliation.
Key Features of the Act
Pre-litigation Mediation:
- Before approaching any court or specific tribunals, parties are required to make an effort to resolve civil or commercial disputes through mediation.
- Even if they don’t reach a resolution through pre-litigation mediation, the court or tribunal can refer the parties to mediation at any stage.
Excluded Disputes:
The Act provides a list of disputes that are not suitable for mediation. These include disputes involving:
- Claims against minors or individuals with mental incapacity,
- Criminal prosecution, and
- Third-party rights.
- The central government may modify this list.
Applicability:
The Act is applicable to mediations conducted in India under the following conditions:
- Involving solely domestic parties,
- Involving at least one foreign party related to a commercial dispute, and
- When the mediation agreement specifies adherence to this Act.
Mediation Process:
Mediation proceedings are confidential and must conclude within 180 days (with a possible extension of 180 days by agreement).
A party can withdraw from mediation after two sessions.
Mediators:
- Mediators can be appointed either by agreement between the parties or through a mediation service provider.
- Mediators must disclose any conflicts of interest that might raise doubts about their impartiality.
Mediation Council of India:
The central government will establish the Mediation Council of India, consisting of:
- A chairperson,
- Two full-time members experienced in mediation or ADR,
- Three ex-officio members, including the Law Secretary and Expenditure Secretary, and
- A part-time member from an industry body.
- The functions of the Council include mediator registration and the recognition of mediation service providers and institutes.
Mediated Settlement Agreement:
Agreements resulting from mediation (excluding community mediation) will be final, binding, and enforceable in the same manner as court judgments.
They can be challenged on grounds of:
- Fraud,
- Corruption,
- Impersonation, or
- Disputes not suitable for mediation.
Community Mediation:
- Community mediation may be used to resolve disputes that could impact the peace and harmony among residents of an area.
- It will involve a panel of three mediators.
Need to Promote Mediation
Addressing Case Backlog:
- As of May 2022, the Indian judiciary is grappling with a staggering backlog of over 4.7 crore cases spread across various tiers of the legal system.
- Among these, a substantial 87.4% of cases remain unresolved in subordinate courts, with the remaining 12.4% pending in High Courts.
- To effectively tackle this alarming case backlog, the Mediation and Conciliation Project Committee of the Supreme Court of India advocates for mediation as a proven and effective alternative for conflict resolution.
Lack of Dedicated Mediation Legislation:
- India currently lacks a comprehensive standalone mediation law despite the existence of multiple statutes containing mediation provisions.
- These statutes encompass the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019.
- In contrast, several countries, including Australia, Singapore, and Italy, have already enacted dedicated mediation laws.
Mediation as a Catalyst for Genuine Justice and Societal Transformation:
- Mediation stands as a powerful means of delivering justice in a straightforward manner and offers a cost-effective alternative to conventional legal procedures.
- Resolutions achieved through mediation not only facilitate true justice for individuals but also align social norms with constitutional values by fostering the exchange of ideas and information.
Ambitions of Becoming an International Mediation Center:
- The Singapore Convention on Mediation provides a standardized and efficient framework for recognizing international settlement agreements resulting from mediation.
- As India has been a signatory to the Singapore Convention on Mediation since 2019, it is imperative to enact legislation that governs both domestic and international mediation. Such legislation will enhance India’s standing as a potential International Mediation Hub.
Key Issues and Concerns with the Act
- Mandatory Pre-litigation Mediation: The Act mandates pre-litigation mediation for both parties as a prerequisite before initiating any legal suit or proceeding in a court, irrespective of the existence of a mediation agreement between them. However, it’s important to note that Article 21 of the Constitution guarantees access to justice as a fundamental right, which cannot be encumbered or curtailed.
- Limited Expertise of Mediators: While the Act specifies that full-time members of the Council should possess knowledge or experience related to mediation or ADR laws and mechanisms, it does not necessarily require them to be practicing mediators with substantial practical experience. For instance, the Act allows for the appointment of an arbitrator as a full-time member of the Council. However, arbitrators may not be the best-suited individuals to perform functions such as defining standards of professional conduct for mediators.
- Central Government Approval for Issuing Regulations: Under the Act, the Council will carry out its primary functions by issuing regulations, but it is obligated to obtain approval from the central government before implementing these regulations. This requirement may potentially limit the effectiveness of the Council if it is subject to central government approval for its core functions. In contrast, similar organizations like the National Medical Commission and the Bar Council of India do not need prior approval before issuing regulations.
- Challenges in Enforcing International Settlements: The Act treats international mediation conducted in India, with the resulting settlement recognized as a judgment or decree of a court, as a domestic matter. This approach excludes the advantages of worldwide enforceability provided by the Singapore Convention, which does not apply to settlements already having the status of judgments or decrees. Consequently, cross-border mediation in India may not fully harness the benefits of international enforceability.
- Multiple Registrations for Mediators: Mediators are required to be registered or empanelled at four different places, including the Mediation Council of India, a court annexed mediation center, a recognized mediation service provider, and a Legal Services Authority. It remains unclear why satisfying any one of these conditions is insufficient for such mediators.
- Undefined Terminology: Clause 8 of the Act allows a party to approach the Court for interim relief before or during mediation, but only in “exceptional circumstances.” Unfortunately, the Act does not provide a clear definition or explanation of what constitutes “exceptional circumstances.”
- Challenges with Online Mediation: A recent NITI Aayog report highlights that only 55% of India’s population has internet access, and merely 27% possess compatible devices. This presents a significant accessibility issue for a substantial portion of the population, particularly regarding online mediation.
- Issues with Community Mediation: The Act mandates the presence of a panel of three mediators for community mediation. While community mediation is a valuable tool for resolving disputes through facilitated communication, this requirement may be deemed unnecessary and could potentially impede the flexibility that mediation inherently offers.
How it can be made more effective?
- Phased Implementation of Mandatory Pre-litigation Mediation: Gradually introducing mandatory pre-litigation mediation in stages, initially for specific dispute categories, and subsequently expanding its coverage to encompass a broader spectrum of disputes.
- Shortening the Timeframe: The Parliamentary Standing Committee Report on the Mediation Bill, 2021 proposed reducing the mediation duration from 180 days to 90 days, aiming to expedite the process.
- Capacity Enhancement: NITI Aayog emphasized the importance of designing a framework for mandatory pre-litigation mediation in India while considering the availability of mediators and the capacity of the ecosystem to produce a significant number of qualified mediators. The Mediation and Conciliation Project Committee of the Supreme Court of India recommended initiatives to establish model mediation codes, facilitate mediator training nationwide, and regulate the mediation process in all districts.
- Enhancing Accessibility: To ensure the success of online mediation, it is imperative to improve bandwidth accessibility in remote regions. Establishing legal aid or access to justice clinics equipped with suitable IT infrastructure could address this challenge.
- Leveraging Disruptive Technologies: International Arbitration (IA) and Artificial Intelligence (AI) have emerged as innovative alternatives to traditional practices. IA supplants conventional dispute resolution methods, while AI replaces traditional performance assessment approaches. AI has the potential to offer significant advantages to the arbitration process and its participants. By enhancing human cognitive capabilities, AI-powered services can assist lawyers in tasks such as document review, identifying relevant authorities, drafting documents, and more.
The potential of mediation to drive social change in India surpasses that of conventional legal mechanisms. The Act should be embraced for its underlying essence rather than its mere formalities, echoing the wisdom of a renowned jurist who aptly stated, “It is the essence, not the structure, that sustains the vitality of justice.”
Reference The Hindu
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Frequently Asked Questions:
- Question: Explain the key features of the Mediation Act, 2023, and its significance for the Indian judicial system.
Answer: The Mediation Act, 2023, promotes mediation as an alternative dispute resolution mechanism and establishes guidelines for its implementation. It aims to reduce case backlog and expedite conflict resolution.
2. Question: What are the main concerns and criticisms surrounding the mandatory pre-litigation mediation provision in the Mediation Act, 2023?
Answer: Critics argue that mandatory pre-litigation mediation may encumber access to justice as a fundamental right. They express concerns about its potential impact on individual freedoms.
3. Question: How can the Mediation Act, 2023, be made more effective in promoting mediation as a means of resolving disputes in India?
Answer: To enhance effectiveness, the Act could be phased in gradually, shorten mediation durations, focus on mediator training, improve accessibility, and leverage disruptive technologies like AI in the mediation process.
4. Question: Discuss the role of mediation in addressing the case backlog in the Indian judicial system, and highlight its potential for societal transformation.
Answer: Mediation offers a cost-effective and efficient way to resolve disputes, which can significantly reduce the case backlog. It also promotes societal transformation by aligning social norms with constitutional values.
5. Question: What distinguishes the Mediation Act, 2023, from existing statutes containing mediation provisions in India?
Answer: The Mediation Act 2023 is a standalone legislation focused on mediation, whereas existing statutes incorporate mediation provisions as part of broader legal frameworks.
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