The Mediation Bill, 2021 – Parliamentary panel submit report.

Mediation Bill Parliamentary Stanning Committee On Law and Justice has recommended substantial changes to the mediation Bill 2021, meant for institutionalisation of mediation and establishment of the mediation Council of India.

What is mediation?

Alternate dispute resolution (ADR) refers to means by which disputes are settled outside the tradition court system. In India, modes of ADR include Arbitration Negation, Mediation, and Lok Adalats.

Mediation is a voluntary process in which parties try to settle disputes with the assistance of an independent third person (the mediator).

A mediator does not impose a solution on the parties but creates a conducive environment in which they can resolve their dispute.

The mediation process depends on the choice of parties, and there are no strict or binding rules of procedure.

As a mode of ADR, mediation helps reduce the case burden on courts.

Mediation In India

At present, mediation in India may be:

  • Court referred (courts may refer cases to mediation under the Code of civil Procedure, 1908).
  • Private (for instance, under a contract having a mediation clause), or
  • As provided under a specific statute (such as the Commercial Courts Act, 2015, the Consumer Protection Act, 2019, or the Companies Act, 2013).

Mediation services are provided by provided ADR centres or mediation centres, as well as centres set up by courts or tribunals (Known as court annexed mediation Centres).   

Key Features of the bill

  • If the central or state government is a party, the Bill will apply to: (a) commercial disputes, and (b) other disputes as notified.
  • Mediation process: Mediation proceeding will be confidential, and must be completed 180 days (may be extended by 80 days by the parties). A party may withdraw from mediation after two sessions.
  • Mediators: Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
  • They must disclose any conflict of interest that may raise doubts on their independence. Parties may then choose to replace the mediator.
  • Mediation Council of India:  The Central government will establish the Mediation Council of India.
  • The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
  • Functions of the Council Include: (i) registration of mediator, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).
  • Mediated settlement agreement:  Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments. They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.
  • Community mediation: Community mediation may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality. It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

About Mediation Bill

The mediation Bill, 2021 seeks to promote mediation, particularly institutional mediation, and provide a mechanism for enforcing mediated settlement agreements.

The bill has been referred to the Standing Committee on Personnel, Public Grievances, Law and Justice.

Key Features of The Bill

  1. Pre-litigation mediation: Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals. Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.
  2. Disputes not fit for mediation:  The Bill contains a list of disputes which are not fit for mediation.
  3. These Include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties. The central government may amend this list.
  4. Applicability: The Bill will apply to mediations conducted in India.

(i) Involving only domestic parties

(ii) Involving at least one foreign party and relating to commercial dispute (i.e., international mediation)

(iii) If the mediation agreement states that mediation will be as per this Bill.

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