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Analysis of The Mediation Bill 2021

How Would You Respond If I Told You That There Are Alternatives To Using The Courts To Settle Your Disputes?

Be not alarmed. There are such techniques, and the parties attempt to settle their conflicts outside of the courts. Alternate Dispute Resolutions are what they are known as (ADR). These techniques are typically quick, simple, and time-efficient. This is why ADR is currently preferred by the majority of people.

Unlike traditional courts, these dispute-resolution procedures do not involve a judge; instead, a neutral third party assists the parties in coming to a mutually agreeable resolution.

These methods are:
  • Arbitration
  • Mediation
  • Conciliation
  • Negotiation
  • Lok Adalats
Mediation is the resolution of a conflict or controversy through the placement of an impartial third party between two disputing parties to assist them in resolving their disagreement.

Introduction to Mediation Bill 2021

The Bill describes mediated agreement settlements and includes a comprehensive definition of all the requirements for the mediation process. Additionally, it provides definitions for words like mediation. The concept and meaning of mediation are provided in Section 4 of the Bill.

This Section defines mediation as a procedure whereby the parties to a dispute ask a neutral third party known as a mediator to aid them and assist them in coming to a mutual settlement.

Online mediation, pre litigation mediation, and community mediation are also included.

Objectives of Mediation Bill

The Bill has several goals, including the following:
  • It also defines some legal terms and lays forth a uniform mediation process that must be followed throughout the nation.
  • The Bill's main goal is to spread awareness of mediation, a less time-consuming and more affordable way to settle conflicts, in order to decrease the number of cases that are now ongoing in court.
  • Pre-litigation mediation is also included under the bill, which defines its position.
  • Additionally, it specifies the authority and duties of courts and tribunals during the mediation process.
  • In mediation, a third party acting impartially serves as the mediator. The norms of confidentiality, neutrality, impartiality, and involvement are not currently enforced by any official body.
Features of the Bill
The Bill's characteristics are:
  • It describes the idea of pre-litigation mediation and provides a consistent definition and meaning for the terms mediation, mediators, and other legal terms.
  • Additionally, it encourages the use of institutional mediation as a dispute resolution method.
  • It also includes the disputes that are ineligible for mediation and are exempt from such proceedings under the Bill.
  • It outlines the responsibilities and duties of mediators and offers guidelines for hiring, firing, and replacing them.
  • It states that all agreements or settlements reached through mediation will be legally binding on the parties and have the same impact as if they had been approved by a judge.
  • It also specifies the measures to be taken in such a process and grants the courts and tribunals the authority to send a case to mediation.
  • The council's membership, incorporation, retirement, and termination, as well as its duties and authority, are all outlined in this document.
  • The idea of community mediation and its processes are explained in more detail.
  • It also covers the cash, accounts, and essential audits of the mediation process and includes clauses for the mediators' service providers.
  • The Bill gives the parties the option to withdraw from mediation procedures or ask for a different mediator.
  • It considers the difficulties in enforcing mediated settlement agreements.
  • It also includes provisions for online mediation in order to achieve the goal of the digital India.
  • The creation of the Mediation Council of India, a formal legal body to deal with mediation and problems resulting from its methods, is one of the Bill's most significant provisions.

Scheme of the Bill
The Bill is broken down into 10 schedules, 11 chapters, and several sections and clauses.

The Bill's various chapters include:
  • If the government enacts the bill, Chapter 1 discusses the name, scope, and start date of the Act.
  • The application of the Bill is explained in Chapter 2.
  • The idea of mediation, prelitigation mediation, mediation agreements, and the authority of courts and tribunals to refer parties to mediation are all explained in Chapter 3.
  • Chapter 4 goes into more detail on mediators, including their hiring, firing, compensation, benefits, and replacement
  • The mediation process and other nuances are described in Chapter 5 of the book.
  • The enforcement of mediated settlement agreements is covered in more detail in Chapter 6.
  • The idea of online mediation is explained in Chapter 7
  • The creation of the Mediation Council of India and its other requirements are outlined in Chapter 8.
  • Institutions and service providers for mediation are covered by Chapter 9.
  • Community mediation is explained in chapter 10.
  • Chapter 11 is a supplemental chapter that addresses cash, accounts, and audits related to mediation.

Application of the Law
The Bill's applicability is described in Section 2 of the Bill.

It stipulates that all mediations taking place in the nation where:
Every party to a dispute either resides in India, is incorporated here, or conducts business there. Alternatively, a mediation agreement may provide that any such issue would be settled by mediation in accordance with the Bill's provisions.

Additionally, it states that it will not be applicable if one or both parties are federal, state, or local governments, public bodies, companies, or local bodies, entities that are under their control, unless the dispute is one of business.

Pre-litigation and mediation agreements

The following mediation agreements are regarded as mediation agreements under Section 5 of the Bill:
Agreement that commits a dispute to mediation and is made in writing by the parties or by either of them acting on behalf of the other.Any agreement that has a mediation clause will be regarded as a mediation agreement if there is a disagreement.

Agreement in writing if it is represented by one of the following:
  • An electronic letter or other communication between the parties, Arguments made in court.
  • Any agreement in accordance with Section 3 clause (a) will be regarded as a mediation agreement when it comes to international mediation.

Pre-litigation Mediation
According to Section 6 of the Bill, entails that before bringing a case before any civil or commercial court, the parties must attempt to resolve their differences through mediation, even if there is no mediation agreement.

For instance, a dispute over compensation in an accident under the Motor Vehicles Act of 1988 may be referred to mediation before it is claimed in a tribunal, and if a settlement is made, it is presented to the tribunal for consideration. This is outlined in clause 6 of Section 6.

The term "mediator" is defined as a person designated to conduct mediation procedures under the Bill and who is also registered as one with the council in Section 3(h) of the Bill.

Chapter IV also covers mediators, their selection, dismissal, and the parties' preferences.

Termination and replacement of mediator appointments

The parties have the authority to select a mediator for their disputes and the procedure for that

mediator's appointment under Section 10 of the Bill.

According to the Bill, this person must be certified to serve as a mediator.

The mediation service provider shall assign a mediator from the panel for the parties' dispute within 7 days if the parties are unable to agree on a mediator or if the mediator decides or declines to act as a mediator in their case. The service providers must take the parties' preferences into account while doing this.

Additionally, Section 13 permits the mediator to be dismissed for the following reasons:
  • Applications from the parties
  • conflicts of interest
  • or if he decides not to participate as a mediator himself

Mediator's Role:

The mediator is required to carry out the following duties:
  • A mediator is required by Section 12 to reveal any situations that could compromise the secrecy of the proceedings, his objectivity, or result in a conflict of interest.
  • The right to object has been granted to the parties following such disclosure.
  • The mediator's responsibility is to lead mediation sessions.
  • He will provide them objective advice so they can end their dispute amicably (Section 17).
  • Additionally, he will guarantee that the norms of voluntariness, confidentiality, and the parties' right to self-determination are upheld throughout the procedures.
  • Additionally, he will choose the terminology to be utilised during the mediation process and work to resolve any misconceptions between the parties as well as their questions and concerns.
However, in accordance with Section 19 of the Bill, he will not serve as an arbitrator, the parties' counsel, or as a witness in any legal proceedings.

Mediation Sessions
If there is a mediation agreement, these proceedings will begin on the day the other party receives the mediation notice. If there is no such agreement, then the mediation process will begin on the date that a mediator is chosen or agreed upon by both parties. These proceedings include meetings with the parties either collectively or individually during the sessions.

After the first two meetings, parties have the option to leave the mediation process; however, if one party does not do so and the mediation fails, the court may order both parties to pay costs. A deadline of 180 days is specified in Section 21 for the completion of all mediation processes.

The following method will be used to end the proceedings:
  • when the mediated agreement has been authenticated and signed.
  • After meeting with the parties, the mediator issues a formal declaration declaring that such proceedings are not justified.
  • Immediately following the mediation session where the side missed the first two sessions without notifying the mediator, and seven days later.
  • Both parties informed the mediator in writing of their decision to end the mediation.
  • In the event of institutional mediation, the mediator will send the report of failure to the provider of mediation services without providing reasons for failure; in all other instances, it will be provided to the parties.
  • Agreements from online mediation are also included in this category. Those agreements were signed using electronic signatures and verified by the mediator.

According to Section 28 of the Bill, mediated settlement agreements that have been signed and authenticated are final and binding on the parties and can be enforced much like a court order issued in accordance with the Code of Civil Procedure, 1908.

Except for those mentioned in Lok Adalats, Section 29 states that such agreements may be contested by either party by submitting an application within 90 days to a court with appropriate jurisdiction.

Any agreement may be contested for the following factors:
  • Impersonation, corruption, and fraud
  • Even if the disputes weren't appropriate for mediation, it was still done.

Indian Mediation Council
The council will exercise the powers and perform the duties outlined in the Bill as a body corporate with perpetual succession and a common seal.

The Bill's Section 33 establishes the council and specifies that it would have its headquarters in Delhi or any location that the central government notifies.

The council has the authority to make contracts, possess and acquire both movable and immovable property, and to bring and defend legal actions.

Make Up Of The Council
In accordance with Section 34, it will be made up of the following individuals:
The central government will appoint a chairperson with sufficient expertise in managing public affairs and ADR, along with full-time members, an ex-officio member who previously held the position of secretary to the government of India in the Department of Legal Affairs or Ministry of Justice, the chief executive officer, and part-time members.The members can be appointed again after serving in the position for four years. After becoming 70 years old, they will not be permitted to hold office.

Functions and duties
The Bill specifies a number of obligations for the council.

Which are:
  • To carry out its duties, it has the power to appoint expert committees.
  • The council's chief executive officer will be in charge of carrying out the council's decisions on a daily basis.
  • The council has a responsibility to use a variety of strategies to advance internal and international mediation in India.
  • Make India a strong mediation hub.
  • Establish standards for the evaluation and ongoing training of mediators.
  • Give instructions on how to register mediators, ask them to leave, and suspend them in certain situations.
  • Create a rule of behaviour for mediators that is both professional and ethical.
  • To inform people about mediation, hold training sessions and workshops in various locations.
  • It must sign memorandums of understanding with both national and international organisations.
  • Recognize organisations who offer mediation services.
  • Publish the relevant facts and information.
  • Keep an electronic record of the settlements reached through mediation.

Problems emphasised by the committees
Some standing committees have brought up certain points after studying the Bill.

Which are:
  • Mandatory pre-suit negotiations
    Even if there is no mediation agreement, the Bill mandates that the parties attend pre-litigated mediation before going to court or any other tribunal. Even if the parties are unwilling to use mediation, this will unduly obligate them to do so. This also demonstrates the Bill's coercive nature, which will cause delays and pending mediation cases.

    The parties must not be coerced into choosing mediation as the mode of conflict resolution when they are not voluntarily prepared to do so.

    Another problem in this regard is that, according to clause 26 of the Bill, the Supreme Court has the authority to establish guidelines for prelitigation mediation, leaving the parties with no alternative option.
  • Non-business disputes
    Another significant problem is that the Bill only applies to business disputes if one or more of the parties is a central or state government agency, a public entity, a local authority, etc.

    Why can't noncommercial issues with the government as one of the parties be resolved through mediation is the question.
  • Worldwide negotiation
    The fact that an international mediation will only be taken into consideration if it is held in India is another significant problem.
However, the Bill makes no mention of settlements or agreements reached through external international mediation. The Bill makes no mention of whether or not such agreements will be upheld or challenged.

The committees have thus far offered the following suggestions:
  • It is necessary to make pre-litigation mediation voluntary and optional.
  • The choice of the method to be used for settling conflicts and pursuing justice must belong to the parties.
  • Another suggestion is that a separate selection committee be used to appoint the council members in order to ensure fairness and openness.
  • The Bill's clause merely states that these members "must have the knowledge and capacity," which is vague.
  • The members must be chosen based on a set of precise requirements.
  • The sole central mediation council mentioned in the bill.Given the diversity of India, state councils are also necessary.
  • All state councils will be supervised by the central council, which will also aid in accomplishing the goal of the Bill, and thus will help to promote transparency and accountability.
  • The committees also recommended that all mediators register with a single organization possibly the Mediation Council of India and receive a distinct registration number that makes it simpler to arrange training sessions. In order to facilitate a rapid resolution, it also suggested cutting the mediation time restriction from 180 days to 90 days and the extension term to 60 days.

Through the mediation process, the two disputing parties can work together to resolve their differences and come to a mutually agreeable resolution. It is an alternate dispute resolution method that is distinct from the traditional court system. It is a quick, simple, and economical procedure to settle conflicts; there is no need to appear in court or establish a specific courtroom.

There isn't a single piece of legislation in the nation that covers mediation, though. The parliament introduced a Bill in this area in 2021 to close this gap. It is currently given to the standing committees for recommendations.If approved, it will assist in lessening the load on the courts caused by pending cases.

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