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Dispute Settlement Through Mediation With Special Reference To Mediation Bill 2021: Challenges And Prospects

The population of India is reaching towards 1.5 billion Mark. There are a number of pending cases in civil courts and that are a great burden over the judiciary. These cases are creating delay in delivery of justice. Generally, smaller disputes which includes pity offences are taken to the courts which do not require any trial. They are either filed with a mala fide intention in order to annoy opposite party or they are filed due to failure of negotiation.

Commonly, when any dispute arises, people who do not have any bad motive wants to negotiate with the opposite party. When the opposite party expresses positive response, the problem is solved but when the opposite party has a bad faith or when the parties are not satisfied with the negotiation, then there evolves the need of the mediation.

Mediation and its features:

Section 89 of the Code of Civil Procedure, 1908, has the provision for mediation in sub section 1(d). This section authorizes the courts that if in any case the court by its discretion, finds a possibility of settlement by mediation then the court may make the terms so as acceptable by the parties to the suit and solve the case by compromise in between or among the parties.

The Mediation and conciliation Project Committee (MCPC) was set up in 2005 for encouraging amicable disputes pending in accordance with Section 89 of the code of Civil Procedure. It defines mediation as a voluntary and binding process. This binding process is made voluntarily by parties as the parties agree to bound by the terms after consensual compromise. It considers that a mediator is impartial and neutral and he helps the disputing parties in reaching to a healthy settlement.

It further clarifies that the mediation does not have imposition of a solution. It is not like a judgement. A mediator creates a healthy environment for the disputing parties so that they can resolve all their disputes.[1] Sec 89 of CPC is a provision which later broadened by the way of judicial activism but still Indian legal system requires a law on mediation so as to make the process of mediation more uncomplicated and effective.

As mediation is an easy process, it saves the time of both of the courts and of the parties involved. It paves the way of speedy justice delivery. It is very effective for village community as there are many poor people who cannot afford litigation costs and it will be very much effective for agricultural workers and farmers by saving their time and money from lifelong litigations.

It is very economical as there is no extra cost therefore, it is a boon for Indian society especially for villages where nyay panchayat is not working properly. There is harmonious settlement by creating solutions and remedies for both parties. Mediation is quite informal therefore it requires minimal paperwork.[2] The parties have the trigger in their control and they can take the proceedings to their way as per their benefit.[3]

Mediation required in Indian Justice delivery system:

It is very well known that Indian courts are overburdened with lots of pending cases. As per the data available on National Judicial Data Grid website, about 40291383 cases are pending in district and taluka courts out of which 10704252 are civil and 29587131 are criminal suits.[4] The courts are limited and cases are increasing day by day.

It is very difficult either to increase the number of courts or to increase their capacity as there are many problems in doing so, as to increase the capacity, problems will arise relating to the area, facilities and management, and as to increase the number of courts, problem will also be there as there is no criteria to determine that how many judicial officers are needed as per the population in any taluka or district.[5]

There is no official procedure for the criteria to determine how many courts are needed with respect to the population.[6] Therefore, it will be very healthy for Indian judiciary to strengthen out the alternatives. In India, especially in northern belt, the condition of the nyay panchayat is not very well in cases of dispute redressal.

Places where it is acting, there is the problem of biased decisions, corruption, caste biased judgements, human rights violation through inhuman punishments etc. The people have more trust over the learned Judge and other judicial officers than the illiterate Sarpanch and his fellows. This strengthens the requirement of a mediation law.

Mediation Bill 2021: Prospects for Speedy Justice:

The Government of India has prepared a draft bill that is Mediation Bill 2021 with an informal, effective and easy approach to resolve disputes covering all types of civil, family and matrimonial disputes etc.[7] The government has published the draft bill on October 29, 2021 and has invited comments and suggestions from the stakeholders regarding it.[8]

The draft bill has 67 sections and also seven separate schedules amending the provisions of Indian Contract Act, 1872, Arbitration and Conciliation Act, 1996, Code of Civil Procedure, 1908, Commercial Courts Act, 2015, and Legal Services Authorities Act, 1987.[9] This bill has provisions for establishing Mediation Council of India. In the bill, the pre litigation mediation is allowed so as to provide speedy remedies to the needful.[10]

The bill talks about the Mediation Settlement Agreement (MSA).[11] This agreement will be made after the compromise between the parties. It will be authentic and enforceable by the law.[12] The bill has also the provisions regarding community mediation. This agreement will secure the rights of the parties and protect the consensual agreement between parties. The process will be completely confidential and it will be as per the procedure.[13] We can assume smooth, easy, economical, fast and effective justice delivery after the enactment of this bill.

Online Mediation:

Need of the Hour- In last few years, our country has continuously increased the working efficiency by way of adopting the working through digital mode. Online way of working has innumerous benefits. Online work is very economic and time saving. After the covid 19 pandemic, the work from home culture has also started. The disputed are online so settlements must also be online. Even the mode of payment today is mostly cashless and via digital mode.

So, there been a great need of online mediation also. Although the process of mediation is very easy than the normal litigation but, still there is a need of smart way of mediation so as to save the money and time of the people. The bill has a special chapter for online mediation that is chapter 6. It covers section 32, 33 and 34.[14] Section 32 has provisions for the video as well as the audio mode of the online mediation. It will be as per the provisions of IT act 2000 and will secure the privacy and confidentiality of parties and suit respectively.

Conclusion:
Mahatma Gandhi, in his autobiography My Experiments with the Truth, has mentioned his own experience of mediation while practicing as a lawyer in South Africa. He has considered mediation an important tool and has invocated young lawyers to solve more and more cases by mediation and take their remuneration for the same.

But in India, when it comes to mediation, Lawyers are not that much interested as it does not pay them much. In our country, the custom is to only pay to a lawyer for his court appearances and not more than that. This tradition increases the importance of mediation law. After the implication of such law, we can hope fast and economical solution of pending cases through mediation.

End-Notes:
  1. Supreme Court of India, Mediation and Conciliation Project Committee Brochure, Retrieved from https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf on Nov 11, 2021
  2. Id
  3. Id
  4. National Judicial Data Grid (District and Taluka Courts of India), https://njdg.ecourts.gov.in/njdgnew/?p=main, Visited on Nov 9, 2021.
  5. Rao S. M. (2020). Will Increasing Number of Courts Aid India's Judicial Backlog? Data Shows Otherwise (Rao, 2021) https://theprint.in/opinion/will-increasing-number-of-courts-aid-indias-judicial-backlog-data-shows-otherwise/571224/ visited on Nov 9, 2021 at 10:05 PM.
  6. Id. (Rao, 2021)
  7. Department of Legal Affairs, Government of India (Oct 2021), Comments Invited on Draft Mediation Bill 2021, https://legalaffairs.gov.in/sites/default/files/write-up-for-dola.pdf, Visited on 9 November 2021.
  8. Department of Legal Affairs, Government of India (Oct 2021), Comments Invited on Draft Mediation Bill 2021, https://legalaffairs.gov.in/sites/default/files/DRAFT-MEDIATION-BILL-29.10.2021.pdf, Visited on 9 November 2021.
  9. Id
  10. Ministry of Law and Justice, Government of India (5 Nov 2021), Draft Mediation Bill Issued for Public Consultation, https://pib.gov.in/PressReleasePage.aspx?PRID=1769531, Visited on 9 Nov 2021 at 07:10 PM.
  11. Id
  12. Id
  13. Id
  14. Department of Legal Affairs, Government of India (Oct 2021), Comments Invited on Draft Mediation Bill 2021 (Chapter 6), https://legalaffairs.gov.in/sites/default/files/DRAFT-MEDIATION-BILL-29.10.2021.pdf, Visited on 9 November 2021 at 11:45 PM.

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