This Article is written by Mr Raja (a 3rd year Law student from CUSB.)
INTRODUCTION
It has been rightly said by Joseph Grynbaum, “An ounce of mediation is worth a pound of arbitration and a ton of litigation”[1]in the light of the aforesaid situation it is, therefore, crucial to know the cardinal points about Dispute and mediation.
A dispute is a disagreement or conflict between two or more persons. It is regarded as a part of societal life where it connects with different aspects like people, behavioural problems, etc. Also, in the case of Mavrommatis Palestine Concessions case[2], The court said that A dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons. Further, a dispute should not be viewed from a negative point of view, but it should be viewed as optimistic for negative things which gave birth to the Mediation.
Mediation is a process through which the parties in dispute agreed on a mutual solution that resolves their dispute. The purpose of this system is to deal with civil cases like injunction, motor accident claims, contractual disputes, tortious liability and etc. In this method, the parties settle their scores with the help of a third party known as a Mediator who suggests an alternative way to solve the conflict with a just and fair solution. Further, this process is chosen by the parties voluntarily that helps them to reach up to a win-win situation. However, it is an informal process where rules are not binding on the parties (But will be binding if Mediation Bill 2021 become Act).
Jurisprudence Behind Mediation and Mediation Bill 2021
The idea of Mediation is coming from ancient India, we may recognize it from mediating between Angad and Ravan in Ramayana and between Pandavas and Kauravas in the epic Mahabharata, additionally, it can also be seen at panchayat meetings which can also be found in different stories of writers like Premchand whereas he has shown a mediation in his famous story “Panch Parmeshwar”. After that, as time went by certain statutes came to provide mediation in this post-modernism world which are mentioned below: –
Singapore Mediation Convention
This convention is also known as United Nations Convention on International Settlement Agreements Resulting from Mediation, whose India is also a signatory nation to this. It gives a mandate to India that it has to implement a law relating to the mediation and keeping that in mind India made Mediation Bill 2021 that introduces pre-litigation mediation with guarding the claimants’ right to approach the courts when an instant relief is needed.
Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908
As per the data of National Judicial Data Grid,2020, 98,01,986, Civil Cases were pending, and to reduce the number of cases in court, Section 89 of Civil procedure Code 1908 was amended which directs the courts to endeavour the likelihoods of resolving the pending civil disputes through mediation or Lok Adalat. Whereas under Order X Rule 1A the court frame some directions to parties to choose the process for alternative dispute resolution.
Legal Services Authority Act, 1987
This Act provides free and fair legal service to the weaker section of the society and ensures their justice and formulate a direction that no one should be denied this on account of any kind of disability. Further, under this act, three different statutory authorities at different levels like centre, state, and taluka are established to maintain and respect the act and obligation of the state for people.
Companies Act, 2013
The Companies Act, 2013 introduces Alternative Dispute Redressal under Section 442 to deal with corporate matters. And to support this section in corporate life a new rule, Companies (Mediation and Conciliation) Rules, 2016 was passed.
Salem Bar Association v. Union of India[3]
In this case, the Hon’ble Supreme Court observed that it is high time that requires to promote Alternate Dispute Resolution and, to give effect to this, section 89 of Civil Procedure Code,1908 should be welcome and a Committee must be formed to ensure the mediation.
Reference to Mediation Bill 2021
Once Kenneth Kaye said that, “If necessity is the mother of invention, conflict is its father.”[4] and while relating this statement from the above-mentioned facts, it can be easily understood that how Mediation was formalised amid the era of conflicts that works with due process to solve the dispute or conflicts between people, and in the same breath now the Indian Government proposes afresh Mediation Bill 2021 which adorns the system of mediation. This bill came up with a goldilocks solution because before this bill the laws on Mediation are carried by several statutes, in different rules and regulations but after the enactment of this bill, it will bring an umbrella Act that will cover consolidate all the aspects of mediation in a single frame. This is made on some observations like it introduces pre-litigation mediation, it will recognize the international practice of referring to ‘conciliation’ and ‘mediation, this bill also incorporates the provisions to promote community mediation as well as online mediation that will resolve disputes in a cost-effective method. Additionally, it offers for the institution of the Mediation Council of India and registration of mediators as well[5]. Under this Bill, a Mediator will be appointed who will take up the mediation and he/she shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.Apart from that there are some others details given in the Bill as follows;
- It has also provided the registration of Mediation Settlement Agreement with State/District/Taluk Legal Authorities with a limited period of 90 days that will ensure of verified records of the settlement. And this process guards the confidentiality of the mediation initiated and gives protection against its revelation[6].
- This will promote mediation and provide the platform of mediation for settling a large-scale of disputes or conflicts counting domestic conflicts, cross-border commercial disputes, matrimonial, and other personal disputes.
- In any kind of exceptional circumstances happen then in those situations a party has given possible permission to file an application before a Court or Tribunal of competent jurisdiction for urgent actions.
- Further, this bill also talks about the jurisdiction of mediation that will take place within the territorial jurisdiction of the court or tribunal unless the parties agreed to try the case in another place.
- This Bill also narrates the termination of the mediation proceeding on the date when Mediated Settlement Agreement will be signed and authenticated or when a mediator declared after the consultation of parties or on written consent of parties that they wish to opt-out of mediation or will end after the completion of the limited period i.e., 90 days as it mentioned in the Bill.
- If a mediated settlement agreement will be signed by parties and authenticated by the mediator then it shall be binding and enforceable by law but the same can be challenged on the grounds of, Fraud or Corruption or Gross impropriety, or Impersonation however the challenge can be placed within three months.
Prospects of Mediation Bill 2021
It is not a subject of doubt that mediation has had a great impression on dispute resolution not only in India but all over the world. The prospects of this Bill can be analysed as it has the aims to improve, encourage institutional mediation in the country for the determination of disputes. Apart from that, several likelihoods will be shown like,
Confidentiality
Confidentiality of all facts and material should be a key rule of mediation and, it should be guarded by a statute. As George Orwell says, “If you want to keep a secret, you must also hide it from yourself.”[7]So, this proposed Bill has mentioned Sections 22 and 23 which command the mediator as well as parties to keep the information confidential.
Administrative Authority
This part requires some authority who will be competent and efficient to regulate the mediation process as prescribed in the Bill. Accordingly, to bring in regularity over the mediation process, the Bill provides a Mediation Council of India under Chapter VII, Section 35 which will be a Body Corporate that performs the duties and discharge the functions mentioned there.
Mediation Fund
The fund is utilized to maintain the development of work. And understanding this the said Bill proposes the fund for promotion, facilitation, and encouragement of mediation.
Challenges
The mediation process faces some challenges like Challenge to Amendment;
Amendment to the Code of Civil Procedure, 1908
Section 89 (2) (C) of the code talks about the Judicial settlement of a dispute determined by the Lok Adalat but this Bill proposed a different amendment to this, it stated that for judicial settlement, the compromise process would be set forth by the court between the parties.
Lack of criterion
In India, there is a lack of awareness among people because they haven’t any idea of getting benefits through mediation and sometimes judges are also don’t send the case to the mediation panel because of getting the promotion by solving cases on their own. So, this also may be a challenge to aware people first of mediation.
Mediation is an alternative, not the method of choice
Most people see mediation as an alternative to settle their dispute but now the time has come when they must choose it as a primary method, not an alternative to solve the conflict and this may stand as a challenge before this Bill.
It should be a Cost-Cutting
According to data of The World’s Richest and Poorest Countries 2021, India placed at 128 out of 194 countries[8]. And again, according to the data of the Asian Development Bank, the proportion of the employed population was below $1.90 with the purchasing power parity of a day in 2019 being 7.7%. and the unemployment rate in 2020 was 7.1% in the country[9].
So, after seeing this poverty rate in India how can we imagine that a person who is struggling to obtain food for a time can manage to save his/her rights. Therefore, in order to obtain the benefit of the mediation, it should be cost-effective that a poor person can get the benefit of this and not be costly with unnecessary procedures
Use authorities selectively
In this mediation process, a limit on the use of experts will save both time and money. For example, a single neutral expert will make good sense instead of many experts because it may lead to a conflict in their different testimonies or opinions.
CONCLUSION
Conflict is inevitable in our society. it is an incompatible behaviour that must be dealt with before it changes in a catastrophic event. At least a civil dispute should not be worked as vindictiveness like the concept of an eye for an eye and the theme of revenge should lose its lustre. Further, as Emanuel R. Piore says, “Conflict lies at the core of innovation.”[10] So, considering this point the dispute can be resolved through various methods the Mediation Bill 2021 is come out of innovation and is made to counter the dispute between people at the earliest convenience. This Bill beefs up the mediation process. The bottom line of this bill is that it will bring equality among all persons in the mediation process. In addition, it will allow all stakeholders to unconditionally prevent the enforcement of arbitration awards motivated by fraud or corruption. It will serve India’s objective to be the centre of domestic and international mediation. Hence, after recognizing all these points, this Bill definitely will cut the mustard.
About the publisher:
https://www.linkedin.com/in/ayush-chandra-70372921b
[1]Dispute Resolution Quotes. Retrieved November 09, 2021 from http://www.adrtoolbox.com/library/adr-quotes/
[2] (ICGJ 236 (PCIJ 1924)
[3] (2003) 1 SCC 49
[4]Dispute Resolution Quotes. Retrieved November 09, 2021 from http://www.adrtoolbox.com/library/adr-quotes/
[5] Kashish Khandelwal, India government releases draft bill of country’s first mediation law. Retrieved November 10, 2021 from https://www.jurist.org/news/2021/11/india-government-releases-draft-bill-of-countrys-first-mediation-law/
[6] PIB Delhi, Ministry of Law and Justice, Draft Mediation Bill issued for Public Consultation. Retrieved November 10, 2021 from https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1769531
[7] GeorgeOrwell Quotable Quote, Retrieved November 13, 2021 from https://www.goodreads.com/quotes/271561
[8] LUCA VENTURA, The World’s Richest and Poorest Countries 2021. Retrieved November 13, 2021, from https://www.gfmag.com/global-data/economic-data/worlds-richest-and-poorest-countries
[9]Poverty Data: India, Retrieved November 13, 2021, from https://www.adb.org/countries/india/poverty
[10] Dispute Resolution Quotes. Retrieved November 09, 2021 from http://www.adrtoolbox.com/library/adr-quotes/
