By Dr. Gyan Pathak
Mediation is an alternate dispute resolution (ADR) system outside the traditional court system. In India, this service is presently provided by private ADR or mediation centres, and also through the court annexed mediation centres set up by courts and tribunals. Mediation is a voluntary process that Modi government wanted to change fundamentally and tabled the Meditation Bill, 2021 in the parliament of India that contains numerous loopholes, which is yet another example of this government’s wild approach towards policies and laws.
“Mediation Bill, 2021 has the potential to fundamentally alter the dispute resolution landscape of the county,” says the department related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its report tabled in the parliament. Numerous loopholes pointed out in the report clearly show how poor India’s law makers in the government are in their conception as well as the laws they are trying to impose on the citizens without considering the adverse impact on the people.
The bill was originally introduced in the Rajya Sabha on December 2021 after several suggestions to enact a separate legislation governing mediation in India, including by the Supreme Court of India in 2019, and the High Level Committee to review the institutionalization of arbitration mechanism in India in 2017. Supreme Court had also formed a committee in 2020 which not only recommended but also prepared a draft umbrella legislation to give sanctity to dispute settlement through mediation.
National Legal Services Authority data for 2021-22 shows that out of 464 ADR centres, 67 were not functional. There were 570 mediation centres and 16,565 mediators. These centres settled only about 53,000 cases, while lakhs of cases are pending in the courts across India that can be settled through mediations. The importance of the Mediation Bill, 2021 is obvious, but such a legislation with numerous loopholes could also make the life of people more miserable.
The Committee has noted even absence of definitions in the bill, such as ‘habitual residence’ and ‘place of business’ and was of the considered view that lack of explicit definitions often results in ambiguity and makes multiple interpretations possible. Even as for the definition of ‘commercial disputes’, the committee was not satisfied and had to recommend clarity in order to avoid any dispute.
It said that the present definition of ‘international mediation’ also needs to be revisited, so that in future the provisions of Singapore Convention can be incorporated, which is to facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements across borders, but its provisions are not yet incorporated in the present bill since India is yet to ratify UNISA.
The committee has also pointed out the term ‘mediator’ which may create problems in future. Instituting a framework for resolution of disputes that are likely to affect the peace, harmony and tranquillity in the society is appreciated by the Committee, but it says, since the mediators engaged in community mediation are not trained and qualified mediators as defined in the bill, the term should be replaced with ‘community mediators’. The report clearly hinted at the danger. The settlement agreement arrived at through the process of community mediation is made non-enforceable. However, the committee felt that making an explicit statement regarding the non-enforceable character of the settlement agreement would defeat the very purpose of the community mediation.
Even the definition of ‘court’ in the bill is narrow, and hence the committee felt a need to widen its ambit. Accordingly, the Committee recommended that the meaning of the term should cover all courts located within the territory of India, ranging from subordinate (primary) courts to the apex court, having territorial and subject matter jurisdiction over the dispute that is the subject matter of mediation.
Non-commercial disputes with Government as a party are by and large kept outside the ambit of the mediation bill. The committee has recommended not to exclude the government related dispute so that it may inspire confidence in stakeholders that mediation is a viable option, which even the government is ready to adopt for disputes where it is one of the parties.
The committee has noted with concerns that the bill contains several interconnected and contradictory provisions in carious clauses, especially in respect to ‘pre-litigation mediation’ and ‘court annexed mediation’ the definition of which needed further clarity, since even the committee failed to understand as to how the matter pending before a tribunal will be treated as pre-litigation mediation. Further, the Pre-litigation mediation has been made mandatory by this bill, which the committee felt, could actually result in delaying of cases and may prove to be an additional tool in hands of litigants to delay the disposal of cases. It would increase the costs of dispute resolution.
As for the provision relating to time, the committee finds 180 days and further extension of another 180 days too long to serve the basic purpose of speedy dispute resolution. It has recommended reduction in the time limit, say to 90 days plus an extended period of 60 days as is mentioned in the Commercial Courts Act.
Too many provisions for Mediated Settlement Agreement is another issue that the committee has pointed out and recommended them to be rearranged into only three clauses. Moreover, the bill makes room for a possibility of ‘mediation agreement’ being defined in a variety of forms, and has restricted the scope of International mediation to commercial disputes only.
The concept of Online dispute resolution has gained traction during the COVID-19 crisis. It delivers speedy justice in a cost-effective manner. However, there is only one clause relating to this mode of mediation without detailed provisions and modalities.
As for the mediation service provider and mediation institutes, the bill provisioned for multiple controlling authorities. They are four in numbers which the committee found too many and has recommended only one controlling authority, ie the Mediation Council of India. The committee also felt that authorities under Legal Services Authority Act should not be burdened with mediation services. Obviously because it would impact it works of providing free and competent legal services to weaker sections of the society on the basis of equal opportunity.
Exclusion of rights for Persons with Disabilities (PwDs) in this bill is outright violation of the UN Convention of PwDs India is signatory to. An entry in the First Schedule of this bill will affect conduct of mediation in matrimonial cases where children (third party who are not party to mediation proceedings) are involved. Central government is given power to amend certain provisions through executive orders and allowed to bypass the legislature altogether, the type of provisions the committee felt should have been avoided.
The term “exceptional circumstances” has not been defined in the bill that the committee felt could lead to wide interpretation and use by parties to approach court for interim relief. It can be misused to further delay the cases as we have been experiencing under the Commercial Courts Act 2015, another law brought by Modi government. These are but a few examples of too many loopholes in the Mediation Bill 2021. (IPA Service)