Nothing Special   »   [go: up one dir, main page]
Scribd Logo
Upload

Welcome to Scribd!

  • 1 views

    Decoding The Mediation Bill, 2023

    Uploaded by

    Nivesh Dixit

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd

    Decoding The Mediation Bill, 2023

    Uploaded by

    Nivesh Dixit
    1 views5 pages

    Original Title

    Decoding the Mediation Bill, 2023

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    1 views5 pages

    Decoding The Mediation Bill, 2023

    Uploaded by

    Nivesh Dixit

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 5

    Magazine • 35

    ARBITRATION LAW

    [2023] 175 CLA (Mag.) 35

    Decoding the Mediation Bill, 2023 –


    Can it be a Game Changer ?
    Manuj Bhargava*1

    This article outlines the key attributes of the Mediation Bill,


    2023, which was passed by the Rajya Sabha on 1st August, 2023.
    The author examines both the strengths and weaknesses of the
    bill, delineating areas of efficacy and areas where improvements
    could be made. Furthermore, the article explores the anticipated
    influence the bill will exert on the Indian judicial framework as a
    whole. EFW

    Background
    1. Increasingly, alternate dispute resolution (‘ADR’) are becoming popular
    means by which disputes could be settled outside the traditional court system.
    Arbitration, Mediation, and Lok Adalats are the various forums in India for
    ADR. Mediation has always been a voluntary process in which parties try
    to settle disputes with the assistance of an independent third person (the
    mediator). Various countries including Australia, Singapore, and Italy have
    standalone laws on mediation. The suggestion to enact a separate legislation
    governing mediation in India has been made on a number of occasions,
    including by the Supreme Court, a committee formed by the Supreme Court
    in 2020 had recommended and prepared a draft umbrella legislation to give
    sanctity to dispute settlement through mediation.
    1.1 On 19th July, 2023 the Union Cabinet approved amendments to the
    Mediation Bill, including halving the time for the completion of mediation
    proceedings from 360 to 180 days. The Mediation Bill was first introduced
    in the Rajya Sabha in 2021, after which it was referred to the parliamentary
    committee on law, which gave its report. The Mediation Bill, 2023 was passed
    by the Rajya Sabha on 1st August, 2023. While there is no standalone legislation
    for mediation in India, there are several statutes containing mediation

    * Advocate, FCS, LL.B, Insolvency Professional


    155 CLA • AUG (2) 2023
    Magazine • 36 Section IV – Arbitration Law

    provisions, such as the Code of Civil Procedure, 1908, the Arbitration and
    Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act,
    2015, and the Consumer Protection Act, 2019.

    What is Mediation?
    2. Mediation is a form of ADR, where parties attempt to settle their dispute
    (outside courts) with the assistance of an independent third person (mediator).
    The Bill seeks to promote mediation (including online mediation), and provide
    for enforcement of settlement agreements resulting from mediation

    Objective of the Mediation Bill, 2023


    3. A bill to promote and facilitate mediation, especially institutional mediation,
    for resolution of disputes, commercial or otherwise, enforce mediated
    settlement agreements, provide for a body for registration of mediators, to
    encourage community mediation and to make online mediation as acceptable
    and cost effective process and for matters connected therewith or incidental
    thereto. Accordingly, the Mediation Bill aims to reduce the burden on courts
    by encouraging disputants to resolve their own disputes with the assistance
    of trained mediators and mediations facilitated by authorised mediation
    Institutions.

    Present Mediation System


    4. At present, mediation in India may be (i) court referred (courts may refer
    cases to mediation under the Code of Civil Procedure, 1908), (ii) private (for
    instance, under a contract having a mediation clause), or (iii) 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 private ADR centres or mediation centres, as well as centres set
    up by courts or tribunals (known as court annexed mediation centres). As per
    data published by the National Legal Services Authority for the year 2021-
    22, India had 464 ADR centres, 570 mediation centres, 16,565 mediators, and
    nearly 53,000 cases were settled through mediation.

    Who can be a Mediator?


    5. A Person of any nationality may be a mediator. He should be a person
    registered with the Council or empanelled by a court annexed mediation
    Centre or empanelled by an authority constituted under the Legal services
    Authorities Act 1987 or empanelled by a mediation service provider.

    Is Pre-litigation Mediation Compulsory?


    6. Pre-litigation mediation is totally voluntary and has to take place only with
    the mutual consent of all parties however in the case of commercial disputes
    CLA • VOL. 175 156
    Mediation Bill, 2023 Magazine • 37

    of specified value, Pre litigation mediation is a precondition under section


    12A of the Commercial Courts Act, 2015.

    Role of a Mediator
    7. The mediator’s role in dispute resolution involves facilitation and
    communication. The mediator’s primary role is to help parties voluntarily
    resolve their dispute. His role is to convey each party’s perspective to the other,
    aiding in issue identification, enhancing understanding, clarifying priorities,
    and exploring potential settlement options. The mediator has to inform the
    parties explicitly, that his role is to guide the decision-making process towards
    resolving the dispute.

    Disputes or Matters Not Fit for Mediation


    8. A mediation under the Act shall not be conducted for resolution of any
    dispute or matter contained in the indicative list under the First Schedule –
    This List includes matters such as criminal offences, complaints relating to
    misconduct of professionals such as legal , medical, architects, etc. Matters
    under the jurisdiction of National Green Tribunal, Disputes relating to Direct
    or Indirect taxes, Investigations under the Competition Act, 2002, Proceedings
    before SEBI or SAT, Land acquisitions under the land Acquisition Laws, etc.
    This list is not exhaustive and may be modified by the Central Government
    from time to time.

    Time Limit for Completion of Mediation


    9. Mediation under the Bill shall be completed within a period of one hundred
    and twenty days from the date fixed for the first appearance before the
    mediator which may be extended for a further period as agreed by the parties,
    but not exceeding sixty days. This is a welcome step since in the earlier Bill of
    2021, the time limit which was proposed was 180 days extendable by another
    180 days. Thus the time limit has been halved.

    Mediated Settlement Agreement


    10. In case the mediation is successful, the parties enter into a mediated
    settlement agreement. It is important to note that the settlement agreement
    may extend beyond the disputes referred to the mediation. The settlement
    can also be on a part of the dispute. Thus it is not necessary that all the issues
    are to be settled to enter into a settlement agreement. In case of Institutional
    mediation, the settlement agreement shall be submitted by the mediator with
    his authentication to the mediation service provider and in other cases to all
    the parties. The parties have the option of registering this agreement with a
    registering authority (To be notified) to obtain a unique registration number.

    157 CLA • AUG (2) 2023


    Magazine • 38 Section IV – Arbitration Law

    Sanctity of Mediated Settlement Agreement


    11. The mediation settlement agreement or mediation settlement deed acquires
    the status of a court’s decree and shall be enforced as per the provisions of
    Code of Civil Procedure, 1908. To elaborate, if two parties go to a mediation
    institution, have their dispute mediated , reach a consensus and get the
    settlement agreement attested by the mediator, it will become a court order
    that is legally enforceable. It assumes a lot of significance particularly if
    compared with the status of an arbitral award which is required to be ratified
    by court before becoming legally enforceable. Further the mediated settlement
    agreement can be challenged on very limited grounds, namely,—
    (i) fraud,
    (ii) corruption,
    (iii) impersonation,
    (iv) where the mediation was conducted in disputes or matters not fit for
    mediation.
    The settlement agreement can be challenged by a party within a period of 90
    days of having received the said agreement.

    Mediation Council
    12. The Mediation Council of India will be set up. Its functions include
    registering mediators, and recognizing mediation service providers and
    mediation institutes (which train and certify mediators). The Central
    Government will establish the Mediation Council of India. The Council will
    consist of a chairperson, two full-time members to be appointed by Central
    Government (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 mediators, and (ii) recognising mediation service providers and
    mediation institutes (which train, educate, and certify mediators).

    Conclusion
    13. In 2022, the total number of pending cases in India was approximately 5
    crore at all levels of court. Incidentally the Government is the biggest litigant
    figuring in over 50 per cent of these pending cases. This pendency is the biggest
    challenge before Indian judiciary. As per Niti Ayog Strategy Paper, it would
    take more than 324 years to clear this backlog. The reason for this pendency
    can be debated endlessly. The Government itself acknowledge the fact that
    this pendency needs to be brought down at a fast pace. The Mediation Bill,
    2021 was a step in this direction which prescribed pre-litigation mediation as
    a compulsory step in the judicial system, however, the mediation in itself is a
    CLA • VOL. 175 158
    Mediation Bill, 2023 Magazine • 39

    voluntary process, The Mediation Bill, 2023 has made pre-litigation mediation
    a voluntary affair. This has taken the stint out of the Bill. Another major cause
    of concern is that except for commercial cases disputes, other disputes with
    the government are excluded from the Bill. When in 50 per cent of cases,
    government is one of the litigants, keeping government out of the purview
    of the Bill may not yield the desired results.
    13.1 There is a saying, “Convert threat into an opportunity”, Now we find
    that the profession of advocate is at a high. There may be around 18 lakh
    advocates in the profession; the profession is mushrooming with around
    2000 colleges affiliated to the Bar Council of India. The influx of students
    enrolling and subsequently graduating continues to soar each year. This
    burgeoning community of legal practitioners, equipped with profound legal
    acumen, holds the potential to be strategically directed into the mediation
    domain, effectively resolving conflicts among diverse parties. Advocates
    can strategically engage in alternative dispute resolution, harmoniously
    complementing their conventional practice. The Bill provides an excellent
    opportunity for the advocate community.
    13.2 Delving into the Bill’s positive aspects, it is essential to recognize its
    potential as a commendable initial step. The Bill inherently stimulates the
    mediation process, propelling agreements to incorporate mediation clauses.
    Concurrently, the establishment of a robust mediation institution lays the
    foundation for a gradual acceleration of mediation, leading to the resolution
    of disputes outside the traditional courtroom setting. For parties genuinely
    inclined towards resolution, this legislation offers an excellent avenue to settle
    disputes, poised to evolve from Bill to law in due course.

    159 CLA • AUG (2) 2023

    You might also like