October 2, 2023
“An ounce of Mediation is worth a pound of Arbitration and ton of Litigation."- Joseph Grynbaum
"Successful mediation should result in cessation of disagreements." - Susskind and Babbitt
"Discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time." - Abraham Lincoln
In a world fraught with conflicts and disputes, the ancient art of mediation stands as a beacon of hope—a means to resolve conflicts peacefully,efficiently, and effectively. Let's delve into the world of mediation,exploring what it is, its features, and the recently introduced Mediation Bill that aims to streamline and strengthen the mediation process in India.
Mediation,often described as the art of peace-making, is an ancient and honourable process for conflict resolution. At its core, mediation involves a neutral third party facilitating discussions between two conflicting parties. Unlike arbitration, where a decision is imposed, mediation is a collaborative process.Here, the mediator guides the parties in finding their own solution.
In the words of Black's Law Dictionary, mediation is a "Private informal dispute resolution process in which a neutral third party (the mediator) helps disputing parties to reach an agreement ( no power to impose a decision)."
Mediation finds its place in various statutes, recognizing its importance in conflict resolution:
-In the Consumer Protection Act of 2019, mediation is defined as the process by which a mediator mediates consumer disputes.
-The Mediation Bill of 2021, which is currently under consideration, defines mediation as a process in which parties seek an amicable settlement through the assistance of a third-party mediator.
-The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018,describe mediation as a process undertaken by a mediator to resolve commercial disputes.
Mediation is characterized by several key features:
Voluntary: Mediation is a voluntary process, with both parties participating willingly.
Focus on Parties: It centres on the parties themselves, with the mediator acting as a guide.
Informal: Mediation is an informal process, not bound by strict rules of evidence or formal procedures.
Addressing Underlying Causes: It delves beyond legal issues to address the root causes of disputes.
Efficient and Cost-effective: Mediation is an efficient and cost-effective alternative to litigation.
Impartial Mediator: The mediator remains impartial, independent,detached, and objective.
Assistance, Not Imposition: The mediator assists parties in resolving disputes but doesn't impose decisions.
Facilitative and Evaluative: The mediator's role is both facilitative (helping parties communicate) and evaluative (offering perspectives).
Once a mediated settlement is reached, it holds significant weight and cannot be easily challenged. Courts have upheld the sanctity of mediation settlements in various cases, emphasizing the importance of parties adhering to the terms and conditions they agreed upon during mediation.
The need for a comprehensive Mediation Bill became evident when the Supreme Court suggested its consideration in the case of M.R. Krishna Murthi v. The New India Assurance Co. Ltd. The court recommended the establishment of a Motor Accidents Mediation Authority (MAMA) and the promotion of mediation to resolve disputes efficiently.
With the aim of strengthening alternative dispute resolution (ADR), the Indian Parliament introduced the Mediation Bill in December 2021. The absence of a uniform legal procedure for mediation and a central authority overseeing the process led to the need for this legislation.
The Mediation Bill seeks to achieve several key objectives:
-Provide a uniform procedure for mediation in India.
-Clarify the role of mediators, mediation agreements, and mediated settlement agreements.
-Educate people about the mediation process.
-Address pre-litigation mediation.
-Define the powers and functions of courts and tribunals in the mediation process.
The Mediation Bill comprises 11 chapters and 10 schedules. These chapters cover various aspects of mediation, including definitions, institutional mediation,exclusions, mediators, mediated settlement agreements, court-referred mediation, withdrawal from mediation, online mediation, the establishment of the Mediation Council of India, mediation service providers, community mediation, and miscellaneous provisions.
The Bill applies to all mediations in India involving parties residing,incorporated, or conducting business in India. It also covers international mediations. However, it does not apply to disputes involving central or state government entities, public bodies, corporations, or local bodies unless they are commercial disputes.
As the Mediation Bill progresses through the legislative process, it holds the promise of revolutionizing conflict resolution in India, providing a structured framework for mediation, and promoting peaceful solutions to disputes. It is a significant step toward enhancing the efficiency and effectiveness of mediation as a tool for resolving conflicts in the nation.