August 12, 2023
Imagine there's a popular way in India to solve problems when two groups or people don't agree with each other. It's like having a friendly helper in the middle,kind of like a referee in a game. This helper, called a mediator, steps in only if both groups want them to. And guess what? The mediator doesn't tell them what to do. They just help them talk and find a way to make everyone happy. People really like this because it's quicker, doesn't cost as much, and keeps things secret. It's like having a private meeting where they can figure things out without going to court.
This article is all about diving into the background of mediation in India, how the laws support it, and the newest things happening in the world of mediation there.
The concept of mediation in India is not new; it has its roots in ancient practices such as Panchayats (traditional village councils) and the principles of Nyaya (justice) propagated in ancient Indian scriptures. In modern times, mediation as a formalized process gained recognition in India during the 1990's, influenced by the global trend toward ADR mechanisms. The introduction of the Civil Procedure Code (Amendment) Act, 1999, brought mediation into the legal landscape as Section 89, which allowed for the reference of disputes to ADR, including mediation, by the courts.
Back in 2015, India took an important step and made a rule called the Commercial Courts Act. This rule said that when businesses have any disputes, they should first try to talk things over instead of going straight to court. It's like giving mediation a special role in solving business issues. Additionally, the Legal Services Authorities Act, 1987 and the Legal Services Authorities(Amendment) Act, 2002 recognised and encouraged the establishment of Lok Adalats (people's courts) as a form of mediation, where parties can amicably settle their disputes with the assistance of judicial officers.
To add on, there's another law called the Arbitration and Conciliation Act from 1996 that deals with solving arguments through arbitration and conciliation. In 2015, they made changes to this law. They added parts about something called court-referred mediation. This means that even if two sides have agreed to solve their issue through arbitration, a judge can still suggest them to try mediation instead.
To make mediation easier, lots of groups have made special places all over the country. These places are called mediation centres. They give a good and fair space for mediation to happen. This way, the whole process is private and unbiased. Some well-known mediation centres are the Indian Institute of Arbitration & Mediation, the Indian Institute of Corporate Affairs, and the Centre for Advanced Mediation Practice.
These centres have very important roles in dispute resolutions. They teach and approve people to be mediators, keep lists of mediators and organise mediation according to set rules and being fair to everyone.
Mediation has a bunch of good points that make it better than going to court. People opt for it when they want to solve problems without spending too much time and money in court.
Some of the important advantages of mediation are:
1. Cost-Effectiveness: Mediation is generally more cost-effective than litigation, as it avoids the need for extensive legal representation and court fees.
2. Time-Efficient: Mediation often leads to quicker resolutions, as parties are not bound by court schedules and can arrange mediation sessions at their convenience.
3. Confidentiality: Mediation proceedings are confidential, protecting the privacy of the parties involved and the sensitive information shared during the process.
4. Control And Flexibility: Parties have more control over the outcome in mediation, as they actively participate in crafting the resolution. The process is flexible and can be tailored to suit the unique needs of the parties.
5. Preservation Of Relationships: Mediation encourages open communication and cooperation,facilitating the preservation of relationships between parties, especially in cases involving business disputes or family matters.
6. High Success Rate: Mediation has a relatively high success rate, with a significant number of disputes being resolved amicably through this process.
The Draft Mediation Bill, 2021, seeks to establish a comprehensive statutory framework for compulsory mediation in specific civil and commercial disputes in India and to enhance the overall mediation process in the country.
On December 20, 2021, a proposal was shown to the Rajya Sabha, the Upper House of the Parliament. After that, the proposal was sent to a special group called the Parliamentary Standing Committee to look at it closely. This group finished their study and gave their report on July 13, 2022.
The Bill's Statement of Objects and Reasons highlights several key objectives it aims to achieve:
The Bill is applicable to mediation conducted within India, involving parties residing, incorporated, or having a place of business in India, or when the mediation agreement specifically refers to the Bill's provisions. International mediation, where at least one party is from a country other than India, are also covered.
Mediation might not be suitable for certain types of disputes. These include cases where people say there was fraud, fake documents, copying someone else, forcing someone to do things, or arguments involving minors, people who can't think clearly, or people with intellectual difficulties.
The proposal also talks about making it a rule that before going to court, both sides have to try talking it out in at least two mediation sessions. This is to make sure they really try to solve things before using other ways.
However,in exceptional circumstances, parties may file proceedings before a court or tribunal seeking urgent interim relief, after which they may be referred back to mediation if appropriate.
A Mediated Settlement Agreement (Agreement) refers to a written agreement resulting from mediation, settling some or all disputes between the parties,authenticated by the mediator. The Agreement is required to be registered with the relevant State or District authorities under the Legal Services Authorities Act, 1987.
The Bill makes sure that once an agreement is reached through mediation, it's treated as final and has to be followed, just like a decision from a court. But there are only a few reasons someone can challenge this agreement, like if there was cheating, bribery, pretending to be someone else, or if the subject matter itself is not suitable for mediation.
Such challenges must be made within 90 days from the date the party receives the Agreement.
In cases involving the Central or State Government, the settlement agreement requires prior written consent from the competent authority of the respective government body.
The Bill provides for community mediation with mutual consent for resolving disputes affecting the peace, harmony, and tranquillity among residents or families in a specific area or locality. However, settlement agreements arising from community mediation are not enforceable as judgements or decrees.
The establishment of the Mediation Council of India by the Central Government is provided for, which will aim to promote domestic and international mediation through guidelines and lay down the framework for mediator education, certification,and assessment.
The Parliamentary Standing Committee made several pertinent observations and recommendations:
Lately,the Indian courts and legal experts have started to see how important mediation is. It plays a role in reducing the workload on the courts and ensures that disputes are resolved promptly. The Supreme Court has been leading the way by supporting mediation and telling people to try it before going to court.
But even though mediation is becoming more popular, there are still some problems that need to be fixed. Awareness and understanding of mediation as an effective means of dispute resolution remain relatively low among the general public.Parties may still prefer traditional litigation due to a lack of knowledge about the benefits of mediation or misconceptions about its efficacy.
Moreover,it's really important to make sure that the mediators are well-trained and really good at what they do. This is vital to keep the mediation process fair and reliable. We should have a common standard for certifying mediators, and they should keep learning and improving their skills through ongoing training programs. This way, we can be sure they're skilled and capable.
Mediation journey in India has been quite a transformation. From how things used to be,to now having a formal process acknowledged by the law, it's been quite a change. This progress happened because of the updated rules and establishment of the mediation centres all around the country.
Surely, there are a few challenges that need to be sorted out. But the fact that the Indian legal system and judges are backing mediation is really good news for the future. If more awareness can be created about it, India can really use mediation to fix arguments and make things fair for everyone.