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Since the introduction of Mediation into our legal system in the year 2005 to its gradual acceptance as an Alternate Dispute Resolution mechanism via court-annexed mediation Centres established under Section 89 of the Code of Civil Procedure, the upholders of mediation have frantically been waiting for the legislation on Mediation.

During the National Conference held by Delhi High Court Mediation and Conciliation Centre, SAMADHAN, under the aegis of National Legal Services Authority (NALSA) and Mediation and Conciliation Project Committee (MCPC) on 14th and 15th April, 2023, almost every attendee, expected the Law on Mediation to be passed soon. The hope of everyone has come true.  The Mediation Bill, which aims at institutionalising and promoting the process of mediation, has been passed by the Rajya Sabha and the Lok Sabha. Soon it should also get the assent of the President of India.

India, where we hold value for trust, community, social harmony, and good relationship on a high pedestal, mediation's ability to envisage an appropriate concept of justice, which is more personalized, inclusive, and democratic, cannot be understated.

The passing of the Mediation Bill has proved the importance attached to the core concept of mediation which retains the confidentiality, keeps it to be voluntary and believes in self-determination of the conflicting parties, and makes the mediated settlement binding. Mediation preserves the party's control over the process and the outcome even under the Bill and the mediation process is driven by the concerns that the parties express to the mediator and to each other. The outcome of the mediation is shaped by the parties themselves with the assistance of the mediator. It is time to celebrate and also thank all those who have put in untiring efforts since 2017 to make this Mediation Bill a reality. 

The acceptance of the Bill is a great step forward not only for the mediation practitioners but all other stakeholders mainly parties who have got damaged relationships, be it personal, commercial or organisational. The impediment so far has been the maintainability of the mediated settlement agreement. It was considered merely a contract and its breach required a full round of litigation to prove the existence of the agreement under the Contract Act.

Now as per the Mediation Bill, the mediated settlement is an executable decree (Clause 27) as per the provisions of the Code of Civil Procedure. If the parties choose to try resolution through the process of mediation, they may do so and with mutual consent take steps to settle their disputes by pre-litigation mediation in accordance with Clause 5(1). Clause 13 gives parties the freedom to proceed with mediation even at a place other than the place of jurisdiction with mutual consent. The transformative characteristic of mediation even under the Bill puts the decision-making authority in the hands of the conflicting parties, empowering them to find legally tenable and creative solutions. The time limit for arriving at solution during the process of mediation has been specified to be 180 days and this period can be excluded for the purposes of computation of limitation.  The Bill also permits to have a mediated settlement agreement beyond the disputes referred to mediation (Clause 19). Acceptance of Online mediation under the Bill is a huge step to help the parties to have the mediated settlement agreements from a place of their convenience (Clause 30).

Mediators who have been casual in maintaining ethical standards will have to be cautious, as Mediation Bill proposes to constitute an independent body known as the Mediation Council of India, which shall be responsible to promote domestic and international mediation in India, providing for the manner of conduct of mediation proceedings,  manner of registration of mediators and renew, withdraw, suspend or cancel registration and further lay down standards for the professional and ethical conduct of the mediators (Clause 31 to 39).

Further, under Clause 43, Mediation Bill promotes community mediation, which is a huge step forward in promoting peace, harmony and tranquillity in the society.

It is apparent that a lot of energy have been put in to get the Mediation Bill in place, however, the First Schedule of the Mediation Bill which gives details of the ‘Disputes of matters not fit for Mediation’ needs reconsideration. The exclusion of matters involving minors, deities, persons with intellectual disability may require easy and cost-effective access to justice. The interest of such persons has been taken care of by various provisions of legislations for adjudicatory process, which can be used even for mediation. If they can be represented through their legal guardian or next friend for litigation there should have been a similar provision for them to mediate as well.

Though the Bill includes International Mediation, but it does not provide for effective methodology for implementation in case of International Mediation. As India has signed Singapore Convention, there should have an effective mechanism for effective implementation of the Convention and International mediations.

The dawn of the golden era of mediation has begun and the mediation bill ensures that the future of India is resolution, not litigation.

 

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