Harmonizing Justice: A New Mediation Law For India
Iram Majid And Amaan Siddiqui
20 Oct 2023 7:28 AM GMT
Mediation has historically played a pivotal role in addressing conflicts within our diverse Indian society. Given the inevitability of disputes in a multifaceted culture like ours, mediation has stood as a testament to the faith people place in its effectiveness.
However, an intriguing transformation is underway, as this ancient practice evolves into more than just a customary approach. The introduction of a new Mediation Act marks a significant departure from tradition, ushering in a genuine mechanism for delivering justice. This juncture holds monumental importance for India, as it witnesses the formal establishment of mediation as a legal institution.
The Mediation Bill was first introduced in the Rajya Sabha on December 20, 2021, after which it underwent a thorough review by the Standing Committee. The committee's 117th Report, released on July 13, 2022, contained specific recommendations regarding the Bill's provisions, some of which were approved by the Union Cabinet. Consequently, the revised version of the bill, referred to as the Mediation Bill of 2023, was successfully passed by the Rajya Sabha on August 2, 2023, and later by the Lok Sabha on August 7, 2023. Following Presidential assent, the Bill became an Act on September 15, 2023, and was officially named the Mediation Actof 2023. Some portions of the Act came into force on October 9, 2023.
It's clear that previous Acts passed by parliament have consistently reflected aspects reminiscent of mediation-oriented laws. Notably, Acts like the Legal Services Authority Act of 1987, Micro Small and Medium Enterprises Development Act of 2006, Companies Act of 2013, and Commercial Courts Act of 2015 all incorporate distinct sections devoted to mediation. This consistent inclusion highlights the acknowledged importance of mediation within our legal framework.
Further, the inception of mediation centers, exemplified by the Salem Bar Association case, marked a crucial step in this direction. Yet, the impact was primarily confined to court-annexed mediation proceedings. A paradigm shift has occurred, manifesting as a faith-infused legal framework for mediation. Parties embroiled in disputes can now seek resolution with a profound sense of confidence and trust, underpinned by this transformative mediation law.
The current legislation reflects a progressive shift towards efficient, voluntary, and mutually agreeable dispute resolution through mediation. With provisions catering to party autonomy, the inclusion of government as a party to mediation, reduced timelines, community engagement, online mediation, and institutionalization, the Mediation Act is poised to bring about transformative changes in the way disputes are settled, promoting harmony and expediency in the pursuit of justice.
Key Provisions brought by the Act
In a significant stride towards enhancing dispute resolution mechanisms, the Mediation Act brings to light several pivotal provisions that promise to reshape the landscape of conflict resolution in India. At its core lies confidentiality which is the backbone for smooth and neutral functioning of mediation, to the extent that under section 23 communications within mediation cannot be admissible as evidence in any court proceedings including arbitration. Even under section 17 mediator is barred from acting as an arbitrator in the same case in which he had been a mediator. The emphasis on confidentiality holds immense significance, particularly in the Indian context where a substantial number of cases settled through mediation are family cases. Ensuring the confidentiality of these proceedings creates an environment where parties can candidly express themselves, facilitating a smoother and more efficient process overall.
Another notable provision is the reduction in the time limit for a mediation to be completed. In the earlier Bill of 2021, the time limit was 180 days which could be further extended up to 60 days but in section 18 of the 2023 Act, it has been reduced to 120 days which can be further extended up to the period of 60 days making it 180 days in total. This reduction in the time limit will further cater to the fast and timely disposal of the dispute.
The Act has also made the whole process more voluntary as under section 24, parties can opt out at any time during the proceedings to terminate the mediation. In the earlier Act of 2021, there was a bar of at least two sessions that had to be attended by the parties in order to terminate the proceedings.
Further, introduction of community mediation, under Part XI of the Act, offers an avenue for settling disputes affecting peace, harmony, and tranquility within local communities with prior mutual consent of the parties to the dispute. However, the settlement agreement made out of community mediation is not binding on any of the parties and therefore cannot be enforced.
The Act also gives an equal footing to Online Dispute Resolution (ODR) under Section 30, reflecting the Act's modern approach, allowing for mediated settlements in the digital realm. It can be conducted at any stage of meditation giving more flexibility to the whole mediation process.
As a unique system, the Act introduces setting up of the mediation council under Part VIII to regulate and promote mediation, ensuring adherence to standards and accreditation of mediators and mediation service providers.
One of the most celebrated provisions brought by the Act is the legal status given to mediation settlement agreements (MSAs) which under Section 27 can be enforced like court judgments, enhancing the enforceability of mediated settlements. This maintains the authenticity of mediation and makes the whole process worthy of opting. Although under section 29 of the Act, there are some grounds on which the MSA can be challenged such as if the agreement is reached through fraud, corruption, impersonation, etc.
The Mediation Act presents a commendable framework; however, there are potential gaps that could be addressed or refined to enhance its efficacy further. A significant issue lies in not putting the Singapore Convention on Mediation into action. Even though India signed this Convention in 2019, it has not been made part of the Act, allowing enforcement of international MSA’s. As a result, international mediations are in limbo, without a clear way to be enforced. This situation needs improvement.
Another key area is under Section 49 of the Act, which now makes the government and its agencies parties to mediation only with respect to commercial matters. This leaves a major lacuna as offenses related to challan have already been resolved through mediation in various Lok Adalats. Many other disputes can also be included such as Public Welfare Disputes like public welfare programs, social services, and benefits distribution can be easily resolved through Mediation. Disputes related to Public Health Matters involving government agencies in healthcare, disease control, and public health policies can be mediated to find collaborative solutions. Mediation can be one of the most suitable options for addressing student grievances.
Further, under section 32 of the Act, the current composition of the Mediation Council raises concerns about the adequacy of expertise, with only three members out of the entire Council expected to have familiarity with mediation or alternate dispute resolution. It feels like the importance of mediation might be getting overlooked, which is a bit worrying as mediation can be quite complex. Mediation is a skill demanding training, experience, and autonomy, involving intricate interpersonal dynamics and legal understanding. To ensure the Council's efficacy and promote fair dispute resolution, a stronger emphasis on comprehensive expertise in mediation is crucial for instilling confidence in its ability to adeptly navigate and resolve disputes.
Moreover, the First Schedule of the Act identifies certain disputes as unsuitable for mediation, including those involving Disputes relating to claims against minors, deities; persons with intellectual disabilities, and those requiring substantial assistance. However, these individuals are already protected by legislation governing their legal decision-making capacity. Excluding them from mediation could be seen as discriminatory and limiting their access to justice. Similarly, issues like registration, discipline, or misconduct, of different professions like doctors and lawyers can be easily addressed through mediation facilitating valuable learning experiences as cases of negligence in these professions are one of the best-suited disputes for mediation. Hence, the current Act must delicately balance the rights of marginalized people with equitable access to justice, ensuring fairness and inclusivity in the legal system.
The Mediation Act has introduced vital provisions that were necessary for shaping the trajectory of mediation's growth in India. This new legislation marks the initiation of a process to establish mediation as a formalized and effective practice within the country. It is anticipated that the government will take steps to improve the legislation and introduce necessary modifications to the Act as perfection is an ongoing process, involving continuous amendments and improvements. No legislation begins without its imperfections; rather, it progressively evolves through deliberate revisions and adaptations to rectify deficiencies and cater to evolving requirements.
Authors: Ms. Iram Majid, (Advocate, Director at Indian Institute of Arbitration and Mediation) and Amaan Siddiqui (Student, Jamia Millia Islamia). Views Are Personal.