An Initiative To Ease Justice Delivery

India is set to enact law relating to mediation in the on-going session of parliament. The government has cleared the deck for its passage after careful consideration of some of the crucial provisions and removing some having larger meaning and implications. Indian cabinet meeting chaired by Prime Minister Narendra Modi made recommendations for removal of the provision the other day that made pre-litigation mediation mandatory before parties could file any suit or proceedings in court. However, the removal of this provision would take away very important aspect that was necessary for accessing justice without going through the hassling court proceeding. 

Nevertheless, following the introduction of the law, India will in deed join the  league of the countries that have given legal recognition to alternative dispute resolution especially mediation to contribute towards amicable resolution of disputes. It will contribute to bring consolidation, uniformity, and consistency in the application of mediation though such provisions exist in scattered forms in different provisions of statutes in India. 

Greater impact

A would-be full-fledged uniform mediation law in India is looked with greater interest and   significance because of the fact that it will impart greater impact on the development of ADR especially mediation in South Asia and the world. Nepal has already enacted the mediation law and it has been almost a decade since it has come into operation. However, its implementation has been agonisingly tardy and sluggish. Nepal Mediation Council has forwarded some recommendations to the government to improve the mediation law and it is anticipated that the government will appreciate and amend it through incorporation of mediation-friendly provisions.  It may be mere coincidence that the judiciary in Nepal had led process in drafting and pressing for the enactment of mediation law which is also the case in India.

Given the active role of the Supreme Court justices in India in promoting mediation, it can be said that Nepali judicial fraternity appears not that committed to lend credence to the value and relevance of mediation as an important mechanism to mitigate court burden. Indian justice administration system is based on common law system, and any reform initiatives India takes in the area of dispute resolution will generate salutary precedents for other countries, including Nepal, to emulate. As India is growing economically and competing to lure investors, its  investment-friendly laws like the Mediation Act and  efficient dispute resolution mechanism  will enable the country to fare better in its quest for economic expansion and development.

In India, as courts are besieged by huge arrears of cases, the institutionalisation of mediation will help in decongesting the court docket and improve the process for justice delivery to the poor commoners in the nook and corner of the country. Looking back, the Indian mediation bill was first introduced in the Upper House of Parliament almost two years ago. It took longer gestation period before it was cleared by the cabinet. The major characteristic of the bill has been that it permits for using mediation for civil and commercial disputes. It establishes a Mediation Council of India (MCI) to promote, strengthen and regulate mediation services in the country. 

The amended bill makes pre-litigation voluntary, leaving parties with the choice to participate in a pre-litigation mediation process instead of going for litigation. Mediation is a voluntary process in which parties try to settle disputes with the assistance of an independent third person. A mediator does not impose a solution on the parties but creates a conducive environment in which they can resolve their dispute. Benefits of mediation include its voluntary and non-adversarial nature, the flexibility and confidentiality of the process, its speed and cost effectiveness, and the finality of consensual settlements. With the passage of law, mediation in India may be such as court referred, private and institutional which is also the case in Nepal. Court may refer cases to mediation under the Code of Civil Procedure, 1908 for resolution applying the facilitative process. 

A person, for instance, under a contract having a mediation clause, may bring the case to mediation as provided under a specific statute such as the Commercial Courts Act, 2015, the Consumer Protection Act, 2019, or the Companies Act, 2013 and so on. The Bill seeks to promote mediation, particularly institutional mediation, and provide a mechanism for enforcing mediated settlement agreements. It contains a list of disputes which are not fit for mediation. These include disputes relating to claims against minors or persons of unsound mind, cases involving criminal prosecution, and affecting the rights of third parties.  The Bill will apply to mediations conducted in India involving only domestic parties. 

Functions

Mediation proceedings according to the bill will be confidential, and must be completed within 180 days.  A party may withdraw from mediation after two sessions. Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts. The government will establish the Mediation Council of India - an administering and regulating authority.  The Council will consist of a chairperson, two full-time members with experience in mediation or ADR, three ex-officio members including the law secretary, and the finance secretary, and a part-time member from an industry body.  Functions of the Council include like in Nepal registration of mediators, recognising mediation service providers and mediation institutes which train, educate, and certify mediators and so on.

Agreements resulting from mediation other than community mediation will be final, binding, and enforceable in the same manner as court judgments. They may be challenged on grounds of fraud, corruption, impersonation and so on. Finally it is expected that India will emerge as one of the key countries that will play an important role in the promotion of mediation not only in South Asia but also in the world.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)