Relevance: GS-2, Statutory, regulatory and various quasi-judicial bodies.

Key phrases:  Pre-litigation mediation, Alternative Dispute Resolution, Singapore Convention, Confidentiality, Non-adversarial, Collaborative Bargaining, National Legal Service Authority

Why in News?

• Government of India has released a Draft Mediation Bill 2021 for promotion and strengthening of Alternative Dispute Resolution (ADR) mechanisms in India.
• India has passed this Bill in line with signing the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) and this Bill looks to cement the position of mediation as a sought-after mode of alternative dispute resolution in India.
• The Chief Justice of India (CJI), has stated that mediation should be made mandatory as a first step in dispute resolution and that a law should be framed in this regard.

About Draft Mediation Bill:

• The draft Bill proposes for pre-litigation mediation and at the same time safeguards the interest of the litigants to approach the competent adjudicatory forums and courts in case an urgent relief is sought.
• The Draft Bill provides for enforcement of commercial settlements reached in international mediation as per the Singapore Convention on Mediation
• As per the draft Bill, the successful outcome of mediation in the form of the Mediation Settlement Agreement has been made enforceable by law.
• Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
• This Bill also acknowledges the importance of institutes to train mediators, and service providers to provide structured mediation under their rules.
• As per the draft bill, the mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
• The draft bill also says that registration of Mediation Settlement Agreement has been provided for with State, District and Taluk Legal Authorities within 90 days to ensure maintenance of authenticated records of the settlement so arrived.
• It also provides for the establishment of the Mediation Council of India.

Alternative Dispute Resolution (ADR) Mechanisms:

• ADR is a mechanism of dispute resolution that is non adversarial, i.e. working together cooperatively to reach the best resolution for everyone.
• ADR can be instrumental in reducing the burden of litigation on courts, while delivering a well-rounded and satisfying experience for the parties involved.
• It provides the opportunity to “expand the pie” through creative, collaborative bargaining, and fulfill the interests driving their demands.

Legal Provisions Regarding ADR mechanism:

• Under the provisions of Section 89, Civil Procedure Code (CPC), reference for the resolution of disputes could be had to any one of the following:
  • Arbitration or Conciliation- Proceedings under the provisions of the Arbitration and Conciliation Act, 1996.
  • Lok Adalat- Reference to Lok Adalat under Section 20 (1) of the Legal Services Authorities Act 1987, all provisions of which shall then apply.
  • Judicial Settlement- Reference by Court to a suitable institution or person who/ which shall be deemed to be a Lok Adalat and all other provisions of the 1987 Act shall apply.

Types of ADR mechanisms:

• Arbitration:

• The dispute is submitted to an arbitral tribunal which makes a decision (an “award”) on the dispute that is mostly binding on the parties.
• It is less formal than a trial, and the rules of evidence are often relaxed.
• Generally, there is no right to appeal an arbitrator’s decision.
• Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.

• Conciliation:

• A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
• Conciliation is a less formal form of arbitration.
• The parties are free to accept or reject the recommendations of the conciliator.
• However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

• Mediation:

• In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute.
• The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
• Mediation leaves control of the outcome with the parties.

• Negotiation:

• A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute
• It is the most common method of alternative dispute resolution.
• Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life.

Advantages of Alternation Dispute Resolutions ADR:

• It is more viable, economic, and efficient because the procedural flexibility saves valuable time and money and there is no stress of a conventional trial.
• Helping maintain confidentiality as the resolution of disputes takes place usually in private.
• The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator, or neutral adviser.
• The result is often creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
• Further, it offers greater direct control over the outcome. Personal relationships may also suffer less.

Sources: The Hindu , Legal Services India

Mains Question:

Q. Recently Mediation Bill has been in news, in this reference discuss the different forms of alternate dispute resolution mechanisms along with respective legal provisions .Also state its advantages in the present times?