Relevance: GS-2: Separation of powers between various organs of State, dispute redressal mechanisms, and institutions.

Key Phrases: Mediation Bill of 2021, Singapore Convention on Mediation Settlements, Pre-litigation Mediation, Fundamental Principles of Justice, Notion of Coercing, Failure to Guarantee Absolute Confidentiality, Voluntary Mediation

Why in News?

• The Mediation Bill of 2021 was recently introduced in the Upper House of Parliament amidst widespread opposition.
• It is said that the bill overlooks the difficulties pre-litigation mediation presents to the entire Indian legal system.

Key Highlights:

• Mediation, which is essentially an out-of-court settlement process involves the appointment of an external individual addressed as the mediator to resolve a dispute.
• This Bill is widely seen as a result of India’s commitment to the Singapore Convention on Mediation Settlements that provides for greater cooperation between signatory nations in the enforcement of settlement agreements.
• The Bill attempts to codify the process of mediation and the settlement agreements that subsequently arise as a result of the mediation process.
• While the intent of the legislative on this front is welcome as there is a huge scope for an out-of-court settlement in India, the method in which it is being attempted to be implemented comes with fundamental issues that deserve a closer examination.

What are the issues with the Bill?

1. Attempt to mandate mediation:
   • The problem starts with Section 6(1) of the Bill which attempts to mandate pre-litigation mediation.
   • While it comes with an opt-out clause, it can be exercised only after the parties sit for at least two sessions of mediation.
   • Countries such as Italy and Turkey have a pre-litigation mediation mandate in place.
   • An attempt to mandate mediation in India where the concept is still evolving can have serious repercussions.
   • This mandate is against the fundamental principles of justice, constitutionally unviable, and deprives a party of his/her choice to litigate.
   • This choice can be backed due to various reasons and factors such as the disproportionate balance of power between the parties in dispute, belief in the traditional court system, urgency, etc.
2. Additional Burden on Over-burdened Judiciary:
   • While Section 8 (1) of the Act provides for parties to approach the Courts citing exceptional circumstances to avoid mediation and seek urgent interim relief through litigation, the same comes with a greater risk of courts being burdened with additional litigation to determine as to what constitutes as ‘exceptional circumstances’, on a case-to-case basis, thus defeating the entire objective of the Act.
   • Furthermore, the additional burden on an aggrieved party, monetary and otherwise of such litigation is a real concern.
3. The Notion of Coercing:
   • The notion of coercing /forcing parties into mediation does not guarantee a positive outcome.
   • If one of the parties is uninterested in mediation, that renders the entire intent and objective of the mediation null and void.
   • Mediation more often than not leads the involved parties to a middle ground of sorts where compromises are made by both the parties in order to balance and accommodate their respective interests.
   • This certainly does not guarantee absolute justice in a situation where one party is completely aggrieved against the other.
   • In this regard, the cost of the mediation, to be borne by both the parties in accordance with Section 30 of the Bill doesn't help either.
4. Transition without Adequate Training:
   • Pre-litigation mediation keeps the judiciary and traditional court system out of the scheme of things for a considerable period of time which is extremely hard on a large section of practitioners who might not have an understanding of the process.
   • A Transition without adequate training and preparation on their front can nullify the objectives of the Bill.
   • It is key to note here that many Bar associations across the nation have also echoed their concerns along the same lines.
   • Thus, instead of mandated pre-litigation mediation India must look at other alternatives to promote mediation.

   

5. Failure to Guarantee Absolute Confidentiality:
   • The Bill also presents a few other issues such as its failure to guarantee absolute confidentiality, ambiguities with respect to the challenge provisions, qualifications of a mediator, and others which also deserves a closer inspection.

Conclusion:

• Voluntary mediation coupled with effective awareness of the public and adequate training for the members of the legal fraternity is a viable and useful alternative.
• Lessons can be learnt from nations like Singapore which have gone on to mandate creating awareness regarding mediation upon parties as a prerequisite to litigation against the mandating of pre-litigation mediation in itself.
• While such other integral flaws do exist, “Is compulsion the only way to propagate a voluntary process?” is the first question that ought to be answered by our lawmakers before the Bill sees the light of the day.

Source: The Hindu BL

Mains Question:

Q. Critically examine the Mediation Bill, 2021. (250 words).