The Mediation Bill, 2023 is a progressive legislation for peaceful dispute resolution in India. Kudos to the many stakeholders who have recognized the power of this process and sincerely worked hard to get statutory recognition for collaboration, dialogue, reconciliation and problem-solving.
In this article, I hope to highlight some of the ways in which this proposed law will improve access to justice, and some pitfalls that need to be addressed.
Improving access to justice
The Bill has expanded the possibility of better availability and increased access to mediation. Court-annexed mediation continues as an important arm, providing its services at free or minimal cost. Private mediation is introduced as ‘institutional mediation,’ where service providers offer mediation services. These institutions are to maintain a panel of mediators and professional fees are charged. Parties can choose a mediator they feel is best suited for their case. Just as government hospitals and private hospitals are both required to cater appropriately to meet the healthcare requirements of the public, institutional mediation and court-annexed mediation are both required to deliver appropriate access to mediation services. The Bill offers opportunities for the growth of a robust private mediation sector.
The core features of mediation: confidentiality, self-determination and voluntariness, are adequately safeguarded. Section 23 affords protection against admissibility and privilege against disclosure. All mediation communication is confidential. Section 21 ensures that non-settlement reports by the mediator do not disclose the cause of non-settlement. The definition of ‘mediation’ under Section 2(h) requires that a mediated settlement is the outcome of self-determination. Under Section 24, any party can, at any point in the mediation, voluntarily opt out of the process.
Section 27 provides for enforcement of a mediated settlement agreement in a manner as if it were a judgment or decree passed by a court.
Online mediation is covered by the law. Mediation proceedings can be virtual, online or hybrid. This enhances the convenience of participation and allows a wide reach.
A Mediation Council of India (MCI) will be set up to monitor, maintain standards and lay down the ethical code of conduct for mediators, service providers and training institutions.
The Bill applies to commercial disputes with the government. Any other dispute with the government could be mediated if schemes or guidelines are framed for mediation. Protection is afforded to actions taken in good faith by the authority if it is with the written consent of the competent authority. This is a good beginning. However, bolder steps are expected as the government is the biggest litigant in courts.
Some pitfalls to watch out for
1. The definition of ‘mediator’ under Section 2(h) creates two categories of mediators – those who are registered with the MCI and those who are not. This enlarges the pool of mediators. Mediated settlement agreements (MSAs) can be enforced as judgments or decrees of the court. This provision could be misused when random agreements are converted to MSAs to avail quicker enforcement under the Bill. Weaker parties could be exploited if there is a power imbalance. To regulate this threat, the enforcement as a judgment or decree of the court could be confined to mediation conducted by a registered mediator.
Any challenge to an MSA cannot be made after a maximum period of 180 days from the date on which the party making the challenge has received the copy of the authenticated MSA. If fraud, corruption, or impersonation is the ground for challenge, it would be more appropriate to calculate the period for challenge from the date of knowledge as contemplated under the Limitation Act.
2. The First Schedule lists disputes relating to claims of minors, deities, persons with intellectual disabilities, persons of unsound mind and persons with disabilities having high support needs as ‘not fit for mediation’. However, all such people are covered by separate legislation which provide for guardianship when they are unable to take legally binding decisions. Excluding such people from mediation would be denying them easy access to justice and is discriminatory.
Similarly, disputes involving professionals such as lawyers, doctors, chartered accountants before any statutory authority in relation to registration, discipline or misconduct are excluded. Disputes involving tortious liability such as negligence are recognized in many jurisdictions and are found to be especially suitable for mediation. It is important to clarify that such complaints can be mediated. There is tremendous educative value in such mediation, and it is apprehended that even complaints of negligence may be excluded by a broad stroke.
3. The Second Schedule relates to laws where the Mediation Bill does not have an overriding effect. It is unfortunate that the Family Courts Act, 1984, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is included in this list. Conciliation in such legislation is done by the conciliation officer/Internal Complaints Committee, who are also the authorities to make findings in the adversarial enquiry they conduct.
These are disputes where sensitive relationships are involved and often frivolous cases are filed. Misuse of the adversarial process could have severe consequences, and hence a choice of forum is necessary for effective justice delivery in these cases. It is unfortunate that the mediation process, which has the nuances to cater to these issues sensitively, is not an option.
4. The earlier drafts of this legislation had a provision for mandatory pre-litigation mediation, which has now been made voluntary. The mandatory provision was envisaged to remain dormant and when the mediator capacity improves, can be appropriately activated through notifications. As mediation requires a change in mindset, a good experience of mediation is the best way to convince litigants to use mediation. Mandatory pre-litigation mediation has the potential to hasten a change in the mindset of the litigants.
5. The extent of mediation competence in the Mediation Council that is to be set up is inadequate. Only one member among the entire Council is compulsorily required to have the knowledge of mediation law, which by itself does not necessarily create familiarity with the nuances of mediation. The threat to the dilution of mediation principles is further compounded by the fact that several provisions enable the government to exercise control over the Council. Mediation is a craft. It is skill-based and those who have training, experience and autonomy are required for leadership.
6. International mediation, although mentioned in the Bill, has not been dealt with. This is an omission which we need to address at the earliest. India is a signatory to the Singapore Convention on Mediation and the legal framework is necessary for ratification.
7. Under the Tenth Schedule, the Consumer Protection Forum does not have the power to suo motu refer cases for mediation. This could be an oversight as it is available in the Bill in the Eighth Schedule for the tribunals in the Companies Act.
8. Community Mediation is a progressive step, but the definition is ambiguous. The process mandates 3 mediators on the panel. The MSA cannot be enforced even though it must be registered. The provisions are laborious and hinders use.
There are many reasons for the mediation community in India to celebrate. India has certainly taken a big step forward.