Mediation Bill: An incomplete settlement

Source– The post is based on the article “Mediation Bill: An incomplete settlement” published in “The Indian Express” on 18th August 2023.

Syllabus: GS2- Polity.

Relevance: Important BIlls and Acts

News– On August 1, the Mediation Bill, 2021 was passed by the Rajya Sabha.

What are some positive aspects of the Bill?

The Bill has reduced the mediation period from 180 to 90 days. It has transformed the pre-litigation mediation from obligatory to voluntary. It was also highly necessary, considering that voluntariness constitutes an essential principle of mediation.

The support for the validation and implementation of settlement agreements stemming from mediation is the right step. It aligns seamlessly with the United Nations Convention on International Settlement Agreements Resulting from Mediation.

What are the concerning aspects of the Bill?

There are limited grounds listed in the Bill to challenge the enforcement of a settlement agreement and a period of 90 days is given to raise the challenge. It needs a relook.

A settlement agreement is essentially a contract between the parties. Sometimes, grounds for challenging are detected at a later stage.

There are also some technical flaws. Clause 8 of the Bill entitles a party to move the Court, before the commencement or during mediation, for interim relief, only in “exceptional circumstances”.

The phrase “exceptional circumstances” is lacking in definition within the Bill. It also deviates from the established norms of seeking interim relief in civil courts.

Moreover, there is no remedy of appeal available against an order passed under this proposed section. Even our arbitration regime provides an appellate recourse.

The Bill introduces the concepts of “online” and “community” mediation. A recent Niti Aayog report reveals that only 55% of India have access to the internet and only 27% possess compatible devices.

As for community mediation, the Bill makes it mandatory to have a panel of three mediators. This requirement is unnecessary and impacts the flexibility that mediation brings.

Government is the biggest litigant in the country. Limiting the government’s willingness to engage in mediation processes solely to “commercial disputes” contradicts the intent behind the legislation.

Way forward-

The standing committee has recommended that government-related disputes be included in the Bill. The Bill provided a golden opportunity to the government to change that perception.

This will inspire confidence amongst all stakeholders and help in reducing the pendency of backlog.

Mediation should be promoted as a preferred and voluntary mode of securing justice. The Bill is prescriptive.The regular individual will now need additional guidance and support to attain justice.

For online mediation, there is a need to scale the bandwidth accessibility to remote parts of the country. Setting up legal aid or access to justice clinics with adequate IT infrastructure could address this issue.