Introduction:India has a long history of mediation that goes back thousands of years. It has a strong foundation in the legal, intellectual, and cultural traditions of the nation. In various forms throughout Indian history, mediation has been used to settle disputes, and it is still used to resolve disputes today.
Why in News:
On September 15, 2023, the Ministry of Law and Justice formally announced the Mediation Act, of 2023. According to Section 89(1) of the Code of Civil Procedure from 1908, courts are free to recommend any type of conflict settlement procedure, including mediation. There are now mediation centers all over India as a result of the Indian courts’ widespread acceptance and implementation of this rule. Private mediation, however, lacked framework and official legal legitimacy, which reduced its efficacy and discouraged participation. The Mediation Act 2023 has been introduced to improve the effectiveness of mediation and create a thorough legal framework for its use in India in order to address these challenges. India has a long history of using Panchayats to settle community disputes, which contributed to the development of mediation. Although it was effective, mediation fell out of favor under the British administration, which increased disputes and slowed down the adversarial court system.
Ancient India:
Dharma and the Function of Mediators: Dharma, or moral obligation, played a crucial role in ancient Indian civilization. Conflict resolution through mediation was viewed as a way to uphold dharma. “Dharmasthas,” or respected individuals, were mediators who were essential in settling conflicts within communities.
Village panchayats: It is also known as local councils, were crucial in resolving conflicts at the local level. To resolve disputes and preserve societal harmony, these councils frequently used mediation. The panchayats’ decisions were based on community norms and customary rules.
Colonial and Mughal Periods:
In India, mediation was still a popular way to settle conflicts during the Mughal and colonial eras. The role of mediators was acknowledged by Islamic law (Sharia), and British colonial authorities recognized the value of regional customs, including mediation, in resolving disputes among the Indian populace.
Modern Context:
Mediation remained a respected and widely used method of resolving disputes after India attained independence in 1947 and enacted its constitution in 1950. In place of drawn-out judicial proceedings, mediation is now a part of the Indian legal system. The Arbitration and Conciliation Act of 1996 is just one of the rules and regulations that currently provide mediation a legal foundation.
Key Provisions of the current Act: –
The Mediation Act 2023 provides a legal framework for mediation practices, which represents a significant advancement in India’s dispute resolution system. The Act’s major sections need close examination.
1.Broadened Definition of Mediation (Section 2): The definition of mediation in the Act has been broadened to include a variety of formats, such as pre-litigation and online mediation, to bring it into compliance with international standards and take into account developing mediation practices.
2.Applicability of the Mediation Act (Section 3): The Act’s definition of the Act’s applicability, based on party characteristics, international involvement, or government participation, offers clarity in determining when mediation becomes mandatory or encouraged.
3.Enforcement of Mediated Settlement Agreements (Section 20): The inclusion of measures for implementing mediated settlement agreements in the Act increases the legitimacy of mediation. To guarantee efficacy, the Act calls for clearer enforcement processes, including opportunities for objections and appeals.
4.Pre-Litigation Mediation (Section 5): Pre-litigation mediation that is required promotes efficiency and cost savings. However, the Act should specify consequences, such as financial implications or other penalties, for parties who disregard pre-litigation mediation mandates.
5.Appointment of Mediators (Section 8): The Act permits the parties to choose the mediator at their own volition and even permits to choose foreign mediators which enhances the scope of settlement and consequently upgrade the country’s position in the Ease of Doing Business Index.
6.Role of Mediator (Section 16): To assist the parties to a disagreement in coming to a voluntary resolution is the role of the mediator. This entails supporting them in defining the issue, enhancing their comprehension of the dispute, outlining what is most crucial, looking into feasible agreements, and emphasising that the choice regarding their claims ultimately rests with them.
7.Time-limit (Section 18): The Act states that the mediation process must be finished within 120 days after the mediator’s initial appearance. If both parties agree, this date may be extended by a maximum of 60 days. The Act balances party autonomy by establishing set mediation times with the option of extensions.
8.Registration and Enforcement of Mediation Agreement (Sections 19 and 20): The Act mandates the registration of mediated settlement agreements, enhancing their enforcement. It requires a straightforward registration process, as well as penalties for non-registration, to achieve clarity and enforcement.
9.Grounds of Challenging Mediation Agreement (Section 28): Only certain grounds, such as fraud, corruption, impersonation, or if the mediation was held for a dispute that was judged inappropriate for mediation in accordance with Section 6 of the Act, may be used to challenge a mediated settlement agreement. Within 90 days of getting a copy of the agreement, the application for contesting it must be submitted. If the application is presented within an extra 90 days and there is a legitimate explanation for the delay, the court or tribunal may take it into consideration.
10.Online Mediation (Section 30): The Act permits online mediation at any stage of the mediation process, including pre-litigation mediation, as long as all parties agree to it in writing. This online mediation procedure may make use of a variety of electronic tools, such as protected chat rooms, encrypted email, and video or audio conferencing, among others. According to the Act, internet mediation must be handled in a way that always maintains the confidentiality and integrity of the proceedings. The mediator has the power to take appropriate action to guarantee the preservation of these aspects.
Key Lacunas: –
A.Pre-litigation mediation and online mediation are two types of mediation that lack thorough guidelines, which leads to inconsistency and ambiguity in their use.
B.The lack of a clear methodology in the Act for deciding whether conflicts that do not come under the suggestive list provided in Section 6 are appropriate could result in disagreements and uncertainty.
C.The lack of specific instructions for enforcing mediated settlement agreements impairs their capacity to be upheld in court and undermines parties’ faith in mediation.
D.Although the Act requires pre-litigation mediation, it does not specify what happens if parties don’t follow this obligation, which could undermine the mediation’s effectiveness.
E.Although the Act permits parties to choose foreign mediators, it does not provide a set of standards for credentialing international mediators, which causes differences in their qualifications and expertise.
F.The Act does not specifically address the function of mediators in suggesting settlement conditions; therefore, it needs to be clarified in order to comply with the parties’ consent.
G.The Act does not include procedures for handling mediation delays, creating gaps in how to handle cases where parties miss mediation deadlines.
H.To fill in these gaps, ensure the Act’s successful implementation, and promote mediation as an efficient conflict resolution method in India, clear and precise instructions, standardized procedures, and clarity on different aspects of mediation are required.
International Perspective:
A number of nations have passed mediation laws or created legal frameworks to support and govern the practice of mediation. Although the breadth and specifics of these laws vary, they usually offer a framework for the use of mediation as an ADR instrument.
United States: Federal and state-level mediation laws exist in the United States. A legislative foundation for mediation procedures is provided by the Uniform Mediation Act (UMA), a model law that has been adopted in various U.S. states. The Alternative Dispute Resolution Act, which was created by the federal government of the United States, also promotes the use of mediation and other ADR techniques. United Kingdom: The Civil Procedure Rules (CPR) and the Mediation Act of 2017, which is applicable to England and Wales, are two pieces of legislation that promote and govern mediation in the UK. The judicial systems in Scotland and Northern Ireland are independent.
Australia: Both the federal and state levels of Australia have laws governing mediation. Standards for mediators are determined by the National Mediation Accreditation System (NMAS), and each state has its own mediation programs.
Canada: Each of the country’s provinces and territories has its own laws governing ADR and mediation. For instance, the Civil Settlement Tribunal Act in British Columbia and the Mediation Act in Ontario both place a strong emphasis on online dispute settlement.
International Centre for Settlement of Investment Disputes (ICSID): The World Bank Group’s International Centre for Settlement of Investment Disputes (ICSID) offers a forum for the mediation of investment disputes between governments and international investors. Due to its flexibility and less combative style, mediation has grown in popularity as a method for settling investment disputes.
Suggestions
1.Extensive and complete Guidelines: To ensure consistency and efficacy in their application, provide extensive and complete guidelines for various forms of mediation, including pre-litigation mediation and online mediation.
2.Dispute suitability assessment: Create a method that is transparent and easy to understand for determining whether conflicts that aren’t specifically addressed in the suggestive list are appropriate under Section 6. By doing this, disagreements about whether a case needs to go to mediation will be avoided.
(The authors are 4th & 5th year Law Students in Himachal Pradesh National Law University, Shimla)
Please read concluding on thedailyguardian.com