The Mediation Bill, 2021

In news– Parliamentary Standing Committee has submitted a report on the Mediation bill recently.

Recommendations-

The Committee has recommended substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

Key features of the bill-

The Bill aims to promote, encourage, and facilitate mediation, especially institutional mediation, to resolve disputes, commercial and otherwise.
It proposes mandatory mediation before litigation. At the same time, it safeguards the rights of litigants to approach competent adjudicatory forums/courts for urgent relief.
The mediation process will be confidential and immunity is provided against its disclosure in certain cases.
The outcome of the mediation process in the form of a Mediation Settlement Agreement (MSA) will be legally enforceable and can be registered with the State/district/taluk legal authorities within 90 days to ensure authenticated records of the settlement.
The Bill establishes the Mediation Council of India and also provides for community mediation.
Its functions include registering mediators, and recognising mediation service providers and mediation institutes (which train and certify mediators).
The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
A party may withdraw from mediation after two mediation sessions.
The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.
The Bill lists disputes that are not fit for mediation (such as those involving criminal prosecution, or affecting the rights of third parties). The central government may amend this list.

What are the concerns with the Bill?

According to the Bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court, whether or not there is a mediation agreement between them.

Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost.

However, as per Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted. Mediation should just be voluntary and making it otherwise would amount to denial of justice.
Additionally, according to Clause 26 of the Bill, court-annexed mediation, including pre-litigation mediation, will be conducted in accordance with the directions or rules framed by the Supreme Court or High Courts.
However, the Committee objected to this. It stated that Clause 26 went against the spirit of the Constitution.
In countries that follow the Common Law system, it is a healthy tradition that in the absence of statutes, apex court judgments and decisions carry the same weight.
The moment a law is passed however, it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, Clause 26 is unconstitutional.
Furthermore, the Bill considers international mediation to be domestic when it is conducted in India with the settlement being recognised as a judgment or decree of a court.
The Singapore Convention does not apply to settlements that already have the status of judgments or decrees.