Decoding The Mediation Act
Globally, mediation is becoming increasingly popular as an alternate dispute resolution method. In India, mediation has never been new. Community conflict resolution through Panchayat mediation has a long history and is still the favoured method. In addition to seeking to resolve an increasing number of cases, the Government and the Courts have been striving to find a solution so that the dispute does not go to court. The stronger ADR, or alternative dispute resolution, is presumably the same. The recently passed Mediation Act, of 2023, is a progressive legislation designed to facilitate swift and amicable resolution of disputes. The parties to a disagreement are satisfied when it is settled through alternative dispute resolution (ADR) since it is a quick, affordable, voluntary, and transparent process. However, resolving a dispute through the legal system has additional ramifications. The parties always have a win-win scenario as a result of the above-mentioned features, which lead to the amicable resolution of problems during the mediation.
The parties would have an effective tool in the new law that would permanently put an end to the dispute, and credit for it would go to the stakeholders who have understood the value of this process and have worked tirelessly to obtain official recognition for cooperation, communication, reconciliation, and problem-solving.
During the British administration, the use of mediation declined, which resulted in a rise in disputes and a backlog in the adversarial court system. Courts are authorized to recommend arbitration, conciliation, judicial settlement, or mediation as a means of resolving disputes under Section 89(1) of the Code of Civil Procedure, 1908. The courts recognize and apply this with ease. In India, mediation centres have been established. Nevertheless, involvement in private mediation was discouraged due to its lack of legal recognition and organization. In response, the Mediation Bill 2021 was put out to improve mediation's efficacy and offer a thorough legal foundation. The Singapore Convention on Mediation, or "Singapore Convention," was signed by India on August 7, 2019, but it has not yet been ratified. As a result, the Mediation Act does not incorporate the Singapore Convention on Mediation, which is comparable to the Arbitration and Conciliation Act, 1996 ("A&C Act")'s acceptance of the "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards." The Singapore Convention considers and offers a framework for the implementation of settlement agreements reached through international mediation across national borders. The Rajya Sabha acquired the Mediation Bill, 2021 on December 20, 2021, and on December 21, 2021, the Standing Committee on Personnel, Public Grievances, Law & Justice ("Standing Committee") was tasked with reviewing it. On July 13, 2022, the Standing Committee released its 117th Report on the Mediation Bill (the "Report"), which included certain proposals for changes to the provisions. The Union Cabinet accepted some of these recommendations. On August 02, 2023, the Rajya Sabha and August 07, 2023, the Lok Sabha passed the Mediation Bill 2023, also known as the "Mediation Bill." On September 15, 2023, the President signed the Mediation Bill into law, which will henceforth be referred to as the "Mediation Act 2023" or "Mediation Act."
An already overworked judicial system is expected to feel some relief from the Act, which was enacted to "promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for the registration of mediators, to encourage community mediation and to make online mediation as an acceptable and cost-effective process and for matters connected therewith or incidental thereto."
- Definition: The goal of the Mediation Act 2023 is to formally include pre-litigation, e-mediation, and conciliation mediation under the concept of "mediation." This would have the effect of eliminating the notion of conciliation, in keeping with the international practice of interchangeably using the terms "mediation" and "conciliation," as the Supreme Court of India has done in the past and as stated in the Singapore Convention.
- Mediation Agreement: As long as it is on paper, a mediation agreement can be a separate agreement or a clause in a separate contract.
- Applicability: The Mediation Act will take effect for mediations held in India upon notification. For example, it would be relevant in mediations where: 1) Everybody involved regularly resides, is incorporated, or operates their firm in India, or 2) The implementation of the act is imported by the mediation agreement, or 3) an international mediation is conducted in connection with a commercial dispute, given that one of the parties is a person who is a national or who regularly resides in a nation other than India, or a body corporate, association, or group of people that has an office outside of India, or 4) In addition, only business disputes or other conflicts as notified would be covered by the Mediation Act when one of the parties is the Central or State Government or any entity/body controlled or owned by such Government.
- Period: The Act stipulates that mediation procedures must be finished within 120 days of the first appearance before the mediator; this time limit may be extended for a maximum of 60 days.
- Interim Order: If the court or tribunal determines that it is appropriate, it may issue one or more appropriate interim orders in these court-referred mediations to safeguard the interests of either party. In contrast to Section 9 of the A&C Act, the Mediation Act does not define the type or scope of such interim orders.
- Settlement Agreement: The parties will reduce the terms of settlement to a written agreement that is signed by both parties and properly authenticated by the mediator when the mediation has been satisfactorily completed (about all or parts of the disputes referenced). An uncontested Mediation Settlement Agreement can be enforced in line with the Code of Civil Procedure, 1908, just like any other court decision or decree, once it has been verified.
Despite being a crucial step toward integrating mediation into the judicial system, the Mediation Act of 2023 has drawn criticism. For some reasons, such as fraud, corruption, impersonation, or when the mediation was held in connection with disputes or subjects not appropriate for mediation under Section 6, Section 28 of the Mediation Act permits contesting mediated agreements. With a potential 90-day extension, challenges must be submitted within 90 days of obtaining the agreement. The fact that challenges are restricted and do not cover pressure, duress, or post-limitation fraud discovery is troubling, though. Moreover, non-signatories are unable to contest, which presents a problem for the framework. Though it doesn't fully address some practical concerns, it's a big step toward formalizing and improving mediation methods.
Perhaps this is a really wise move on the part of the legislative authority. One of the greatest laws passed in recent memory would be achieved if it were appropriately executed through the drafting of regulations. The act seeks to expedite legal procedures, encourage collaboration and cooperation amongst parties involved in disputes, and promote mediation as the principal means of settling disputes. The Act is a step toward a harmonious, successful, and efficient method of resolving disputes.