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NAVIGATING INDIAS MEDIATION ACT 2023 A COMPREHENSIVE REVIEW, GLOBAL IMPLICATIONS, AND FUTURE ADR LANDSCAPE BY JAISMEEN KAUR
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NAVIGATING INDIA'S MEDIATION ACT
2023: A COMPREHENSIVE REVIEW, GLOBAL IMPLICATIONS, AND FUTURE ADR LANDSCAPE
AUTHORED BY - JAISMEEN KAUR
4TH YEAR LAW STUDENT AT
ARMY INSTITUTE OF LAW, MOHALI
Introduction
Mediation in India has a rich
historical backdrop, with community conflict resolution through Panchayats.
However, British rule led to a decline in mediation, causing an upsurge in
disputes within the legal system. The Code of Civil Procedure, 1908, opened the
door to alternative dispute resolution, including mediation. Despite the
existence of mediation centers, private mediation lacked structure and legal
recognition, prompting the proposal of the Mediation Bill 2021. The Act aims to
bolster the effectiveness of mediation and establish a comprehensive legal framework.
Background and Evolution
The journey began on August 7, 2019,
when India became an early signatory to the United Nations Convention on
Enforcement of International Settlement Agreements. The subsequent drafting of
the Mediation Act involved multiple stages, including the formation of
committees, public consultations, and parliamentary scrutiny.
Legislative Process and Committee
Recommendations
The drafting committee, constituted
by the Supreme Court, initiated the process, leading to the presentation of
draft bills in August and October 2021. The bills underwent public scrutiny
before being introduced in the Rajya Sabha on December 20, 2021. A crucial step
in this process was the examination and recommendations provided by the
Department-related Parliamentary Standing Committee on Personnel, Public
Grievances, Law, and Justice.
1.
Expert Committee and Finalization
Following the
parliamentary committee's report in July 2022, an expert committee was
appointed to refine the bill. The culmination of these efforts resulted in the
introduction of the Mediation Act 2023 in the Rajya Sabha on August 1, 2023.
2.
Key Provisions of the Mediation Act:
The Mediation Act
prioritizes the promotion and facilitation of mediation, emphasizing
institutional[i], online[ii],
and community mediation[iii].
It tackles the enforcement of mediated settlement agreements and proposes the
establishment of a regulatory body for mediator registration.
3.
Expanding the Scope of Mediation
To align with international
practices, section 3(h) of the Mediation Act broadens the definition of
mediation to encompass pre-litigation mediation, online mediation, and
community mediation, treating mediation and conciliation interchangeably.[iv]
4.
Applicability of the Mediation Act
As per section 2, the
Mediation Act applies to mediations conducted in India, covering parties
residing, doing business, or having an international commercial dispute in
India.[v]
However, it excludes mediations conducted outside India, signaling a potential
gap in enforcing settlement agreements arising from such mediations.
5.
Matters Fit for Mediation
The Mediation Act
delineates disputes not fit for mediation, including those involving minors,
criminal offenses, tax matters, and specific regulatory proceedings. It also
extends the scope to cover compoundable offenses, including matrimonial
disputes.List of matters not fit for mediation has been enumerated in first
schedule.[vi]
6.
Mediation Agreement
The agreement can take
various forms, including a clause in an agreement or a separate document.
Parties can opt for mediation even after a dispute arises, promoting
flexibility in the resolution process.[vii]
7.
Pre-Litigation Mediation and Court's
Power to Refer
Recognizing concerns, the
Mediation act allows voluntary pre-litigation mediation. Courts or tribunals
can refer parties to mediation at any stage[viii],
irrespective of a pre-existing mediation agreement.[ix]
8.
Interim Orders for Protection
The Mediation Act
empowers the court or tribunal to issue interim orders during mediations,
ensuring the protection of parties' interests[x].
However, it lacks specificity compared to Section 9 of the Arbitration &
Conciliation Act, 1996.
9.
Appointment of Mediators
Mediators can be of any
nationality, chosen through mutual consent. Foreign mediators must meet
prescribed qualifications and accreditation criteria.[xi]
The mediator must disclose conflicts of interest, with parties having the
option to waive such conflicts in writing.[xii]
10.
Mediation Proceedings: An Overview
The Act allows mediation
to take place within the court's jurisdiction or any mutually agreed place.
Online mediation is also permissible with parties' written consent, providing
flexibility beyond the confines of the Code of Civil Procedure or the Indian
Evidence Act.[xiii]
11.
Time-Limit and Confidentiality
Setting a time limit of
120 days for mediation proceedings, extendable by mutual agreement up to 60
days, strikes a balance between party autonomy and procedural efficiency.
Parties and participants must maintain confidentiality, with discussions barred
from use as evidence in other proceedings.[xiv]
12.
Mediated Settlement Agreements: Form,
Registration, Enforcement, and Challenge
The agreement must be in
writing, signed by all parties, and authenticated by the mediator. Parties can
register the agreement[xv],
making it final and binding, enforceable as a decree or judgment. Grounds for
challenging include fraud, corruption, impersonation, or if the subject matter
was not subject to mediation[xvi].
13.
Institutional Mediation under the
Mediation Act[xvii]
Mediation Service
Providers[xviii],
including organizations and court annexed mediation centers, can conduct
mediation. The Mediation Council of India will regulate and accredit mediators,
maintaining an electronic depository of mediated settlement agreements.[xix]
14.
Amendments to Existing Statutes
Sections 58-65 of the
Mediation Act propose amendments to various statutes, ensuring alignment with
the new framework and reflecting a commitment to a comprehensive alternative
dispute resolution (ADR) ecosystem.
15.
International Mediation: Omissions
and Concerns
Despite India's
commitment to the Singapore Convention, the Mediation Act does not include
provisions for the enforcement of international settlement agreements. This
omission raises concerns about India's position in the global dispute
resolution landscape and its impact on investor confidence and foreign
relations.[xx] The Parliamentary Standing Committee expressed
its opinion that the exclusion of provisions for international mediation
compromised the Act's purpose. While acknowledging the government's concerns
about potential conflicts with domestic laws, the Committee recommended
revisiting the definition of "International Mediation" to incorporate
Singapore Convention provisions without ambiguity.
Despite the Committee's
recommendation, the Act omitted the enforcement of international MSAs. Section
2(iii) specifies that the Act applies even to international mediations
conducted in India, but the absence of specific provisions for enforcement
raises concerns. This gap could dissuade parties from engaging in international
mediations involving Indian entities, as the resulting MSAs would lack
enforceability in India.
The consequences extend
beyond individual disputes. The failure to include provisions for enforcing
international MSAs undermines India's commitment to the Singapore Convention,
signaling a potential withdrawal from the treaty indirectly. This could impact
India's standing in the international dispute resolution landscape and hinder
the development of harmonized legal frameworks supporting settlement agreements
resulting from mediation.[xxi]
16.
Domestic Mediation: Provisions and
Oversights
While the Act aligns with
international mediation practices for domestic disputes, certain oversights
require attention. The voluntary approach to pre-litigation mediation lacks
specificity regarding disputes covered under a mediation agreement. [xxii]The
absence of a provision analogous to Section 8 of the Arbitration &
Conciliation Act, 1996, leaves a gap in referring parties to mediation based on
existing agreements.
17.
Refining Periods of Limitation
While Section 29 of the
Act, excluding the period of limitation during mediation, is commendable,
oversight in situations where a mediated settlement is set aside by the court under
Section 28 needs attention.
18.
The Road Ahead: Toward Comprehensive
ADR Legislation
The Mediation Act
represents progress in institutionalizing mediation, but there is room for
improvement. A unified ADR framework covering arbitration and mediation for
both domestic and international disputes is crucial. This could streamline
accreditation processes, avoiding conflicting policies and court orders.
Conclusion: Striking a Balance
While the Mediation Act 2023 marks
progress in institutionalizing mediation in India, balancing domestic and
international considerations is essential. Addressing oversights, refining
pre-litigation provisions, and envisioning a unified ADR framework will enhance
the Act's effectiveness. This comprehensive approach holds the potential to
position India as a leading hub for both domestic and international dispute
resolution, fortifying its global reputation in alternative dispute resolution.
[i] 3(f) "institutional mediation" means mediation conducted
under the aegis of a mediation service provider;
[ii] Section 30, Mediation Act,2023
[iii] Section 43, Mediation Act,2023
[iv] Section 3, Mediation Act,2023
[v] Section 2, Mediation Act,2023
[vi] Section 6, Mediation Act,2023
[vii] Section 4, Mediation Act,2023
[viii] Section 7, Mediation Act,2023
[ix] Section 5, Mediation Act,2023
[x] Section 7, Mediation Act,2023
[xi] Section 8, Mediation Act,2023
[xii] Section 10, Mediation Act,2023
[xiii] Section 13, Mediation Act,2023
[xiv] Section 18, Mediation Act,2023
[xv] Section 20, Mediation Act,2023
[xvi] Section 19, Mediation Act,2023
[xvii] 3(f) "institutional mediation" means mediation conducted
under the aegis of a mediation service provider;
[xviii] Section 40 & 41, Mediation Act,2023
[xix] Section 38, Mediation Act,2023
[xx] Section 3(g), Mediation Act,2023
[xxi] https://www.livelaw.in/articles/dawn-of-mediation-relief-for-justice-234501#:~:text=In%20the%20Indian%20scenario%2C%20mediation,and%20impartial%20manner%20in%20their
[xxii] Section 5, Mediation Act,2023
Article Information
NAVIGATING INDIAS MEDIATION ACT 2023 A COMPREHENSIVE REVIEW, GLOBAL IMPLICATIONS, AND FUTURE ADR LANDSCAPE BY JAISMEEN KAUR
Authors: JAISMEEN KAUR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
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International Journal for Legal Research and Analysis
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