Search
Close this search box.

“The process of talking to two separate people or groups involved in a disagreement to try to help them to agree or find a solution to their problems”
-Meaning of ‘Mediation’, Cambridge Dictionary

On November 5 2021, the Ministry of Law and Justice released the draft of the Mediation Bill, 2021 (“Draft Bill”) which comprises 51 pages and includes 7 Schedules. The Draft Bill is modelled substantially on the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”). The objective is to position India as a strong centre for Alternate Dispute Resolution (ADR) and adhere to the Singapore Convention as it is a signatory since August 7, 2019.

THE GOOD AND THE BAD AND THE INCLUSIVE

To position itself as a strong destination for FDI and commercial collaborations of larger businesses, India has to offer a sustainable solution to dispute resolution to both, businesses and international commercial contracts. It is evident from its framing, that the Central Government is keen on keeping a close vigil on the process and degree of dominance in the management of formalising mediation in India for the first time.

The construct of the Mediation Council of India and the specific appointments thereunder, empowering the Lok Adalats’ role in court annexed mediation, establishing a consortium of trained and accredited mediators are all promising processes. Although the limited grounds to challenge the Council’s decision and autonomy in decision making could lead to excessive government control with reduced flexibility, mediation could benefit from.       

The Draft Bill has included other enactments, to land an inclusive outcome.

PRIMARY STRUCTURE

The Draft Bill has 4 parts with detailed provisions on formalising the process of mediation, with thresholds for quality of mediators, mediation service providers, centralised mediation council in India and a detailed layout for Mediated Settlement Agreement, domestic and international.

The Draft Bill aims at formalising mediation through constructs of organisations, body corporate, consortiums of mediators and custodians of procedures improve the quality of mediators and improvised processes for the conduct of the mediation.

It introduces:

It protects:

It formalises:

Some other features include:

CONFIDENTIALITY IN THE MEDIATION PROCESS
Only in the following circumstances can the mediation process be made known to others:

Enforcement of International Mediated Settlement Agreements can be refused by a High Court on grounds of contravention with public policy, among others.

COMPOSITION OF THE MEDIATION COUNCIL OF INDIA

The Mediation Council of India will be a body corporate to be headquartered in Delhi. The Bill provides for its establishment by the Central Government by notification in the official Gazette with a common seal and in perpetuity with rights to hold movable and immovable property.

Appointments under the Council would be made by the Central Government:

The Chairperson and the Full-Time Members are empowered to hold the office for a term of 4 years from the date of appointment and are eligible for reappointment. Although the Chairperson and the Full-Time Members cannot hold the office beyond 70 and 67 years of age, respectively. The salaries and allowances of these appointments can be determined by the Central Government.

The Council is heavily empowered, acts or proceedings of the Council cannot be considered invalid due to:

The Council is expected to frame policies and guidelines to promote domestic and international mediation, frame rules for the conduct of mediation, lay norms for accreditation, education and certification of mediators, develop India as a centre for mediation, manage the mediators and lay ethical conduct for mediators (Section 42). With the significant chunk of the burden of the Draft Bill being placed in the Council, it will build dependency on one hand and on the other, cultivate centralisation.

At the Community Mediation level, a District Magistrate or the Sub-Divisional Magistrate is empowered to constitute a panel of mediators under the State, District or Taluka Legal Services Authority along with women representation.

DISPUTES WHICH CANNOT BE MEDIATED ON

Disputes involving:

CONCLUSION

Up until now, India not only did not have a dedicated statute to mediation, it had sporadic mentions in the Arbitration and Conciliation Act, 1996 (Section 30), along with the Industrial Disputes Act, 1947 (Section 4), the Mediation and Conciliation Rules, 2004 as framed by the DHC; and the Code of Civil Procedure, 1908 (Section 89 r/w Order X Rule 1-A)

This mention in the CPC got shot down in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd, SC, 2010, where the SC found Section 89 lacking in clarity and offering a clear platform for a case for mediation. The absence of uniform rules of procedure for mediation, would additionally render implementation, difficult.

Ten years later, India has its Draft Bill!

This is only for informational purposes. Nothing contained herein is, purports to be, or is intended as legal advice and you should seek legal advice before you act on any information or view expressed herein.
Endeavoured to accurately reflect the subject matter of this alert, without any representation or warranty, express or implied, in any manner whatsoever in connection with the contents of this. This isn’t an attempt to solicit business in any manner
.
Source: Legalaffairs.gov.in

Leave a Reply

Your email address will not be published. Required fields are marked *

Acknowledgements & Disclaimers

  • This website with its’ contents, are not advertisement, personal communication, solicitation, invitation, or inducement to legal advice or legal advice from Tag & Bench Associates (the “Firm”) or its founder or other members of the Firm;
  • It does not create an attorney-client relationship;
  • The Firm owns intellectual property rights in the website and its’ contents made available for information, only and Firm does not assume any responsibility for the accuracy and completeness of the same. The Firm has full right to proceed against infringers;
  • User will be governed under applicable laws or regulations of India;
  • The Firm does not collect any personal data other than cookies captured when you visit the website;
  • The Firm cannot undertake any legal representation through this website. Users are discouraged from sending any confidential information.