AN OVERVIEW OF THE MEDIATION BILL 2021
On December 20, 2021, the Rajya Sabha introduced the Mediation Bill, 2021. Mediation is a type of alternative dispute resolution (ADR) in which parties try to resolve their disagreements outside of the courts with the help of an impartial third party (mediator). The bill aims to promote mediation (including online mediation) and ensure that settlement agreements reached through mediation are enforced.
Although the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019, all recognise mediation, there is no single legislation in India.
FEATURE OF MEDIATION BILL
Applicability: The Bill will apply to mediation proceedings conducted in India where: I all parties reside in, are incorporated in, or have their place of business in India; (ii) the mediation agreement specifies that mediation will be conducted in accordance with this Bill; or (iii) there is an international mediation (i.e., mediation involving a commercial dispute in which at least one party is a foreign government, a foreign national/resident, or an entity with its place of business outside India If a federal or state government is a party in certain situations, the Bill will only apply to (a) commercial disputes and (b) other disputes that the government has notified.
Pre-litigation mediation: In the event of a civil or commercial disagreement, a person must attempt to resolve the matter through mediation before going to court or specific tribunals as required. Even if the parties are unable to achieve an agreement through pre-litigation mediation, the court or tribunal may refer the parties to mediation at any point throughout the proceedings if they want it.
Mediation procedure: The mediation process will be kept private. After the first two mediation sessions, a party may withdraw from the process. Even if the parties fail to reach an agreement, the mediation process must be completed within 180 days, which may be extended by the parties for another 180 days. In the case of court-annexed mediation (i.e., mediation performed at a mediation centre established by a court or tribunal), the process must follow the Supreme Court or High Court's directions or norms.
PROVISIONS OF THE MEDIATION BILL, 2021:
Section 7 of the Bill says that courts will be competent to refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.
Section 44 of the Bill provides for ‘any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality, to be settled through community mediation.
Section 320 in the Code of Criminal Procedure (CrPC) provides for the compounding of certain criminal offences which shall have the effect of acquittal of the accused.
There are about 43 criminal offences, from body offences to property offences, which can be compounded by the victim, and about 13 offences (of comparatively greater gravity) which can be compounded with the permission of the court.
Here, the policy of the law is to promote friendliness between the parties so that peace between them is restored. A case may be compounded any time before the sentence is pronounced.
If a local conflict has the potential to devolve into a law and order problem, resulting in the filing of a criminal case or cases, community mediation could help. Many serious crimes are the result of minor arguments that are either not dealt with correctly or are left neglected. Though the proposed law's primary goal is to use mediation to resolve civil and commercial disputes, it also has the potential to reduce some of the load on police enforcement. As a result, the proposed law of mediation, which has the capability of not only preventing law and order breakdowns through community engagement but also of smoothing the path to the compounding of certain criminal offences, may eventually ease some of the burdens on the police.