Mediation (or Samadhan) has been a part of Indian culture since time immemorial. Circa: 3139 BC, a conflict arose between two groups of cousins, the Pandavas and Kauravas for the throne of Hastinapur. It was then that Lord Krishna played the role of a mediator and pitched a proposal for an alliance between the cousins and for a flourishing kingdom. As per the legend, his diplomatic efforts were not successful and the war was inevitable.

Several centuries on, amidst other hostilities in Parliament, the Mediation Bill, 2021 was passed by the Rajya Sabha on August 1, 2023 - 20 months after it was first introduced. The intervening period saw the Bill being referred to the Parliamentary Standing Committee for recommendations, which eventually culminated in the form of a report which was presented on July 13, 2023. India is now on the cusp of having a dedicated legislation governing mediation.

For a country having a backlog of over 4.5 crore cases, it cannot be disputed that mediation needs to be promoted as an alternate means of dispute resolution. Not only this, but, it is also important that mediation is reintegrated into our value system, at the expense of the Anglo-Saxon method of dispensation which we have inherited from the British. The question which therefore beckons is whether the Mediation Bill, in its current text, can help attain this objective.

For starters, the Union Cabinet has done well to accept the recommendations of the Standing Committee by reducing the time period for concluding a mediation from 180 to 90 days. The recommendation for making pre-litigation mediation voluntary instead of mandatory was also much needed as voluntariness is a quintessential principle of Mediation.

Recognition and enforcement of settlement agreements arising out of mediation is a welcome move. This is also in line with India’s commitment as a signatory to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention). That being said, the limited grounds enlisted to challenge the enforcement of a settlement agreement and the fact that a period of 90 days is given to raise the challenge needs a relook. One must not lose sight of the fact that a settlement agreement is essentially a contract between the parties - there are several instances where grounds for challenge such as fraud and impersonation are detected at a later stage. Our limitation laws rightly give a 3-year window to initiate proceedings from the date of cause of action - the exception afforded to settlements under the Bill may render grieving parties remedy-less on the ground of delay alone.

Aside from this, there are some technical flaws which need to be reviewed. For instance, Clause 8 of the Bill entitles a party to move the Court, before the commencement or during mediation, for interim relief, only in ‘exceptional circumstances.’ The term ‘exceptional circumstances’ is not only undefined in the Bill but is also anomalous to the settled principles of seeking interim relief before the civil courts i.e. establishing prima facie case, balance of convenience and irreparable injury. Moreover, there is no remedy of appeal available against an order passed under this proposed section. Even our arbitration regime provides an appellate recourse in its corresponding provision.

The Bill introduces concepts of ‘Online’ and ‘Community’ mediation. As regards, online mediation, a recent report of Niti Aayog reveals that only 55% of India have access to the internet and only 27% possess compatible devices. For online mediation to be a success, we will have to scale our bandwidth accessibility to remote parts of the country. Setting up legal aid or access to justice clinics with adequate IT infrastructure could be one way of addressing this issue. As for Community Mediation, the Bill makes it mandatory to have a panel of 3 mediators. This requirement is unnecessary and impinges on the flexibility aspect that mediation brings.

Now for the elephant in the room! The government is the largest litigant in the country. Restricting the amenability of the government to participate in mediation proceeding arising only out of ‘commercial disputes’ goes against the very objective of enacting the legislation. The Standing Committee had also recommended that government related disputes be included under the Bill. The common litigant sees the government as an adversary before the court of law. The Bill provided a golden opportunity to the government to change that perception. This would not only had inspired confidence amongst all stakeholders but would have also helped in reducing our pendency backlog.

Mediation should be promoted as a preferred, peaceful and voluntary mode of securing justice. The Bill is way too prescriptive making it more like another branch of law. Whilst the fraternity of lawyers and aspiring mediators gain a viable career option, it may very well have come at the expense of the ordinary citizen - who will now require even more handholding to get justice. The Bill is more on form than on spirit and in the words of L.J Warren (14th Chief Justice of the United States), ‘it is the spirit and not the form which keeps the justice alive’.

By - Arush Khanna