draft meditation

Draft Mediation Bill 2021 Key points explained – Burning Issues – Free PDF Download

Draft Mediation Bill, 2021

  • Recently, GoI issued the Draft Mediation Bill for public consultation.
  • The Bill takes into contemplation the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably.

What is mediation

  • Mediation is an alternative method of resolving disputes without resorting to the courts.
  • It is a structured, voluntary and interactive negotiation process where a neutral third-party uses specialized communication and negotiation techniques to help the parties in fulfilling their stated objectives.
  • As a party-centred process, it focuses on the interests, needs and rights of the parties.

Mediation in India : Law

  • Mediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947.
  • In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to alternative dispute resolution (ADR) methods to settle pending disputes.
  • Under this, consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.
  • Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r. 5(f)(iii).
  • These allow the court to refer cases for mediation even when the parties are not ready for reference for mediation if there is an element of settlement.

Objective of the Bill :-

  • mediation to promote, encourage and facilitate mediation especially institutional solution of disputes commercial and otherwise
  • to enforce domestic and international mediation settlement agreements
  • provide for a body for registration of mediators
  • to encourage community mediation
  • to make online mediation as an acceptable and cost effective process and for matters connected therewith or incidental thereto

The main features of the Bill are:

  • The draft Bill proposes for pre-litigation mediation and at the same time safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case an urgent relief is sought.
  • The successful outcome of mediation in the form of Mediation Settlement Agreement (MSA) has been made enforceable by law.
  • Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
  • Provides for establishment of the Mediation Council of India.
  • Provides for community mediation.
  • The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
  • The registration of Mediation Settlement Agreement has also been provided for with State/District/Taluk Legal Authorities within 90 days to ensure maintenance of authenticated records of the settlement so arrived.

Why this Bill is necessary?

  • The search in India for a stand-alone mediation law has led to the formulation of the Draft Mediation Bill, 2021.
  • Since the laws on Mediation are contained in several enactments including Rules and Regulation, it was felt necessary to ascertain the present statutory framework on mediation and bring an umbrella legislation including amendments in the existing laws.

Definition of Mediation:

  • Section 4 of the Draft Bill partially builds on the definition of mediation in Article 2(3) of the Singapore Convention, formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation.
  • Section 4  states that “mediation means a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, conciliation or an expression of similar import, whereby parties request a third person or persons (the mediator) to assist them in their attempt to reach an amicable settlement of the dispute”.
  • Conciliation : The mention of the word “conciliation” in this definition is significant in light of there being a stand-alone law on conciliation, namely, the Arbitration and Conciliation Act, 1996.
  • Schedule IV to the Draft Bill proposes to substitute the provisions related to conciliation in the 1996 Act with the provisions of the Bill.

Types of Mediation:

Facilitative Mediation

  • In facilitative mediation or traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict.
  • Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In facilitative mediation, mediators tend to keep their own views regarding the conflict hidden.

Court-Mandated Mediation

  • Although mediation is typically defined as a completely voluntary process, it can be mandated by a court that is interested in promoting a speedy and cost-efficient settlement.
  • When parties and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.

Evaluative Mediation

  • Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations.
  • Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute.

Transformative Mediation

  • In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests.

med- Arb

  • In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, they typically agree in writing that the outcome of the process will be binding.
  • Next, they attempt to negotiate a resolution to their dispute with the help of a mediator.
  • If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. At this point, parties can move on to arbitration.
  • The mediator can assume the role of arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her judgments, either on the case as a whole or on the unresolved issues.
  • Alternatively, an arbitrator can take over the case after consulting with the mediator.

Arb- Med

  • In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts to mediate the parties’ dispute; and unseals and issues her previously determined binding award if the parties fail to reach agreement, writes Richard Fullerton in an article in the Dispute Resolution Journal.
  • The process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement, notes Fullerton.
  • Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the mediation.

E-mediation

  • In e-mediation, a mediator provides mediation services to parties who are located at a distance from one another, or whose conflict is so strong they can’t stand to be in the same room,
  • E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all.
  • But e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance, write the chapter’s authors.
  • Early research results suggest that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions.

Conclusion

  • The Bill offers great potential and a dynamic shift towards creating a method of dispute resolution that is well known to our society.
  • The power of mediation certainly needs to be harnessed and this Bill will provide a fertile soil for the same.
  • It should, however, be a crucial consideration that any change caters to all stakeholders across the country and across socio-economic strata and that it becomes a genuine way to resolve disputes.

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