Abstract
The Indian judiciary in overburdened with the black log of cases, because of which justice is delayed and strained resources. To address this challenge ADR mechanism have gained prominence, the enactment of Mediation act signifies a formal recognition and structured approach to mediation in India.
Mediation in India prior to 2023 was being conducted under the ages of mediation Rules which are framed by the Supreme Court and various High Courts across the state. Mediation process can be traced back to Panchayat or Sabha resolved disputes at the community level which isa early form of dispute resolution rooted in consensus and fairness. However, after September 2023, with the coming of the Mediation Act in India mediation are governed by the provisions of the said Act and the Rules are now having a persuasive value as codified law always prevails.
Introduction
The Mediation Act 2023 was enacted on 14th September 2023, this is a step towards establishing and encouraging ADR mechanisms by ministry of Law and Justice and department of Legal Affairs, it provides framework that is conducive to the use of mediation. It is a progressive step, and the act has placed it parallel to the Arbitration and Conciliation Act 1996. It contains 12 chapters; 65 Sections & 10 schedules and it enforced on 09 October 2023.
The main objective of the act can be concluded from its preamble which states:
‘An act to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediators and to make online mediation as acceptable and cost effective process and for matters connected therewith or incidental thereto’[1].
Key provisions of the Act
Section: 3(h)[2] of the act defines ‘mediation’ as: a process whereby the parties attempt to reach an amicable settlement of their disputes with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute.
There has been an expansion in scope of mediation as it recognises pre-litigation mediation, online mediation, community mediation and conciliation. It has amended the Arbitration and Conciliation Act 1996 by section 61 and 6th schedule[3].
Section: 3(i)[4] defines ‘mediator’, the person or more than one person may be appointed to be a mediator by the parties themselves or by the mediation service provider. The mandatory condition is that the person(s) should be registered as a mediator with the council.
Section: 4(1)[5] provides for the mediation agreement, that shall be in writing and signed by the parties and anyone claiming through them. In clause 2 it says that they may also be in a mediation clause within the control separately.
Section: 5[6] – Pre-Litigation Mediation: It is a kind of mediation where parties voluntarily by mutual consent choose mediation to settle their disputes by pre-litigation mediation. Section 5(1)&(2) provides four ways the mediator shall conduct the pre-litigation mediation.
Pre-litigation mediation can also be applied to the matters pending before a tribunal.
Section: 6[7] states dispute or matters which are not fit for mediation, read with first schedule (Entry 3). It excludes those disputes which are criminal in nature or matters not fit for mediation. In light of this recent judgement, this view is contradictory. For instance in K. Srinivas Rao vs. D.A Deepa[8], the court said that ‘the criminal courts dealing with complaint under the section 498-A of BNS 2024 should at any stage before they take up the complaint for hearing , refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing.
Section: 7(2)[9]– interim orders, it says if the court or tribunal refers the parties to undertake mediation, it may pass a suitable interim order to protect the interest of any party if deemed appropriate.
Section: 8[10] specifically provides for the appointment of mediators who can be of any nationality. The parties have the autonomous to choose their mediators ans the procedure for the appointment of mediators. If the parties cannot select the mediator themselves, they can apply for appointment of mediator to the mediation service provider.
Section:18[11] provides the time limit for the completion of the mediation within 120 days with an extension of 180 60 days.
Section:19[12] talks about the Mediation settlement agreement, any agreement in writing among the parties because of mediation settling some or all of the disputes, authenticated by the mediator, it should be signed by the parties and to maintain the record mediation settlement agreement can be registered under the authority or body made by central government and it will issue a unique registration number, it can be done within 180 days from the date of authentication according to section 20 of the act.
Section: 22[13] talks about the confidentiality from all the stakeholders like the mediator, mediation service providers, parties and participants in the mediation.
Section: 24[14], termination of mediation can happen on the grounds:
- Signing and authentication of the mediated settlement agreement
- Written declaration of the mediator that the efforts of the mediation are no longer justified
- Opt out of the mediation by the parties in written willfully
- On expiry of the time limit
Section:27[15]– enforcement of mediation settlement agreement, it makes the mediated settlement agreement final and binding in the parties and the person claiming under them, before this mediation settlement agreement was not having enforceable value.
Section:28[16] challenges to mediation settlement agreement, act provides the grounds on which the mediation settlement agreement may be challenged, which are-
- Fraud
- Corruption
- Impersonation
- Where the mediation was conducted in disputes or mattered not fit for mediation as stated in section 6.
Section: 30[17] -Concept of online mediation, the act aims at making online mediation acceptable as the other forms of mediation and cost efficient.
Conclusion
To sum up, India is aligned to global best practices through the Mediation Act, 2023 which ensures fast, inexpensive, and easy dispute resolution. While the Act marks important progress in legislation, execution, training of mediators, and acceptance by the populace will determine how successful the legislation is. In the long run, acknowledging issues and reforming them will be vital in making mediation the preferred option for dispute resolution in India.
[1] Long Title, The Mediation Act 2023.
[2] Section 3, TheMediation Act 2023.
[3] Section 61 and schedule 6th, TheMediation Act 2023.
[4] Section 3, TheMediation Act 2023.
[5] Section 4, TheMediation Act 2023.
[6] Section 5, The Mediation Act 2023.
[7] Section 6, The Mediation Act 2023.
[8] K Srinivas Rao vs DA Deepa (2013) Supreme Court of India Civil Appeal No.1794 of 2013.
[9] Section 7, The Mediation Act 2023.
[10] Section 8, The Mediation Act 2023.
[11] Section 18, The Mediation Act 2023.
[12] Section 19, The Mediation Act 2023.
[13] Section 22, The Mediation Act 2023.
[14] Section 24, The Mediation Act 2023.
[15] Section 27, The Mediation Act 2023.
[16] Section 28, The Mediation Act 2023.
[17] Section 30, The Mediation Act 2023.
Author: Vedika Prakash is a BA LLB hons student at School of Law, UPES Dehradun.
