Realizing Mediation Potential in India
- The Chief Justice of India (CJI), speaking at the India-Singapore Mediation Summit in July 2021 had said that mediation should be made mandatory as a first step in dispute resolution and that a law should be framed in this regard.
- The context was the huge pendency of cases in India. In his speech called “Mediation for everyone: Realizing mediation’s potential in India”, CJI emphasized the point that a movement needs to be launched to popularize mediation as it was a cheaper and faster dispute resolution mechanism.
- CJI also expressed that courts should be the last resort for dispute resolution; therefore, one should explore the options of alternate dispute resolution.
- It is undisputed that many civil or commercial disputes are given the colour of a criminal offence and reported to the police so that they get resolved under the fear of arrest.
- Many criminal offences are a result of the fact that civil or commercial disputes could not be resolved amicably and in time.
Indian Laws which gives scope:
- In India, though mediation finds legitimacy in some specific laws such as 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, there is no standalone legislation as yet.
- The Tamil Nadu Mediation and Conciliation Centre, an initiative of the Madras High Court and India’s first court-annexed facility with a mediation center in every district, which was inaugurated in 2005 has significantly reduced the pendency of referred cases.
The Mediation Bill, 2021:
- The Mediation Bill, 2021, introduced in Parliament in December 2021, seeks to ‘promote mediation (including online), and provide for enforcement of settlement agreements resulting from mediation’.
- In case of civil or commercial disputes, a person must try to settle the dispute by mediation before approaching a court or tribunal.
- Disputes not fit for mediation inter alia include those relating to prosecution for criminal offences, disputes involving allegation of serious and specific fraud, fabrication of documents, forgery, impersonation and coercion.
- However, there are certain provisions in the Bill which may help in improving the law and order situation in a locality and/or encourage compounding of criminal offences.
Issues that need to be addressed:
- There is no comprehensive law: Although the ADR mechanism of mediation is mentioned in several existing laws, there is no comprehensive law controlling all aspects of mediation.
- Open-ended and ambiguous: The drafters have left certain elements open-ended and ambiguous, which must be addressed urgently.
- Lack of infrastructure: India does not have enough infrastructure for mandated mediation, such as a number of mediators and mediation centers.
- Forcing unwilling parties to participate in mediation can be detrimental.
- If any local dispute has the potential to create a law and order situation, and result in the registration of a criminal case or cases, those could be avoided through community mediation.
- It is true that many serious offences are the outcome of minor disputes which are either not tackled properly or left unattended.
- Though the proposed law primarily intends to resolve civil and commercial disputes through mediation, it has ample scope to relieve some of the pressure on law enforcement agencies.
- Therefore, the proposed law of mediation, that has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the route to compounding of certain criminal offences, may ultimately relieve some of the pressure on the police also.
Source: THE HINDU.