INTRODUCTION
Section 2(h) of the Mediation Act, 2023 defines Mediation as a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute 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.
Mediation is one of the modes of Alternative Dispute Resolution, which has been enabled under Section 89 of the Civil Procedure Code, 1908 and has emerged as a popular and useful method for settlement of disputes. Recently, mediation has gained tremendous traction as a viable alternative dispute resolution mechanism. Recognizing its potential to streamline legal processes and improve conflict resolution outcomes in the nation, various jurisdictions have been refining their mediation regimes. In pursuance thereof, The Rajya Sabha on 01.08.2023 and the Lok Sabha on 07.08.2023, has passed the Mediation Bill, 2023, to enact a standalone law on mediation which represents a significant leap towards institutionalizing mediation as a credible means of resolving disputes. The said bill received the President’s assent on 15.09.2023 thereby, giving it the mandate of an Act. This article will delve into the key provisions of the new act while also outlining the crucial changes, enhancements to the mediation landscape bought by the new act.
- Pre-litigation Mediation: Section 3(u) of the Mediation Act, 2023 lays the definition of “pre-litigation mediation” as a process of undertaking mediation, as provided under Section 5, for settlement of disputes prior to the filing of a suit or proceeding of civil or commercial nature in respect thereof, before a court or notified tribunal under sub-section (2) of Section 5. Pre-litigation mediation holds significant value by providing a proactive and cost-effective method to resolve disputes before they escalate into formal lawsuits. It encourages open communication, collaboration, and a flexible approach to finding solutions that meet the parties’ needs and interests. By facilitating early resolution, it helps save time, money, and resources for all involved, while preserving relationships and maintaining confidentiality. Ultimately, it contributes to a more efficient and harmonious legal process.
- Exclusion of Certain Matters: Section 6 of the Mediation Act, 2023 also outlines certain cases disputes which are not fit for mediation which include disputes related to criminal offense prosecution, direct and indirect tax disputes, and conflicts involving the rights of third parties, except for cases concerning a child’s welfare in matrimonial matters.
- Accreditation and Regulation of Mediators: Sections 8 to 12 of the Mediation Act 2023 focus on the accreditation and regulation of mediators. The new act allows foreign nationals to be appointed as a mediator under this act with certain conditions as to the qualification, experience and accreditation which may be specified. It also accounts for the parties’ preference as to the name of the mediator and the procedure of their appointment. The new law also excellently encapsulates the likelihood of arising of a conflict of interest in mediation proceedings and duly establishes a procedure to take care of such scenario.
- Territorial Jurisdiction to undertake Mediation: The new mediation act acknowledges that it is crucial to take into consideration the convenience of parties engaged in mediation in order to make mediation a more viable and better option than litigation. Hence, section 13 of the Act provides for wider territorial jurisdiction of the court or tribunal of competent jurisdiction. The act allows for mediation proceedings to be conducted at any place outside the territorial jurisdiction of the court or tribunal, or by way of online mediation with the mutual consent of the parties. However, for the purpose of enforcement, challenge and registration of the mediated settlement agreement, the same shall be deemed to have been undertaken within the territorial jurisdiction of the court or tribunal of competent jurisdiction.
- Time Period of Mediation: Section 18 of the Mediation Act, 2023 provides for the time limit within which mediation proceedings are to be concluded. Mediation proceedings as per the new act must be completed within a time frame of 120 days from the date of the first appearance or for an extended time frame of 180 days if agreed by the parties. Setting a time limitation on mediation proceedings promotes efficiency and focus, encouraging timely resolution of disputes. It fosters a sense of urgency, motivating parties to engage constructively and reach agreements more swiftly. Additionally, it helps control costs associated with prolonged mediation processes.
- Enhanced Confidentiality Protections: The Mediation Act, 2023 through provisions contained under Section 22 ensures the utmost protection of confidentiality of all the matters relating to the mediation proceedings. Confidentiality being a cornerstone of successful mediation, recognises the importance of free exchange of information between parties and encourages open communication. The Act strictly recognizes the importance of confidentiality as a key ingredient in successful mediation process. With enhanced legal protection for confidentiality, parties can engage in mediation with confidence.
- Enforcement of Mediated Settlement Agreement: Section 27 of the Mediation Act, 2023 mandates that a mediated settlement agreement resulting from a mediation signed by the parties and authenticated by the mediator shall be final and binding on the parties. Mediated settlement agreement are enforceable in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a judgment or decree passed by a court. Making a mediation agreement binding like a court order provides enforceability, ensuring that parties honour their commitments and properly comply with the resolutions. It offers a sense of legal backing, promoting compliance and trust in the mediation process.
- Online Mediation: With the outbreak of the Covid 19, the entire world switched to virtual mode, be it for school or for work. The trend began, but never died down. With the new wave of Work From Home and online meetings, Section 30 of the Mediation Act, 2023 strives to add convenience in mediation proceedings by giving the parties the option to opt for online/virtual mediation. Online mediation offers convenience and accessibility, allowing parties to participate from different locations without travel constraints. It enhances inclusivity, enabling a broader range of individuals to engage in the mediation process comfortably. Additionally, it often reduces costs associated with in-person meetings, making mediation a more cost-effective dispute resolution method.
- Community Mediation: Acknowledging the importance of resolving conflicts within specific communities, the Act introduces a provision for community mediation. As per the provisions of the act, any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.
CRITICISM OF THE ACT
The Mediation Act of 2023, though a vital step in embedding mediation in the legal system, faces criticism. Section 28 of the Mediation Act allows challenging mediated agreements for specific reasons like fraud, corruption, impersonation or where the mediation was conducted in disputes or matters not fit for mediation under Section 6. Challenges must be made within 90 days of receiving the agreement, with a possible 90-day extension. However, it’s concerning that challenges are limited and exclude duress, coercion, or discovery of fraud post-limitation. Additionally, non-signatories can’t challenge, posing an issue in the framework. It’s a significant step in formalizing and advancing mediation practices, although it falls short in addressing certain practical issues.
Another issue concerns the composition of the Mediation Council of India, lacking ample representation of experienced practitioners compared to bodies like the Bar Council of India. Approval dependency on the Central Government for regulations raises neutrality questions and worries about potential government involvement in mediations and puts a question mark on mediation as a credible source of dispute resolution process.
CONCLUSION
The Mediation Act, 2023 is a game-changer in the realm of dispute resolution. By setting clear standards, enhancing confidentiality, providing incentives, and ensuring enforceability, this legislation has significantly transformed the mediation landscape. It promotes mediation as a primary avenue for resolving disputes and aims to streamline legal processes while fostering a culture of collaboration and cooperation among parties involved in conflicts. The Act represents a step towards an efficient, effective, and harmonious approach to dispute resolution.
AUTHOR-SWATI AGRAWAL
