Alternative Dispute Resolution is a new form of legal practice which is said to surpass litigation in the upcoming future. Because of its less time taking procedure and low cost, it is very much favoured by the judiciary also. It includes various types of dispute resolution mainly arbitration, conciliation, mediation and negotiation. Mediation is the most used form of ADR in India and the world. In this process, parties come under one roof to arrive at a decision which is beneficial for both of them and is assisted by a neutral third party. The mediator only assists parties in concluding he is neither a judge nor acts as a judge in the decision-making.
The New Draft Mediation Bill
Mediation has a long history in India, especially in resolving family disputes, where the Indian tradition of resolving disputes through dialogue and negotiation such as panchayats is deeply rooted in Indian culture. In recent times, mediation has been increasingly recognized as an effective means of resolving disputes in India, particularly in commercial and civil cases. Till now mediation is not a purely drafted process. It finds its source in CPC 1908[i] which provides for settlements of disputes outside the course. Mediation till now has not fully flourished in our country. Litigation is the most common choice of every Indian to resolve disputes in court. But the court and judicial bodies have been aggressively promoting the mediation process to reduce the burden on the courts and stop the never-ending litigation. But the mediation as an ADR is voluntary till now. Where courts try to give options to the parties to go for mediation for the quicker disposal of compoundable matters. But in the end, it is the choice of the parties to choose it the court cannot force it. In the new ‘Draft Mediation Bill 2021’ clause 15 calls for mandatory mediation[ii]. The mediation is mandatory and will take under the jurisdiction of the court. Mediation has settled almost 1 million matters up until now but there was no properly drafted process for it.[iii] By making the bill it was thought to give a proper framework to the mediation. But looking at the bill it seems that there are a lot of gaps still. When the parties have already decided that the mediation will be done as per the mediation agreement then what is the point of tying them in a place and a jurisdiction? Parties should have all the rights to choose the place and jurisdiction.
Authors Contention
Court mediation cannot be equated with private mediation. Mediation is purely voluntary and when the court interferes and forces it violates the principle of natural justice. The court should give parties the option to give mediation a shot before coming to the court. There is only a certain category of cases which can be settled through mediation. Most of the cases solved through mediation are family matters. So mandating mediation may bring more harm than good. It can further be argued that forcing parties into mediation can make them reluctant in attempting it in its true spirit and can be an obstacle because the latter wants to go through mediation. There are many more issues which should have been dealt with in the Draft Mediation Bill, 2021[iv] but the committee hasn’t even touched it. The government and judiciary should ensure that while the bill is for the greater good but it can hamper the people’s access to justice. So, it is necessary to make a balance between the needs of the people and the needs of the government.
[i] Code of Civil Procedure (Amendment) Act, 1999 S. 89
[ii] Department of Legal Affairs, The Mediation Bill 2021, Ministry of Law and Justice (Dec. 2021) https://legalaffairs.gov.in/actsrulespolicies/mediation-bill-2021
[iii] Projected pendency of 45 million cases in courts an overstatement, The Economic Times (Jul. 17 2021, 03:49 PM) https://economictimes.indiatimes.com/news/india/projected-pendency-of-45-million-cases-in-courts-an-overstatement-says-cji-n-v-ramana/articleshow/84499355.cms
[iv] Supra Note at 2
Author
Name – Nikhil Prasad Singh
College Name – National University of Study and Research in Law, Ranchi