Institutional Mediation under the Mediation Bill
Mediation Service Providers
Section 40 provides that mediation proceedings may be conducted by a Mediation Service Provider which includes a body or an organization, or b) an authority constituted under the Legal Services Act, 1987, c) a court annexed mediation center, or d) any other body as notified, provided any of these are recognized by the MCI (defined below) for conduct of mediation proceedings under the Mediation Bill.The Mediation Service Providers are tasked with the duty to inter alia accredit mediators and maintain a panel of mediators, provide all facilities such as secretarial assistance and infrastructure for the conduct of mediation proceedings, facilitate registration of mediated settlement agreements.
Mediation Council of India
The Mediation Bill refers to establishment of a Mediation Council of India (“MCI”), in the form of a corporate body, tasked with duties to inter alia develop India to be a robust center for domestic and international mediation. The MCI is also expected to provide for the manner to conduct mediation proceedings, recognize, renew, cancel or suspend Mediation Service Providers, maintain an electronic depository of mediated settlement agreements, submit annual report on implementation of the provisions of the Mediation Act to the Central Government. The MCI would also have the power to frame rules and regulations consistent with the provisions of the Mediation Bill.
Advantage of the Mediation
- Cost Effective
- Saves Time
- Gives the Parties Control and Flexibility
- Focuses on Preserving Relationships
Disadvantages of the Mediation
- Mediation is Non- Binding
- Can fail when the Balance of Power between the parties is too great
- Offers limited legal protection
- Can inspire unequal participation
The Mediation Bill represents a significant step towards fostering a culture of alternative dispute resolution in India. Introduced with the primary objective of promoting and facilitating mediation, the Mediation Bill emphasizes institutional, online, and community mediation as an effective means of resolving disputes in a timely manner. Its applicability spans a broad spectrum of cases, encompassing parties residing or doing business in India, as well as international commercial disputes involving foreign entities
Having said that, there are clear misses like absence of statutory enforcement of mediated settlement agreements passed in mediations conducted outside India – in sync with the Singapore Convention. In a world where mediation is fast becoming an effective and preferred dispute resolution mechanism, the Mediation Bill has, perhaps, lost an opportunity to provide for an all-encompassing law where mediated settlements entered into by parties anywhere in the world can be enforced in India. Thus, there is a pressing need for ratification and adoption of the Singapore Convention by India63. This is likely to affect uptake of mediation in resolution of cross border commercial disputes significantly
The Mediation Bill is a welcome step towards transforming the landscape of dispute resolution by offering parties an effective and efficient avenue to resolve conflicts voluntarily and without any form of adjudication.
Written By Adv Rohit Yadav D/8639/2019