[Akarshi Narain and Gayatri Kondapalli are 3rd-year B.A., LL.B. (Hons.) students at NALSAR University of Law, Hyderabad]
Mediation, as a mode of alternative dispute resolution, has increasingly been gaining traction in the international sphere. The Singapore Convention on Mediation, adopted in 2018, envisages cross-border enforcement of settlement agreements similar to that of arbitral awards under the New York Convention. India was one of the first countries to become a signatory to this Convention. In line with these developments, the government introduced the Mediation Bill in 2021, which was recently passed by the Rajya Sabha. This legislation is an attempt to promote mediation in the country while simultaneously relieving the judiciary of its heavy caseload. It is also a step towards the overarching aim of making India an alternative dispute resolution hub. However, the authors argue that the proposed legislation falls short of achieving this primary objective. In pursuance of this, three major drawbacks of the Bill are discussed, which would hinder the alignment of this legislation with its aspiration.
Limited Scope of the Bill
While the Government’s move to specifically enact a legislation to develop mediation is praise-worthy, a fundamental factor for the success of this endeavour is the scope of the Bill. It is argued that this scope is constrained with respect to both pre- and post-mediation stages.
Firstly, the Bill does not allow cross-border enforcement of settlement agreements, as envisaged under the Singapore Convention. Settlement agreements from mediations conducted outside India do not fall within the scope of the Mediation Bill, 2023. Furthermore, settlement agreements in India would be treated as a judgement or decree of the court. The Singapore Convention, under Article 7, expressly excludes such settlement agreements from its ambit. Hence, not only would international settlement agreements concluded outside India lack direct enforceability in the country, but also all domestic and international mediations conducted in India would not be covered within the ambit of the Singapore Convention. This highly jeopardises any chances of India becoming an international mediation hub.
The Indian Government has defended its decision by stating that it has no such obligation because it has not yet ratified the Singapore Convention. The Government also commented that provisions for enforcement of such international settlement agreements, in line with the Singapore Convention, would be enacted only when the Convention gains international acceptance. However, it is argued that the country is missing out on a golden opportunity. Until date, only 11 countries have ratified this Convention, among which the only commercial hub is Singapore. Hence, establishing the legal framework for the enforcement of international settlement agreements would give India a head-start. This would further the Bill’s overall purpose of making India a mediation hub.
Secondly, under clause 3(f) of the Bill, the definition of international mediation is limited to just commercial mediation. However, mediation is most commonly undertaken for civil matters such as divorce or custody. Therefore, as also suggested in the Parliamentary Standing Committee report, the Bill would benefit by expanding its scope to cover civil matters as well in international mediations.
Lastly, the list of matters declared unfit for mediation, under Annexure 1 of the Bill, is unnecessarily long. Commonly, such matters pertain to criminal law, competition law, and public policy issues. However, Annexure 1 also includes topics like tax and property. Excluding such a multitude of issues from the legislation’s ambit is counterproductive to the overall objective of promoting mediation. Hence, when a broad overview of the Bill is undertaken, it is evident that the scope of the Bill is more constrained than it should have been.
Decoding the Debate Behind Mandatory Mediation
The second drawback deals with the mandatory pre-litigation mediation clause in the Mediation Bill, 2021. It was accused of violating principles of consent and was removed after public criticism. However, strong arguments exist for a mandatory pre-litigation mediation regime in India. For instance, mandatory mediation would translate into greater mediated disputes than a voluntary mediation regime. This reduces judicial burden, creates employment opportunities for professionals, and a culture of amicable dispute settlement. While not instant, this post suggests that India should gradually incorporate a country-specific mandatory mediation model. At the same time, it becomes important to first address certain concerns that have surrounded the debate on mandatory mediation.
One common argument against mandatory mediation is that it vitiates the voluntary ethos of mediation. However, this claim requires closer scrutiny. To clear a common misconception, mandatory mediation does not mean forcing parties to settle disputes via mediation. Rather, it mandates parties to attempt mediation for dispute settlement, giving them the freedom to litigate if mediation fails. There exists party autonomy to enter litigation after a specified number of mediation sessions or to agree on a settlement. So, the fundamental right to access justice remains intact. Furthermore, voluntariness remains a foundational element in this opt-out model of mandatory mediation.
Compelling reluctant parties to attempt mediation has been perceived as another shortcoming. However, given the low public awareness regarding mediation in India, the initial inertia to attempt mediation can be overcome by a compulsory process. Multiple studies have highlighted that mediation with a compulsory flavour plays a more significant role as a means of effective dispute resolution, than when it is merely voluntary.
The authors argue that mandatory mediation needs to be implemented in a phased manner suited to the Indian context. In M.R. Krishna Murthi v. The New India Insurance Co. Ltd., the Supreme Court supported a phased introduction of mandatory mediation, proposing to start with a limited category of cases. The NITI Aayog, too, had recommended a similar scheme recently. In furtherance of this, a study can be undertaken to determine the disputes most amenable to being resolved via mediation. Any attempt to make mediation mandatory would gain greater validity if it took an evidence-based approach. A relevant example in this regard is Italy, which introduced mandatory mediation in 2013 with a four-year sunset clause, following which the law had to be reviewed. Thus, mandatory mediation can start with a small pilot programme and gradually be modified based on demonstrated defects that are discovered.
Lastly, the legislative intent behind this provision is to majorly decongest the judiciary and enhance the ease of doing business. Mandatory proceedings would go a longer way in achieving this aim. That being said, mandatory mediation would not work in the absence of qualified personnel. This merits examining the Mediation Council and the provisions surrounding mediators in the Act.
Problems Concerning the Mediation Council and Mediating Professionals
The Bill envisages creation of the Mediation Council of India that would regulate the registration of mediators, and recognise mediation service providers and institutes. Evidently, the Council along with the mediating professionals would play a decisive role in determining the success of the legislation. However, several lacunae exist regarding the Council and the mediators.
The Mediation Council lacks adequate representation of experienced practitioners. This is unlike most professional regulators such as the Bar Council of India. The importance of experience cannot be discounted especially at this nascent stage of mediation in India, when finding feasible solutions to novel issues would be a challenge. Additionally, the Council requires prior approval from the Central Government before issuing regulations related to its essential functions, raising concerns about partisanship and independence. Greater murkiness would arise in situations where the Government itself is a party to the mediation.
Effective mediation is centred around a skilled mediator. However, no uniform regulation has been devised for the accreditation of mediators. Nor does the Bill provide for qualifications required to be a trained mediator. This can lead to a problem of ineffectual mediators, which would hamper the uptake of mediation, in turn, upending the Bill’s objective. A possible solution could be to frame a regulation on the uniform accreditation of mediators. This would give a fillip to mediators in India receiving international standard training and exposure. The Government can also tie up with private groups in line with the same. In the United Kingdom, for instance, a private institution, the Civil Mediation Council, provides voluntary training and practice standards for individuals and organisations. A regulatory body which lays down these standards and reviews the performance of existing mediators would also strengthen the mediation process. Besides, an influx of qualified professionals would give impetus to constructing the infrastructure required to deal with the number of cases compulsory mediation would entail (and vice versa).
Empirical evidence clearly demonstrates the effectiveness of mediation as a dispute resolution mechanism in India. The Bill aims to reap this efficacy and usher in a legal revolution by uplifting mediation as a parallel dispute resolution mechanism. While the Bill has incorporated recommendations by experts such as the Parliamentary Standing Committee, the stopgaps highlighted above must be plugged in for the legislation to reach its full potential. As such, the authors make a case for an expanded scope of the legislation, a phased introduction of mandatory mediation and, eventually, bridging the gap through a relook at the Mediation Council and the quality of mediators. Raising public awareness about mediation via training sessions, courses and webinars by experts would also go a long way in determining the legislation’s success. To conclude, apart from its effective implementation, the above-mentioned lacunae merit a relook into the Bill via suitable amendments in the near future.
– Akarshi Narain & Gayatri Kondapalli