Mediation Bill: House panel recommends against compulsory mediation, role for judiciary

Making pre-litigation mediation mandatory is feared to result in delaying of cases and may prove to be an additional tool in the hands of truant litigants

July 11, 2022 10:50 pm | Updated 10:50 pm IST - NEW DELHI

Parliamentary Standing Committee on Law and Justice head and BJP leader Sushil Kumar Modi.

Parliamentary Standing Committee on Law and Justice head and BJP leader Sushil Kumar Modi. | Photo Credit: DEEPAK K.R.

Parliamentary Standing Committee on Law and Justice, headed by veteran BJP leader Sushil Kumar Modi, has recommended substantial changes to the Mediation Bill, meant for institutionalisation of mediation and establishment of the Mediation Council of India. The panel cautioned against making pre-litigation mediation compulsory and warned the Centre against the provision to give higher courts the power to frame rules for mediation.

Sources in the panel confirmed after a meeting here on Monday that the members deliberated upon 20 key issues in the Bill, including the “mandatory and coercive nature of pre-litigation mediation.” A member in the panel, on the condition of anonymity, told The Hindu that making pre-litigation mediation mandatory may actually result in delaying of cases and may prove to be an additional tool in hands of truant litigants to delay the disposal of cases.

“We felt that not only pre-litigation mediation should be made optional but also be introduced in a phased manner instead of introducing it with immediate effect for all civil and commercial disputes. As a starting point, the challenges faced in implementing pre-litigation mediation under the Commercial Courts Act, 2015, should be studied before mandating it across other case categories,” he said. In this background, the panel is learnt to have recommended that the compulsory provision of pre-litigation mediation should be reconsidered and it should be offered as an option to only those who are willing to mediate.

Clause 26 of the Bill provides that court annexed mediation including pre-litigation mediation in court annexed mediation centre shall be conducted in accordance with the practice, directions or rules by whatever name called by the Supreme Court or the High Court. But the panel objected to this. “We noted with concern that provisions of clause 26 is against the spirit of the Constitution. In the countries which follow common law system of jurisprudence, it is healthy tradition that in the absence of any specific statutes, the judgements or decisions taken by apex courts has the same bearing as that of a statute. But the moment any law is made on the subject, that becomes the guiding force. Here, the Bill proposes a clause giving the powers to court to make rules for ‘court annexed mediation’, which is unconstitutional. Hence, we recommended that specific provisions should be made about court annexed mediation in place of existing provisions of clause 26,” the member added. 

The members questioned the non-applicability of the provisions of the Bill to disputes/matters of non-commercial nature involving the Government and its agencies.

The panel had discussions also about the qualifications and appointment of the Chairperson and Members of the proposed Mediation Council. The member said the panel will insist that the Chairperson and full time Members to have ‘shown capacity’ and ‘knowledge and experience’ in ‘mediation.’ According to present provisions in the Bill, people dealing with problems relating to ‘Alternative Dispute Resolution’ can become members and chairman of the council. “We have also decided to recommend that the appointment of the Chairperson and Members of the Mediation Council of India should be made by a selection Committee constituted by the Central Government,” the member said.

In States as well

Considering recommendations by members from the Opposition, the panel has also decided to recommend that keeping in view the wide spectrum of duties and responsibilities assigned to the Mediation Council of India, mediation councils should be instituted in the States as well. “These State Mediation Councils should function under the overall superintendence, direction and control of Mediation Council of India and discharge such functions as may be specified by it,” the member said.

The MP added that on the registration of mediators, they suggested that instead of multiple bodies registering mediators, the proposed Mediation Council of India should be made the nodal authority for the registration and accreditation of mediators. “We further recommended that each mediator should be given a unique registration number by the Mediation Council and provisions should be made in the Bill to empower the Mediation Council to continuously evaluate the mediator by holding training sessions periodically and the mediator must earn a minimum number of credit points on a yearly basis in order to be eligible to conduct mediation,” the member said.

The members also said that the existing definition of ‘mediation’ needs to be reframed. They said since the definitions are given in Clause 3 of the Bill, there is no need to define ‘mediation’ separately in Clause 4. They wanted the Centre to redefine the term ‘mediation’ such that it reflects the intent of the provisions contained in Clauses 17 and 18 of the Bill.

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