The Parliamentary Standing Committee on Law and Justice, headed by 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 on the panel 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 the 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.
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 judgments 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 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 the provisions, 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 Centre,” the member said.