Authored by: Adv. Prakash K. Pandya, Advocate and Mediator, Mumbai
In a momentous decision, the Mediation Bill 2023 was ratified by the Rajya Sabha on August 1, 2023, swiftly followed by Lok Sabha approval on August 7, 2023. With the President’s assent on September 15, this pivotal Bill transformed into the Mediation Act, 2023. Its operational date awaits an official announcement by the Central Government.
Purposes of the Mediation Act, 2023:
- Facilitating mediation for both commercial and non-commercial disputes.
- Strong advocacy for the enforcement of mediated settlement agreements.
- Establishing a centralized registry for mediators.
- Encouraging community mediation and acknowledging online mediation as a cost-effective alternative.
Central to the Act is the vision of win-win dispute resolutions, emphasizing the power of choice for the disputing parties. Mediators, with their expertise, help uncover underlying issues, thereby saving time, money, and often, relationships.
Though the Act doesn’t prescribe a mandatory initial mediation session, evidence from international practices suggests its potential benefits. Such a session could bring about clarity, foster early resolutions, alleviate court pressures, and establish a uniform approach to mediation.
- France integrated mandatory initial mediation sessions in 2019.
- Italy adopted mandatory mediation for certain civil and commercial disputes in 2010.
- Greece requires pre-litigation mediation, penalizing non-compliance.
- Israel has adopted structured, semi-mandatory preliminary meetings for specific disputes.
- Canada’s provinces focus on mandatory initial mediation for selected cases.
- Australia has seen a surge in mandatory mediation in specific civil contexts, promoting mediation before litigation.
- While USA primarily opts for mediation through agreement or court order, the overarching public policy favors mediation.
- Turkey expanded mandatory mediation from labor to commercial disputes.
- China now emphasizes mandatory mediation in selected cases.
- Thailand requires mediation for specific disputes, such as labor and consumer issues.
- Singapore mandates initial mediation sessions for select disputes, like divorce and certain civil matters.
Despite the Singapore Convention of Mediation allowing nations to choose mediation requirements, India could benefit from mandating just the first mediation session. This change would not contradict the voluntary essence of mediation. Instead, it’d strategically harness mediation’s full benefits, mirroring international success stories.
By adopting this amendment, India would further its dedication to alternative dispute resolution, widening justice access for its citizens, reflecting global best practices, and fostering a harmonious conflict resolution culture.
Challenges and Criticisms of Mandatory Mediation:
While the potential advantages of mandatory mediation are numerous, it’s vital to understand the concerns and criticisms associated with it:
- Potential Violation of Rights: Critics argue that mandatory mediation may infringe upon a party’s right to access the courts directly, potentially violating fundamental rights to due process.
- Efficiency Concerns: While mediation can be efficient, when mandated, there’s a risk that parties may attend merely to fulfill the requirement without genuine intent to negotiate, thereby wasting time and resources.
- Power Imbalances: In cases where there’s a significant power disparity between the parties, mediation might not provide an equitable platform. One party might feel pressured to settle due to the dominant position of the other.
- Quality of Mediation: The increase in demand for mediators due to mandatory mediation could result in varying quality levels of mediators. Not all might have the requisite training or experience.
- Lack of Legal Safeguards: Unlike court proceedings, mediation doesn’t always provide the same legal safeguards, potentially leading to settlements that might not be entirely just or equitable.
- Cost Implications: Mandatory mediation might introduce additional costs for the parties involved, especially if the mediation doesn’t result in a settlement and they subsequently proceed to litigation.
- Confidentiality Concerns: The private and confidential nature of mediation might not always serve the public interest, especially in cases that might set essential legal precedents.
- Erosion of Voluntariness: One of mediation’s foundational principles is voluntariness. Mandating the process might dilute this principle, impacting the genuine spirit of mediation.
It’s essential to weigh these challenges against the potential benefits of mandatory mediation. While the method has proven effective in numerous international contexts, its application needs careful consideration, keeping in mind the unique socio-legal fabric of India.
Mandatory mediation – Lessons from India & neighbouring countries:
- India – The Delhi Mediation Centre (DMC): Established in 2005 by the Delhi High Court, DMC has played a pivotal role in resolving countless disputes through mediation, saving time and resources. In its initial years itself, the center saw a settlement rate of around 60%. A study noted that a significant number of cases, which could have taken years in court, were resolved within just a few mediation sessions.
- India – Bangalore Mediation Centre (BMC): This center was set up in 2007, and within a decade, it reported that out of the 65,000 cases referred, about 35% were resolved successfully. Notably, many of these cases were pending litigation and had been in the courts for an extended period before mediation.
- Sri Lanka – The Mediation Boards Act: Sri Lanka has a long history of community-based dispute resolution. The Mediation Boards Act of 1988 institutionalized this practice. Minor civil and criminal disputes in Sri Lanka must first be referred to these local mediation boards before they can be taken to court. The system has been successful in resolving numerous disputes at the community level without resorting to formal litigation.
- Bangladesh – Village Courts: In Bangladesh, the Village Courts Act has facilitated local dispute resolution for decades. While not mediation in the strictest sense, these village courts often employ conciliatory methods similar to mediation. Given their success, the Bangladeshi government, with assistance from international agencies, has made efforts to strengthen and modernize the village court system.
- Pakistan – Karachi Centre for Dispute Resolution (KCDR): Established in 2007, KCDR was one of Pakistan’s first major initiatives to institutionalize alternative dispute resolution. It has reported high success rates in mediating commercial disputes, reducing the burden on the judiciary and providing businesses with a quicker, more efficient means of resolving conflicts.
- Nepal – Community Mediation: Nepal has successfully integrated community mediation programs into its legal system. These programs, often supported by international organizations, have empowered local communities to resolve disputes amicably. They have been particularly effective in rural areas, where access to formal courts might be limited.
- India – Marital Disputes: Mediation has been increasingly recognized in India as an effective means of resolving marital disputes, including divorce and maintenance cases. Mediation centers across various states have reported high success rates in such cases, helping couples either reconcile or separate amicably without prolonged court battles.
- India – Commercial Mediation: The ease of doing business in India has been a concern for many investors. Mediation, especially in commercial disputes, has seen a push from various state governments. For instance, the Maharashtra government introduced mandatory mediation for certain commercial disputes, aiming to offer a faster resolution mechanism and boost investor confidence.
These examples illustrate the potential of mandatory mediation in effectively resolving disputes across various domains, from community-level disagreements to high-stake commercial conflicts.
In Summary: The Mediation Act, 2023 stands as a testament to India’s evolving commitment to alternative dispute resolution. While the global trajectory showcases multiple success stories, it’s imperative to remain vigilant about the challenges and address them effectively. Adopting nuances from the experiences of both domestic and international counterparts can guide India in crafting a well-rounded mediation framework.