The Draft Mediation Bill: A timely intervention

With more than 4.4 crore pending cases in various courts across the country, the justice system is certainly overworked and strained. The COVID-19 pandemic has added to an already huge backlog of cases.

How justice can be done fairly, evenly and efficiently needs to be explored with all possible mechanisms employed to combat this menace. Delay in the justice system erodes public confidence. It is also an expensive process and hampers the fundamental right of access to justice.

With Lok Adalats and other mechanisms that make justice easier to access and quicker to receive, the process has already initiated. One strong and decisive step in that direction seems to be the Draft Mediation Bill of 2021.

Broadly, the Bill intends "to promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes...to encourage community mediation and to make online mediation as an acceptable and cost effective process and for matters connected therewith or incidental thereto." Mediation, as an alternative dispute resolution (ADR) mechanism offers great potential and numerous benefits as an alternative to adjudication in courtrooms.

It is a speedier process as both the parties are explained what their strengths and weaknesses are. Adjudication is not a requirement and the matter needs only to be discussed between the parties. Additionally, many of the processes and procedures of the courtroom that are time consuming and complicated are dispensed with, thereby saving additional expense, time and work. Perhaps most importantly, the process being non-adversarial allows for solutions that are unique and dynamic. There are no ‘winners’ in mediation, as the interests of both the parties are negotiated. New and innovative ways to deal with the dispute can be suggested.

India has certainly been pushing towards ADR mechanisms. Section 89 of the Civil Procedure Code of 1908 lays down the procedure for courts to refer matters to mediation, arbitration, conciliation and judicial settlement. The courts on various occasions have emphasised the importance of these mechanisms and have encouraged out of court settlements. A number of judgments by the Supreme Court have emphasised on the crucial role of ADR.

Across the world in fact, the push has been to discourage litigation and encourage ADR strategies. The United Kingdom, for instance, has stern pre-action protocols. These are pre-requirements to commence any litigation and must be complied with even before the courts take cognizance of any matter. It is only after these have been met that a cause can be initiated in a court of law. The United States has similar provisions for ADR options.

Mediation will certainly help in speeding up justice and will also help in decluttering the courts, allowing for a parallel mechanism of dispute resolution that is not bridled by formality and stern procedures often associated with litigation.

However, it is imperative that we proceed with great consideration to make it a fruitful and meaningful exercise. First, the kind of cases that lend themselves to mediation have to be tightly defined and controlled. Most criminal cases will automatically be ruled out, as a crime is against the State as a whole and not just against an individual. For private cases, pecuniary jurisdiction as well as subject matter jurisdiction needs to be well-defined. The infrastructure to support mediation also needs to be fostered with enthusiasm. This needs to begin at law schools and continue beyond. The body regulating the education as well as enrolment of lawyers, the Bar Council of India, in a very progressive step has already made mediation and conciliation a required subject at law school. Appropriate training and infrastructure also need to be created.

Perhaps most importantly, society in general needs to be introduced to the benefits of ADR and how it can be an effective alternative to litigation. Equally, it is essential that ADR is not just a rubber stamp but a genuine requirement. Within the framework, as the Bill foresees, exceptions should also be inbuilt for genuinely urgent cases where mediation is not a viable solution.

The Bill offers great potential and a dynamic shift towards creating a method of dispute resolution that is well known to our society. The power of mediation certainly needs to be harnessed and this Bill will provide a fertile soil for the same. It should, however, be a crucial consideration that any change caters to all stakeholders across the country and across socio-economic strata and that it becomes a genuine way to resolve disputes. We can certainly do with some help in this direction.

Vishavjeet Chaudhary is an advocate, qualified Barrister-at-Law (The Hon’ble Society of the Inner Temple) and Door Tenant (Lamb Building, Temple, London).