Abstract
The Mediation Bill, 2021 introduced mandatory pre-litigation mediation as a means of resolving disputes before proceeding to court. This research paper aims to decode the provisions of this bill, specifically the mandatory pre-litigation mediation process. The study examines the objectives, requirements, and outcomes of the process and analyses its impact on the traditional dispute resolution system. The paper also provides recommendations on how the process can be further improved and effectively implemented. This study is significant as it sheds light on the potential benefits and limitations of mandatory pre-litigation mediation, providing valuable insights for policymakers, legal practitioners, and the general public. This research paper examines the mandatory pre-litigation mediation provisions included in the Mediation Bill, 2021, which was recently passed in India. The paper offers an in-depth analysis of the implications of these provisions, with particular attention to their potential to reduce the burden of civil courts, to facilitate consensual dispute resolution, and to promote access to justice. The paper also examines the extent to which the provisions in the Bill are likely to be effective in achieving these objectives. The findings of the paper suggest that the mandatory pre-litigation mediation provisions of the Mediation Bill, 2021, could have a positive impact on the civil justice system in India, provided they are implemented properly. The paper also suggests that further research on the subject is needed in order to better understand the full implications of these provisions.
Introduction
- The Mediation Bill, 2021 is a proposed legislation that aims to make mediation a mandatory step in certain types of disputes before a lawsuit can be filed. The goal of mandatory pre-litigation mediation is to encourage parties to try to resolve disputes outside of court, which can save time and money for both parties.
- This paper will examine the concept of mandatory pre-litigation mediation and its implications for the legal system. Mediation is a process of resolving disputes through the assistance of a neutral third party, the mediator. In recent years, mediation has gained increasing popularity as an alternative to traditional forms of dispute resolution, such as litigation. In line with this trend, The Mediation Bill, 2021, was introduced in India with the aim of promoting the use of mediation and reducing the backlog of cases in the courts.
- One of the key provisions of the bill is the introduction of mandatory pre-litigation mediation, which requires parties to engage in mediation before proceeding to court. This research paper seeks to decode the provisions of mandatory pre-litigation mediation in The Mediation Bill, 2021. The study aims to examine the objectives, requirements, and outcomes of the process, and to analyse its impact on the traditional dispute resolution system.
- Additionally, the paper provides recommendations on how the process can be improved and effectively implemented. The study of mandatory pre-litigation mediation is significant as it has the potential to transform the traditional dispute resolution system, and provide a more efficient, cost-effective, and amicable means of resolving disputes.
Literature Review
- The article of The Mediation Bill, 2021 written under PRS Legislative Research talks about the bill mandates pre-litigation mediation involvement. A Mediation Council of India will be established to oversee the mediation industry. The agreements reached through mediation will have the same legal power and effect as court orders. The bill does not include provisions for the execution of settlement agreements reached through international mediation sessions held outside of India. Through a voluntary procedure called mediation, parties attempt to resolve disagreements with the aid of a neutral third party (the mediator).
- In the paper Mediation Bill, 2021: Necessity or Over- Complication written by Resham Jain talks about the proposed legislation would require mediation before starting any civil or business legal actions. Mandatory pre-litigation mediation is frequently seen as conflicting with the essential idea of voluntariness. Several the Bill’s provisions are procedure-driven, yet they seem to contradict the informal and straightforward approach typically associated with mediation.
- The Article Analysis: Mediation in India written by Aditya Mehta, Pritvish Shetty, Saloni Jain & Agneya Gopinath defines about an effective mediation is centred around a skilled mediator, without whom the process is fait accompli. An adequate framework for training appropriate mediators must be included in the Act or Rules/Regulations. The Bill ought to be brought in line with international practices, enabling parties to easily enforce settlement agreements.
- In the article Decoding India’s Draft Mediation Bill, 2021 written by Khushi Dua analyses that there is no specific legislation governing mediation in India. Due to this, a gallant effort to establish a separate mediation statute has been attempted. However, as this piece points out, the proposed measure has several flaws. As and when they pass the law, the drafters or concerned authorities should take the recommendations into consideration.
Methodology
The methodology used in this paper is Doctrinal Research Methodology. Online sources such as Articles, blogs, posts, journals, and other related materials. The research methodology for this paper will involve a combination of qualitative and quantitative research. Qualitative research involves a more in-depth exploration of the topic.
This will include a review of existing literature, interviews with legal and policy experts, and policy analysis. The purpose of this type of research is to provide an in-depth understanding of the key elements of the Mediation Bill, 2021, including its background, implications, and potential outcomes. Quantitative research will involve the collection of data from various sources, such as government documents and legal databases. Data analysis will be used to examine the current state of mandatory pre-litigation mediation, its potential effects on the legal system, and the impact of the Mediation Bill, 2021 on the practice.
The results of the research will be used to provide a comprehensive overview of the current state of mandatory pre-litigation mediation in India. The research will also address the ethical implications of mandatory pre-litigation mediation, as well as any potential legal issues. This research will involve a review of existing laws and regulations, as well as interviews with legal and policy experts. The results of this research will be used to assess the potential risks of mandatory pre-litigation mediation, and to consider the implications of the Mediation Bill, 2021.
Background
Mediation is a process in which an impartial third party, known as a mediator, helps parties in a dispute to reach a mutually acceptable resolution. Mediation is a voluntary process and can be used to resolve a wide range of disputes, including those related to commercial, civil, and family matters. The Mediation Bill, 2021 proposes to make mediation a mandatory step in certain types of disputes before a lawsuit can be filed. This means that before a party can file a lawsuit in court, they would first have to attempt to resolve the dispute through mediation. The Mediation Bill, 2021, has been introduced in the Indian Parliament with the aim of revolutionizing the dispute resolution landscape in India.
The Bill seeks to make pre-litigation mandatory mediation a part of the dispute resolution process in India, which has been long overdue. This Bill is significant as India has a huge backlog of civil and criminal cases pending in various courts. This Bill is expected to bring a significant change in India’s judicial system and significantly reduce the backlog of cases. The Mediation Bill, 2021 seeks to make pre-litigation mandatory mediation a compulsory step in the dispute resolution process, before initiating litigation. This is a revolutionary step not only in India but also in other countries. Mandatory pre-litigation mediation has been used in some countries for a few years now, but in India, it has never been a compulsory step in the dispute resolution process. The Bill seeks to make it a mandatory step for resolving disputes before initiating litigation.
The Bill seeks to make the process of pre-litigation mediation more effective by providing for rules and regulations related to the process. It also introduces certain reforms such as the appointment of certified mediators and the setting up of a Mediation Board to oversee the process. The Bill also seeks to provide for financial assistance to those people who cannot afford to pay for the mediation process. The Mediation Bill, 2021 is a significant step towards bringing reforms in the dispute resolution system in India.
This Bill has the potential to revolutionize the dispute resolution system in India and reduce the backlog of cases in the courts. It is therefore important to understand the provisions of the Bill and the implications of its implementation, if any. This research paper seeks to decode the provisions of the Bill and provide an in-depth understanding of the implications of the Bill. This paper will also provide an analysis of the advantages and disadvantages associated with the implementation of the Bill.
Current Legal System
Standardizing diverse parts while retaining mediation’s creative and adaptable nature is vital to foster the evolution of mediation. In India, there is no specific law governing mediation. There are now three ways to begin mediation proceedings in India. The first is by including mediation as a technique of dispute resolution in contracts. “Private mediation” is the term for this technique. The second method uses judicial referrals in accordance with Section 89 of the Code of Civil Procedure (1908, “CPC”). The term “court-referred mediation” refers to this process. The third strategy is that mediation is an option for settling conflicts under numerous statutes. Although there are several ways to begin a mediation, there appears to be a significant gap in the whole judicial system. Due to the absence of a regulatory framework governing the enforceability of the settlement achieved via this process, private mediation has been unable to gain acceptance. Civil courts must submit issues to the ADR process, according to Section 89 of the CPC read with Order 10 Rule 1A. The introduction of Section 89 via the CPC amendment in 2002 provided mediation in India a boost. However, the Supreme Court emphasised some drafting flaws or ambiguities under Section 89 of the CPC in Afcons Infrastructure Ltd. v. Cherian Varey Construction Co. (P) Ltd., such as the lack of clarity on the usage of terminology such ‘judicial settlement’ and ‘mediation.’
The appropriate stage for referring the matter to mediation is not covered by the clause. Additionally, there are no standardised procedural standards that apply to mediation; therefore sessions follow the guidelines established by each High Court. All these elements have made it more difficult to fully profit from it. The MSME Act of 2006, the Industrial Relations Code of 2020, and other statutes, among others, include provisions for mediation as a dispute resolution process. Pre-litigation mediation is still uncontrolled even under these regulations, but the post-litigation scenario in cases covered by these statutes is governed by the CPC. Section 12A of the Commercial Courts Act, which mandates pre-litigation mediation in all matters, deserves particular emphasis. However, parties have attempted to abuse the exclusion to avoid mediation, which has prevented the rule from accomplishing its intended purpose. One may understand the need for the recently proposed draught bill to govern various aspects of mediation within the Indian legal system after examining the holes in the current legal framework.
Pre- Litigation Mediation Process
The Mediation Bill, 2021 seeks to provide an effective and efficient mechanism for dispute resolution through mediation. The bill proposes the introduction of pre-litigation mediation as a mandatory step before the parties to a dispute file a civil suit in court. Pre-litigation mediation is a process of dispute resolution that is used to resolve disputes before a suit is filed in court. The process is conducted by a neutral third party, called a mediator, who helps the parties to the dispute to identify their interests, exchange information, and reach a mutually acceptable settlement. Under the bill, all disputes that are filed in a court shall first go through pre-litigation mediation. This applies to both the civil and commercial disputes. The parties shall be given an opportunity to settle the dispute through pre-litigation mediation before the court proceedings commence. The pre-litigation mediation process shall be conducted by a trained and accredited mediator.
The mediator shall be appointed by the court and shall be given adequate time to assist the parties in settling their dispute. The mediator shall facilitate discussions between the parties to identify their interests and to explore possible solutions. The mediator shall also be responsible for ensuring that the parties adhere to the process and comply with the rules of mediation. The bill also provides for the confidentiality of the pre-litigation mediation process. The parties to the dispute shall not disclose any details of the mediation process to the court or any third party. The mediator shall also be bound by the confidentiality clause and shall not disclose any information about the mediation process to the court or any other third party. The bill seeks to provide an effective and efficient mechanism for dispute resolution through pre-litigation mediation. By introducing pre-litigation mediation, it is hoped that the parties to a dispute can settle their differences amicably and reduce the burden on the courts.
Exemptions from mandatory pre- Litigation Mediation
The Mediation Bill, 2021 has made mandatory pre-litigation mediation a reality in India. Under this bill, parties in a dispute are required to attempt mediation before initiating legal proceedings. This bill has been welcomed by many as it is expected to reduce the burden on the judicial system. However, there are certain cases where the parties may be exempted from the requirement of mandatorily undergoing pre-litigation mediation. For instance, cases of domestic violence, bail applications, judicial proceedings or matrimonial disputes where the parties are separated, and cases where there is an urgency to seek redressal are exempted from the purview of the bill. In addition to the foregoing cases, parties may be exempted from the requirement of pre-litigation mediation on the grounds of public policy, when the dispute is of a complex nature, and when the dispute involves a large number of parties.
Further, the parties may be exempted if they have already attempted pre-litigation mediation and the same was unsuccessful. It is to be noted that the exemptions are subject to the decision of the court and the courts have the discretion to decide whether a particular matter should be exempted or not. This decision will be based on the facts and circumstances of each case and the court’s assessment of the suitability of pre-litigation mediation. The Mediation Bill, 2021 is a welcome step in the right direction. By making pre-litigation mediation mandatory, it is expected to reduce unnecessary litigation and bring speedy justice to the disputants. However, for certain cases, parties may be exempted from the requirement of pre-litigation mediation due to the nature of the dispute or other reasons. It is for the courts to decide when the parties are to be exempted from the requirement of pre-litigation mediation.
Under the proposed legislation, mandatory pre-litigation mediation is required for certain types of civil disputes. The Bill seeks to make mediation compulsory for all disputes where the amount in dispute is more than Rs. 10 Lakhs, or where the dispute is of an urgent nature, or where the dispute is of a complex nature. However, there are certain exemptions from this compulsory pre-litigation mediation. These exemptions are as follows:
- Disputes between close family members: Disputes between close family members, such as parents, children, grandparents, or siblings, are exempt from the requirement of compulsory pre-litigation mediation. This exemption is provided to ensure that family disputes do not become the subject of protracted litigation, and are instead handled by the family itself.
- Disputes between persons who are not close family members but have a close personal relationship: Disputes between persons who may not be family members but who have a close personal relationship, such as persons who are in a relationship of trust or confidence, are also exempt from the requirement of pre-litigation mediation. This exemption is provided to ensure that delicate disputes, which may be difficult to resolve through mediation, are not unnecessarily subjected to prolonged litigation.
- Disputes relating to the enforcement of fundamental rights: Disputes relating to the enforcement of fundamental rights, such as the right to life or the right to equality, are exempt from the requirement of compulsory pre-litigation mediation. This exemption is provided to ensure that fundamental rights are not subject to the whims of mediation, and that such disputes are suitably adjudicated in a court of law.
- Disputes relating to the validity or enforceability of a contract: Disputes relating to the validity or enforceability of a contract are also exempt from the requirement of pre-litigation mediation. This exemption is provided to ensure that the parties to the contract have sufficient opportunity to understand the terms of the contract and to present their respective cases before a court of law, if necessary.
These benefits of mandatory pre-litigation mediation, as specified in The Mediation Bill, 2021, demonstrate the potential for this process to provide a more efficient, cost-effective, and amicable means of resolving disputes.
Positive impacts of the Mediation Bill, 2021 on the civil justice system in India
The Mediation Bill 2021 is an amendment to the existing Alternative Dispute Resolution Mechanism in India. The Mediation Bill seeks to introduce several new provisions that could have a positive impact on the civil justice system in India. The introduction of pre-litigation mediation provisions is one such provision. Pre-litigation mediation is a process where parties to a dispute are encouraged to resolve their differences through mediation before they resort to litigation. This is a cost-effective, time-saving, and efficient method of dispute resolution which can help to reduce the burden on the courts. This provision will help to reduce the backlog of cases in the courts and help to create an atmosphere of amicable settlements. The pre-litigation mediation provision in the Mediation Bill 2021 encourages the parties to a dispute to enter into an agreement to mediate their dispute. This provision can be used by parties in civil matters such as property disputes, family disputes, commercial disputes, and the like. The agreement must be in writing and the parties must agree to abide by the terms and conditions of the mediation. The parties must also agree to provide necessary documents and information relating to the dispute. The Mediation Bill 2021 also provides for the appointment of a mediator and the process of mediation. The mediator must be qualified and experienced in the area of dispute resolution. The mediator will act as an impartial third party to facilitate the process of mediation and will assist the parties in understanding their rights, obligations, and the facts of the case. The mediator will also provide guidance and advice to the parties in order to reach an amicable settlement. The pre-litigation mediation provision of the Mediation Bill 2021 is a result of the Government’s efforts to improve the civil justice system in India and promote the use of Alternative Dispute Resolution Mechanism. This provision will help to reduce the burden on the courts and encourage parties to settle their disputes without resorting to litigation. It will also help to create an atmosphere of amicable settlements and encourage parties to resolve their disputes in an efficient and cost-effective manner.
The Mediation Bill, 2021, a new landmark legislation, is set to revolutionize the Indian Civil Justice System. By introducing mediation as a preferred mode of dispute resolution, the bill aims to reduce the backlog of cases in courts and bring an efficient and timely resolution to disputes. The bill is a major step towards reducing the backlog of cases in Indian courts and is expected to have a positive impact on the civil justice system. The first major effect of the Mediation Bill, 2021 is the establishment of a Mediation and Conciliation Council of India (MCCI). The MCCI will be responsible for setting up and regulating mediation and conciliation centres across the country, as well as providing training and qualifications for mediators. This will ensure that mediation, a form of alternative dispute resolution, is available to all citizens. The second major effect of the bill is the introduction of mandatory mediation in certain civil matters. This means that all parties involved in a civil dispute must attempt mediation before resorting to a court case. The mandatory mediation process will be overseen by the MCCI, which will also provide guidelines to ensure that the process is conducted in an impartial and fair manner. This will help to reduce the backlog of cases in courts as parties can work to resolve their disputes amicably, without resorting to a legal battle. In addition, the bill provides for the appointment of mediators by the court. This will help to ensure that the process is conducted in a professional and impartial manner. The mediator will be responsible for overseeing the process and ensuring that the parties reach a resolution in an amicable manner. Furthermore, the bill also encourages the involvement of parties in the mediation process. This will help to ensure that the parties are equally represented and that the process is conducted in an efficient and timely manner. This will also ensure that the parties understand the process and are able to reach an amicable resolution without resorting to a court case. The Mediation Bill, 2021 is a step in the right direction and is likely to have a positive impact on the civil justice system in India. By introducing mandatory mediation and appointing mediators, the bill will help to reduce the backlog of cases in courts and promote an efficient and timely resolution to disputes. This will result in a more efficient and timely justice system, which in turn will benefit the citizens of India.
Implications of mandatory pre-litigation mediation
Mandatory pre-litigation mediation has several implications for the legal system. First, it can change the way disputes are resolved. By making mediation a mandatory step in certain types of disputes, mandatory pre-litigation mediation can shift the focus from litigation to alternative dispute resolution. Second, it can change the role of lawyers. Lawyers may need to adapt to the new system of mandatory pre-litigation mediation by developing new skills and strategies. Third, it can change the way courts operate. By reducing the number of lawsuits that need to be heard in court, mandatory pre-litigation mediation can help to reduce the workload of the courts.
The implementation of mandatory pre-litigation mediation in India is likely to have several implications, both positive and negative. On one hand, the introduction of this process is likely to reduce the time and costs associated with litigation, as well as promote amicable dispute resolution. On the other hand, it may also have certain drawbacks such as the lack of access to justice for some, and the potential for the process to be abused. One of the key benefits of the introduction of mandatory pre-litigation mediation in India is the reduction of time and costs associated with litigation. The process is typically less expensive, faster, and more efficient than the court system. This is especially beneficial for small and medium sized businesses, who often cannot afford to engage in lengthy and costly court battles. Furthermore, the process is voluntary and the parties are not forced to accept the terms of the mediator.
This ensures that the parties are able to exercise their autonomy and come to an agreement that is in their best interests. However, there are also some potential drawbacks associated with the implementation of mandatory pre-litigation mediation in India. For instance, the process may be less accessible to those who cannot afford to hire a mediator, or those who have limited access to information about the process. Furthermore, since the process is voluntary, there is a risk that the process may be abused, with one party taking advantage of the other. This could lead to inequitable outcomes, and even encourage a culture of unfair settlements. In conclusion, the introduction of mandatory pre-litigation mediation in India is likely to have both positive and negative implications. The process is likely to reduce the time and costs associated with litigation, as well as promote amicable dispute resolution. However, there are also some potential drawbacks associated with the process, such as the lack of access to justice for some, and the potential for the process to be abused. The Mediation Bill, 2021 introduces mandatory pre-litigation mediation as a means of resolving disputes before proceeding to court. While the bill aims to promote the use of mediation and reduce the backlog of cases in the courts, there are several implications that need to be considered, including:
- Compliance: The mandatory pre-litigation mediation process requires parties to comply with the provisions of the bill, including attending mediation sessions and following the rules and procedures set forth.
- Mediator selection: The bill requires parties to select a mediator from a panel of accredited mediators, which may limit their options and raise concerns about impartiality.
- Burden on the courts: The mandatory pre-litigation mediation process places additional responsibilities on the courts to oversee the process, monitor compliance, and ensure that it is carried out effectively.
- Effectiveness: The success of the mandatory pre-litigation mediation process depends on the willingness of parties to engage in the process and the skills of the mediator. There is a risk that the process may not be effective in resolving disputes, particularly in cases where one party is unwilling to cooperate.
- Resistance: There may be resistance from parties who are unfamiliar with the mediation process or who prefer the adversarial approach of litigation.
- Impact on traditional dispute resolution system: The mandatory pre-litigation mediation process may disrupt the traditional dispute resolution system, potentially leading to changes in the role and responsibilities of courts, lawyers, and other legal professionals.
Given these implications, it is important to carefully consider the provisions of The Mediation Bill, 2021 and to implement the mandatory pre-litigation mediation process in a manner that balances the benefits and limitations of the process.
Pre-litigation mediation requirements is Good or Bad?
The Bill’s inclusion of a required pre-litigation mediation is one of its defining aspects. Section 6(1) states that parties to a disagreement must first try to resolve their differences through mediation before bringing a lawsuit or starting a court case. It is interesting to note that this section makes this clause applicable whether the parties have agreed to mediate the dispute. In other words, even if there is not an existing agreement to mediate between the parties, mediation must be explored before litigation. An opt-out mechanism is an additional addition to this pre-litigation mediation process. A party may leave mediation at any time after the first two sessions by notifying the mediator and the other party of their decision to do so, in accordance with section 19(1) read with section 25(d). According to the date that such a message was made, the proceedings would be considered over.
From a policy standpoint, mandating mediation before filing a lawsuit helps hasten the resolution of disagreements by preventing them before they become serious. It will cut down on expenditures that parties would normally incur during litigation, which is typically seen to be expensive in India. The judiciary’s growing backlog of pending cases would also be lessened. However, the question that must be answered is whether obligatory mediation as a pre-litigation tool, as it is proposed to be in the Bill, can contribute to the achievement of the Bill’s goals.
In this sense, the author contends that section 6(1)’s phrasing serves more detrimental than beneficial purposes. First off, it is unclear what “Subject to other provisions of this Act” means and is partly superfluous. Subjecting the provision to other Bill sections would be illogical if the clause was meant to be mandatory. Second, the provision makes no mention of the specific “actions” that would be considered sufficient compliance with the section. Additionally, the option to leave the process after two sessions is likely to encourage unwilling parties to take advantage of these requirements to first submit their disputes to mediation and then eventually turn to courts or arbitration anyhow, reducing the entire procedure to a pointless procedural formality. There is no need for the Bill to allow parties the choice to avoid the mediation process if the lawmakers’ goal is to ensure that every issue should be resolved through mediation before going to court (apart from those that are determined to be exempt from mediation under the Bill). Thirdly, and perhaps most significantly, requiring mediation before filing a lawsuit may be seen as interfering with the authority of the parties. It can be ineffective to force parties to arbitrate their disagreements against their consent. It is important to remember that mediation is a voluntary procedure in which parties voluntarily provide sensitive material to an objective third party.
Pre-litigation mediation has recently been ruled by the Hon’ble Supreme Court of India to be required under the Commercial Courts Act 2015 (“Act of 2015”), therefore it’s probable that the legislature will be urged to keep section 6(1) in its current form to maintain equivalence with both sets of laws. Even though mediation should be required in every situation, caution should be taken. It is pertinent to note in this regard that as of July 2022, the Committee had submitted a report to the Speaker of the Lok Sabha (Lower House of Parliament) and the Chairman of the Rajya Sabha (Upper House of Parliament), making numerous recommendations to the Bill. In particular, the report cautioned against making pre-litigation mediation mandatory on the grounds that truant litigants might use such a tool to delay the resolution of cases. Section 6(1) of the Bill should be re-examined and pre-litigation mediation should be made optional, at least at the beginning, in order to achieve a balance between individual interests and policy considerations. The alternative is to need it solely in situations where the parties do not intend to seek any interim relief, like Section 12(A) of the Act of 2015. It might also be a better idea to evaluate an optional provision’s effectiveness before considering making it mandatory based on that effectiveness.
Challenges of Mandatory Pre-Litigation Mediation in India
In India, the question of pre-litigation mediation has been a subject of debate for many years. The Indian legal system is based on the concept of litigation as the final solution for disputes and thus does not encourage mediation as a form of dispute resolution. This is due to the fact that mediation is seen as an informal and non-binding form of dispute resolution, without the necessary legal authority. The most significant challenge of mandatory pre-litigation mediation in India is the lack of cultural acceptance and understanding of the concept. Mediation is often seen as a less reliable form of dispute resolution than the traditional system of litigation. This is due to the fact that it is seen as a less formal and less structured process which does not have the same legal authority as the court system. Another challenge is the lack of skilled mediators. In India, there is a shortage of mediators who are qualified and experienced enough to handle complex disputes.
Furthermore, the cost of hiring a professional mediator is often too high for the parties involved in the dispute. The lack of legal protection and enforcement of the agreement reached through mediation is another issue that needs to be addressed in India. The lack of legal protection means that parties may not be bound to abide by the terms of the agreement reached through mediation. This can lead to uncertainty and further disputes. Finally, there is the issue of confidentiality. In India, mediation is often seen as a less confidential process than the traditional court system. This is due to the fact that the parties involved in the dispute are likely to be known to each other and the proceedings are open to the public. This can lead to a lack of trust and confidentiality between the parties, meaning that the mediation process may not be as effective as it could be. Overall, these challenges need to be addressed for pre-litigation mediation to become more widely accepted and implemented in India.
The government and other legal bodies need to take the necessary steps to ensure that mediation is seen as a reliable form of dispute resolution and that the legal protection and enforcement of agreements is improved. Furthermore, more qualified and experienced mediators need to be trained and developed in order to ensure that mediation is a viable and cost-effective form of dispute resolution. Limited Access, it is not always accessible to all parties, as it may require a significant financial investment or the assistance of a mediator. Lack of Understanding, without proper training, both parties may not fully understand the process or the power of mediation as a tool for resolution. Mandatory pre-litigation mediation can place undue pressure on parties to come to an agreement, which can lead to a less-than-ideal outcome. It further may not be able to address all issues or reach a comprehensive resolution, which can lead to further litigation. Lack of Incentive, without an incentive to come to an agreement, parties may be resistant to participate in the process, it requires an understanding of the process and the potential outcomes, which can be difficult to ascertain without proper guidance.
Conclusion
Mandatory pre-litigation mediation is a process that is required by law before a lawsuit can be filed. The Mediation Bill, 2021 proposes to make mediation a mandatory step in certain types of disputes before a lawsuit can be filed. The goal of mandatory pre-litigation mediation is to encourage parties to try to resolve disputes outside of court, which can save time and money for both parties. This paper has examined the concept of mandatory pre-litigation mediation and its implications for the legal system, showing that it has several benefits for both parties and the legal system. However, it is important to note that the Mediation Bill, 2021 is still under discussion and may be subject to change.
The pre-litigation mediation provision in the Bill aims to give parties an opportunity to resolve their disputes without resorting to litigation. It seeks to encourage early resolution of disputes and to reduce the number of court cases. The Bill seeks to reduce the burden of courts, the time taken to resolve disputes and the cost of litigation. It also seeks to provide an effective and speedy resolution of disputes. The Bill provides that pre-litigation mediation shall be mandatory in cases where the parties have agreed in writing or have been ordered by the court in writing to mediate. The Bill also provides for the establishment of mediation centres and the appointment of mediators. It also sets out the duties and responsibilities of mediators. In conclusion, the Mediation Bill, 2021 seeks to promote and facilitate a culture of amicable resolution of disputes. It provides for the establishment of mediation centres and the appointment of mediators, and makes pre-litigation mediation mandatory in certain categories of disputes. It is expected that this will reduce the burden of courts, the time taken to resolve disputes and the cost of litigation. It is also expected to result in an increase in the number of disputes resolved through mediation, thus contributing to an overall decrease in the number of court cases.
References:
- https://prsindia.org/billtrack/the-mediation-bill-2021
- https://www.mondaq.com/india/arbitration–dispute-resolution/1234594/mediation-bill-2021-necessity-or-over-complication
- https://www.thehindu.com/news/national/explained-the-mediation-bill-2021/article65967986.ece
- https://mediationblog.kluwerarbitration.com/2022/11/28/a-critical-analysis-of-the-indian-mediation-bill-2021
- https://corporate.cyrilamarchandblogs.com/2022/10/analysis-mediation-in-india
- https://www.legalserviceindia.com/legal/article-9559-mediation-bill-2021-issue-and-challenges.html
- https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/19122022_103126_102120526.pdf
Written by
Vaishnavi Rastogi
BA., LLB Hons., Christ Deemed to be University Lavasa, Pune (6th Semester 70.5%)