Sushil Modi-led parliamentary law panel submits report on Mediation Bill

By Payal Mehta
New Delhi [India], July 13 : The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice headed by Bharatiya Janata Party MP Sushil Kumar Modi presented its report on the Mediation Bill, 2021 to Rajya Sabha Chairman M Venkaiah Naidu and Lok Sabha Speaker Om Birla on Wednesday.
The Committee held 10 meetings spanning more than 17 hours in all and recorded views of more than 125 witnesses. The Committee held extensive deliberations on the Bill with the Stakeholders which included the Secretary, Department of Legal Affairs and other Senior Officials of the Ministry of Law and Justice.
In addition to the views of the Government, the Committee decided to seek the views or suggestions of public in general, experts/ stakeholders/ organizations like the concerned citizens; lawyers; mediation experts; mediation institutions; Central and State Bar Councils; Supreme Court, High Courts and State level Bar Associations; representatives from the Indian Industries and Commerce, Academicians and Academic institutions; serving and retired High Court Judges; organizations working in the field of law and public policy; Mediation and Conciliation Project Committee (MCPC) Supreme court and some Mediation centres attached to High Courts.
Amongst those Chief Justices that the Committee met include the Chief Justice of the High Court of Karnataka Bombay and Madras. Some of the important issues identified by the panel with the observations/recommendations include Government as a litigant.
The Committee noted that as per Proviso to clause 2 (2), unless specifically notified by the Central and/ or State Governments, non-commercial disputes with Government as one party, are, by and large, outside the ambit of the mediation Bill.
However, keeping in view the intended purpose of the Bill to reduce the pendency in courts, the Committee recommended that the wordings of clause 2 (2) may be suitably modified so that government-related disputes are not excluded from the purview of the Mediation Bill, 2021.
The Committee further observed that the purpose of the Singapore Convention is to facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements across borders. The Committee was informed by the Ministry that India has not ratified UNISA yet. The Committee has taken cognizance of the reasons given by the Ministry for not including the provisions of UNISA at this stage of the Mediation Bill but the Committee recommends that the present definition of 'International Mediation' needs to be revisited, so that, in future, the provisions of Singapore Convention can be incorporated in the enactment without any ambiguity.
The Committee noted with concern that clauses 6, 7, 8, 9 and Schedule 1 are interconnected and contradictory at the same time. The Committee further notes that the provisions of clause 6 also state that pre-litigation mediation shall be made applicable to the matters pending before the Tribunals also. The Committee failed to understand as to how the matter pending before a tribunal will be treated as pre-litigation mediation. The definition of pre-litigation mediation and court-annexed mediation needs further clarity. The Committee, therefore, recommended that clauses 6, 7, 8 and 9 are needed to be rearranged to have better clarity on the provisions of 'pre-litigation mediation' and 'court annexed mediation'.
The Committee further observes that making pre-litigation mediation mandatory may actually result in delaying of cases and may prove to be an additional tool in hands of litigants to delay the disposal of cases. The Committee feels 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.
10. Against this background, the Committee recommends that the compulsory provision of Pre-litigation mediation should be reconsidered.

Mediation Proceedings - Clauses 15, 16, 17, 20 & 21
The Committee feels that the time limit provided for the completion of mediation process in clause 21 of the Bill is too long. Though, some of the stakeholders felt that there should not be any time limit prescribed for completion of mediation process, the Committee is not in agreement with this open-ended clause. The Committee, therefore, recommends that it would serve the object of the bill better if the time limit is reduced, say to 90 days plus an extended period of 60 days (also mentioned in the Commercial Courts Act), instead of 180 days and further extension of 180 days with consent of parties (as stipulated in the Bill). The Committee accordingly, recommends that the provisions of the Bill may be suitably amended.

The Committee further agreed with the opinion of the experts that Clause 22 is too long and contains too many provisions. Therefore, the Committee recommends that Clause 22 should be rearranged into three clauses, the first Clause should deal with the details of mediated settlement agreement and its procedure; the second Clause should deal with the submission of non-settlement report, and the third Clause should deal with the registration of MSA.

The concept of Online dispute resolution has gained traction during the COVID 19 pandemic. Online mediation delivers speedy justice in a cost-effective manner. The Committee notes that the instant bill contains only clause dedicated to online mediation. Keeping in view the emerging requirements, the panel recommended that detailed provisions and modalities for online mediation should be incorporated into the Bill appropriately.
The committee appreciated the Ministry for instituting a framework for the resolution of disputes that are likely to affect the peace, harmony and tranquillity in society. The Committee is of the view that the term 'mediator' used in sections 44 and 45 of the Bill need to be substituted by the term 'Community mediator' as the mediators engaged in community mediation are not trained and qualified mediators as defined in clause 3 of the bill.
Rajya Sabha Chairman M Venkaiah Naidu had granted a further extension of one-month time with effect from June 22, 2022 to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination and report on 'The Mediation Bill, 2021'.
The Mediation Bill, 2021, was introduced in Rajya Sabha on December 20, 2021 and the Rajya Sabha Chairman referred the said Bill to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination and report, on December 21, 2021.

The Mediation Bill is "to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost effective process and for matters connected therewith or incidental thereto."
The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal. A party may withdraw from mediation after two mediation sessions. The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.
The Mediation Council of India will be set up. Its functions include registering mediators, and recognising mediation service providers and mediation institutes (which train and certify mediators).
The Bill lists disputes that are not fit for mediation (such as those involving criminal prosecution, or affecting the rights of third parties). The central government may amend this list.
If the parties agree, they may appoint any person as a mediator. If not, they may apply to a mediation service provider to appoint a person from its panel of mediators.
Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.