Mediation: India
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The Mediation Act
As in 2023
Sep 18, 2023: The Times of India
New Delhi : The government notified the mediation Act, more than a month after the two Houses of Parliament unanimously passed an enabling bill mandating pre-litigation mediation in all civil or commercial disputes, though voluntarily, with the consent of both parties. The process has to be completed within 180 days and can be extended by another 180 days only if parties involved agree to it.
The Act also provides for a legal framework which includes setting up of a Mediation Council of India and institutions recognised by it to extend mediation services. This is intended to bring down the heavy workload of the judiciary and reduce huge pendency in courts.
The Act provides for disputing parties to challenge the mediation award in courts only on grounds of corruption or fraud. The agreement reached by both the parties under mediation cannot be challenged after 90 days of receiving the copy of the mediation verdict, unless the court decides otherwise.
With the statutory backing provided to mediation, the Act provides that whether any mediation agreement exists or not, any party before filing any suit or proceedings of civil or commercial nature in any court shall, take steps to settle the disputes by pre-litigation mediation in accordance with the provisions of the new law.
“The mediation law would bring in requisite legal intervention towards providing statutory recognition to mediation and enabling growth of a culture of amicable settlement of disputes, out of court. A settlement not only helps in preserving the relationship amongst the parties offering ease of business but also contributing in the growth of the economy,” according to the law ministry.
The Act provides freedom to parties to appoint their mediator who are registered with the authority or can seek the help of mediation service providers, again which are recognised by the mediation council. The mediators can be an Indian or a foreign national who meets the eligibility criteria as laid down in the Act. “It is advisable if companies have a mediation clause in all future contracts to avoid litigation as pre litigation mediation is also allowed. In case of disputes of payment with PSUs it will help and cut legal cost,” said lawyer RS Sharma.
Rules
Reporting not allowed
Dhananjay Mahapatra, Reporting not allowed on mediation, March 9, 2019: The Times of India
Muslim outfits welcomed the SC’s attempt to resolve the row through mediation, although All India Majlis-e-Ittehadul Muslimeen objected to the choice of Sri Sri Ravi Shankar as one of the mediators, by pointing out that the spiritual guru favoured construction of Ram temple at the disputed site.
Though it did not specifically pass a gag order on the committee’s proceedings, the bench comprising the CJI and Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer said there should not be any reporting on the matter and “empowered” the panel to issue necessary orders. While specifying Faizabad as the venue for in-camera mediation, the court said, “Mediation proceedings should be conducted with utmost confidentiality so as to ensure its success which can only be safeguarded by directing that proceedings of mediation and the views expressed therein by any of the parties, including the mediators, shall be kept confidential and not revealed to any other person.”
The Hindu parties opposed the court’s suggestion during the two previous hearings, on February 26 and March 6, to refer the dispute for mediation. They held that such attempts were made in the past and this too would prove futile. But Muslim parties, along with Nirmohi Akhara and Sunni Wakf Board, had agreed for mediation. In its 2010 verdict, the Allahabad HC had allotted the two entities one-third each of the disputed land with the other third going to deity Ram Lalla.
Aware of the likely intense media focus on the mediation process, and conscious that wide coverage of views expressed could inflame emotions detrimental to an amicable solution, the bench said, “There ought not to be any reporting of the said proceedings in print or in electronic media. However, we refrain from passing any specific order at this stage and instead empower the mediators to pass necessary orders in writing, if so required, to restrain publication of details of mediation proceedings.”
The five-judge bench directed the UP government to make arrangements for a suitable mediation venue in Faizabad, a place to stay for the mediators, their security, travel and other requirements “forthwith” to enable them to start work in a week. It gave the panel the liberty to co-opt more mediators if needed and also take “such legal assistance” as they may feel necessary at any stage of mediation.
The court asked the panel to make efforts to complete the mediation process in eight weeks and submit a progress report in four weeks. Specifying the eight-week period is significant as this means the SC is exploring mediation as an alternative dispute-resolution process, and if it fails, will resume hearing on the appeals against the Allahabad HC verdict, which had divided the disputed land equally among Ram Lalla, Nirmohi Akhara and Sunni Wakf Board.
