Page 51 - Banking Finance October 2023

FEATURES

Mediation Bill:

A new beacon of hope?

T he Mediation Bill, as passed by both Houses in warrant liberal interpretation, which may prove to be a bone

August 2023 and currently awaiting Presidential
of contention between parties.
assent, seeks to codify, institutionalise and
promote the process of mediation by establishing
community conflicts and other unconventional domains in
the Mediation Council of India recognising mediation service The Bill expands mediation to include family disputes,
providers and providing for the registration of mediators. It addition to civil and commercial disputes. Moreover, the
also provides for online and community mediation. Mediation Bill will have an overriding effect for conducting
mediation over other laws, except for legislations specified
Essentially, it makes prelitigation mediation voluntary in under the second schedule and to proceedings conducted
nature, allowing parties to choose if they want to participate by the Lok Adalat.
in the process. Originally the Bill had made prelitigation
mediation compulsory, but the Standing Committee on Further, the Bill initially envisaged that the mediation process
must be completed within 180 days, which may be extended
Personnel, Public Grievances, Law and Justice proposed to
by another 180 days by the parties. However, it appears that
make prelitigation mediation voluntary and not mandatory.
adhering to the suggestions of the Report of the Standing
Now, a provision acknowledges the autonomy of the
Committee, this was reduced to an initial period of 120 days,
involved parties and allows them to opt out of mediation
which could be extended by 60 days. Even if the parties fail
after Now, mediation can be coaxed but not forced
to reach a settlement through prelitigation mediation, the
undergoing two sessions if they desire. Mediation can be
court or tribunal may at any stage refer the parties to
coaxed but not forced.
mediation if they request the same.
Further, the Bill provides for creation of a 'Mediation Service Enforcing Settlements
Provider' or MSP, to conduct mediation procedures,
The Bill seeks to enforce mediated settlement agreements
accreditation, maintenance of panels and all operations
as per the provisions of Civil Procedure Code, as if it were a
ancillary thereof. The MSP will be graded by the Mediation
Council of India. The Bill also provides an indicative list of judgement or decree passed by the court. With this
development, parties to the dispute will have quicker access
subject matters not fit for mediation, including disputes
to resolution in addition to reduced burden on the courts.
involving allegations of fraud, forgery, claims involving
minors, persons suffering from intellectual disabilities, tax
By following the suit of codifying the mediation provisions
disputes, disputes under the Competition Act, among others.
from various international instruments, the code emerges
as a beacon of hope in addressing the issues of binding
Although, an indicative list goes a long way in reducing confidentiality, party empowerment, procedural clarity, bias
doubt, broadly worded subject matters such as "settlement
and neutrality.
of matters which are prohibited being in conflict with public
policy or is opposed to basic notions of morality or justice or However, the loopholes require immediate attention so as
under any law for the time being in force" would possibly to instil confidence in the process. (Source: Business Line)

BANKING FINANCE | OCTOBER | 2023 | 51