The Mediation Bill, 2021

What are the changes which the Parliamentary Standing Committee has recommended to the draft Bill introduced in the Rajya Sabha last year? Will pre-litigation
mediation be mandatory for all disputes before filing a suit in court?

EXPLAINER THE GIST

D
G. S. Bajpai
Vikram Karuna The Mediation Bill, 2021 was
introduced in the Rajya Sabha
on December 20, 2021, with the
The story so far: Parliamentary Standing

T
he Mediation Bill, 2021 was intro- Committee being tasked with a
duced in the Rajya Sabha on De- review of the Bill. The
cember 20, 2021, with the Parlia- committee’s report to the
mentary Standing Committee being tasked Rajya Sabha was submitted on
with a review of the Bill. The committee’s July 13, 2022.
report to the Rajya Sabha was submitted
D
on July 13, 2022. In its report, the Commit-
tee recommends substantial changes to The Bill proposes mandatory
the Mediation Bill, aimed at institutionalis- mediation before litigation. At
ing mediation and establishing the Media- the same time, it safeguards
tion Council of India. the rights of litigants to
approach competent
Why does India need to promote adjudicatory forums/courts for
urgent relief. The mediation
mediation?
process will be confidential
While there is no standalone legislation for
and immunity is provided
mediation in India, there are several sta- against its disclosure in certain
tutes containing mediation provisions, cases. It also establishes the
such as the Code of Civil Procedure, 1908, Mediation Council of India and
the Arbitration and Conciliation Act, 1996, also provides for community
the Companies Act, 2013, the Commercial mediation.
Courts Act, 2015, and the Consumer Pro-
tection Act, 2019. The Mediation and Con- ISTOCKPHOTO D
ciliation Project Committee of the Su- According to the Bill,
preme Court of India describes mediation provided against its disclosure in certain which cannot be fettered or restricted. Me- tional mediation to be domestic when it is pre-litigation mediation is
as a tried and tested alternative for conflict cases. The outcome of the mediation pro- diation should just be voluntary and mak- conducted in India with the settlement be- mandatory for both parties
resolution. As India is a signatory to the cess in the form of a Mediation Settlement ing it otherwise would amount to denial of ing recognised as a judgment or decree of before filing any suit or
Singapore Convention on Mediation (for- Agreement (MSA) will be legally enforcea- justice. Additionally, according to Clause a court. The Singapore Convention does proceeding in a court. Parties
mally the United Nations Convention on ble and can be registered with the State/ 26 of the Bill, court-annexed mediation, in- not apply to settlements that already have who fail to attend pre-litigation
International Settlement Agreements Re- district/taluk legal authorities within 90 cluding pre-litigation mediation, will be the status of judgments or decrees. As a re- mediation without a
sulting from Mediation), it is appropriate days to ensure authenticated records of conducted in accordance with the direc- sult, conducting cross-border mediation in reasonable reason may incur a
to enact a law governing domestic and in- the settlement. The Bill establishes the Me- tions or rules framed by the Supreme India will exclude the tremendous benefits cost. However, as per Article 21
ternational mediation. diation Council of India and also provides Court or High Courts. However, the Com- of worldwide enforceability. of the Constitution, access to
for community mediation. mittee objected to this. It stated that Clause justice is a constitutional right
What are the key features of the Bill? 26 went against the spirit of the Constitu- What next? which cannot be fettered or
The Bill aims to promote, encourage, and What are the concerns with the Bill? tion. In countries that follow the Common In order to enable a faster resolution of dis- restricted. Furthermore, the Bill
considers international
facilitate mediation, especially institution- According to the Bill, pre-litigation media- Law system, it is a healthy tradition that in putes, the Bill should be implemented af-
mediation to be domestic
al mediation, to resolve disputes, commer- tion is mandatory for both parties before the absence of statutes, apex court judg- ter discussion with stakeholders. If the is-
when it is conducted in India
cial and otherwise. filing any suit or proceeding in a court, ments and decisions carry the same sues of the Bill aren’t fixed, our aspirations with the settlement being
The Bill further proposes mandatory whether or not there is a mediation agree- weight. The moment a law is passed ho- to become an international mediation hub recognised as a judgment or
mediation before litigation. At the same ment between them. Parties who fail to at- wever, it becomes the guiding force rather for easy business transactions could be decree of a court.
time, it safeguards the rights of litigants to tend pre-litigation mediation without a than the instructions or judgments given crushed before they’ve even begun.
approach competent adjudicatory forums/ reasonable reason may incur a cost. Ho- by the courts. Therefore, Clause 26 is un- G.S. Bajpai is the Vice Chancellor, Rajiv
courts for urgent relief. The mediation pro- wever, as per Article 21 of the Constitution, constitutional. Gandhi National University of Law, Punjab
cess will be confidential and immunity is access to justice is a constitutional right Furthermore, the Bill considers interna- where Vikram Karuna is Assistant Professor