How Would You Respond If I Told You That There Are Alternatives To Using
The Courts To Settle Your Disputes?
Be not alarmed. There are such techniques, and the parties attempt to settle
their conflicts outside of the courts. Alternate Dispute Resolutions are what
they are known as (ADR). These techniques are typically quick, simple, and
time-efficient. This is why ADR is currently preferred by the majority of
Unlike traditional courts, these dispute-resolution procedures do not involve a
judge; instead, a neutral third party assists the parties in coming to a
mutually agreeable resolution.
These methods are:
- Lok Adalats
Mediation is the resolution of a conflict or controversy through the
placement of an impartial third party between two disputing parties to assist
them in resolving their disagreement.
Introduction to Mediation Bill 2021
The Bill describes mediated agreement settlements and includes a comprehensive
definition of all the requirements for the mediation process. Additionally, it
provides definitions for words like mediation. The concept and meaning of
mediation are provided in Section 4 of the Bill.
This Section defines mediation as a procedure whereby the parties to a dispute
ask a neutral third party known as a mediator to aid them and assist them in
coming to a mutual settlement.
Online mediation, pre litigation mediation, and community mediation are also
Objectives of Mediation BillThe Bill has several goals, including the following:
Features of the Bill
The Bill's characteristics are:
- It also defines some legal terms and lays forth a uniform mediation
process that must be followed throughout the nation.
- The Bill's main goal is to spread awareness of mediation, a less
time-consuming and more affordable way to settle conflicts, in order to
decrease the number of cases that are now ongoing in court.
- Pre-litigation mediation is also included under the bill, which defines
- Additionally, it specifies the authority and duties of courts and
tribunals during the mediation process.
- In mediation, a third party acting impartially serves as the mediator.
The norms of confidentiality, neutrality, impartiality, and involvement are
not currently enforced by any official body.
Scheme of the Bill
- It describes the idea of pre-litigation mediation and provides a
consistent definition and meaning for the terms mediation, mediators, and
other legal terms.
- Additionally, it encourages the use of institutional mediation as a
dispute resolution method.
- It also includes the disputes that are ineligible for mediation and are
exempt from such proceedings under the Bill.
- It outlines the responsibilities and duties of mediators and offers
guidelines for hiring, firing, and replacing them.
- It states that all agreements or settlements reached through mediation
will be legally binding on the parties and have the same impact as if they
had been approved by a judge.
- It also specifies the measures to be taken in such a process and grants
the courts and tribunals the authority to send a case to mediation.
- The council's membership, incorporation, retirement, and termination, as
well as its duties and authority, are all outlined in this document.
- The idea of community mediation and its processes are explained in more
- It also covers the cash, accounts, and essential audits of the mediation
process and includes clauses for the mediators' service providers.
- The Bill gives the parties the option to withdraw from mediation
procedures or ask for a different mediator.
- It considers the difficulties in enforcing mediated settlement
- It also includes provisions for online mediation in order to achieve the
goal of the digital India.
- The creation of the Mediation Council of India, a formal legal body to
deal with mediation and problems resulting from its methods, is one of the
Bill's most significant provisions.
The Bill is broken down into 10 schedules, 11 chapters, and several sections and
The Bill's various chapters include:
Application of the Law
- If the government enacts the bill, Chapter 1 discusses the name, scope,
and start date of the Act.
- The application of the Bill is explained in Chapter 2.
- The idea of mediation, prelitigation mediation, mediation agreements,
and the authority of courts and tribunals to refer parties to mediation are
all explained in Chapter 3.
- Chapter 4 goes into more detail on mediators, including their hiring,
firing, compensation, benefits, and replacement
- The mediation process and other nuances are described in Chapter 5 of
- The enforcement of mediated settlement agreements is covered in more
detail in Chapter 6.
- The idea of online mediation is explained in Chapter 7
- The creation of the Mediation Council of India and its other
requirements are outlined in Chapter 8.
- Institutions and service providers for mediation are covered by Chapter
- Community mediation is explained in chapter 10.
- Chapter 11 is a supplemental chapter that addresses cash, accounts, and
audits related to mediation.
The Bill's applicability is described in Section 2 of the Bill.
It stipulates that all mediations taking place in the nation where:
Every party to a dispute either resides in India, is incorporated here, or
conducts business there. Alternatively, a mediation agreement may provide that
any such issue would be settled by mediation in accordance with the Bill's
Additionally, it states that it will not be applicable if one or both parties
are federal, state, or local governments, public bodies, companies, or local
bodies, entities that are under their control, unless the dispute is one of
Pre-litigation and mediation agreementsThe following mediation agreements are regarded as mediation agreements under
Section 5 of the Bill:
Agreement that commits a dispute to mediation and is made in writing by the
parties or by either of them acting on behalf of the other.Any agreement that
has a mediation clause will be regarded as a mediation agreement if there is a
Agreement in writing if it is represented by one of the following:
- An electronic letter or other communication between the parties,
Arguments made in court.
- Any agreement in accordance with Section 3 clause (a) will be regarded
as a mediation agreement when it comes to international mediation.
According to Section 6 of the Bill, entails that before bringing a case before
any civil or commercial court, the parties must attempt to resolve their
differences through mediation, even if there is no mediation agreement.
For instance, a dispute over compensation in an accident under the Motor
Vehicles Act of 1988 may be referred to mediation before it is claimed in a
tribunal, and if a settlement is made, it is presented to the tribunal for
consideration. This is outlined in clause 6 of Section 6.
The term "mediator" is defined as a person designated to conduct mediation
procedures under the Bill and who is also registered as one with the council in
Section 3(h) of the Bill.
Chapter IV also covers mediators, their selection, dismissal, and the parties'
Termination and replacement of mediator appointments
The parties have the authority to select a mediator for their disputes and the
procedure for that
mediator's appointment under Section 10 of the Bill.
According to the Bill, this person must be certified to serve as a mediator.
The mediation service provider shall assign a mediator from the panel for the
parties' dispute within 7 days if the parties are unable to agree on a mediator
or if the mediator decides or declines to act as a mediator in their case. The
service providers must take the parties' preferences into account while doing
Additionally, Section 13 permits the mediator to be dismissed for the
- Applications from the parties
- conflicts of interest
- or if he decides not to participate as a mediator himself
The mediator is required to carry out the following duties:
- A mediator is required by Section 12 to reveal any situations that could
compromise the secrecy of the proceedings, his objectivity, or result in a
conflict of interest.
- The right to object has been granted to the parties following such
- The mediator's responsibility is to lead mediation sessions.
- He will provide them objective advice so they can end their dispute
amicably (Section 17).
- Additionally, he will guarantee that the norms of voluntariness,
confidentiality, and the parties' right to self-determination are upheld
throughout the procedures.
- Additionally, he will choose the terminology to be utilised during the
mediation process and work to resolve any misconceptions between the parties
as well as their questions and concerns.
However, in accordance with Section 19 of the Bill, he will not serve as an
arbitrator, the parties' counsel, or as a witness in any legal proceedings.
If there is a mediation agreement, these proceedings will begin on the day the
other party receives the mediation notice. If there is no such agreement, then
the mediation process will begin on the date that a mediator is chosen or agreed
upon by both parties. These proceedings include meetings with the parties either
collectively or individually during the sessions.
After the first two meetings, parties have the option to leave the mediation
process; however, if one party does not do so and the mediation fails, the court
may order both parties to pay costs. A deadline of 180 days is specified in
Section 21 for the completion of all mediation processes.
The following method will be used to end the proceedings:
- when the mediated agreement has been authenticated and signed.
- After meeting with the parties, the mediator issues a formal declaration
declaring that such proceedings are not justified.
- Immediately following the mediation session where the side missed the
first two sessions without notifying the mediator, and seven days later.
- Both parties informed the mediator in writing of their decision to end
- In the event of institutional mediation, the mediator will send the
report of failure to the provider of mediation services without providing
reasons for failure; in all other instances, it will be provided to the
- Agreements from online mediation are also included in this category.
Those agreements were signed using electronic signatures and verified by the
According to Section 28 of the Bill, mediated settlement agreements that have
been signed and authenticated are final and binding on the parties and can be
enforced much like a court order issued in accordance with the Code of Civil
Except for those mentioned in Lok Adalats, Section 29 states that such
agreements may be contested by either party by submitting an application within
90 days to a court with appropriate jurisdiction.
Any agreement may be contested for the following factors:
Indian Mediation Council
- Impersonation, corruption, and fraud
- Even if the disputes weren't appropriate for mediation, it was still
The council will exercise the powers and perform the duties outlined in the Bill
as a body corporate with perpetual succession and a common seal.
The Bill's Section 33 establishes the council and specifies that it would have
its headquarters in Delhi or any location that the central government notifies.
The council has the authority to make contracts, possess and acquire both
movable and immovable property, and to bring and defend legal actions.
Make Up Of The Council
In accordance with Section 34, it will be made up of the following
The central government will appoint a chairperson with sufficient expertise in
managing public affairs and ADR, along with full-time members, an ex-officio
member who previously held the position of secretary to the government of India
in the Department of Legal Affairs or Ministry of Justice, the chief executive
officer, and part-time members.The members can be appointed again after serving
in the position for four years. After becoming 70 years old, they will not be
permitted to hold office.
Functions and duties
The Bill specifies a number of obligations for the council.
Problems emphasised by the committees
- To carry out its duties, it has the power to appoint expert committees.
- The council's chief executive officer will be in charge of carrying out
the council's decisions on a daily basis.
- The council has a responsibility to use a variety of strategies to
advance internal and international mediation in India.
- Make India a strong mediation hub.
- Establish standards for the evaluation and ongoing training of
- Give instructions on how to register mediators, ask them to leave, and
suspend them in certain situations.
- Create a rule of behaviour for mediators that is both professional and
- To inform people about mediation, hold training sessions and workshops
in various locations.
- It must sign memorandums of understanding with both national and
- Recognize organisations who offer mediation services.
- Publish the relevant facts and information.
- Keep an electronic record of the settlements reached through mediation.
Some standing committees have brought up certain points after studying the Bill.
- Mandatory pre-suit negotiations
Even if there is no mediation agreement, the Bill mandates that the parties
attend pre-litigated mediation before going to court or any other tribunal.
Even if the parties are unwilling to use mediation, this will unduly
obligate them to do so. This also demonstrates the Bill's coercive nature,
which will cause delays and pending mediation cases.
The parties must not be coerced into choosing mediation as the mode of
conflict resolution when they are not voluntarily prepared to do so.
Another problem in this regard is that, according to clause 26 of the Bill,
the Supreme Court has the authority to establish guidelines for
prelitigation mediation, leaving the parties with no alternative option.
- Non-business disputes
Another significant problem is that the Bill only applies to business
disputes if one or more of the parties is a central or state government
agency, a public entity, a local authority, etc.
Why can't noncommercial issues with the government as one of the parties be
resolved through mediation is the question.
- Worldwide negotiation
The fact that an international mediation will only be taken into
consideration if it is held in India is another significant problem.
However, the Bill makes no mention of settlements or agreements reached
through external international mediation. The Bill makes no mention of whether
or not such agreements will be upheld or challenged.
The committees have thus far offered the following suggestions:
- It is necessary to make pre-litigation mediation voluntary and optional.
- The choice of the method to be used for settling conflicts and pursuing
justice must belong to the parties.
- Another suggestion is that a separate selection committee be used to
appoint the council members in order to ensure fairness and openness.
- The Bill's clause merely states that these members "must have the
knowledge and capacity," which is vague.
- The members must be chosen based on a set of precise requirements.
- The sole central mediation council mentioned in the bill.Given the
diversity of India, state councils are also necessary.
- All state councils will be supervised by the central council, which will
also aid in accomplishing the goal of the Bill, and thus will help to
promote transparency and accountability.
- The committees also recommended that all mediators register with a
single organization possibly the Mediation Council of India and receive a
distinct registration number that makes it simpler to arrange training
sessions. In order to facilitate a rapid resolution, it also suggested
cutting the mediation time restriction from 180 days to 90 days and the
extension term to 60 days.
Through the mediation process, the two disputing parties can work together to
resolve their differences and come to a mutually agreeable resolution. It is an
alternate dispute resolution method that is distinct from the traditional court
system. It is a quick, simple, and economical procedure to settle conflicts;
there is no need to appear in court or establish a specific courtroom.
There isn't a single piece of legislation in the nation that covers mediation,
though. The parliament introduced a Bill in this area in 2021 to close this gap.
It is currently given to the standing committees for recommendations.If
approved, it will assist in lessening the load on the courts caused by pending