The Draft Mediation Bill, a well-timed involvement

The Draft Mediation Bill, a well-timed involvement

Broadly, the Draft Mediation Bill intends "to promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes."

The COVID-19 pandemic has added fuel to the fire at the existing huge bottleneck of cases. Undoubtedly, the justice system is over-stressed with excess 4.4 crore court cases awaiting throughout the country.

The time has come to dig out proper, consistent and proficient way of justice with every possible set-ups, help fight out this threat.

Besides high-priced process, affecting right of entry deferred justice system wear away self–assurance.

The instigated process has already made justice easily accessible and acceptable with Lok Adalats and other appliances. The Draft Mediation Bill of 2021 appears to be one such durable and influential stage in that direction.

Broadly, the Bill intends "to promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes...to encourage community mediation and to make online mediation as an acceptable and cost effective process and for matters connected therewith or incidental thereto."

The strengths and weaknesses of both the parties are clarified, making the process faster. Adjudication needs only the matter to be discussed between the parties. In addition, many time constraint and complex methods and measures of the courtroom are allotted, hence saving additional expense, time and work. Most significantly, the non-adversarial process possibly allows exclusive and dynamic solutions. The interests of both the parties are talked of, hence no competition along with unique ways to deal the dispute can be suggested.

India has certainly been pushing towards ADR mechanisms. Section 89 of the Civil Procedure Code of 1908 lays down the procedure for courts to refer matters to mediation, arbitration, conciliation and judicial settlement. The courts on various occasions have emphasised the importance of these mechanisms and have encouraged out of court settlements. A number of judgments by the Supreme Court have emphasised on the crucial role of ADR.

Globally, the push has been to dampen litigation and boost ADR strategies. For instance, the United Kingdom, has demanding pre-action protocols. These are the prior necessities to begin any litigation and must be fulfilled even before the courts take cognizance of any matter. The United States has similar provisions for ADR preferences.

Mediation will surely help in fast-moving justice and in de-cluttering the courts as well. It allows a smooth parallel mechanism of dispute resolution not restrained by formality and firm procedures, often associated with litigation.

Nevertheless, it is vital to go ahead attentively, help make it a productive and significant exercise. At the inception, the kind of cases that lend themselves to mediation have to be well-defined and well-ordered. Inevitably, most of the criminal cases will be ruled out, as a crime is against the State and not just against an individual. For private cases, pecuniary jurisdiction and subject matter jurisdiction need to be distinct.

The infrastructure to support mediation also required to be nurtured with passion, which is supposed to begin at law schools and carry on further beyond. The body regulating the education and enrolment of lawyers, the Bar Council of India, in a very progressive step has already made mediation and conciliation a required subject at law school.

Most importantly, society is to be introduced in general to the benefits of ADR and how it can be an operative substitute to litigation. As the Bill predicts, exceptions should also be inbuilt within the framework, for genuinely crucial cases where mediation is not a feasible way out.

The Bill offers a dynamic shift towards creating a well-known method of dispute resolution to our society. It should, however, be a crucial consideration that any change caters to all stakeholders across the country and socio-economic strata, hence it becomes a sincere way to resolve clashes.