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Recently, a separate bill for regulating the conduct and procedure of mediation was introduced in the Rajya Sabha in December 2021. The main objective of the legislature in bringing in such a law is to reduce the pendency of court cases. Further, the bill aims to open the doors to institutional meditation for ordinary people who do not want to get involved in lengthy court proceedings. The impact of Cov-19 on the court proceedings, taking it to the virtual hearings, had a positive effect on the bill makers, who also aimed to include virtual/online mediation, a cost-effective and time-consuming process. 

One of the most important and controversial provisions is Section 6, which makes pre-litigation mediation mandatory for the parties in civil and commercial disputes before instituting the suits or proceedings in the court/ tribunals. Mediation is a voluntary dispute resolution process; therefore, whether the legislation has adopted the right step by making pre-litigation mediation compulsory is an interesting aspect. The argument on this is two-faced, where compulsory mediation would not be beneficial to the parties, such disputes will go for mediation for the formality but will withdraw after two sessions from the process, thereby unnecessarily burdening the courts. On the other hand, Niti Aayog has observed that such a compulsory mediation process had positive outcomes in a few countries like Italy, Brazil, Turkey etc. Recently, the Supreme Court, in the case of M/s Patil Automation Private Limited and others vs Rakheja Engineers Private Ltd.(2022 LiveLaw (SC) 678), the bench comprising Justice KM Joseph and Justice Harikesh Roy has declared that Section 12A of the Commercial Courts Act, which mandates pre- institution mediation, is mandatory and suits which are filed violating this mandate are liable to be rejected at the threshold under Order VII Rule 11 of the Code of Civil Procedure.

The bill also highlights the ‘Role of Mediators’ in mediation. It allows either of the parties to appoint a mediator by writing an agreement. In cases where the parties fail or cannot appoint a mediator by mutual consent, they can take the recourse of a mediation service provider, an institution administering mediation. These institutions, which will train, educate, and certify mediators, must be recognised by the Mediation Council of India. Another critical function of the Council will be to provide certification, assessment and registration of mediators and to lay down standards for their professional and ethical conduct.

The change in the mediation regime will benefit the courts in reducing their burden of the workload of litigation matters as well as the parties, who can at ease attend the mediation from any part of the world through video conferencing, thereby being cost-effective for them. Nonetheless, the higher judiciary is apprehending the loss of the Marginalized section as they will settle for less due to unequal bargaining powers. In the words of Supreme Court Justice DY Chandrachud, “People from marginalised groups are often at a disadvantage in mediations due to the unequal bargaining power they possess over people from privileged backgrounds”.

However, the Supreme Court in the above referred judgement has expressed concern over the dearth of “Trained and Skilled Mediators” who can work wonders. The court also pointed out that the lack of infrastructure and a dedicated bar for mediation has undermined the accessibility of mediation amongst the commoners. Mediation must be perceived as a new mechanism of access to justice. The effective participation of the bar, which must be adequately remunerated for its service, will assist in mediation evolving".