Almost two decades after the Mediation and Conciliation Project Committee (MCPC) recommended mediation as an approach to settle disputes outside courts, the Government of India after much deliberation among stakeholders, enacted the Mediation Act 2023, on 15 September 2023.

The MCPC initiated mediation as a court integrated process which has proved very successful. Encouraged by results, the MCPC has conducted 40 hours’ Mediation Training Programme, raised awareness, albeit inadequate, and conducted Judges Training Programme/Referral Training Programme. The approach to mediation as an alternative dispute resolution originally flows from Mahatma Gandhi’s words. He said: “I had learnt the true practice of law.

I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.

I lost nothing thereby ~ not even money, certainly not my soul.” With the enactment of the Mediation Act, court annexed mediation centres are established across India. The National Legal Services Authority (NALSA), and the State Legal Services authorities had been given authority to provide mediation services in court-referred cases through court-annexed mediation centres before enactment of the Mediation Act, 2023. In fact, mediation does not require any court reference; many family disputes are resolved at family level, village level, in caste groups, and by the elders.

With the enactment of the Mediation Act, 2023, it is anticipated that mediation legislation will provide relief to industry, business, and families from the delays of courts. The mediators assert that only disputes should be brought to them, while the litigations go to courts. Neither mediators nor mediation institutions are responsible for resolving litigation. They only encourage the disputants to settle the disputes themselves and provide the required technical and expert opinion. Leaving the argument unchanged, India’s mediation legislation provides a legal foundation for institutional mediation.

Its aim is to “promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost-effective process and for matters connected therewith or incidental thereto.” Accordingly, the Mediation Act aims to reduce the burden on courts by encouraging disputants to resolve their disputes with the assistance of trained mediators and mediations facilitated by authorised mediation institutions.

The Act walks the additional mile by giving the mediation settlement agreement or mediation settlement deed the status of a court decree. To elaborate, if two parties go to a mediation institution, have their dispute mediated, resolve their dispute, reach a consensus on the issue, and write down their own terms and conditions, the mediator will attest to them.

It will become a court order that is legally enforceable. The law encourages low-income individuals and MSMEs to settle their disputes amicably rather than resorting to litigation. The key takeaways from the measure are pre-intuitive mediation in commercial or family disputes. By using mediation, the parties can resolve their disputes outside of court. The mediation law is a stand-alone law that governs the mediation of disputes between parties willing to settle them amicably.

It appears to be a boon for many micro and medium enterprises (MSMEs), families, and others seeking to save money, time, and relationships. However, there is a great deal behind the scenes regarding mediators, mediation institutions, disputants, and advocates. When the first Mediation Centre was established in the District Courts of Delhi, the practicing advocates viewed it as a threat. After much persuasion and mediation training, today’s advocates across the country, despite feeling threatened by alternative dispute resolution mechanisms, participate in mediation proceedings and get trained under the guidelines of the Supreme Court of India’s Mediation and Conciliation Project committee.

Advocates continue to be concerned about their clients’ reluctance to resolve their disputes through assisted mediation. However, the required level of awareness and education on mediation either among the disputants, or among the lawyers is yet to be raised. Despite the Government’s best efforts to encourage alternative dispute resolution systems like mediation in India and save time, money, and relations among disputants, the required awareness among the legal fraternity and people in the country is not there.

Even after two decades of existence of mediation in court-annexed mediation centres, mediation as an approach of dispute resolution is not mainstreamed. Disinterest in adopting mediation as a tool to resolve disputes resonates among many in the profession defeating the very purpose of alternative dispute resolution. Although the mediation law encourages the assisted settlement of disputes between disputants, the institution of such assistance as recommended by the law is imperfect.

Alternative Dispute Resolution systems that are being promoted in our country are hampered by bureaucratic procedures, and redundant approaches. Above all, many within the legal profession, and outside, are unaware of mediation as an approach to settle disputes outside courts. Many law students are of the opinion that only courts will recommend cases for mediation if not settled, while it is not so. No court reference is required for taking up cases for mediation if the disputing parties consent for the same and appoint a mediator on their own.

The mediation legislation suggests the establishment of the Mediation Council of India for the purpose of regulating mediation processes and institutions. In addition, the current law requires that “for the purposes of record, any mediated settlement agreement reached between the parties, other than those reached in a court or tribunal-referred mediation or award of Lok Adalat or final award of Permanent Lok Adalat under section 21 or section 22E of the Legal Services Authorities Act, 1987, shall be registered with an Authority constituted under the Legal Services Authorities Act, 1987, in such manner as may be specified.”

This not only calls into doubt the secrecy of the mediation agreements, but also creates bureaucratic obstacles for the registration of settlement deeds. The objective is to reduce the court’s workload, time, and expense. The proposed mediation institutions must first be registered with the Mediation Council of India, and then a yearly report of the cases settled by the mediation institutions may be permitted to be submitted to the authorities established pursuant to the Legal Services Authorities Act of 1987 to protect the secrecy of the parties and the settlement arrived at.

The responsibility lies with the law makers to raise awareness on mediation, and mediation institutions. Courts now should depart from referring the case only to court-annexed mediation centres. They should consider referring the cases to the established mediation service providers and institutions. They should make it clear that neither mediation nor arbitration requires a reference from courts, and the decisions taken with the help of mediators are as enforceable as a decree of a court.

Incentivising institutional mediation, making mediation mandatory for all the disputes before going to courts to reduce the burden on courts, notifying all the mediation institutions already in existence as mediation service providers pending establishment and operationalisation of the Mediation Council of India is needed urgently

(The writer is former Senior Advisor, UNDP)