The goal of the Mediation Act, 2023, is to limit the use of the adversarial process to a limited number of issues, encourage and enable mediation, and fully realise the potential of communication and teamwork.
The issues include those pertaining to policy, non-compoundable criminal offences, constitutional and statutory interpretations, circumstances where a precedent is necessary, and situations in which disputing parties are unable to resolve their differences through mediation or other forms of alternative dispute resolution (ADR).
According to Section 6 of the Act, disputes included in the First Schedule are not eligible for mediation. According to Section 55, the Act shall not supersede any conciliation or mediation conducted in accordance with the statutes listed in the Second Schedule. Many of these constraints and limitations, in my opinion, may impede the expansion of mediation in India.
In order to determine when constraints and limitations are protective measures and when they are impediments to the best possible development and expansion of mediation in India, I intend to analyse the First and Second Schedules of the Act in this piece.
It is crucial to note that not every case in any category will benefit from mediation. A complete prohibition or restriction on the Act’s superseding effect, however, would bar situations in which mediation would be beneficial. You might discard the infant along with the bath water.
The First and Second Schedules of the Act include safeguards, constraints, and paradoxes.
Protections:
Generally, mediation is not used in instances involving non-compoundable criminal charges, declaration proceedings against the government, or disputes involving third parties’ rights. In essence, mediation is a negotiation between the parties. With rare exceptions and in situations when the court determines it appropriate, the aforementioned matters are typically not negotiated and, hence, are not mediated.
Paradoxes and Shackles:
Since mediation is a widely used process in many jurisdictions and is applicable to disputes where it could be effective, many of the exclusions and limits listed in the First and Second Schedules of the Act are both needless and restrictive.
Here are a few of the restrictions and exclusions, along with an explanation of why they are so:
1) Claims involving juveniles, deities, people with intellectual disabilities, and people with disabilities who require a lot of assistance
Order 32 of the Civil Procedure Code and the Rights of Persons with Disabilities Act, 2016 are two examples of statutes having provisions specifically tailored to protect these individuals’ ability to make decisions. They can transact through guardianship, collaborative decision-making, advance directives, etc. As parens patriae, the courts have the authority to oversee these dealings. It might be discriminatory to prevent such people from participating in mediation-based settlement negotiations when such a framework already exists.
Even though the deity was a party to the dispute, the Supreme Court decided that mediation should be tried in the Ayodhya Babri Masjid-Ram Mandir case. It’s probable that such mediation is now impossible.
2) Complaints filed with the appropriate statutory authorities regarding the registration, behaviour, or discipline of any professional practitioner, including a dentist, physician, architect, or lawyer
India’s case law is not really clear about what exactly qualifies as professional misconduct. Is it possible to classify professional carelessness as professional misconduct? Many plaintiffs may be able to take advantage of this ambiguity to avoid having their professional negligence allegations mediated.
Cases involving professional negligence are good candidates for mediation. Negligence complaints are frequently the result of parties looking for additional information. They lack a secure environment for discussion and discourse. The standard legal advice in cases involving complaints of professional negligence is to remain silent in order to prevent the collection of any damaging evidence. In contrast, the Act guarantees absolute secrecy during mediation, creating a secure environment in which parties can discuss, clarify, and learn; they can even apologise or provide restitution for their losses and suffering. For professionals in the field, the prolonged dialogue that occurs during mediation also provides educational benefits. They discover the areas in which their services have fallen short and how best to make amends and steer clear of similar errors going forward.
Medical negligence cases were identified as a priority category for mediation by the Woolf Committee, which was established in 1994 in the United Kingdom to make suggestions for civil reforms. Internationally, professional negligence lawsuits are increasingly being settled through mediation.
3) Actions falling within the National Green Tribunal’s purview
In a number of nations, environmental issues have been mediated. Examples include the use of water from Michigan Lake and the conflicts surrounding the 2004 tsunami in Sri Lanka. In multi-party disputes, mediation has the ability to be specially crafted to ensure that all relevant parties’ opinions are heard. Governments and regulatory bodies could join the mediation.
Through a sort of mediation process called consensus building, it is possible to establish unanimous and long-lasting agreements amongst entire communities while also making good faith efforts to address the interests of all stakeholders. It is incorrect to exclude this category because environmental issues are only predicted to get worse in the future. India cannot lose out on this benefit as this procedure is often utilised in many jurisdictions for environmental disputes.
4) Direct or Indirect Taxes: Conflicts involving levies, fines for noncompliance, or infractions
In India, settlement commissions for tax-related issues already exist. Settlement procedures are used for non-criminal disputes. Appeal Mediation Procedures are available in the United States to settle tax issues, and His Majesty’s Revenue & Customs Taxpayers in the United Kingdom can request Alternative Dispute Resolution (ADR) to settle their problems.
5) Actions taken before India’s Securities and Exchange Board (SEBI)
By its circular dated July 31, 2023, SEBI established an online dispute resolution tool to arbitrate and mediate disputes under a number of categories.
There are several bankruptcy cases being handled. In 2011, while residing in San Francisco as a Weinstein Fellow, I had the honour of witnessing a bankruptcy issue being mediated at JAMS, a private mediation organisation. It was said that this disagreement was among the largest in American history.
6) The Act’s superseding impact is not included in statutes like the 2013 Sexual Harassment of Women at Workplace Act and the 2007 Maintenance and Welfare of Parents and Senior Citizens Act.
The Act does not supersede any statutes included in the Second Schedule with regard to mediation or conciliation conducted in accordance with such statutes. This is a constraint. Laws like the one listed above address delicate topics that are best handled through dialogue, mending, and relationship preservation. While these statutes allow for mediation or conciliation, they do not regulate or safeguard a process that upholds the fundamental values of voluntariness, confidentiality, and self-determination in the same manner as the Act. As a result, the parties are deprived of mediation’s full potential. It is paradoxical that the Act has no superseding influence on the mediation in particularly delicate disputes like these.
The 2007 Maintenance and Welfare of Parents and Older Adults Act:
This Act deals with concerns related to senior citizen and parent care. A transformative mediation approach, which emphasises fostering greater understanding and improving the relationships between the parties, would be beneficial in resolving these family problems. The Maintenance and Welfare of Parents Act allows the government to appoint a conciliation officer, whose main responsibility is to conduct investigations. In most cases, conciliation officers lack mediation training.
The greatest ways to safeguard family relationships are to limit their exposure to adversarial processes and to maximise chances for mending fences and forging new bonds.
The 2013 POSH Act is the Prevention, Prohibition, and Redressal of Sexual Harassment of Women at Work Act.
The Internal Complaints Committee (ICC) is the designated entity for resolving issues under the POSH Act. Since women typically make up the majority of the organization’s workforce on the Committee, neutrality is impacted. Members are also typically not trained in understanding-based procedures such as mediation. They adhere to an investigative/inquisitorial procedure that may not always make people feel comfortable or encourage direct and honest communication.
India is undergoing a moment of change. Young Indians are entering the workforce with a variety of backgrounds. When mistakes are made, people require a quiet, secure environment in which they may express their hurt and accept responsibility for their actions. The majority of victims of sexual harassment select mediation, which is a favoured forum in many jurisdictions across the world. The fact that mediation is not the deciding factor in many conflicts under the Act is paradoxical.
Mediation is a useful educational tool. I arbitrated a conflict at work involving claims of sexual harassment at an Indian-based British corporation. In the feedback, the CEO said,
“This was the first time we had employed external mediation to settle a very delicate and personal workplace conflict in our India office, but going forward, we will undoubtedly incorporate this procedure into our people practices. The mediator was able to assist the parties in comprehending how other people would interpret their conduct. This indicated that they went through a cooperative and empowering dispute resolution procedure as opposed to an antagonistic one.
In India, mediation is about to take off. While safeguards are necessary, it is even more important to use mediation to advance a culture of cooperation, resolution, and moral behaviour. For parties involved in a conflict to accept mediation, they must acquire a new perspective. Mindsets can only be changed by a critical mass of users. Limitations and restrictions beyond what is necessary are not recommended, as they have the potential to hinder the development of mediation from the very beginning.