GS Paper II
News Excerpt:
The Government of India is set to form a mediation council by the year-end. It is expected to improve out-of-court dispute resolution and enhance the Ease of Doing Business in India.
What is mediation:
- It is a settlement process whereby disputing parties arrive at a mutually acceptable agreement.
- It is a structured process where a neutral person uses specialized communication and negotiation techniques.
Who can mediate?
- Any person who undergoes the required 40 hours training as stipulated by the Mediation and Conciliation Project Committee of the Supreme Court can be a mediator.
- He also needs to have at least ten mediations resulting in a settlement and at least 20 mediations in all to be eligible to be accredited as a qualified mediator.
- A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes and reach a consensus.
- Currently, litigants opt for mediation when mandated by courts or by the law.
- Unlike other out-of-court dispute resolution mechanisms, mediation does not result in a binding award or judgment.
What happens in a mediation session:
- Introduction :- Mediator introduces himself to the parties, explains the mediation process and establishes his neutrality. He explains the ground rules and initiates the confidential process of dispute resolution.
- Joint Session :- Mediator gathers information about the factual background and interests of the parties, establishes interaction between them and creates a suitable environment for an amicable settlement.
- Individual (Separate) Sessions:- When it becomes necessary, a mediator allows the disputing parties to further explain their grievances, continues to gather information, persuades individual parties to share confidential information and helps them to create options for an amicable settlement.
- Agreement:- Mediator confirms and clarifies the terms of settlement and reduces the settlement into a clear, complete, concise and binding agreement.
How is mediation different:
- Mediation is an informal process.
- There are no strict or binding rules of procedure.
- Mediation is a completely confidential process.
- Mediation enables disputing parties to interact even on a one-to-one basis.
- Mediation enables parties to settle their own terms of agreement.
What is Mediation Council:
- It will be formed under the aegis of the Mediation Act, that was passed by the government in 2023.
- It mandates mediation proceedings to be completed within 180 days of the start of the process.
- The council will set rules to be followed during mediation and give authority to mediators.
- It will also oversee the education, assessment, and certification of mediators through recognized institutes.
- It will lay down standards for conduct of mediators, and recognize mediation service providers.
- The council will have a chairperson and two members who are experts in mediation, as per the Act.
- It will also have a Chief Executive Officer and a representative of a recognized body of commerce and industry, chosen by the central government.
- Members of the council may be directly appointed by the central government or based on the advice of a special search-cum-selection committee.
|
Other forms of out-of-court settlement mechanisms: Arbitration: A valid arbitration agreement must exist before a dispute arises for the arbitration procedure to take place. Parties to a dispute refer it to one or more decided arbitrators. The arbitrator's ruling is final and binding on the parties; it is referred to as the "Award." Getting a fair settlement of a dispute outside of court without unnecessary delay or expenses is the goal of arbitration. Negotiation: The most effective way to resolve disputes is through negotiation. In this process, the parties can get together to resolve their differences. The primary benefit of this type of dispute resolution is that it gives the parties autonomy over the course of the proceedings and the resolution. Conciliation: Another method of resolving disputes outside of court is conciliation. Conciliation is an optional, adaptable, private, and interest-based procedure, just like mediation. The conciliator, who serves as an impartial third party, assists the parties in their efforts to come to a friendly resolution of their differences. Lok Adalat: The Lok Adalat is referred to as the "People's Court," and its chairman is usually a member of the legal profession, a social activist, or a sitting jurist. The National Legal Service Authority (NALSA) and other legal services institutions regularly hold Lok Adalats to exercise this authority. You may refer to Lok Adalat any matter that is pending in a regular court or any disagreement that hasn't been taken to court. |
