The search in India for a stand-alone mediation law has led to the formulation of the Draft Mediation Bill, 2021. This Draft Bill fortunately does away with the artificial distinction that Parliament had made some two decades ago between “mediation” and “conciliation” in Section 89 of the Civil Procedure Code, 1908 – a distinction which I had pointed out in an earlier article in this column – Do we really need a fresh stand-alone mediation law? – was merely a distinction without a difference. That said, this article examines the Draft Bill to evaluate as to whether the proposed stand-alone mediation law will take away from, rather than enhance, the mediation process – an effective Alternative Dispute Redressal (ADR) mechanism so wholeheartedly encouraged by various stakeholders throughout India.
Let us first consider the definition of mediation under the Draft Bill. Section 4 of the Draft Bill partially builds on the definition of mediation in Article 2(3) of the Singapore Convention, formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation. Section 4  states that “(m)ediation means a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, conciliation or an expression of similar import, whereby parties request a third person or persons (the mediator) to assist them in their attempt to reach an amicable settlement of the dispute”. The mention of the word “conciliation” in this definition is significant in light of there being a stand-alone law on conciliation, namely, the Arbitration and Conciliation Act, 1996. Schedule IV to the Draft Bill proposes to substitute the provisions related to conciliation in the 1996 Act with the provisions of the Bill.
Coming to the role of the mediator under the Draft Bill, Section 18 draws on Rules 16 and 17 of the Civil Procedure Mediation Rules examined by the Supreme Court in its decision in Salem Advocate Bar Association (2005) as model mediation rules. Section 18 provides that “(t)he mediator shall attempt to facilitate voluntary resolution of the dispute(s) by the parties, and communicate the view of each party to the other to the extent agreed to by them, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute(s), emphasizing that it is the responsibility of the parties to take decision which affect them”.
Now, how would the mediator do all this? Since the source of every dispute is some defect in understanding, some error in reasoning or some sudden force of passion, it becomes crucial for the mediator to identify and address that defect, error or force in order to facilitate the transformation of the dispute into an amicable settlement. And for the mediator to be able to do so, the parties must be ready and willing to share full information with the mediator. It is for this reason that mediation is said to be a voluntary process. After all, one cannot compel a person to share his or her inner most vulnerabilities, thought processes, concerns or underlying interests with another. The mediator is completely dependent on the goodwill of the parties to conduct mediation. A party can choose to not mediate at all or to not continue with mediation without having to assign any reason. Accordingly, Section 62 of the 1996 Act provides that conciliation proceedings would commence only when a party accepts the invitation of the other party to conciliate, and should the party reject the invitation, there will be no conciliation proceedings. Similarly, Section 76 of the 1996 Act mandates the immediate termination of conciliation proceedings from the date a party gives a written declaration to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings be terminated.
Yet Section 6(1) of the Draft Bill requires that a party “shall”, before filing any suit or proceeding in any Court or Tribunal, take steps to settle the disputes by pre-litigation mediation in accordance with the provisions of the Draft Bill, and that too, “irrespective of the existence of any mediation agreement”. Section 19(2) of the Draft Bill makes the withdrawal by a party from mediation subject to other provisions of the Draft Bill. Section 24(1) (c) of the Draft Bill permits a party to give a communication to the mediator and the other party that it “wishes to opt out of mediation”, provided “that the parties have to attend at least one mediation session before giving such communication”. Our law-makers seem to have overlooked the fact that it is one thing (and indeed a progressive step) to provide for pre-litigation mediation but a completely different matter to make it mandatory across the board and force unwilling parties to mediate. When the willingness of both the parties to participate in the process is the essence of mediation, do our law-makers seriously believe that it will serve any useful purpose to compel an unwilling party to go for mediation, to limit its ability to withdraw from mediation or to force it to sit through at least one mediation session! These provisions not only run the risk of being viewed by an unwilling party as being condescending and an invasion of the principle of party autonomy, but also fail to appreciate that a given case, otherwise fit for mediation, may not be right nor ripe for mediation at that stage. Added to that would be the waste of precious time, energy, money, resources and infrastructure needed to hold meaningless mediation proceedings. If the intention of our law-makers is to “mainstream” mediation in the fond hope that an unwilling party just might get converted on being apprised about the virtues of mediation, surely there are more imaginative ways to do so.
Further, it will be readily agreed that no party would be willing to share its inner-most vulnerabilities, thought processes, concerns or underlying interests with the mediator unless it is also assured of complete confidentiality. It is for this reason that the 1996 Act has provisions to address confidentiality at various levels. Section 75 of the 1996 Act mandates that the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings, while Section 81 prohibits parties from relying on or introducing as evidence in arbitral or judicial proceedings (i) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute; (ii) admissions made by the other party in the course of the conciliation proceedings; (iii) proposals made by the conciliator; and (iv) the fact that the other party had indicated its willingness to accept a proposal for settlement made by the conciliator. The Civil Procedure Mediation Rules contain similar provisions in Rule 20 regarding confidentiality, disclosure and inadmissibility of information. Rule 23 goes further. It states that in order to preserve the confidence of parties in the Court and the neutrality of the mediator, there should be no communication between the Court and the mediator, except by the mediator (i) about the failure of a party to attend; (ii) with the consent of the parties; (iii) regarding his or her assessment that the case is not suited for settlement through mediation; or (iv) that the parties have settled the dispute(s). The Draft Bill, in Section 22 and Section 23, also has similar provisions, though on somewhat different terms and with exceptions which are not really relevant for the purposes of the present discussion.
What is, however, relevant is the position that both the Civil Procedure Mediation Rules and the 1996 Act add further layers to the matter of confidentiality. Rule 20(2) of the Civil Procedure Mediation Rules inter-alia stipulates that “when a party gives information to the mediator subject to a specific condition that it be kept confidential, the mediator shall not disclose that information to the other party”. Section 70 of the 1996 Act puts the same prohibition on the conciliator. Section 80 of the 1996 Act adds that “(u)nless otherwise agreed by the parties, (a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings; (b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings”.
The Draft Bill surprisingly contains no similar provisions. The requirement in Section 18 of the Draft Bill that the mediator shall communicate “the view of each party to the other to the extent agreed to by them” is no substitute for these provisions. Such omission could give rise to possible conflict of interest, besides striking at the root of the requirement of confidentiality of the mediation process. Again, Rule 20(5) of the Civil Procedure Mediation Rules mandates that “(t)here shall be no stenographic or audio or video recording of the mediation proceedings”. However, Section 22(3) of the Draft Bill states that “(a)ny audio or video recording of the mediation proceedings shall be kept confidential by the parties and the participants including the mediator”. One is left bewildered – has it suddenly become legally permissible to audio or video record mediation proceedings? In this backdrop, the question of a party disclosing confidential information at a private session with the mediator or making full disclosure to the mediator becomes highly unlikely. And, needless to say, it is the free flow of complete information which is so crucial for a mediator to perform his or her role as a mediator.
Then there are other provisions of the Civil Procedure Mediation Rules and the 1996 Act that help facilitate the mediation/conciliation process but which are also conspicuous by their absence in the Draft Bill. For instance, Rule 11 of the Civil Procedure Mediation Rules permits the mediator to gather information from the parties as may be required by him or her in connection with the issues to be resolved. Section 65(3) of the 1996 Act empowers the conciliator to request a party, at any stage of the conciliation proceedings, to submit to the conciliator such additional information as the conciliator deems appropriate. The said information can be sought by the mediator/conciliator in confidence even before commencing the session so as to enable him or her to do a pre-mediation dispute analysis, identify possible common underlying interests of the parties and provide a framework for the session. It is simply inexplicable as to why these provisions do not find a place in the Draft Bill.
If such flaws in the Draft Bill are baffling, the provisions relating to the challenge of a mediated settlement agreement are incredulous.
Section 29 of the Draft Bill, while permitting a mediated settlement agreement to be challenged on the ground of (i) fraud; (ii) corruption; (iii) gross impropriety; or (iv) impersonation, provides that the application to challenge the agreement “may not be made after three months have elapsed” from the date on which the party making that application has received a copy of the settlement agreement. The Section further provides that “if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter”.
Hence, should a party discover just after four months of receiving a copy of the mediated settlement agreement that it had been induced to sign the settlement agreement, say, by fraud, the party is precluded by law from challenging the same. Such provision contravenes the elementary rule that fraud not only vitiates but also unravels everything, and that the product of fraud can be disregarded as being null and void at any time, even in collateral proceedings. And where a statutory period of limitation has been prescribed to move the Court against fraudulent action, the said limitation invariably begins from the date of the discovery of fraud – and not from the occurrence of some pre-determined event like the receiving of a copy of the settlement agreement. Again, it is not difficult to visualize instances where a party may discover after a period of four months of receiving a copy of the settlement agreement that there had been corruption, gross impropriety or even impersonation at some point in the mediation process.
Further, it may be recalled that the Supreme Court, in its decision in Afcons (2010), had “interchanged” the definitions of “judicial settlement” and “mediation” in Section 89 of the Civil Procedure Code, 1908 – a section that enables the Court to refer the dispute in a pending case for resolution through various ADR mechanisms. The Supreme Court had inter-alia held that “for “mediation”, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act”. That would imply that a mediator in even a Court-annexed mediation would now be deemed to be a Lok Adalat under the 1987 Act! As pointed out in my earlier article in this column, such mediator would, by virtue of Section 22 of the 1987 Act, have the powers of a Civil Court, including though not limited to, the summoning and enforcing attendance of any witness and examining him or her on oath; the discovery and production of any document; the receiving of evidence on affidavit; the requisitioning of any public record or document or copy thereof from any Court or office and so on so forth. And all mediation proceedings would be deemed to be judicial proceedings within the meaning of those provisions of the Indian Penal Code, 1860 that, for instance, deal with punishment for false evidence or for intentionally insulting or causing interruption to a public servant in judicial proceedings. Further, every mediator would be deemed to be a Civil Court for the purpose of the provisions of the Code of Criminal Procedure, 1973 pertaining to prosecution for contempt of lawful authority of public servant, or for offences specified in Section 22.
Given that such consequence runs contrary to every conceivable principle of mediation anywhere in the world, one had hoped that Parliament would step in with corrective measures. However, the Draft Bill does not clarify the position as to whether in a Court-referred matter, the mediator is still to be deemed to be a Lok Adalat under the 1987 Act. Instead, the Draft Bill cryptically states in Section 26 that “(f)or the purpose of court annexed mediation the procedure of conducting mediation shall be such as may be determined under the practice directions or rules framed by the Supreme Court or the concerned High Courts”, and provides further in Section 27 that “(m)ediation conducted by Lok Adalat and Permanent Lok Adalat shall be in accordance with the provisions of Legal Services Authorities Act, 1987 and the rules or regulations made thereunder”.
The Draft Bill does contain certain beneficial provisions like those setting up the Mediation Council of India and other institutions, as also providing for accreditation of mediators, mediation education and training, and regulation of ethical conduct. The Draft Bill, however, leaves many questions unanswered. For instance, what provisions would govern an international mediation that takes place in India but relates to non-commercial disputes that have arisen under a foreign law, such mediation not being covered by either Part I or Part III of the Draft Bill? With Section 8 of the Draft Bill empowering the Court or Tribunal to grant, before or during mediation, urgent interim measures in exceptional circumstances, should the party aggrieved by the grant or the refusal to grant of such relief not be afforded the remedy of at least one appeal? Would the right of at least one appeal not be an obvious requirement for this provision to pass the test of constitutionality? When a party can apply to the Court or Tribunal to refer a matter to mediation at any stage of the litigation, why should Section 9 require that “in a matter which is the subject of an agreement to submit to mediation”, a party must apply for mediation not later than the date of submitting his first statement on the substance of the dispute? How would the linking of the place for conducting mediation with the territorial jurisdiction of the Court or Tribunal as contemplated by Section 15 work for online mediation? Why have a time limit at all in Section 20 for the completion of mediation? Should it not be for the parties and the mediator to take a call on whether or not adequate time has been spent on the process? With Section 21 providing for mandatory registration with the authorities under the Legal Services Authority Act, 1987 of a mediated settlement agreement (other than those arrived at in Court annexed mediation centres and Lok Adalats/Permanent Lok Adalats), should not the consequences for non-registration be spelt out as well? Further, would this provision of mandatory registration not negate the settled proposition that confidentiality extends also to the settlement agreement except for the purposes of its enforcement? Can the responsibility of the registration be put on a mediator at all as has been sought to be done? The list is endless.
To conclude, it appears that our law-makers are keen to have a clean slate to draft a stand-alone law on mediation. In such an event, it is imperative that these concerns are addressed, and that the Mediation Act, as and when enacted, contains appropriate, clear and comprehensive provisions which, in practical terms, facilitate the ADR mechanism of mediation.

Dr Aman Hingorani, Advocate-on-Record & Mediator, Supreme Court of India; Arbitrator, PHDCCI; International Advocacy & Mediation Trainer; Author, Unravelling the Kashmir Knot (SAGE)