Internationally acclaimed mediator Sriram Panchu has put in a lot efforts for institutionalising mediation in India. A Director on the Board of the International Mediation Institute, Panchu was a mediator in the Babri Masjid-Ram Janmabhoomi dispute and has authored several books on the process of mediation.

As the Parliamentary Standing Committee on Law and Justice is considering the Mediation Bill now, Panchu hopes that consultations will take place on strengthening the much-awaited legislation. Excerpts:

How does the Mediation Bill tabled in Parliament differ from the draft Bill which was published by the Law and Justice Ministry earlier? Is it addressing certain concerns raised by mediation professionals, lawyers and judges?

There are a few differences and some are important. One is the composition of the Mediation Council. This a three-person council. It makes provisions for including people who have experience in alternate dispute resolution and also somebody who has taught alternate dispute resolution.

But it makes no provisions for mediators. That’s an important area because the government is regulating the mediators, similar to regulating lawyers and doctors. It is a professional thing. So you must have people who have experience in mediation, who are in the field of mediation, who know the problems in mediation and someone who can perform the duties properly.

Also read: Panel to discuss Mediation Bill from Jan 3; Bill may be tabled during Budget session

In the previous draft, which the Law Ministry had circulated, the proposed Mediation Council of India was going to be headed by a former judge of the Supreme Court or a former Chief Justice of a High Court. That provision has now been taken out and it says, anybody appointed by the government can head it.

I find that quite disturbing. After all, mediation is dispute resolution. It’s in legal sphere, regulated by the civil procedure code. All appointments in the council should be done either by the Chief Justice of India or with his approval. This is not an oil and natural gas council. This is entirely part of dispute resolution.

What are your views on the role of the Mediation Council of India?

Some people think that minimum regulation will be best and that’s the way some countries have done it. The other way is to regulate to provide quality checks and accreditation. It will work both ways and can also face problems.

The Bill looks at mediation as a regular professional activity. So you accredit it, you add quality and provide training. The important thing is how you work it out. That’s why we need resourceful persons in the Council.

You had said that the Bill should have been drafted after the consultations with the stakeholders. Now the Bill has gone to the Standing Committee. Do you see a scope for improving the shape of the Bill?

I am glad that the Bill has gone to a standing committee of Parliament. I think the committee will reach out to stakeholders and ask their views. I am sure that they will write their report after consultations. I am sure Sushil Kumar Modi, an experienced politician, will consult every stakeholder before writing the report.

What is the international experience in such legislations? Does this Bill reflect the international practices of mediation?

There are some international legislations. Singapore has one and Nepal has a recent Mediation Act. It is not very difficult and it is not rocket science to put together a Mediation Bill. This Bill has been drafted in such a manner that if an international mediation is conducted in India, this Bill treats it like a domestic mediation. It says if there is a decree, it is enforceable as a judgment of the court.

The problem is that if you do it this way, you won’t get the benefit of the Singapore Convention. If you want to enforce a mediation done under this proposed Act abroad, you cannot do it because Singapore Convention excludes cases where there is a decree or judgment.

Also read: Bill in Rajya Sabha to formalise pre-litigation mediation

We are one of the first signatory of the Singapore Convention. Singapore Convention makes mediation attractive for business people as you can enforce mediation anywhere in the world. But because of the way the Act is now framed, if you do the mediation in India, you won’t get the benefit of the Singapore Convention.

How effective would be compulsory mediation, particularly in commercial disputes?

The Bill provides for pre litigation mediation. It is sufficient that both the parties sit with a mediator. There is no compulsion to settle the disputes. It is very important not only commercial cases. We have huge backlog of cases. If we have a good mediation system, we can reduce the backlog. A lot of senior judges also feel that way.

There are about 15 disputes or matters that are not fit for mediation. Also, the Centre has a free hand to notify any disputes that won’t be in the purview of the process of mediation. What is your view on this?

Several of these 15 disputes can be brought before mediation. For example, cases involving minors are excluded. Don’t exclude it from mediation. The settlement may be good for the minor. If there’s one minor in a case, the issue may not come before a mediator.

Also read: Rijijju to introduce Mediation Bill in Rajya Sabha

The mediation involving minors could be done with the direction from a court. Telecom, copyright and patents are also excluded. Yes, we cannot have serious crimes for mediation. But in so many criminal cases, civil matters will be at the heart of it.

The Bill clearly defines mediation and conciliation...

Yes, this is very good. There’s too much of confusion about mediation and conciliation. Now, the Bill follows the same method of United Nations. It defines mediation widely and includes conciliation too. Virtually, there’s no difference between the two processes.

Related Topics
comment COMMENT NOW