Advocates not for compulsory pre-litigation mediation

CHENNAI: Even as the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on July 13 submitted its report on ‘Mediation Bill 2021’ to the Rajya Sabha chairman seeking to exempt the pre-litigation mandate, members of the bar are yet to relieve their grievance expecting the Union to completely accept the report of the committee.

G Mohanakrishnan, president, Madras High Court Advocates Association, who analysed the bill and presented articles on that issue stressed that the problem starts with Section 6(1) of the bill which drops a bombshell of sorts with its attempt to mandate pre-litigation mediation.

“An attempt to mandate mediation in a nation like India where the concept is still evolving can result in serious repercussions. First and foremost, this mandate is against the fundamental principles of justice, constitutionally unviable and deprives a party of his/her choice to litigate,” the MHAA president told DT Next.

Mohanakrishnan also noted that Section8 (1) of the Act provides for parties to approach the courts citing exceptional circumstances to avoid mediation and seek urgent interim relief through litigation. It comes with a greater risk of courts being burdened with additional litigation to determine as to what constitutes as ‘exceptional circumstances, on a case-to-case basis, thus defeating the entire objective of the Act.

He also pointed out that the notion of coercing parties into mediation does not per se guarantee a positive outcome.

In his analysis along with Pascal Sasil R, School of Law, Christ University, Mohanakrishnan insisted that while inserting a new system, proper training should be provided to the legal fraternity. “Voluntary mediation coupled with effective awareness to the general public and adequate training to the members of the legal fraternity shall always remain the success formula to achieve the former,” he added.

Meanwhile, P Wilson, DMK Rajya Sabha member and member of the Parliamentary standing committee on Personnel, Public Grievances, Law and Justice had said that his recommendation on removing the compulsory mediation has been accepted by the committee and the same has been placed in the report.

“The committee had made several recommendations to the government. In that, my views regarding the expulsion of compulsory mediation have been removed. It also has several of my inputs to have a state mediation council in all states, to expand the scope of mediation not only to commercial matters, but to all disputes, including international mediation both for government and private parties,” Wilson said.

He also noted that the report also recommended the government that the mediated agreement need not be registered and mediators cannot impose a settlement on the parties.