Mukti Rijal

This writer did access the text of India’s Mediation Bill 2021, the other day, which was passed by the Parliament of the Union of India toward the end of the last month. The bill had indeed gone through the process of broad-based deliberation and scrutiny of the wider section of alternative dispute resolution champions, mediation advocates and practitioners from India and outside for a considerable length of time before it was enacted by the parliament. The Indian mediation bill had been looked with greater anticipation, appreciation and interest when it was placed for discussion in the parliament. It had also received wider media coverage, comments and analyses. The need for such an umbrella law was highlighted time and again by the justices and eminent jurists of India who had long advocated for such an initiative to clear the backlog of the cases and make justice accessible with recourse to non-adversarial mode of dispute resolution.

Alarming figures
The former Supreme Court Justices like Markandey Katju, Madan Lokhur and mediation champion and senior advocate Sriram Panchu, former Chief Justice of India S. A. Bobde, among others, did catalyse the efforts to push for the enactment of a uniform mediation act in India. According to a report, 44 million cases are pending in the Indian courts and it would take about 360 years to clear the backlog. Such alarming figures establish the urgency of the need to enact laws to resolve disputes speedily and effectively through recourse to alternative mechanisms especially interest based negotiation and mediation.

In the context of enactment of the Mediation Act, Nepal stands ahead of India since this country had already formulated such a law in 2011 to become next to Sri Lanka among the South Asian nations where organic law to promote and institutionalise mediation as alternative dispute resolution existed. However, compared to the Nepal’s legislation, the Indian Mediation Act is much clearer, comprehensive and better articulated from textual, conceptual and procedural point of view than ours in particular. The Indian Mediation Act does have the advantage of drawing and learning from the newly produced and harnessed global knowledge, experiences and practices on ADR especially mediation.

Furthermore, the Singapore Convention on mediation adopted not very long back which has catapulted this dispute resolution mechanism into an enforceable and effective proposition for cross-border disputes lent an impetus to quicken the process of enactment in India. This article intends to take a skimpy glance over the provision in the Act in regard to India’s Mediation Council with comparative hints into the similar institution provisioned in the Mediation Act of Nepal. As a regulating and enabling body, mediation council envisaged in the laws of both the countries has been provided a pivotal position.

However, in terms of structure and composition India’s Act on the subject looks much more well-conceived and clear worded to reflect the meaning and substance of the mediation. The council, according to the Act of India, comprises at least three fulltime member and three ex-officio ad hoc members and one part time member. As per the Act, India’s Mediation Council will be headed by a person of ability, integrity and standing having adequate knowledge and professional experience or shown capacity in dealing with problems relating to law, alternate dispute resolution, public affairs or administration. The council chairperson is envisaged to be a fulltime chief with an unimpeded tenure of four years.

Similarly, there shall be other two members having knowledge and experience in law related to mediation or alternate dispute resolution mechanisms, research or teaching on these thematic areas. A part-time member will be appointed by the government of India to represent the recognised bodies in the area of commerce and industry. Three ad hoc members will be drawn from related ministries, including ministries of finance, law and justice.

The Act also provisions for a well-organised structure of the secretariat headed by chief executive officer responsible for the day to day actions including the decisions of the council. As the Act does not spell out much about the personnel and employees to be recruited for the secretariat, it can be easily assumed that the government will pay enough attention to make the secretariat functional, efficient and effective. As the council is mandated to appoint experts and committees of experts, it indicates that the regulating body will harness the available expertise and knowledge on the subjects and issues concerned.

Emergent needs
However, Nepal’s Mediation Council suffers from the serious deficiency of the organisational capacity to provide necessary strategic leadership to the promotion and development of mediation in Nepal. The council is headed by the sitting justice of the Supreme Court of Nepal who has very little time to spare for the promotion and development of the mediation. The council is not indeed a conglomeration of the ad hoc members who are remunerated nor have incentives and motivations to devote the time and resources for the council.

At a time when ADR especially mediation has been recognised and widely used as the highly preferred mechanism for dispute resolution, the council is in need of fulltime executive and administrative leadership who can help spur the promotion and development of mediation in the country to respond to the emergent needs and interests. However, Nepal’s Mediation Council seems seriously starved of resources and capacity to fulfill the mandates and responsibilities stipulated by the law. Though a causal look into the provisions enshrined in the laws of Nepal and India, there is no such noticeable difference but there seems to be a gap in the institutional and organisational capacity of the council. Nepal needs to look into the issue and take steps in restructuring and reengineering the council to enable it to respond to the needs and challenges of the contemporary context.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)