Supreme Court Justice Surya Kant has concerns over this provision of Mediation Act

Supreme Court Justice Surya Kant on September 28 expressed concern over a provision in the Mediation Act, 2023.

Justice Kant said the clause allowing challenges to mediated settlements, otherwise not fit for mediation, has been worded too widely and could lead to full fledged trial before the civil court thereby, defeating the purpose of mediation.

“My worry is about clause 4 of sub-section 2… where it says mediation settlement can be challenged where the mediation was conducted in disputes or matters not fit for mediation under Section 6. This is too wide and too open which at times will invite a full fledged trial before civil court despite a settlement and this issue needs to be looked at,” Justice Kant said.

He was speaking the 2nd National Mediation Conference in Odisha.

The clause he referred to appears in Section 28 of the Act, which sets out the grounds for challenging a mediated settlement agreement. The law states:

A mediated settlement agreement may be challenged on all or any of the following grounds, namely:

(i) fraud;

(ii) corruption;

(iii) impersonation;

(iv) where the mediation was conducted in disputes or matters not fit for mediation under section 6.

Justice Kant also stressed that the government and its entities must take the lead in adopting mediation. In this regard, he stressed for implementation of Section 49 of Mediation Act which mandates obtaining a prior written consent from a competent authority before signing settlement agreements related to disputes involving the State.

"It is worth recalling that the National Litigation Policy of 2008 also expressly emphasized the resolution of government disputes through mediation. If that policy is meaningfully implemented, it will go a long way. Read together with the legislative intent behind Section 49, such steps could mark a welcome move to promote mediation," the top court judge said.

He added that mediation can succeed only if trust is built into the system.

“Let us have evidence-based, confidential confidence-building among our mediators. We must also build systematic public trust through documented campaigns. That is very important for the success of mediation. For this purpose, we also need to strengthen the credibility of our institutions, which can be evaluated on a performance basis. Accreditation and institutional assessment are equally important,” Justice Kant said.

Justice Kant further called for making mediation process accessible to citizens in their own languages. He said the process should be conducted in vernaculars and local dialects so that justice becomes truly inclusive.

In this regard, he cited the example of Arunachal Pradesh, where mobile mediation camps were held in Tawang, Dirang and Bomdila. These camps overcame geographical barriers by adopting local dialects and timings, which helped integrate mediation into the community, he said.

India should strive to become a mediation-friendly jurisdiction by adopting best practices of the world, Justice Kant underscored.

"Once we achieve that, we can also provide an international platform. For that purpose, we must adopt the best practices from across the globe, learn from what is happening around the world in the field of mediation, and identify ourselves as stakeholders on the global map. That will be critical for the success of mediation and its institutions," he said.

Manipur High Court Chief Justice M Sundar also addressed the conference. He called for implementation of Sections 49 and 50 of the Mediation Act, the provisions that govern the mediation involving the State.

"Section 49 talks about prior consent by competent authority. So that section needs to be notified as soon as possible. Sections 27 and 28 constitute the soul of the statute. Section 28 gives it the status of a civil court decree. Sections 27 and 28 also needs to be notified. Sections 58 to 65 also have to kick in," he said.

Justice Sachin Datta of the Delhi High Court said that mediation is no longer the “poor cousin” of arbitration or litigation.

Mediation is a faster mode of justice, he said while highlighting Delhi’s experience, where out of 6,600 cases referred for mediation, 3,400 were settled.

“The success rate was more than 50 percent and at 34 percent at pre-litigation stage. As far as Delhi is concerned, the record is very satisfactory. Lawyer mediators have been the unsung heroes and heroines in this,” Justice Datta said.