‘Mediation Council can’t be handled exclusively by the Executive’

Acclaimed mediator Sriram Panchu, a Director on the Board of the International Mediation Institute, hopes that consultations widespread consultations will take place to strengthen the Mediation Bill. The proposed law is before a Parliamentary Standing Committee on Law and Justice. Panchu who was a mediator in the Babri Masjid-Ram Janmabhoomi dispute and has authored several books on the process of mediation shares his views on the Bill with BusinessLine. Excerpts:

How does the Mediation Bill tabled in Parliament differ from the draft Bill which was published by the Law and Justice Ministry earlier?

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 now it says anybody appointed by the government can head it.

I find that quite disturbing. After all, mediation is dispute resolution,. it’s in the legal sphere, regulated by the civil procedure code. The Council should be headed by a retired senior judge, and all appointments in the council should be done either by the Chief Justice of India or with his approval. This is not the usual governmental regulatory body which can be handled exclusively by the Executive.

There are some other issues causing concern. Take the other two members of the three-member Council. The Bill provides for including people who have experience in alternate dispute resolution and taught alternate dispute resolution. But it makes no provisions for mediators. That’s a critical important omission because you are regulating mediators, similar to regulating lawyers and doctors. It is a professional thing. So, you must have people on the Council who have experience in mediation.

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 can work both ways and can also face problems.The Bill looks at mediation as a regular professional activity. So, it prescribes standards, accreditation, institutes for training and service providers. The important thing is how you work it out. That’s why we need the proper resource persons on the Council.

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 have full consultations. Sushil Kumar Modi, the Chairman of the Standing Committee, is a respected and experienced political leader and administrator and there are other members including senior lawyers like P Wilson. So, I think there will be good interaction and a proper Bill will emerge.

Does this Bill reflect the international practices of mediation?

There are several international legislations. Singapore is one example. It is not very difficult and it is not rocket science to put together a Mediation Bill. Let me mention another problem. This Bill has been drafted in such a manner that if an international commercial mediation is conducted in India, this Bill treats it like a domestic mediation. It says if there is a settlement, 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 the Singapore Convention excludes cases where the mediation settlement is treated as a decree or judgment. This is when the mediation takes place while the case is pending in Court.

We are one of the first signatory of the Singapore Convention. The 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. So, the disputants will prefer to have the mediation conducted out of India. We should remedy this if India is to be a robust hub for international mediation.

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 in commercial cases but a wide range of other disputes. We have a huge backlog of cases. If we have a good mediation system, we can substantially 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. It is a mistake to exclude it from mediation. The settlement may be good for the minor. It is preferable to say that it can be mediated with a suitable person appointed by Court to represent the minor and the Court should approve of the settlement.Telecom, copyright and patents are also needlessly excluded. Yes, we cannot have serious crimes being mediated. But in many criminal cases like cheque bouncing, civil dispute 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.