Author: Tooshabh Singh, II year of B.Com.,LL.B. from Gujarat National Law University
India being one the largest country in the world has many problems. One of the big problems which is related to the Indian legal system is the pendency of a huge number of cases in the court of the country. The biggest solution which was given as an answer to this problem was the Alternative dispute resolution(ADR). Mediation is one of the ways or types ofADR. Mediation is defined as a voluntary process in which a third person known as mediator, helps the parties at dispute to reach a decision which is acceptable by all of them. To regulate this mediation process the government has brought up a bill known as Mediation bill , 2021. The government introduced it for the first time in December 2021 in Rajya Sabha but it can’t make its way further. It was then sent to the Parliament Standing committee for recommendation. One of the new things which the bill contained was the “community mediation” in Chapter X. The blog is written to understand the process of community mediation and its pros and cons in the Indian legal system.
Community mediation has not been clearly defined in the bill. The object of the bills states that it is designed to encourage community mediation. The next place where community mediation is stated is where mediation has been defined. The section talks about mediation and other forms or types of mediation and the definition of mediation. So there is no clear definition of community mediation. The clear place where the bill has talked about community mediation is in chapter X. Even in this chapter the community mediation has been defined as a situation in which community mediation will take place, the stakeholder involved in it, process and procedure of the process.
Chapter X of the bill has 2 sections : Section 44 which has the heading of “community mediation” and Section 45 which has the heading of “Procedure of community mediation”. The first section of the chapter has stated the situation in which community mediation will take place. According to the section community mediation will only take place when any dispute is likely to affect the peace, harmony, tranquility amongst the residents or families of any area or locality. The next sub- section states the process on how to start the process of community mediation in case of dispute states above. The section mentions that the process of community mediation will start by making an application to authorities made under the legal services Authorities Act, 1987 by any of the parties or if there are no such authorities to the District Magistrate or Sub- District Magistrate. The section also states that any settlement reached by the way of community mediation will not be considered as judgment or degree. It will be just for maintaining peace, order and tranquility in the area between the parties.
Community mediation if implemented in the country can have a lot of change in the legal system in the country. This type of mediation can solve a lot of family, local issues which are pending before the local court. This can also help the government to solve issues which are prevailing between two or more communities. Community mediation can bring both the communities to solve their issue at local level without any third party interfering in the matter. This will also help to bring down the cost of litigation. The party doesn’t have to pay a lot of fees, duties that are involved in court cases. The community mediation also ensures privacy and confidentiality of the parties and matters related to them. Mediation process is only attended by the parties and mediators which keep the matters private unlike the matters which take place in the open court. One of the main advantages of this mediation is that the approach is toward finding a solution which is done by the parties itself. The bill has also mentioned that community mediation is voluntary and parties are completely free either to choose this process or not. Another advantage of the community is that future relationship between the parties is not hampered in any way as the solution is found by the process of mediation and both parties must have agreed. This is very much necessary in a social structure in a country like India.
This idea of community mediation mentioned in the bill looks good at the first glance. But it has a lot of problems related to it. Firstly the appointment of mediator which is done by the legal services Authority or district magistrate. The bill doesn’t mention any certain requirement for the person to be appointed as a mediator. It just mentions that the person to be appointed must be a person of standing and integrity or any person whose contribution is recognised in the society or any other person or representative of area or resident welfare associations. These criteria are very ambiguous and any member can be appointed who may have no any experience in the process of ADR. The bill also doesn’t specify the disputes which can be taken to community mediation. It just mentioned disputes which are related to peace , harmony, tranquility among the residents or families of any area.
This idea of community mediation is new and evolving.If the bill is passed in the parliament This can change the legal system in india. It can help to reduce the burden on the court. But for the proper working of the process proper awareness has to be spread. For the present we can just hope that the parliament pass the bill.