Transforming International Dispute Resolution through Mediation  from an Indian Perspective.

Introduction 

The Mediation Act, 2023 (“Act”) by the Government of India represents a forward-looking transition toward an effective, voluntary, and mutually agreeable dispute resolution mechanism. The Act encompasses the provisions that uphold party autonomy, involves the government as a party to resolve a dispute, streamlines timeline amicably, encourages community engagement, supports online modes and promotes institutionalization, the Act is positioned to instigate transformative changes in the dispute settlement landscape. It aims to foster harmony and expediency in the pursuit of justice. 

1. PRE-LITIGATION MEDIATION 

The Act gives an opportunity to resolve civil or commercial disputes through mediation before resorting to legal proceedings in a court. The parties can opt to resolve their disputes through pre-litigation mediation. The mediation process must be concluded within 180 days. Interestingly, in the event of unsuccessful settlement attempts during pre-litigation mediation, parties also have the option to request a court or tribunal to refer them to mediation at any later stage during court proceedings. 

2. CONSTITUTION OF MEDIATION COUNCIL OF INDIA 

The Act has instituted the Mediation Council of India (“MCI”) as a central entity entrusted with a key role to promote both domestic and international mediation development. The MCI is responsible for supervising mediation proceedings, regulating Mediation Service Providers, managing an electronic repository for settlement agreements through mediation and presenting annual reports on the implementation of the Act to the Central Government. The MCI is composed of members possessing legal expertise, people who have practical mediation experience, and representation from commerce and industry bodies. 

3. IMPACT ON INTERNATIONAL MEDIATION 

In 2019, India was among the early countries to sign the United Nations Convention on International Settlement Agreements resulting from Mediation, known as the Singapore Convention on Mediation. The Act precisely defines international mediation as a mediation conducted under its provisions, concerning a commercial dispute originating from a legal relationship, whether contractual or otherwise, governed by laws in force in India. In this context, the Act has laid down that at least one of the parties to an international dispute must be either: 

a. an individual who is a national of, or habitually resides ina country other than India; 

b. a body corporate, including a limited liability partnership, with its place of business outside India; 

c. an association or body of individuals with a place of business outside India; or 

d. the Government of a foreign country. The Act underscores the importance of the MCI, to be established under its provisions, in actively promoting international mediation through the formulation of appropriate rules and guidelines. 

 4. CONCLUSION 

India did not have a dedicated law explicitly designed for resolving disputes through mediation. The enactment of the Act, with the specific provision making pre-litigation mediation mandatory, has paved the way for a significant step towards addressing the gap of amicably resolving disputes before entering into full-fledged court litigation. This step has alleviated the backlog of cases in the Indian legal system and has also offered a promising avenue for time-bound dispute resolution. The Mediation Act, of 2023 plays a fundamental role in cultivating a culture of alternative dispute resolution in India. The Act has been enforced with the primary goal to encourage and facilitate smooth and efficacious mediation and further underscores the effectiveness of institutional, online, and community mediation as a timely dispute resolution mechanism. The scope extends across a wide range of cases, including those involving parties residing or conducting business in India, and also to international commercial disputes comprising of foreign entities.