– a blog series by Prathamesh D Popat
Several years back, Mr Fali S Nariman – an eminent jurist – mentioned that what we need is not new laws, but a better implementation of the laws that already exist.
As India awaits a new law to regulate the practice of mediation in India, it would be good to have a look at some provisions that already exist in India for that purpose – what are their strengths, their shortcomings and what could probably be done for improving the general landscape. In this regard, a sort of wish list might help and shall therefore be prepared in the course of this series of posts on the topic.
It needs to be kept in mind that mediation is pursued as a private practice as well as within the court system. In India, there is some difference when one sits to be compare the two. Though provisions relating to both tracks would be visited, this difference shall presently be skirted around, to maintain the focus on what is now required for spreading the culture of collaborative dialogue.
While there may seemingly not be any law in India to regulate the practice of Mediation, there do exist provisions with regard to Conciliation, which one may loosely refer to as a close cousin of Mediation. These are contained in Part III of the Arbitration & Conciliation Act of 1996. The provisions are based on the UNCITRAL Rules on Conciliation.
The Conciliation provisions contained in the 1996 Act are pretty robust. They, in fact, also have enforcement provisions bundled into them – something which was quite unique at the time of enactment and rare even today. Hence, the first item on the wish list would be Enforcement.