The Mediation Act, 2023 (the 2023 Act) came to be promulgated in September 2023. We are now well past a year since that date and are still awaiting its implementation. Obviously, there have to be good reasons for the delay. I think one reason could be, to avoid petitions being filed in courts (akin to Salem Bar v. Union of India) for seeking supporting Rules, guidelines and infrastructure for the new Act, by providing the same at the time of implementation itself.

Whilst we await these developments, the Arbitration & Conciliation Act, 1996 (the 1996 Act), is sought to be amended and the Bill is out for comments. Keeping the focus on ‘Resolutionary’ mechanisms (yes, arbitration is not so and hence is not to be seen as an ADR mechanism), we shall not look beyond the Bill’s impact on mediation /conciliation.

Looking at both – the 2023 Act & the 1996 Act – together, and considering that one of the avowed purposes behind the 2023 Act was to improve the ‘ease of doing business’ image of Bhārat, I am reminded of a narration of an anecdote from the scriptures.

The situation is that The Lord manifests himself as Lord Narasimha (literally, half human, half lion) and kills the evil king who was the father of His ardent devotee, Prahlād. I had heard this incident being narrated many a times since childhood. However, a couple of lines from a narration heard a few years back – the style (tonality & choice of words) – were very simplistic and hence remain etched in memory.

Lord Narasimha, after accomplishing his task of killing the evil king Hiranyakashyap (as per the complicated conditions of the boon granted to the king), sat Prahlād on His laps and asked him to seek a boon, saying He had manifested Himself due to his immense devotion.

Prahlād said: I already had a ‘provider’ – my father – whom You have taken away from me. And now You are seeking to be my ‘provider’!

The reason I am reminded of this line (as heard a few years back) is that the 1996 Act already had most of the essential ingredients for catapulting Bhārat upwards on the ‘ease of doing business’ index. A few changes there itself would have done wonders. Instead, we have seemingly thrown the baby out with the bath water, by removing the whole of Part III form the 1996 Act. Now (soon), the benefit of ‘Conciliation’ per se, is probably not going to be made available to parties entering the Mediation Room for their Commercial Disputes. Not unless (1) the mediators go beyond their brief; or (2) the Rules to be framed by the Mediation Council provide for an institutionally different approach for disputes arising out of commercial transactions.

To dumb it down further, good or bad, Prahlād already had a father who was providing for his worldly needs. The 1996 Act too had great merit: it had party autonomy, it had finality (through enforcement) and most importantly (for commercial matters), it had Evalutive Mediation. All it required was small changes, like provisions for limitation institutionalised service providers, guidelines. Additionally, of course, a wide canvassing of the benefits of ‘Conciliation’, amongst the end users in commercial disputes was also essential.

Now, with Part III of the 1996 Act being taken away, and especially keeping in mind the Afcons v. Cherian judgement of the Hon’ble Supreme Court, mediators cannot conciliate.

One hopes this situation will be rectified in the Rules being framed by the Mediation Council, set up under the Mediation Act, 2023. Specifically, what we require is the benefits of ‘evaluative mediation’ – which were available under Part III of the 1996 Act, being re-instated in some or the other way for the benefit of the end-users in commercial matters. This will, in turn, also support the vision of improving the ease of doing business with Bhārat.