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COURSE TOPIC THE HINDU EDITORIAL TIMES I-JUNE 2018
TITLE SETTLING DISPUTES OUT OF COURT
HEADLINE Pre-litigation mediation is an important step to improve the ease of doing business
MANDATORY PRE-LITIGATION MEDIATION ?? . The commercial courts act was legislated to improve the enforcement of contracts, as part of improving the ease of doing business. The law defines "commercial disputes" to include regular commercial and business contracts, construction contracts, shareholder agreements, licensing agreements, etc The law makes changes for reduction of timelines, tightening processes and designating special commercial courts and commercial divisions to deal with these disputes, among others
LET'S UNDERSTAND THE AUTHOR'S POINT OF VIEW . Mandatory pre-litigation mediation in commercial disputes has been introduced by the recent Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, which amends the Commercial Courts Act of 2015 Mandatory pre-litigation mediation puts the ball in the court of the parties involved, rather than looking at external agencies like courts, and urges them to engage with and resolve disputes
LET'S UNDERSTAND THE AUTHOR'S POINT OF VIEW Mediation is a process of resolution of disputes by the parties to them. It involves discussion of the conflicts, moving out of the loop of allegations and counter-allegations, and assessing where interests lie in resolving the disputes. Options for settlement are explored and a settlement is worked out through joint evaluation.
BUT SOME QUESTION ARISES Mediation, and mandatory mediation specifically, is not new in India. Some questions arise. One of the advantages of mediation is its voluntary nature I. How does this reconcile with the mandatory nature of pre- litigation mediation? 2. Will a pre-existing mediation agreement be enforced? 3. What will be the status of cross-border mediation?
THE ITALIAN CASE INSTANCE) Italy, which faces a high rate of pendency of cases, has adopted what is referred to as opt out'mandatory mediation. In 2010 and 2013, it introduced a law for pre-litigation mediation.Attempts to mediate were made mandatory for certain disputes (like partition and joint ownership of property) before a case was filed in court. This law reconciles the voluntary nature of the process, while mandating mediation
CONCLUSION There is a need for a comprehensive policy on mediation, rather than the abbreviated and disconnected steps so far.This policy would encapsulate the process, the role and professional responsibilities of mediators, the rights and obligations of parties in the process, and the outcome of the mediation agreement. When seen in the context of a deliberate and well-considered law, mediation as a process would be more credible to disputants, as has happened in the case of arbitration
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