Mediation Is A Lasting Necessity: Experts
Unlike the commercial court you can't have a prerequisite of mediation, like the conciliation that is there in the commercial courts
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Mediation is a non-adversarial procedure in which a third person primarily helps disputing parties communicate and negotiate with one another. The result is a mutually agreeable agreement that can't be challenged or appealed in court and is enforceable as a contract.
Shweta Bharti, Managing Partner, Hammurabi & Solomon Partners said, the insolvency proceedings are a proceeding syndrome. If we have to resolve it through mediation, it has to be kept out of the mediation act.
"Unlike the commercial court you can't have a prerequisite of mediation, like the conciliation that is there in the commercial courts, because the potential for misuse would be immense,"said Arvind Nayar, Senior Advocate
On where she foresees mediation fits in Pooja Mahajan, Managing Partner, Chandhiok & Mahajan said, when the parties agree to mediate that's when the mediation should actually be triggered. We all know insolvency proceedings in REM but within those proceedings, you will find specific areas of dispute, which don't have a spot for mediation.
"Mediation is here to stay. If we think that mediation won't come in and insolvency, I think will be wrong but what form it comes is yet to be seen. It must be voluntary. So, we are yet to see how it is going to come in and how it's going to play out," said Kunal Tandon, Founder, Tandon & Co on how IBS has been so far.
"Insolvency is not a mode of dispute resolution. Mediation by itself is a form of alternative dispute resolution. It's a form of ADR. So, when there is no dispute, what are we going to resolve through mediation," said Nakul Sachdeva, Partner, Luthra &
Luthra.
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Mehak Oberoi, Legal Head (Hydro-APAC) GE Vernova said, as per the NCLT deta itself only 12 per cent of the cases are getting resolved central level, and it's taking an average of 4.5 years to resolve the cases. Therefore, mediation is the longest lasting necessity.
