MEDIATION ACT 2023- PATH TOWARDS PEACE

PART- I- MEDIATION

Chapter –I

What is Mediation? History

Mediation is not a new concept for Indians and on the contrary, the same is imbibed in our culture from its inception.

It has roots in our culture since ancient times of Buddha, Chanakya, Yagnavlkya and  Mahabharat. Duryodhan was adamant and said he would not give an inch from Hastinapur but also demanded Indraprastha, (Today’s NCR) area. Krishna was the first mediator on earth who tried to convince Duryodhan to give up his claim on Indraprastha and keep Hastinapur. But he refused and the consequence was War.

In ancient days, any dispute or differences amongst parties were resolved by Mukhiyas, Sarpanch or Panchayats. The same was at the Gram Panchayat Level, whose words and orders were final. People had full respect and faith and had never endeavoured to oppose the same. Indian tradition is marked by joint Hindu Families, where the words sentiments, and, emotions, of all the members of the family are respected and all the disputes and differences of opinion are settled by the Karta of the Family or the eldest person in the Family, so that the family remains united. This was in general the social structure of India and Courts were unknown to our culture. Even today Khap Panchayat makes decisions, and it is final and binding. ( See Sec 3(b) )

By invasion and ruling of Britishers, this system was hampered to some extent and people tended to move to Courts by referring disputes to the Courts for redressal of their disputes in terms of Judgment and Decree, during the British Regime. After partition and enforcement of the Constitution of India, disputes in Courts started piling up and resulted in considerable delays in delivering justice and resolving the dispute. Torts in India even today are not much enforced, however, there are Consumer Forums whose judgment can be executed as a Decree of Civil Court. It is a natural phenomenon that every human being when he is lost in a way goes back to his own origin and again with the same concept, but with improved methods Indian society is now prepared to go back to resolve the dispute by way of mediation in the new name and style of Alternative Dispute Resolution. Unlike Arbitration, mediation is non-judgmental and non-binding.

THE PARLIAMENT HAS NOW PASSED THE MEDIATION ACT 2023

Let us see and jump to the current scenario from the days of Mahabharat.

APPLICATION:

  • The Act applies to the mediation when it is conducted in India, and —

all or both parties habitually reside in case of a company or LL.P or a Firm is incorporated in or has their place of business in India,

  • there is a mediation agreement which provides that any dispute shall be resolved in accordance with the provisions of this Act; or
  • there is an international mediation; or
  • wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations, and local bodies, including entities controlled or owned by such Government and where the matter pertains to a commercial dispute; or
  • to any other kind of dispute if deemed appropriate and notified by the Central Government or a State Government from time to time, for resolution through mediation under this Act, wherein such Governments, or agencies, public bodies corporations and local bodies including entities controlled or owned by them is a party.
  • WHO CAN BE A MEDIATOR?

Well, there is no specific provision in the Act about who cannot be a mediator. But in Sec 3 (i ) it is provided that  “mediator” means a person who is appointed to be a mediator, by the parties or by a mediation service provider, to undertake mediation, and includes a person registered as mediator with the Council.

Explanation.—Where more than one mediator is appointed for a mediation, reference to a mediator under this Act shall be a reference to all the mediators;

Basically, he should be a trained mediator. After obtaining a certificate he can register himself on the panel of mediators maintained by the High Court and other institutions.

Usually, there is only one Mediator. It is advisable to have only one Mediator.  But if the matter is of importance there can be more than one Mediator. Example Ram Janmabhoomi Case.

  • HOW MEDIATION STARTS- Section 4

 (1) A mediation agreement shall be in writing, by or between parties and anyone claiming through them, to submit to mediation all or certain disputes which have arisen, or which may arise between the parties.

(2) A mediation agreement may be in the form of a mediation clause in a contract or in the form of a separate agreement.

(3) A mediation agreement is in writing if it is contained in or recorded as—

(a) any document signed by the parties;

(b) an exchange of communications or letters including through electronic form as provided under the Information Technology Act, 2000;

(c) any pleadings in a suit or any other proceedings in which the existence of a mediation agreement is alleged by one party and not denied by the other.

(4) A reference in any agreement containing a mediation clause shall constitute a mediation agreement if the agreement is in writing and the reference is such as to make the mediation clause as part of the agreement.

(5) The parties may agree to submit to mediation any dispute arising between them under an agreement, whether entered prior to the arising of the dispute or subsequent thereto.

(6) A mediation agreement in case of international mediation shall refer to an agreement for resolution in matters of commercial disputes referred to in clause (a) of section 3

 The court can refer the matter to the Mediator at any stage- Sec 7

 TYPES OF MEDIATION

  • “Court-annexed Mediation” means mediation including pre-litigation mediation conducted at the mediation centres established by any court or tribunal
  • “Institutional Mediation” means mediation conducted under the aegis of a mediation service provider.
  • “International Mediation” means mediation undertaken under this Act and relates to a commercial dispute arising out of a legal relationship, contractual or otherwise, under any law for the time being in force in India, and where at least one of the parties, is —

(i) an individual who is a national of, or habitually resides in, any country other than India; or

(ii) a body corporate including a Limited Liability Partnership of any nature, with its place of business outside India; or

(iii) an association or body of individuals whose place of business is outside India; or

(iv) the Government of a foreign country;

Community Mediation Section 43

(1) Any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.

(2) For the purposes of sub-section (1), any of the parties shall make an application before the concerned Authority constituted under the Legal Services Authorities Act, 1987 or District Magistrate or Sub-Divisional Magistrate in areas where no such Authority has been constituted, for referring the dispute to mediation.

(3) In order to facilitate settlement of a dispute for which an application has been received under sub-section (2), the concerned Authority constituted under the Legal Services Authorities Act, 1987 or the District Magistrate or Sub-Divisional Magistrate, as the case may be, shall constitute panel of three community mediators.

(4) For the purposes of this section, the Authority or District Magistrate or the Sub-Divisional Magistrate, as the case may be, shall notify a permanent panel of community mediators, which may be revised from time to time.

(5) The following persons may be included in the panel referred to in sub-section (4): (a) person of standing and integrity who are respectable in the community;

(b) any local person whose contribution to the society has been recognised;

(c) representative of area or resident welfare associations;

(d) person having experience in the field of mediation; and

(e) any other person deemed appropriate.

(6) While making panel referred to in sub-section (4) the representation of women or any other class or category of persons may be considered.

  1. Procedure for community mediation.

(1) Any community mediation shall be conducted by the panel of three community mediators referred to in sub- section (3) of section 43 who shall devise suitable procedure for the purpose of resolving the dispute.

(2) The community mediators shall endeavour to resolve disputes through community mediation and provide assistance to parties for resolving disputes amicably.

(3) In every case where a settlement agreement is arrived at through community mediation under this Act, the same may be reduced into writing with the signature of the parties and authenticated by the community mediators, a copy of which be provided to the parties and in cases where no settlement agreement is arrived at, a non-settlement report may be submitted by the community mediators to the Authority or the District Magistrate or the Sub-Divisional Magistrate, as the case may be, and to the parties.

(4) Any settlement agreement arrived at under this Chapter shall be for the purpose of maintaining the peace, harmony, and tranquillity amongst the residents or families of any area or locality but shall not be enforceable as

a judgment or decree of a civil court.

(5) The provisions of section 20 shall, mutatis mutandis apply, in relation to the registration of mediated settlement agreement under this section.

Jurisdiction of Mediator:

Section  13. Territorial jurisdiction to undertake mediation.

Every mediation under this Act shall be undertaken within the territorial jurisdiction of the court or tribunal of competent jurisdiction to decide the subject matter of dispute:

Provided that on the mutual consent of the parties, mediation may be conducted at any place outside the territorial jurisdiction of the court or tribunal, or by way of online mediation.

Explanation.—For the removal of doubts, it is clarified that where the parties agree to conduct the mediation at any place outside the territorial jurisdiction or online, for the purpose of enforcement, challenge, and registration of the mediated settlement agreement, the same shall be deemed to have been undertaken within the territorial jurisdiction of the court or tribunal of competent jurisdiction.

Section 14 :

For mediation, the first thing is there should be an existing conflict.

Ask yourself reasons for conflict.

Wine, Woman, and Wealth

In Gujarati Jar, Jamin ane Joru thranev kajia na choru.

 Why Conflict:

 There is an increase in emotions like anger, frustration, etc. One feels that they are being threatened. People get involved, choosing sides.

War examples of Ukraine– Russia

Israel- Hamas

 Behaviour, attitudes, and context all influence each other, and so changes in context can lead to changes in attitude and behaviour. Similarly, changes in behaviour can lead to changes in attitude and ultimately the context. The ABC triangle is a simple framework for exploring the impact and causes of conflict.

The triangle conflict: PROBLEM, PEOPLE, PROCESS

The below Conflict Iceberg model by Cloke & Goldsmith is such an interesting graphic. It speaks volumes through one picture below.

We are studying the conflict Iceberg, a model that shows issues, personalities, and emotions on the surface. However, underneath all that are values, interests, needs expectations. It is not so much about the conflict itself but what we are bringing to the conflict.

Patience is required to find out what is going on beneath the surface!!

It is a mediator’s job to remove blocks in mediation and find out what is going on beneath the surface for each party.

This is a simple way of explaining someone’s emotions. We may only see anger on the surface but if you as a mediator can bear in mind that this person obviously has a need or something of interest to them that needs to be aired and resolved. Going into any conflict situation in the future I would consider the iceberg model to be a great part of seeing beyond the issue.  Thus, helping you not react immediately.

NOW IN SUCH CASE, THE MEDIATOR HAS TO PLAY HIS ROLE.

  1. Appointment of mediators.

(1) Unless otherwise agreed upon by the parties, a person of any nationality may be Appointment appointed as a mediator: of mediators.

Provided that mediator of any foreign nationality shall possess such qualification, experience and accreditation as may be specified.

(2) The parties shall be free to agree upon the name of the mediator and the procedure for their appointment.

(3) If the parties do not reach an agreement on a matter referred to in sub-section (2), then the party seeking initiation of mediation shall make an application to a mediation service provider for the appointment of a mediator.

(4) Upon receiving an application under sub-section (3), the mediation service provider shall, within a period of seven days, appoint,—

(i) the mediator as agreed by the parties; or

(ii) in case the parties are unable to reach an agreement as to the appointment of a mediator or mediator agreed by them refuse to act as mediator, a mediator from the panel maintained by it, with his consent.

(5) The person appointed under clause (i) of sub-section (4) shall communicate his willingness or otherwise within a period of seven days from the date of receipt of communication of such appointment.

TIME PERIOD: to complete mediation is 120 days from the date of appointment. In case it is court-annexed mediation then it can be extended for another 60 days by an order. If it is private mediation, it can be by mutual agreement but in any case, it cannot be extended for more than 60 days. ( Sec 18)

SECTION 15 CONDUCT OF MEDIATION OR PROCESS OF MEDIATION

Mediation is a process where a neutral third party (who is a trained Mediator) assists the parties to the dispute, to resolve their disputes and differences of opinion resulting in the meeting of minds. The neutral Mediator never imposes a decision, but he is just a communicator, endeavouring to resolve the disputes between the parties to arrive at an amicable solution. It is our tradition to forgive and forget as well as to give and take. Taking this norm as the substratum of the mediation process a Mediator is a conduit pipe for both parties to settle their misunderstanding and disputes by forget and forgive, and, give, and take, to arrive at “win-win” situation.

All the communication between the parties will have to pass through the Mediator, but a stage comes, with the efforts of the Mediator the block hindrances and differences between the parties are broken, melted and parties during the process of mediation start communicating with each other and that is a success of a Mediator’s efforts to break the ice between the parties and thereafter only there could be an amicable settlement.

ROLE OF A MEDIATOR

Mediators should consider during the process that arguing over positions produces unwise agreement and at the same time is inefficient, which may damage even the ongoing relationship of the parties.

However, the Mediator should take care that when a stage of bargaining comes during the process, he should monitor the process, which may develop into cooperative bargaining, or principled bargaining, which is also known as collaborative bargaining.

There are many impediments to settlement, despite the fact that a Mediator is a trained, and qualified person having integrity, which may be due to failure of communication, poor negotiation skills, lack of sufficient information, inability to control emotions, differing legal perspectives, unrealistic expectation and most rigid impediment to settlement is there are wrong people on the table.

A- Steps of Mediation

Mediation is a path to achieve a settlement, when a person approaches the Court, his physiological, economic, and social life is in a disturbed state of mind. Nowadays, litigation also requires a lot of money and as far as the Indian Judiciary system, it takes a Suit to come for a final hearing nearly 25 years i.e. 1 generation. By the time the suit comes up for hearing, either of the party is dead or the cause of action has lost its strength. Therefore, to reduce the burden on the Judiciary, the system of mediation is going to be introduced and it is the duty of a Mediator to make, arrive, and direct the parties to come to an amicable solution to a given problem.

From the above picture, it is seen that the parties to the litigation are playing a silent role especially when it is their own interest matter, and their future is in the hands of the attorneys appearing for them. The involvement of parties in the process is always silent.

CONDUCT OF JOINT SESSION BY MEDIATOR

(A) MEDIATOR’S ATTITUDE, COMPOSURE

  1. i) Stop, The Mediator should not make haste because haste results in waste
  2. ii) Mediator must constantly think; he should think pros and cons, and the effects of every action and its possible reaction.

iii) The mediator should ask more and more questions to gather facts of the case.

  1. iv) A smile generates a positive aura and it’s like a smiling doctor heals 90% of the disease of the patient similarly smiling Mediator evaporates 90% of hatred and generates to some extent positive attitude and establishes contact with the parties to the mediation.
  2. v) The mediator must be confident and optimistic;

(B) MEDIATOR MUST BEFORE WINDING UP ASK

The mediator must ask whether there is anything more so that any issues or something that has remained to be disclosed or discussed is not left out. Please note that even minor sentences in the mediation may be important and may give a clue to reach to an amicable solution.

MEDIATION PROCESS

  1. Introductory Meeting: In this all the parties including the Mediator introduce themselves and a short narration of the issue involved in the dispute is discussed in this joint meeting. The Mediator scans through the problem and condenses it in a manner by which it has been reduced to certain issues between the parties. It is the duty of the Mediator to confirm those issues, with the respective parties.

 Arrangement of Meeting :  

  1. The stage, of a Mediation is Private meeting or the Caucasus: In this Mediator talks to each party privately and whatever discussions are held in such meetings, shall remain confidential, the only material that is to be shown to the other party, like documentary evidence or any oral information is the duty of the Mediator to take permission from the other party to disclose the same in a private meeting to the other party.
  2. Stage No.3 is again a joint meeting between the parties wherein since the disputes are condensed and diluted both the parties will they arrive at a negotiated settlement and the terms arrived at between the parties are to be reduced in writing which is to be signed by both the parties and the Mediator. This is a short summary of the process of Mediation.

Final Meeting:

 THE WHOLE PROCESS OF MEDIATION

MEDIATION PHASES MEDIATOR TASKS

Before Mediation Initial contacts with the * Help parties disputing parties. to device

Preliminary Meeting(s) solution

* Promote Mediation Communication

* Clarify issue

* Generate option

* Reality Test.

* Confidentially

* Disclosure.

Opening Phase

Problem Defining

Middle Stages

Negotiations

Dispute Solving

Final game

Reaching

Agreement

Mediator’s opening

statement

Parties’ Opening Statement

Summarising and limiting the

topics. Identifying the issues.

Redefining the Issues if

necessary, reframing the

same generate possible

solutions or options.

Private Meetings between

the mediator and each party

Further private and joint

sessions, if necessary.

The agreement signed by both

the parties and the Mediator.

Role of a Mediator:

(a) Reception and Introduction

Party / Advocate / Mediator introduces each other, and the mediator plays the role of a host, he must avoid a situation like being seen by those last to arrive as having socialized too much with those first to arrive.

(b) Purposes of Mediators opening statement

To inform the parties about the mediation process

  • Private Confidential;
  • Informal;
  • No transcript;
  • Clarify the role of the Mediator in contrast with the role of an arbitrator;
  • Caucus procedure.
  • He has to inform the parties that he has no power to decide

To commence, to develop, credibility and trust relationship with the parties a bonding between a Mediator parties/counsel.

To assure the parties of a safe and secure environment for negotiation.

To gain commitments from the parties.

  • All agents and representatives of the parties have adequate discretion, authority, and information to resolve the disputes;
  • Participants have adequate time;
  • Participants will hang in with the mediation;
  • All participant commit to give their best good faith efforts to resolve the dispute by Agreement if possible;
  • All people will keep the confidence of this proceedings;

(c) Mediators’ disclosure and consent of the parties.

Each party to the process and the Mediator promises to disclose fully and truly all the relevant facts and supporting documentary evidence that are relevant to the mediation process.

(d) Mediators qualification;

He has to disclose the number of cases of mediation he has handled and further the success rate of the same.

(e) Neutrality;

He has to be neutral and non-judgmental and the said fact must be revealed in conducting mediation and even thereafter.

He cannot accept a brief on behalf of either party in respect of the same matter which was mediated by him.

(f) Settlement

The mediator should seek to determine that true settlement authority is present on all sides of the dispute. It is the duty of a Mediator to confirm that all the parties are present or present represented, if not, address whether the mediation can proceed realistically.

(h) Fairness, not Mediator responsibility.

In mediation, parties have the freedom to agree as they please and the Mediator being neutral decides nothing and advises as to nothing.

(i) Mediator not counsel nor an advisor

The mediator is a neutral person, and his neutrality extends not only till the end but also after the mediation is over.

(j) Confidentiality

The evidence that is discoverable and admissible at trial had the mediation not been held does not lose its character as discoverable at trial merely because it is used or disclosed in mediation.

(k) PARTIES OPENING STATEMENT

The opening statement of a party is like ventilation or an exercise of letting off steam. In the opening statement, one will see the number of outbursts of parties. This outburst will help in resolving the matter. It is a psychological status, once the mind is opened against whom person has agitation the other person also evaluates himself and his mistakes. It can be said that the opening statement will dilute not only the differences but negative impulses and ego of each party. In this process commonly in joint session, the parties can be taken to caucus immediately after the Mediator’s opening statement and parties’ opening statements, three or eight minutes for a party are opening as required:

(a) The mediator thereafter asks the party who will start first. Usually, in the case of court-referred mediation, the party who has approached the court will prefer to start first.

(b) In case the party has not responded to the last settlement offer or the claimant there has been no offer Mediator can select such party to speak first – the party or the counsel decides.

(c) It is courtesy of the attorney’s/counsel/barrister/solicitor to suggest the Mediator; and decide how much he will speak and how much his client will speak. When the client is articulate and not emotional it is advisable to show him as a good witness, but when the opening of whatever fashion is concluded the Mediator can then ask the Client questions like- are there other things you would like to talk about? Do you want to say anything more?

Please confirm with your checklist

– is there anything you would like to add? And

– How do you feel about this? Do you feel relaxed and the baggage of complaints you

were carrying is light weighted or not?

– where the level of adversity is very high, and when the parties to the dispute are

commercial parties the test of Mediator to make them discuss their own point of

agitation talking directly to each other, about:

(1) their areas of Agreement and

(2) the points and areas of disagreement and

(3) their perception of other parties to the mediation,

(4) alternative business deals they may think to arrive at to resolve their

disputes,

(5) independent objective standards criteria;

(d) The Mediator may recite the prior history of settlement negotiation;

(e) The mediator may ask for a copy of key evidentiary papers, if any, which are relevant to the discussion and the mediation process.

(f) Counsel and parties, tend to open to the Mediator during this opening statement, out of which the Mediator will pick up the areas of disputes or ask questions as he needs that the party opening first should address directly to the adversary, not to curse them, but to establish a respectful relationship, with them and pursued them after all they are the people with whom a party must reach to an agreement.

(g) During this session the Mediator must gather more and more information as to general facts, the status of parties to the process, and their positions, he must also consider legal issues and arguments led by the parties in the opening statements.

(h) After listening to one party he must communicate what he has understood and complete the loop. This will build trust in him and also confidence. Similarly, he has to listen and complete the loop with the other party. This action demonstrates neutrality and understanding of a Mediator and his balanced involvement and detachment.

(l) Decorum;

At the time of the beginning of the session, the Mediator has to inform the parties to maintain the decorum of the whole process and not to use abusive words and scurrilous language during the whole process.

(m) Questions;

The mediator must ask questions that would help him in gathering more and more facts about the case.

(n) Fees of the Mediator;

Before starting with the mediation, the Mediator must enter into an agreement in writing and fix up his fees. There are fixed fees with different forums. The intention of fix the fees to avail resolution of a dispute at reasonable rates.

Russell on Arbitration in his 20th edition has stated regarding exorbitant fees as: “where an arbitrator or umpire demands payment of his charges before delivery of his award, any party to the reference (other than a party who has agreed to those charges in writing with the arbitrator or umpire) may pay into court amount of charges and then apply to the Court for an order that the award be delivered and arbitrator‘s charges be taxed.

It would seem further, that a party who has paid exorbitant charges in order to obtain delivery of award may recover the excess beyond what is reasonable in an action against the arbitrator for money has and received’.

Enthusiasm;

Mediators must show enthusiasm in the matter.

(o) Commitments. It is important for a Mediator to summarize his commitments in his opening to get the parties and lawyers. The four commitments stated hereinabove.

The mediator must prior to initiation of the process, think over the different alternatives if negotiation fails.

They are, (i) the best alternative to negotiated agreement (BATNA)

(ii) the worst alternative to a negotiated agreement (WATNA), and

(iii) the most likely alternative to a negotiated agreement (MALATNA).

In any agreement and in a method of negotiation three criteria must be considered

(1) it should produce a wise settlement term if an agreement is possible,

(2) it should be efficient and

(3) it should improve or at least not damage the relationship between the parties.

What is BATNA?

The full form of BATNA is – (Best Alternative to a Negotiated Agreement). This term was developed by Roger Fisher, William Ury, and Bruce Patton of the Harvard Negotiation Project. It means You negotiate to get something from another party or person that is more valuable to You than the other party, in such case You will not get the best deal.

To explain in a simple form, Sales- Executives nowadays have a Target Set. The Loan Executive has to get a number of loans sanctioned, the credit card executive has to generate targeted customers say 100 per month, or the car dealer has set a target of say 10 cars a month. In all such cases, if their target is met, You will not get a good deal, say in the case of Loan rate of interest, money back facility or, in case of credit cards some gifts may not be offered or in case of car-free accessories may not be offered to You. In such cases, you will either choose to wait or search for the better favorable option for You.

Now take another example, where is the situation in which You have good bargaining opportunities, or your BATNA is much stronger? For example, you hold a Degree from an Institution of a Software Course that has either limited students or is a very reputed Institution and You have passed out with distinction. In such cases, you will have many options to negotiate for salary and perks with various renowned Companies. In such cases, you have a better opportunity for BATNA.

WHAT IS WATNA?

It means the Worst Alternative to a Negotiated Agreement. To explain in a simple manner, You file a case for recovery of money with interest against Mr.X. for an amount of say Rs.100. You incur an expense of Rs. 25 /- but there is no immediate relief granted to You in the suit as there are other creditors of Mr.X, Mr. X considering your business relationship with him, offers to You immediate payment of Rs.100 without interest. Considering the situation this is the Worst Alternative to a Negotiated Agreement and You accept the offer rather than fight for interest for years to come.

When Mediation is not appropriate? Prior to the Act coming into force the following cases mediation was not appropriate (a) the party refused to negotiate, (b) the party wanted a third party to adjudicate the case, (c) the party wanted a guarantee of a final binding decision, (d) party wants a public hearing on the dispute, (e) party wants to establish the legal precedent, (f) party does not have sufficient information to arrive at realistic liability or damages and (g) delay in resolution benefits party.

Now this is also coined in the Act of 2023

DISPUTES OR MATTERS NOT FIT FOR MEDIATION

  1. Disputes that by virtue of any law for the time being in force may not be submitted for mediation.
  2. Disputes relating to claims against minors, deities; persons with intellectual disabilities under paragraph 2 of the Schedule, and persons with disability having high support needs as defined in clause (t) of section 2 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016); persons with mental illness as defined in clause (s) of sub-section (1) of section 2 of the Mental Healthcare Act, 2017 (10 of 2017); persons of unsound mind, in relation to whom proceedings are to be conducted under Order XXXII of the Code of Civil Procedure, 1908 (5 of 1908); and suits for declaration of title against Government; declaration having effect of right in rem.
  3. Disputes involving prosecution for criminal offenses.
  4. Complaints or proceedings, initiated before any statutory authority or body in relation to registration, discipline, misconduct of any practitioner, or other registered professional, such as legal practitioner, medical practitioner, dentist, architect, chartered accountant, or in relation to any other profession of whatever description, which is regulated under any law for the time being in force.
  5. Disputes which have the effect on the rights of a third party who are not a party to the mediation proceedings except only in matrimonial disputes where the interest of a child is involved.
  6. Any proceeding in relation to any subject matter, falling within any enactment, over which the Tribunal constituted under the National Green Tribunal Act, 2010 (19 of 2010), has jurisdiction.
  7. Any dispute relating to levy, collection, penalties or offences, in relation to any direct or indirect tax or refunds, enacted by any State legislature or the Parliament.
  8. Any investigation, inquiry or proceeding, under the Competition Act, 2002 (12 of 2003), including proceedings before the Director General, under the Act; proceedings before the Telecom Regulatory Authority of India, under the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) or the Telecom Disputes Settlement and Appellate Tribunal established under section 14 of that Act.
  9. Proceedings before appropriate Commissions, and the Appellate Tribunal for Electricity, under the Electricity Act, 2003 (36 of 2003).
  10. Proceedings before the Petroleum and Natural Gas Regulatory Board, and appeals therefrom before the Appellate Tribunal under the Petroleum and Natural Gas Regulatory Board Act, 2006 (19 of 2006).
  11. Proceedings before the Securities and Exchange Board of India, and the Securities Appellate Tribunal, under the Securities and Exchange Board of India Act, 1992 (15 of 1992).
  12. Land acquisition and determination of compensation under land acquisition laws, or any provision of law providing for land acquisition.
  13. Any other subject matter of dispute which may be notified by the Central Government.

Can Petitioner paralyze Section 12A of the Commercial Courts Act for mandatory mediation by applying for urgent reliefs?  Section 5

Supreme Court recently in Yamini Manohar vs TKD Keerti held that:

“it is difficult to agree with the proposition that the plaintiff has the absolute choice and right to paralyze Section 12A of the CC Act by making a prayer for urgent interim relief. Camouflage and guise to bypass the statutory mandate of pre-litigation mediation should be checked when deception and falsity is apparent or established. The proposition that the commercial courts do have a role, albeit a limited one,

should be accepted, otherwise, it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12A of the CC Act. An ‘absolute and unfettered right’ approach is not justified if the pre-institution mediation under Section 12A of the

CC Act is mandatory, as held by this Court in Patil Automation Private Limited vs Rakheja Engineers Private Limited. The words ‘contemplate any urgent interim relief’ in Section 12A(1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must “contemplate”, which means the plaint, documents, and facts should show and indicate the need for urgent interim relief. This is the precise and limited exercise that the commercial courts will undertake, the contours of which have been explained in the earlier paragraph(s). This will be sufficient to keep in check and ensure that the legislative object/intent behind the enactment of section 12A of the CC Act is not defeated.”

Termination and Replacement of a Mediator

  1. Termination of the mandate of mediator.

A mediation service provider may terminate the mandate of a mediator upon—

(i) mediator being involved in a matter of conflict of interest from participants or any other person; or his withdrawal from mediation for any reason:

Provided that termination under clause (ii) shall be effected if, after giving a hearing to the mediator, the mediation service provider finds that there is justifiable doubt as to the independence or impartiality of the mediator and that the same has been brought to the notice of parties and that either party desires to replace the mediator.

  1. Replacement of mediator.

Upon termination of the mandate of mediator—

  • in case of mediation other than institutional mediation under clause (ii) of sub-section (4) of section 10, the parties may, appoint another mediator within a period of seven days from such termination; and
  • under section 11, the mediation service provider shall appoint another mediator from the panel maintained by it within a period of seven days from such termination
  1. Enforcement of mediated settlement agreement.

(1) A mediated settlement agreement resulting from a mediation signed by the parties and authenticated by the mediator shall be final and binding on the parties and persons claiming under them respectively and enforceable as per the provisions of sub-section (2).

(2) Subject to the provisions of section 28, the mediated settlement agreement shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a judgment or decree passed by a court, and may, accordingly, be relied on by any of the parties or persons claiming through them, by way of defence, set off or otherwise in any legal proceeding.

If it is Agreement for Sale or Family Arrangement Stamp Act and Registration Act applies.

  1. Challenge to mediated settlement agreement.

(1) Notwithstanding anything contained in any other law for the time being in force, in any case in which the mediated settlement agreement is arrived at between the parties and is sought to be challenged by either of the parties, such party may file an application before the court or tribunal of competent jurisdiction.

(2) A mediated settlement agreement may be challenged only on all or any of the following grounds, namely:—

(i) fraud;

(ii) corruption;

(iii) impersonation;

(iv) where the mediation was conducted in disputes or matters not fit for mediation under section 6.

(3) An application for challenging the mediated settlement agreement shall not be made after ninety days have

elapsed from the date on which the party making that application has received the copy of the mediated settlement agreement under sub-section (3) of section 19:

Provided that if the court or tribunal, as the case may be, is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of ninety days, it may entertain the application within a further period of ninety days.

29- Limitation.

Notwithstanding anything contained in the Limitation Act, 1963 or in any other law for the time being in force, in computing the period of limitation fixed for any proceeding relating to disputes in respect of which mediation has been undertaken under this Act, the period from the date of commencement of mediation under section 14, and up to—

(i) submission of report under section 21; or

(ii) termination of mediation under section 24, shall be excluded

 

SHRUTI DESAI

8 November 2023