Category List

Mediation

Mediation is one of an alternative dispute resolution mechanism wherein parties resolve their disputes by finding a mutually acceptable solution with the help of an independent, impartial and neutral third party, referred to as Mediator. A Mediator does not pass any judgment with respect to the dispute between the parties but opens an avenue for negotiation between the parties and creates a favorable environment to enable them to resolve their differences amicably. Mediation is a relatively less expensive, speedy and an efficient procedure. Unlike court cases, which are public, mediation proceedings are confidential. Any statement made or information furnished by either of the parties, cannot be disclosed in any civil proceedings or elsewhere without the written consent of the parties. Settlements reached in mediation are more agreeable to both parties than court judgments.

All civil cases such as recovery, injunction, specific performance, partition, landlord-tenant disputes, matrimonial disputes, property related disputes and varied category of disputes and few suitable criminal cases such as dishonor of cheques under section 138 of the Negotiable Instrument Act, cases under section 406/498A, IPC and cases which are compoundable under law, could be referred to Mediation.

The pending disputes are referred for mediation, generally on the consent of both the parties to the dispute but in some exceptional circumstances, even without the consent of the parties, the Court may refer the matter for mediation, if it thinks reasonable to do so in the interest of justice. Upon such a reference, the Mediation is governed by the MEDIATION AND CONCILIATION RULES.

TYPES OF MEDIATION:

  1. Court referred mediation: It applies to cases pending in Court and which the Court would refer to mediation under Section 89 of the Code of Civil Procedure, 1908.
  2. Private Mediation: Private mediation is used in connection with disputes which are at the stage of pre-litigation.

APPOINTMENT OF MEDIATOR:

Parties to a suit or other proceeding may agree on the name of the mediator for mediating between them. If the parties are unable to agree, the Court may ask each party to nominate the mediator or may nominate/appoint the mediator, as it deems fit. Now a days, most of the High Courts and District Courts have mediation centers attached to the Court, administered by the Court and whenever there is any need for referring the matter, the same is referred to such centers. The in-charge of the center then allocates the matter to panel mediator. In that case the parties are not supposed to pay any fee or charges for mediation.

QUALIFICATIONS OF PERSONS TO BE APPOINTED AS MEDIATOR:

    • Retired Judges of the Supreme Court of India;
    • Retired Judges of the High Courts;
    • Retired District & Sessions Judges or retired Officers of Delhi Higher Judicial Service;
    • District & Sessions Judge or Officers of Delhi Higher Judicial Service
    • Legal practitioners with at least ten years standing at the Bar at the level of the Supreme Court or the High Court or the District Courts.
    •  Experts or other professionals with at least fifteen years standing.
    •  Persons who are themselves experts in the mediation/conciliation.
    •  Social worker.
    • PROCEDURE FOR MEDIATION:
      1. The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings.

      2. Where the parties do not agree on any particular procedure to be followed by the mediator, the mediator shall follow the procedure hereinafter mentioned:

      • Each party shall, ten days before a session, provide to the mediator a brief memorandum setting forth the issues, which according to them, need to be resolved, and its position in respect to those issues and all information reasonably required for the mediator to understand the issue.
      • The Mediator meets the parties on the scheduled date and explains the entire mediation process and establishes neutrality and confidentiality. He thereafter generates momentum, towards open discussions for settlement. While meeting the mediator, the parties may be accompanied by their concerned lawyers.
      • The Mediator may conduct joint or separate meetings with the parties. He/she allows the parties to explain their grievances, demands and expectations and help them choose appropriate options for an amicable settlement.
      • Where an agreement is reached between the parties in regard to all the issues in the suit or proceeding or some of the issues, the same is reduced to writing and signed by the parties or their constituted attorney. If any counsel has represented the parties, the mediator may obtain his signature also on the settlement agreement. The settlement agreement is then furnished to the parties while the original is sent to the referral Court by the Mediator.
      • On receipt of the settlement agreement, the Court shall fix a date of hearing normally within seven days but in any case not beyond a period of fourteen days. On such date of hearing, if the Court is satisfied that the parties have settled their dispute(s), it shall pass a decree in accordance with the agreement.
      • If a settlement between the parties could not be reached, the case is returned to the referral Court by simply reporting non-agreement/failure to settle, without assigning any reason and thereafter commencement of litigation between the parties takes place.

FEES OF MEDIATOR AND COSTS:

The expense of the mediation including the fee of the mediator, costs of administrative assistance, and other ancillary expenses concerned, shall be borne equally by the various contesting parties or as otherwise directed by the Court. Further in Court annexed mediation, particularly where the matter is referred to Mediation Centre, the parties to the dispute are not supposed to pay any Court fees. If the matter is settled in mediation, the Court fee is also refunded.


- As on 1st July 2019