Modes of Dispute Resolution

Arbitration

Arbitration is outside the court settlement of a dispute by one or more (odd number) persons who are appointed as
arbitrators by both the parties.

According to S. 2(1)(a) of the Arbitration and Conciliation Act, 1996, “arbitration means any arbitration whether
or not administered by permanent arbitral institution”.

In other words, any form of arbitration irrespective of its nature has been recognised statutorily in India by bringing
such arbitration under the ambit of the Arbitration and Conciliation Act, 1996. It consists of a simplified trial, with
simplified rules of evidence and with no discovery. Arbitration hearings are usually not a matter of public record. The
arbitral award is binding on the parties just like a court decree or order.

Mediation

Mediation is a type of ADR (alternative dispute resolution) with the goal of facilitating agreement between two (or
more) disputants. Instead of agreeing to terms imposed by a third party, the parties take the initiative and decide on
the terms of any settlements they make. States, organizations, communities, people, and other representatives having
a stake in the result may participate (as parties) in the disputes.

To facilitate the parties' reaching an agreement (with tangible implications) on the disputed topic, mediators employ
relevant tactics and/or skills to start and/or improve discussion between the disputants. A mediator is only considered
neutral if all parties involved agree.

Mediating disagreements is an option for parties involved in many different types of conflicts, including business,
legal, diplomatic, workplace, community, and family issues.

For example, if unions and businesses need to reach an agreement, a third-party mediator could help them do it. A
union representing the company's employees goes on strike, the company often employs an outside mediator to help
the two sides come to terms on the terms of any pending contracts or agreements.

Conciliation
 A confidential, voluntary, and private dispute resolution method in which a person (neutral) is appointed to help the
parties reach a settlement is called conciliation.

Disputing parties are provided with an opportunity to explore and analyse the options provided by a third party to
determine if a settlement is possible or not.

The process is carried out by a conciliator, who meets with the parties together as well as separately in order to come
to an amicable settlement.

This is a flexible process, and decisions are taken by reducing tensions, improving communications, and adopting
other methods. This is a risk-free method and is not binding upon the disputing parties until or unless they sign it.

Negotiation

A process wherein direct and indirect forms of communication are used and through which the parties to a conflict
form a joint action aiming to resolve the dispute between them is called negotiation.

The history of negotiation can be traced back to the era of monarchies, when the king used to negotiate at the time of
war to prevent bloodshed. The scope of negotiation has increased with the passage of time.

Negotiation overrides the bulky paperwork, excessive time consumption, delayed process, and expensive
disadvantages of litigation.

Judicial Settlement

Section 89 of the Code of Civil Procedure also refers to judicial settlement as one of the alternative modes of
resolution of disputes. There are no specific rules for such settlements framed up to now.

The term "Judicial Settlement" is however specified in Section 89 of the Code. It was provided that the provisions of
the Legal Services Authority Act, 1987, would apply when there is a judicial settlement. This means that the Judge
concerned, seeks to settle the dispute between the parties in a legal settlement amicably. Such settlement shall be
deemed to be an agreement within the scope of the Legal Services Authority Act, 1987, if any friendly settlement is
resorted to and reached in the case at question.

Lok Adalat

Lok Adalat is usually referred to as 'People's Court' the bench comprises of sitting or retired judicial officer, a social
activists or members of Legal profession as the chairman.

National Legal Service Authority (NALSA) along with other Legal Services Institutions conducts Lok Adalats on
regular intervals for exercising such jurisdiction. Any case pending in regular court or the dispute which has never
brought before any court of law can be referred to Lok Adalat.

There is no court fee or any rigid procedure to be followed, hence making the process fast. If any matter pending in
court is referred to the Lok Adalat and gets settled subsequently, the entire court fee which was originally paid in the
court during filing of the petition is also refunded back to the parties.

Point of Differences Between Different Modes of Dispute Resolution

Difference/ADR Judicial Process Arbitration Conciliation Lok Adalat Mediation

Non-adjudicatory
body under S. 19
Adjudicating of the Legal
Quasi-judicial Negotiation
Process where Non-adjudicatory Services Act,
process where process where
Adjudication third-party process which is 1987
arbitrators are parties decide the
decides the flexible in nature
appointed outcome or terms
outcome Adjudicatory
body under S.
22(b) of LSA*
 Limited scope for
negotiation.
Process and
Process and Judges of a Lok
decision are
decision are Adalat abide by Flexible,
controlled and
governed and Centered around statutes but the negotiation-
Procedure governed by the
controlled by negotiation parties have an centric, freedom
Arbitration and
Parliamentary opportunity, to parties process
Conciliation Act,
statutes although limited,
1996
to opt for
negotiation

Settlement Settlement is
Agreements are Awards are binding on all
Awards are
Binding Nature of enforced under S. deemed as decrees parties if the terms
Binding on all binding only on
Decisions 74 of the of civil courts of the settlement
the parties
Arbitration Act, under S. 21 LSA are mutually
1996 agreed-upon

Collaborative in
nature, focusing
Adversarial, on present and
Structured process
focusing on past future events,
with different
events and Discussions and resolving disputes
Nature of Proceedings Adversarial stages considering
determining rights Persuasion by mutual
present
and liabilities of agreements,
circumstances
parties irrespective of
rights and
liabilities

Personal Personal Personal

appearance and appearance or Parties are Personal appearance and
Participation active active actively and appearances not active
participation is not participation is not directly involved required participation is
required required required

Non-judicial,
Formal Formal and
Confidential and Public informal and
Proceedings/Confidentiality proceedings held private
informal proceedings private
in public proceedings
proceedings

Can be appealed
Appealable Awards can be
Appeals** Not appealable but on certain Not appealable
decisions challenged
grounds

Fees Court fees Institutional fees Institutional fees Fees to court Institutional fees

* - S. 22(b) LSA makes a Lok Adalat a permanent body attached to every Court, and is therefore adjudicatory in nature.

** - Appeal implies challenge based on merits, whereas challenge can only be on certain grounds such as biased
arbitrator, etc.

Misconceptions about Mediation

Requires compromise from one or both parties

Achieves growth from parties

Mediator evaluates arguments presented by parties and decides

Mediator only facilitates discussion

Mediator is an arbitrator
 They are different

Mediator will advise on what to do

Giving advice on outcomes is considered unethical

Mediator will enforce the agreement reached

Not his job to enforce agreements, only to facilitate parties in reaching agreement

Mediator must be a legal expert

Not necessary - the requisite accreditation from the Government is all that is required

United Nations Convention on International Settlement Agreements Resulting from

Mediation, “Singapore Convention on Mediation”
Only talks on Settlement Agreements reached and not the actual process of mediation

It is a multilateral treaty and offers uniform and effective framework for enforcement of agreements reached through
mediation

The matters resolved are related to commercial disputes

Background
47th Session of the UNCITRAL Commission’s Second Working Group (2014)

The WG was a dispute settlement group that raised the issue of non-enforcement of international settlement
agreements.

48th Session of the the UNCITRAL Commission’s Second Working Group (2015)

The WG produced a Report with statistical data of mediation and enforcement of agreements reached by
mediation

In July 2015, the UNCITRAL asked the WG to make a legal framework on the same. This legal framework could be
either guidelines or a Convention or a Treaty that would be for all member States to enforce settlement agreements
reached through mediation. Following this, 85 member States and 35 NGOs deliberated and drafted the Singapore
Convention over the next six Sessions.

Two Drafts were made: the Singapore Convention and an Amendment to the UNCITRAL Model Law on
International Commercial Mediation and International Settlement Agreements, and were submitted in July 2018.

These drafts were approved and sent to the UNGA in December 2018.

On 7 August 2019, the Singapore Convention was opened for signing.

Art. 11 of the Convention lists out the requirements for date and place for signing. It was opened in Singapore
for signing for the first time, and New York City after that.

46 countries signed on the first day and 24 countries were in attendance.

India signed on the first day, along with USA, China and South Korea.

Art. 14 of the Convention talks about requirements for ratification and how the Convention enters into force.

Art. 14 states that the Convention will enter into force within six months of three members submitting their
ratifying documents.

Singapore, Fiji its documents required for ratification to the New York office in February 2020, and Qatar
submitted its documents on 12 March 2020.

Subsequently, the Convention entered into force on 12 September 2020.

 Currently, it has 57 signatories and 14 Parties.

Preamble
Recognizing mediation as a method to resolve with third-party assistance.

Noting mediation is increasingly used in international and domestic disputes as an alternative to litigation.

Considering benefits attached to mediation.

Reducing instances of termination of commercial relations.

Facilitating administration of international transactions.

An international framework that is accepted by all States with different legal, social and economic limitations.

Articles of the Singapore Convention

Article 1: Scope of Application

Disputes of an international nature

Commercial disputes

Applies to agreements resolved by mediation and reduced to writing

International Commercial Dispute:

Parties are of different States

Parties are from the same State but the subject matter of the dispute is of an international nature

Parties are from the same State but the obligation between them is to be performed in a different State

Art. 1, para 2: Exclusion

consumer-related matters,

family matters,

employment matters

Art. 1, para 3: Limitation on Enforcement of Certain Agreements

Settlement agreements arrived at or concluded by court proceedings

Agreements enforced as judgements, such as Lok Adalat agreements, which are enforceable as decrees under
CPC

Arbitral awards

Article 2: Definitions

It elaborates on Art. 1

Art. 2(1)(a): “place of business” as the closest relationship to the dispute resolved by the settlement agreement
would be the relevant place of business.

Art. 2(1)(b): when there is no place of business of either parties, the ordinary place of residence or the party’s
habitual place of residence will be considered as the relevant place of business.

Art. 2(2): “Written Agreement” as being recorded in any form. It recognizes e-contracts and considers electronic
communication as fulfilling the requirement of “writing down”. In India, S. 10(a) of the IT Act, 2000 validates
contracts entered through electronic means.

Art. 2(3): “Mediation” as a process of dispute resolution where:

parties attempt to reach amicable settlement

 with assistance of any third-party

third-party lacks the authority to impose settlement.

Article 3: General Principles [READ]

Art. 3(1) works as the sword of the Convention and Art. 3(2) as the shield.

Art. 3(1) states that a Party to the Convention shall enforce a settlement agreement in accordance with its rules of
procedure and under the conditions laid down in this Convention.

Art. 3(2) prevents further legal proceedings in that a dispute or an issue already resolved by a Mediator cannot be
raised again and again in litigation or in other proceedings. To this effect, the Settlement Agreement can be invoked
by a party to show that the dispute has already been resolved and that it cannot go through further legal proceedings.

Article 4: Requirements for Reliance on Settlement Agreements

Signature of the parties to agreement

Evidence that the mediation was actually conducted, or that the settlement agreement was reached upon by mediation
(any one):

Mediator’s signature on he settlement agreement

Attestation from the mediation institution

A document signed by the Mediator indicating that the mediation was caried out

In the absence of all of the above, any other evidence deemed acceptable to the competent authority can be used,
such as notice for further sessions, fee slips, etc.

A State can make its own rules regarding this

Art. 4(2) validates an electronic version of the settlement agreement or of the documents mentioned above.

In India, Ss. 65A and 65B of the IEA deal with the same.

Art. 4(3) states that if the document is not in the official language of the authority’s nation, it must be translated

Art. 4(4) states that verification of necessary documents can be done by the competent authority if required

Art. 4(5) provides for speedy disposal.

Article 5: Grounds for Refusing to Grant Relief

Art. 5(1): Contractual Grounds [by Parties]

Incapacity of Parties

The Settlement Agreement is null and void

The Settlement Agreement is inoperable or cannot be performed

The Settlement Agreement is not binding or final

The Settlement Agreement has been subsequently modified

The obligation has already been performed

The obligation is not clear or comprehensive

Grant of relief is contrary to terms of Settlement Agreements

Art. 5(2)(e), (f): Mediator Misconduct

Mediator is not following standards of mediation or the standard conduct of mediation [Art. 5(1)(e)]

If the mediator has not been impartial or independent [Art. 5(1)(f)]

 Art. 5(2)(a): Public Policy

If the grant of relief would be against the general law or policy of a country

Art. 5(2)(b): Mediability of Dispute

The subject matter of dispute is not capable of being resolved through mediation, such as family matters,
employment matters, manufacture of goods, etc.

Article 6: Parallel Application

If an application or a claim relating to a settlement agreement has been made to a court, an arbitral tribunal or any other
competent authority which may affect the relief being sought under article 4, the competent authority of the Party to the
Convention where such relief is sought may, if it considers it proper, adjourn the decision and may also, on the request of
a party, order the other party to give suitable security.

Article 7: Other laws or treaties

This Convention shall not deprive any interested party of any right it may have to avail itself of a settlement agreement in
the manner and to the extent allowed by the law or the treaties of the Party to the Convention where such settlement
agreement is sought to be relied upon.

Case: Salem Advocates Association v. Union of India (2003)

UNCITRAL Model Law on International Commercial Mediation and International

Settlement Agreements Resulting from Mediation (2018), “UNCITRAL Model Law on
Mediation”

Background
Same as the Singapore Convention. The other Draft presented by the Working Group in July 2018, which was the
Amendment to the Model Law resulted in the current version of the UNCITRAL Model Law.

Initially, prior to the Amendment, the Model Law o International Conciliation was adopted in 2002.

An Amendment passed in 2008 removed the word conciliation and added “mediation”, along with the addition of a
new section for enforcement of settlement agreements.

Objectives

Designing a mechanism to assist States in reforming and modernizing the law on mediation procedure.

To provide uniform rules for mediation process.

Aims to encourage the use of mediation in ensuring greater predictability and certainty in its use.

The UNCITRAL Model Law on Mediation removed uncertainty by addressing:

a. procedural aspect of mediation

b. conduct of mediation/mediator

c. communication used in mediation

d. confidentiality

e. admissibility of evidence

f. post-mediation issues

It provides guidelines for the enactment and use for States to bring domestic legislations. Currently 46 signatories and 33
Parties. India is neither.

Articles of the UNCITRAL Model Law on Mediation

 The Model Law is divided into three sections:

Section I: General Provisions (Arts. 1 and 2)

Section II: International Commercial Mediation (Arts. 3-15)

Section III: International Settlement Agreements (Arts. 16-20)

Article 1: Scope of Application and Definitions

Art. 1(1) provides that it applies to international commercial mediation and international settlement agreements.

Footnote 1 defines “commercial” as when parties have contractual relations with each other. It also gives a list
of examples such as joint ventures, construction agreements, etc.

Art. 1(2) states that “mediator” means a sole mediator or two or more.

Article 2: Interpretation [READ]

Article 3: Scope of Application of the Sections and Definitions

Art. 3(1) states that it applies to international commercial mediations

Art. 3(2) defines “international” as:

if the parties have their places of business in different States

the places of business is in the same State but the substantial part of the obligation is to be performed in a
different State or the subject matter of the dispute is most closely connected with a different State.

Art. 3(3) defines a “place of business”

Art. 3(4) states that the Model Law will apply to commercial mediation when the parties agree that the mediation is
international or to the applicability of Section II.

Art. 3(5) states that the parties are also free to exclude Section II.

Art. 3(6) - READ

Art. 3(7)

Article 4: Variation by Agreement

States that the parties can agree to exclude or vary any of the provisions of Section II except Art. 3, para 7.

Article 5: Commencement of Mediation Proceedings

Art. 5(1): the date of commencement of mediation is when the parties agree to mediate or engage in mediation
proceedings

Art. 5(2): When an invitation to mediate has been sent by one part to another, and there is no response or acceptance
for 30 days, the invitation is deemed to be rejected.

Article 6: Number and Appointment of Mediators

Art. 6(1): Generally a sole mediator, unless parties agree to two or more.

Art. 6(2): it is the responsibility of the parties to reach an agreement on mediator(s) unless a different procedure has
been agreed upon.

Art. 6(3): Parties can approach institutions for appointment of mediators. Institutions can either recommend suitable
mediators or the parties can agree that the appointment of mediators be directly made by such institution.

Art. 6(4): Independent and impartial mediator to be appointed and to consider the nationality of the mediator.

Art. 6(5): when a person is approached to be a mediator, he shall disclose all or any circumstances or relations he
may have with either or both of the parties.
Article 6 of the Model Law is to be read with Article 3 of the UNCITRAL Mediation Rules, 2021.

Art. 3(4) of the Rules states that while appointing or recommending a mediator, certain things must be kept in mind:

professional expertise and qualification

experience in conducting mediation

accreditation or certificate from a recognized professional mediation standards body

independence and impartiality

availability

Art. 3(5) of the Rules states that the institution should pay consideration to the geographical diversity and gender of
the candidate for mediator

Art. 3(6): disclosure of any relations with any of the parties must include personal, professional, financial or any
other interest that may influence the outcome.

Art. 3(8) talks of a “substitute mediator”: If a mediator cannot perform his duties, a substitute mediator shall be
appointed by the same procedure given in Art. 6 of the Model Law r/w Art. 3 of the Rules.

Article 7: Conduct of Mediation

Art. 7(1): Parties can either follow the Model Law or any other set of institutional rules given that the parties agree
to it.

Art. 7(2): If parties do not reach an agreement to rules, the mediator can conduct proceedings in a manner considered
appropriate, taking into account:

circumstances of the case

wishes of the parties

speedy settlement

Art. 7(3): the mediator shall maintain fair treatment of the parties, taking into account the circumstances of the case.

Art. 7(4): the mediator, at any stage, can propose a settlement.

Article 7 of the Model Law is to be read with Article 4 of the Model Rules.

Art. 4(3): things to be considered in facilitating mediation:

meeting at an earlier stage to agree on the organization of the mediation

arrange for administrative assistance

appointment of expert, by parties or by mediator with consent of the parties

Art. 4(4) provides for Online Dispute Resolution (ODR), which can be done with consent of the parties. Art. 4(4)
validates the use of e-contracts as well.

Art. 4(5): any party can demand or have assistance or a representative. The details of the person assisting to be
provided - name, address and function.

Article 8: Communication between mediator and parties

The mediator can meet both the parties together or separately (individual sessions called private caucus).

Article 8 of the Model Law is to be read with Article 5 of the Model Rules.

Art. 5: at any stage, a party can submit any information concerning the dispute. It can be regarding the nature, the
issues, the party’s motive and goals for mediation.

Article 9: Disclosure of Information

Any information provided by the party to the mediator must be disclosed to the other party unless such information is
provided on the condition of confidentiality.

Article 9 of the Model Law is to be read with Article 5(3) of the Model Rules.

They both say essentially the same thing.

Article 10: Confidentiality

Confidentiality of the mediation must be maintained throughout the proceedings unless:

a. the law provides for disclosure

b. for implementation of the settlement agreement.

Article 11: Admissibility of evidence in other proceedings

Art. 11(1): certain documents cannot be used as evidence in this mediation, arbitration, judicial or quasi-judicial
proceedings or any other proceedings:

invitation by the parties to mediate

views expressed or suggestions made

statements or admissions made

proposals made by mediator

acceptance/willingness to accept proposals

any other document made solely for the purpose of mediation.

Art. 11(3): No court or arbitral tribunal can force a party to bring such documents as evidence in other proceedings.
Orders to such effect are also inadmissible. Exceptions to this:

required by law

for enforcement of settlement agreement.

Article 12: Termination of Mediation Proceedings

by conclusion of settlement agreement

by declaration of mediator (in consultation with parties)

by declaration of one party to the other and the mediator

Article 13: Mediator acting as arbitrator

The mediator shall not act as an arbitrator in respect of a dispute that was the subject of the mediation proceedings or in
respect of another dispute that has arisen from the same contract or legal relationship, unless otherwise agreed by the
parties.

Article 14: Resort to arbitral or judicial proceedings

Where the parties have agreed to mediate and have expressly undertaken not to initiate arbitral or judicial proceedings
with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court
until the terms of such undertaking have been complied with, except to the extent necessary for a party to preserve its
rights. Initiation of such proceedings is not itself regarded to be a waiver of the agreement to mediate or as a termination
of the mediation proceedings.

Article 15: Binding and enforceable nature of settlement agreements

If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable.

Articles 16-20 are the same as Articles 1-6 of the Singapore Convention.

UNCITRAL Model Law UNCITRAL Mediation Rules

 6 3

7 4

8 5

9 5, para 3

10 6

12 9

14 10

Mediation under Consumer Protection Act

Section 2(15): Director Commission. A director commissioner means a district consumer dispute redressal commission
established under section 28(1).

Section 2(25) Mediation – process by which a mediator mediates the consumer disputes.

Section 2 (26) Mediator – mediator as referred under section 75.

Section 37: Reference to Mediator

If, during the initial complaint hearing or later, the district commission sees potential for a settlement, parties may be
suggested to pursue mediation.

Parties must provide written consent within 5 days if they agree to mediation, and the district commission may then
refer the matter for mediation within 5 days.

Mediation follows rules outlined in Chapter 5, sections 74-81.

Section 74: Establishment of Consumer Mediation Cell - Functions of Mediation Cell in relation to different level of
government authorities:

Each state commission and district commission must have a consumer mediation cell established by the state
government.

The central government establishes cells for the National Commission and its regional benches.

Cells include individuals, possibly trained mediators, and support staff.

Cells maintain records, including approved mediators and case details, submitting quarterly reports.

Section 75: Empanelment of Mediators - Process and criteria for selection

National, State, or District Commissions create a mediator panel, maintained by the attached consumer mediation
cell.

Selection, qualifications, fees, code of conduct, and removal criteria are specified in regulations.

The panel is valid for five years, with re-empanelment options as per regulations. consumer

S. 76 provides for the mediator must be selected from the panel for a matter on the basis of his suitability for resolving
the consumer dispute involved.

Section 77: the responsibilities and ethical obligations of a mediator involved in the resolution of a consumer dispute.
Specifically, it states that it is the duty of the mediator to disclose the following:

Any personal, professional, or financial interest in the dispute outcome to prevent bias.

Circumstances that could cast doubt on their independence or impartiality, ensuring neutrality.

Any other facts specified by regulations for transparency and fairness.

S. 78: Mediator Replacement: A mediator can be replaced upon valid reasons, satisfying the relevant commission or
any involved party.
 S. 79: Process for Mediation

The consumer mediation occurs at the cell linked to the relevant

Mediator's Responsibilities:

The appointed mediator considers rights, obligations, trade customs, and circumstances of the

Adherence to principles of natural justice ensures fair, impartial, and just

Mediation should be completed within three months, following specified

Section 80 - Process for settlement through mediation

Agreement in Mediation:

If parties in a consumer dispute agree on issues, the terms are written and

Settlement Report:

The mediator creates a report summarizing the agreement and sends it, with the signed agreement, to the relevant
Commission.

No Agreement:

If no agreement is reached or deemed unattainable in the specified time, the mediator submits a report to the relevant
Commission.

Section 81: Procedures for recording settlements and passing orders in consumer disputes: Recording Settlement and
Passing Orders:

The relevant Commission (District, State, or National) acts within seven days of receiving the settlement report. An
order is passed, recording the settlement and taking necessary steps for resolution.

Partial Settlement:

If only some issues are resolved in mediation, the Commission records the settled ones while addressing the
remaining unresolved matters.

Unsettled Disputes:

If mediation doesn't resolve the consumer dispute, the Commission proceeds to hear and address all the issues

According to Regulation 11 of the Consumer Protection (Mediation) Regulations, 2020, the mediator's fee, set by the
President of the Consumer Commission, is shared equally by the parties. If mediation is unsuccessful, only half of the fee
is payable. Parties must deposit the fee in advance with the Mediation Cell.

Regulation 10 of the Consumer Protection (Mediation) Regulations, 2020, Mediators have to follow certain rules of
conduct:

Communication Restrictions: Mediators are prohibited from communicating with parties or their associates outside
the mediation sessions, except during the mediation itself in the presence of the parties or their

Gifts and Hospitality: Empaneled mediators cannot accept any gifts or hospitality from the involved parties or their
associates, affiliates, promoters, holding companies, subsidiaries, directors, partners, employees, or their counsel.

Disclosure of Relationships: Mediators are required to disclose any past or present personal, business, or professional
relationships or connections with the parties involved before the start of the mediation. This includes revealing
circumstances that might raise doubts about their independence and impartiality.

Companies (Mediation and Conciliation) Rules, 2016

Derived from Companies Act, 2013

Section 442: Mediation & Conciliation Panel

 Central to Maintain a Mediation & Conciliation Panel of experts

Any party can apply for mediation or conciliation during the pendency of the proceedings before the Court or the
NCLT/NCLAT

Central /NCLT/NCLAT may Suo Motu refer parties to mediation and conciliation

Fee and Procedure not specified

Section 469: Power of Central Govt. to make rules

Companies Mediation Rules

Rule 1 & 2

Section 1: Short Title and Commencement

Section 2: Definition Clause

RULE 3: Panel Of Mediators And Conciliators

Regional Director (RD) shall prepare a panel of experts

RD may invite applications

Person who intends to be empaneled as a mediator or a conciliator can apply if he/she possesses requisite
qualifications

RULE 4: Qualifications For Empanelment

A person can be empaneled only if he/she has been:

A Judge of the Supreme Court of India; or

A Judge of a High Court; or

A District and Sessions Judge; or

A Member or Registrar of a Tribunal constituted at the National level; or

An officer in the Indian Corporate Law Service or Indian Legal Service with fifteen years experience; or

A qualified legal practitioner for not less than ten years; or

Is or has been a professional for at least fifteen years of continuous practice as Chartered Accountant or Cost
Accountant or Company Secretary; or

Has been a Member or President of any State Consumer Forum; or

Is an expert in mediation or conciliation who has successfully undergone training in mediation or conciliation

Rule 5: Disqualifications For Empanelment

They are bankrupt and waiting for approval

They have a criminal conviction that the government considers morally wrong

They were fired from government service or a government-controlled entity

They were disciplined in a work-related matter.

The government thinks their financial or personal connections could harm their role as a mediator or conciliator

Rule 6: Application For Appointment Of Mediator Or Conciliator

Parties may agree on the name of sole mediator or conciliator

Parties unable to agree: Central Govt. or the NCLT/NCLAT may ask parties to nominate the mediator or conciliator
and will appoint one on its own discretion
 On receipt of an application; one or more members of the panel can be appointed

Rule 7 & 8: Deletion & Withdrawal Respectively

Deletion from the panel: The Regional Director may by recording reasons in writing and after giving him an
opportunity of being heard, remove any person from the Panel.

Withdrawal from the panel: Any person who intends to withdraw his name from the Panel may make an
application to the RD indicating the reasons and the RD shall take a decision on such application within fifteen days
of receipt of such application

Rule 9 & 10: Duty Of Disclosure & Withdrawal Of Appointment

Duty of Disclosure: Duty of a mediator or conciliator to disclose to the Central Govt. NCLT/NCLAT as the case
may be, about any circumstances which may give rise to a reasonable doubt as to independence or impartiality in
carrying out his functions

Withdrawal of Appointment: If the Central Govt. NCLT/NCLAT finds doubt regarding independence and
impartiality; can withdraw the appointment of a person

Rule 11: Procedure For Disposal Of Matters

The mediator or conciliator shall follow the following procedure, namely:-

Agree on dates and times for sessions with all parties

Conduct sessions at a location decided by the Central Government, NCLT, or a place agreed upon by all parties

Have joint or separate meetings with the parties

Ten days before a session, each party must provide a brief memo outlining the issues, their position, and any
necessary information for the mediator or conciliator to understand the The memo must also be shared with the other
party. The mediator or conciliator can reduce this time in suitable cases.

Provide any additional information requested by the mediator or conciliator regarding the issues to be resolved

Rule 12, 13 & 14: Not bound by IEA or CPC, representation of parties & consequences of non-attendance
respectively

Mediator and Conciliator is guided by the principles of fairness and natural justice

Ordinarily parties to be present personally or through an Authorized Attorney

If a party fails to attend a session or a meeting fixed by the mediator or conciliator deliberately or willfully for two
consecutive times, the mediation or conciliation shall be deemed to have failed

Rule 16: Offer Of Settlement

Either party can offer a settlement at any stage, marked "without prejudice" or "with prejudice," with notice to the
mediator or conciliator.

Parties must understand that the mediator or conciliator facilitates but doesn't impose settlements. There's no
assurance that mediation will result in a settlement, and the mediator or conciliator won't force decisions on the
parties.

Rule 17: Role Of Mediator/Conciliator

Facilitate voluntary resolution of the dispute by the parties, and communicate the view of each party to the other,

Assist them in identifying issues, reducing misunderstandings, clarifying priorities,

Exploring areas of compromise and generating options in an attempt to resolve the dispute,

Emphasizing that it is the responsibility of the parties to take decision which affect them

Shall not impose any terms of settlement on the parties

Rule 18: Decision Making Responsibility

The parties shall be made to understand that the mediator or conciliator facilitates in arriving a decision to resolve the
dispute and that he shall not and cannot impose any settlement nor the mediator or conciliator give any assurance that the
mediation or conciliation shall result in a settlement and the mediator or conciliator shall not impose any decision on the
parties.

Rule 19: Time Limit

Completion of Mediation/Conciliation within three months of appointment of the panel

Expiry of three months: Panel stands terminated

Can be extended for a period of three months; Discretion of the NCLT or NCLAT

Rule 21: Confidentiality, Disclosure & Inadmissibility Of Information

Information Sharing: Mediators must share factual information received from one party with the other, unless
specified as confidential.

Confidentiality Rule: Mediators keep all information confidential and cannot be compelled to disclose it to specific
entities.

Parties' Confidentiality: Participants must maintain confidentiality about discussions and documents from the
mediation in other legal matters.

No Recordings: Audio or video recordings are prohibited during mediation

No Statements Recording: Mediators cannot record statements from parties or witnesses

Rule 23: Protection Of Action Taken In Good Faith

Mediators or conciliators cannot be held responsible for their actions or omissions during mediation or conciliation if
they acted in good faith.

They further cannot be summoned to testify about the information they received or the work they did during the
process of mediation/conciliation in any civil or criminal case or before the Govt., NCLT/NCLAT

Rule 24: Communication Between Mediator/Conciliator And The Govt. NCLT/NCLAT

Communication Protocol: No direct communication between mediator/conciliator and Central Government, Tribunal, or
Appellate Tribunal is allowed, maintaining trust and impartiality.

Written Communication: If necessary, written communication is permitted, with copies provided to the parties, addressing
specific matters:

Party non-attendance

Consent of the parties

Mediator/conciliator's assessment of case

Dispute resolution/settlement.

Rule 25: Settlement Agreement

Agreement Process:

If parties agree on issues, they write and sign the agreement, with lawyer signatures if represented

Signed agreement, along with a letter from the mediator or conciliator, is sent to the relevant authority (e.g., Central
Govt., NCLT/NCLAT).

Resolution Update:

If no agreement within the specified time or if mediator believes no settlement is possible:

 Inform the relevant authority in writing (Central ,

NCLT/NCLAT). Rule 26: Fixing Date For Recording Settlement

And Passing Order Resolution Hearing:

The Central , Tribunal, or Appellate Tribunal schedules a hearing within fourteen days of receiving the
mediator's report (rule 25).

If convinced of resolution, they issue an order based on

agreed Partial Settlement Follow-Up:

If settlement covers specific issues, the authority continues addressing remaining unresolved issues after issuing the
order.

Rule 27: Expenses Of Mediation And Conciliation

The Central , Tribunal, or Appellate Tribunal may set a consolidated fee for the mediator or conciliator.

Costs, including the mediator's fee and other expenses, are split equally between the parties or as directed by the
authority.

Each party covers its witnesses'

Before starting, the mediator may ask for an upfront payment, shared equally by

the If a party doesn't pay, the authority can issue directives at the mediator's

Mediation or conciliation begins only after the upfront payment is made; otherwise, it's considered

Rule 28: Ethics To Be Followed By Mediator Or Conciliator

The mediator or conciliator shall─

Follow rules diligently and strictly

Avoid any behavior deemed unprofessional for a mediator or

conciliator Uphold the integrity and fairness of the mediation or

conciliation

Ensure parties are well-informed about the process

Confirm personal qualification for the task

Disclose any interests or relationships that may affect

impartiality Communicate with parties without impropriety

Maintain trust and confidentiality in the role

Follow applicable laws in dispute resolution proceedings

Recognize the voluntary nature of mediation or conciliation

Manage parties' expectations regarding confidentiality without promising specific outcomes.

Parties can report any ethical violations to the Regional Director.

Rule 29: Resorting to Arbitral or Judicial Proceedings

During the mediation or conciliation process under these rules, the parties should not start any arbitration or judicial
proceedings regarding the issue being mediated or However, if a party believes it's necessary to protect their rights,
they can begin such proceedings.