ADR Mediation

MEDIATION
Government Law College Thiruvananthapuram July 2021

INTRODUCTION
 The alternate dispute resolution India consist of following types of
processes in India –
 Arbitration, conciliation, negotiation and mediation
 Mediation in India is the most popular method among the other
three processes
 Mediation is an age old process of dispute resolution practiced since
Vedic period
 Continued in villages and preserved in customary form in tribal areas

Mediation
 Mediation, as used in law, is a form of alternative dispute resolution (ADR)
 A way of resolving disputes between two or more parties with concrete effects
 Typically, a neutral third party i.e., the mediator, assists the parties to negotiate a
settlement.
 Disputants may mediate disputes in a variety of domains, such as commercial, legal,
diplomatic, workplace, community and family matters
 Unique features includes severability, flexibility, party participation, consensus, self
reflection, preservation of ongoing relationships and for peaceful termination of
relationships etc.
 It is a low cost process
 The matters discussed are kept secret among three parties i.e the parties in dispute and the
mediator
 The solution is not imposed on any party
 The solution must be agreeable to both the parties and the disputes are settled in a
peaceful manner
THE BENEFITS OF MEDIATION
Mediation often improves understanding between the parties in an ongoing
relationship
Compared with going to court, mediation is:
less expensive
quicker
more informal
less stressful
voluntary
parties and the mediator have the right to withdraw at any time
Full and final settlement
No appeal

CONCEPT OF MEDIATION IN INDIA
 Mediation is a voluntary , party centric and structured negotiation process where a neutral third
party assists the parties in amicably resolving their dispute by using specialized communication and
negotiation techniques
 Voluntary process- Where the disputing parties decide to mutually find a solution to their legal
problem by entering into a written contract and appointing a mediator
 Party-centered negotiation process-the decision making power remain with the disputing parties,
with the mediator acting as buffer to bring them to an understanding
 The parties and not the neutral mediator are the focal point of the mediation process
 It encourages the active and direct participation of the parties in the resolution of their dispute
 The parties can hire ADR lawyers to represent them before the mediator and explain the situation in
a professional way but the parties play the key role in the process
 They are actively encouraged to explain the factual background of dispute, identify issues and
underlying interests, generate options for agreement and make a final decision regarding settlement

 Informal process-
 it is not governed by the rules of evidence and formal rules of procedure
 Though informal it is not an extemporaneous or casual process
 The process is structured and formalized with clearly identifiable stages
 Yet, there is a degree of flexibility in following these stages
 Assisted negotiation process-
 In essence is mediation an assisted negotiation process where the mediator assists the parties in
resolving their disputes
 Mediation provides an efficient, effective, speedy, convenient and less expensive process to resolve
a dispute with dignity, mutual respect and civility
 Mediation is conducted by a neutral third party- the mediator
 The mediator remains impartial, independent , detached and objective through out the mediation
process

 The mediator is a guide who helps the parties to find their own solution to the dispute
 Mediators personal preferences or perceptions do not have any bearing on the dispute resolution
process
 Mediator works together with parties to facilitate the
 Dispute resolution process and doesnot adjudicate the dispute by imposing a decision on the
parties
 His role is both facilitative and evaluative
 A mediator facilitates when he manages the interaction between the parties, encourages and
promotes communication between them and manages interruptions and outbursts by them and
motivates them to arrive at an amicable settlement
 Mediator evaluates when he assists each party to analyse the merits of a claim or defense and to
assess the possible outcome at trial
 The mediator employs certain specialized communication skills and negotiation techniques to
facilitate a productive interaction between the parties so that they are able to overcome
negotiation impasses and find mutually acceptable solution

 Private process-
 The mediation is a private process, which is not open to public
 Confidential-
 It is confidential in nature
 The statements made during the process cannot be disclosed in any civil proceedings or else where
without the written consent of all the parties
 Any statement made or information furnished by either of the parties and any documents
produced or prepared for during the mediation is inadmissible and non discoverable in any
proceeding
 Any confession or admission made during the mediation cannot be used in any proceeding
 Any information given by a party to the mediator during the mediation process, is not disclosed to
the other party unless specifically permitted by the first party
 No record of what is transmitted during mediation is prepared
 Any settlement reached is required to be reduced to writing, signed by the concerned parties and
filed in Court for the passing of an appropriate order

 Any settlement reached in a case that is referred for mediation during the course of litigation is
required to be reduced to writing, signed by the concerned parties and filed in Court for the
passing of an appropriate order
 Settlement reached at a pre litigation stage is a contract, which is binding and enforceable between
the parties
 In the event of failure to settle the dispute, the report of the mediator doesnot mention the reason
for the failure. The report will only say “not settled”
 Immunity of mediator
 The mediator cannot be called upon to testify in any proceeding or to disclose to the court as to
what transpired during the mediation
 Parties are free to agree for an amicable settlement, even ignoring their legal entitlements and
liabilities
 Mediation in a particular case is not confined to the disputes referred, but can go beyond ad
proceed to resolve all their connected or related disputes also

Types of Mediation
Court referred Mediation
Private Mediation
Contractual mediation
Voluntary mediation by the parties

 Court annexed Mediation-
 In this type of mediation the mediation services are provided by the court
 the judges, lawyers and litigants participate in the process to reach a settlement and court is a part
of it
 Here mediation is adopted as an additional method of dispute resolution by the court
 This help to ease the mounting backlog of cases in courts and reduce the burden on the judicial
system
 Sec 89 of the CPC,1908 deals with court annexed mediation
 According to Sec 89(1), where it appears to the court that there exists elements of a settlement which
may be acceptable to the parties, the court shall formulate the terms of settlement and give them to
the parties for their observations and after receiving the observations of the parties, the court may
reformulate the terms of a possible settlement and refer the same for arbitration, conciliation,
judicial settlement including settlement through Lok adalat or mediation
 The Court must consider the option exercised by the parties and the suitability of the particular case
for the option chosen
 The court shall effect a compromise between the parties and shall follow such procedure as may be
prescribed under Mediation rules , 2003
 The judge making the reference, known as the referral judge, is required to acquaint himself with the
facts and the nature of the dispute and objectively assess the suitability of ADR.
 Court can refer for mediation even when the parties are not ready for it when there exists an element
of settlement

Mediation under Sec 89 CPC is referred to by the court to trained mediator
from the panel of mediators who are certified to conduct mediations
The court has overall control over the entire matter and after few weeks
the matter is placed on board to enquire the process of mediation
 When the parties reach a settlement through mediation, consent terms
are drawn up signed by the parties and the mediator and placed before the
referred court for passing a decree in terms of the consent terms if the
judge is satisfied that the settlement is within the parameters of law
When the consent terms are accepted by the court and a decree is passed
it becomes final and binding on the parties
 When the parties arrive at a settlement the memorandum of
understanding or an agreement is drawn up and finalized on appropriate
stamp paper signed by the parties and the mediator and the MOU has it’s
finality like a decree of the court or the award of the arbitrator and
thereafter no appeal lie from it
Refund of court fees is permitted as per rules in case of settlement in a
court referred mediation

Private Mediation-
In this mediation qualified mediators offer their services on a private, free for service basis to
the court, to members of the public, to members of the commercial sector and also to the
governmental sector to resolve disputes through mediation
This can be used in connection with disputes pending in courts and pre-litigation disputes
Contractual mediation
Parties to a contract may include a mediation clause to resolve disputes as part of the terms
of their agreement
This can effectively resolve contractual disputes before they turn into a prolonged legal battle
The conditions of mediation and selection of the mediator are mentioned in the contract
The settlement reached as a result of the mediation may be enforced as judgment of the
court
Voluntary mediation by the parties
The parties to the dispute may also decide to seek mediation on their own accord without
being compelled by the law, the court or a contract
This can be done at any time and is controlled by parties

LEGAL RECOGNITION OF MEDIATION IN INDIA
 Industrial Disputes Act, 1947-Conciliator appointed under Sec 4 charged with duty of
mediating in and promotion the settlement of industrial disputes
 The Code of Civil Procedure Amendment Act,1999 passed by the Parliament inserted
Section 89 to the Code of Civil Procedure, 1908 and brought into force with effect from
July 2002
 allowed the courts to refer to alternative dispute resolution (ADR) methods
(arbitration, conciliation, judicial settlement through Lok Adalat, or mediation) to
settle pending disputes
 The Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under R.
5(f)(iii)
 These allow the court to refer cases for mediation even when the parties are not ready
for reference for mediation if it appears to the court that there is an element of
settlement
 The Commercial Courts Act 2015, whereby it is mandatory for parties to exhaust the
remedy of pre-institution mediation under the Act before instituting a suit. The
Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 (the PIMS
Rules) have been framed by the government under the Act

REFERENCE TO ADR BY THE COURT
 The court direct the parties to opt for any of the ADR modes under Section 89 and Order X Rule 1A
of Code of Civil Procedure, 1908.
 The Court must consider the option exercised by the parties and the suitability of the particular
case for the option chosen.
 The judge making the reference, known as the referral judge, is required to acquaint himself with
the facts and the nature of the dispute, and objectively assess the suitability of ADR.
 Court can refer for mediation even when the parties are not ready for it when there exists an
element of settlement
 Sec 89 starts with the words "where it appears to the court that there exist elements of a
settlement” clearly shows that cases which are not suited for ADR process should not be referred
under section 89 of the Code. The court has to form an opinion that a case is one that is capable of
being referred to and settled through ADR process
 Where the case is unsuited for reference to any of the ADR process, the court will have to briefly
record the reasons for not resorting to any of the settlement procedures prescribed under section
89 of the Code
 Actual reference to an ADR process in all cases is not mandatory

Cases not suitable for mediation
 In M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey Construction Co Pvt Ltd and others The
Supreme Court has provided an “excluded category” where there is no need to refer a matter to an
ADR process:
 Representative suits
 Disputes relating to election to public offices
 Cases involving grant of authority by the court after enquiry e.g Suits for grant of probate or letters of
administration
 Cases involving fraud, fabrication of documents, forgery, impersonation, coercion, etc.
 Claims against minors, mentally challenged and suits for declaration of title against the government
 Cases involving prosecution of criminal offences

Cases suitable for mediation
 Cases relating to trade, commerce and contract
 includes disputes arising out of contracts (including money claims)
 Specific performance of contract
 Tortious liability
 Consumer disputes between
 Suppliers and customers
 Bankers and customers
 Developers/builders and customers
 Landlords and tenants
 Licensor and licensee
 Insurer and insured

Cases arising from strained or soured relationships:
 Disputes relating to matrimonial causes
 Disputes relating to partition/division among family members
 Disputes relating to partnership among partners
 Cases where there is need for continuation of the pre- existing relationship in spite
of the disputes
 Disputes between neighbors
 Disputes between employers and employees
 Disputes among members of societies/associations
 The enumeration of `suitable' and `unsuitable' categorization of cases is not
intended to be exhaustive or rigid
 They are illustrative, which can be subjected to just exceptions or additions by the
court/Tribunal exercising its jurisdiction/discretion in referring a dispute/case to an
ADR process

Emergence of Mediation Rules
 The Hon’ble Supreme Court of India has pronounced a landmark decision
Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005), where
SC requested to form a Committee to formulate the rules of Mediation
under Sec 89(2) (d) of the CPC
 For this purpose, a Committee headed by former Judge of the Supreme Court
and Chairman of the Law Commission of India, Justice M. Jagannadha Rao,
was constituted and formulated the Civil Procedure ADR Rules and Mediation
Rules, 2003 for providing guidelines for conducting mediation proceedings.

 The Civil procedure Alternate Dispute resolution and Mediation rules 2003 consists of two parts
 The first part consisting of the procedure to be followed by the parties and the court in the
matter the particular method of ADR
 The second part consist of rules of mediation under Sec 89 (2) (d) of CPC,1908
 Part I Rule 4 of Civil Procedure ADR and Mediation Rules 2003-Settlement by 'Mediation' means
the process by which a Mediator appointed by parties or by the Court, as the case may be,
mediates the dispute between the parties to the suit by the application of the provisions of
Mediation Rules, 2003 in part -II, and in particular, by facilitating discussion between parties
directly or by communicating with each other through the Mediator, by assisting parties in
identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of
compromise, generating options in an attempt to solve the dispute and emphasizing that it is
the parties own responsibility for making decision which affect them

Mediation under Commercial Courts Act 2015
 The Commercial Courts Act was introduced in 2015 to establish commercial courts in India for
adjudication of "Commercial Disputes“
 The statute lays down a streamlined procedure for quick resolution of high stake disputes of a
commercial nature with strict timelines for filing of pleadings, discovery and procedure for grant
of summary judgments
 The definition of "Commercial Disputes" under the Act is broad and generally covers
commercial transactions and includes disputes arising out of intellectual property rights. In
2018, the Act was amended to bring in some clarity of procedure and also to introduce the
mandatory pre-institution mediation provision
 According to Commercial Courts Act 2015, it is mandatory for parties to exhaust the remedy of
pre institution mediation under the Act, before instituting a suit
 Section 12A of the Commercial Courts Act provides parties with an alternative means to resolve
disputes through discussions and negotiations with the help of a mediator. The provision states
that a plaintiff must initiate mediation before filing a suit

 The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 have been framed by the
Government under the Act
 Procedure for Initiating Pre-Institution Mediation
 The procedure to be followed in such mediation proceedings is set out in the Commercial Courts (Pre-
Institution Mediation and Settlement) Rules, 2018
 As per the Rules, the plaintiff must file an application with the State Legal Services Authority or the District
Legal Services Authority constituted under the Legal Services Authorities Act, 1987 to initiate mediation
 Once an application is received, the Authority will issue notice to the opposing party to appear within 10
days of receipt of notice and give consent to participate in the mediation proceedings
 The Rules provide for issuance of a final notice if the Authority does not receive a response within 10 days
of the initial notice
 If the opposing party fails to appear following the final notice or refuses to participate in the mediation
proceedings, the Authority will treat the mediation process as a non-starter and prepare a report to that
effect
 If the opposing party agrees to participate, then the mediation process begins
 Following negotiations and meetings with the mediator, if the parties arrive at a settlement, it will be
recorded in a settlement agreement

 Patent infringement disputes, being disputes of a commercial nature, are governed by the Commercial Courts
Act and, therefore, the mandatory pre-institution mediation provision applies to such disputes
 Courts in India frequently refer ongoing patent infringement suits to mediation when there exists a possibility
for the parties to arrive at a settlement
 In the absence of a law imposing a time limit for completion of such court-referred mediations, in many cases,
mediations of patent infringement suits go on for months with no resolution
 Mediation under the Commercial Courts Act bridges this gap by making mediation a time-bound process
 In disputes where a patentee is not seeking a preliminary injunction and wants to use litigation as a tool to
negotiate terms for granting limited rights to their IP, pre-initiation mediation is a viable option
 The threat of possible litigation that could result due to an unsuccessful mediation under the Commercial
Courts Act would possibly motivate a potential infringer/ licensee to negotiate license terms in good faith
 This process allow patentees to resolve disputes in a timely manner by avoiding long-drawn litigation in Indian
courts

The mediation process
 Referral Order: A referral order issued by the referral judge initiates the process of mediation and is the
foundation of a court-referred mediation
 In the court system, the Civil Procedure (Mediation) Rules,2003 regulate the accreditation, empanelment of
mediators and appointments in individual cases.
 Appointment of Mediators
 [a] Parties to a suit may all agree on the name of the sole Mediator for mediating between them
 [b] Where, there are two sets of parties and are unable to agree on a sole Mediator, each set of parties shall
nominate a Mediator
 [c] Where parties agree on a sole Mediator under clause [a] or where parties nominate more than one Mediator
under clause [b], the Mediator need not necessarily be from the panel of Mediators referred to in Rule 3 nor bear
the qualifications referred to in Rule 4 but should not be a person who suffers from the disqualification referred
to in Rule 5.
 [d] Where there are more than two sets of parties having diverse interests, each set shall nominate a person on
its behalf and the said nominees shall select the sole Mediator and failing unanimity in that behalf, the Court shall
appoint a sole Mediator

 Panel of Mediators : Rule 3
 [a] The High Court shall, for the purpose of appointing Mediators between parties in suits filed on its original
side, prepare a panel of Mediators and publish the same on its Notice board, within thirty days of the coming into
force of these Rules, with copy to the Bar Association attached to the original side of the High Court
 [b] [i] The Courts of the Principal District and Sessions Judge in each District or the Courts of the Principal Judge
of the City Civil Court or Courts of equal status shall, for the purposes of appointing Mediators to mediate
between parties in suits file on their original side, prepare; a panel of Mediators, within a period of sixty days of
the commencement of these Rules, after obtaining the approval of the High Court to the names including in the
panel, and shall publish the same on their respective Notice Board
 [ii] Copies of the said panel referred to in clause [I] shall be forwarded to all the Court of equivalent jurisdiction or
Courts subordinate to the Courts referred to in sub-clause [1] and to the Bar Associations attached to each of the
Courts
 [c] The consent of the person whose names are included in the panel shall be obtained before empanelling them
 [d] The panel of names shall contain a detailed Annexure giving details of the qualifications of the Mediators and
their professional or technical experience in different fields
 The High Court shall empanel only those persons as mediators who have necessary qualifications as indicated in
Rule 4

 Qualifications of person to be empanelled under Rule 3:
 Persons treated as qualified and eligible for being enlisted in the panel of Mediators under Rule 3, are
 a] [i] Retired Judges of the Supreme Court of India ;
 [ii] Retired Judges of the High Court:
 [iii] Retired District and Sessions Judges or retired Judges of the City Civil Court or Courts of equivalent status.
 [b] Legal practitioners with at least fifteen year’s standing at the Bar at the level of the Supreme Court or the High
Court ; or the district Court or Court of equivalent status.
 [c] Experts or other professionals with at least fifteen years' standing; or retired senior bureaucrats or retired
senior executives.
 [d] Institutions which are themselves experts in mediation and have been recognized as such by the High Court,
provided the names of its members are approved by the High Court initially or whenever there is change in
membership
 Where parties agree on a sole Mediator under clause [a] or where parties nominate more than one Mediator
under clause [b], the Mediator need not necessarily be from the panel of Mediators referred to in Rule 3 nor bear
the qualifications referred to in Rule 4 but should not be a person who suffers from the disqualification referred
to in Rule 5

 Disqualifications of Persons : Rule 5
 Persons deemed to be disqualified for being empanelled as Mediators
 [i] Any person who has been adjudged as insolvent or is declared of unsound mind; or
 [ii] Any person against whom criminal charges involving moral turpitude are framed by a criminal
Court and are pending; or
 [ill] Any person who has been convicted by a criminal Court for any offence involving moral
turpitude;
 [iv] Any person against whom disciplinary proceedings or charges relating to moral turpitude have
been initiated by the appropriate disciplinary authority which are pending or have resulted in a
punishment;
 [v] Any person who is interested or connected with the subject-matter of dispute or is related to
any one of the parties or to those who represent them, unless such objection is waived by all the
parties in writing;
 [vi] Any legal practitioner who has or is appearing for any of the parties in the suit or in any other
suit or proceedings;
 [vii] Such other categories of person as may be notified by the High Court.

 Preference as to suitability:
 Rule 7 provides that the Court shall, while nominating any person from the panel of Mediators
referred to in Rule 3, consider his suitability for resolving the particular class of dispute involved in
the suit and shall give preference to those who have proven record of successful mediation or who
have special qualification or experience in mediation
 Procedure of mediation: Rule 11
 [a] The parties may agree on the procedure to be followed by the Mediator in the conduct of the
mediation proceedings
 [b] Where the parties do not agree on any particular procedure to be followed by the Mediator, the
Mediator shall follow the procedure hereinafter mentioned, namely:
 [i] He shall fix, in consultation with the parties, a time schedule, the dates and the time of each
mediation session, where all parties have to be present;
 [ii] He shall hold the mediation conference in accordance with the provisions of Rule 6

 Rule 6 : Venue for conducting Mediation :
 The Mediator shall conduct the Mediator at one or other of the following places:
 {i] Venue of the Lok adalat or permanent Lok Adalat.
 [ii] Any place identified by the district judge within the Court precincts for the purpose of conducting
mediation.
 [iii] Any place identified by the Bar Association or State Bar Council for the purpose of mediation,
within the premises of the Bar Association or State Bar Council, as the case may be.
 [iv] Any other place as may be agreed upon by the parties subject to the approval of the Court
 [iii] He may conduct joint or separate meetings with the parties;
 [iv] Each party shall, ten days before a session, provide to the Mediator a brief memorandum setting
forth the issues, which according to it, need to be resolved, and its position in respect to those
issues and all information reasonably required for the Mediator to understand the issue; such
memoranda shall also be mutually exchanged between the parties.

 [v] Each party shall furnish to the Mediator, copies of pleadings or documents or such other
information as may be required by him in connection with the issues to be resolved
 Provided that where the Mediator is of the opinion that he should look into any original documents,
the Court may permit him to look into the original document before such officer of the Court and on
such date or time as the Court may fix
 [vi] Each party shall furnish to the Mediator such other information as may be required by him in
connection with the issues to be resolved.
 [c] Where there is more than one Mediator, the Mediator nominated by each party shall first confer
with the party that nominated him and shall thereafter interact with the other Mediators, with a
view to resolving the dispute
 Mediator not bound by Evidence Act, 1987 or Code of Civil Procedure,1908 : Rule 12
 The Mediator shall not be bound by the Code of Civil Procedure, 1908 or the Evidence Act, 1872,
but shall be guided by principles of fairness and justice, have regard to the rights and obligations of
the parties, usages of trade, if any, and the nature of the dispute

 Non-attendance of parties at sessions or meetings on due dates : Rule 13
 [a] The parties shall be present personally or may be represented by their counsel or power of
attorney holders at the meeting or sessions notified by the Mediator
 [b] If a party fails to attend a session or a meeting notified by the Mediator, other parties or the
Mediator can apply to the Court in which the suit is filed, to issue appropriate directions to that
party to attend before the Mediator and if the Court finds that a party is absenting himself before
the Mediator without sufficient reasons, the Court may take action against the said party by
imposition of costs
 [c] The parties not resident in India, may be represented by their Counsel or Power of Attorney
holders at the sessions or meetings.

 Role of Mediator : Rule 16
 The Mediator shall attempt to facilitate voluntary resolution of the dispute by the parties,
 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 solve the dispute, emphasizing that it is the responsibility of the
parties to take decision which affect them;
 he shall not impose any terms of settlement on the parties

 Parties alone responsible for taking decision : Rule 17
 The parties must understand that the Mediator only facilitates in arriving at a decision to resolve
disputes and that he will not and cannot impose any settlement nor does the Mediator give any
warranty that the mediation will result in a settlement
 The Mediator shall not impose any decision on then parties
 Time limit for completion of mediation : Rule 18
 On the expiry of sixty days from the date fixed for the first appearance of the parties before the
Mediator, the mediation shall stand terminated, unless the Court, which referred the matter either
suo motu, or upon request by the Mediator or any of the parties, and upon hearing all the parties, is
of the view that extension of time is necessary or may be useful; but such extension shall not be
beyond a further period of thirty days
 Parties to act in good faith : Rule 19
 While no one can be compelled to commit to settle his case in advance of mediation, all parties shall
commit to participate in the proceedings in good faith with the intention to settle the dispute, if
possible

 Confidentiality, disclosure and inadmissibility of information : Rule 20
 [1] When a Mediator receives confidential information concerning the dispute from any party, he
shall disclose the substance of that information to the other party, if permitted in writing by the first
party
 [2] When a party gives information to the Mediator subject to a specific condition that it be kept
confidential, the Mediator shall not disclose that information to the other party, nor shall the
Mediator voluntarily divulge any information regarding the documents or what is conveyed to him
orally as to what transpired during the mediation
 [3] Receipt or perusal, or perpetration of records, reports or other documents by the Mediator, or
receipt of information orally by the Mediator while serving in that capacity, shall be confidential and
the Mediator shall not be compelled to divulge information regarding the documents nor in regard
to the oral information nor as to what transpired during the mediation.

 [4] Parties shall maintain confidentiality in respect of events that transpired during mediation and
shall not rely on or introduce the said information in any other proceedings as to :
 [a] Views expressed by a party in the course of the mediation proceedings;
 [b] Documents obtained during the mediation which were expressly required to be treated as
confidential or other notes, drafts or information given by parties or Mediators;
 [c] Proposals made or view expressed by the Mediator;
 [d] Admission made by a party in the course of mediation proceedings;
 [e] The fact that a party had or had not indicated willingness to accept a proposal.
 [5] There shall be no stenographic or audio or video recording of the mediation proceedings

 Privacy: Rule 21
 Mediation sessions and meeting are private; only the concerned parties or their counsel or power of
attorney holders can attend
 Other persons may attend only with the permission of the parties or with the consent of the
Mediator
 Mediation sessions and meeting are private; only the concerned parties or their counsel or power
of attorney holders can attend
 Other persons may attend only with the permission of the parties or with the consent of the
Mediator
 Immunity : Rule 22
 No Mediator shall be held liable for anything bona fide done or omitted to be done by him during
the mediation proceedings for civil criminal action nor shall be he summoned by any party to the
suit to appear in a Court of law to testify in regard to information received by him or action taken by
him or in respect of drafts or records prepared by him or shown to him during the mediation
proceedings

 Settlement Agreement : Rule 24
 [1] Where an agreement is reached between the parties in regard to all the issues in the suit or
some of the issues, the same shall be reduced to writing and signed by the parties or their power of
attorney holder. If any counsel have represented the parties, they shall attest the signature of their
respective clients
 [2] The agreement of the parties so signed and attested shall be submitted to the Mediator who
shall, with a covering letter signed by him, forward the same to the Court in which the suit is
pending
 [3] Where no agreement is arrived at between the parties, before the time limit stated in Rule 18 or
where, the Mediator is of the view that no settlement is possible, he shall report the same to the
said Court in writing

 Ethics to be followed by Mediator: Rule 27
 The Mediator shall:
 [I] follow and observe these Rules strictly and with due diligence;
 [2]not carry on any activity or conduct which could reasonably be considered as conduct
unbecoming of a Mediator;
 [3] uphold the integrity and fairness of the mediation process;
 [4] ensure that the parties involved in the mediation and fairly informed and have an adequate
understanding of the procedural aspects of the process;
 [5] satisfy himself/herself that he/she is qualified to undertake and complete the assignment in a
professional manner;
 [6] disclose any interest or relationship likely to affect impartiality or which might seek an
appearance of partiality or bias;

 [7] avoid, while communicating with the parties, any impropriety or appearance of Impropriety;
 [8] be faithful to the relationship of trust and confidentiality imposed in the office of Mediator;
 [9] conduct all proceedings related to the resolutions of a dispute, in accordance with the
applicable law;
 [10] recognize that mediation is based on principles of self determination by the parties and that
mediation process relies upon the ability of parties to reach a voluntary, undisclosed agreement;
 [II] maintain the reasonable expectations of the parties as to confidentiality;
 [12] refrain from promises or guarantees of results

Stages of mediation
INTRODUCTION/MEDIATOR’S OPENING STATEMENT
DISPUTANTS OPENING STATEMENT
JOINT DISCUSSION
PRIVATE CAUCUSSES
JOINT NEGOTIATION
CLOSING (SETTLEMENT/NONSETTLEMENT)

Stages in mediation
 A typical mediation involves several stages
 STAGE 1: INTRODUCTION AND OPENING STATEMENT
 Objectives
 Establish neutrality
 Create an awareness and understanding of the process
 Develop rapport with the parties
 Gain confidence and trust of the parties
 Establish an environment that is conducive to constructive negotiations
 Motivate the parties for an amicable settlement of the dispute
 Establish control over the process
 Seating Arrangement in the Mediation Room
 At the commencement of the mediation process, the mediator shall ensure that the parties and/or their
counsel are present. There is no specific or prescribed seating arrangement. However, it is important that
the seating arrangement takes care of the following:
 The mediator can have eye-contact with all the parties and he can facilitate effective communication
between the parties.
 Each of the parties and his counsel are seated together.
 All persons present feel at ease, safe and comfortable

Introduction
 To begin with, the mediator introduces himself by giving information such as his name, areas of
specialization if any, and number of years of professional experience
 Then he furnishes information about his appointment as mediator, the assignment of the case to
him for mediation and his experience if any in successfully mediating similar cases in the past
 Then the mediator declares that he has no connection with either of the parties and he has no
interest in the dispute
 He also expresses hope that the dispute would be amicably resolved. This will create confidence
in the parties about the mediator's competence and impartiality
 Thereafter, the mediator requests each party to introduce himself
 He may elicit more information about the parties' and may freely interact with them to put them
at ease
 The mediator will then request the counsel to introduce themselves
 The mediator will then confirm that the necessary parties are present with authority to negotiate
and make settlement decisions
 The mediator will discuss with the parties and their counsel any time constraints or scheduling
issues
 If any junior counsel is present, the mediator will elicit information about the senior advocate he
is working for and ensure that he is authorized to represent the client

 The Mediator's Opening Statement
 The opening statement is an important phase of the mediation process
 The mediator explains in a language and manner understood by the parties and their counsel,
the following:
 Concept and process of mediation
 Stages of mediation
 Role of the mediator
 Role of advocates
 Role of parties
 Advantages of mediation
 Ground rules of mediation

 The mediator shall highlight the following important aspects of mediation:
 Voluntary
 Self-determinative
 Non-adjudicatory
 Confidential
 Good-faith participation
 Time-bound
 Informal and flexible
 Direct and active participation of parties
 Party-centered
 Neutrality and impartiality of mediator
 Finality
 Possibility of settling related disputes
 Need and relevance of separate sessions

 The mediator shall explain the following ground rules of mediation:
 Ordinarily, the parties/counsel may address only the mediator
 While one person is speaking, others may refrain from interrupting
 Language used may always be polite and respectful
 Mutual respect and respect for the process may be maintained
 Mobile phones may be switched off
 Adequate opportunity may be given to all parties to present their views
 Finally, the mediator shall confirm that the parties have understood the mediation process and
the ground rules and shall give them an opportunity to get their doubts if any, clarified.

 STAGE 2: DISPUTANTS OPENING STATEMENT
 The stage is also called ‘ventilation’ as the parties, locked in bitter dispute, is likely to furiously air
his/her grievances
 The mediator should calm things down and request parties not to lose their composure while making
the opening statement
 The parties and/or their representatives should be able to ventilate their views of the case or dispute
 The opening statement stage provides a time for parties to fully express and explain to the mediator,
and more importantly, to each other, how they view the dispute in their own words
 The mediator should invite parties to narrate their case, explain perspectives, vent emotions and
express feelings without interruption or challenge
 They are given an opportunity to describe their dispute and it’s consequences, financial or otherwise

 Procedure
 First, the plaintiff/petitioner should be permitted to explain or state his/her case/claim in his/her own
words
 Second, counsel would thereafter present the case and state the legal issues involved in the case
 Third, defendant/ respondent would thereafter explain his/her case/claim in his/ her own words
 Fourth, counsel for defendant/respondent would present the case and state the legal issues involved
in the case
 The mediator must listen carefully the statements of the parties
 Mediator might entertain general ideas about resolution as well
 The mediator should usually let each disputant take as much time as needed without interruption
from the other party or the mediator

 When the first party is finished, the mediator should not ask the other to ‘respond’, but rather
should invite a description or explanation of that party’s issues and concerns
 The second person to speak often feels defensive- the mediator’s job is to put the parties at ease
enough to share what is important to them
 After each party has spoken, the parties often will look to the mediator to identify the next step in
the process
 The mediator could then identify and summarize the issues as the parties have put them forth
 To perform that important task requires a mediator to organize the information accurately and
constructively
 For this purpose, mediator may take ‘notes’ after letting parties know about the purpose of such
note-taking
 Parties should re-assured that such notes will remain and cannot be used as evidence in formal
proceeding

 STAGE 3: JOINT DISCUSSION
 After all participants and/or their representatives have presented their views through their opening
statement, at this point, the mediator may try to lead the disputants to joint discussion and get
them talking directly with each other in his presence
 This phase may come before or after the separate meeting between a party and mediator
 Generally the mediator has a tough time during this phase as parties are likely to engage in bitter
accusation and counter accusations
 He has to ensure that parties engage in constructive talks
 To this purpose, he has to try to get the parties away from their stated positions to the ones which
are workable and future-oriented

 Objectives
 Gather information
 Provide opportunity to the parties to hear the perspectives of the other parties
 Understand perspectives, relationships and feelings
 Understand facts and the issues
 Understand obstacles and possibilities
 Ensure that each participant feels heard
 Procedure
 The mediator should encourage and promote communication, and effectively manage interruptions
and outbursts by parties
 The mediator may ask questions to elicit additional information when he finds that facts of the case
and perspectives have not been clearly identified and understood by all present
 Parties may respond to points/positions conveyed by other parties and may, with permission, ask brief
questions to the other parties

 The mediator would then summarize the facts, as understood by him, to each of the parties to
demonstrate that the mediator has understood the case of both parties by having actively listened to
them
 The mediator shall identify the areas of agreement and disagreement between the parties and the
issues to be resolved
 The mediator should be in control of the proceedings and must ensure that parties do not 'take over'
the session by aggressive behavior, interruptions or any other similar conduct
 During or on completion of the joint session, the mediator may separately meet each party with his
counsel, usually starting with the plaintiff/petitioner
 The timing of holding the separate session may be decided by the mediator at his discretion having
regard to the productivity of the on-going joint session, silence of the parties, loss of control, parties
becoming repetitive or request by any of the parties
 There can be several separate sessions
 The mediator could revert back to a joint session at any stage of the process if he feels the need to do
so

 STAGE 4: PRIVATE CAUCUSSES
 It is a private meeting that each party holds with the mediator during the mediation
 These private meetings give participants a chance to talk to the mediator freely, without the pressure of the
other party being there
 Objectives
 Understand the dispute at a deeper level
 Provide a forum for parties to further vent their emotions
 Provide a forum for parties to disclose confidential information which they do not wish to share with other
parties
 Understand the underlying interests of the parties
 Help parties to realistically understand the case
 Shift parties to a solution-finding mood
 Encourage parties to generate options and find terms that are mutually acceptable

 Procedure
 (i) Re - Affirming Confidentiality
 During the separate session each of the parties and his counsel would talk to the mediator in
confidence. The mediator should begin by re-affirming the confidential nature of the process
 (ii) Gathering Further Information
 The separate session provides an opportunity for the mediator to gather more specific
information and to follow-up the issues which were raised by the parties during the joint session.
In this stage of the process:-
 Parties vent personal feelings of pain, hurt, anger etc.,
 The mediator identifies emotional factors and acknowledges them;
 The mediator explores sensitive and embarrassing issues;
 The mediator distinguishes between positions taken by parties and the interests they seek to
protect;

 The mediator identifies why these positions are being taken (need, concern, what the parties hope
to achieve);
 The mediator identifies areas of dispute between parties and what they have previously agreed
upon; Common interests are identified;
 The mediator identifies each party's differential priorities on the different aspects of the dispute
(priorities and goals) and the possibility of any trade off is ascertained.
 The mediator formulates issues for resolution
 (iii) REALITY - TESTING
 After gathering information and allowing the parties to vent their emotions, the mediator makes a
judgment whether it is necessary to challenge or test the conclusions and perceptions of the parties
and to open their minds to different perspectives
 The mediator can then, in order to move the process forward, engage in REALITY-TESTING.

 Reality-testing may involve any or all of the following:
 (a) A detailed examination of specific elements of a claim, defense, or a perspective;
 (b) An identification of the factual and legal basis for a claim, defense, or perspective or issues of
proof thereof;
 (c) Consideration of the positions, expectations and assessments of the parties in the context of the
possible outcome of litigation;
 (d) Examination of the monetary and non-monetary costs of litigation and continued conflict;
 (e) Assessment of witness appearance and credibility of parties;
 (f) Inquiry into the chances of winning/losing at trial; and
 (g) Consequences of failure to reach an agreement.

 (iv) BRAIN STORMING
 Brain Storming is a technique used to generate options for agreement.
 There are 2 stages to the brain storming process:
 1. Creating options
 2. Evaluating options
 Creating options:- Parties are encouraged to freely create possible options for agreement
 Options that appear to be unworkable and impractical are also included
 The mediator reserves judgment on any option that is generated and this allows the parties to break
free from a fixed mind set
 It encourages creativity in the parties
 Mediator refrains from evaluating each option and instead attempts to develop as many ideas for
settlement as possible
 All ideas are written down so that they can be systematically examined later

 Evaluating options:- After inventing options the next stage is to evaluate each of the options
generated
 The objective in this stage is not to criticize any idea but to understand what the parties find
acceptable and not acceptable about each option
 In this process of examining each option with the parties, more information about the underlying
interests of the parties is obtained
 This information further helps to find terms that are mutually acceptable to both parties
 Brainstorming requires lateral thinking more than linear thinking
 Lateral thinking: Lateral thinking is creative, innovative and intuitive. It is non-linear and non-
traditional. Mediators use lateral thinking to generate options for agreement
 Linear thinking: Linear thinking is logical, traditional, rational and fact based
 Mediators use linear thinking to analyze facts, to do reality testing and to understand the position of
parties

 STAGE 5: JOINT NEGOTIATION
 Private sessions are followed by a joint negotiation session
 The mediator carries the options/offers generated by the parties from one side to the other
 The parties negotiate through the mediator for a mutually acceptable settlement
 Private sessions may again be resorted to by the mediator to dislodge a situation of an impasse
 If there is a divergence of interest among the parties on the same side, it may be advantageous for the
mediator to hold sub- session(s) with parties having common interest, to facilitate negotiations
 This type of sub-session may facilitate the identification of interests and also prevent the possibility of the
parties with divergent interests, joining together to resist the settlement
 If negotiations fail and settlement cannot be reached the case is sent back to the referral Court

 STAGE 6 : CLOSING
 (A) Where there is a settlement
 Once the parties have agreed upon the terms of settlement, the parties and their advocates re-
assemble and the mediator ensures that the following steps are taken:
 1. Mediator orally confirms the terms of settlement;
 2. Such terms of settlement are reduced to writing;
 3. The agreement is signed by all parties to the agreement and the counsel if any representing
the parties;
 4. Mediator also may affix his signature on the signed agreement, certifying that the agreement
was signed in his/her presence;
 5. A copy of the signed agreement is furnished to the parties;

 6. The original signed agreement sent to the referral Court for passing appropriate order in accordance
with the agreement;
 7. As far as practicable the parties agree upon a date for appearance in court and such date is intimated
to the court by the mediator;
 8. The mediator thanks the parties for their participation in the mediation and, congratulates all parties
for reaching a settlement.
 THE WRITTEN AGREEMENT SHOULD:
 clearly specify all material terms agreed to;
 be drafted in plain, precise and unambiguous language;
 be concise;
 use active voice, as far as possible
 Should state clearly WHO WILL DO, WHAT, WHEN, WHERE and HOW (passive voice does not clearly
identify who has an obligation to perform a task pursuant to the agreement);
 use language and expression which ensure that neither of the parties feels that he or she has 'lost';

 ensure that the terms of the agreement are executable in accordance with law;
 be complete in its recitation of the terms;
 avoid legal jargon, as far as possible use the words and expressions used by the parties;
 as far as possible state in positive language what each parties agrees to do;
 as far as possible, avoid ambiguous words like reasonable, soon, co-operative, frequent etc
 (B) Where there is no settlement
 If a settlement between the parties could not be reached, the case would be returned to the referral
Court merely reporting "not settled". The report will not assign any reason for non settlement or fix
responsibility on any one for the non-settlement. The statements made during the mediation will
remain confidential and should not be disclosed by any party or advocate or mediator to the Court
or to anybody else.
 The mediator should, in a closing statement, thank the parties and their counsel for their
participation and efforts for settlement.

ADVANTAGES OF MEDIATION
• Flexible and informal procedure
• Voluntary process
• Freedom to withdraw from mediation, without prejudice to the legal position
• Direct engagement in negotiating
• Mediator is a neutral third party
• Cost effective
• Enhances the likelihood of the parties continuing their relationship during and after the proceedings
• Confidentiality is maintained
• Mediation is simple and flexible

DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
Mediation Conciliation
1) Mediation is more formal than conciliation as Conciliation does not usually follow any structured
it involves a structured process consisting of various process and progresses like a traditional negotiation
stages namely, introduction, joint session and
caucus.
2) Mediation is resorted to when a dispute has Conciliation is usually resorted to as a preventive step
already arisen between the parties to prevent a substantial conflict from developing
between the parties after a misunderstanding has
arisen
3) Mediators may not have the power to suggest The powers of a conciliator are wider than that of a
proposals for settlement and act as mere facilitators mediator as they can suggest proposals for settlement
of dialogue between the parties which is permitted under section 67 of the Arbitration
Act

DIFFERENCE BETWEEN MEDIATION AND LITIGATION
Litigation Mediation
The goal is to win and, as a result, partners Goal is to work together to come to a resolution
become adversaries
Decision-making is in the hands of the judge and Decision-making stays in the hands of the parties
jury
The dispute is a matter of public record. This can The dispute is confidential
negatively impact business relationships
Very long and expensive process Much shorter and less expensive than litigation
Deals mostly with problems from the past. Looks for ways to manage the existing problem.
Does not address the relationship, only property Addresses the relationship, property and rights
and rights
The judge signs an order which determines rights The parties create a written document
and property distribution. memorializing their agreements.

DIFFERENCE BETWEEN ARBITRATION AND MEDIATION
Arbitration Mediation
1) It can be voluntary or court ordered. Section 8 of the It can also be voluntary or court ordered.
Arbitration Act allows Indian courts to refer disputes brought before
them to arbitration if there is a valid agreement existing between the
concerned parties to settle the dispute by arbitration.
2) It replaces court proceedings/trial as parties are precluded In case of a court directed mediation, trial is only put on hold
from approaching the courts if they have earlier agreed to resolve pending outcome of the mediation proceedings but is not
any disputes arising between them by arbitration replaced. In other cases, mediation replaces court proceedings
if the parties voluntarily choose to mediate before approaching
a court of law
3) It may consist of one or more arbitrators It generally consists of only one mediator
4) Arbitrator’s role is to render a decision on the dispute Mediator does not pass his/her own decision but only records
the terms of settlement, if any, reached between the parties
5) Arbitration proceedings end when the arbitrator passes the Mediation proceedings end when a settlement is reached or
arbitration award parties reach an impasse

DIFFERENCE BETWEEN ARBITRATION AND CONCILIATION
Arbitration Conciliation
1) Arbitration involves passing of a decision by the Conciliation involves resolution of disputes with
arbitrator. the assistance of the conciliator who helps the
parties reach a negotiated settlement.
2) A prior agreement between the parties to No prior agreement to conciliate is required
resort to arbitration is required to initiate
arbitration proceedings
3) An arbitration agreement may cover existing as A conciliation process covers only existing disputes
well as future disputes

ADR Mediation

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MEDIATION

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

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 Disputes relating to election to public offices

 Cases involving fraud, fabrication of documents, forgery, impersonation, coercion, etc.

 Cases involving prosecution of criminal offences

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

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DISPUTANTS OPENING STATEMENT

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

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Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

Government Law College Thiruvananthapuram July 2021

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 Private sessions are followed by a joint negotiation session

Government Law College Thiruvananthapuram July 2021