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From Initiation to Resolution: The Mediation Act, 2023

The mediator shall at all times be guided by the principles of objectivity and fairness
12:19 AM Apr 06, 2024 IST | MUNEEB RASHID MALIK
from initiation to resolution  the mediation act  2023
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Mediation is an improvised form of negotiation, a voluntary, party-centred and structured negotiation wherein a third party, which is neutral, by making use of the negotiation methodology, assists the disputing parties to reach a mutually acceptable solution. In mediation, the parties retain the right to decide for themselves, whether to settle a dispute or not.

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The Parliament, passed the Mediation Bill, 2023, for promoting resolution of disputes through Mediation in the country. The Bill was passed by the Rajya Sabha on 2nd August, 2023 and by the Lok Sabha on 7th August, 2023. The Mediation Bill received the presidential nod on 15th September, 2023, and came to be known as the Mediation Act, 2023, (hereinafter referred to as the “Act”). The main objectives of the Act are to promote and facilitate mediation, especially institutional mediation for resolution of disputes; enforce mediated settlement agreements; provide for a body for registration of mediators; to encourage community mediation and to make online mediation as acceptable and cost-effective process.

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What is the objective of mediation?

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The main objective of mediation is to ensure betterment of the society by bringing an end to disputes in a manner that is effective, convenient, and less expensive.

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Who is a mediator?

A mediator is a person who is appointed by the parties or by a mediation service provider, to undertake mediation, and includes a person registered as mediator with the Mediation Council of India.

 

What are the responsibilities of a mediator?

It is the responsibility of the mediator to disclose any conflict of interest that may raise doubts on his independence. It is necessary that a mediator must always uphold the integrity and fairness of the mediation process and he must ensure that the parties involved in mediation have a good understanding of all the aspects of the process.

 

What is a mediation agreement?

A mediation agreement may be in the form of a clause in an agreement or separate agreement. It must be in writing.

 

How can the parties appoint a mediator?

Mediators can be appointed by the parties by an agreement, or a mediation service provider, an institution administering mediation. Any individual of any nationality may be appointed as mediator, with the requirement that foreign mediators possess specified qualifications, experience, and accreditation. Parties are granted the freedom to agree upon the selection of a mediator and the procedure for their appointment. In the event of disagreement, the party initiating mediation must apply to a mediation service provider for a mediator appointment.

 

What is a mediation institute?

A mediation institute is a body or organization that provides training, continuous education and certification of mediators.

 

Can the parties change the mediator during the mediation process?

Yes, the parties have the option to appoint another mediator within seven days from the termination of the initial mediator’s mandate.

 

What is a mediation service provider?

A mediation service provider includes a body or an organisation that provides for the conduct of mediation and is recognised by the Mediation Council; or, an Authority constituted under the Legal Services Authorities Act, 1987; or, a court-annexed mediation centre; or, any other body as may be notified by the Central Government.

 

Does the mediator only facilitate the process or is his decision binding on the parties?

Even though the mediator facilitates the parties’ communications and negotiations, the parties always retain control over the outcome of the dispute. A mediator does not impose a legally binding decision on the parties, in contrast to an arbitrator or judge. The mediator helps the parties to consider their options, comprehend their viewpoints, and ultimately reach a voluntary solution to the dispute.

 

Is mediation a confidential process?

Yes, as per the Act, the mediator shall at all times be guided by the principles of objectivity and fairness and protect the voluntariness, confidentiality and self-determination of the parties.

 

What is the time limit for a mediation process?

The Mediation process has to be completed within a period of 180 days from the date fixed for the first appearance before the mediator, which may be extended for a further period of 180 days.

 

Can a mediation process be conducted online?

Yes, mediation can be conducted online at any stage of mediation, with the written consent of the parties, by the use of electronic form or computer networks but not limited to an encrypted electronic mail service, secure chat rooms or conferencing by video or audio mode or both.

 

What is community mediation?

The concept of community mediation is that any dispute likely to affect peace, harmony, and tranquility amongst the residents or families of any area may be settled through community mediation with prior mutual consent of the parties to the dispute.

What is the process of community mediation?

Any of the parties will have to make an application before the concerned Authority constituted under the Legal Services Authorities Act, 1987 or District Magistrate or Sub-Divisional Magistrate in areas where no such Authority has been constituted, for referring the dispute to mediation. Thereafter, to facilitate the settlement of a dispute for which an application has been received, the concerned Authority constituted under the Legal Services Authorities Act, 1987 or the District Magistrate or Sub-Divisional Magistrate, shall constitute a panel of three mediators for resolving the dispute between the parties.

 

What is pre-litigation mediation?

Pre-litigation mediation is the procedural step of engaging in mediation to resolve disputes before initiating any formal legal action, such as filing a lawsuit, in relation to civil or commercial matters before a court or an officially recognised tribunal.

 

What is the process of conducting a pre-litigation mediation?

Parties involved in civil or commercial disputes, irrespective of the existence of a mediation agreement, have the option to engage in pre-litigation mediation before initiating any legal proceedings in court. If the parties choose to pursue pre-litigation mediation, they may request the designation of a mediator by either the High Courts or an Authority established under the Legal Services Authorities Act, 1987, to facilitate the mediation process.

 

Are mediated settlement agreements enforceable in law?

Yes, agreements resulting from mediation other than community mediation will be final, binding, and enforceable in the same manner as the judgments of the courts of law.

When can a mediated settlement agreement be challenged?

Agreements resulting from mediation can be challenged on grounds of fraud, corruption, impersonation, or relating to disputes not fit for mediation.

 

Which matters can be sent by the courts for mediation?

Any court can refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with civil proceedings between the parties.

 

Which matters will not be governed by the Act?

The disputes for which mediation shall not be conducted are disputes involving fraud, fabrication of documents, forgery, impersonation, coercion; disputes relating to claims against minors, deities, persons with intellectual disabilities, persons with mental illness, persons of unsound mind; suits for declaration of title against Government; disputes involving prosecution for criminal offences; settlement of matters which are prohibited being in conflict with public policy; complaints or proceedings, initiated before any statutory authority, etc.

 

Which party is responsible for covering the expenses associated with the mediation process?

Unless otherwise agreed by the parties, all costs of mediation, including the fees of the mediator and the charges of the mediation service provider shall be borne equally by the parties.

 

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and tweets @muneebmalikrash.

 

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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