Types and Rules Of Mediation
SUBMITTED TO
THE UNIVERSITY INSTITUTE OF LAW
PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA
SUBMITTED TO: SUBMITTED BY:
Dr. Neelam Batra Shitiz Sharma
Roll no: 39
UNIVERSITY INSTITUTE OF LAW, PANJAB UNIVERSITY,
REGIONAL CENTRE, LUDHIANA
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ACKNOWLEDGEMENT
I wish to express my heartfelt gratitude to Dr. Neelam Batra , my
mentor and supervisor for this assignment. It has been under her
constant and sincere guidance and motivation that I have been able
to get through with this assignment. She has lighted the path for me
with her expertise and attention throughout this assignment and it
would not have been possible come through this assignment without
her counseling and persuasion.
Lastly, I would take an opportunity to thank my family and friends
for putting up and sticking up from end to end of the progression of
the assignment.
Shitiz Sharma
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Index
S.no Particulars P.no.
1. Introduction 4
2. Meaning 5
3. Types of mediation 5-6
4. Rules of mediation 7-14
5. Conclusion 15
6. Bibliography 16
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Introduction
Mediation is an age-old procedure of dispute resolution rehearsed since vedic period.
It is a low cost, keeping the issues, particularly family matters secret among three
parties, two parties and the mediator. Also, the solution isn't forced on any party, it is
a solution that both the parties consented to. It, in this manner gives an effective
solution in a tranquil way.
Alternate Dispute Resolution method for settling the dispute is generally new pattern
in India. The mediation procedure in India is not a recently created technique for
dispute redressal, it is an age-old process since vedic period. It is useful for both the
sides - the courts are being somewhat less burdened with cases, and the parties are
getting their issue settled rapidly with less problems and in a smoother way. In this
manner, there has been made a significant situation for mediation in Indian Law.
The contrast between taking an issue to litigation and taking it for mediation process,
is that in litigation, there is a blame game and the faults are to be demonstrated,
depending that the Court will give the solution; and in Indian mediation, the issue gets
settled through negotiation, where the solution is looked for with the assent of the
parties in the wake of considering the demands of both the sides.
The alternate dispute resolution India comprise of following kinds of ADR in India -
arbitration, conciliation, negotiation and mediation. Mediation in India is the most
popular method among all the three procedures.
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What is Mediation?
Mediation in India is a deliberate procedure where the contesting parties choose to
commonly discover a solution for their legal issue by entering into an agreement and
appointing a mediator. The decision-making power rests with the contesting parties,
with the mediator acting as a buffer to bring them to a comprehension. The parties can
recruit ADR legal counselors to represent them before the mediator and clarify the
situation in a professional way. The difference between arbitration and mediation are
that arbitration is a more formal process than mediation. An arbitrator should be
officially appointed either beforehand or at the time of need. A mediator can be anyone,
of any designation, can be appointed officially or casually depends upon the desire of
the parties. The mediation law in India has been made easy to use and entirely
adaptable.
Types of Mediation:
Evaluative Mediation: Evaluative Mediation is often thought of as being more
"involved" in terms of the mediator suggesting or proposing practical results and
effectively attempting to bring the parties to a resolutions. An unskilled
evaluative mediator risks simply just telling individuals what to do and calling it
mediation. Mediation must abstain from turning out to be adjudication,
arbitration or celebrated legalized settlement. The draft Mediation and
Conciliation Bill, 2010 may have the impact of a discernment emerging that
Mediation will be "forced" in light of the fact that Judges and County Registrars
will have the option to arrange it in specific or certain circumstances and
conditions. This may lead to an idea that there will be another market around
solving disputes; there will – and the new market will require new instruments.
The old devices utilized or used in suit and legal settlement won't work.
Mediation is not adjudication.
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Facilitative Mediation: In facilitative mediation or traditional Mediation, an expert
or a professional mediator attempts to facilitate negotiation agreement between the
parties in dispute. Rather than making recommendations and suggestions or forcing
a decision, the mediator urges and encourages disputants to arrive at their own
voluntary solutions by investigating each other's more profound interests. In
facilitative mediation, mediators tend in general keep their own perspectives with
respect to conflict hidden.
Court-Mandate Mediation: In spite of the fact that mediation is regularly
characterized as a totally deliberate procedure, it very well may be commanded by
a court that is keen on advancing a rapid and cost-productive settlement. At the
point when parties and their lawyers are hesitant to take part in mediation, their
chances of settling through court-mandate mediation are low, as they may simply
be making a halfhearted effort. But, when parties on both the sides see the
advantages of participating in the process, settlement rates are much higher.
Transformative Mediation: In transformative mediation, mediators focus on
engaging and empowering disputants to resolve their conflict and urging them to
perceive each other's needs and interests. First described by Robert A. Baruch Bush
and Joseph P. Folger in their 1994 book The Promise of Mediation, transformative
mediation is established in the custom of facilitative mediation. At its generally
yearning, the procedure intends to change the parties and their relationship through
the way toward procuring the abilities they have to roll out useful improvement.
Med-Arb and Arb-Med mediation: In Med-arb, an mediation-arbitration hybrid,
parties first reach agreement on the terms of the procedure itself. Unlike in many
mediations, they commonly agree in writing that the result of the procedure will be
official. Next, they attempt to negotiate a resolution to their dispute with the
assistance and help of a mediator.
In arb-med, another among the kinds of mediation, a trained, impartial and neutral third
party hears disputants' proof and declaration in an arbitration; composes an honor yet
keeps it from the parties; attempts to intervene the parties' contest; and unlocks and gives
her recently decided restricting honor if the parties neglect to agree, composes Richard
Fullerton in an article in the Dispute Resolution Journal.
Mediation is a tool that can be used across fields to assist individuals with settling and
resolving conflicts. Mediation can occur in place of going to court (yet at the same time
associated with the courts), in workplace, in community settings, between relatives and
family members, etc.
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Rules Of Mediation:-
RULE-1 : These Rules shall be called the Mediation and Conciliation Rules.
RULE 2: Appointment of mediator/conciliator:
(a) The parties to a suit may agree on the name of a sole mediator/conciliator for
mediating between them. In that event, he shall be appointed as mediator/conciliator. If
the parties fail to agree on the name of a mediator/conciliator, then the Court shall
appoint one or more mediator/conciliators out of the panel of mediator/conciliator
referred to in Rule 3.
(b) Where the parties are unable to agree on the name of a sole mediator/conciliator,
then each set of parties shall nominate a mediator/conciliator.
(c ) Where the parties agree on the name of a sole mediator/conciliator, he need not
necessarily be a person from the panel of mediator/conciliators referred to in Rule 3,
nor bear the qualifications referred to in Rule 4 but should not be a person who suffers
from any of the disqualifications 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/conciliator and failing unanimity in that behalf, the Court shall appoint a sole
mediator/conciliator.
RULE 3 : Panel of mediator/conciliators :
(a) The High Court shall, for the purpose of appointing mediator/conciliators in the
cases filed on its original side prepare a panel of mediator/conciliators. Such panel
shall be published on the notice board of the High Court, within three months of the
coming into force of these Rules. A copy of the panel of mediator/conciliators shall be
sent to the High Court Bar Association.
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(b) (i) The District Judge in each District shall, for the purpose of appointing
mediator/conciliators to mediate between parties in the suits filed on the original side,
prepare a panel of mediator/conciliators, within a period of three months of the
commencement of these Rules. Such panel shall be published on the notice boards of
various Courts after obtaining approval of the High Court.
(ii) Copies of the panels referred to in clause (i) shall be forwarded to all the Court
subordinate to the District Judge and the Bar Associations attached to each of the
Courts.
(c ) The consent of the persons whose names are included in the panel shall be
obtained before empanelling them.
(d) The panel of names of mediator/conciliators shall be accompanied by an
Annexure containing details of the qualifications of the mediator/conciliators, and
their professional or technical experience in different fields.
(e) The panel of mediators/conciliators appointed under clause (a) and (b) shall
normally be for a period of three years from the date of appointment/further extension
of the panel of mediators/conciliators or any mediator/conciliator shall be at the
discretion of the High Court or District & Sessions Judge with the prior approval of
the High Court, as the case may be.
RULE 4 : Qualifications of persons to be empanelled under Rule 3 : The following
persons shall be treated as qualified and eligible for being empanelled as
mediator/conciliators under Rule 3:-
(a) (i) Retired Judges of the Supreme Court of India; (ii) Retired Judges of the High
Courts; (iii) Retired District and Session Judge/Additional District and Sessions
Judges.
(b ) Legal practitioners with at least five years standing at the Bar in the Supreme
Court/ High Court / District Court; (Amended as per Correction Slip No.66
Rules/II.D4 dated 06.11.2013)
(c ) Experts or other professionals with at least fifteen years standing or retired senior
bureaucrats or retired senior executives;
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RULE 5 : Disqualifications :
The following shall be disqualifications for being empanelled as mediator/conciliators:-
(i) any person who has been adjudged insolvent;
(ii) any person against whom criminal charges involving moral turpitude have been
framed by a criminal court and are pending; or
(iii) any persons who has been convicted by a criminal court for any offence involving
moral turpitude;
(iv) any person against whom disciplinary proceedings have been initiated by the
competent authority or who has been punished in such proceedings;
(v) Such other categories of persons as may be notified by the High Court.
RULE 6 : Preference
The Court shall, while nominating any person from the panel of mediator/conciliators
referred to in Rule 3, consider his suitability for resolving the nature of dispute involved
in the suit and shall give preference to those who have proven record of successful
mediation/conciliation or who have special qualification or experience in
mediation/conciliation.
RULE 7 : Duty of mediator/conciliator to disclose certain facts :
(a) When a person is approached in connection with his possible appointment as a
mediator/conciliator, he shall disclose in writing to the parties the factors which may
give rise to a justifiable doubt as to his independence or impartiality. If any such factor
comes into existence after his appointment as Mediator/conciliator; the same shall be
disclosed to the parties in writing without delay.
(b) Every mediator/conciliator shall, from the time of his appointment and throughout
the continuance of the mediation/conciliation proceedings, without delay, disclose to the
parties in writing, about the existence of any of the circumstances referred to in clause
(a).
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RULE 8 : Cancellation of appointment :
Upon information furnished by the mediator/conciliator under Rule 6 or upon any
other information received from the parties or any other person, if the Court
concerned is satisfied after conducting such inquiry as it deems fit and after giving
opportunity of hearing to the mediator/conciliator, that the said information has raised
a justifiable doubt as to the mediator/conciliator’s independence or impartiality, it
shall cancel the appointment by a reasoned order and replace him by another
mediator/conciliator.
RULE 9 : Removal or deletion from panel :
The name of a person placed in the panel referred to in Rule 3 may be removed or
deleted from the said panel by the Court concerned if :
1. if he incures any of the disqualifications referred to in Rule 5 ;
2. he resigns or withdraws his name from the panel for any reason;
3. he exhibits or displays conduct, during the continuance of the
mediation/conciliation proceedings, which is unbecoming of a mediator/conciliator;
4. if, upon receipt of an information and after conducting such enquiry as it deems fit,
the Court concerned is satisfied that it is not desirable to continue the name of that
person in the panel;
Provided that, before removing or deleting his name, under clauses (iii) or (iv), the
Court shall hear the mediator/conciliator whose name is proposed to be removed or
deleted from the panel and shall pass a reasoned order.
RULE 10 :Procedure of mediation/conciliation :
(a) The parties may agree on the procedure to be followed by the mediator/conciliator
in the conduct of the mediation/conciliation proceedings.
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(b) Where the parties do not agree on any particular procedure to be followed by the
mediator/conciliator, the mediator/conciliator shall follow the procedure hereinafter
mentioned, namely:- he shall fix, in consultation with the parties, a time schedule, the
dates and the time of each mediation/conciliation session, where all the parties have to
be present; he shall hold the mediation/conciliation at any convenient location
agreeable to him and the parties, as he may determine;he may conduct joint or separate
meetings with the parties; each party shall, ten days before a session, provide to the
mediator/conciliator a brief memorandum setting forth the issues, which according to
it, need to be resolved, and its position in respect of those issues and all information
reasonably required for the mediator/conciliator to understand the issues such
memoranda shall also be mutually exchanged between the parties; each party shall
furnish to the mediator/conciliator such other information as may be required by him in
connection with the issues to be resolved. where there is more than one
mediator/conciliator, the mediator/conciliator nominated by each party shall first confer
with the party that nominated him and shall thereafter interact with the other
mediator/conciliators, with a view to resolve the disputes.
RULE 11 : Mediator/conciliator not bound by Evidence Act, 1872 or Code of Civil
Procedure, 1908:-
The mediator/conciliator shall not be bound by the provisions of Evidence Act, 1872
or Code of Civil Procedure 1908, but shall be guided by the principles of fairness and
justice, having regard to the rights and obligations of the parties, usages of trade, if any,
and the circumstances of the dispute.
RULE 12 :Non-attendance of parties at sessions or meetings on due dates : The parties
shall be present personally or through their counsel or power of attorney holders at the
meetings or sessions notified by the mediator/conciliator. If a party fails to attend a
session or a meeting notified by the mediator/conciliator, other parties or the
mediator/conciliator can apply to the Court in which the suit is filed, to issue
appropriate directions to that party to attend before the mediator/conciliator and if the
Court finds that such party is absenting himself before the mediator/conciliator without
sufficient cause, the Court may take action against the said party by imposition of costs
or by taking action for contempt.
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RULE 13 :Administrative assistance : In order to facilitate the conduct of
mediation/conciliation proceedings, the parties or the mediator/conciliator with the
consent of the parties, may arrange for administrative assistance by a suitable institution
or person.
RULE 14 :Offer of settlement by the parties : Any party to the suit may, without
prejudice, to the rights of either party, offer a settlement to the other party at any stage
of the proceedings with notice to the mediator/conciliator.
RULE 15 :Role of mediator/conciliator: The mediator/conciliator shall attempt to
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 solve the dispute, emphasizing that it is the responsibility of the parties to
take decision which affect them. However, he shall not impose terms of settlement on
the parties.
RULE 16: Parties alone responsible for taking decision : The parties must understand
that the mediator/conciliator only facilitates in arriving at a decision to resolve disputes
and that he will not and cannot impose any settlement nor does the mediator/conciliator
give any warranty that the mediation/conciliation will result in a settlement.
RULE 17 :Time limit for completion of mediation/conciliation : On the expiry of ninety
days from the date fixed for the first appearance of the parties before the
mediator/conciliator, the mediation/conciliation/conciliation shall stand terminated,
unless the Court, which referred the matter, either suo motu or upon request by any of
the parties and upon hearing all the parties, is of the view that extension of time is
necessary or may be useful then he may extend the time but such extension shall not be
beyond a further period of thirty days.
Rule 18 : Parties to act in good faith : All the parties shall participate in the
mediation/conciliation proceedings in good faith with the intention to settle the dispute.
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RULE 19: Privacy: Mediation/conciliation sessions and meetings are private. Only the
concerned parties or their counsel or power of attorney holders can attend. Other
persons may attend only with the consent of the parties and with the permission of the
mediator/conciliator.
RULE 20 Immunity : No mediator/conciliator shall be held liable for anything bona fide
done or omitted to be done by him during the mediation/conciliation proceedings for
civil or criminal action nor shall he be 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/conciliation proceedings.
RULE 21 : Settlement agreement: (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 into writing and signed by the parties or their power of attorney holders. If any
counsel have represented the parties, they shall attest the signatures of their respective
clients.
(2) The agreement of the parties so signed and attested shall be submitted to the
mediator/conciliator 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 specified
in rule 17 or where, the mediator/conciliator is of the view that no settlement is
possible, he shall report the same to the Court in writing.
RULE 22: Court to fix a date for recording settlement and passing decree; (1) Within
seven days of the receipt of a settlement, the Court shall issue notice to the parties
fixing a date for their appearance which date shall not be beyond 14 days from the date
of receipt of the settlement and the Court shall then take the settlement on record.
(2) Thereafter, the Court shall pass a decree in accordance with the settlement, so taken
on record, if the same disposes of all the issues in the suit.
(3) If the settlement disposes of only certain issues arising in the suit, the Court shall
take on record the settlement on the date fixed and shall include the terms of the said
settlement in the judgment, while deciding the other issues.
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Rule 23; Ethics to be followed by mediator/conciliator;
The mediator/conciliator shall: follow and observe these Rules strictly and with due
diligence; not carry on any activity or conduct which could reasonably be considered as
conduct unbecoming of a mediator/conciliator; uphold the integrity and fairness of the
mediation/conciliation process; ensure that the parties involved in the
mediation/conciliation are fairly informed and have an adequate understanding of the
procedural aspects of the process. Satisfy himself/herself that he/she is qualified to
undertake the complete the assignment in a professional manner; Disclose any interest or
relationship likely to affect impartiality or which might seek an appearance of partiality
or bias; Avoid, while communicating with the parties any impropriety or appearance of
impropriety; Be faithful to the relationship of trust and confidentiality reposed in the
office of mediator/conciliator; Conduct all proceedings related to the resolution of a
dispute, in accordance with the applicable law; Recognize that mediation/conciliation is
based on principles of self-determination by the parties and that mediation/conciliation
process relies upon the ability of parties to reach a voluntary, undisclosed agreement;
Maintain the reasonable expectations of the parties as to confidentiality; Refrain from
promises or guarantees of results;
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Conclusion
Mediation is a safe, informal and confidential method to resolve issues involving
simple and complex contract disputes, payment disputes, cases based on
miscommunication, matter pertaining to product satisfaction as well as safety issues,
matters relating to service satisfaction issues, employment disputes, insurance disputes,
debt disputes, disputes relating to Personal injury, civil rights and small claim matters.
Mediation is a valuable dispute resolution tool because the means of reaching an
agreement can be as varied as the disputes that need to be resolved. Mediation
procedures can be tailored to a variety of factors: the personality of the mediator; the
nature of the dispute; the time or resources available; and the antagonism between the
parties. The procedure can thus minimize contentiousness, cost, and resources. If it is
unsuccessful, the parties can always resort to the courts or other means of dispute
resolution. In short, mediation is a valuable weapon against delay, cost, and injustice.
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Bibliography
1. https://indiankanoon.org/doc/1824693/mediation-its-rules-and-types.
2. https://www.legalauthority./types-of-mediation.
3. https;//www.legalservices.in/rules of mediation.
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