Mediation Act

Came into effect on 14th September, 2023.

Definitions

1. Mediation- 3(h)

Includes a process whereby parties attempt to reach an amicable

settlement of their dispute with the assistance of a third person referred
to as a mediator, who does not have the authority to impose a
settlement upon the parties to the dispute.
Can be referred to by the expression Mediation, Pre-Litigation
Mediation, Online Mediation, Community Mediation, Conciliation or any
other expression of a similar import.

2. Court- 3(d)
Means the competent court in India having pecuniary and territorial
jurisdiction and having jurisdiction to decide the disputes forming the
subject matter of mediation, if the same had been the subject matter of
a suit or proceeding.

3. Institutional Mediation- 3(f)

Mediation conducted under the aegis of a mediation service provider.

Object and Application

1. Object

Promote and facilitate mediation (especially institutional mediation-

3(f)) for resolution of disputes

Enforce mediated settlement agreements

Provide for a body of registration of mediators

Encourage community mediation (Section 30)

Make online mediation as acceptable and cost effective process

2. Application- Section 2

a. all or both parties reside in or have their place of business in India

b. Mediation agreement provides

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 c. International Mediation

d. Where one party is Central or State Govt or an entity controlled by it

and where the matter pertains to a commercial dispute

e. any other dispute as may be notified by CG

Types of Mediation

1. Court annexed- Any mediation process conducted under the auspices

of the court, after such court has acquired jurisdiction of the dispute. A
case that has already been filed in court and the court has already
acquired jurisdiction over the parties as well as the subject matter is
referred to Mediation.
Stages-

Judges refer parties to Mediation centre for the mediation of their

dispute by trained and accredited mediators.

If it fails, the dispute is undertaken by the judge.

2. Community- Any dispute likely to affect peace, harmony and tranquillity

amongst the residents or families of any area or locality may be settled
through community mediation with prior mutual consent of the parties
to the dispute.
It offers constructive processes for resolving differences and conflicts
between individuals, groups and organizations.
Any of the parties shall 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.
The concerned Authority constituted under the Legal Services
Authorities Act, 1987 or the District Magistrate or Sub-Divisional
Magistrate, as the case
may be, shall constitute panel of three community mediators.
The Authority or District Magistrate or the Sub-Divisional Magistrate, as
the case may be, shall notify a permanent panel of community
mediators, which may be revised from time to time. The following
persons may be included in the panel —
(a) person of standing and integrity who are respectable in the

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 community;
(b) any local person whose contribution to the society has been
recognised;
(c) representative of area or resident welfare associations;
(d) person having experience in the field of mediation; and
(e) any other person deemed appropriate.
While making the panel the representation of women or any other class
or category of persons may be considered.

Procedure of Community Mediation-

Shall be conducted by a panel constituted u/s 43 who shall devise

the procedure for dispute resolution

The community mediators shall endeavour to resolve disputes

through community mediation and provide assistance to parties for
resolving disputes amicably

The settlement agreement may be reduced into writing with

signature of parties and mediators’ authentication, a copy of which
is provided to the parties. If no settlement is arrived at, then a Non-
settlement report may be submitted by the mediators to the
Authority or DM or SDM and to the parties.

Any settlement agreement arrived at under this Chapter shall be for

the purpose of maintaining the peace, harmony and tranquility
amongst the residents or families of any area or locality but shall not
be enforceable as a judgment or decree of a civil court.

The provisions of section 20 shall, mutatis mutandis apply, in

relation to the registration of mediated settlement agreement under
this section.

3. International- means mediation undertaken under this Act and relates to

a commercial dispute arising out of a legal relationship, contractual or
otherwise, under any law for the time being in force in India, and where
at least one of the parties, is—
(i) an individual who is a national of, or habitually resides in, any country
other than India; or
(ii) a body corporate including a Limited Liability Partnership of any
nature,
with its place of business outside India; or
(iii) an association or body of individuals whose place of business is

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 outside India; or
(iv) the Government of a foreign country;

4. Institutional- means mediation conducted under the aegis of a

mediation service provider.

5. Online- 3(q) and Ch-VII - It shares the same goal as traditional in-
person mediation; to help disputing parties to work together and make
decisions. The main difference is that the mediation takes place through
video conferencing

6. Pre-Litigation- 3(u)- means a process of undertaking mediation, as

provided under section 5, for settlement of disputes prior to the filing of
a suit or
proceeding of civil or commercial nature in respect thereof, before a
court or notified tribunal under sub-section (2) of section 5.

Mediation Service Providers and Institutions- Chapter IX

3(m)- "mediation service provider" means a mediation service provider

referred to in sub-section (1) of section 40;

Section 40- Mediation Service Provider

Includes-

a. a body or an organisation that provides for the conduct of mediation

under
this Act and the rules and regulations made thereunder and is
recognised by the Council, or

b. an Authority constituted under the Legal Services Authorities Act, 1987;

or

c. a court-annexed mediation centre; or

d. any other body as may be notified by the Central Government:

Provided that the bodies referred to in clauses (b), (c) and (d) shall be
deemed to be mediation service providers recognised by the Council.
The mediation service provider shall be recognised by the Council in the
manner as may be specified

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 Section 41- Functions of Mediation Service
Providers
(a) accredit mediators and maintain panel of mediators;
(b) provide the services of mediator for conduct of mediation;
(c) provide all facilities, secretarial assistance and infrastructure for the
efficient
conduct of mediation
(d) promote professional and ethical conduct amongst mediators;
(e) facilitate registration of mediated settlement agreements in accordance
with
the provisions of section 20; and
(f) such other functions as may be specified

Section 42- Mediation Institutes

The Council shall recognise mediation institutes to perform such duties and
exercise such functions as may be specified

Mediability

Section 6- Disputes or matters not fit for

Mediation
A mediation under this Act shall not be conducted for resolution of any
dispute or matter contained in the indicative list under the First Schedule

Provided-

Nothing here shall prevent any court from referring disputes relating to
compoundable offences (320 CrPC) including matrimonial
compoundable offences pending between the parties, to mediation.

Outcome of such mediation shall not be deemed to be a judgement or

decree of court u/s 27(2) and shall be further considered by court in
accordance with the law in force.

CG may amend the 1st Schedule.

First Schedule- Disputes or matters not fit for

Mediation

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 Disputes that are barred by law

Disputes relating to declaration having effect of right in rem

Disputes relating to claims against minors, deities, PWIDs, Unsound

mind, etc

Disputes involving prosecution for criminal offences

Complaints or proceedings initiated before any statutory authority in

relation to registration, discipline or misconduct of any practitioner or
registered professional, regulated under any law for time being in force

Disputes that effect 3rd party rights (except- matrimonial disputes

where child is involved)

Proceeding in relation to any subject matter over which NGT has

jurisdiction

Disputes relating to collection or levy of taxes (sovereign function)

Land acquisition and determination of compensation under acquisition

laws

Proceedings before SEBI, Petroleum and Natural Gas Board, TRAI,

Electricity Appellate Tribunal

However, this list is not exhaustive and it may be amended by the

Government.

Mediation Agreement- Chapter III

Section 4- Mediation Agreement

Mediation agreement requirements:

Must be in writing.

Can cover all or specific disputes between parties.

Forms of mediation agreement:

Mediation clause in a contract.

Separate agreement.

A mediation agreement is considered written if:

Document signed by parties.

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 Exchange of communications (including electronic) per Information
Technology Act, 2000.

Pleadings in a suit or other proceedings where one party alleges

and the other does not deny the existence of the agreement.

Written agreements with mediation clauses are valid if:

The agreement is in writing.

The reference makes the mediation clause part of the agreement.

Parties can agree to mediate disputes:

Arising under an agreement.

Agreed upon before or after a dispute arises.

International mediation agreements:

Refer to agreements for resolving commercial disputes as defined in

3(a)

Section 5- Pre-Litigation Mediation

Pre-litigation mediation:

Parties can voluntarily and mutually consent to settle disputes by

pre-litigation mediation before filing civil or commercial suits.

Pre-litigation mediation for commercial disputes of Specified Value

follows section 12A of the Commercial Courts Act, 2015.

Applicability:

Applies to tribunals notified by the Central or State Government.

Mediator requirements:

Mediator must be:

Registered with the Council.

Empanelled by a court-annexed mediation centre.

Empanelled by an Authority under the Legal Services Authorities

Act, 1987.

Empanelled by a recognized mediation service provider.

Conducting pre-litigation mediation:

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 A party can request a designated person by the High Courts or an
Authority under the Legal Services Authorities Act, 1987.

Court-annexed mediation centres and Authorities under the Legal

Services Authorities Act, 1987, must maintain a panel of mediators.

Special provision for motor accident claims:

Claims Tribunal must refer parties for mediation if no settlement is

reached under section 149 of the Motor Vehicles Act, 1988.

Settlement agreement from mediation must be submitted to the

Claims Tribunal.

If no settlement is reached, a non-settlement report is sent to the

Claims Tribunal for adjudication.

Section 7- Power of court or Tribunal to refer

parties to Mediation
Court or tribunal mediation referral:

Even if there is a non-settlement of dispute under sub-section (1) of

section 5, the court or tribunal can refer parties to mediation at any
stage of the proceeding.

Interim orders:

The court or tribunal can pass suitable interim orders to protect the
interest of any party if deemed appropriate when referring parties to
mediation.

No obligation to settle:

Parties are not obligated to come to a settlement in mediation

pursuant to a referral under sub-section (1).

Mediators- Chapter IV

Section 8- Appointment of Mediators

Appointment of mediator:

A person of any nationality can be appointed as a mediator unless

otherwise agreed by the parties.

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 Mediators of foreign nationality must meet specified qualifications,
experience, and accreditation.

Parties' freedom:

Parties can agree on the name of the mediator and the procedure
for their appointment.

Application to mediation service provider:

If parties do not reach an agreement on the mediator's appointment,

the party seeking mediation can apply to a mediation service
provider.

Mediation service provider's role:

Upon receiving the application, the mediation service provider must

appoint a mediator within seven days:

The mediator agreed upon by the parties.

If the parties cannot agree or the agreed mediator refuses, a

mediator from the service provider's panel, with the mediator's
consent.

Mediator's response:

The appointed mediator must communicate their willingness or

otherwise within seven days from the receipt of the appointment
communication.

Section 9- Preference of Parties

The mediation service provider shall, while appointing any person from the
panel of mediators maintained by it, consider his suitability and the
preference of the parties for resolving the dispute.

Section 10- Conflict of Interest and Disclosure

Disclosure of potential conflicts:

Mediator must disclose in writing any circumstance that could

constitute a conflict of interest or raise doubts about their
independence or impartiality before starting mediation.

Ongoing disclosure:

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 Mediator must disclose any newly arisen or newly known conflicts
of interest in writing during the mediation process.

Parties' options upon disclosure:

Parties can waive any objection if all express consent in writing.

Replacement of mediator:

If either party wishes to replace the mediator after a disclosure:

In institutional mediation, the party must apply to the mediation

service provider for termination of the mediator's mandate.

In non-institutional mediation, the party can terminate the

mediator's mandate directly.

Section 11- Termination of Mandate of Mediator

Termination of mediator's mandate by mediation service provider:

Upon receipt of an application from a party as per clause (i) of sub-

section (4) of section 10.

Upon receiving information about the mediator being involved in a

conflict of interest from participants or any other person.

If the mediator withdraws from the mediation for any reason.

Procedure for termination under conflict of interest (clause ii):

Termination occurs after giving a hearing to the mediator.

The mediation service provider must find justifiable doubt as to the

mediator's independence or impartiality.

The issue must be brought to the notice of the parties.

Either party must desire to replace the mediator.

Section 12- Replacement of Mediator

Appointment of a new mediator upon termination:

In non-institutional mediation-10(4(ii)):

Parties can appoint another mediator within seven days of the

termination.

In institutional mediation (section 11):

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 The mediation service provider will appoint another mediator
from its panel within seven days of the termination.

Mediation Proceedings- Chapter V

Jurisdiction- Section 13

Territorial jurisdiction for mediation:

Mediation must be conducted within the territorial jurisdiction of

the court or tribunal competent to decide the subject matter of
the dispute.

Exception for mutual consent:

With mutual consent, parties can conduct mediation outside the

territorial jurisdiction of the court or tribunal, or opt for online
mediation.

Clarification on enforcement:

For enforcement, challenge, and registration of the mediated

settlement agreement, mediation conducted outside the
territorial jurisdiction or online is deemed to have been
undertaken within the jurisdiction of the competent court or
tribunal.

Commencement and Conduct- Section 14, 15

Commencement of Mediation Proceedings:

Mediation proceedings for a dispute are deemed to have

commenced:

If there is an existing agreement to settle through mediation: the

date on which a party receives notice to refer the dispute to
mediation.

In other cases:

When parties have agreed to appoint a mediator: the date

the mediator consents to the appointment.

When a party applies to a mediation service provider: the

date a mediator is appointed.

Conduct of Mediation Process:

1. Specified Manner:

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 The mediation process must be conducted as specified by
relevant regulations.

2. Mediator's Role:

The mediator must assist the parties independently, neutrally,

and impartially to reach an amicable settlement.

3. Guiding Principles:

The mediator must be guided by principles of objectivity and

fairness.

They must protect the voluntariness, confidentiality, and self-

determination of the parties.

They must adhere to specified standards for professional and

ethical conduct.

4. Mediator's Measures:

The mediator may take appropriate measures based on the case

circumstances.

This includes meeting with parties or participants jointly or

separately, as frequently as deemed fit, to convene the
mediation and maintain its integrity.

5. Exemption from Legal Codes:

The mediator is not bound by the Code of Civil Procedure, 1908,

or the Indian Evidence Act, 1872.

6. Language Determination:

The mediator, with party consent, determines the language(s) to

be used in the mediation process.

Role of Mediator- Section 16, 17

Mediator's Role in Dispute Resolution:

1. Facilitation of Voluntary Resolution:

The mediator aims to facilitate a voluntary resolution by:

Communicating each party's views to the other, as agreed

by the parties.

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 Assisting in identifying issues, enhancing understanding,
clarifying priorities, exploring settlement options, and
generating solutions.

Emphasizing that it is the parties' responsibility to decide on

their claims.

2. Clarification of Mediator's Role:

The mediator must inform the parties explicitly that:

He only facilitates arriving at a resolution.

He will not impose any settlement.

He does not guarantee that mediation will result in a

settlement.

Restrictions on Mediator:

1. Prohibited Roles:

The mediator shall not:

Act as an arbitrator or as a representative or counsel for any

party in any arbitral or judicial proceeding related to the
dispute under mediation.

Be presented by the parties as a witness in any arbitral or

judicial proceeding related to the dispute.

Time Limit- Section 18

Timeframe for Completion of Mediation:

1. Standard Duration:

Mediation under this Act must be completed within 120 days

from the date set for the first appearance before the mediator.

2. Extension:

The mediation period can be extended for an additional period if

agreed upon by the parties, but this extension cannot exceed 60
days.

Settlement- Section 19, 20, 21

Mediated Settlement Agreement:

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 1. Definition:

Includes any written agreement between some or all parties

resulting from mediation and authenticated by the mediator.

Can cover disputes beyond those initially referred to mediation.

Must not be void under the Indian Contract Act, 1872.

2. Documentation and Signing:

Agreement must be in writing and signed by the parties.

3. Submission and Authentication:

Institutional Mediation:

Agreement submitted to the mediator, who authenticates it

and sends it to the mediation service provider with a
covering letter, also providing a copy to the parties.

Other Cases:

Agreement submitted to the mediator, who authenticates it

and provides copies to the parties.

4. Agreements During Mediation:

Parties can make agreements regarding any of the disputes at

any time during the mediation process.

5. Online Mediation:

Mediated settlement agreements from online mediation are

included.

Registration of Mediated Settlement Agreement:

1. Optional Registration:

Mediated settlement agreements, except those from court or

tribunal-referred mediation, Lok Adalat awards, or final awards
of the Permanent Lok Adalat, can be registered with an
Authority under the Legal Services Authorities Act, 1987, or a
body notified by the Central Government.

A unique registration number is issued upon registration.

2. Registration Process:

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 Can be done within 180 days of receiving an authenticated copy
of the agreement.

Late registration is allowed on payment of a specified fee.

3. Territorial Jurisdiction:

Agreements may be registered within the territorial jurisdiction

of the competent court or tribunal.

4. Clarification:

Registration does not affect the rights to enforce or challenge

the agreement.

Non-Settlement Report:

1. When No Agreement is Reached:

If no agreement is reached within the specified time, or the

mediator believes no settlement is possible:

Institutional Mediation:

Mediator submits a non-settlement report to the

mediation service provider.

Other Cases:

Mediator prepares a non-settlement report and provides

a signed copy to all parties.

2. Content of Non-Settlement Report:

The report does not disclose the cause of non-settlement or any

conduct during mediation.

Confidentiality and Disclosure- Section 22, 23

Confidentiality in Mediation Proceedings:

1. Confidential Matters:

All participants, including the mediator, mediation service

provider, and parties, must keep confidential:

Acknowledgements, opinions, suggestions, promises,

proposals, apologies, and admissions made during
mediation.

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 Acceptance of, or willingness to accept, proposals made or
exchanged in mediation.

Documents prepared solely for the conduct of or in relation

to mediation.

Any other mediation communication.

2. Prohibition on Recordings:

No audio or video recordings of mediation proceedings,

whether conducted in person or online, are allowed to ensure
confidentiality.

3. Non-Admissibility in Legal Proceedings:

Parties cannot rely on or introduce as evidence any information

or communication from mediation in any court or tribunal
proceedings, including arbitration. This includes information in
electronic form and verbal communication.

Courts or tribunals cannot take cognizance of such information

or evidence.

4. Permissible Disclosures:

Mediators can compile or disclose general information about

mediation matters for research, reporting, or training, as long as
it does not identify any party, participant, or specific dispute.

This confidentiality provision does not apply to mediated

settlement agreements when disclosure is necessary for
registration, enforcement, or challenge.

Restrictions on Disclosure by Mediators and Participants:

1. Non-Disclosure Obligation:

Mediators and participants, including experts and advisers,

cannot be permitted or compelled to disclose any
communication from mediation to any court, tribunal, or
adjudicatory proceeding. This includes the contents or
conditions of any documents, the nature or conduct of parties,
or the content of negotiations or offers.

2. Exceptions to Non-Disclosure:

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 Disclosure is allowed to prove or dispute a claim of professional
misconduct or malpractice of the mediator based on conduct
during mediation.

3. Non-Confidential Information:

Confidentiality does not apply to:

A threat or statement of a plan to commit an offense.

Information related to domestic violence or child abuse.

Statements showing a significant imminent threat to public

health or safety.

Termination- Section 24
Termination of Mediation Proceedings:
Mediation proceedings under this Act shall terminate on:

1. Signing and Authentication:

The date when the mediated settlement agreement is signed

and authenticated.

2. Mediator's Declaration:

The date when the mediator issues a written declaration, after

consultation with the parties or otherwise, stating that further
mediation efforts are no longer justified.

3. Party's Opt-Out:

The date when a party or parties communicate in writing to the

mediator and the other parties their decision to opt out of
mediation.

4. Expiry of Time Limit:

The expiry of the time limit specified under Section 18.

Cost- Section 25

1. Specification of Costs:

The cost of mediation, excluding community mediation, will be

specified.

2. Equal Sharing of Costs:

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 Unless parties agree otherwise, all mediation costs, including
mediator fees and mediation service provider charges, will be
equally shared by the parties.

The provisions of this Act shall not apply to the proceedings conducted by
Lok Adalat and Permanent Lok Adalat under the Legal Services Authorities
Act, 1987.

Enforcement of Settlement- Chapter VI

Enforcement- Section 27

Enforcement of Mediated Settlement Agreement:

1. Finality and Binding Nature:

A mediated settlement agreement signed by the parties and

authenticated by the mediator is final and binding on the parties
and their successors.

2. Enforcement:

The mediated settlement agreement will be enforced according

to the provisions of the Code of Civil Procedure, 1908, as if it
were a judgment or decree passed by a court.

It can be relied upon by any of the parties or their successors in

any legal proceeding by way of defense, set-off, or otherwise,
subject to the provisions of section 28.

Challenge- Section 28
Challenging a Mediated Settlement Agreement:

1. Application to Challenge:

A party seeking to challenge a mediated settlement agreement

must file an application before the court or tribunal of
competent jurisdiction.

2. Grounds for Challenge:

The mediated settlement agreement can only be challenged on

the following grounds:

Fraud

Corruption

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 Impersonation

Mediation was conducted in disputes or matters not fit for

mediation under section 6.

3. Time Limit for Application:

The application to challenge must be made within ninety days

from the date the party received the copy of the mediated
settlement agreement.

The court or tribunal may allow an application made after the

ninety-day period if it is satisfied that there was sufficient cause
for the delay, but not beyond an additional ninety days.

Limitation- Section 29

Exclusion of Time Period in Limitation:

1. Exclusion of Time Period:

Notwithstanding the Limitation Act, 1963 or any other law, the

period from the commencement of mediation to either:

The submission of a report under section 21, or

The termination of mediation under section 24,

shall be excluded when computing the limitation period for any

proceeding related to disputes mediated under this Act.

Mediation Council of India- Chapter VIII

Establishment and Incorporation- Section 31

Establishment and Structure of the Mediation Council of India:

1. Establishment by Notification:

The Central Government will establish the Mediation Council of

India through a notification for the purposes of this Act.

2. Body Corporate:

The Council will be a corporate body with perpetual succession

and a common seal.

It will have the authority to acquire, hold, and dispose of both

movable and immovable property, enter into contracts, and sue
or be sued under its name.

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 3. Head Office:

The head office of the Council will be located in Delhi or another

place as notified by the Central Government.

4. Establishment of Other Offices:

The Council, in consultation with the Central Government, may

establish additional offices within India and abroad.

Composition- Section 32

Composition and Tenure of the Mediation Council of

India:
1. Members of the Council:

Chairperson:

Appointed by the Central Government.

Must have ability, integrity, standing, and professional

experience in law, alternative dispute resolution (preferably
mediation), public affairs, or administration.

Member:

Appointed by the Central Government.

Must have knowledge and experience in law related to

mediation or alternative dispute resolution mechanisms.

Member:

Appointed by the Central Government.

Must be an eminent person with experience in research or

teaching in the field of mediation and alternative dispute
resolution laws.

Ex Officio Member:

Secretary to the Government of India in the Department of

Legal Affairs, Ministry of Law and Justice, or their
representative (not below the rank of Joint Secretary).

Ex Officio Member:

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 Secretary to the Government of India in the Department of
Expenditure, Ministry of Finance, or their representative (not
below the rank of Joint Secretary).

Member-Secretary:

Chief Executive Officer (ex officio).

Part-Time Member:

One representative of a recognized body of commerce and

industry, chosen by the Central Government.

2. Term of Office:

Members, other than ex officio members, hold office for a term

of four years from the date they enter office.

Eligible for re-appointment.

Chairperson cannot hold office after the age of seventy years.

Other members cannot hold office after the age of sixty-seven

years.

If the Chairperson is part-time, at least one of the members

appointed under clauses (b) or (c) must be full-time.

3. Salaries and Allowances:

Salaries, allowances, and other terms and conditions for

members, other than ex officio members, will be prescribed.

Members are entitled to prescribed traveling and other

allowances.

Vacancies- Section 33

No act or proceeding of the Council shall be invalid merely by reason of

—
(a) any vacancy or any defect, in the constitution of the Council;
(b) any defect in the appointment of a person as a Member of the
Council; or
(c) any irregularity in the procedure of the Council not affecting the
merits of the case.

Resignation- Section 34

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 Resignation of Members of the Mediation Council of
India:
1. Notice of Resignation:

A member may resign by providing a notice in writing, under his

hand, addressed to the Central Government.

2. Continuation in Office:

Unless permitted by the Central Government to relinquish the

office sooner, the member must continue to hold office until:

The expiry of three months from the date of receipt of the

resignation notice, or

A duly appointed successor enters upon the office, or

The expiry of the member's term of office,

Whichever occurs earlier.

Removal- Section 35

Removal of Members of the Mediation Council of India:

The Central Government may remove any Member from office on the
following grounds:
(a) Insolvency: The Member is an undischarged insolvent.
(b) Unauthorized Employment: The Member has engaged in paid
employment during his term of office without permission from the
Central Government.
(c) Conviction: The Member has been convicted of an offence
involving moral turpitude, in the opinion of the Central Government.
(d) Conflict of Interest: The Member has acquired a financial or other
interest that is likely to affect his functions prejudicially.
(e) Abuse of Position: The Member has abused his position, rendering
his continuance in office prejudicial to public interest.
(f) Incapacity: The Member has become physically or mentally
incapable of acting as a Member.
Opportunity to be Heard:

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 If a Member is proposed to be removed on any of the above
grounds, he shall be informed of the charges against him and given
an opportunity to be heard in respect of those charges.

Experts and Committees- Section 36

The Council may, appoint such experts and constitute such committees
of experts as it may consider necessary to discharge its functions on
such terms and conditions as may be specified.

Secretariat and CEO- Section 37

Chief Executive Officer and Secretariat of the Mediation

Council of India:

Chief Executive Officer (CEO):

1. Responsibility:

The CEO shall be responsible for the day-to-day administration

and implementation of the decisions of the Council.

2. Qualification and Appointment:

The qualifications, appointment, and other terms and conditions

of service for the CEO shall be specified.

Secretariat:
1. Constitution:

There shall be a Secretariat to the Council consisting of a

specified number of officers and employees.

2. Qualification and Appointment of Officers and Employees:

The qualifications, appointment, and other terms and conditions

of service for the employees and officers of the Council shall be
specified.

3. Interim Provision by Central Government:

The Central Government shall provide the necessary number of

officers and employees for the functioning of the Council until
the regulations regarding their appointment and service
conditions are made.

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 Duties and Functions- Section 38

Functions of the Mediation Council of India:

1. Promotion of Mediation:

Endeavor to promote domestic and international mediation in

India through appropriate guidelines.

2. Development of Mediation Center:

Endeavor to develop India as a robust center for both domestic

and international mediation.

3. Guidelines and Standards:

Lay down guidelines for the continuous education, certification,

and assessment of mediators by recognized mediation
institutes.

Provide for the manner of conduct of mediation proceedings,

as specified under section 15(1).

Lay down standards for the professional and ethical conduct of

mediators, as specified under section 15(3).

4. Registration and Regulation:

Provide for the manner of registration of mediators and

renewal, withdrawal, suspension, or cancellation of
registration based on specified conditions.

Specify criteria for the recognition of mediation institutes and

mediation service providers.

Renew, withdraw, suspend, or cancel recognition of mediation

institutes and mediation service providers based on specified
criteria.

5. Training and Collaboration:

Hold trainings, workshops, and courses in mediation in

collaboration with mediation service providers, law firms,
universities, and other stakeholders, both Indian and
international, including mediation institutes.

6. International Collaboration:

Mediation Act 24
 Enter into memoranda of understanding or agreements with
domestic and international bodies, organizations, or institutions
related to mediation.

7. Information and Data Management:

Publish information, data, research studies, and other relevant

information as required.

Maintain an electronic depository of mediated settlement

agreements made in India and other related records as
specified.

8. Regulation of Mediation Service Providers:

Lay down standards for the professional and ethical conduct of

mediation institutes and mediation service providers.

9. Other Functions:

Perform any other function as may be assigned by the Central

Government related to mediation.

These functions aim to regulate, promote, and develop mediation as an

effective alternative dispute resolution mechanism in India, ensuring
standards of practice, ethics, and professional conduct among
mediators and mediation service providers.

Monitoring and Reporting- Section 39

Reporting and Additional Measures of the Mediation

Council of India:
1. Annual Report:

The Council shall prepare a report on the implementation of the

provisions of the Mediation Act at the end of each year or at
other intervals as directed by the Central Government.

This report will detail the activities, achievements, challenges,

and other relevant information pertaining to mediation in India
during the specified period.

2. Submission to Central Government:

The prepared report shall be forwarded to the Central

Government for review and consideration.

Mediation Act 25
 This facilitates transparency and accountability in the
functioning of the Council regarding the implementation of the
Mediation Act.

3. Additional Measures by Central Government:

The Central Government may take additional measures

deemed necessary to supplement the functioning of the
Mediation Council.

These measures aim to enhance the effectiveness of mediation

processes, support the Council’s initiatives, and address any
emerging needs or challenges in mediation implementation.

These provisions ensure that the Council regularly evaluates its

activities and outcomes, thereby contributing to the continuous
improvement and development of mediation as a preferred mechanism
for dispute resolution in India.

Singapore Convention
The United Nations Convention on International Settlement Agreements
Resulting from Mediation (Singapore Convention) was adopted by the
United Nations on June 26, 2018 and opened for signature on August 7,
2019, with 46 countries affixing their signatures to what is intended be a
game changer in the alternate dispute resolution space.
The use of mediation has grown, particularly because it is cheaper than
international arbitration (which is now being criticised for the very evils it
was created to avoid, i.e. costs and complexity), and also because it is
more likely to preserve commercial relationships. These benefits are
recognised in the Preamble to the Convention, reflecting the hope that the
enforceability of international commercial settlement agreements would
facilitate efficient administration of justice by States, and also contribute to
the development of harmonious international economic relations.
The Singapore Convention facilitates the recognition and enforcement of
settlement agreements that meet the conditions mandated therein , in a
manner similar to the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the New York Convention). As a result, a
settlement agreement will be enforced directly by a court instead of it being

Mediation Act 26
 treated only as a contract, with a civil suit having to be filed for its
enforcement.

What Constitutes an Enforceable Settlement Agreement

Under the Convention?
The conditions that are required to be met for enforcing a settlement
agreement under the Convention are:

1. The settlement agreement must be in writing (i.e. that it is recorded in

some form)[i]

2. It must arise out of a ‘mediation’, defined under the Convention as ‘a

process, irrespective of the expression used, or the basis upon which
the process is carried out, whereby parties attempt to reach an
amicable settlement of their disputes with the assistance of a third
person(s) lacking the authority to impose a solution on the parties.’[ii]

3. The dispute must be a ‘commercial’ dispute. Although the word

‘commercial’ is itself not defined (consciously), it is meant to be read in
a broad manner, similar to the New York Convention[iii]. One may note
the Supreme Court’s decision in M. Investment & Trading Co. v. Boeing
Co., which broadly defined the word ‘commercial’ as “having regard to
the manifold activities which are an integral part of international trade
today” [iv].

4. Further, the settlement cannot relate to, (a) transactions engaged in by

one of the parties (a consumer) for personal, family or household
purposes; or (b) family, inheritance or employment law.[v]

5. The settlement agreement must be ‘international’, in that:– At least two

parties to the settlement agreement have their places of business in
different States, or– the state in which the parties have their places of
business is different to the state in which the substantial part of the
obligations under the settlement agreement is performed or the State
with which the subject matter of the settlement agreement is most
closely connected[vi].

6. The Convention does not apply to those settlement agreements that

are, (a) approved by a court or concluded in court proceedings (on the
basis that these would likely be recorded as orders / judgments of a
court, and enforceable as such), or (b) recorded and therefore
enforceable as arbitral awards[vii]

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 Necessity for Enforcement of Mediated Settlement
Agreements
One would expect that by virtue of the fact that mediated settlement
agreements are entered into on a voluntary basis and by mutual agreement
of the parties, they are likely to be honoured. If so, there may be no real
need to provide assistance for enforcement by way of a convention. While
this may be partially true, the value of the Convention lies in providing
certainty to parties that settlement agreements effected through mediation
will ultimately be enforceable in an efficient manner and that they will not be
relegated back to a full-blown arbitration or litigation, should the other party
default.

Enforcement of Settlement Agreements in India

We do not deal here with settlements arrived at under the auspices of a
court in legal proceedings, as those would normally take the shape of a
‘consent decree’, enforceable directly by a court, and similarly, a ‘consent
award’, enforceable under Part I (or Part II for a foreign award under the
New York Convention). Such settlement agreements are also, for the same
reason, excluded by the Singapore Convention.

Part III of the Indian Arbitration & Conciliation Act, 1996 (the A&C Act), deals
with ‘conciliation’ of disputes arising out of a legal relationship between
parties, whether contractual or not[viii]. A settlement agreement arrived at
through conciliation, has the same status and effect as if it were an arbitral
award on agreed terms on the substance of the dispute rendered by an
arbitral tribunal. On that basis, it is recognised and enforceable as if it were
a decree of the court[ix].
Part III does not contain any reservation (as does Part I) that it applies only
to conciliations that take place (are ‘seated’) in India. (This is also similar to
the Singapore Convention which deliberately stayed away from the concept
of a ‘seat’ of mediation). As such, a settlement agreement reached through
conciliation, though executed offshore, should be enforceable in India on
the same basis, subject to meeting the other conditions in Part III.
The value of India’s ratification of the Convention would therefore assist
Indian parties in enforcing settlement agreements against parties outside
India.

Settlement Agreements through Mediation v/s. Conciliation

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 One notes the use of the word ‘conciliation’ in the A&C Act, and in the
paragraphs above. The Convention does not insist upon the use of the
word ‘mediation’ in describing ways in which a settlement may be reached
(and in several jurisdictions there is no real difference between conciliation
and mediation). In India, however, mediation and conciliation are treated as
two different forms of alternate dispute resolution. For example (apart from
the fact that Part III deals with only ‘conciliation’):

The A&C Act, in Section 30, empowers an arbitrator to “encourage

settlement of the dispute and, with the agreement of the parties, the
arbitral tribunal may use mediation, conciliation or other procedures at
any time during the arbitral proceedings to encourage settlement”.

Section 89(1) of the Code of Civil Procedure, 1908, provides for court-
referred mediation and conciliation, stating that:

“Where it appears to the Court that there exist 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 –
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.”

The Civil Procedure Alternative Dispute Resolution and Mediation Rules,

2006 (ADR Rules), framed by the Bombay High Court, provide for both
‘settlement by conciliation’ and ‘settlement by mediation’[x]. The ADR
Rules state that a conciliator may make “proposals for a settlement of
the dispute and by formulating or reformulating the terms of a possible
settlement; and has a greater role than a mediator.”, thus differentiating
between the roles of the facilitator and also the procedure. (Similarly, a
conciliator under the A&C Act, is empowered under Section 67(4) to
“make proposals for a settlement of the dispute”).

Conclusion
Accordingly, while settlement agreements arrived at through ‘conciliation’
may be enforced in India under the mechanism prescribed under Part III of

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 the A&C Act, those agreements concluded through mediation or any other
consultative process, could only be enforced as contracts, by filing
separate legal proceedings in that regard. The Singapore Convention thus
addresses what was otherwise arguably a legal vacuum for parties
executing settlement agreements as a result of private mediation or other
facilitative process, by providing for their enforcement directly by the courts
of the signatory States.

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