Assignment-3

QI. What is Mediation and what are the governing provisions?

QII. What kind of matters may be referred to Mediation?
QIII. Role and Duties of Mediators?
QIV. How is it helping in amicably resolving the matters?
QV. Go through the case titled AFCONS INFRASTRUCTURE LMT. V.
CHERIAN VARKEY CONSTRUCTION CO. PVT. LTD. (2010) 8 SCC 24
QVI. Study of two Cases and prepare two draft mediation settlements.
QVII. Salient features of The Mediation Act, 2023.
QVIII. Suggestions as to how the Mediation Process can be made more effective
and strengthened.

Submitted To:
JHALSA
Submitted By:
Pratik Kumar
LL.B(Hons)
2nd Year
Amity University,
Ranchi
Q I. What is Meditation and what are the governing provisions?
Answer:

Mediation:

Mediation is a voluntary process where a neutral third party, called a mediator, helps disputing
parties to communicate and negotiate to reach a mutually acceptable resolution. The role of the
mediator is to facilitate discussions, promote understanding, and assist the parties in identifying
solutions, without imposing any decisions on them.

Governing Provisions:

The governing provisions for mediation under the Mediation Act, 2023, are outlined as follows:

Mediation Agreement (Section 4):

 A mediation agreement must be in writing and can be part of a contract or a separate

agreement.
 It can be documented through any written form, including electronic communications, or
pleadings in a suit where the mediation agreement is acknowledged by one party and not
denied by the other.

Pre-Litigation Mediation (Section 5), ( Section7):

 Parties may voluntarily and mutually consent to settle disputes through pre-litigation
mediation before filing any suit or proceeding of civil or commercial nature in court.
 This includes mediation for commercial disputes as specified under section 12A of the
Commercial Courts Act, 2015.
Section 7:
Even if pre-litigation mediation fails, courts or tribunals can refer parties to mediation at
any stage of the proceedings. Courts or tribunals can pass interim orders to protect any
party’s interests if necessary when referring to mediation.
No Obligation for Settlement: Parties are not obligated to settle the dispute through
mediation even if referred by a court or tribunal.

Disputes or matters not fit for mediation (Section 6):

  Mediation cannot be conducted for disputes listed in the First Schedule, which includes
specific matters.
 Courts can refer disputes relating to compoundable offences, including compoundable
matrimonial offences, to mediation if deemed appropriate.
 The outcome of such mediation is not considered a court judgment or decree but is
further considered by the court.
 Government Authority to Amend Schedule: The Central Government can amend the First
Schedule if necessary or expedient by notification.

Territorial Jurisdiction (section 13):

 Mediation must be conducted within the territorial jurisdiction of the relevant court or
tribunal.
 With mutual consent, mediation can occur outside this jurisdiction or online.
 For enforcement, challenge, and registration, such mediation is deemed within the court’s
or tribunal’s jurisdiction.

Commencement of Mediation (Section 14):

When mediation starts:

 When a party receives notice to refer a dispute to mediation, if there’s a prior agreement.
 On the date the mediator consents to the appointment, if parties agree on a mediator.
 On the date of the mediator's appointment, if initiated through a mediation service
provider.

Conduct of Mediation Process (Section 15):

 Mediation is conducted as specified, ensuring independence, neutrality, and impartiality.

 The mediator follows principles of objectivity, fairness, confidentiality, and self-
determination.
 The process includes joint or separate meetings with parties to maintain order and
integrity.
 The mediator is not bound by the Code of Civil Procedure, 1908, or the Indian Evidence
Act, 1872.
  The mediator and parties determine the language of the mediation process

Facilitating Resolution (Section 16):

 Parties are informed that the mediator facilitates but does not impose settlements or
guarantee outcomes.

Prohibited Roles for Mediators (Section 17):

 The mediator cannot act as an arbitrator or counsel for any party in related proceedings.
 The mediator cannot be presented as a witness in related proceedings.

Timeframe for Mediation (Section 18):

 Mediation must be completed within 120 days from the first appearance before the
mediator.
 This period can be extended by up to 60 days with party agreement.

Mediated Settlement Agreement (Section 19):

 Includes written agreements from mediation, signed by parties and authenticated by the
mediator.
 The agreement can address disputes referred to mediation or beyond.
 Agreements must be written and signed by all parties.
 Institutional mediation agreements are submitted to the mediator, who forwards them to
the mediation service provider.
 Non-institutional agreements are authenticated by the mediator and given to parties.
 Agreements from online mediation are included.

Registration of Settlement Agreements (Section 20):

 Agreements, other than court or tribunal-referred or Lok Adalat awards, can be registered
with an Authority under the Legal Services Authorities Act, 1987, or a notified body.
 Registration must occur within 180 days from receiving an authenticated copy,
extendable with a fee.
 Registered agreements receive a unique registration number.
 Registration does not affect enforcement or challenge rights.
Non-Settlement Report (Section 21):

 If no agreement is reached within the specified time, the mediator submits a non-
settlement report:
 Institutional mediation: to the mediation service provider.
 Non-institutional mediation: a signed copy to all parties.
 The report does not disclose reasons for non-settlement or conduct during mediation.

Confidentiality and Privilege (Section 22) and (Section 23):

 Confidentiality of mediation communications is maintained, including opinions,

suggestions, proposals, documents, and other communications.
 No audio or video recordings of mediation proceedings are allowed.
 Confidential information cannot be used as evidence in court or tribunal proceedings.
 General information may be disclosed for research or training if it doesn’t identify parties
or disputes.
 Confidentiality does not apply to the mediated settlement agreement for registration,
enforcement, and challenge purposes.
 Communications and documents related to the mediation process are confidential and
cannot be disclosed in court or any tribunal, except under specific circumstances such as
proving professional misconduct or malpractice of the mediator.

Termination of Mediation (Section 24):

 Mediation proceedings terminate on the date of signing and authentication of the

mediated settlement agreement or,
 a written declaration by the mediator or,
 a written communication by a party opting out or,
 the expiry of the time limit specified under Section 18.

Costs of Mediation (Section 25) :

 The costs of mediation, excluding community mediation, will be specified.

 Unless agreed otherwise, all mediation costs, including mediator fees and service
provider charges, will be equally shared by the parties.
Non-Applicability to Lok Adalat (Section 26):

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

Enforcement of Mediated Settlement Agreement (Section 27):

 Final and Binding: A mediated settlement agreement signed by parties and authenticated
by the mediator is final and binding on the parties and their successors.
 Enforceable as Judgment: The agreement is enforceable under the Code of Civil
Procedure, 1908, as if it were a court judgment or decree.
 Legal Usage: It can be used by parties or their successors as a defense, set-off, or
otherwise in any legal proceeding.

Challenge to Mediated Settlement Agreement (Section 28):

Grounds for Challenge: A mediated settlement agreement can be challenged in court on grounds
of:

- Fraud

- Corruption

- Impersonation

- Matters not fit for mediation under section 6

Application for Challenge:

- Must be filed within 90 days of receiving the agreement copy.

- An extension of up to 90 additional days can be granted if the court is satisfied that the
applicant had sufficient cause for the delay.

Mediation Council of India (Sections 31-32):

 Establishment of the Mediation Council of India to regulate and oversee mediation

activities.
 The Council consists of various members, including a Chairperson, appointed by the
Central Government.
Q II. What kind of matter may be referred to as Mediation?

Answer:

The types of matters that may be referred to mediation. Includes:

According to section 2 of the Mediation Act 2023

 Matters Involving Habitual Residents or Businesses in India: Disputes where all or

both parties habitually reside in, are incorporated in, or have their place of business in
India.

 Agreed Mediation: Disputes where the mediation agreement specifies that the dispute
should be resolved through mediation.

 International Mediation: Disputes involving international mediation.

 Government-Related Commercial Disputes: Disputes where one party is the Central

Government, a State Government, or entities controlled or owned by them, and the matter
pertains to a commercial dispute

Section 6 of the Act outlines specific limitations and exclusions regarding what disputes can
be referred to mediation:

 Disputes Excluded from Mediation:

o Disputes listed in the First Schedule are generally not suitable for mediation:
1. Disputes prohibited by law.
2. Claims involving minors, persons with disabilities, or mental
illness.
3. Criminal prosecution matters.
 4. Professional misconduct complaints.
5. Matters affecting third-party rights (except in matrimonial disputes
involving children).
6. Environmental matters under the National Green Tribunal.
7. Tax disputes.
8. Competition Act investigations.
9. Regulatory and tribunal proceedings (e.g., electricity, petroleum,
securities).
10. Land acquisition disputes.
 Exceptions for Mediation:
o Courts may refer certain compoundable offences (including matrimonial
offences) to mediation if deemed appropriate.
o Provided that the outcome of such mediation will not be considered a court
judgment or decree.

Q III. Role and Duties of Mediators?

Answer:

Based on the provided information, the role and duties of mediators are detailed in several
sections:

1. Section 8:
Appointment :
Mediators can be of any nationality but must meet specified qualifications if foreign.
Parties can agree on the mediator’s name and appointment procedure. If not agreed, a
mediation service provider will appoint a mediator from a panel.
2. Section 10:
Disclosure of Conflict of Interest:
Mediators must disclose any circumstances that may cause a conflict of interest or doubt
about their impartiality, both before and during the mediation. Parties may choose to
waive objections or request a replacement mediator.

3. Section 15:
Conduct of Mediation:
Mediators must assist impartially, maintain confidentiality, and follow professional and
ethical standards. They should facilitate the mediation process by meeting with parties as
necessary and are not bound by the Code of Civil Procedure or the Indian Evidence Act.

4. Section 16:
Facilitating Resolution:
Mediators should help parties understand issues, clarify priorities, and explore settlement
options. They emphasize that the decision to resolve the dispute rests with the parties, not
the mediator.

5. Section 17:
Restrictions:
Mediators cannot act as arbitrators or legal representatives for any party in related
proceedings and cannot be presented as witnesses.

6. Section 18:
Mediation must be completed within 120 days from the date of the first appearance
before the mediator.
The period may be extended by up to 60 days if agreed upon by the parties.

7. Section 19:
Authenticating the mediated settlement agreement:
 The mediator is responsible for authenticating the mediated settlement agreement,
ensuring it reflects the parties’ terms. The mediator then submits the agreement to the
relevant party—either forwarding it to the mediation service provider in institutional
cases or providing it directly to the parties in other cases. The mediator also facilitates
any agreements made during mediation and ensures these are documented in writing and
signed. Overall, the mediator’s role includes validating, documenting, and facilitating the
mediation process.

8. Section 22:
Confidentiality:
Mediators must keep all information from the mediation confidential and cannot be
compelled to disclose it in any court or tribunal, except in cases of professional
misconduct, certain threats, or public safety concerns.

9. Section 23:
Privilege and Confidentiality:
Mediators and participants cannot disclose communications from mediation in
adjudicatory proceedings, except for cases involving threats, domestic violence, child
abuse, or significant threats to public safety.

These sections collectively outline the mediator’s role and duties in ensuring a fair, impartial, and
confidential mediation process while adhering to ethical standards.

IV. How it is helping in amicably resolving the matter ?

Answer: When conflicts arise, mediation offers a path to resolution that fosters harmony. Unlike
court battles, mediation creates a space for people to work together towards an amicable solution.

Hence mediation help in following ways in amicably resolving the matter:

 Open Communication: The mediator guides open communication between the involved
parties. This can help clear up misunderstandings, build empathy, and allow each side to
express their needs and concerns.
 Voluntary Participation: Since participation is voluntary, both parties have a stake in
finding a solution that works for them. This can lead to more creative and mutually
agreeable outcomes.

 Focus on Interests, Not Positions: Mediation helps parties move beyond their initial
stances (positions) to explore the underlying interests that fuel the conflict. This shift in
focus can reveal common ground and pave the way for compromise.

 Control Over Outcome: Unlike court rulings, mediation empowers parties to craft their
own solutions. Having more control over the resolution can lead to a greater sense of
satisfaction and willingness to abide by the agreement.

 Confidentiality: Discussions during mediation are confidential, which encourages open

and honest communication without fear of repercussions. This fosters trust and a
willingness to explore creative solutions.

 Preservation of Relationships: Mediation can be particularly valuable when the parties

have an ongoing relationship, such as business partners, neighbors, or family members.
By focusing on finding common ground, mediation can help mend fences and preserve
the relationship.

 Cost-Effective: Mediation is generally much faster and less expensive than litigation.
This can save both parties a significant amount of time and money, allowing them to
focus on moving forward.
  Emotional Intelligence: Skilled mediators are adept at managing emotions and de-
escalating tension during the process. This creates a safe space for parties to express their
feelings constructively and work towards a solution.

 Emphasis on the Future: Mediation focuses on crafting solutions that address the
underlying issues and prevent future conflict. This future-oriented approach can lead to
more sustainable and lasting resolutions.

By incorporating these aspects, mediation provides a valuable tool for resolving disputes
amicably and constructively.

Q V. Go through the case titled AFCONS INFRASTRUCTURE LMT. V. CHERIAN

VARKEY CONSTRUCTION CO. PVT. LTD. (2010) 8 SCC 24 ?

Answer: This case, decided by the Supreme Court of India in 2010, is a landmark judgment
concerning compulsory arbitration under Section 89 of the Civil Procedure Code (CPC). Here’s a
breakdown of the key points.

Factual Background:

 Afcons Infrastructure Ltd. (Afcons) was the main contractor for a bridge construction
project commissioned by Cochin Port Trust.
 Afcons subcontracted some of the work to Cherian Varkey Construction Co. (Cherian
Varkey).
 A dispute arose between Afcons and Cherian Varkey regarding payment.
 Cherian Varkey filed a suit against Afcons for recovery of dues.

Lower Court Decisions:

 The trial court, applying Section 89 of the CPC, referred the dispute to arbitration without
considering the parties’ consent.
  The High Court upheld the trial court’s decision, interpreting Section 89 as allowing
courts to compel arbitration even in the absence of a pre-existing agreement.

Supreme Court’s Judgment:

 The Supreme Court overturned the lower courts’ decisions.

 The court clarified that Section 89 allows courts to refer disputes to Alternative Dispute
Resolution (ADR) processes, but only with the consent of both parties.
 The court distinguished between arbitration under the Arbitration and Conciliation Act
(1996), which requires a pre-existing arbitration agreement, and court-ordered ADR
under Section 89.
 The court held that failing to consider the parties’ consent before referring a dispute to
arbitration under Section 89 is a violation of their right to be heard.

Significance of the Case:

 This judgment established that courts in India cannot compel parties to arbitration under
Section 89 of the CPC unless they both agree to it. This protects parties’ autonomy and
ensures fairness in the dispute resolution process.
 The case also emphasized the importance of following proper procedures while invoking
Section 89. Courts should explore other ADR options like mediation before resorting to
arbitration.
 This judgment has significantly impacted the practice of ADR in India, promoting a more
balanced and consensual approach to dispute resolution.

Q VI. Study of two Cases and prepare two draft mediation settlements.

Answer:
 Settlement / Agreement

Date: 25th July 2024

Present: X, Petitioner in person along with his Advocate.

Y, Respondent in person along with his Advocate.

I held single and joint sessions with the parties.

Negotiations held.

Briefly stated relevant facts as disclosed by the parties are that on 19 May 2024 at about 11:19
a.m. at Dhurwa Bus stand, Ranchi, Jharkhand, Y was driving a vehicle bearing no. XYZ and hit
X, which caused fatal injuries to him. The petitioner filed the present claim case pending in the
court of Sh. _________; the same is referred for mediation.

The concerned parties, after Mediation, have agreed to settle the present case on the following
terms and conditions:

1. It is mutually settled between the parties that Respondent Y, shall pay Rs. 2,00,000 (Two
lakh) to the petitioners by way of Cheque before the Referral Court within 30 days from
today towards a full and final settlement of the present claim case.

2. That, it is settled that after receipt/payment of the total settled amount, there shall remain
no case/claim/dispute due between the petitioners and Respondent No.3 in the present
 claim case and that none of the parties shall file any other case/claim against each other in
future qua the present claim case.

3. That, the parties have entered into the present settlement/agreement out of their own free
will, without any fear, coercion or undue influence from any side.

Petitioner Respondent

Advocate for petitioner Advocate for the Respondent No.3

The contents of the settlement have been explained to the parties in vernacular and they
have understood the same and have admitted the same to be correct.

Copy of this settlement be given to each of the parties.

(Signature of the Mediator)

 Settlement/Agreement

Date: 25th July 2024

Present: Petitioner X, in person (hereinafter referred to as “wife”) along with her Advocate
and Father.

Respondent _____________ (hereinafter referred to as “husband”) in person

along with his Advocate.

I held joint and single sessions with the parties.

Negotiations held.

Briefly stated relevant facts of the case as disclosed by the parties, are that the wife and the
Husband got married on 5th March 2019 according to Hindu rites and customs. No issue was
born out of the said wedlock. The matrimonial dispute has been arisen between the parties, as a
result of which the wife and the husband initiated legal proceedings against each other. The wife
has filed a petition u/s 125 Cr.P.C. bearing no. ___________ titled as _____X______ Vs.
_____Y______ which is pending in the court of ___________ and is being referred for
mediation. The wife has also initiated criminal proceedings vide FIR No. ___________ u/s 498A
IPC at P.S. ___________ and after completion of the investigation, the charge sheet is pending
before the court of concerned Judicial Magistrate, ___________. The husband has also filed a
petition for Restitution of Conjugal rights (RCR) u/s 9 of HMA titled as _____Y______ Vs.
_____X______ which is now pending in the court of Sh. ___________.
After negotiations, the wife and the husband have agreed to settle their disputes as follows:

1. It is agreed that the wife shall reside in her parent's house residence due to her
employment there, with the understanding that she shall visit her in-laws' residence for
four days each month throughout the calendar year.

2. It is agreed that the husband shall pay Rs. 1,00,000/- (Rupees one lakh Only) as
permanent alimony, every month of the calendar year to the wife including a separate
payment of Rs. 40,000/- (Rupees forty thousand Only) every month of the calendar year
as Maintenance of their son till his age of majority as per law, and all other miscellaneous
and legal expenses.

3. It is agreed that the wife and the husband shall jointly initiate appropriate legal
proceedings for quashing of FIR bearing no. ___________ u/s 498A, P.S________ and
all other consequential proceedings arising out of the said FIR within 15 days after the
signing of this agreement, it is further agreed that the wife shall co-operate in legal
proceedings initiated for quashing of the FIR ________ and all other consequential
proceeding arising out of FIR no________.

4. It is agreed that the Son, Z, shall reside primarily with the Wife. The Husband, shall have
visitation rights, provided he gives the Wife at least five (5) days' prior information to the
Wife. The visitation shall occur at a location mutually agreed upon by the parties. During
visitation, the Husband may spend time alone with the Son but is prohibited from taking
him out of the city. The Husband must return the Son to the Wife at the end of each day
of visitation by 6:00 PM.
5. It is agreed between the parties that for the purpose of communication between the parties
the wife and husband shall be contacted through email, WhatsApp, SMS, Call, or any
other mode of communication. The email ID of the husband is _______ and the email ID
of the wife is __________ the phone no of the husband is ________and the phone no of
the wife is ________ it is further agreed, if there is any change in the residential address
or contact number of the either of the party, the same shall be communicated to the
respective party within 3 days of that change.

6. It is agreed that the wife and the husband shall withdraw their respective cases as
mentioned hereinabove immediately after the signing of this settlement agreement.

7. The wife and the husband with the assistance of their respective counsels shall cooperate
in the execution of the terms and conditions of this settlement.

8. It is settled that after compliance of the terms of the present settlement, there shall remain
no dispute due between the parties arising out of the said marriage and that none of the
parties shall file any civil or criminal proceedings against each other in future and that if
any other case/petition/complaint etc. between the parties is pending in any Court or
Authority, the same shall be withdrawn/got disposed of by the respective party.

9. The parties have settled their dispute out of their own free will, without any fear, force,
coercion or undue influence from any side.
 Petitioner Respondent

Father/Relative of Petitioner Father/Relative of Respondent

Advocate Advocate

The contents of the settlement have been explained to the parties in vernacular and they
have understood the same and have admitted the same to be correct.

Settlement proceedings be sent to the referral court. Parties to appear before the Court
concerned for further directions.

Copy of settlement be given to both the parties. A copy of the settlement is also to be sent
to the concerned court.

(Signature of the Mediator)

Q VII. Salient features of Mediation Act 2023.

Answer: The Mediation Act of 2023 aims to streamline and promote mediation for resolving
disputes amicably. Here are its key features:

 Promotes Pre-Litigation Mediation: The Act encourages parties to attempt mediation

before filing a lawsuit in most civil and commercial disputes. While initially proposed as
mandatory, the final Act made pre-litigation mediation voluntary.
 Exceptions to Mediation: The Act outlines specific disputes that cannot be mediated,
including criminal offenses, professional misconduct proceedings, and certain tax-related
issues.
 Focus on Different Mediation Forms: The Act recognizes and encourages various
mediation methods:
o Institutional Mediation: Conducted by registered mediation institutions with
trained mediators.
o Community Mediation: Aims to resolve local disputes impacting community
harmony, requiring mutual consent from parties.
o Online Mediation: Allows for virtual mediation proceedings, making it more
accessible and convenient.
 Confidentiality and Time Limits: The Act ensures confidentiality of mediation
proceedings. It also sets time limits for mediation, with a maximum duration of 180 days
(extendable with mutual consent).
 Mediated Settlement Agreements: The Act enforces mediated settlement agreements
like court decrees, offering parties a binding and enforceable resolution.
 Regulation of Mediators and Institutions: The Act establishes the Mediation Council
of India to regulate mediators and mediation institutions, ensuring quality standards and
ethical conduct.

Overall, the Mediation Act 2023 aims to make mediation a more accessible, efficient, and
reliable method for resolving disputes in India.
Q VIII. Suggestions as to how the Mediation Process can be made more effective and
strengthened.

Answer: Here are some suggestions on how to make the mediation process more effective and
strengthened.

Promoting Awareness and Education:

 Public awareness campaigns: Educate the public about mediation, its benefits, and when
it’s a suitable option for resolving disputes.
 Training for legal professionals: Encourage lawyers and judges to understand and
actively recommend mediation to clients.
 Community outreach programs: Organize workshops and seminars in communities to
promote mediation as a conflict resolution tool.

Enhancing Accessibility and Efficiency:

 Financial incentives: Offer financial assistance or tax breaks to parties who choose
mediation.
 Streamlined procedures: Simplify the process for initiating mediation and selecting
mediators.
 Online and mobile platforms: Develop user-friendly online platforms for scheduling and
conducting mediation sessions.

Strengthening Mediator Qualifications and Training:

 Standardized training programs: Set up standardized training programs for mediators,

ensuring a consistent level of competency.
 Continuing education requirements: Mandate continuing education for mediators to keep
them updated on best practices and legal developments.
  Specialization in different areas: Encourage mediators to specialize in specific areas of
law or conflict types.

Improving the Legal Framework:

 Clarity on enforceability of mediated agreements: Further clarify the enforceability of

international mediated agreements.
 Data collection and analysis: Collect and analyze data on the success rates and trends in
mediation to identify areas for improvement.
 Review and revision of the Act: Periodically review and revise the Mediation Act to
address emerging challenges and adapt to best practices.

Supporting Community-Based Mediation:

 Invest in training community mediators: Provide training and support for individuals who
can mediate local disputes effectively within their communities.
 Develop culturally sensitive practices: Equip mediators with skills to address cultural
nuances and sensitivities that may influence conflict resolution.

By implementing these suggestions, mediation can become a more robust and effective tool for
resolving disputes across various settings, fostering a culture of peaceful and amicable conflict
resolution.