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Mediation Note-1

Mediation notes

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Gauri poniya
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52 views4 pages

Mediation Note-1

Mediation notes

Uploaded by

Gauri poniya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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WHAT IS MEDIATION AND RELEVANT CASE LAWS?

Mediation:
Mediation is an Alternative Dispute Resolution (ADR) mechanism that aims to
negotiate and settle disputes between parties through the assistance of a neutral
third party, known as the mediator. Mediation can be initiated in several ways: the
parties themselves may choose to engage in mediation voluntarily, the court may
refer the dispute to mediation, or the parties may file a mutual application in court
requesting the appointment of a mediator.

Mechanism of Mediation:
The mediation process commences once a dispute resolution method is chosen
through a mandate, court order, or contractual term. The mediator brings the
parties together and encourages them to resolve the dispute through an introduction
and explanation of the mediation process. The parties are given the opportunity to
present their cases and express their concerns. The mediator may hold separate
meetings with each party to gather all relevant information, including details that
may not be disclosed to the opposing party. The goal is to negotiate a settlement
until the parties reach an agreement.
Mediation is a confidential process, conducted off-the-record. It empowers parties
to participate directly in the resolution of their dispute. It is a consent-based
approach, where negotiations are conducted with the agreement of both parties.
The outcome of mediation is not always binding, and the parties have the option to
accept the settlement or return to court if they are unable to agree.

Laws governing Mediation in India


Mediation Act, 2023
Civil Procedure Code, 1908 (CPC)
The Companies Act, 2013
The Commercial Courts Act, 2015
Consumer Protection Act, 2019

Other acts consisting ADR:


Family Courts Act, 1984
The Real Estate (Regulation and Development) Act, 2016 (RERA)
The Industrial Disputes Act, 1947
The Hindu Marriage Act, 1955
CrPC
Section 320 - Compounding of Offenses
Plea Bargaining (Chapter XXI-A)

Case Laws:

1. Whether mediation can be forced?


 Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co.
(P) Ltd, 2010
The Supreme Court of India has brought clarity to the interpretation of Section 89
of the Code of Civil Procedure. The case challenged the power of a civil court to
refer a matter to arbitration without the consent of both parties. The Court allowed
the appeal and held that Section 89 of the CPC does not empower a civil court to
refer a matter to arbitration without the agreement of both parties.
The Court observed that Section 89 of the CPC only provides for a procedure to
facilitate settlement of disputes through mediation, conciliation, or judicial
settlement, but it does not confer power on the court to refer a matter to arbitration
without the consent of both parties.
 Salem Advocate Bar Association,Tamil Nadu vs Union Of India, 2005
The case concerned the validity of the The Code of Civil Procedure (CPC)
(Amendment) Acts of 1999 and 2002, which also involves the Section 89 of the
CPC. Three reports were submitted before the court by the committee formed to
examine the amendments. The second report dealt with the draft rules for the
Alternate Dispute Resolution (ADR) and mediation, as well as model rules for case
management. The Court accepted the draft rules and model rules, noting that they
are designed to promote efficient case management and ADR. The judgment
concluded that mediation is a valuable tool for resolving disputes efficiently and
effectively, and encouraged its use as an alternative to traditional litigation. This is
because mediation offers several benefits, including cost-effectiveness, flexibility,
and party autonomy. In fact, mediation has been recognized as a preferred method
of dispute resolution in many jurisdictions due to its ability to resolve disputes
quickly and amicably.

 ONGC vs Saw Pipes Case 1996


The Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. case is a landmark
decision in India that deals with the concept of public policy and its application in
arbitration. The case highlights the importance of considering public policy when
setting aside an award, particularly if it is contrary to Indian law, justice, morality,
or the interests of India. The Supreme Court emphasized that public policy is a
dynamic concept that changes over time and requires consideration of various
factors, including the general public's interests, justice, morality, and natural
justice.
The Supreme Court held that an award can be set aside if it is patently illegal,
contrary to fundamental policy of Indian law, or against the interest of India or
justice or morality.The court emphasized that public policy is a dynamic concept
that changes over time and requires consideration of various factors, including the
interests of the general public, justice, morality, and principles of natural justice.
The court set aside the award and held that ONGC was justified in deducting
liquidated damages from the payment due to Saw Pipes Ltd.
At what stage of the proceeding, mediation can be initiated?
In George.P.Cherukoth vs Mariyumma CRP.No. 319 of 2014, it was analyzed by
Kerela High Court that, “Settlement through mediation, at least on certain aspects,
even in a post decree scenario, is not barred. Section 89 C.P.C. empowers court to
adopt the Alternate Despite Resolution mechanism at any stage and does not
prohibit a mediation post decree, and even at execution stage. Neither Section 89
nor the Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction Co. (P) Ltd
((2010) 8 SCC 24) case imposes a complete restriction regarding the stage at any
which, ADR mechanism is to be adopted.”

Duty of Mediator? Disclosure by mediator.


In

Whether a judge can be a mediator in the same case?


Complete confidentiality?
Process for mediation.
Whether the report of mediation/ finding can affect the case

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