1 Introduction The Mediation Council of India is a pivotal institution established under the Mediation Act, 2023, aimed at promoting and regulating mediation as a method of alternative dispute resolution (ADR) in the country. Recognizing the growing need for efficient and effective mechanisms to resolve disputes outside the traditional court system, the council serves as a centralized authority to oversee mediation practices, ensure quality standards, and enhance the accessibility of mediation services for all citizens. One of the key objectives of the Mediation Council is to standardize the mediation process, providing guidelines for the accreditation of mediators and mediation service providers. This helps to foster a professional environment where trained mediators can facilitate negotiations between disputing parties, ensuring that the mediation process is fair, impartial, and effective.
The council also plays a crucial role in promoting awareness and understanding of mediation, encouraging its use in various types of disputes, including civil, commercial, family, and labor matters. By advocating for mediation as a viable alternative to litigation, the Mediation Council of India aims to reduce the burden on the judicial system, streamline the dispute resolution process, and promote social harmony.
Overall, the establishment of the Mediation Council of India signifies a
commitment to enhancing the legal framework surrounding mediation, ensuring that it becomes an integral part of the dispute resolution landscape in India.
2 CHAPTER 8 Mediation Council Of India The Mediation Act, 2023 presented by the Ministry of Law and Justice under the aegis of the Department of Legal Affairs came into force on 9 th October 2023. This enforcement provides statutory provisions for establishing a corporate body known as “The Mediation Council of India”. The Act provides for 10 sections in Chapter VIII, completely dedicated provisions relating to composition, resignation, removal, experts & committee establishment, and council functions & duties. The provisions of the Council have been elaborated below:
Establishment & Purpose of the Council
The Mediation Council of India is a national council. It has been established by way of notification by the Central Government. It is characterized by features like perpetual succession, common seal, power to acquire, hold and dispose of both moveable & immovable property, enter into a contract and sue or be sued in its name. The Head Office of the Mediation Council shall be in Delhi or at such place as notified by the Central Government for better expansion of service & convenience. The Council is also empowered to establish offices at other places in India and abroad in consultation with the Central Government.
Composition Section 32(1) of the Mediation Act deals with the composition of the Council. The Council is to be furnished with the following authorities/members: 1. Chairperson: The Act provides for a Chairperson, who shall be an individual having standing ability and integrity, adequate knowledge & expertise in dealing with matters related to law, alternative dispute resolution (preferably mediation), public affairs and administration. Such individuals must be duly appointed by the Central Government.
2. Member: The Act provides for 2 full-time members, with prior
experience in law related to ADR or experience in research or teaching in the mediation & ADR law field. 3 3. Ex-Officio Members: The section states the requirement of 3 ex-officio members in the council. They should be Secretary of the Government of India in the Department of Legal Affairs, Ministry of Law and Justice and in the Department of Expenditure, Ministry of Finance or their representative respectively, not below the rank of Joint Secretary. Additionally, a Chief Executive Officer is also to be appointed.
4. Part Time Member: A representative of a recognized body of commerce
& industry chosen by the Central government.
The tenure of office for council, other than ex-officio members, shall be 4 years from the date of the incumbent of office, although they shall be eligible for re- appointment.
Resignation & Removal:
The provision with respect to resignation and removal of the members has been enshrined in Sections 34 and 35 respectively of the Act. Section 34 states that a notice in writing addressed to the Central Government shall be valid. But it will be effective (i.e., such a person can relinquish the office) only after the expiry of 3 months from the date of such notice, or until another appointment is made in his place, or until the expiry of his term of office, whichever is earlier. Section 35 highlights 6 grounds of removal from office – 1. An insolvent who hasn’t yet paid off his debt (Undischarged Insolvent). 2. Engaged in paid employment at any time during the tenure of office without the permission of the Central Government. 3. Convicted of an offence which is a morally corrupt practice in the eyes of the Central Government. 4. Acquired such financial interests as likely to cause prejudice in the accomplishment of his functions & duties. 5. Abused his position such that his continuance in office shall be prejudicial to the public interest. 6. Become physically and mentally incapable of performing his functions. 4 However, rules of natural justice such as audi alteram partem, fair trial, and reasoned decisions must be followed in the process of removal/discharge.
The Secretariat and the Chief Executive Officer (CEO) of the Mediation Council of India have essential roles in managing the council's activities.
The Secretariat is responsible for providing administrative support to the
council. This includes handling communication between council members and external parties, managing records, and organizing meetings. They also help implement the policies and decisions made by the council and may conduct research on mediation practices to support the development of training programs or guidelines. Additionally, the Secretariat plays a role in coordinating events such as workshops and seminars related to mediation.
On the other hand, the CEO provides strategic direction and leadership to the council. They oversee the day-to-day operations, ensuring that everything runs smoothly. The CEO works closely with council members to develop and implement policies regarding mediation and acts as the public face of the council, representing its interests to stakeholders and the community. They also manage the council's budget and ensure financial accountability, making sure that the council has the resources it needs to function effectively.
Together, the Secretariat and the CEO work to ensure that the Mediation Council of India operates efficiently and promotes effective mediation practices throughout the country.
Duties & Functions
The Council has been tasked with duties under Section 38 of the Act which is supplemented by the monitoring & reporting in Section 39. The functions are: 1. Take up the prerogative to promote and regulate the domestic and international mediation in India through guidelines and entering into respective Memorandum of Understanding (MoUs). 2. Establishment of manner of conduct for the mediation proceeding in consonance with Section 15 of the Act. 5 3. Establish framework and guidelines for education, certification and assessment of mediators by recognized mediation institutions. 4. State the process of registration, renewal, withdrawal, suspension or cancellation of registration on the basis of conditions as specified. 5. Establish the standards for professional and ethical conduct of mediators and mediation service providers. 6. Provide training, workshops and courses in mediation in collaboration with mediation service providers. 7. Aim to provide a standard process of recognition of mediation institutions and further renewal, withdrawal, & removal of such recognition. 8. Specify criteria for recognition of mediation institutions. 9. Publish any data, research or any other information gathered as may be required. 10. The maintenance of an electronic depository of any mediated settlement agreement made in India. 11. Any other function as specified by the Central Government.
6 Chapter 9 MEDIATION SERVICE PROVIDERS AND MEDIATION INSTITUTES. Mediation service providers in the context of Alternative Dispute Resolution (ADR) are organizations or individuals that help resolve disputes between parties without going to court. They play a crucial role in facilitating communication and understanding between the parties involved in a conflict.
These providers act as neutral third parties who guide the mediation process. Their primary goal is to help both sides express their concerns and viewpoints effectively while working toward a mutually acceptable solution. Unlike a judge, they do not make decisions for the parties; instead, they create a safe and structured environment where discussions can take place. Mediation service providers can include independent mediators, mediation firms, community mediation centers, and even law firms that offer mediation services. For example, a community mediation center might help neighbors resolve disputes over property lines, while a private mediator could assist in a business conflict. Their significance in ADR lies in the fact that they offer an alternative to the often lengthy and adversarial court process. Mediation is typically faster, less costly, and can help maintain relationships between the parties involved, making it an effective way to resolve disagreements. In summary, mediation service providers are essential for guiding parties through the mediation process and helping them find amicable solutions to their disputes. A mediation institute is an organization focused on promoting mediation as an alternative dispute resolution method. These institutes provide training programs to prepare individuals to become mediators, covering essential skills like conflict resolution, communication, and negotiation. Upon completion of training, many institutes offer certification, enhancing a mediator's credibility.
In addition to training, mediation institutes engage in research to refine
mediation practices and establish professional standards that ensure ethical conduct. They advocate for mediation in various sectors, raising awareness of its benefits, such as cost-effectiveness and relationship preservation.
7 Institutes often host events that facilitate networking and professional development among mediators, creating a community dedicated to improving mediation practices. Examples include the International Mediation Institute and the Family Mediation Council in the UK. Overall, mediation institutes play a vital role in advancing the mediation profession and promoting its use in resolving conflicts.
Since the Mediation Council of India is a relatively new establishment under the Mediation Act, 2023, there are no specific case laws directly involving it yet. The Mediation Act, 2023 was enacted to promote and regulate mediation as a preferred method of dispute resolution, and the establishment of the Mediation Council of India is a key feature of this Act. For now, case that have influenced the development of mediation as an ADR process, is Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) form the judicial foundation upon which the Mediation Council of India operates. This case promoted the practice of mediation in India and laid the groundwork for the formal establishment of the council.
8 Case law Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) It is an important Supreme Court case about using mediation to resolve disputes. Background - Parties Involved: Afcons Infrastructure Ltd. (a construction company) and Cherian Varkey Construction Co. (another construction firm). - Dispute: They had a disagreement regarding a contract related to a construction project. Key Issues - The main question was whether the dispute should be resolved in court or through mediation, which is a method of resolving disputes outside of traditional court proceedings. Supreme Court Ruling - The Supreme Court decided that the court could refer the case to mediation. This means that instead of going through a lengthy court process, the parties could sit down with a neutral mediator to try to resolve their disagreement. - The court emphasized that mediation is a good way to settle disputes because it can save time, reduce costs, and help maintain relationships between the parties. Importance - This case encouraged the use of mediation in India by confirming that courts have the authority to refer cases to mediation. -It highlighted that many civil disputes could be handled more effectively through mediation rather than traditional litigation. Conclusion In simple terms, this case supported the idea that mediation is a valuable tool for resolving disputes, making the legal process quicker and more amicable. It paved the way for more cases to be settled outside of court in the future.
9 Conclusion In conclusion, the establishment of the Mediation Council of India marks a significant advancement in promoting mediation as an effective method for resolving disputes in the country. The council plays a vital role in setting standards and best practices for mediation, ensuring that both mediators and mediation service providers adhere to quality and professionalism. By promoting mediation, the council helps to alleviate the burden on the judicial system, making dispute resolution more efficient, cost-effective, and amicable. The involvement of mediation institutes is crucial, as they provide necessary training and accreditation for mediators, thereby enhancing their skills and effectiveness in facilitating resolutions. Overall, the Mediation Council of India represents a transformative step in the Indian legal landscape, reinforcing the importance of mediation as a viable alternative to traditional litigation.
