MODULE - II

NEGOTIATION, CONCILIATION AND MEDIATION

IN INDIA
WHAT IS NEGOTIATION?
 Negotiation is derived from the Latin word 'negotiari'
which means to carry on business, do business'.
 Negotiation is defined as self-counseling between the
parties to resolve the dispute. In negotiation, parties,
with their own will, by discussing politely and patiently,
try to come up with a solution that is acceptable to both
parties regarding the issue.
 Negotiation is a process of discussion and
communication between two or more parties with the
aim of reaching an agreement. It involves identifying
common interests, exploring potential solutions, and
finding compromises that satisfy all parties involved.
 One of the key reasons why negotiation is important is
its ability to preserve relationships. Unlike litigation,
which often results in winners and losers, negotiation
allows people to work together towards a resolution that
meets everyone's needs.
CHARACTERISTICS OF NEGOTIATION

 Voluntary: This is one of the important

characteristics of negotiation, i.e., it should be
completely voluntary, and no party can be forced
to negotiate with the other party. Whichever
party wants to negotiate will send a letter to the
other party, asking to negotiate. If the other party
agrees to negotiate without any force or threat,
only then can both parties take further steps to
negotiate.

 Bilateral/multilateral: Negotiation can be

conducted between two or more parties, as many
as may be required.
 Non adjudicative: Negotiation is a process that
includes only parties to the issue to get a solution
amicably and no third neutral party takes part in
the negotiation process

 Informal: unlike other alternative dispute

resolutions, negotiation is an informal method.
There are no rules defined for negotiation; parties
to the issue make their own rules with mutual
discussion and acceptance.

 Flexible: Negotiation totally depends on the

choice of parties, i.e., where it will take place,
when it will take place, what will be the topic of
negotiation, which approach they will take, etc
 BATNA, WATNA AND ZOPA
 Harvard method of negotiating was developed by
Roger Fisher and William Ury, the authors of the
term BATNA/WATNA. Some distinguishing features
of this method include strict approach to settlement
of issues, which is important for the parties, but a
gentler attitude towards the people participating in
negotiations

 This method of negotiating has its own tools, which

are aimed to create a zone of possible agreement.
BATNA and WATNA are amongst them.
BATNA (Best Alternative to a Negotiated
Agreement)
BATNA is the best course of action a party can take
if a negotiation fails to reach an agreement. It
represents the strongest fallback option and
serves as a benchmark for deciding whether to
accept a negotiated deal. A strong BATNA
gives a negotiator leverage by allowing them to
walk away if the terms are unfavourable.

For instance, if a supplier offers unfavourable

pricing, the BATNA might be sourcing from
another supplier.
WATNA (Worst Alternative to a Negotiated
Agreement)
WATNA is the worst outcome a party could face if a
negotiation fails. It helps assess the risks and
potential downsides of not reaching an
agreement.

For example, in a legal dispute, the WATNA might

be losing the case and paying damages.
Understanding the WATNA allows negotiators
to evaluate the consequences of rejecting a
deal and can motivate parties to seek
compromise. By comparing WATNA with
potential outcomes, negotiators can better assess
whether to settle or pursue alternatives.
 ZOPA (Zone of Possible Agreement)

ZOPA is the range in which an agreement is

possible, where the interests of both parties
overlap. It exists between each party’s
reservation point (the minimum or maximum they
are willing to accept).

If no overlap exists, a deal is unlikely. Identifying

ZOPA helps negotiators focus on common ground
and facilitates reaching a mutually acceptable
solution.
 Colin needs a car and is negotiating with Tom to
purchase his car. Tom offers to sell his car to Colin for
$10,000. Colin scours through Craigslist and finds a
similar car to which he assigns a dollar value of
$7,500. Colin’s BATNA is $7,500 – if Tom does not offer
a price lower than $7,500, Colin will consider his best
alternative to a negotiated agreement. Colin is willing
to pay up to $7,500 for the car but would ideally want
to pay $5,000 only. if Tom demands a price higher than
$7,500, Colin will take his business elsewhere. If we
assume that Tom can sell his car to someone else for
$8,000, then $8,000 is Tom’s BATNA. In such a
scenario, an agreement will not be made, as Tom is
only willing to sell for a minimum of $8,000, while
Colin is only willing to purchase at a maximum of
$7,500. If Tom’s best alternative to the deal is selling
the car to a dealership, which would offer him $6,000,
then both parties can come to an agreement because
Tom’s reservation point would be $6,000.
 Problem - In a salary negotiation, if the employer
can pay ₹50,000–₹60,000, and the employee
seeks ₹55,000–₹65,000.
 STAGES OF NEGOTIATION
1. Preparation Stage:
Before entering a negotiation, you need to prepare. There
are several things to define, including your:
 Zone of possible agreement (ZOPA): The range in which

you and other parties can find common ground. To

establish the ZOPA, think about your perspective and
your counterpart’s. What do you each want and need?
Where might you be willing to compromise?
 Best alternative to a negotiated agreement (BATNA): Your

ideal course of action if an agreement isn’t possible. To

determine your BATNA, consider alternatives that provide
some of the value you aim to gain from the negotiation.
 Walkaway: The line where ending negotiations is better

than making a bad deal. Use your BATNA to determine

your walkaway. At what point would the BATNA provide
more value than a possible negotiated outcome? That’s
your walkaway
2. Bargaining
 The second step, bargaining, is what most often

comes to mind when thinking about negotiation. Yet,

before discussions even begin, there are three
levers that determine how the bargaining stage will
play out:
 Engaging (the “who”): How do you engage with

each other? Is this a friendly conversation, or do you

fall into enemy territory?
 Framing (the “what”): How do you define the

negotiation? For instance, is it a battle, partnership,

or problem to be solved together?
 Norming (the “how”): How do you relate to one

another? What behaviors are established that

characterize the negotiation?
You typically define these levers in a
negotiation’s first few minutes
simultaneously.
 How do you and other parties enter the room? Do
you greet each other warmly and make small talk,
or is there immediate tension? How do you first
mention the negotiation?

 The bargaining stage is about creating value for

both you and other parties despite your
differences. It requires finding the ZOPA and
working within that space to claim the value
needed to make the negotiation worthwhile.
3. Closing
 The third step in the negotiation process is closing —either

coming to an agreement or ending the negotiation

without reaching one.
 How a negotiation closes depends on each party’s walkaway,

BATNA, and ZOPA. It also relies on how you use engaging,

framing, and norming to create a relationship with the
other parties.
 If you can’t reach a solution in the ZOPA, perhaps one or more

parties decide to go for their BATNA instead. If you and the

other parties create and claim value, you may strike a deal.

4. Learning from Your Experience/Implementation

 The final step of the negotiation process is possible to

overlook but critical to your ongoing growth: Reflect on your

experience. What went well? What went poorly, and why?
How do you feel about the outcome?
 No two negotiations are the same, reflecting on the process

enables you to get to know yourself better as a negotiator

and integrate your learnings into your next negotiation.
 STRATEGIES/KINDS OF NEGOTIATION
1. Soft Negotiation:
Avoiding conflict and maintaining the relationship.
 Characteristics:
 Participants are friends.
 The primary goal is agreement.
 Make concessions to maintain the relationship.
 Trust others and disclose your bottom line.
 Avoid contests of will and yield to pressure.
 Outcome: While efficient in reaching agreements
quickly, it often leads to unwise or imbalanced
outcomes, leaving one party exploited or
dissatisfied.
 Mostly used within families and friendships,

negotiations often follow a soft approach. For

 Ex - A neighbor asking to borrow your
lawnmower for a short period and readily
agreeing without discussing specific details
because you want to maintain a good
relationship.

 Ex - A small business owner offering a loyal

customer a small discount on a product
without much negotiation to keep them happy
and coming back.

 A team member in a project agreeing to take

on additional tasks without explicitly asking for
compensation to maintain team harmony
.
The soft approach prioritizes maintaining relationships
but can lead to inefficient or unwise agreements.
 2. Hard Negotiation:
Winning and maximizing one’s own gains.
 Characteristics:
 Participants are adversaries.
 The primary goal is victory.
 Use pressure and threats; demand concessions.
 Distrust others and mislead about your bottom line.
 Engage in contests of will.

 Outcome: Often results in strained relationships,

inefficiency, and resentment from the opposing party.
 The hard approach involves sticking to positions,

often leading to adversarial outcomes, strained

relationships, and potential escalation of conflict.
 Hard negotiation prioritizes “winning” at the expense

of the relationship and may result in resentment or

retaliation.
 For example - Salary negotiation where you
demand a specific high salary with no
flexibility, and threaten to leave the
company if your demands aren't met .

 A lawyer in a legal settlement demanding

the highest possible compensation from an
insurance company, using strong tactics to
pressure them into a large payout .

 A vendor refusing to lower their price on a

product unless a large order is placed,
using the "take it or leave it" approach .
 For example:
 A tenant and a landlady negotiate rent

renewal, each with contrasting perceptions:

 Tenant: Believes the rent is too high, the

apartment needs repairs, and the landlady

is distant.
 Landlady: Believes rents should rise due to

inflation and the tenant is troublesome

(e.g., loud music, late payments).
 Outcome: Principled negotiation encourages

both parties to acknowledge each other’s

perceptions and focus on shared interests (e.g.,
ensuring a liveable apartment and consistent rent
payment).
 Understanding the other side’s perspective helps

reduce conflict and encourages problem-solving.

 MEDIATION AND CONCILIATION
 According to Article 1(2) of the UNCITRAL Mediation
Rules, 2021, "mediation" is a process - whether referred
to by the term mediation, conciliation or an expression of
similar import, whereby parties request a third person or
persons ("the mediator") to assist them in their attempt to
reach an amicable settlement of their dispute. The mediator
shall not have the authority to impose upon the parties a
solution to the dispute.

 As per Section 3(h) of the Indian Mediation Act, 2023,

"mediation" means- the process, whether referred to by
the expression mediation, pre-litigation mediation, online
mediation, community mediation, conciliation or an
expression of similar import, whereby parties attempt to
reach an amicable settlement of their dispute with the
assistance of a third person referred to as mediator, who
does not have the authority to impose a settlement upon the
parties to the dispute.
 The term 'conciliation' is not defined under the
Arbitration and Conciliation Act, 1996 or under the
UNCITRAL Conciliation Rules, 1980. The definition
of conciliation is to be understood from the
provisions that explain the procedure followed by it.

 Part III Section 61-81 of the Arbitration and

Conciliation Act, 1996 (Now repealed) deals with
Conciliation.

 Conciliation is that private mode of settlement of

disputes, wherein the parties appoint a neutral
third party called the "conciliator", who not only
facilitates the dispute but also actively participates
in the process and assists the parties in reaching a
middle ground.
 SIMILARITIES AND DIFFERENCES
Feature Mediation Conciliation
Process Nature Non-adjudicatory Non-adjudicatory
Role of Third Facilitator More active, can
Party suggest settlement
terms
Voluntariness Voluntary process Voluntary process
Control over Parties decide the The conciliator may
Outcome settlement suggest solutions,
but parties still
decide
Legal Status Settlement terms require The settlement
party agreement; court agreement shall have
order needed for the same status and
enforcement effect as if it is an
arbitral award under
Section 74 of the
Arbitration and
Conciliation Act,
1996
Confidentiality Essential feature Essential feature
 STATUTORY PROVISIONS

Refer to Schedule III to X of the Mediation

Act, 2023
 FUNDAMENTAL PRINCIPLES OF
MEDIATION AND CONCILIATION
 Voluntary participation:
Both parties must freely choose to participate in the
mediation or conciliation process.
 Confidentiality:

All information shared during the process should be

kept private.
 Neutrality: The mediator or conciliator should

remain impartial and not favour one side over the

other.
 Procedural fairness: The process should be

conducted in a fair and transparent manner, with

equal opportunity for both sides to be heard.
 Admissibility of evidence : Sec 22(3) and Sec

23 u/d the Mediation Act, 2023.

PROVISIONS RELATING TO CONCILIATION (REPEALED POST
MEDIATION ACT, 2023, REFER SCHEDULE VI OF THE ACT)
 Sec 63 Number of conciliators
 Sec 64 Appointment of conciliators

 Sec 67 Role of conciliator

 Commencement of Conciliation (Section 62)

 Submission of Statements to the Conciliator

(Section 65)
 Communication between conciliator and

parties (Sec 69)

 Confidentiality (Section 75)

 Settlement Agreement (Sec 72-73)

 Termination of Conciliation Proceedings

(Section 76)
 Cost of Conciliation (Section 78)
 MEDIATION
 Mediator (Sec 3 (i)) - means a person who is appointed
to be a mediator, by the parties or by a mediation
service provider, to undertake mediation, and includes
a person registered as mediator with the
Council(Mediation Council of India).

 Appointment of Mediators (Sec 8) –

 a person of any nationality may be appointed as a
mediator if he/she possesses such qualification,
experience and accreditation as may be specified.
 The parties shall be free to agree upon the name of

mediator and the procedure for their

appointment. If the parties do not reach any
agreement then the party seeking initiation of
mediation shall make an application to a mediation
service provider for the appointment of a mediator.
 Upon receiving an application, the mediation
service provider shall, within a period of seven
days, appoint,— (i) the mediator as agreed by
the parties; or (ii) in case the parties are unable
to reach agreement or mediator agreed by them
refuses to act as mediator, a mediator from the
panel maintained by it, with his consent.

 Conflict of interest and disclosure (Sec 10) -

The person appointed as a mediator shall, prior to
the conduct of mediation or at anytime during the
process of mediation(for any new arisen conflict of
interest) disclose in writing to the parties any
conflict of interest that is likely to give rise
to justifiable doubts as to his independence
or impartiality as a mediator.
the parties shall have the option to waive any
objection.
 if either party desires to replace the mediator,

then, in case of institutional mediation, the party

shall apply to the mediation service provider for
termination, in cases of mediation other than
institutional mediation, such party shall terminate
the mandate of mediator.

 Replacement of Mediator (Sec 12) - Upon

termination of the mandate of mediator the
parties may, appoint another mediator within a
period of seven days from such termination or the
mediation service provider shall appoint another
mediator from the panel maintained by it within a
period of seven days from such termination.
 PROCEEDINGS OF MEDIATION
Section 4 (Voluntary Mediation) – When parties
agree to mediation through an agreement whether
1) through a mediation clause or
2) separate agreement in writing or
3) Any document signed by a party in writing or it
could also be exchange of letters or
communication through electronic form as
provided under IT Act, 2000, or
any pleadings in a suit or any other proceedings
where it is alleged by one party and not denied by
the other.
The parties may agree to submit to mediation any
dispute arising between them under an agreement,
whether entered prior to arising of the dispute or
subsequent thereto
 Sec 13 – Territorial jurisdiction to Undertake
Mediation -
 Every mediation under this Act shall be

undertaken within the territorial jurisdiction

of the court or tribunal of which is competent
to decide the subject matter of dispute:
 Provided that on the mutual consent of the

parties, mediation may be conducted at any

place outside the territorial jurisdiction of the
court or tribunal, or by way of onlinemediation.
 Explanation.— In case mediation takes place

outside the territorial jurisdiction, for the purpose

of enforcement, challenge and registration of the
mediated settlement agreement, the same shall
be deemed to have been undertaken within the
territorial jurisdiction.
 Commencement of mediation (Sec 14) - The
mediation proceedings with respect to a particular
dispute shall be deemed to have commenced—
(a) where there is an existing agreement between the
parties to settle the dispute through mediation, the
date on which a party or parties receives
notice from the party initiating the mediation,
to refer such dispute to mediation; or
(b) in other cases—
(i) where the parties have agreed to appoint a
mediator of their choice for mediation and
settlement of disputes between them on the date
the mediator provides his consent to
appointment; or
(ii) where one of the parties applies to a mediation
service provider for settlement of disputes through
mediation, the date of appointment of a
mediator.
 Conduct of mediation (Sec 15) –
(1) The mediation process shall be conducted in the manner as may
be specified.
(2) The mediator shall assist the parties in an independent, neutral
and impartial manner in amicable settlement of dispute.
(3) The mediator shall at all times be guided by the principles of
objectivity and fairness and protect the voluntariness,
confidentiality and self-determination of the parties, and the
standards for professional and ethical conduct as may be specified.
(4) The mediation process may include the mediator taking
appropriate measures based on the circumstances of the case,
including meeting with parties or participants, jointly or
separately, as frequently as deemed fit by the mediator, both
in order to convene the mediation, and during the mediation for the
orderly and timely conduct of the process and to maintain its
integrity.
(5) The mediator shall not be bound by the Code of Civil Procedure,
1908, or the Indian Evidence Act, 1872.
(6) The mediator with the consent of the parties shall determine the
language or languages to be used in the mediation process.
 Role of mediator (Sec 16) - (1) The mediator
shall attempt to facilitate voluntary resolution of
the dispute by the parties and communicate the
view of each party to the other to the extent
agreed to by them, assist them in identifying
issues, advancing better understanding,
clarifying priorities, exploring areas of
settlement and generating options in an attempt
to resolve the dispute expeditiously, emphasising
that it is the responsibility of the parties to take
decision regarding their claims.

(2) The parties shall be informed expressly by the

mediator that he only facilitates in arriving at
a decision to resolve a dispute and that he shall
not impose any settlement nor give any assurance
that the mediation may result in a settlement.
 Role of mediator in other proceedings (Sec
17) - The mediator shall not—
(a) act as an arbitrator or as a representative or
counsel of a party in any arbitral or judicial
proceeding in respect of a dispute that is the
subject matter of the mediation proceedings;
(b) be presented by the parties as a witness in any
arbitral or judicial proceeding.

 Time-limit for completion of mediation (Sec

18) - mediation under this Act shall be completed
within a period of one hundred and twenty days
from the date fixed for the first appearance before
the mediator. The period may be extended for a
further as agreed by the parties, but not
exceeding sixty days.
 Mediated Settlement Agreement (Sec 19) –
(1) A mediated settlement agreement includes an agreement in writing
between some or all of the parties resulting from mediation, settling
some or all of the disputes between such parties, and
authenticated by the mediator Provided that the terms of the
mediated settlement agreement may extend beyond the disputes
referred to mediation.
(2) A Mediated settlement agreement shall be reduced in to writing and
signed by the parties.

(3) The mediated settlement agreement signed,—

(i) in case of institutional mediation, shall be submitted to the mediator,
who shall, after authenticating the same, forward it with a covering
letter signed by him, to the mediation service provider and also
provide a copy to the parties;
(ii) in all other cases, shall be submitted to the mediator who shall, after
authenticating the mediated settlement agreement, provide a copy to
all the parties.
(4) The parties, may, at any time during the mediation process, make an
agreement with respect to any of the disputes which is the subject
matter of mediation.
(5) Any mediated settlement agreement under this section include a
settlement agreement resulting from online mediation.
 Registration of mediated settlement agreement
(Sec 20) - For the purposes of record, mediated
settlement agreement arrived at between the parties,
may, at the option of parties, be registered with an
Authority constituted under the said Act, or any
other body as may be notified by the Central
Government, in such manner as may be specified and
such Authority or body shall issue a unique registration
number to such settlement agreements.
 Provided that the mediated settlement agreement under
this section may be registered with such Authority or
the body situated within the territorial jurisdiction
of the court or tribunal of competent jurisdiction to
decide the subject matter of dispute.
 The registration may be made by the parties or mediation
service provider within a period of one hundred and eighty
days from the date of receipt of authenticated copy of
mediated settlement agreement, beyond that maybe
allowed after payment of some fees to the authority.
 Non-Settlement Report (Sec 21) - where no
agreement is arrived at between the parties,
within the time period as provided under
section 18, or where, the mediator is of the
view that no settlement is possible, he shall,—
(i) in the case of institutional mediation, submit a
non-settlement report to the mediation service
provider in writing;
(ii) in all other cases, prepare a non-settlement
report and provide a signed copy to all the
parties:
Provided that the report referred to in this section
shall not disclose the cause of non-
settlement, or any other matter or thing
referring to their conduct, during mediation
 Termination of Mediation (Section 24) - The
mediation proceedings under this Act shall
be deemed to terminate—
(a) on the date of signing and authentication of the
mediated settlement agreement; or
(b) on the date of the written declaration of the
mediator, after consultation with the parties or
otherwise, to the effect that further efforts at
mediation are no longer justified; or
(c) on the date of the communication by a party or
parties in writing, addressed to the mediator and
the other parties to the effect that the party
wishes to opt out of mediation;
(d) on the expiry of time limit under section 18
 Confidentiality (Sec 22) – (1) the mediator, mediation
service provider, the parties and participants in the mediation
shall keep confidential all the following matters relating to the
mediation proceedings, namely acknowledgements, opinions,
suggestions, promises, proposals, apologies and admissions
made during the mediation; acceptance of, or willingness to,
accept proposals made or exchanged in the mediation;
documents prepared solely for the conduct of mediation or in
relation; any other mediation communication.

(2) No audio or video recording of the mediation proceedings

shall be made or maintained by the parties or the participants
including the mediator and mediation service provider,
whether conducted in person or online.

(3) No party to the mediation shall in any proceeding before a

court or tribunal rely on or introduce as evidence any
information or communication including any information in
electronic form, or verbal communication and the court or
tribunal including arbitral tribunal shall not take cognizance of
such information or evidence.
(4) this section shall not prevent the mediator from
compiling or disclosing general information
concerning matters that have been subject of
mediation, for research, reporting or training
purposes, if the information does not expressly or
indirectly identify a party or participants or the
specific disputes in the mediation.
 Admissibility and privilege against disclosure (Sec
23) - No mediator or participant in the mediation be
permitted, or compelled to disclose to any court or
tribunal, or in any adjudicatory proceedings any
communication in mediation,
Provided that nothing in this section and section 22 shall
protect from disclosure, information sought or provided to
prove or dispute a claim or complaint of professional
misconduct of mediator or malpractice based on conduct
occurring during the mediation.

(2) There shall be no privilege or confidentiality that will

attach to—
(a) a threat or statement of a plan to commit an offence
punishable under any law for the time being in force;
(b) information relating to domestic violence or child abuse;
and
(c) statements made during a mediation showing a
significant imminent threat to public health or safety.
 Enforcement of mediated settlement
agreement (Sec 27) - (1) A mediated settlement
agreement resulting from a mediation signed by
the parties and authenticated by the mediator
shall be final and binding on the parties and
enforceable.

 The mediated settlement agreement shall be

enforced in accordance with the provisions of the
Code of Civil Procedure, 1908, in the same
manner as if it were a judgment or decree
passed by a court
 Challenge to mediated settlement agreement
(Section 28) –
 A mediated settlement agreement can be challenged

either of the party by filing an application before the court

and tribunal of competent jurisdiction.
 A mediated settlement agreement may be challenged only

on all or any of the following grounds, namely:—

(i) fraud;
(ii) corruption;
(iii) impersonation;
(iv) where the mediation was conducted in disputes or
matters not fit for mediation under section 6.
 An application for challenging the mediated settlement

agreement shall be made within 90 days of receiving a

copy of mediated settlement agreement.
 Provided that if the court or tribunal, is satisfied that the

applicant was prevented by sufficient cause from making

the application within the said period, it may entertain the
application.
 Pre-litigation mediation (Sec 5) - whether any
mediation agreement exists or not, the parties
before filing any suit or proceedings of civil or
commercial nature in any court, may voluntarily
and with mutual consent take steps to settle the
disputes by pre-litigation mediation in accordance
with the provisions of this Act
 a mediator —

(i) registered with the Council; or

(ii) empanelled by a court-annexed mediation
centre; or
(iii) empanelled by an Authority constituted under
the Legal Services Authorities Act, 1987; or
(iv) empanelled by a mediation service provider
recognised under this Act,
shall conduct pre-litigation mediation.
 MEDIATION SERVICE PROVIDERS
 Mediation Service Provider (Section 40) -
(1) "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 there under 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.
 Functions of mediation service providers
(Section 41) –
(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
 COMMUNITY MEDIATION
 Sec 43 - (1) 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
(2) For this purposes, 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.
(3) The authority, District Magistrate or Sub-Divisional
Magistrate, shall constitute panel of three community
mediators,
(4) they shall notify a permanent panel of community
mediators, which may be revised from time to time.
(5) The following persons may be included in the
panel referred to in —
(a) person of standing and integrity who are
respectable in the 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.

(6) While making panel the representation of women

or any other class or category of persons may be
considered.
 Procedure for community mediation (Sec 44) –
 Any community mediation shall be conducted by the

panel of three community mediators who shall

devise suitable procedure for the purpose of
resolving the dispute and resolve the dispute
amicably.
 Where a settlement agreement is arrived at through

community mediation, the same may be reduced

into writing with the signature of the parties and
authenticated by the community mediators, a copy
of which be provided to the parties and in cases
where no settlement agreement is arrived at, a non-
settlement report may be submitted by the
community mediators to the Authority or the District
Magistrate or the Sub-Divisional Magistrate and to
the parties.
 Any settlement agreement arrived at shall not be

enforceable as a judgment or decree of a civil court

 ONLINE MEDIATION
Sec 30-
 Online mediation including pre-litigation mediation

may be conducted at any stage of mediation under

this Act, with the written consent of the parties
including by the use of electronic form or computer
networks but not limited to an encrypted electronic
mail service, secure chat rooms or conferencing by
video or audio mode or both.

 The mediator may take such appropriate steps to

ensure that the essential elements of integrity of
proceedings and confidentiality are maintained at
all times and the mediation communications in the
case of online mediation shall be kept confidential.
 CASE LAWS
 Moti Ram v. Ashok Kumar (2011)
The Supreme Court of India in this case had referred the
matter for mediation to a Mediation Centre to attempt to
resolve the dispute between the parties. Subsequently, a
report by the Mediator was placed before the Court that
mentioned the various settlement proposals made by the
parties, among other things.
As a result, the Supreme Court stressed that mediation
proceedings are strictly confidential. It observed that
when successful, the mediator should send the
settlement agreement signed by the parties to the
Court without mentioning what transpired during the
mediation proceedings. When unsuccessful, the
mediator should simply state that mediation has been
unsuccessful. The Supreme Court was of the view that any
disclosure of the happenings in a mediation proceeding
destroys the confidentiality of the mediation process.
Rama Aggarwal v. PIO, Delhi State Legal Service Authority
(2015)
The appellant, Smt. Rama Aggarwal, sought information under the
Right to Information Act, 2005, pertaining to her mediation
sessions facilitated by the Delhi State Legal Services Authority
(DSLSA). Specifically, she requested copies of detailed
proceedings, complaints, and records of hearings related to her
case.
The Public Information Officer of the DSLSA denied the request,
citing the confidential nature of mediation proceedings. On
further appeal Central Information Commission (CIC) examined
the matter and concluded that information related to mediation
and conciliation is exempt from disclosure under the RTI Act.
The CIC emphasized that such information is considered
personal and is shared in a fiduciary capacity, thereby attracting
exemptions under Sections 8(1)(e) and 8(1)(j) of the RTI Act.
The Commission noted that disclosing details of mediation
proceedings could undermine the confidentiality
essential to the mediation process and deter parties
from engaging openly in alternative dispute resolution
mechanisms.
Perry Kansagra v. Smriti Madan Kansagra (2019)

The dispute involved the custody of the minor child, born to

Perry Kansagra and Smriti Madan Kansagra. The Delhi High
Court referred the parties to mediation to amicably resolve
the custody issues.

Issue - Whether statements made by parties during mediation

sessions can be relied upon during subsequent adjudication?

 The Supreme Court emphasized the confidential nature of

mediation proceedings, stating that statements made
by parties during mediation or conciliation cannot be
relied upon during adjudication.
 However, the Court distinguished this from interactions
between a child and a counsellor. It noted that natural
responses and statements made by the minor to the
counsellor may be considered in custody matters, as they
provide insight into the child's preferences and well-being.
M R Krishna Murthi v. New India Assurance Co. Ltd.
2019
 In 1988, M.R. Krishna Murthi, then 18 years old, suffered

severe injuries in a road accident due to the negligence

of another driver. He filed a claim before the Motor
Accident Claims Tribunal (MACT) seeking
compensation for his injuries.
 The MACT awarded compensation to Krishna Murthi.

Dissatisfied with the amount, he appealed to the Delhi

High Court, which enhanced the compensation.
Still aggrieved, Krishna Murthi approached the
Supreme Court, seeking further enhancement.
 The Court acknowledged the prolonged nature of

motor accident claim litigations and the financial

and emotional strain they impose on claimants. It
emphasized the potential of mediation as an
effective tool to expedite settlements in such
disputes. The Court suggested the establishment of a
statutory mechanism for mediation in motor accident
claim cases.
 The Supreme Court urged the government to
consider enacting an Indian Mediation Act to
comprehensively address various aspects of
mediation.
 It recommended the creation of a Motor

Accidents Mediation Authority (MAMA)

through necessary amendments to the Motor
Vehicles Act.
 In the interim, the Court directed the National

Legal Services Authority (NALSA) to set up

Motor Accident Mediation Cells to facilitate
mediation in such cases.
 Sec 5(6), Sec 5(7) and Sec 5(8) particularly deals

with mediation relating to claims under MVA,

1988.

M Siddiq v Mahant Suresh Das & Ors (2020) –