Mediation Training Programme

Mediation Training Programme
By Adv. (Dr.) Santosh A. Shah Advocate, Lecturer in Law & Mediator, Kolhapur

Session 1 Introduction ADR Mechanism and other modes of settlement.
Scope and contents of S. 89 of C.P.C & Mediation Rules, 2006 Difference between Mediation and other ADR mechanism

People are abandoning the justice system
Criminal has more rights than the victim, Defendants can defeat legitimate claims of the Plaintiff Business transactions are frustrated due to costs and delays

Should we accept the status quo or
Try to make a change ? There once was a smoker so disturbed by reading stories about the harmful effect of smoking that he decided to do something about the problem- He stopped reading !

Adversarial Legal System, too much emphasis on litigation.
21st Century India needs effective and multi door Dispute Resolution System. Voltaire : I was ruined twice in my life, once when I lost the law suit and once when I won a law suit ! India for 1 lakh people – 1 Judge , In the U.S for 1 lakh people – 10 Judges.

A dispute is a problem to be solved, together, rather than a combat to be won.
Litigant not a mere recipient of the Court verdicts but consumer of justice delivery system: C.J Mohit Shah, Bombay High Court. Different litigants want different methods of dispute resolution - Prof. Frank Sander of Harvard Law School- “Please re-imagine the Civil Courts as a collection of dispute Resolution Procedures tailored to fit the variety of disputes .” Awareness Building of ADR a must.

ADR Values Much Compromise Help from the mediator in communication, in mood and tone, in reality checks, etc. Adjudication Values Very Little Compromise Adjudicator decides rules.

ADR Values Party-to-party communications. Party Control, nothing happens without party consent. Adjudication Values Lawyer to tribunal communication. All control given away to a stranger; a stranger rules.

ADR Values Inquiry into and preservation of relationships. Broadened relevance to include focus on interests, values, goals, aspirations, as well as relationships Adjudication Values Inquiry to relationships is irrelevant. Narrow relevance, essentially limited to issues defined by the pleadings.

Focus backward, on application of the rule of law only to past acts.
ADR Values Focus on future and future relationships Cultural factors are important. Adjudication Values Focus backward, on application of the rule of law only to past acts. Cultural factors tend to receive de minimis attention. The law written in another factual context is applied.

Value misunderstandings are massaged out.
ADR Values Value misunderstandings are massaged out. Process Flexibility Adjudication Values Stranger determines value. "One size" of rules tends to be force-fit upon all disputes.

The law is determined, applied or disregarded by the parties.
ADR Values The law is determined, applied or disregarded by the parties. The facts are determined compromised or disregarded by the parties. . Adjudication Values The law is determined and applied by the stranger. The facts are found on sometimes irresponsible evidence, by stranger(s).

MEANING OF MEDIATION Mediation is the process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives and aim to reach a consensual agreement that will accommodate their needs. It is not an adjudicative process, where a neutral third party decides the outcome of the case.

‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties’ own responsibility for making decisions which affect them.

MEANING OF CONCILIATION
Conciliation is a consensus based dispute resolution process in which the parties to a dispute meet with a conciliator to discuss mutually acceptable options for resolution of the dispute. The conciliator has some input into the resolution of the dispute reached by the parties in the sense that the conciliator encourages the parties to consider options for settlement, which are fair in all the circumstances, including the precedents for resolution of similar complaints within the formal justice system.

‘Conciliation’ means the process by which a conciliator who is appointed by parties or by the Court, as the case may be, conciliates the disputes between the parties to the suit by the application of the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) in so far as they relate to conciliation, and in particular, in exercise of his powers under sections 67 and 73 of that Act, by making 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.

Various ADR Mechanisms Afcons Infrastructure Ltd & Anr. Vs
Various ADR Mechanisms Afcons Infrastructure Ltd & Anr.Vs. Cherian Varkey Construction Co (P) Ltd.& Ors. Supreme Court Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J. Arbitration: In the event of referral by the court to Arbitration due to arbitration agreement between the parties, the case will go outside the stream of court permanently and will not come back to the court. Conciliation : As contrasted from arbitration, when a matter is refereed to conciliation, the matter does not go out of the stream of court permanently. If there is no settlement, the matter is returned to the court for framing of issues and proceeding with the trial.

Mediation : If the suit is complicated or lengthy, mediation will be recognized choice.
Lok Adalat: If the suit is not complicated and disputes are easily sortable or and be settled by applying clear legal principles Lok Adalat will be preferred choice. Judicial Settlement : If the court feels that suggestion and guidance by a judge will be appropriate, it can refer it to another judge for dispute resolution.

Client’s Expectations : Tell their story in detail
Reliefs Speed Solution Fair Hearing Peace of Mind Tell their story in detail Cost Discovery Participation Execution

What A D R offers to Advocates
Stable Fees Client’s Satisfaction Speedy Solutions Avoid Adjudicatory Processes Options open on failure Less Hassle Restoration of client’s faith in system

QUALITIES OF MEDIATORS
- Facilitator / Communicator - Follow broad frame work - Give importance to Private Meetings - Persuasive Techniques - Discreet / active participation - Build bridges - Human approach Give importance to parties and put solutions in their mind

Parties problem are minor, pleadings make a wide gap
Take help of Advocates Impartial and independent Make required Amendments Liberty to mould procedures Congratulate parties and Advocates - whatever is the result

Tips for a Mediator Impartiality Empathy ; Compassion
Courtsey / respect Confidentiality Impartiality Empathy ; Compassion Integrity ; trustworthiness Speed Without Excessive Cost Active Listening Questioning

Non an Advocate of the Party Patience and Perseverance
Reframing Option Generation Breaking Impasses Reality Testing Non an Advocate of the Party Patience and Perseverance Interpersonal skills Good Human Being

Following words are commonly used in Mediation
BATANA : Best Alternative To A Negotiated Agreement WATNA : Worst Alternative To A Negotiated Agreement MLATNA : Most I likely Alternative To A Negotiated Agreement.

Dispute relating to partition of 17 cattles 17
Story of Cattles Dispute relating to partition of 17 cattles 17 1/ / /9

Mediator to add one cattle
17 +1 1/ / /9

Two children fighting for a larger piece of a cake.
Both demand, they be allowed to cut and have the cake first. Mediator – One cuts and the other gets the choice for picking up the piece first.

Two brothers fighting over an orange
Ad-judication – cut into 2 and give each ½ share – Mediation -One Brother may want the orange, the other may want the cover.

Fight between a Husband and Wife (universal )
They start sleeping separately – child one night sleeps with Father other night sleeps with mother- First night tells the father, “ Daddy, Mom yesterday told me that she too goes wrong and feels bad about it”, - Next night he tells the mother, “Mom, Daddy tells me that he too is wrong and feels bad about it”. – Third night the husband & wife came together.

2. Respective High Courts to take appropriate steps for making rules.
SALEM ADVOCATES BAR ASSOCIATION V/S. UNION OF INDIA ( II) 2005(5) All MR. (SC) 876 1. There should be a panel of well trained conciliators / mediators to which it may be possible for the Court to make a reference 2. Respective High Courts to take appropriate steps for making rules. 3. Draft rules accepted by the Supreme Court.

RULES SUGGESTED BY LAW COMMISSION Framed by Bombay High Court.
Civil Procedure Alternative Dispute Resolution And Mediation Rules, 2006. PART II CIVIL PROCEDURE MEDIATION RULES

Rule 2 : Appointment of Mediator
A] Parties to a suit may all agree on the name of the sole mediator for mediating between them. B] Where, there are two sets of parties and are unable to agree on a sole mediator, each set of parties shall nominate a mediator.

C] parties agree on a sole mediator under clause (a) or where parties nominate more than one mediator under clause (b), the mediator need not necessarily be from the panel of mediators referred to in Rule 4 but should not be a person who suffers from the disqualifications referred to in Rule 5.

D] Where there are more than two sets of parties having diverse interests, each set shall nominate a person on its behalf and the said nominees shall select the sole mediator and failing unanimity in that behalf, the Court shall appoint sole mediator.

Rule 3 : Panel of medaitors
The High Court, the Courts of the Principal District and sessions Judge in each District or the Courts of the Principal Judge of the City Civil Court or Courts of equal status and Family Courts shall, prepare a panel of mediators after obtaining the approval of the High Court.

Rule 4 : Qualifications of persons to be empanelled under Rule 3
The following shall be treated as qualified and eligible for being enlisted in the panel of mediators under Rule 3, namely :- (a) (i) Retired Judges of the Supreme Court of India ; (ii) Retired Judges of the High Court; (iii) Retired District and Sessions Judges or retired Judges of the City Civil Court or Courts of equivalent status

(b) Legal practitioners with at least 15 years standing at the Bar at the level of the Supreme Court or High Court; or the District Courts or Courts of equivalent status. ( c) Experts or other professionals with at least 15 years standing or retired senior bureaucrats or retired senior executives .

(d) Institutions which are themselves experts in mediation and have been recognized as such by the High Court, provided the names of its members are approved by the High Court initially or whenever there is change in membership.

Rule 5: Disqualifications of Persons:
The following persons shall be deemed to be disqualified for being empanelled as mediators: (i) Any person who has been adjudged as insolvent or is declared of unsound mind.

(ii) Or any person against whom criminal charges involving moral turpitude are framed by a criminal court and are pending, or (iii) Persons who have been convicted by a criminal court for any offence involving moral turpitude;

(iv) Any person against whom disciplinary proceedings have been initiated by the appropriate disciplinary authority which are pending or have resulted in a punishment.

(v) Any person who is interested or connected with the subject-matter of dispute or is related to any one of the parties or to those who represent them, unless such objection is waived by all the parties in writing.

(vi) Any legal practitioner who has or is appearing for any of the parties in the suit or in any other suit or proceedings. (vii) Such other categories of persons as may be notified by the High Court.

Rule 11: Procedure of mediation
(a) The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings. (b) Where the parties do not agree on any particular procedure to be followed by the mediator , the mediator shall follow the procedure hereinafter mentioned, namely:

(i) he shall fix, in consultation with parties, a time schedule the dates and the time of each mediation session, where all parties have to be present ; (ii) he shall hold the mediation conference in accordance with the provisions of Rule 6; (iii) he may conduct joint or separate meetings with the parties;

(iv) each party shall , ten days before a sessions, provide to the mediator a brief memorandum setting forth the issues, which according to it, need to be resolved, and its position in respect to these issues and all information reasonably required for the mediator to understand the issue; such memoranda shall also be mutually exchanged between the parties;

(v) each party shall furnish to the mediator, copies of pleadings or documents or such information as may be required by him in connection with the issues to be resolved. Provided that where the mediator is of the opinion that he should look into any original document , the Court may permit him to look into the original document before such officer of the Court and on such date or time as the Court may fix. (vi) each party shall furnish to the mediator such other information as may be required by him in connection with the issues to be resolved.

Rule 12: Mediator not bound by Evidence Act, 1872 or Code of Civil Procedure, 1908:
The mediator shall not be bound by the Code of Civil Procedure, 1908 or the Evidence Act, 1872, but shall be guided by principles of fairness and justice, have regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute.

Rule 16: Role of Mediator:
The mediator shall attempt to facilitate voluntary resolution of the dispute by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute, emphasizing that it is the responsibility of the parties to take decision which effect them; he shall not impose any terms of settlement on the parties.

Rule 17: Parties alone responsible for taking decision:
The parties must understand that the mediator only facilitates in arriving at a decision to resolve disputes and that he will not and cannot impose any settlement nor does the mediator give any warranty that the mediation will result in a settlement. The mediator shall not impose any decision on the parties.

Time limit for completion of mediation :
Rule 18: Time limit for completion of mediation : Sixty days extendable by thirty days

Rule 26 : Fee of mediator and costs :
(1) At the time of referring the disputes to mediation, the Court shall, after consulting the mediator and the parties, fix the fee of the mediator.

(2) As far as possible a consolidated sum may be fixed rather than for each session or meeting.
(3) Where there are two mediators as in clause (b) of Rule 2, the Court shall fix the fee payable to the mediators which shall be shared equally by the two sets of parties.

(4) The expense of the mediation including the fee of the mediator, costs of administrative assistance, and other ancillary expenses concerned, shall be borne equally by the various contesting parties or as may be otherwise directed by the Court. (5) Each party shall bear the costs for production of witnesses on his side including experts, or for production of documents.

(6) The mediator may, before the commencement of mediation, direct the parties to deposit equal sums, tentatively, to the extent of 40 % of the probable costs of the mediation, as referred to in clauses (1), (3) and (4). The remaining 60% shall be deposited with the mediator, after the conclusion of mediation. For the amount of cost paid to the mediator, he shall issue the necessary receipt and a statement of account shall be filed, by the mediator in the Court.

(7) The expense of mediation including fees, if not paid by the parties, the Court shall on the application of the mediator or parties, direct the concerned parties to pay, and if they do not pay, the Mediator or the parties, as the case may be, shall recover the said amount as if there was a decree.

(8) Where a party is entitled to legal aid under section 12 of the Legal Services Authority Act, 1987, the amount of fee payable to the mediator and costs shall be paid by the concerned Legal Services Authority under that Act.

Rule 27: Ethics to be followed by Mediator:
The mediator shall: (1) Follow and observe these Rules strictly and with due diligence; (2) Not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a mediator; (3) Up hold the integrity and fairness of the mediation process;

(4) Ensure that the parties involved in the mediation and fairly informed and have an adequate understanding of the procedural aspects of the process; (5) Satisfy himself/herself that he/she is qualified to undertake and complete the assignment in a professional manner;

(6) Disclose any interest or relationship likely to affect impartiality or which might seek an appearance of partiality or bias; (7) Avoid, while communicating with the parties, any impropriety or appearance of impropriety;

(8) be faithful to the relationship of trust and confidentiality imposed in the office of mediator ;
(9) conduct all proceedings related to the resolutions of a dispute, in accordance with the applicable law;

(12) refrain from promises or guarantees of results.
(10) recognize that mediation is based on principles of self-determination by the parties and that mediation process relied upon the ability of parties to reach a voluntary, undisclosed agreement.; (11) maintain the reasonable expectations of the parties as to confidentiality ; (12) refrain from promises or guarantees of results.

C) Role and responsibility of Judicial Officers u/s. 89 of CPC
Afcons Infrastructure Ltd & Anr. Vs. Cherian Varkey Construction Co (P) Ltd.& Ors. Supreme Court Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J.

U/s 89 of C.P.C, the court is only required to formulate a “short summary of disputes” and not “terms of settlement”. The civil court should invariably refer cases to ADR process except in certain recognized excluded categories by giving reasons.

The proper stage to refer the parties to ADR mechanism is when the matter is taken for preliminary examination of the parties [ stage of Admission and Denial ] u/o 10 of the Code.

The definition of judicial settlement and mediation in clauses (c ) and (d) of section 89(2) shall have to be interchanged to correct the draftsman’ error (c ) for mediation, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act

(d) for judicial settlement the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. Above changes made by interpretative process shall remain in force till the legislature corrects the mistakes, so that section 89 is not rendered meaningless and infructuous.

The following categories of cases are normally considered to be not suitable for ADR process having regard to their nature : (i) Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult process requiring notice to the persons interested in the suit, before its acceptance). (ii) Disputes relating to election to public offices (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, association etc.)

(iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration. (iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc. (v) Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government.

(vi) Cases involving prosecution for criminal offences.
All other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special Tribunals/Forums) are normally suitable for ADR processes : (i) All cases relating to trade, commerce and contracts, including - disputes arising out of contracts (including all money claims); - disputes relating to specific performance;

- disputes between bankers and customers;
- disputes between suppliers and customers; - disputes between bankers and customers; - disputes between developers/builders and customers; - disputes between landlords and tenants/licensor and licensees; - disputes between insurer and insured;

- disputes relating to partnership among partners.
(ii) All cases arising from strained or soured relationships, including - disputes relating to matrimonial causes, maintenance, custody of children; - disputes relating to partition/division among family members/co- parceners/co-owners; an - disputes relating to partnership among partners. (iii) All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including

- disputes between neighbours (relating to easementary rights, encroachments, nuisance etc.);
- disputes between employers and employees; - disputes among members of societies/associations/Apartment owners Associations; (iv) All cases relating to tortious liability including - claims for compensation in motor accidents/other accidents; and (v) All consumer disputes including

- disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or `product popularity. The above enumeration of `suitable' and `unsuitable' categorization of cases is not intended to be exhaustive or rigid. They are illustrative, which can be subjected to just exceptions or additions by the court/Tribunal exercising its jurisdiction/discretion in referring a dispute/case to an ADR process.

Nothing prevents the Court form resorting to S
Nothing prevents the Court form resorting to S. 89 even after framing of issues, but once evidence is commenced the Court will be reluctant to refer the matter to ADR lest it becomes a tool for protracting the trial.

The Role of Judges Matrimonial cases, Civil recovery, MVAC, Commercial Litigation . Older cases Experience of a Judge important S.125 Cr.P.C., S. 138 N.I.Act. Domestic Violence Act S. 14 Counselling Cruelty by husband or relative (S. 498 A. IPC) Cases should not involve complex legal issues or many parties

Mediation should not be intended to delay legal proceeding.
Creation of atmosphere conducive for settlement where parties are honestly willing to explore the possibilities of settlement. Voluntary and confidential process . Averness building about the benefits of ADR amongst Judges, Lawyers and Litigants

Role of Referral Judges
Session II Role of Referral Judges D) Role of Director / Co-ordinator E) Communication between Referral Judges and Mediators

Appointment of a full time co-ordinator
The full time judge in-charge and co-ordinator of the Mediation Centre, is appointed to continuously and unflinchingly promote mediated settlement. He would also screen the cases sent by referral Judges to recommend appropriate mediator having expertise in the given subjuct.

To keep continuous supervision on the progress of each case referred for mediation.
To ensure that mediation is completed in specified time by the mediator as per Rules. To submit periodical report to the Referral Judge before the next date of hearing of the case about the status of mediation proceedings.

To submit monthly returns in respect of disposal of case to Mediation Monitoring Committee Main Mediation Centre, Mumbai. To maintain updated list of Mediators.

To ensure the none of the mediator on the panel is over burdened with Mediation work on account of direct appointment by the Court in different case. The ratio to be maintained shall not exceed ten cases per Mediator at any given point of time. If any discrepancy is noticed in this behalf, it should be forthwith brought to the notice of the concerned court which had appointed that mediator by submitting interim report so that some other mediator can be substituted without any loss of time.

The Co-ordinator shall as far possible appoint mediator by consent of parties in cases where the Court has not appointed mediator while making reference for mediation. To ensure that feedback is received from the participants in every Mediation Case to analyse the same and take corrective measures where necessary. To inspect complaint box on regular basis and take follow up action on complaint or suggestion so received.

Publish periodical handbills / pamphlets including on local cable TV, Theatre, etc. about the concept of Mediation and its benefit. Informative pamphlets be displayed at conspicuous places in police station, court premises, Tehsil offices, Village Grampanchayat. etc. Ensure that informative brochures / pamphlets are circulated with court summons / notices to the litigants and also regularly displayed on the notice board for lawyers / litigants in the court complex.

Role of Referral Judges Post Mediation Stage
Session III Role of Referral Judges Post Mediation Stage Execution of Settlement The process of cases where mediation failed.

Afcons Infrastructure Ltd & Anr. Vs
Afcons Infrastructure Ltd & Anr.Vs. Cherian Varkey Construction Co (P) Ltd.& Ors. Supreme Court Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J. When a matter is settled through conciliation the settlement agreement is enforceable as it is decree of the court having regard to S. 74 read with S. 30 of the A.C. Act.[ Like on Arbitral Award ] When settlement takes place before Lok Adalat, the Lok Adalat award is also deemed to be decree of the civil court and executable as such u/s 21 of Legal Service Authority Act, 1931.

Where the reference is to conciliation, mediation or Lok Adalat through court, the settlement will have to be placed before the court for making a decree in terms of it by application of principles of u/o 23 R. 3 of the Code, as the Court continues to retain control and jurisdiction over the cases which it refers.

Rule 24 : Settlement Agreement
(1) Where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues, the same shall be reduced to writing and signed by the parties or their power of attorney holder. If any counsel have represented the parties, they shall attest the signature of their respective clients.

(2) The agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him, forward the same to the Court in which suit is pending.

(3) Where no agreement is arrived at between the parties, before the time limit stated in Rule 18 or where, the mediator is of the view no settlement is possible, he shall report the same to the said Court in writing. Provided that wherever the mediation fails, the Mediator shall not express any opinion on the merits or demerits of the matter, conduct of the parties, the nature of process or causes which led to failure of mediation.

Rule (25): Court to fix a date for recording settlement and passing decree :
(1) Within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and the Court shall record the settlement, if it is not collusive.

(2) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposed of all the issues in the suit.

C) Confidentiality Rule 20: Confidentiality, Disclosure and Inadmissibility of Information: (1) When a mediator receives confidential information concerning the dispute from any party, he shall disclose the substance of that information to the other party, if permitted in writing by the first party.

(2) When a party gives information to the mediator subject to a specific condition that it be kept confidential, the mediator shall not disclose that information to the other party, nor shall the mediator voluntarily divulge any information regarding the documents or what is conveyed to him orally as to what transpired during the mediation.

(3) Receipt or perusal, or preparation of records, reports or other documents by the mediator, or receipt of information orally by the mediator while serving in that capacity, shall be confidential and the mediator shall not be compelled to divulge information regarding the documents nor in regards to the oral information nor as to what transpired during the mediation.

(4) Parties shall maintain confidentiality in respect of events that transpired during mediation and shall not rely on or introduce the said information in any other proceedings as to : (a) views expressed by a party in the course of the mediation proceedings ;

(b) documents obtained during the mediation which were expressly required to be treated as confidential or other notes, drafts or information given by parties or mediators ;

( c) proposals made or views expressed by the mediator ;
(d) admission made by a party in the course of mediation proceedings ; (e) the fact that a party had or had not indicated willingness to accept a proposal ;

(5) There shall be no stenographic or audio or video recording of the mediation proceedings.
(6) A Mediator may maintain personal record regarding dates fixed by him and the progress of the mediation for his personal use.

Rule 21 : Privacy Mediation sessions and meetings are private ; only the concerned parties or their counsel or power of attorney holders can attend . Other persons may attend only with the permission of the parties or with the consent of the mediator.

Rule 22 : Immunity Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of the Contempt of Courts Act, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Mediator appointed by the Court, for any act, thing or word

committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his officially delegated function as Mediator, nor shall he be summoned by any party to the suit to appear in a Court of law to testify in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the mediation proceedings.

Afcons Infrastructure Ltd & Anr. Vs
Afcons Infrastructure Ltd & Anr.Vs. Cherian Varkey Construction Co (P) Ltd.& Ors. Supreme Court Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J. Conclusion : Sec. 89 appears to be non- starter with many courts, Though the process u/s 89 appears to be lengthy and complicated, in practice, the process is simple – know the dispute, exclude unfit cases, ascertain consent for arbitration and conciliation, if there is no consent select Lok Adalat for simple cases and mediation for all other cases, reserving reference to judge assistance settlement only in exceptional or special cases

Future of ADR – Gradual Growth
Role of Government to fund the ADR system. Rise of private mediation centers.

Lord Denning : Packer Vs Packer
Denning L J in Packer v Packer [ 1954] P 15 at 22. “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both,”

A New Beginning HIGH COURT OF GUJARAT –MEDIATION

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Mediation Training Programme

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