Published vide Notification No. 4679G, dated 6th December, 2006.
High Court, Calcutta
Appellate Side
Notification No. 4679G, dated 6th December, 2006. – In exercise of the rule-making power under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and clause (d) of sub-section (2) of section 89 of the said Code, the High Court at Calcutta is hereby framing the following Rules :
Part I
Alternative Dispute Resolution Rules (ADR)
1. Title. – These rules in Part I shall be called the ‘Civil Procedure Alternative Dispute Resolution Rules, 2006’.
2. Procedure for directing parties to opt for alternative modes of settlement. – (a) The Court shall, after recording admissions and denials at the first hearing of the suit under Rule 1 Order X and where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, formulate the terms of settlement and, give them to the parties for their observations under sub-section (1) of section 89, and the parties shall submit to the Court their responses within thirty days of the first hearing:
Provided that the response may include settlement by the parties on terms other than those formulated by the court and unless unlawful, the court may act upon such settlement.
(b) At the next hearing, which shall be not later than thirty days of the receipt of responses, the Court may reformulate the terms of a possible settlement and shall direct the parties to opt for one of the modes of settlement of disputes outside the Court as specified in clauses (a) to (d) of sub-section (1) of section 89 read with Rule 1-A of Order X in the manner stated hereunder:
Provided that the Court, in the exercise of such power, shall hot refer any dispute to arbitration or to judicial settlement by a person or institution without the written consent of all the parties to the suit.
3. Persons authorized to take decision for the Union of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more, State Governments and others. – (1) For the purpose of Rule 2, the Union of India or the Government of a State or a Union Territory, all local authorities, all Public Sector Undertakings, all statutory corporations and all public authorities shall nominate a person or persons or group of persons who are authorized to take a final decision as to the mode of alternative dispute resolution in which it proposes to opt in the event of direction by the Court under section 89 and such nomination shall be communicated to the High Court within the period of three months from the date of commencement of these Rules and the High Court shall notify all the subordinate courts in this behalf as soon as such nomination is received from such Government or authorities.
(2) Where such person or persons or group of persons have not been nominated as aforesaid, such party as referred to in clause (1) shall, if it is a plaintiff, file along with the plaint or if it is a defendant, file along with or before the filing of the written statement, a memo into the Court, nominating a person or persons or group of persons who is or are authorized to take a final decision as to the mode of alternative dispute resolution, which the party refers to adopt in the event of the Court directing the party to opt for one or other mode of alternative dispute resolution.
4. Court to give guidance to parties while giving direction to opt. – (a) Before directing the parties to exercise option under clause (b) of Rule 2, the Court shall give such guidance as it deems fit to the parties, by drawing their attention to the relevant factors which parties will have to take into account, before they exercise their option as to the particular mode of settlement, namely:
(i) that it will be to the advantage of the parties, so far as timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) and expense are concerned, to opt for one or other of these modes of settlement referred to in section 89 rather than seek a trial on the disputes arising in the suit;
(ii) that, where there is no relationship between the parties which requires to be preserved, it may be in the interest of the parties to seek reference of the matter of arbitration as envisaged in clause (a) of sub-section (1) of section 89;
(iii) that, where there is a relationship between the parties which requires to be preserved, it may be in the interest of parties to seek reference of the matter to conciliation or mediationMediation It includes a process (ICC Mediation Rule), 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 (Indian Law), who does not have the authority to impose a settlement upon the parties to the dispute. The process is private and confidential. The process ends when a settlement has, or has not, been reached. Read more, as envisaged in clause (b) or (d) of sub-section (1) of section 89;
Explanation. – Disputes arising out of matrimonial, maintenance and child-custody matters shall, among others, be treated as the cases where a relationship between the parties has to be preserved.
(iv) that, where parties are interested in a final settlement which may lead to a compromise, it will be in the interests of the parties to seek reference of the matter to the Lok Adalat or to judicial settlement as envisaged in clause (c) of sub-section (1) of section 89;
(v) the difference between the different modes of settlement, namely, arbitration, conciliation, mediation and judicial settlement is explained below:
Settlement by ‘arbitration’ means the process by which an arbitrator appointed by the parties or by the Court, as the case may be, adjudicates the disputes between the parties to the suit and passes an award by the application of the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996), insofar as they refer to arbitration.
Settlement by ‘conciliation’ means the process by which a conciliator who is appointed by the 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) insofar 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 that of a mediator.
Settlement by ‘mediation’ means the process by which a mediator appointed by the 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, 2006 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.
Settlement in the Lok Adalat means settlement by the Lok Adalat as contemplated by the Legal Services Authorities Act, 1987.
‘Judicial settlement’ means a final settlement by way of compromise entered into before a suitable institution or person to which the Court has referred the dispute and such institution or person is deemed to be the Lok Adalats under the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) and where after such reference, the provisions of the said Act apply as if the dispute was referred to a Lok Adalat under the provisions of that Act.
5. Procedure for reference by the Court to the different modes of settlement. – (a) Where all the parties to the suit decide to exercise their option and to agree for settlement by arbitration, they shall apply to the Court, within thirty days of the direction of the Court under clause (b) of Rule 2 and the Court shall, within thirty days of the said application, refer the matter to arbitration and thereafter the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable after the stage of making of the reference to arbitration under that Act, shall apply as if the proceedings were referred for settlement by way of arbitration under the provisions of that Act.
(b) Where all the parties to the suit decide to exercise their option and to agree for settlement by the Lok Adalat or where one of the parties applies for reference to the Lok Adalat, the procedure envisaged under the Legal Services Authorities Act, 1987 and in particular, by section 20 of that Act, shall apply.
(c) Where all the parties to the suit decide to exercise their option and to agree on a judicial settlement, they shall apply to the Court within thirty days of the direction under clause
(b) of Rule 2 and then, the Court shall, within thirty days of the application, refer the matter to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and thereafter, the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) which are applicable after the stage of making of the reference to the Lok Adalat under that Act, shall apply as if the proceedings were referred for settlement under the provisions of that Act.
(d) Where none of the parties are willing to agree to opt or agree to refer the dispute to arbitration, or the Lok Adalat, or to a judicial settlement, within thirty days of the direction of the Court under clause (b) of Rule 2, they shall consider if they could agree for a reference to conciliation or mediation, within the same period.
(e) (i) Where all the parties opt and agree for conciliation, they shall apply to the Court, within thirty days of the direction under clause (b) of Rule 2 and the Court shall, within thirty days of the application refer the matter to conciliation and thereafter the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable after the stage of making of the reference to conciliation under that Act, shall apply, as if the proceedings were referred for settlement by way of conciliation under the provisions of that Act.
(ii) Where all the parties opt and agree for mediation, they shall apply to the Court, within thirty days of the direction under clause (b) of Rule 2 and the Court shall, within thirty days of the application, refer the matter to mediation and then, the Mediation Rules, 2003 in Part II shall apply.
(f) Where under clause (d), all the parties are not able to opt and agree for conciliation or mediation, one or more of the parties may apply to the Court within thirty days of the direction under clause (b) of Rule 2, seeking settlement through conciliation or mediation, as the case may be, and in that event, the Court shall, within a further period of thirty days, issue notice to the other parties to respond to the application, and
(i) In case all the parties agree for conciliation, the Court shall refer the matter to conciliation and thereafter, the provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to conciliation under that Act, shall apply.
(ii) In case all the parties agree for mediation, the Court shall refer the matter to mediation in accordance with the Civil Procedure Mediation Rules, 2003 in Part II shall apply.
(iii) In case all the parties do not agree and where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties and that there is a relationship between the parties which has to be preserved, the Court shall refer the matter to conciliation or mediation, as the case may be. In case the dispute is referred to conciliation, the provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to conciliation under that Act shall and in case the dispute is referred to mediation, the provisions of the Civil Procedure Mediation Rules, 2003, shall apply.
(g) (i) Where none of the parties apply for reference either to arbitration or the Lok Adalat, or judicial settlement, or for conciliation or mediation, within thirty days of the direction under clause (b) of Rule 2, the Court shall, within a further period of thirty days, issue notices to the parties or their representatives fixing the matter for hearing on the question of making a reference either to conciliation or mediation.
(ii) After hearing the parties or their representatives on the day so fixed, the Court shall, if there exist elements of a settlement which may be acceptable to the parties and there is a relationship between the parties which has to be preserved, refer the matter to conciliation or mediation. In case the dispute is referred to conciliation, the provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to conciliation under that Act shall apply and in case the dispute is referred to mediation, the provisions of the Civil Procedure Mediation Rules, 2006 shall apply.
(h) (i) No next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings of the Court, opt for any one of the modes of alternative dispute resolution nor shall he enter into any settlement on behalf of a minor or person under disability with reference to the suit in which he acts as mere next friend or guardian.
(ii) Where an application is made to the Court for leave to enter into a settlement through the alternative dispute resolution proceedings on behalf of a minor or other person under legal disability and such minor or other person under disability is represented by a counsel or a pleader, the counsel or the pleader shall file a certificate along with the said application to the effect that the settlement is, in his opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion., for the benefit of the minor or other person under disability. The decree of the Court based on the settlement to which the minor or other person under legal disability is a party, shall refer to the sanction of the Court thereto and shall set out the terms of the settlement.
6. Referral to the Court and appearance before the Court upon failure of attempts to settle disputes by conciliation .or judicial settlement or mediation. – (1) Where a suit has been referred for settlement for conciliation, mediation or judicial settlement and has not been settled, or where it is felt that it would not be proper in the interest of justice to proceed further with the matter, the suit shall be referred back again to the Court with a direction to the parties to appear before the Court on a specific date.
(2) Upon the reference of the matter back to the Court under sub-rule (1) or under sub-section (5) of section 20 of the Legal Services Authorities Act, 1987, the Court shall proceed with the suit in accordance with law.
7. Training in alternative methods of resolution of disputes, and preparation of manual.. – (a) The High Court shall take steps to have training courses conducted in places where the High Court and the District Courts or Courts of equal status are located, by requesting any institution recognised by the High Court or the universities imparting legal education or retired faculty members thereof or other persons who, according to the High Court, are well versed in the techniques of alternative methods of resolution of disputes, to conduct training courses for the lawyers and the judicial officers.
(b) (i) The High Court shall nominate a committee of Judges, faculty members including retired persons belonging to the above categories, senior members of the Bar, other members of the Bar specially qualified in the techniques of alternative dispute resolution, for the purpose referred to in clause (a) and for the purpose of preparing a detailed manual of procedure for alternative dispute resolution to be used by the Courts in the State as well as by the arbitrators, or authority or person in the case of judicial settlement or the conciliators or the mediators.
(ii) The said manual shall describe the various methods of alternative dispute resolution, the manner in which any one of the said methods is to be opted for, the suitability 6f any particular method for any particular type of dispute and shall specifically deal with the role of the above persons in the disputes which are commercial or domestic in nature or which relate to matrimonial, maintenance and child-custody matters.
(c) The High Court and the District Courts shall periodically conduct seminars and workshops on the subject of alternative dispute resolution procedures throughout the State or States over which the High Court has jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. with a view to bring awareness of such procedures and to impart training to the lawyers and the judicial officers.
(d) Persons who have experience in the matter of alternative dispute resolution procedures, and in particular, in regard to conciliation and mediation, shall be given preference in the matter of empanelment for the purposes of conciliation or mediation.
8. Applicability to other proceedings. – The provisions of these Rules may be applied to the proceedings before the Courts, including the Family Courts constituted under the Family Courts Act (66 of 1984), while dealing with the matrimonial, maintenance and child-custody-disputes, wherever necessary, in addition to the rules framed under the Family Courts Act (66 of 1984).
9. Until the manual referred to in Rule 7 is prepared by the High Court, the Courts mentioned in Rule 2, may nominate the person indicated in Rule 5 hereof of its choice provided such person has the requisite qualification and is otherwise suitable.
Part II
Civil Procedure Mediation Rules
1.Title. – These Rules in Part II shall be called the Civil Procedure Mediation Rules, 2006.
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) Where 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 the mediators referred to in Rule 3 nor should he possess the qualifications referred to in Rule 4 but he 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 a sole mediator.
3. Panel of mediators. – (a) The High Court shall, for the purpose of appointing mediators between the parties in suits filed on its original side, prepare a panel of mediators and publish the same on its notice board, within thirty days of the coming into force of these Rules, with a copy to the Bar Association, Bar Library Club and The Incorporated LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Society.
(b) (i) 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 the courts of equal status shall, for the purposes of appointing mediators to mediate between parties in suits filed on their original side, prepare a panel of mediators, within a period of sixty days of the commencement of these Rules. After obtaining the approval of the High Court to the names included in the panel, the same shall be published on the respective notice boards.
(ii) Copies of the said panels referred to in clause (1) shall be forwarded to all the courts of equivalent jurisdiction or courts subordinate to the courts referred to in sub-clause (i) and to the Bar Associations attached to each of the courts.
(c) The consent of the persons whose names are included in the panel shall be obtained before empanelling them.
(d) The panel of names shall contain a detailed annexure giving details of the qualifications of the mediators and their professional or technical experience in different fields.
4. Qualifications of persons to be empanelled under Rule 3. – The following persons 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 fifteen years’ standing at the Bar at the level of the Supreme Court or the High Court or the District Courts or the courts of equivalent status.
(c) Experts or other professionals with at least fifteen years’ standing;
(d) Institutions which are themselves experts in mediation and have been recognised 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.
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, or
(ii) any person against whom criminal charges involving moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. turpitude are framed by a criminal court and are pending, or
(iii) any person who has been convicted by a criminal court for any offence involving moral turpitude,
(iv) any person against whom disciplinary proceedings or charges relating to moral turpitude 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.
6. Venue for conducting mediation. – The mediator shall conduct the mediation at one or other of the following places:
(i) Venue of the Lok Adalat or permanent Lok Adalat.
(ii) Any place specified by the District Judge within the court precincts for the purpose of conducting mediation.
(iii) Any place specified by the Bar Association or State Bar Council for the purpose of mediation, within the premises of the Bar Association or State Bar Council, as the case may be.
(iv) Any other place as may be agreed upon by the parties subject to the approval of the Court.
7. Preference. – The Court shall, while nominating any person from the panel of mediators referred to in Rule 3, consider his suitability for resolving the particular class of dispute involved in the suit and shall give preference to those who have proven record of successful mediation or who have special qualification or experience in mediation.
8. Duty of mediator to disclose certain facts.. – (a) When a person is approached in connection with his possible appointment as a mediator, the person shall disclose in writing to the parties any circumstances likely to give rise to a justifiable doubt as to his independence or impartiality.
(b) Every mediator shall, from the time of his appointment and throughout the continuance of the mediation proceedings, without delay, disclose to the parties in writing about the existence of any of the circumstances referred to in clause (a) .
9. Cancellation of appointment. – Upon information furnished by the mediator under Rule 8 or upon any other information received from the parties or other persons, if the Court, in which the suit is filed, is satisfied after conducting such inquiry, as it deems fit, and after giving a hearing to the mediator, that the said information has raised a justifiable doubt as to the mediator’s independence or impartiality, it shall cancel the appointment by a reasoned order and replace him by another mediator.
10. Removal or deletion from panel. – A person, whose name is placed in the panel referred to in Rule 3, may be removed or his name may be deleted from the said panel, by the Court which empanelled him, if:
(i) he resigns or withdraws his name from the panel for any reason; or
(ii) he is declared insolvent or is declared of unsound mind; or
(iii) he is a person against whom criminal charges involving moral turpitude are framed by a criminal court and are pending; or
(iv) he is a person who has been convicted by a criminal court for any offence involving moral turpitude; or
(v) he is a person against whom disciplinary proceedings on charges relating to moral turpitude have been initiated by the appropriate disciplinary authority which are pending or have resulted in a punishment; or
(vi) he exhibits or displays conduct, during the continuance of the mediation proceedings, which is unbecoming of a mediator; or
(vii) the Court which empanelled, upon receipt of information, if it is satisfied, after conducting such inquiry as it deems fit, is of the view that it is not possible or desirable to continue the name of that person in the panel:
Provided that, before removing or deleting his name, under clauses (vi) and (vii), the Court shall hear the mediator whose name is proposed to be removed or deleted from the panel and shall pass a reasoned order.
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 the 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 session, provide to the mediator a brief note setting forth the issues, which according to it, need to be resolved, and its position in respect to those 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 other 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.
(c) Where there is more than one mediator, the mediator nominated by each party shall first confer with the party that nominated him and shall thereafter interact with the other mediators, with a view to resolving the disputes.
12. Mediator not bound by the EvidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 Act, 1872 or the 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 the principles or fairness and justice, having regard to the rights and obligations of the parties, usages of trade, if any, and the nature of the dispute.
13. Non-attendance of parties at sessions or meetings on due dates. – (a) The parties shall be present personally or may be represented by their counsel or power-of-attorney-holders at the meetings or sessions notified by the mediator.
(b) If a party fails to attend a session or a meeting notified by the mediator, other parties or the mediator can apply to the Court in which the suit is filed, to issue appropriate directions to that party to attend before the mediator and if the Court finds that a party is absenting himself before the mediator without sufficient reason, the Court may take action against the said party by imposition of costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..
(c) The parties not resident in India may be represented by their counsel or power-of-attorney-holders at the sessions or meetings.
14. Administrative assistance. – In order to facilitate the conduct of mediation proceedings, the parties, or the mediator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.
15. Offer of settlement by parties. – Any party to the suit may, ‘without prejudice’, offer a settlement to the other party at any stage of the proceedings, with notice to the mediator.
16. Role of the 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, emphasising that it is the responsibility of the parties to take decisions which affect them; he shall not impose any terms of settlement on the parties.
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.
18. Time-limit for completion of mediation. – On the expiry of sixty days from the date fixed for the first appearance of the parties before the mediator, the mediation shall stand terminated, unless the Court, which referred the matter, either suo motu, or upon request by the mediator or any of the parties, and upon hearing all the parties, is of the view that extension of time is necessary or may be useful; but such extension shall not be beyond a further period of thirty days.
19. Parties to act in good faithFaith πίστει.. – While no one can be compelled to commit to settle his case in advance of mediation, all parties shall commit to participate in the proceedings in good faith with the intention to settle the dispute, if possible.
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 should be kept confidential, the mediator shall not disclose that information to the other party, nor shall the mediator voluntarily divulge any information regarding any document or what is conveyed to him orally or as to what transpired during the mediation.
(3) Receipts 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 any information regarding the documents nor in regard to the oral information nor as to what transpired during the mediation.
(4) Parties shall maintain confidentiality in respect of the 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 the parties or the mediators;
(c) proposals made or views expressed by the mediator;
(d) admission made by a party in course of the 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.
21. Privacy. – Mediation sessions and meetings are private; only the parties or their counsel or power-of-attorney-holders concerned can attend. Other persons may attend only with the permission of the parties and with the consent of the mediator.
22. Immunity. – No mediator shall be held liable for anything bona fide done or omitted to be done by him during the mediation proceedings for civil or criminal action nor shall he be summoned by any party to the suit to appear in a court of law to testify in regard to any 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.
23. Communication between mediator and the Court. – (a) In order to preserve the confidence of parties in the Court and the neutrality of the mediator, there should be no communication between the mediator and the Court, except as stated in clauses (b) and (c) of this Rule.
(b) If any communication between the mediator and the Court is necessary, it shall be in writing and the copies of the same shall be given to the parties or their counsel or the constituted attorney representing such party.
(c) Communication between the mediator and the Court shall be restricted to the following matters:
(i) about the failure of the party to attend;
(ii) regarding the assessment of the mediator that the case is not suited for settlement through mediation;
(iii) the information that the parties have settled the dispute or disputes;
(iv) such other matters as the parties may agree in writing as provided in clause (b) above.
24. Settlement agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act.. – (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 constituted attorney representing them. 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 the 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 that no settlement is possible, he shall report the same to the said Court in writing.
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 illegal or opposed to Public Policy or collusive.
(2) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the suit.
(3) If the settlement disposes of only certain issues arising in the suit, the Court shall record the settlement on the date fixed for recording the settlement; and
(i) if the issues are severable from the other issues and if a decree could be passed to the extent of the settlement covered by those issues, the Court may pass a decree straight away in accordance with the settlement on those issues without waiting for a decision of the Court on the other issues which are not settled;
(ii) if the issues are not severable, the Court shall wait for a decision of the Court on the other issues which are not settled.
26. Fees of the 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 fees 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 fees payable to the mediators which shall be shared equally by the two sets of parties.
(4) The expenses of the mediation including the fees 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 that of experts, or for production of documents.
(6) The mediator may, before the commencement of the mediation, direct the parties to deposit equal sums, tentatively, to the extent of 30% of the probable costs of the mediation, as referred to in clauses (1), (3) and (4). The remaining 70% shall be deposited with the mediator, after the conclusion of mediation. For the amount of costs paid to the mediator, he shall issue the necessary receipts and a statement of account shall be filed by the mediator in the Court.
(7) In the event the expenses of the mediation including the fees are not paid by the parties, the Court shall, on the application of the mediator or the parties, direct the parties concerned to pay, and if they do not pay, the Court shall recover the said amount as if there-was a decree for the said amount.
(8) Where a party is entitled to the legal aid under section 12 of the Legal Services Authorities Act, 1987, the amount of the fees payable to the mediator and costs shall be paid by the Legal Services Authority concerned under that Act.
27. Ethics to be followed by the 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) uphold the integrity and fairness of the mediation process;
(4) ensure that the parties involved in the mediation are 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 reposed in the office of the mediator;
(9) conduct all proceedings related to the resolutions of a dispute in accordance with the applicable law;
(10) recognize that the mediation is based on the principle of self-determination by the parties and that the mediation process relies upon the ability of the 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.
28. Transitory provisions. – Until a panel of the mediators is prepared by the High Court and the District Court, the courts referred to in Rule 3, may nominate a mediator of their choice if the mediator belongs to the various classes of persons referred to in Rule 4 and is duly qualified and is not disqualified, taking into account the suitability of the mediator for resolving the particular dispute.