International and Emerging Aspects under Mediation Law: formula sheet

Key formulas

Application of the Act to international mediation

Mediation conducted in India + international mediation → Act applies (Section 2(iii))

Both parts are needed. Mediation held abroad is outside Section 2.

What makes it international

Definition of international mediation in Section 3 of the Act, tested against the parties' facts

The definition is not in the extract supplied. Read it in the bare Act and apply its words to the facts.

Mediation agreement in international mediation

Written agreement for resolution of commercial disputes (Section 4(6), referring to clause (a) of Section 3)

Section 4(1)-(3): must be in writing, and can be a clause or a separate agreement, including electronic exchange.

Domestic limb of applicability

Mediation in India + all or both parties habitually reside, are incorporated or have a place of business in India (Section 2(i))

Use this to contrast with the international limb.

Commencement where an agreement exists

Date the other party receives notice to refer the dispute to mediation (Section 14(a))

Otherwise: date the mediator consents (14(b)(i)), or date a mediator is appointed through the service provider (14(b)(ii)).

Council's role

Promote domestic and international mediation and develop India as a robust centre (Section 38(a), (b))

Useful for the policy angle of an answer.

Section 19: what is a mediated settlement agreement

Written + signed by parties + authenticated by mediator + results from mediation + settles some or all disputes

Terms may go beyond the disputes referred. A settlement void under the Indian Contract Act, 1872 is not a lawful settlement agreement.

Section 27: enforcement

Signed by parties + authenticated by mediator = final and binding; enforced under CPC, 1908 as a judgment or decree

Subject to Section 28. Can also be used as defence, set off or otherwise in any legal proceeding.

Section 28: grounds of challenge

Fraud | Corruption | Impersonation | Dispute not fit for mediation under Section 6

These are the only grounds. Disagreeing with the terms is not a ground.

Section 28(3): time limit

90 days from receipt of copy under Section 19(3) + further 90 days for sufficient cause

The extension is at the discretion of the court or tribunal.

Section 20: registration

Optional, for record; within 180 days of receiving authenticated copy; later on payment of fee

Excludes settlements reached in court or tribunal referred mediation and Lok Adalat awards. Does not affect Sections 27 and 28.

Section 49: Government party

Prior written consent of competent authority before signing

Applies to Central or State Government and their agencies, public bodies, corporations and local bodies, including entities they control or own.

Basic period (Section 18(1))

Completion period = 120 days from the date fixed for the first appearance before the mediator

Applies notwithstanding any other law in force.

Extension (Section 18(2))

Extension = as agreed by the parties, not exceeding 60 days

Needs agreement of the parties. Maximum total is 120 + 60 = 180 days.

Termination on expiry (Section 24(d))

Mediation deemed terminated on expiry of the time limit under Section 18

Other grounds in Section 24: signed settlement agreement, mediator's written declaration, or a party opting out in writing.

Non-settlement report (Section 21)

No agreement within Section 18 period → non-settlement report

Institutional mediation: report to the mediation service provider. Other cases: signed copy to all parties. It must not disclose the cause of non-settlement.

Limitation (Section 29)

Excluded period = date of commencement of mediation under Section 14 to submission of report under Section 21 or termination under Section 24

Applies notwithstanding the Limitation Act, 1963.

Establishment (Section 31)

Central Government + notification → Mediation Council of India (body corporate)

Perpetual succession, common seal, can sue and be sued. Head office at Delhi or as notified.

Section 38 clause map

(a)-(b) promote | (c)-(f) mediators | (g)-(h) training and MoUs | (i)-(l) institutes and providers | (m) publish | (n) depository | (o) other

Use this to recall all 15 clauses in an answer.

Composition (Section 32)

Chairperson + Members appointed under (b) and (c) + two ex officio Members (Legal Affairs and Expenditure) + CEO as Member-Secretary + one industry representative (Part-Time)

Non ex officio Members hold office for four years and are eligible for re-appointment.

Age limits (Section 32(2) proviso)

Chairperson: 70 years | other Members: 67 years

Ex officio Members are excluded from this limit.

Policy control (Section 47)

Council bound by written policy directions of Central Government; Government's decision on what is policy is final

The Council's views must be considered before a direction is given.

Regulations (Section 52)

Council + previous approval of Central Government → regulations by notification

Must be consistent with the Act and rules.

General rule (Section 55(1))

Mediation Act prevails over inconsistent provisions on conduct of mediation or conciliation in any other law or instrument having force of law

Applies only where there is real inconsistency and only to conduct of mediation or conciliation.

Exception

Override is subject to enactments in the Second Schedule

For these enactments the Act does not displace their provisions.

Amendment power (Section 55(2))

Central Government may amend Second Schedule by notification if satisfied it is necessary or expedient

The Schedule is deemed amended on notification.

Related rule (Section 56)

Act does not apply to mediation or conciliation commenced before the Act came into force

Check this first for older mediations.

Related rule (Section 48)

Government schemes or guidelines may govern mediation where Government or its entity is a party, subject to the Act

Read this alongside Section 55 when a Government body is a party.

Online mediation (Section 30)

Written consent of parties + any electronic mode + integrity and confidentiality maintained

Can be used at any stage, including pre-litigation mediation. The manner is as specified by the Council.

Community mediation trigger (Section 43(1))

Dispute likely to affect peace, harmony and tranquillity of residents or families of a locality + prior mutual consent

Applies to local disputes, not to every commercial dispute.

Where to apply (Section 43(2))

Legal Services Authority; or DM / SDM where no Authority has been constituted

The same body constitutes the panel and notifies the permanent panel of community mediators.

Community panel size (Section 43(3))

Panel of three community mediators

Chosen to settle each dispute referred.

Community settlement (Section 44)

Written, signed by parties, authenticated by community mediators; otherwise non-settlement report

Not enforceable as a judgment or decree of a civil court. Section 20 on registration applies mutatis mutandis.

Mediation service provider (Section 40(1))

Council-recognised body + Legal Services Authority + court-annexed mediation centre + any body notified by the Central Government

The last three are deemed recognised by the Council.

Cost (Section 25)

Unless otherwise agreed, costs borne equally by the parties

Cost of mediation other than community mediation is as specified. Fees of mediator and charges of the provider are included.

Quick revision

• International mediation under Section 3(g) must relate to a commercial dispute, with at least one party foreign.
• A foreign party can be a foreign national or resident, a body corporate or LLP with its place of business abroad, an association with a place of business abroad, or a foreign Government.
• Mediation must be completed within 120 days from the date fixed for the first appearance before the mediator (Section 18(1)).
• The parties may agree to extend it by a further period not exceeding 60 days (Section 18(2)).
• Section 24 terminates mediation on a signed and authenticated settlement, the mediator's written declaration, a party's written opt-out, or expiry of the Section 18 time limit.
• A settlement signed by the parties and authenticated by the mediator is final and binding (Section 27(1)).
• Under Section 27(2), and subject to Section 28, it is enforced under the Code of Civil Procedure, 1908 as if it were a judgment or decree.
• The Mediation Council of India is established by the Central Government under Section 31 as a body corporate with perpetual succession.
• Section 38 duties include guidelines, mediator registration, recognising institutes and providers, and keeping an electronic depository of settlement agreements.
• Section 55 gives the Act overriding effect on mediation or conciliation, subject to the enactments in the Second Schedule.
• Community mediation is by a panel of three community mediators, and its settlement is not enforceable as a civil court decree (Section 44).

Common mistakes

• Saying the Act applies whenever a foreign party is involved. Fix: Always state that Section 2 requires the mediation to be conducted in India. Mediation held abroad is outside it.
• Treating a dispute as international because the contract is governed by foreign law. Fix: Governing law is not itself a party-based test. Look at the parties and the definition of international mediation in Section 3, and at the Section 2 limbs.
• Saying registration is compulsory for enforcement. Fix: Section 20 registration is at the option of parties and is for record. Section 27 enforcement does not depend on it.
• Allowing a challenge on the ground that the terms are unfair. Fix: Only fraud, corruption, impersonation and unfitness for mediation under Section 6 are grounds.
• Stating the period as 180 days with a further 180 days. Fix: Remember the text: 120 days, extendable by agreement for not more than 60 days.
• Counting 120 days from the date of the mediation agreement or the mediator's appointment. Fix: Start from the date fixed for the first appearance before the mediator.
• Saying the Council itself conducts mediation. Fix: The Council regulates and promotes. Mediation service providers provide mediators and facilities under section 41.
• Mixing up Section 38 with Section 41. Fix: Section 38 is for the Council. Section 41 is for mediation service providers, which accredit mediators and maintain panels.
• Saying the Act overrides every other law completely. Fix: Write that it overrides only inconsistent provisions on conduct of mediation or conciliation, subject to the Second Schedule.
• Forgetting the Second Schedule exception. Fix: Always state that the override is subject to the enactments mentioned in the Second Schedule.

Exam tips

• Open every answer with the two-gate test: place in India, then the definition of international mediation applied to the parties. Examiners reward this structure.
• Use the facts. Name the parties, their country of incorporation and the place of mediation in your analysis.
• Add one line on Section 6 if the facts hint at a family, criminal or other sensitive matter.
• Cite only sections you know: 2, 4, 5, 6, 14 and 38 are safe from the text. For the definition of international mediation, read Section 3 in the bare Act and quote it.
• For long answers, add the policy angle: Section 38 asks the Council to promote international mediation and make India a mediation centre.
• Write the section number with each rule: 19 for form, 27 for enforcement, 28 for challenge, 20 for registration, 49 for Government parties.
• In case questions, check the grounds and the time limit separately and give a conclusion on each.
• Use the phrase 'as if it were a judgment or decree of a court' in enforcement answers.