Mediation: An Introduction and its Process along with Rules: formula sheet

Key formulas

Mediation (Section 3(h))

Mediation = process to reach amicable settlement + assistance of a third person (mediator) + no authority to impose settlement

Includes pre-litigation, online and community mediation and conciliation or similar expressions.

Mediator (Section 3(i))

Mediator = person appointed by parties or by a mediation service provider; includes a person registered with the Council

Where more than one mediator is appointed, the reference is to all of them.

Institutional mediation (Section 3(f))

Institutional mediation = mediation under the aegis of a mediation service provider

Court-annexed mediation under Section 3(e) is mediation at centres established by a court or tribunal.

Mediated settlement agreement (Sections 19(1), 19(2))

Written agreement + resulting from mediation + authenticated by mediator + signed by parties

Void agreements under the Indian Contract Act, 1872 are not lawful settlement agreements. Terms may extend beyond the disputes referred.

Mediator's duties (Section 15)

Independent, neutral, impartial; objectivity and fairness; protect voluntariness, confidentiality, self-determination

Not bound by the CPC, 1908 or the Indian Evidence Act, 1872.

Party (Section 3(s))

Party = party to a mediation agreement or proceeding whose agreement or consent is necessary to resolve the dispute, including successors

Participants such as advisers, advocates and experts are not parties (Section 3(r)).

Mediation agreement (s 4)

Written + by or between parties (and those claiming through them) + to submit all or certain disputes, present or future

Can be a clause in a contract or a separate agreement; may be made before or after the dispute arises.

Agreement is 'in writing' (s 4(3))

Signed document, OR exchange of letters/electronic communications, OR pleadings where one party alleges it and the other does not deny

Learn all three limbs.

Pre-litigation mediation (s 5(1))

Voluntary + mutual consent + before filing a civil or commercial suit; agreement not necessary

Specified Value commercial disputes follow section 12A of the Commercial Courts Act, 2015.

Who conducts it (s 5(3))

Unless parties agree otherwise: mediator registered with the Council, or empanelled by a court-annexed mediation centre, or by a Legal Services Authority, or by a recognised mediation service provider

Four categories.

Tribunals (s 5(2))

Applies to tribunals notified by the Central or State Government

Not all tribunals automatically.

Motor accident claims (s 5(6) to (8))

If no settlement under section 149 of the Motor Vehicles Act, 1988, Claims Tribunal shall refer parties to mediation

Settlement goes to the Tribunal for consideration; non-settlement report goes back for adjudication.

Matters not fit (s 6)

No mediation for matters in the First Schedule

Compoundable offences may be referred by a court; the outcome is not a decree under s 27(2).

Court referral (s 7)

Court or tribunal may refer parties at any stage; may pass interim orders; no obligation to settle

Applies even if section 5 mediation failed.

Commencement (s 14)

(a) Existing agreement: date the other party receives notice. (b)(i) Mediator of parties' choice: date mediator consents. (b)(ii) Application to a mediation service provider: date a mediator is appointed

Three triggers.

Challenge to settlement (s 28)

Grounds: fraud, corruption, impersonation, matter not fit under s 6. Time: 90 days from receiving copy under s 19(3), plus a further 90 days on sufficient cause

Grounds are exhaustive ('only').

Conduct of mediation (section 15(1))

Process conducted in the manner as may be specified

Detailed manner is left to regulations, which the Council makes under sections 38(d) and 52(2)(b).

Mediator's stance (section 15(2) and (3))

Independent + neutral + impartial; guided by objectivity and fairness; protects voluntariness, confidentiality and self-determination

Learn the three protected values by heart. They are the favourite short-answer point.

Meetings (section 15(4))

Mediator may meet parties or participants jointly or separately, as frequently as deemed fit

Meetings are for convening the mediation and, during it, for orderly and timely conduct and to maintain integrity.

Procedural law (section 15(5))

Mediator not bound by CPC, 1908 or Indian Evidence Act, 1872

This does not remove the duty of fairness. It only removes formal procedure and evidence rules.

Language (section 15(6))

Mediator, with consent of parties, decides the language(s)

Parties' consent is needed.

Time limit (section 18)

120 days from date fixed for first appearance; extension by agreement of parties up to a further 60 days

The extension must be agreed by the parties and cannot exceed 60 days.

Appointment (section 8)

Parties agree on mediator; otherwise apply to a mediation service provider, which appoints within 7 days

A person appointed as agreed must communicate willingness within 7 days of receiving the communication of appointment.

Commencement (section 14)

(a) Existing mediation agreement: date a party receives notice; (b)(i) mediator of parties' choice: date mediator consents; (b)(ii) application to a provider: date of appointment of mediator

Commencement date depends on how the mediation began.

Termination (section 24)

Signing and authentication of settlement agreement; mediator's written declaration; party's written opt-out; expiry of section 18 time limit

Four modes, each on a specific date.

Appointment of mediator (Section 8)

Parties agree → else apply to mediation service provider → provider appoints within 7 days

The person named by the parties must communicate willingness within 7 days of receiving the communication of appointment. If parties cannot agree or the agreed person refuses, the provider appoints from its panel, with that person's consent.

Disclosure by mediator (Section 10)

Written disclosure before mediation + without delay for new conflicts during mediation

Parties may waive objection only if all of them say so in writing. Otherwise a party wanting replacement applies to the service provider (institutional) or terminates the mandate itself (other mediation).

Confidential matters (Section 22(1))

Admissions, opinions, suggestions, promises, proposals, apologies; willingness to accept proposals; documents prepared solely for mediation; any other mediation communication

Binds mediator, service provider, parties and participants.

No recording and no reliance (Section 22(2), (3))

No audio or video recording; no reliance as evidence before any court or tribunal, including an arbitral tribunal

Applies to in-person and online mediation.

Exceptions (Sections 22(4), 23)

General anonymised information for research, reporting or training; misconduct or malpractice claims against the mediator; offence threats; domestic violence or child abuse; imminent threat to public health or safety

Section 22 also does not apply to the settlement agreement where disclosure is needed for registration, enforcement or challenge.

Mediated settlement agreement (Section 19)

Written + signed by parties + authenticated by mediator

Terms may go beyond the disputes referred. An agreement void under the Indian Contract Act, 1872 is not a lawful settlement agreement. It may cover some or all disputes and some or all parties.

Submission of agreement (Section 19(3))

Institutional: mediator authenticates and forwards to provider with signed covering letter and gives copy to parties. Other cases: mediator authenticates and gives copy to all parties

This is subject to Section 26.

Registration (Section 20)

Optional; within 180 days of receipt of authenticated copy; later on payment of specified fee

Done with an Authority under the Legal Services Authorities Act, 1987 or a body notified by the Central Government, which issues a unique registration number. Court or tribunal referred mediation settlements, Lok Adalat awards and Permanent Lok Adalat final awards are excluded.

Enforcement (Section 27)

Final and binding; enforced under the Code of Civil Procedure, 1908 as if a judgment or decree

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

Challenge (Section 28)

Grounds: fraud, corruption, impersonation, or mediation in disputes not fit for mediation under Section 6. Time: 90 days from receipt of copy under Section 19(3), plus a further 90 days for sufficient cause

Application goes to the court or tribunal of competent jurisdiction.

Meaning of mediation service provider (s 40(1))

(a) recognised body + (b) Legal Services Authority + (c) court-annexed mediation centre + (d) body notified by Central Government

Clauses (b), (c) and (d) are deemed recognised by the Council. Clause (a) needs recognition.

Recognition (s 40(2))

Recognition by the Council in the manner specified

Manner of recognition is a regulation-making matter under section 52(2)(o).

Establishment of Council (s 31)

Mediation Council of India = body corporate, perpetual succession, common seal, head office at Delhi

Established by the Central Government by notification. Head office may be elsewhere if notified.

Composition of Council (s 32(1))

Chairperson + Members under (b) and (c) + 2 ex officio Members (Legal Affairs, Expenditure) + CEO as Member-Secretary + 1 Part-Time Member from commerce and industry

The part-time Member is chosen by the Central Government.

Term of Members (s 32(2))

4 years; eligible for re-appointment; age limit 70 (Chairperson), 67 (other Members)

Applies to Members other than ex officio Members. If the Chairperson is part-time, at least one Member under (b) or (c) must be full-time.

Functions of service providers (s 41)

Accredit mediators and keep panel; provide mediators; give facilities and secretarial help; promote ethics; facilitate registration of settlement agreements under s 20; other specified functions

Six functions, (a) to (f).

Regulation-making (s 52)

Council, with previous approval of Central Government, by notification

Regulations must be consistent with the Act and rules.

Consent requirement

Online mediation = written consent of the parties + electronic means (Section 30(1))

Consent must be in writing. It can be given at any stage of mediation, and pre-litigation mediation is also covered.

Illustrative tools

Encrypted email, secure chat rooms, video or audio conferencing, "but not limited to"

The list is not exhaustive. Other secure electronic means can qualify.

Process

Manner of online mediation = as specified (Section 30(2))

"Specified" means by regulations of the Mediation Council of India (Section 3(y)); see Section 52(2)(g).

Safeguards

Integrity of proceedings + confidentiality, at all times (Section 30(3))

The mediator may take such appropriate steps as he deems fit.

Confidentiality of communications

Online mediation communications must ensure confidentiality (Section 30(4))

Applies subject to the other provisions of the Act.

Place of online mediation

Online mediation by mutual consent is allowed (Section 13 proviso); deemed within jurisdiction for enforcement, challenge and registration

This stops jurisdiction disputes about where an online session took place.

Section 51 - Rules

Central Government + notification = rules to carry out the Act

Covers Members' salaries and terms (s. 32(3)), Part-Time Member allowances (s. 32(4)), accounts form (s. 46(1)) and any other prescribed matter.

Section 52 - Regulations

Council + previous approval of Central Government + notification = regulations

Must be consistent with the Act and the rules. Examples: conduct of mediation, mediator ethics, online mediation, registration of settlement agreements.

Section 57 - Transitory provision

Existing court-annexed mediation rules continue until regulations under s. 15(1) are made; they also continue for pending court-annexed mediations

Applies only to court-annexed mediation rules, not to all mediation.

Section 1 - Commencement

Date notified by Central Government; different dates for different provisions

Ss. 1, 3, 26, 31-38, 45-47, 50-54 and 56-57 were brought into force on 9 October 2023.

Section 2 - Application

Mediation conducted in India AND any one of: parties in India / agreement chooses the Act / international mediation / government party in a commercial dispute / other notified dispute

Read it as a threshold (mediation in India) plus alternative triggers.

Section 53 - Laying

Laid before each House of Parliament for 30 days in total, in one or more successive sessions

Both Houses may modify, or agree it should not be made; the effect is prospective only.

Section 54 - Removal of difficulties

Order by Central Government; not after 5 years from commencement; laid before Parliament

The order must not be inconsistent with the Act.

Quick revision

• Mediation: parties try to reach an amicable settlement with a third person, the mediator, who has no authority to impose a settlement.
• Mediation includes pre-litigation, online, community mediation and conciliation, whatever the name used.
• Pre-litigation mediation under Section 5 is voluntary and by mutual consent, before filing a civil or commercial suit or proceeding.
• Commercial disputes of Specified Value follow Section 12A of the Commercial Courts Act, 2015 for pre-litigation mediation.
• Unless the parties agree otherwise, pre-litigation mediation is conducted by a mediator registered with the Council, or empanelled by a court-annexed mediation centre, a Legal Services Authority, or a recognised mediation service provider.
• Under Section 15, the mediator acts in an independent, neutral and impartial manner and is guided by objectivity and fairness.
• The mediator must protect voluntariness, confidentiality and self-determination of the parties.
• The mediator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.
• The mediator may meet parties jointly or separately, and fixes the language with the consent of the parties.
• A mediated settlement agreement is in writing, signed by the parties and authenticated by the mediator (Section 19).
• Online mediation needs the written consent of the parties and must keep integrity and confidentiality (Section 30).
• The Council may make regulations with the previous approval of the Central Government (Section 52).

Common mistakes

• Saying the mediator can decide or pass an award. Fix: Remember that the mediator has no authority to impose a settlement. Only the parties decide.
• Treating conciliation as a separate process outside the Mediation Act. Fix: Section 3(h) of the Mediation Act includes conciliation within mediation for this Act. Mention both statutes.
• Writing that pre-litigation mediation is mandatory for every civil suit. Fix: Section 5(1) says 'may voluntarily and with mutual consent'. Only Specified Value commercial disputes follow section 12A.
• Saying a mediation agreement is needed before pre-litigation mediation. Fix: Section 5(1) says 'whether any mediation agreement exists or not'.
• Stating the time limit as 180 days from the start. Fix: Say 120 days from the date fixed for the first appearance before the mediator, extendable by agreement for a further period not exceeding 60 days.
• Saying the mediator must follow the CPC and the Evidence Act. Fix: Section 15(5) says the mediator is not bound by either. Fairness and the stated principles still apply.
• Saying registration of the mediated settlement agreement is compulsory. Fix: Section 20 says registration is at the option of parties and is for record. Enforceability under Section 27 comes from signing and authentication, and registration does not affect it.
• Treating all mediation communications as protected without exception. Fix: Always list the exceptions: mediator misconduct claims, offence threats, domestic violence or child abuse, imminent public threat, anonymised research data, and disclosure of the agreement for registration, enforcement or challenge.
• Saying every mediation service provider must apply to the Council for recognition. Fix: Write that bodies under clauses (b), (c) and (d) are deemed recognised. Only clause (a) bodies need recognition.
• Mixing up section 38 (Council functions) with section 41 (provider functions). Fix: Remember: the Council regulates, recognises and keeps the electronic depository. Providers accredit mediators, supply facilities and facilitate registration of settlement agreements.

Exam tips

• Quote the definition from Section 3 almost word for word. Examiners reward accurate wording.
• In distinction questions, use a two-column comparison written in bullets, with at least four heads.
• In case-based questions, name the provision first, apply the facts, then conclude.
• Cite a section number only when you are sure of it. Otherwise state the rule in plain words.
• Link Section 19 with the authentication and signature steps whenever a settlement agreement appears.
• Quote the key words of section 5(1): 'voluntarily and with mutual consent' and 'whether any mediation agreement exists or not'.
• Write the section number only for provisions you are sure of: 3, 4, 5, 6, 7, 14, 19 and 28 are given in the official text.
• In case questions, follow the order: provision, facts, conclusion.