CS Professional · Arbitration, Mediation and Conciliation

Various Modes and Scope of Mediation, Including Its Role in Other ADR Domains

This chapter covers how mediation is conducted (court-annexed, institutional, ad hoc), where the Mediation Act, 2023 applies, mandatory pre-institution mediation under Section 12A of the Commercial Courts Act, the mediator's facilitative role (Section 16), limits on the mediator in other proceedings (Section 17) and cost sharing (Section 25). Answer using provision, facts, conclusion.

What this chapter covers

This chapter sets out the practical map of mediation in India. You first learn the modes: court-annexed mediation, institutional mediation and ad hoc mediation. The Mediation Act, 2023 defines court-annexed mediation as mediation, including pre-litigation mediation, conducted at mediation centres established by a court or tribunal. Institutional mediation is mediation under the aegis of a mediation service provider. Mediation that is neither of these, where the parties arrange the mediator themselves, is usually called ad hoc.

The second block deals with pre-litigation mediation. Section 5 of the Mediation Act lets parties voluntarily try mediation before filing a civil or commercial suit. For commercial disputes of Specified Value, it points you to Section 12A of the Commercial Courts Act, 2015, where pre-institution mediation is a precondition to suing unless urgent interim relief is contemplated. You must be able to read both together.

The last block covers the mediator: what the mediator does and does not do (Section 16), the bar on acting as arbitrator, counsel or witness in later proceedings on the same dispute (Section 17), and who pays (Section 25). This chapter links to the rest of the paper: it supports the mediation process, the mediated settlement agreement and the conciliation and arbitration chapters, where you compare the roles of a mediator, conciliator and arbitrator.

Mediation carries 30 of the 100 marks in this paper, and this chapter is the base for the rest of that part. The provisions are short and precise, so examiners set case-based questions where you must apply a specific rule, such as whether a suit can be filed without mediation, or whether a mediator can later appear as counsel. If you know the exact wording and conditions, these are scoring questions. Loose, general answers about 'ADR is good' earn little.

Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains: topics in the order to study them

1Scope and Applicability of the Mediation Act, 2023Start here to learn the key definitions, such as mediation, mediator, court-annexed, institutional and international mediation, that every other topic relies on.
2Modes of Mediation: Court-Annexed, Institutional and Ad HocOnce the definitions are clear, you can separate the modes and say who runs each one.
3Pre-Institution Mediation under Section 12A Commercial Courts ActThis is the most testable provision, and it links to Section 5 of the Mediation Act, so study it after the modes and scope.
4Role and Duties of the Mediator (Section 16)With the process in place, you can now study what the mediator actually does and must disclose.
5Role of Mediation in Other Proceedings (Section 17)This builds on Section 16 by showing the limits on the mediator after the mediation, such as acting as arbitrator, counsel or witness.
6Cost of Mediation (Section 25)A short rule, so finish with it and revise it alongside the others.

How to prepare Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains

This chapter is provision-driven, so your preparation should be built around exact wording and application to facts.

Read the definitions in Section 3 first and write the key ones in your own words: mediation, mediator, court-annexed mediation, institutional mediation, pre-litigation mediation.
Make a one-page comparison of court-annexed, institutional and ad hoc mediation: who conducts it, where, and under whose aegis.
Learn Section 12A in order: the condition (no urgent interim relief), the authority (Legal Services Authorities), the time limit of three months, the extension of two months with consent, the exclusion of the period for limitation, and the settlement's status as an arbitral award on agreed terms.
Link Section 12A to the proviso to Section 5(1) of the Mediation Act so you can explain how the two work together for commercial disputes of Specified Value.
Learn Sections 16, 17 and 25 almost word for word: the mediator facilitates and cannot impose, cannot act as arbitrator, representative or counsel, cannot be presented as a witness, and costs are shared equally unless parties agree otherwise.
Practise two or three short case problems in the format of provision, analysis of facts and conclusion, and time yourself.
Revise with a short list of conditions and time limits the day before the exam.

Common mistakes in Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains

Saying pre-institution mediation is compulsory for every suit.
Fix: State that it applies to a commercial suit that does not contemplate urgent interim relief, and that Section 5's voluntary mediation is separate.
Mixing up Section 5 of the Mediation Act with Section 12A of the Commercial Courts Act.
Fix: Remember that Section 5 is voluntary in general, but its proviso routes commercial disputes of Specified Value to Section 12A and its rules.
Writing the wrong time limits or leaving out the extension and limitation exclusion.
Fix: Write all three together: three months, a further two months with consent, and the mediation period excluded from limitation.
Describing the mediator as someone who decides or recommends the outcome.
Fix: Use the Section 16 language: the mediator facilitates voluntary resolution and cannot impose a settlement or assure one.
Applying Section 17 too narrowly or too broadly in case questions.
Fix: Check whether the later proceeding concerns the dispute that was the subject of the mediation, then apply the bar on acting as arbitrator, representative, counsel or witness.
Assuming one party pays all costs, or that costs are fixed by the mediator.
Fix: State the default under Section 25(2): equal sharing unless the parties agree otherwise, covering the mediator's fees and the provider's charges.

Last-day revision: Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains

Mediation: a process where parties try to settle with a third person (mediator) who cannot impose a settlement.
Court-annexed mediation: mediation, including pre-litigation, at centres established by a court or tribunal.
Institutional mediation: mediation under the aegis of a mediation service provider.
Section 5 of the Mediation Act: parties may voluntarily try pre-litigation mediation before filing a civil or commercial suit.
Section 12A, Commercial Courts Act: a suit with no urgent interim relief cannot be instituted until pre-institution mediation is exhausted.
Section 12A time limit: three months from the plaintiff's application, extendable by two months with the parties' consent.
Time spent in pre-institution mediation is not counted for limitation under the Limitation Act, 1963.
A Section 12A settlement is written, signed by the parties and the mediator, and has the status of an arbitral award on agreed terms.
Section 16: the mediator facilitates, does not impose a settlement and must tell the parties so expressly.
Section 17: the mediator cannot act as arbitrator or as representative or counsel, and cannot be presented as a witness, in proceedings on the same dispute.
Section 25: unless the parties agree otherwise, all costs, including the mediator's fees and provider charges, are borne equally.

Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains practice questions

Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains: frequently asked questions

Is pre-institution mediation under Section 12A mandatory?

It is mandatory for a commercial suit that does not contemplate any urgent interim relief. The plaintiff must exhaust the remedy before instituting the suit, following the manner and procedure prescribed by rules. If urgent interim relief is contemplated, the bar does not apply in the same way.

How long can pre-institution mediation take?

The authority must complete the process within three months from the plaintiff's application. This can be extended by two more months with the consent of the parties. The time spent is not counted for limitation under the Limitation Act, 1963.

Can the mediator later act as arbitrator in the same dispute?

No. Section 17 bars the mediator from acting as an arbitrator, or as a representative or counsel of a party, in any arbitral or judicial proceeding about the dispute that was the subject of mediation. The mediator also cannot be presented by the parties as a witness.

Who bears the cost of mediation?

Under Section 25(2), unless the parties agree otherwise, all costs, including the mediator's fees and the mediation service provider's charges, are borne equally by the parties. The amount for mediation other than community mediation is as specified.

What is the status of a settlement under Section 12A?

The settlement must be written and signed by the parties and the mediator. It then has the same status and effect as an arbitral award on agreed terms under Section 30(4) of the Arbitration and Conciliation Act, 1996.