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CS Professional · Arbitration, Mediation and Conciliation · Various Modes and Scope of Mediation including Role of Mediation in other ADR Domains

In a mediation between Gupta Agro and Nilgiri Foods, the mediator Ms. Iyer opened by telling the parties that she would only help them reach their own decision. Gupta Agro's counsel insisted she also guarantee that a settlement would result. Under the Mediation Act, 2023, how should Ms. Iyer respond?

Ms. Iyer must decline. Under section 16(2) the mediator must expressly tell the parties she only facilitates a decision, will not impose any settlement and gives no assurance that mediation will end in a settlement. Her role is facilitative, not adjudicative.

  1. AGive the assurance, since it encourages settlement
  2. BGive the assurance only if both parties request it in writing
  3. CDecline, because the mediator must inform parties that she only facilitates and shall not impose any settlement nor assure that mediation may result in a settlementCorrect
  4. DDecide the dispute herself if no settlement emerges

Explanation

Section 16(2) requires the mediator to expressly inform the parties that she only facilitates a decision and shall not impose any settlement or give any assurance that mediation may result in a settlement. Writing or consent does not change this. Deciding the dispute herself would be imposing a result, contrary to the facilitative role in section 16(1).

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