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

Meera Textiles Ltd and Sundaram Dyers Pvt Ltd attempt mediation over a payment dispute and fail to settle. Sundaram then starts arbitration on the same dispute. Sundaram proposes that Mr. Iyer, who mediated the dispute, be appointed as the sole arbitrator since he knows the facts well. Under the Mediation Act, 2023, what is the position?

Mr. Iyer cannot act as arbitrator. The Mediation Act, 2023 prohibits a mediator from acting as an arbitrator in any arbitral or judicial proceeding about the dispute that was the subject of the mediation. The bar has no exception for party consent or failed mediation.

  1. AMr. Iyer may act as arbitrator if both parties consent in writing
  2. BMr. Iyer may act as arbitrator only if the mediation failed
  3. CMr. Iyer may act as arbitrator only for interim measures
  4. DMr. Iyer cannot act as arbitrator in respect of the dispute that was the subject of the mediationCorrect

Explanation

Section 17(a) bars a mediator from acting as an arbitrator in any arbitral or judicial proceeding concerning the dispute that was the subject matter of the mediation. The section carries no exception for consent or for failed mediation, so the options suggesting consent or failure of mediation as a cure are wrong.

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