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

Neha mediated a dispute between Orion Pharma and Pavan Distributors under the Mediation Act, 2023, and no settlement resulted. Orion now commences arbitration on the same dispute and proposes Neha as arbitrator, and Pavan wants to call her as a witness. What is the position?

Neha cannot act as arbitrator in respect of the dispute she mediated, and she cannot be presented by the parties as a witness in any arbitral or judicial proceeding. The Act provides no exception based on consent, so both proposals are barred.

  1. ANeha may act as arbitrator if both parties consent in writing, but cannot be a witness
  2. BNeha may be a witness but cannot be arbitrator
  3. CNeha may act as arbitrator and may also be called as a witness
  4. DNeha shall not act as arbitrator in respect of that dispute and shall not be presented as a witness in any arbitral or judicial proceedingCorrect

Explanation

Section 17 bars a mediator from acting as an arbitrator, or as representative or counsel of a party, in any arbitral or judicial proceeding on the dispute that was the subject of mediation. It also bars parties from presenting the mediator as a witness. No consent exception exists in the text.

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