Delhi High Court Mediation Rules
Mediation is of two types – court-annexed mediation and privately arranged mediation. Certain types of cases such as family matters and motor vehicle accident cases are, as a matter of default, referred by Courts to mediation first (court-annexed mediation). This reduces the workload of courts and also gives opportunity to parties to arrive at an amicable settlement. The Code of Civil Procedure gives courts the power to explore mediation in all civil cases.
For example, refer to Section 89(1) of the Code of Civil Procedure (CPC):
Settlement of disputes outside the Court: (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for:
- a) arbitration;
- b) conciliation;
- c) judicial settlement including settlement through Lok Adalat; or
- d) mediation
In different states, high courts have attached mediation centres which handle these matters.
At the same time, in commercial transactions, parties may also incorporate mediation as one of the dispute resolution mechanisms, whereby they will first try to resolve a dispute by mediation before going to court. They could use the support of institutions such as London Court of International Arbitration or LCIA (arbitration institutions also provide mediation services).
In either situation, the role of a Mediator is very different from that of a judge or an arbitrator – his or her role is to facilitate, but he or she cannot issue a binding order or force parties to arrive at a binding conclusion.
In this article we will explore these issues from the perspective of the Delhi High Court’s Mediation and Conciliation Rules, 2004. These rules get triggered only through the CPC, that is, there must be a civil suit or proceeding initiated before the court. Parties cannot themselves incorporate provisions to refer disputes to court-annexed mediation centres.
Mediation and Conciliation Rules, 2004
The Mediation and Conciliation Rules, 2004 framed by the Delhi High Court were brought into effect on 11.08.2005 under the powers enshrined in Order X and Clause(d) of subsection (2) of Section 89 of Civil Procedure Code, 1908 in order to appoint a Mediator/Conciliator and lay down the process involved in suitable cases.
What kinds of matters / disputes can be referred to mediation / conciliation?
Under the said rules, Rule 1 lays down that any mediation as referred in a suit or proceedings pending before the Delhi High Court, any other subordinate court or Tribunal can be referred to the Delhi High Court Mediation & Conciliation Centre and will be governed by the said rules. This will apply to civil cases (see Section 89 of the CPC above).
At what stage of the legal proceeding can a reference be made to mediation/conciliation? Who makes the reference?
The reference to Delhi High Court Mediation & Conciliation Centre shall be made by the concerned court or tribunal if the suit or proceeding is pending before the concerned court i.e. Delhi High Court or any subordinate court or Tribunal under Rule 1.
How is the Mediator / Conciliator appointed? What kind of freedom do the parties have to appoint a Mediator / Conciliator of their choice?
As per Rule 2, parties can agree on a mediator from the people listed on the panel of the centre, but if they fail to do so, the court shall appoint a mediator or conciliator. The kind of people who can be on the panel are retired judges, legal practitioners and other experts having 15 years’ or more of standing.
People who are insolvent or against whom criminal charges for offences involving moral turpitude are pending, disciplinary proceedings are pending, persons interested in the outcome of the dispute and legal practitioners appearing for the parties are disqualified as per Rule 5.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.