How is this different from private institutional mediation?
In a private institution mediation, parties enter into an agreement to refer the disputes to the private institutions like the London School of International Arbitration (LCIA), etc. which offer institutionalized professional mediation services. It is at pre-litigation stage and the procedure is as per the framed rules of the institutions, whereas under the Mediation and Conciliation Rules, 2004, the High Court shall refer the matters to the Delhi Mediation Centre in case of suits or proceedings pending before it or any subordinate court.
Can the Mediator / Conciliator propose his or her own terms for the settlement or is it necessary that all the terms must be proposed by the parties? Can there be a combination of the parties’ terms and the Mediator / Conciliator suggestions?
As per Rule 10, parties may agree to the procedure of the mediation as laid down by the Mediator/Conciliator. However, if the parties do not agree to the said procedure, the Mediator, with a consensus of the parties, shall fix a timeline where all parties need to be present. The place shall be decided as prescribed by the High Court or District & Sessions Court. Under the rules, the parties shall also exchange a memorandum ten days (which may be curtailed at the discretion of the Mediator/Conciliator) before fixed sessions mentioning the issues in the dispute, their stand and any other relevant information necessary to adjudicate the dispute.
Can a Mediator impose a settlement?
A Mediator is expected to “facilitate the voluntary resolution of the dispute(s) by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute(s), emphasizing that it is the responsibility of the parties to take decisions which affect them; he shall not impose any terms of settlement on the parties.” However, he or she should also make parties understand his or her role as a facilitator and must explain that no settlement can be imposed and no assurance can be given that the mediation will result in a settlement. This is also an ethical responsibility of the Mediator. (Refer Rules 16, 17 and 27)
However, to what extent a Mediator can keep putting aside communicating the impression that he or she is imposing a settlement (or forcefully stating his or her personal opinions) is debatable. For example, consider family-related matters, in which everyone is likely to have an opinion, whether in favour of marriage or against it, in favour of a woman or against her, etc. In such cases, the parties may feel that the Mediator is opinionated, coercive or trying to impose his or her personal views on the parties.
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.