What can you do if you feel the Mediator is being coercive or imposing his or her personal views on your case?
It is strictly prohibited under Rule 16 and Rule 17 for a Mediator/Conciliator to force the parties about any decision or terms of settlement. If the case so arises, such aggrieved party can make an application to the concerned court which may result in the withdrawal of the Mediator/Conciliator under Rule 9. This would lead to appointment of another Mediator/Conciliator.
Further, unlike in arbitration or in a judicial proceeding where you will need to challenge the arbitrator, in mediation since it is a consensual process, you have the additional option to disagree with the Mediator and let the mediation fail.
There is no personal responsibility on any of the parties to have a successful mediation. Mediation can fail. Parties only have a duty to act in good faith, with the intention to settle the dispute (Rule 19). This does not mean that they are bound to take responsibility for a consensual outcome. If it doesn’t work, parties have an option to walk out. Further, a mediation lasts 90 days, and can be extended further by 30 days, but it is not necessary for parties or Mediator to necessary play the full 3 or 4-month duration out before concluding that it has failed.
It may not, however, be a prudent idea to not attend mediation proceedings at all – the other party or the Mediator can apply to the Court for suitable directions in that situation. That can lead to unpredictable outcomes. (Rule 13)
Consequences of a failed mediation and does your behavior during the mediation impact your court case?
What are the consequences of a failed mediation? Nothing – a failed mediation just goes to court. I have seen that there is a fear about what can happen if mediation fails, since the dispute will go back to court. Note that mediation proceedings are confidential, cannot be recorded and absolutely nothing that occurred there can be used in other proceedings (including when the matter goes to court).
The court proceeding will not begin from where the mediation left off, but from scratch. Any statement admitted by a party in mediation will not hold good in a court proceeding – the other other side will be asked to prove it independently. Any confidential documents supplied in the mediation cannot be used in the court proceeding.
Whether a party had accepted or not accepted a proposal in the mediation is irrelevant and any further suggestions will have to be freshly stated. Even during the mediation, there are strict rules to regulate the communication between a Mediator and the court. The Mediator can only communicate any information to which the parties have consented to send the court, failure of a party to attend proceedings, or about failure or success of the mediation proceedings. For example, where the proceeding fails, the Mediator will simply make a note that the mediation has failed and send it to the court. (See Rules 20 and 23)
How are costs borne in such situations? Is there a legal provision governing this?
The Court is empowered under Rule 26 to fix the fees of the Mediator/Conciliator to be borne by both the parties. It is suggested that a consolidated amount shall be deposited for each session or meeting and shall be divided equally, if there are more than two Mediators/Conciliators. All other expenses including administrative and ancillary cost, production of witnesses or experts shall be borne by the contesting parties. The Mediator/Conciliator is empowered to direct the parties to deposit 40% of the possible costs and expenses of the mediation before the commencement of the proceedings and shall direct the remaining 60% to be paid after the conclusion. If at any stage, either party refuses or abstains from depositing such costs, the Mediator/Conciliator can make an application to the court directing the party to pay, failing which the court shall be entitled to obtain such an amount as if there was a decree for the said amount.
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.