Role of Referral Judge in Mediation
Judges who refers the case for settlement through any of the ADR methods are known as referral judges .
Since all the cases are not appropriate for mediation only the suitable cases should be referred for mediation.
The settlement through mediation is only possible if the suitable cases are referred by the referral judges.
Reference to ADR and Statutory requirements
Sec 89 and Order X Rule 1 A of CPC require the court to direct the parties to opt for any of the five modes of ADR and refer the case for Arbitration, Concillation, Judicial Settlement , LokAdalat or Mediation.
The referral judge is not required to make the terms of the settlement or to make them available for the parties for their observation.
The referral Judge only requires to acquaint himself with the facts of the case and the nature of the dispute between the parties and to make an objective assessment to the sutialbility of the case for the reference to ADR.
Stages of Reference
The ideal stage in the civil suits for mediation is immediately after the service of notice on the respondent or before filing of objections/ written statements by the respondent.
But the reference can be made at later stage of the case .
An order referring the dispute to ADR process may be passed only in the presence of parties or their authorized representatives.
Choice of cases
Order 1 Rule 8 of CPC includes , representatives suits which involves public interest.
Disputes relating to election , relating to public offence and case involving the grant for authority
Cases which normally form under ADR process are:-
Cases arising from sources relationship.
Cases including tortious liability and consumer disputes cases .
Under Sec 89 of CPC , the consent of all the parties to the suit is mandatory for referring the suit for the suit for arbitration.
However , the consent is not neccessary in case for Mediation, Lok Adalat or judicial settlement except in case for Concillation.
Despite that the parties still have the freedom to agree or not to agree for settlement during mediation.
Encouraging the parties for mediation
The referral judge encourages the parties for mediation , even though the parties are not interested , the referral judge try to ascertain the reason for such disinterest.
The referral judge shall explain the concept, process and the advantages of mediation to the parties.
The mediation process is initiated through referral order .An ideal referral order should contain among other things details like , name of the referral Judge , Case no. , name of the parties , date and year of the institution of the case , stage of trial, nature of the dispute , the next date of hearing before referral court, whether parties have consented for mediation , the date and time for the parties , the time limit for completion of mediation , name of the mediators, telephone numbers of the parties and their advocates.
Post mediation role of referral judge
Before considering the report of the mediator , the referral judge shall ensure the presence of the parties or their authorized representatives in the court.
If the dispute has been settled in mediation the referral judge should examine whether the agreement between the parties is lawful and enforceable . If not , then , it should be bring into the notice of both the parties and the referral judge should not consider the agreement. But , if the agreement is lawful and enforceable the judge should pass the consequential orders. If there lies any difficulty in implementing , the referral judge can modify or amend the terms of the settlement with the consent of both the parties.
If the dispute hasn't settled , then the court proceedings shall be continued in accordance with law . In order to maintain the confidentiality of the mediation the referal judge cannot ask the reason for non settlement from the mediator, lawyers or the parties.