Who Can Be a Mediator: Qualifications or Disqualifications?
(Mediation and Conciliation Rules, 2004)
Mediation is a voluntary, party centered and structured negotiation process where a neutral third party assist the parties in amicably resolving their dispute by using specialized negotiation techniques. This neutral third party actively participates in the negotiation process to evaluate the options and to find the acceptable terms of agreement. Hence, mediator has a vast role in the communication process and perform various duties to facilitate the parties towards the settlement. Therefore, for a successful mediation an experienced and specialized mediator is required to win the trust of the parties.
Rule 2 of The Mediation and Conciliation Rules, 2004 specifies that parties to a suit or other proceedings, may agree on the sole mediator or group of mediators for mediation between them. The parties may either appoint the mediators by their own or may appoint the mediator from the panel of mediators prepared by the High Court or the Session/District Courts under Rule 3 of the Mediation and Conciliation Rules, 2004. Therefore, autonomy to appoint the mediator is given to the parties.
The persons who may be empaneled as mediator under Rule 3 of Mediation and Conciliation Rules, 2004 by the Hight Court, Session/District Courts must have the following qualifications given under Rule 4 of the 2004 rules.
The following persons may be enlisted:
- Retired Judge of the Supreme Court of India
- Retired Judge of High Court
- Retired District and Session Judge
- Retired Officers of Delhi Higher Judicial Services
- District and Sessions Judge
- Officers of Delhi Higher Judicial Services
- Legal practitioner with at least 10 years standing at the bar at the level of the Supreme Court, High Court and District Court
- Expert or other professionals with at least fifteen years standing
- Persons who are themselves expert in the mediation
These are the qualifications which are required to be empaneled as a mediator. However, parties can exercise the autonomy given to them and appoint a mediation beyond the above qualifications. There are some disqualifications of a mediator set out in Rule 5 of The Mediation and Conciliation Rules, 2004. The following persons are disqualified to be empaneled as a mediator:
- Person adjudicated as insolvent
- Against whom criminal charges involving moral turpitude are framed by a criminal court and are pending
- Persons convicted by a criminal court for any offence involving moral turpitude
- Any person against whom disciplinary proceedings have been initiated which are pending or have resulted in a punishment
- Any person who is connected or interested in the subject matters of the dispute
- Any legal practitioner who is appearing for any of the parties in the suit
Clause (c) of Rule 3 also specifies that the consent of the person whose names are included in the panel must be obtained.
According to Clause (c) of Rule 2 of The Mediation and Conciliation Rules, 2004 the mediator(s) appointed by the parties need not necessarily be from the panel of mediators referred to in Rule 3 nor bear the qualifications referred to in Rule 4 but should not be a person who suffers from disqualifications referred to in Rule 5.
Hence, mediation is a party- centered negotiation process whereby the parties are free to appoint a mediator. Therefore, the qualifications are suggestive but the parties must adhere to the disqualification while deciding upon the mediator either from the panel of mediators or from beyond the panel.