CENTRAL UNIVERSITY OF SOUTH BIHAR

NAAC Accredited ‘A’ Grade University

Established under the Central Universities Act, 2009

SCHOOL OF LAW AND GOVERNANCE

TOPIC: - ROLE OF MEDIATORS

Submitted to:-

Prof. Pawan Kumar Mishra

School of law and Governance

Submitted by:-

SHUBHAM SAURABH

CUSB1813125098

B.A.LL.B (H), Section- ‘B’

School of law and Governance

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 ACKNOWLEDGEMENT

I would like to express my earnest and deepest gratitude to, Prof. Pawan Kumar Mishra,
Faculty for Alternate Dispute Resolution System, for giving me this opportunity to do a
project on such a valuable topic of “ROLE OF MEDIATORS”.

I am grateful for the assistance, guidance and support that were extended during the course of
excellent research. I am also thankful to the college administration for providing the
resources necessary for the research work. I thank my parents and friends for their moral
support and love throughout my research work and project preparation. Above all I thank the
God Almighty for blessing me with the health and vitality to complete this project.

SHUBHAM SAURABH

CUSB1813125098

B.A.LL.B (H), Section- “B”

School of law and Governance

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 TABLE OF CONTENT

1. Introduction……………………………………………………….………05

2. Who can be appointed as mediator?............................................................06

3. Steps in the mediation process……………………………………………07

4. Role of Mediator………………………………………………………….12

4.1 Duty to Disclosure………………………………………………13

4.2 Mediator Privilege………………………………………………14

5. Role of mediator- the facilitative / evaluative dichotomy…………………14

6. Conclusion…………………………………………………………………15

7. Bibliography……………………………………………………………….16

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“I realized that the true function of a lawyer was to unite parties...The lesson was so
indelibly burnt into me that a large part of my time during the twenty years of my practice as
a lawyer was occupied in bringing about the private compromise of hundreds of cases. I lost
nothing thereby not even money; certainly not my soul.”

M.K. Gandhi

I. INTRODUCTION

A novel course of action is required to complement the traditional judicial system in order to
reduce the heavy burden of litigation without compromising with the standard of equity,
justice and good conscience. Alternative Dispute Resolution (ADR) is a tool to achieve the
aforementioned goal of speedy, equitable and adequate justice. This becomes pertinent
because a traditional approach has not been able to solve the chronic problem of delayed
justice. In a welfare state like India, social justice occupies a preeminent position and may be
regarded even more important than economic equality. ADR is such a creative approach,
which will help in achieving social justice by securing faster and adequate justice for the
masses so that the true meaning of Justice is realized.

The Indian judicial system is currently clutched with many pitfalls e.g. increasing pendency,
lack of sufficient resources, minuscule multiplication of number of courts and large vacancies
in these institutions.1

Constitution of India guarantees delivery of justice within a reasonable time as a fundamental

right and the very basis of fair trial. 2 But this right has come under severe strain on account of
this huge backlog and delay. Dr. Manmohan Singh, (Former Prime Minister of India) in his
address to the Conference of Chief Ministers and Chief Justices had expressed his concern in
overcoming the problem of arrears. He said "...The mammoth number of pending cases
cannot be allowed to disillusion or dishearten us. It has to spur us to even higher peaks of
achievement and bring out the best from every stakeholder, acting in coordination to
progressively overcome this great challenge."

1
Bibek Debroy, justice Delivery in India- A Snapshot of Problems and Reforms, ISAS Working Paper No. 47,
July 2008.
2
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, 1979 AIR 1369 (1979) has held that “ speedy
trail is a part of the fundamental right guaranteed under Article 21.”

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ADR mechanisms are now globally accepted solution that can actually reduce the burden of
courts and ensuring speedy delivery of justice to the parties. 3 An effectively designed ADR
system can assist civil courts to refer cases not to be tried by them but settled through ADR.
On similar line Justice S. B. Sinha (Former Judge of Supreme Court of India) has mentioned
that "the world has experienced that adversarial litigation is not the only means of resolving
disputes. Congestion in court rooms, lack of manpower and resources in addition with delay,
cost, and procedure speak out the need of better options, approaches and avenues.
Alternative Dispute Resolution mechanism is a click to that option.”4

II. WHO CAN BE APPOINTED AS MEDIATOR?

Parties are free to agree on the appointment of the mediator. According to the ADR
Mediation Rules, 2003 following persons shall be treated as qualified and eligible for being
enlisted in the panel of mediators namely:

 Retired Judges of the Supreme Court of India;

 Retired Judges of the High Courts;
 Retired District and Sessions Judges or retired Judges of the City Civil Court or
Courts of equivalent status;
 Legal practioners with at least fifteen years standing at the Bar at the level of the
Supreme Court or the High Court; or the District Courts or Courts of equivalent
status.5

Every High Court is required to prepare a panel of qualified mediator and publish the same.
The list should also specify the qualification of each person empanelled as qualified mediator.
The ADR Mediation Rules, 2003 further specify who are ineligible to be a mediator and
provides that

(i) Any person who has been adjudged as insolvent or persons

a) against whom criminal charges involving moral turpitude are framed by a criminal
court and are pending, or
b) Persons who have been convicted by a criminal court for offence involving moral
turpitude.
3
Sarvesh Chandra, ADR: Is Conciliation the Best Choice, p. 83
4
Hon’ble Justice S.B. Sinha, Judge Supreme Court of India, ADR and Access to Justice: Issues and
Perspectives.
5
Rule 2 of ADR Mediation Rule, 2003

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(ii) Any person against whom disciplinary proceedings have been initiated by the appropriate
disciplinary authority which are pending or have resulted in a punishment.

(iii) Any person who is interested or connected with the subject-matter of dispute or is related
to any one of the parties or to those who represent them, unless such objection is waived by
all the parties in writing.

(iv) Any legal practitioner who has or is appearing for any of the parties in the suit or in any
other suit or proceedings.6

Although ADR Mediation Rules 2003 are not applicable in case of voluntary mediation
however it can be used as a guideline for appoint of mediators. Also a mediation institution
maintain a closed pool or list of mediators and often exist as a form of cooperative or
partnership for the benefit of the mediators included in the pool. Mediation institutions,
because of their desire to promote the practices of the mediators associated with them, are
generally happy to assist parties by providing lists of suitable candidates, often at no charge.
The advantages of this approach, particularly for domestic disputes, is that the institution
regulates the quality of its pool and will likely have the benefit of experiences and party
feedback that it can use to help parties find the mediator most suitable for their desire.

III. ROLE OF MEDIATOR

The primary objective of a mediator is to facilitate the parties in arriving to an agreed

settlement. The mediator's role has traditionally been looked upon as assisting parties to
overcome their barriers to resolution by facilitating communication between them. A
mediator shall attempt to facilitate voluntary resolution of the dispute 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, emphasizing that is the responsibility of the parties
to take decision which effects them. However he generally viewed to not impose any terms of
settlement on the parties. But contrary this a conciliator plays a more active role. A
conciliator also assists the parties in an independent and impartial manner in their attempt to
reach an amicable settlement of their dispute.7 However conciliator may, at any stage of the
conciliation proceedings make proposals for a settlement of the dispute. Such proposals need

6
Rule 5 of ADR Mediation Rules, 2003
7
Section 67(1) Arbitration and Conciliation Act 1996.

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not be in writing and need not be accompanied by a statement of the reasons. 8 This is the
significant difference between a mediator and a conciliator. The mediator only facilitates in
arriving a decision to resolve disputes and that he will not and cannot impose any settlement
nor does the mediator give any warranty that the mediation will result in a settlement.9

Mediators are responsible for conducting the mediation process and are subject to duties and
obligations. The general duties of a mediator can be summarized as follows:

(1) Neutrality of ADR neutrals (including the duty to make full disclosure in advance as to
the qualifications, prior experience, and compensation to insure against conflicts of interest,
and not to impose the neutral's views on the parties nor e coercion or undue influence in
attempting to obtain a resolution of the dispute).

(2) Professional responsibilities (including maintaining the integrity of the ADR process,
maintenance of skills and training, and only taking cases within one's competency level).

(3) Advance notice to clients of relevant matters (including the ADR process of techniques
used and enforceability of agreement).

(4) Avoidance of impropriety (including use of information obtained in the process and
relationships with referral sources).

(5) Duty and scope of confidentiality.

(6) Avoidance as to professional conduct (including such matters as limitations on

advertising).

(7) Fair and equitable fee structure, fully disclosed to clients in advance.

III (I) Duty to Disclosure

Duties of disclosure impose a continuing obligation on mediators to communicate to the

parties’ potential conflicts of interest and grounds for bias in relation to the mediation
process. Potential conflicts of interest may arise where the mediator has at any time prior to
the mediation provided legal, counselling or other services to, or has had any social or
professional relationship with, or financial interest in, any of the participants. In certain
circumstances disclosure requirements may also require disclosure of mediators'
qualifications and other matters related to their competency. The disclosure requirements are
8
Section 67(4) Arbitration and Conciliation Act, 1996
9
Rule 15 of ADR Mediation Rules, 2003

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designed to enhance self-determination by assisting parties to make fully-informed choices in
relation to selection of their mediator, to remove doubts about the fairness of the process and
the persons conducting it, and finally to establish ‘a visible, fundamental and familiar
safeguard of public protection’.

III (II) Mediator Privilege10

According to the Arbitration and Conciliation Act 1996 and ADR Mediation Rules 2003 that
parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether
or not such proceedings relate to the dispute that is the subject of the conciliation
proceedings: -

a) Views expressed or suggestions made by the other party in respect of a possible

settlement of the dispute;
b) Admission made by the other party in the course of the conciliation proceedings;
c) Proposals made by the conciliator;
d) The fact that the other party had indicated his willingness to accept a proposal for
settlement made by the conciliator.

ADR Mediation Rules 2004 further gives immunity to mediators that no mediator shall be
held liable for anything bona file done or omitted to be done by him during the mediation
proceeding for civil or criminal action nor shall he be summoned by any party to the suit to
appear in a Court of law to testify in regard to information received by him or action taken by
him or in respect of drafts or records prepared by him or shown to him during the mediation
proceedings.

IV. ROLE OF MEDIATOR- THE FACILITATIVE / EVALUATIVE DICHOTOMY

The terms "facilitative" and "evaluative" mediation represent opposite ends of one dimension
of a grid intended to illustrate some variations in mediation practice. Mediators using a
facilitative style focus on eliciting the principals' opinions and refrain from pressing their own
opinions about preferable settlement options. Mediators using an evaluative style develop
their own opinions about preferable settlement options and may try to influence principals to
accept them. The terms "facilitation" and "evaluation" art also interchangeably used with
concepts of "settlement" and party "empowerment in mediation literature. It is observed that
mediators whose primary goal is empowerment would most often use facilitative techniques

10
Supra at 7

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and that mediators who are primarily oriented to settlement would be more likely to use
evaluative techniques. Using a facilitative approach is a good thing for mediators to do for
many of the reasons that it emphasizes on the principals' abilities to do their own critical
evaluation and creative problem-solving. However evaluation is sometimes just what is
needed to help parties seriously confront and resolve the issues in their dispute. It is observed
by an eminent scholar that “the facilitation-evaluation debate may be contributing to a
maturation of the mediation field to deal with a range of issues that are not necessarily related
to this particular debate. If so, this debate may have contributed by causing reactions against
assumptions based on rigid false dichotomies propounded with intense partisan passion as
well as by increasing appreciation of the complexities of mediation practice and the contexts
in which mediation is used.”11

V. CONCLUSION

Mediation as a form of alternative dispute resolution is imparting justice in a cost effective

manner in the present justice delivery system. Mediation is purely based on amicably
settlement of dispute and neutral third person intervenes in the settlement process on the basis
of neutrality, confidentiality, flexibility. With respect to the process Mediation is different
from adversarial system. In adversarial justice system both the parties try to argue and put
evidences against each other whereas in the case of pacific settlement instead of adjudication
or deciding right and wrong third-party endeavours to resolve the dispute and resume the
cordial relationship between the parties.

The primary objective of a mediator is to facilitate the parties in arriving to an agreed

settlement. The mediator's role has traditionally been looked upon as assisting parties to
overcome their barriers to resolution by facilitating communication between them. A
mediator shall attempt to facilitate voluntary resolution of the dispute 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, emphasizing that is the responsibility of the parties
to take decision which effects them.

11
John Lande, Toward More Sophisticated Mediation Theory, 2000 J. Disp. Resol. 321.

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VI. BIBLIOGRAPHY

BOOKS/ JOURNALS

1. John Lande, Toward More Sophisticated Mediation Theory, 2000 J. Disp.

Resol. 321
2. Law & Practice of Alternate Dispute Resolution in India (A detailed
Analysis), Aniraban Chakraborty, Lexis Nexis, 2nd Ed. 2016
3. Bibek Debroy, justice Delivery in India- A Snapshot of Problems and
Reforms, ISAS Working Paper No. 47, July 2008
4. Sarvesh Chandra, ADR: Is Conciliation the Best Choice, p. 83
5. Hon’ble Justice S.B. Sinha, Judge Supreme Court of India, ADR and Access
to Justice: Issues and Perspectives.

Websites/Links

1. https://www.scconline.com/Members/Statutes.aspx
2. https://www.scconline.com/Members/Statutes.aspx

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