How to become a Mediator

Mediation as an ADR method for dispute resolution

‘Mediation’ means the process by which a Mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by facilitating discussion between parties directly or by communicating with each other through the Mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties own responsibility for making decisions which affect them.

Mediation has been defined in the Cambridge Dictionary as "the process of talking to two separate people or groups involved in a disagreement to try to help them to agree or find a solution to their problems."

In better part of the Country Mediation still continues to ne a Court attached ADR Process which is primarily used for amicable settlement of Sub-judice Cases.

Concept of private Mediation has not gained popularity in India

The concept of private Mediation has somehow not picked up in India on account of non availablity of a method of ensuring enforceablity of Private Mediated Settlements.

The Court attached Mediations being carried out of permitted to be done by only such Advocates or Judges who have undergone 40 Hours intensive Mediation Training Course, as designed by the Mediation and Conciliation Project Committee, MCPC of Supreme Court of India.

Indian Institute of Mediation, IIMed are carrying out the 40 hours Mediation Training in India

Some institutions like Indian Institute of Mediation, IIMed are carrying out the 40 hours Training for Mediation but they instill and provide settlement skills to help Parties to a dispute aalso work as Conciliator arrive at an amicable settlement. Private Mediators can function as Conciliators under Arbitration and Conciliation Act, 1996. This will provide the necessary legitimacy for enforceablity of the Settlement Agreement.

Lately after promulgation of Commercial Courts Act, 2015 in order to leverage India's position in Ease of Doing Business (EoDB) a Concept of mandatory 90 days Pre-Institution Mediation was introduce in all Commercial Disputes by way Commercial Courts Pre-Institution Mediation Rules, 2018.

How ever it was provided that the Mediation shall be carried out by Mediation Centres run by Institutions functioning under Legal Services Authorities under Legal Service Authorities Act, 1987. For this purpose Notification of Legal Service Institutions for Pre Institution Mediation in Commercial Disputes, 2018 wa carried out apart from Section 12A of the Commercial Courts Act, 2015.

High Court of Delhi has drafted Mediation and Conciliation Rules, 2004

Rule 2 of The Delhi High Court's Mediation and Conciliation Rules, 2004 provides 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, the autonomy to appoint the mediator is given to the parties.

The category of persons who may be empaneled as Mediator under Rule 3 of Mediation and Conciliation Rules, 2004 by the Delhi Hight Court, Session/District Courts must have the following qualifications given under Rule 4 of the 2004 rules.

Qualification of Persons who can be empanelled as Mediators in India

• 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

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. 

Persons who cannot be empanelled as Mediators in India

• 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.