Indian Mediation Act 2023 a walkthrough

1. INTERNATIONAL MEDIATIONS
ORGANISATION
www.imoindia.org
www.cimoindia.com
“Peace for ever”

2. IMO
International Mediation
Organization (IMO) is a
Registered Trust which
advocates and Promotes
Mediation (PEACE FOR EVER)
Our Founder Members are Trained & Certified Mediators by Indian
Institute of Corporate Affairs, Ministry of Corporate Affairs - Government of
India. Being accredited Mediators and Arbitrators with extensive
experience in the irrespective fields who are Attorneys, Business
Consultants and the irrespective has to its credit various training
programs, seminar, workshops on Mediation
AboutUs
Spearheading the Mediation Movement..
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3. IMO
VISION
• To provide a wholistic, complete and
pacifistic mediation experience through
"MEDIATION”
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4. IMO
MISSION
• To act as a Think Tank in the field of mediation research & Development
enhancing the march of law to embrace mediation as the primary re-
solution Provide Capacity Development Programmes for Mediators &
Students
• Initiate Mediation as the only Resolution Process thru CIMO Mediation
Centres
• To provide Industry Specific certified mediators including subject matter
experts for resolving complex resolutions.
• Conduct Awareness and Monthly Programmes on Mediation Practice
• Promote, facilitate MEDIATION PRACTICE within the purview of THE
MEDIATION ACT passed on 1.8.2023
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5. IMO
MISSION
Objectives
• To conduct awareness programs for general public, corporate and govt
establishments.
• “To provide Certification for all Programmes for aspiring mediator”
• To organise Conferences, Symposium, Mock Mediation Competition at Colleges
• Act as a missionary of mediation across the world.
• Enable assist and operate mediation centres in all chamber of commerce to resolve
their disputes
• Empower and evaluate the young generation (student mediators), the strength of
voluntary decision making through the process of mediation.
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6. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 6
Global Pound Conference

7. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 7
Global Pound Conference

8. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 8
Global Pound Conference

9. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 9
INDIA MEDIATION WEEK

10. IMO
INTERNATIONAL MEDIATIONS ORGANISATION
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ASSOCHAM INTERNATIONAL COUNCIL OF
ALTERNATE DISPUTE RESOLUTION

11. IMO
INTERNATIONAL MEDIATIONS ORGANISATION
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CENTRE FOR INTERNATIONALMEDIATION
ORGANISATION

12. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 12
NATIONAL LEVEL SYPOSIUM
CONFLICT TO CONSENSUS

13. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 13
CENTRE FOR INTERNATIONAL MEDIATION
ORGANISATION “vetrans”

14. IMO
INTERNATIONAL MEDIATIONS ORGANISATION 14
CENTRE FOR INTERNATIONAL MEDIATION
ORGANISATION (SCLA /GIDI)

15. IMO
WORKING TO SPREAD THE MEDIATION MOVEMENT AND ACCESS TO WIN –WIN
RESOLUTION
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THE MEDIATION ACT, 2023
NO. 32 OF 2023
D.R. Sivakumar

16. IMO
WhatisMEDIATION
• Mediation is a voluntary process of conflict resolution where a
neutral third party, known as a mediator, facilitates communication
between parties in dispute to help them reach a mutually agreeable
win-win solution. Mediation is the only alternative dispute
resolution process which is cost-effective and less time-consuming.
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17. IMO
MEDIATION ACT2023
• An Act to promote and facilitate pvt. Mediation, Institutional Mediation, ODR
• Enforce mediated settlement Agreements,
• Provide a Body For the Registration Of Mediators/Institutions, encourage Community
mediation and make online mediation acceptable as a more cost-effective process
• The Mediation Act 2023 Is A Cornerstone For Formulation And Development Of The Institution Of
Mediation In India
• Promote and facilitate MEDIATION PRACTICE Within The Purview Of THE MEDIATION ACT
Passed On 1.8.2023
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18. IMO
MEDIATION ACT2023
CONFIDENTIALITY
PRESCRIBED TIME TO COMPLETE MEDIAITON
VOLUNTARINESS
ONLINE DISPUTE RESOLUTION
BINDING EFFECT OF MEDIATION SETTLEMENT
AGREEMENTS
•
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19. IMO
MEDIATION ACT2023
Sec. 22
CONFIDENTIALITY (sec. 22)
• The mediator, mediation service provider, the parties, and participants must keep all matters
relating to the mediation proceedings confidential. This includes acknowledgements, opinions,
suggestions, promises, proposals, apologies, admissions made during the mediation, and acceptance
of or willingness to accept proposals made or exchanged in the mediation.
• No audio or video recording of the mediation proceedings should be made or maintained by any
parties involved in the mediation.
• The mediator or no party to mediation cannot even be summoned for witness
• The confidentiality provisions do not apply to the mediated settlement agreement where its
disclosure is necessary for the purpose of registration, enforcement and challenge.
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20. IMO
MEDIATION ACT2023
Sec. 6
Disputes or matters not fit for mediation (sec. 6)
• 6. (1) A mediation under this Act shall not be conducted for resolution of any dispute or matter contained in the indicative list
under the First Schedule:
• Disputes relating to claims against minors, deities; persons with intellectual disabilities
• Disputes involving prosecution for criminal offences.
• Complaints or proceedings, initiated before any statutory authority or body in relation to registration, discipline, or
misconduct of any practitioner, or other Registered Professional, such as legal practitioner, medical practitioner, dentist,
architect, chartered accountant, or in relation to any other profession of whatever description, which is regulated under any law
for the time being in force.
• Any dispute relating to levy, collection, penalties or offences, in relation to any direct or indirect tax or refunds, enacted by
any State legislature or the Parliament.
• Proceedings before appropriate Commissions, and the Appellate Tribunal, Petroleum and Natural Gas Regulatory Board Act,
2006; SEBI, Etc ..
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21. IMO
MEDIATION ACT2023
Sec. 7
Power of court or tribunal to refer parties to mediation (sec 7)
• 7. (1) Notwithstanding the non-settlement of dispute under sub-section (1) of section 5,
the court or tribunal may, at any stage of proceeding, refer the parties to undertake
mediation.
• (2) If the court or tribunal refers the parties to undertake mediation, it may pass suitable
interim order to protect the interest of any party if deemed appropriate.
• (3) The parties shall not be under obligation to come to a settlement in the mediation
pursuant to a reference under sub-section (1).
• Prelitigation mediation & Private mediation by consent
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22. IMO
MEDIATION ACT2023
Sec. 17
Role of mediator in other proceedings (sec 17)
• 17. The mediator shall not—
• (a) act as an arbitrator or as a representative or counsel of a party in
any arbitral or judicial proceeding in respect of a dispute that is the
subject matter of the mediation proceedings;
• (b) be presented by the parties as a witness in any arbitral or judicial
proceeding
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23. IMO
MEDIATION ACT2023
Sec. 18
Time-limit for completion of mediation (sec 18)
• 18. (1) Notwithstanding anything contained in any other law for the time being in
force, mediation under this Act shall be completed within a period of one hundred and
twenty days (120) from the date fixed for the first appearance before the mediator.
• (2) The period for mediation mentioned under sub-section (1) may be extended for a
further period as agreed by the parties, but not exceeding sixty days (60)
180 days
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24. IMO
MEDIATION ACT2023
Sec. 19
Mediated settlement agreement (sec 19)
• 19. (1) A mediated settlement agreement includes an agreement in writing between some
or all of the parties resulting from mediation, settling some or all of the disputes
between such parties, and authenticated by the mediator:
Provided that the terms of the mediated settlement agreement may extend beyond the disputes
referred to mediation.
Explanation.—A mediated settlement agreement which is void under the Indian Contract Act,
1872, shall not be deemed to be a lawful settlement agreement within the meaning of mediated
settlement agreement.
• (2) Reduced in writing and signed
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25. IMO
MEDIATION ACT2023
Sec. 19
Mediated settlement agreement (sec 19)
• (3) Subject to the provisions of Section 26, the mediated settlement agreement signed,—
• (i) In case of institutional mediation, shall be submitted to the mediator, who shall, after
authenticating the same, forward it with a covering letter signed by him, to the mediation service
provider and also provide a copy to the parties;
• (ii) in all other cases, shall be submitted to the mediator who shall, after authenticating the
mediated settlement agreement, provide a copy to all the parties.
• (4) The parties, may, at any time during the mediation process, make an agreement with
respect to any of the disputes which is the subject matter of mediation.
• (5) Any mediated settlement agreement under this section includes a settlement
agreement resulting from online mediation
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26. IMO
MEDIATION ACT2023
Sec. 20
REGISTRATION OF MSA (sec 20)
• Section 20 of the act provides for the registration of Mediation
Settlement Agreements with the competent Authority
• The Registered MSA shall be given a unique Registration Number.
• This is a distinctive practice unapparelled in any legislation worldwide
• But non-registration shall not affect the rights of parties to enforce
the MSA under Section 27 of the Act or challenge the MSA under
Section 28 of the Act
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27. IMO
MEDIATION ACT2023
EXCEPTIONAL AND UNCOMMON PROVISIONS OF THE MEDIATION ACT
Setting Up Of Mediation Council Of India (MCI)
Introduction Of Community Mediation
Maintenance Of Depositary
Registration Of Mediation Settlement Agreements
Government As Party To Mediation
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28. IMO
MEDIATION ACT2023
MAINTAINENCE OF DEPOSITARY
Section 38(n) of the Act directs the MEDIATION COUNCIL to
maintain an electronic depositary of Mediation settlement
agreements that are made in India.
None of the mediation Laws internationally provides for
maintaining a depositary of the MSA, therefore only time will
prove its efficacy.
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29. IMO
MEDIATION ACT2023
Sec. 27
ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT
• 27. (1) A mediated settlement agreement resulting from a mediation signed by the
parties and authenticated by the mediator shall be final and binding on the parties
and persons claiming under them respectively and enforceable as per the provisions
of sub-section (2).
• (2) Subject to the provisions of Section 28, the mediated settlement agreement
shall be enforced in accordance with the provisions of the Code of Civil Procedure,
1908, in the same manner as if it were a Judgment Or Decree Passed By A
Court, and may, accordingly, be relied on by any of the parties or persons claiming
through them, by way of defence, set off or otherwise in any legal proceeding.
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30. IMO
MEDIATION ACT2023
Sec. 28
• Challenge to Mediated Settlement Agreement
• 28. (1) Notwithstanding anything contained in any other law for the time being in force, in any case in which the mediated
settlement agreement is arrived at between the parties and is sought to be challenged by either of the parties, such party may
file an application before the court or tribunal of competent jurisdiction.
• (2) A mediated settlement agreement may be challenged only on all or any of the following grounds, namely:—
• (i) fraud; (ii) corruption; (iii) impersonation;
• (iv) where the mediation was conducted in disputes or matters not fit for mediation
under section 6.
• (3) An application for challenging the mediated settlement agreement shall not be made after ninety days have elapsed from the
date on which the party making that application has received the copy of mediated settlement agreement under sub-section (3)
of section 19:
• Provided that if the court or tribunal, as the case may be, is satisfied that the applicant was prevented by sufficient cause from
making the application within the said period of ninety days, it may entertain the application within a further period of ninety
days.
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31. IMO
MEDIATION ACT2023
Sec. 49
Government As Party To Mediation
• Section 49 of the act states that the government can also be a party to
mediation
The government's participation in mediation proceedings is limited
exclusively to the resolution of commercial disputes
Even though the range of dispute categories open to mediation is rather
limited now, there is an option for expansion in future.
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32. IMO
MEDIATION ACT2023
Scheme And Guidelines For Mediation By Government Entities
For resolving disputes via mediation and conciliation, in cases where
governmental entities are involved as parties
This would help PSUs and government departments to create rules for
hybrid dispute resolution options, Similar to institutional mediation.
•
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33. IMO
MEDIATION ACT2023
Possible lacunas
• Even though the Mediation Act is a positive step and
demonstrates a commitment to mediation there are some
lacunas:
Not giving effect to the Singapore convention on mediation
First schedule, which enumerates disputes or matters
unsuitable for mediation can be narrowed down
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34. IMO
Thank You
D.R. SIVAKUMAR
9841368649
drsivakumar@hotmail.com
IMOINDIA.ORG
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Peace For Ever