Hyderabad Arbitration Centre was established in the year 2019 and is the first autonomous institute under a not-for-profit trust (HIAA). It has been established to promote the ADR mechanisms through ‘institutional arbitration’ & ‘institutional mediation’. It is also the first ever Institutional Arbitration & Mediation Centre in Hyderabad, in the state of Telengana that addresses the need for institutionalizing arbitrations and mediations. For this purpose, Hyderabad Arbitration Centre has framed its own set of “Arbitration Rules” and “Mediation Rules” which will hereby govern the administration of arbitrations and mediations. The Rules have been published in the year 2020. This article is to study the provisions under HAC mediation rules in particular.
Mediation means a process by way of which the parties attempt to reach an amicable settlement of their dispute with the help of a third neutral party, lacking the authority to impose a solution upon the parties to the dispute and includes the conciliation process
The third party refers to the mediator or mediators who on request of the parties to the agreement attempt to settle the dispute amicably and it also includes a conciliator
When can the dispute be referred to HAC for mediation?
A dispute may be referred to HAC for Mediation in the following case:
- Where there is an agreement between the parties to refer any dispute or difference, which may arise or has arisen out of or in relation to a contract, to mediation or
- The parties agree among themselves that their dispute shall be referred to mediation in accordance with these Rules or
- The dispute is so referred through any proceedings in any Court/Tribunal or before other authority or
- The reference is made through or by an Arbitral tribunal under Arb-Med-Arb procedure.
The parties can refer the dispute to HAC for mediation irrespective any prior agreement to mediate between the parties.
Any Notice or Communication including any invitation for such mediation should be in writing and it should be served in the manner as provided under the agreement between the parties and in the absence of any such provisions in the agreement between the parties then, all such written communications can be delivered to the addressee in person by hand or through a registered post or courier at his place of business or residence or such other mailing address as agreed between the parties or it can also be transmitted through electronic communication via e-mail, facsimile etc. or any other means that can provide a record of its delivery thereof and it shall be deemed to have been received by the addressee.
If even after a reasonable inquiry, none of the above mentioned modes of service are possible, then in such a case the notice or other communication can be sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or by any other means and there by shall be deemed to have been received by the addressee.
Any written Notice or Communication shall be deemed to have been received on the day it is delivered and in the case of a notice or communication transmitted through electronic means then on the day it was sent and such time shall be determined with reference to the recipient’s time zone.
Procedure or stages of mediation proceedings:
- Invitation for mediation by one party
- Acceptance or refusal to mediate
- Appointment of mediator
- Commencement of mediation proceedings
1.Invitation or Request for mediation
The party or parties wishing to commence mediation shall submit a ‘Request for Mediation’ under Form M1 with the Secretariat
Requirements for ‘Request for Mediation’ (Form M1):
- A request that the dispute be referred to mediation
- The request shall include an invitation sent to the other party or parties, inviting them to commence the mediation process to amicably resolve the dispute.
- The names, addresses, telephone numbers, facsimile numbers and electronic mail addresses, if known, of the parties to the mediation
- The full name, address and such other contact details of any person or persons, representing the party that is initiating the mediation process
- A reference to and a copy of the mediation agreement that is invoked
- A reference to and if possible, a copy of any contract or other legal instrument out of or in relation to which the dispute has raised
- A statement briefly describing the nature and circumstances of the dispute; where possible an initial quantification or assessment of its value and specifying the relief or remedy sought
- Information on any ongoing litigation, arbitration or other proceedings
- A statement of any matters which the parties have previously agreed as to the conduct of the mediation, or for the qualification of the Mediator
- Name of the Mediator or mediators as suggested or nominated by the person initiating the process.
The party initiating the mediation shall submit a copy of all the documents; notices etc. to each mediator, and one for the secretariat and in case not served to the parties personally then one copy to each such party. Also unless the request is being filed by all the parties jointly, the party initiating the mediation shall send a copy of such request and all other documents annexed with it to all the parties to the dispute and shall notify the same to the registrar or secretary general along with the mode of service employed and the date of service. The party initiating the mediation shall also make payment of the filing fee as prescribed on the date the request is submitted.
Once all the requirements as mentioned above are fulfilled or when the registrar or secretary general is of the opinion that there has been substantial compliance with such requirements then such a request to mediate is deemed to be completed.
2. Acceptance or refusal
- The party initiating the mediation can propose a name of a mediator in the invitation or request and the other party shall within 14 days from receipt of such request or invitation reply to such request by either accepting the proposed name or rejecting by proposing another mediators name or by refusing to mediate. If the reply is not given within 14 days then it would be deemed that the party or parties have refused to mediate.
- If the council is appointing the mediator then the registrar shall notify all the parties regarding such appointment. Any party may communicate their acceptance or objection to such appointment in writing within 14 days from the date of being notified. Any party if objecting shall state the reasons for the same and if the council considers it appropriate shall appoint another mediator keeping the objection in mind.
- In case of acceptance all the parties should communicate the same in writing and if there is no response from any party within the prescribed time then it will be considered as a refusal to mediate.
- The registrar shall, if there are two or three mediators, ask the parties to nominate one mediator within 14 days and if the parties fail to do so then that party shall be considered to have refused to mediate
- If the appointment is not made within 60 days from the request then the mediation is deemed to have failed unless the parties have agreed to extend the time for appointment
- If two or more parties have only given acceptance but not all then the registrar considering the nature of dispute shall decide whether the mediation can be commenced between such parties, who have accepted the appointment, without prejudice to the rights of other parties, who have not accepted the appointment
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3. Appointment of mediator
- The council alone shall be empowered to appoint the mediator(s) and the mediator(s) nominated or appointed by the parties or by third-party, shall be subject to appointment by HAC, in its discretion. Where the parties have expressly agreed for any such appointment then such agreement shall be deemed to be an agreement to nominate such mediator.
- The party initiating the mediation can propose a name for appointment of mediator and the other party shall accept or reject within 14 days, if objecting then the other party can propose another name to which the first party may accept or reject within 7 days
- Once all the parties have agreed on a name of the mediator and the mediator also has agreed then such mediator will be appointed by the council the mediation process shall start
- In case the parties fail to agree on the name of mediator within 21 days from the date of filing request or no name was proposed by the parties then the registrar shall refer the matter to council, it shall appoint a mediator considering the nature and circumstances of the dispute and the registrar shall notify the same to the parties. The parties can either accept or object to such mediator by stating reasons in writing within 14 days and the council may appoint another mediator. If the parties have agreed for three mediators then one mediator can be nominated by each party and the council shall appoint the third, who shall be the presiding mediator
Rules for the appointment of the mediator
- The council while appointing the mediator shall consider such qualifications or attributes as agreed by the parties or if no such agreement is there on the same then the council shall consider factors like the nationality, language skills, qualification, experience, training or other details specific to the dispute.
- Before the appointment the registrar shall confirm the availability of such mediator and the mediator shall do so by signing a statement of availability along with statement of impartiality, independence and neutrality and shall accept the appointment in writing to HAC in prescribed form.
- The mediator before the commencement of mediation shall conduct reasonable inquiries and if he finds that there could exist any doubt as to his neutrality, impartiality or independence in respect to the dispute then he shall disclose such facts and circumstances to HAC
4. Commencement of mediation proceedings
- The mediation proceedings shall commence either from when the other party accepts the invitation to mediate or if the request made jointly then on the day such request was made or on the day it was referred for mediation by staying the arbitration proceeding under Arb-Med-Arb procedure or when reference is received by HAC from court/tribunal or other authority or as may be resolved by the registrar.
- The proceedings shall be conducted in the manner as agreed by parties if no such agreement the mediator shall follow the conduct as mentioned in the rules
- The date and time of the sessions shall be fixed by the mediator after consultation with the parties
- The mediation shall be conducted in English language and shall take place at HAC Centre however if the parties want they can request and suggest any other place.
- Confidentiality and privacy of the sessions shall be maintained
- All the relevant information reasonably required to understand the issue shall be provided to the mediator not less than 10 days before the first session
- Mediator can either conduct joint or separate sessions with the parties
- The parties can attend the mediation proceedings themselves or authorize any other person in writing to enter into settlement agreement on behalf of them and details of such person shall be provided.
Time limit for completion of mediation
The process of mediation shall be concluded within three months from the date of appointment of Mediator. If not then on expiry of three months, the process of mediation shall stand terminated, unless the parties agree to extend the period of mediation.
In case of mediation referred by court/Tribunal, or Arb-Med-Arb proceedings, where the time is pre-defined to conclude the mediation proceeding, the mediation shall stand terminated on the expiry of that predefined period, given by the court/Tribunal or Arbitral Tribunal. On the expiry of such period, if the Mediator is of view that a settlement is possible in such matter, the Mediator or HAC on the request of Mediator, may request to the court/tribunal or Arbitral Tribunal for the extension of time.
- The parties participating in the mediation proceedings should do so in good faith and with an intension to settle the dispute. Either of the parties shall at any stage of the proceedings offer a settlement to the other party with notice to the mediator and it shall be without any prejudice to their legal rights in case no settlement is arrived at
- Once the parties agree on settlement terms or reach agreement on all or some of the issues, they shall include those agreed terms in writing in settlement agreement. The mediator can assist in drawing up the settlement agreement but the parties will be responsible for the terms of agreement
- Once the settlement agreement is signed by all the parties the mediator shall authenticate the agreement and handover the original agreement to parties and unless agreed otherwise he shall also submit a copy to the registrar
- Such an agreement shall be binding on the parties and shall have the same effect as that of an arbitral award and is enforceable as if it was a decree of a court.
- In the case of Arb-Med-Arb procedure or reference from any court or tribunal, and unless the parties agree otherwise, HAC/Mediator shall forward a copy of the settlement agreement to the Arbitral tribunal/court/tribunal, as the case may be.
Costs of mediation
Unless otherwise agreed between the parties, each party shall bear its own costs including costs for production of their respective witnesses, experts or for production of any documents, etc. also The Mediator’s fee and other ancillary expenses shall be equally borne by the parties
The mediation proceedings shall be terminated in the following cases:
- On expiry of prescribed time
- Before the expiry of prescribed time, on the successful execution of a settlement agreement.
- If parties withdraw from mediation proceedings by notice to mediator and HAC
- If the mediator withdraws from mediation proceeding due to illegal bargain, negotiation or in case violation of law.
- If the mediator is of the opinion that mediation will not resolve the dispute between the parties.
- By a specific order from such court or tribunal to that effect.
- If any party fails to attend the sessions consecutively for two times, without any notice to Mediator
Mediator’s code of conduct
- Must disclose any interest, conflict of interest or potential biases with the dispute or subject matter of dispute involved in mediation as soon as it came to his knowledge
- Must act in a neutral, independent and impartial manner
- Must uphold and maintain the trust and confidentiality
- Refrain from testifying or adducing evidence in any judicial, arbitral or other proceedings against or in favor of any party, regarding any fact or information which was disclosed to him in mediation process, unless required under law or all the parties to the mediation agree to such evidence or testimony.
- Refrain from using any duress or coercion in order to force any party to enter into settlement
- Refrain from proposing or entertaining any offer or proposal for settlement, involving an illegal or anti-social element
If the Mediator violates any of the code of conduct as the parties may immediately bring it to the notice of HAC, who shall enquire into such complaint as priority.