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Chapter -2

Chapter -2
Settlement of Dispute through Mediation

3. Dispute may be settled through mediation:

(1) In case, any agreement provides for the settlement of dispute through mediation, the dispute concerned with that agreement or a dispute arisen under that agreement shall be settled according to the procedure prescribed in the agreement, if any.
(2) Notwithstanding anything contained in Sub-section (1), in case, parties intend to settle a dispute through mediation which is subjudice or not filed in any adjudicating body and such dispute may be
settled through compromise (Milapatra) pursuant to prevailing law, the aforesaid dispute may be settled through mediation by following the procedure pursuant to this Act.
(3) In case, parties intend to settle a case which in sub-judice in an adjudicating body through mediation pursuant to Sub-section (2), the parties may submit an application to the concerned adjudicating body at any time, and upon the receipt of such application the adjudicating body
shall issue an order to settle the dispute through mediation whether such case is sub-judice at any level.
(4) Where in any case sub-judice in an adjudicating body, the aforesaid body considers it appropriate to settle through mediation and the concerned parties are agreed, the adjudicating body may issue an
order to settle such dispute through mediation.
(5) Notwithstanding anything contained in Sub-section (3) and (4), in case ,it is deemed necessary to pronounce a decision on any issue which cannot be settled through mediation together with an issue which can be resolved through mediation the adjudicative body shall not issue an order to settle such dispute through mediation.

4. Appointment of the mediator:

(1) In case, any agreement provides for a provision on the appointment of the mediator, appointment of the mediator shall be done as per the aforesaid provision, and in the absence of such provision mediator shall be appointed under this Act.
(2) While appointing a mediator pursuant to Sub-section (1), parties shall appoint the mediator by a mutual consent.

5. Number of the Mediator:

(1) The number of the mediator shall be as specified in the agreement, if any, and in case, the agreement does not specify the number of the mediator, one or three mediators shall be appointed as per the consent of the parties.
(2) In case, parties are agreed to appoint one mediator such mediator shall be appointed by the consent of the parties and in case, parties are agreed to appoint three mediators, each party shall appoint one mediator and the third mediator shall be appointed either by the party themselves or by two mediators appointed by the parties, as the case may be.
(3) In case, there are three mediators, the third mediator shall act as a co-coordinator of the mediators.

6. Assistance may be sought for appointing the mediator:

(1) In case, any agency which offers mediation service provides separate Rules or procedure for appointing the mediator, the parties may appoint mediator as per such Rules or procedure.
(2) A request may be made to an agency which offers mediation service by the parties themselves or as per the order of the court to recommend the name of the mediator for appointing the mediator
pursuant to Sub-section (1).
(3) Upon the receipt of a request pursuant to Sub-section (2), such agency may, by considering the nature of dispute, the issue of mediation, the qualification, expertise and the capacity of the mediator
to carry impartiality, and the nationality of the mediator in the context of international nature dispute, if any, recommend for the suitable person or appoint a person as a mediator.
(4) Notwithstanding anything contained elsewhere in this Section, in case, parties intend to take assistance from the local body for appointing mediator, the parties may seek assistance of the concerned local body.
(5) Local body shall, for the purpose of providing assistance pursuant to Sub-section (4), prepare a roster of the mediators who are eligible to be a mediator pursuant to this Act and shall provide
assistance to appoint a suitable person as a mediator from its roster on the consultation of parties.

7. Mediator to be appointed by the adjudicating body:
(1) Notwithstanding anything contained in Section 5 or 6, where the adjudicating body issues an order to settle a dispute through mediation pursuant to Sub-section (4) of Section 3 or the concerned parties fail to appoint the mediator pursuant to Section 5, the adjudicating body shall issue an order in the name of the concerned party to submit the name of the mediator within such period as specified by it.
(2) Upon the issuance of an order pursuant to Sub-section (1), the concerned party shall submit the name of the mediator to the adjudicating body within the prescribed period by the mutual consent of
the parties and the adjudicating body shall appoint the person submitted by the parties as a mediator.
(3) In case, the parties fail to submit the name of mediator pursuant to Sub-section (2), the adjudicating body shall appoint such person as a mediator upon taking consent of the parties from among the persons eligible to be a mediator.

8. Appointment of the mediator in special circumstance:

(1) In case, a person appointed as a mediator declines to provide mediation service, or fails to act as a mediator or resigns or dies or the post of the mediator falls vacant for any other reason, the vacancy shall be filled, within the time as consented the parties, by appointing the next mediator through the same process which was followed earlier.
(2) In case, a mediator cannot be appointed pursuant to Subsection (1), the appointment of mediator shall be made upon following the process as mentioned in Section 7.

9. An order to be issued for appointing the mediator:

(1) Notwithstanding anything contained in this Chapter, while making settlement of a dispute through mediation pursuant to Sub-section (3) or (4), the concerned adjudicating body shall issue an order to appoint a mediator.
(2) While issuing an order to appoint a mediator pursuant to Subsection (1), the adjudicating body shall issue an order to appoint a person as a mediator from among the persons awarded certificate to act in the capacity of a mediator pursuant to Sub-section (1) of Section 21.

10. To notify for denial of rendering service as a mediator:
In case ,a person appointed as a mediator pursuant to this Act does not intend act as a mediator shall notify in writing to that effect to the concerned adjudicating body within Seven days from the delivery of the notice of the appointment.

11. Mediator to notify:

(1) In case, a mediator appointed pursuant to this Act is unable to conduct the mediation process in an independent and impartial manner due to the nature of the dispute or there exists a circumstance likely to give rise to a justifiable doubt as to his/her independence or impartiality, the mediator shall notify quickly in writing to that effect to the mediation parties and to the adjudicating body where the dispute was referred by the order of adjudicating body.
(2) A copy of the Notification notified pursuant to Sub-section (1) shall be recorded in the file of the concerned dispute.

12. Matters to be observed by the mediator:

A mediator shall observe the following matters while discharging his/her duty as a mediator:
(a) To perform the duty related to mediation in an impartial manner.
(b) Not to perform an act with favouritism, bias or prejudice towards any party or to avoid conduct that gives the appearance of the same.
(c) Not to conduct mediation by creating fear or terror against a party or by misleading or inducing to a party.
(d) Not to have any financial transaction with a party until the dispute is resolved.
(e) Not to commit any act contrary to this Act or Rules framed there under in regard to mediation process.
(f) Not to make any economic transaction or not to do any other act and activity that falls under the conflict of interest in the course of mediation.
(g) To observe code of conduct in the course of mediation.

13. Mediators may be removed:

(1) In case, it is found after the appointment of a mediator that he/she is not qualified to be a mediator
pursuant to Section 22, the concerned parties themselves, or the agency or the adjudicating body from whom such mediator was appointed shall remove such mediator as quickly as possible.
(2) In case, it is found that a mediator has committed any of the following acts by a complaint lodged by a party or the aforesaid matter comes in notice of the adjudicating body by any source, the adjudicating body may remove such mediator at any time:
(a) If he/she fails to fulfill the matter as referred to in Section 12.
(b) If he/she commits any act against the matter of dispute or party with an unfair or a fraudulent
manner.
(c) If repetition of a mistake or irregularity is found in his/her act or activity or in the process of
mediation.
(d) If he/she prolongs or delays the proceedings of mediation without a reasonable cause or shows
reluctancy in the proceedings of mediation.
(e) If he/she breaches the confidently of matters done in the course of mediation proceedings without the consent of the party which causes adverse effect on the interest of the party.

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