In exercise of the rule making power under Part-V
of the Civil Procedure Code, 1908 and Clause (d) of sub-section 2 of section 89
of the said Code read with Section 122 of the Civil Procedure Code, 1908, Section
21 of the Family Courts Act, 1984, Section 82 of the Arbitration and
Conciliation Act, 1996 and all other enabling provisions, the High Court of
Jammu and Kashmir is hereby issuing the following rules : These
Rules shall be called 'The Mediation and Conciliation Rules, 2019'. The Rules
would be applicable to all Mediation and Conciliation Centres functioning in
the High Court of Jammu & Kashmir and the District Courts in Jammu and
Kashmir, in connection with all mediation/conciliation services offered by them
as also in connection with any suit or other proceeding, pending in the High
Court of Jammu and Kashmir or in any Court subordinate thereto. The reference
to mediation or conciliation may be made by the High Court or any other Court
subordinate thereto to the Mediation Centre(s) in the High Court, District
Courts and/or any Mediation Centres set up by the Courts or the Legal Services
Authorities. (a) Parties to a suit or
other proceeding may agree on the name of the sole mediator or conciliator for
mediating the disputes between them ; (b) Where there are two
or more sets of parties and are unable to agree on a sole mediator/conciliator,
each set of parties shall nominate the mediator/conciliator or the Court may
nominate/appoint the mediator/conciliator, as it deems fit ; (c) Where parties agree
on a sole mediator/conciliator under clause (a) or where the
mediator/conciliator is nominated/appointed by the court or otherwise under
clause (b), the mediator/conciliator need not necessarily be from the panel of
mediators/conciliators referred to in Rule 3 nor bear the qualifications
referred to in Rule 4 but should not be a person who suffers from the
disqualifications referred to in Rule 5 ; (d) Where there are more
than two sets of parties having diverse interests, each set shall nominate a
person on its behalf and the said nominees shall appoint a sole mediator ; (a) The High Court shall,
for the purpose of appointing mediators between the parties at the
pre-litigation stage or in pending suits or proceedings, prepare a panel of the
mediators/conciliators and put the same on the Notice Board within thirty days
of coming into force of these Rules or any changes being carried out with copy
to the High Court Bar Association ; (b) (i) The High Court or
the Court of the Principal District and Sessions Judge in each District or the
Courts of the Principal Judge of the City Civil Courts or Courts of equal
status shall, for the purpose of appointing a mediator/conciliator to mediate
between the parties at the pre-litigation stage or in pending suits or
proceedings prepare a panel of the mediators/conciliators within a period of
ninety days of the commencement of these Rules and shall submit the same to the
High Court for approval. On approval of the said panel by the High Court, with
or without modification, which shall be done within thirty days of the
submission of the panel, the same shall be published on their respective Notice
Board(s) ; (ii)
Copies of the said panel referred in clause (i) shall be forwarded to all the
Courts of equivalent jurisdiction or subordinate courts referred to in sub
clause (i) and to the Bar Associations attached to each of the Courts ; (c) The consent of the
persons whose names are included in the panel shall be obtained before
empanelling them ; (d) The panel of names
shall contain a detailed Annexure giving details of the qualifications of the
mediators/conciliators and their professional or technical experience in
different fields ; (e) The panel of
mediators/conciliators appointed under clause (a) and clause (b) shall normally
be for a period of three years from the date of appointment and further
extension of the panel of mediators/conciliators or any mediator/conciliator
shall be at the discretion of the High Court or the Court of the Principal
District and Sessions Judge in each District or the Courts of the Principal
Judge of the City Civil Courts with the approval of the High Court, as the case
may be. The
following persons may be treated as the qualified and eligible for being
enlisted in the panel of mediators/conciliators under Rule 3, namely : (i) Retired Judges of the
Supreme Court of India ; (ii) Retired Judges of the
High Court ; (iii) Retired District and
Sessions Judges of the City Civil Court or Courts of equivalents status ; (iv) Legal practitioners
with at least ten 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 ; (v) Experts or other
professionals with at least five years standing ; (vi) Institutions and
persons who are themselves experts in mediation and have been recognized as
such by the High Court provided
the names of its members are approved by the High Court initially or whenever
there is change in membership. (vii) The empanelment of
any of the above shall be effected only after their having undergone the
training as per settled norms. The
following persons shall be deemed to be disqualified for being empanelled as
mediators/Conciliators/co-mediator/co-conciliator: (i) any person who has
been adjudged as insolvent or is declared of unsound mind ; or (ii) any person against
whom criminal charges involving moral turpitude are framed by the criminal
court and are pending ; or (iii) any person who has
been convicted by a criminal court for any offence involving moral turpitude ; (iv) any person against
whom disciplinary proceedings or charges, relating to moral turpitude have been
initiated by the appropriate disciplinary authority which are pending or have
resulted in a punishment ; (v) any person who is
interested or connected with the subject matter of dispute or is related to
anyone of the parties or to those who represent them, unless such objection is
waived by all the parties in writing ; (vi) any legal
practitioner who has or is appearing for any of the parties in the suit or in
any other suit or proceedings ; (vii) such other categories
of persons as may be notified by the High Court. (viii) The empanelment of
any of the above shall be effected only after their having undergone the
training as per settled norms. The
mediator/conciliator shall conduct the mediation/conciliation at one or other
of the following places : (1) Mediation and
conciliation centers established by the High Court ; (2) Venue of the Lok
Adalat or Permanent Lok Adalat ; (3) Any place identified
by the High Court/Principal District Judge within the Court precincts for the
purpose of conducting mediation ; (4) Any place identified
by the Bar Association or State Bar Council for the purpose of mediation,
within the premises of the Bar Association or State Bar Council, as the case
may be ; (5) Any other place as
may be agreed upon by the parties subject to the approval of the Court. The
Court shall, while nominating any person from the panel of
Mediators/Conciliators referred to in Rule 3, consider his suitability for
resolving the dispute(s) involved and shall give preference to those who have
proven record of successful mediation/conciliation or who have special
qualification or experience in the mediation/conciliation. (a) When a person is
approached in connection with his proposed appointment as Mediator/Conciliator,
he shall disclose any circumstance(s) likely to give rise to a justifiable
doubt as to his independence or impartiality ; (b) Every
Mediator/Conciliator shall from the time of his appointment and throughout
continuance of the mediation/conciliation proceedings, without delay, disclose
to the parties, about the existence of any circumstances referred to in clause
(a) ; Upon
information furnished by the Mediator/Conciliator under Rule 8 or upon any
other information received from the parties or other persons, if the Court, in
which the suit or proceeding is pending, is satisfied, that the said
information has raised a reasonable doubt as to the Mediator/Conciliator's
independence or impartiality, it may withdraw the appointment and replace
him/her by another Mediator/Conciliator. A
person whose name is placed in the panel referred to in rule 3 may be removed
or his name be deleted from the said panel, by the Court which empanelled him,
if : (i) he resigns or
withdraws his name from the panel for any reason ; (ii) he is declared
insolvent or is declared of unsound mind ; (iii) he is a person
against whom criminal charges involving moral turpitude are framed by a
criminal court and are pending ; (iv) he is a person who
has been convicted by a criminal court for any offence involving moral
turpitude ; (v) he is a person
against whom disciplinary proceedings on charges relating to moral turpitude
have been initiated by appropriate disciplinary authority which are pending or
have resulted in a punishment ; (vi) he exhibits or
displays conduct, during the continuance of the mediation proceedings, which is
unbecoming of a mediator ; (vii) the court which
empanelled, upon receipt of information, is satisfied, after conducting such
inquiry as it deems fit, is of the view that it is not possible or desirable to
continue the name of that person in the panel; provided that, before removing
or deleting his name, under clauses (vi) and (vii), the Court shall hear the
mediator/conciliator whose name is proposed to be removed or deleted from the
panel, before passing the order. The
following procedure shall be followed during the process of
Mediation/Conciliation: (a) The
Mediator/Conciliator shall, at the outset, disclose the procedure/process of
mediation/conciliation to the parties before commencement of mediation session
; (b) The parties shall, at
the commencement of Mediation/Conciliation session, sign a consent form
agreeing to participate in the Mediation/Conciliation process in good faith and
with the intention to settle the dispute ; (c) The
Mediator/Conciliator shall as far as practicable follow the procedure/process
of mediation in true letter and spirit and fix the time schedule for completion
of the Mediation/Conciliation proceedings which shall not be for more than 90
days, extendable with prior approval of the court/tribunal in which the suit or
proceedings may be pending ; (d) The
Mediation/Conciliation sessions shall be held within the premises of the Centre
or such other place where the parties to the suit or proceedings jointly agree
with the Mediator/Conciliator after taking prior approval from the
Co-ordinator/Incharge of the Centre ; (e) The
Mediator/Conciliator shall not be bound by the Indian Evidence Act, 1872 or the
Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973 and shall
be guided by the principles of fairness and justice, having regard to the
rights and obligations of the parties and the circumstances of the dispute(s) ; (f) Mediation/Conciliation
shall not be limited to the issues in dispute and the Mediator/Conciliator may
take into consideration disputes between the parties to a case not subject of
the pending litigation and facilitate resolution of all the disputes between
the parties agreed to be placed before the Mediator/Conciliator ; (g) The Centre shall
endeavour to ensure that each Mediation/Conciliation proceedings is concluded
within a period of 90 days from the date of referral or such time as may be
granted by the court ; (h) In an appropriate
case, the Centre/Mediator/Conciliator may invite the parties other than those
who are involved in the litigation to join the Mediation/Conciliation. Such a
party(ies) shall also be bound by these rules and required to sign the consent
form as mentioned above ; (i) As soon as a referral
order is received from the court by the Centre, a
Mediator/Conciliator/Co-mediator/Co-conciliator shall be appointed by the
Centre ; (j) The
Mediator/Conciliator may meet the parties, jointly and separately, as may be
decided upon by the mediator/conciliator ; (k) The
Mediator/Conciliator shall not be required to maintain the details of the
proceedings but shall be entitled to record notes for his/her own reference
only. (l) The
Mediator/Conciliator shall fix the dates for Mediation/Conciliation sessions
and for this purpose shall give sufficient notice to the parties ; (m) At the end of
Mediation/Conciliation, if any settlement is arrived at, the
Mediator/Conciliator shall draw up the settlement and shall obtain the
signatures of the parties thereon along with their advocates, if represented.
Any third party invited during mediation, if required, shall also sign the
settlement. (n) Settlement so
recorded shall be presented to the court/tribunal in the cases referred by it ; (o) In case of failure to
resolve the dispute, the Mediator/Conciliator shall submit his report to the
court/tribunal to the said effect without assigning reasons therefor. The
Mediator shall not be bound by the Code of Civil Procedure, 1908 or the Indian
Evidence Act, 1872, but shall be guided by principles of fairness and justice,
having due regard to the rights and obligations of the parties, usages of
trade, if any, and the nature of the dispute. (a) The parties shall
ordinarily be present personally or through constituted attorney/authorized
representative at the sessions or meetings notified by the
Mediator/Conciliator. The parties may be present before the
Mediator/Conciliator through any electronic mode, audio-video communication, if
not in a position to be personally present. However, they may be represented by
the counsel with permission of the Mediator/Conciliator in such sessions or
meetings ; (b) The party not
residing in India, may be represented by the constituted attorney at the
sessions or meetings. However, it may be represented by the counsel with
permission of the Mediator/Conciliator in such sessions or meetings ; (c) If a party fails to
attend a session or a meeting notified by the Mediator/Conciliator on account
of deliberate or willful act, the other party can apply to the Court in which
the suit or proceeding is pending. In that case Court may issue the appropriate
directions having regard to the facts and circumstances of the case. In
order to facilitate the conduct of Mediation/Conciliation proceedings, the
parties, or the Mediator/Conciliator with the consent of the parties, may
arrange for administrative assistance by a suitable institution or person. (a) Any party to the suit
may make a, "without prejudice" offer, to the other party at any
stage of the proceedings, with notice to the Mediator/Conciliator ; (b) Any patty to the suit
may make a "with prejudice" offer, to the other patty at any stage of
the proceedings, with notice to the Mediator/Conciliator ; The
Mediator/Conciliator shall attempt to facilitate voluntary resolution of the
dispute(s) 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(s), emphasizing that it is the responsibility of the
parties to take decision which effect them; he shall not impose any terms of
settlement on the parties. The
parties shall be made to understand that the Mediator/Conciliator only
facilitates in arriving at a decision to resolve dispute(s) and that he will
not and cannot impose any settlement nor does the Mediator/Conciliator give any
assurance that the Mediation/Conciliation will result in a settlement. The
Mediator/Conciliator shall not impose any decision on the parties. On
the expiry of ninety days from the date fixed for the first appearance of the
parties before the Mediator/Conciliator, the Mediation/Conciliation shall stand
terminated, unless the court, which referred the matter, either suo-moto, or
upon, request by any of the parties, and upon hearing all the parties, is of
the view that extension of time is necessary or may be useful; but such
extension shall not be beyond a further period of thirty days. While
no one can be compelled to commit to settle his case in advance by way of
mediation, all parties shall commit to participate in the proceedings in good
faith with the intention to settle the dispute, if possible. (a) Mediator/Conciliator
receives factual information concerning the dispute(s) from any party, he shall
disclose the substance of that information to the other party, so that the
other party may have an opportunity to present such explanation as it may
consider appropriate : Provided
that, when a party gives information to the Mediator/Conciliator subject to a
specific condition that it be kept confidential, the Mediator/Conciliator shall
not disclose that information to the other party. (b) Receipt or perusal,
or preparation of records, reports or other documents by the
Mediator/Conciliator, while serving in that capacity shall be confidential and
the Mediator/Conciliator shall not be compelled to divulge information
regarding those documents nor as to what transpired during the
Mediation/Conciliation before any court or tribunal or any other authority or
any person or group of persons ; (c) Parties shall
maintain confidentiality in respect of events that transpired during the
Mediation/Conciliation and shall not rely on or introduce the said information
in other proceedings as to : (i) views expressed by a
party in the course of the Mediation/Conciliation proceedings ; (ii) documents obtained
during the Mediation/Conciliation which were expressly required to be treated
as confidential or other notes, drafts or information given by the parties or
the Mediator/Conciliator ; (iii) proposals made or
views expressed by the Mediator/Conciliator. ; (iv) admission made by a
party in the course of Mediation/Conciliation proceedings ; (v) the fact that a party
had or had not indicated willingness to accept a proposal ; (d) There shall be no stenographic,
audio or video recording of the Mediation/Conciliation proceedings ; (e) No statement of
parties or the witnesses shall be recorded by the Mediator/Conciliator. The
Mediation/Conciliation sessions or meetings would be conducted in privacy where
the persons as mentioned in Rule 12 shall be entitled to represent parties.
However, other persons may attend only with the permission of the parties and
with the consent of the Mediator/Conciliator. No
Mediator/Conciliator/Co-mediator/Co-conciliator shall be held liable for
anything bona fide done or omitted to be done by him during the
Mediation/Conciliation proceedings for civil or criminal action nor shall he be
summoned by any party to the suit or proceeding to appear in a Court of law,
give information about or 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/Conciliation proceedings. (i) In order to preserve
the confidence of parties in the Court and the neutrality of the
Mediator/Conciliator, there should be no communication between the
Mediator/Conciliator and the Court, except as stated in clauses (ii) and (iii)
of this Rule ; (ii) If any communication
between the Mediator/Conciliator and the Court is necessary, it shall be in
writing and copies of the same shall be given to the parties or the constituted
attorney or the counsel ; (iii) Communication between
the Mediator/Conciliator and the Court shall be limited to communication by the
Mediator/Conciliator: (a) with the Court about
the failure of the party to attend ; (b) with the Court about
the consent of the parties ; (c) regarding his
assessment that the case is not suited for settlement through the
mediation/conciliation ; (d) that the parties have
settled the dispute(s). (i) Where an agreement is
reached between the parties in regard to all the issues either in the suit or
proceedings or some of the issues or otherwise between the parties, the same
shall be reduced to writing, executed and signed by the parties or their
constituted attorney. If any counsel has represented the parties, the Mediator
may obtain his signature also on the settlement agreement ; (ii) The agreement of the
parties so signed and attested shall be submitted to the Mediator who shall
forward the same to the court in which the suit is pending ; (iii) Where no agreement is
arrived at between the parties or where the Mediator/Co-mediator/Co-conciliator
is of the view that no settlement is possible he shall report the same to the
said court in writing. (1) On receipt of any settlement
in a pending case if the Court is satisfied that the parties have settled their
dispute(s), it shall pass appropriate decree/order in accordance with terms
thereof. (2) If the settlement
disposes of only certain issues arising in the suit or proceeding, on the basis
of which any order or decree is passed as stated in clause (a), the Court shall
proceed further to decide the remaining issues. A.
The
following procedure shall govern the process of reference of the parties to
mediation by a court exercising criminal jurisdiction for settlement of
criminal offences which are statutorily compoundable : (i) In the event that the
complainant/victim and the person(s) accused are inclined to settle their
disputes and seek reference to Mediation/Conciliation, the Magistrate/Court
shall refer the parties to a Mediation and Conciliation Centre attached to
Courts, the Mediation/Conciliation shall take place in the same manner as
followed for Mediation/Conciliation in a civil dispute as detailed in these
rules ; (ii) If a settlement is
reached during the Mediation/Conciliation, the settlement agreement which is
drawn-up must incorporate : (a) A clear stipulation
as to the condition(s) precedent, if any, subject to performance of which the
complainant and/or the victim has agreed to compound the offence alleged to
have been committed by the person accused and/or ; (b) A stipulation
regarding the voluntariness of the settlement and declaration that the
executors of the settlement agreement were executing and signing the same
without any kind of force, pressure and undue influence ; (c) An unequivocal
declaration that both parties have executed the agreement after understanding
the terms of the settlement agreement as well as of the consequences of its
breach ; (d) A clear stipulation
as to the terms of settlement, the amount (if any) which is agreed to be paid
by any person accused of the offence, to the complainant and/or the victim of
the offence ; (e) A clear and simple
mechanism/method of performance by the persons including timeline(s) of the
conditions precedent, and the manner and mode of the payment of the agreed
amount as well as the terms thereof by the person accused to the
complainant/victim of the offence as also of any other terms agreed to by the
parties ; (f) Undertakings of all
parties to abide and be bound by the terms of the settlement must be contained
in the agreement to ensure that the parties comply with the terms agreed upon ; (g) A clear stipulation,
if agreed upon, of the penalty which would ensure to the parties if a default
of the agreed terms is committed by them, in addition to the consequences of
the breach of the terms of the settlement ; (h) The settlement
agreement shall be signed (or bear thumb impression, if the party is
incapacitated/unable to sign) by all parties or their authorized
representatives, who shall be identified by the counsel in the matter. The
counsel representing the parties would affix their signatures on the settlement
agreement which shall be then endorsed by the mediator ; B.
The
Mediator should forward a carefully executed settlement agreement to the
concerned court on the date fixed, when the parties and/or their authorized
representative(s) would appear before the Court. (a) In any proceeding
before it arising out of cases involving offences which are not compoundable
under Section 320 of the Cr. P. C. or other special statutes, upon request of
the parties (complainant/victim & accused), if the ends of justice and the
facts of the case so warrant, the court may refer the parties to
Mediation/Conciliation of the underlying dispute(s), provided that the same do
not fall in the category of cases for which exercise of powers for quashing the
criminal prosecution may not be exercised ; (b) Upon receipt of an
order or referral, or its reiteration in terms of the above, the person
in-charge of the mediation centre shall appoint a suitable Mediator/Conciliator
having due regard to the nature of the dispute between the parties ; (c) If a settlement is
reached during the mediation, the settlement agreement which is drawn-up must
incorporate all ingredients as prescribed under rule 24 above ; (d) The Mediator/Conciliator
should forward a carefully executed settlement agreement duly signed by the
parties along with the report, to the referral court/parties on the date fixed.
If the settlement is in a pending case, the parties or their authorised
representatives would appear before the Court ; (e) If agreed upon, the
settlement shall also contain an agreement between the parties to seek
appropriate orders for quashing of such offence or discharge of the accused
from the High Court in accordance with law ; (f) Where the settlement
between the parties relates to cases pending in multiple courts, the Mediation
& Conciliation Centre shall ensure that duly authenticated copies of the
settlement agreement are placed before all the courts where such cases are
pending. (a) These Rules shall
apply to criminal cases which may of be such a nature where the parties may not
be either permitted in law to compound the criminal case or may not be willing
to compound the criminal case but may be willing to explore the possibility of
a negotiated settlement of their underlying disputes ; (b) The Court before whom
such a criminal prosecution is pending may encourage the parties to seek
Mediation/Conciliation so far as the underlying dispute is concerned. In case
the parties agree for mediation of their civil disputes, the Court shall refer
the parties to Mediation/Conciliation and such Mediation/Conciliation shall
follow the same procedure as indicated for settlement of civil disputes ; (c) The mediator would
then follow the procedure prescribed above for mediation/conciliation in
compoundable cases as per Rule 24 above ; (d) In case settlement of
underlying disputes during a pending criminal case is reached in
Mediation/Conciliation, the referring court shall require the
Mediator/Conciliator to place such settlement in the litigation pending between
the parties which would proceed in the matter in accordance with prescribed
procedure ; (e) If settlement is
reached regarding matters about which there is no pending litigation, the
parties would be free to seek enforcement of the agreement reached, in
accordance with law. The
court shall adopt the following procedure with regard to a settlement agreement
received from the Mediator/Conciliator in criminal cases : (i) The Court shall
record a statement on oath of the parties affirming the terms of the
settlement; that it was entered into voluntarily, out of the free will of the
parties, after fully understanding the contents and implications thereof,
affirming the contents of the agreement placed before the court ; confirming
their signatures thereon. A clear undertaking to abide by the terms of the
settlement should also be recorded as a matter of abundant caution ; (ii) A statement to the
above effect may be obtained on affidavit. However, the court must record a
statement of the parties proving the settlement agreement and the affidavit on
court record ; (iii) The Court should
independently apply judicial mind and satisfy itself that the settlement
agreement is genuine, equitable, lawful, not opposed to public policy,
voluntary and that there is no legal impediment in accepting the same ; (iv) Pursuant to recording
of the statement of the parties, in its order, the Court should specifically
accept the statement of the parties as well as their undertakings and hold them
bound by the terms of the settlement terms entered into by and between them.
The order should clearly stipulate that in the event of default by either
party, the amount agreed to be paid in the settlement agreement will be
recoverable in terms of Section 431 Cr. P. C. read with Section 421 of the Cr.
P. C. and that additionally, for breach of the undertaking given, the
Magistrate/Court would take appropriate action permissible in law to enforce
compliance with the undertaking as well as the orders of the court based
thereon, including proceedings under section 2(b) of the Contempt of Courts
Act, 1971 for violation thereof ; (v) Upon receiving a
request from the complainant, that on account of the compromise vide the
settlement agreement, it is withdrawing himself from prosecution, the matter
has to be compounded. At this point, the Court should discharge/acquit the
accused person, depending on the stage of the case. This procedure shall be
followed even where the settlement terms require implementation of the terms
and payment over a period of time ; (vi) In the event that
after various rounds of mediation/conciliation, the parties conclude that the
matter cannot be amicably resolved or settled, information to this effect
should be placed before the Court who should proceed in that case on merits, as
per the procedure prescribed by law. (a) Where in any
proceeding it appears to the Court seized of a dispute covered under Section 9
of the Family Courts Act, 1984, that there is a reasonable possibility of a
settlement between the parties and that such settlement may be better
facilitated through the Alternate Dispute Mechanism of Mediation/Conciliation,
such Court shall record the willingness of the parties for the same and make a
reference thereof to a Mediation Centre of their choice ; (b) At the stage when a
reference is made by the Family Court as above, the parties shall also be asked
if they are ready and willing to refer all/any other dispute(s) between them
pending before any other court for exploring the possibility of a comprehensive
settlement through Mediation/Conciliation. If the parties give their consent,
then the same shall be recorded and a reference of such other pending disputes
between them shall also be made to a Mediation Centre of their choice ; (c) While referring the
parties for Mediation/Conciliation, it shall be open to the Court to secure the
services of a Counsellor/Psychologist/Medical Expert or such person whether
related to the parties or not including a person professionally engaged in
promoting the welfare of the family as the court may think fit during the
course of mediation ; (d) If during the course
of mediation a mediator deems necessary to involve an expert for facilitation,
the Mediator may with the consent of the parties request an expert on the panel
of the Mediation Centre to assist the parties in resolution of dispute during
the mediation process ; (e) In the event of
failure of parties to reach a settlement, the expert shall strictly maintain
confidentiality regarding the proceeding. Such expert report should not contain
anything except the report of failure, and preferably only one sentence, e. g.
"the parties could not agree to settle their disputes". The report of
the expert shall not discuss generally or even in neutral narrative, the
position of the parties or even without blaming the parties, indicating the
reason for failure, unless the Court directs a detailed report to be submitted
to the Court in a sealed cover ; (f) If a settlement is
reached, regarding drawing up the settlement agreement and recording thereof,
the procedure in Rules 24 and 25 above shall be followed. (i) Conciliation shall be
In accordance with Part-Ill of the Arbitration and Conciliation Act, 1996 ; (ii) A party seeking
conciliation of any matter may directly or through counsel submit his/her
application seeking conciliation of any dispute on a legal size paper addressed
to the Coordinator of the Concerned District Mediation and Conciliation Centre
at the Reception Counter of the Centre along with one passport size photograph
of the applicant and a self attested copy of the ID Proof ; (iii) Complete address of
both the parties should be mentioned in the application with e-mail address and
phone numbers ; (iv) Such particulars of
lawyer(s) if any, may also be mentioned. If all or some of the parties approach
jointly then each applicant's passport size photo and self attested copy of the
ID Proof shall be submitted along with the application(s) ; (v) The application shall
contain a concise statement from the applicant(s) regarding the dispute and
detailed particulars of all concerned parties ; (vi) A stamp paper of Rs.
100/- (Rupees one hundred only) for recording consent for appointment of
Conciliator be also submitted along with the application ; (vii) Number of copies of
the application equal to the number of parties be furnished for serving the non
applicants ; (viii) In case of
Conciliation in all disputes, except matrimonial disputes, the applicant shall
deposit Rs. 1000/- (Rupees one thousand only) as administrative charges with
the application; (ix) The fee of the
Mediator/Conciliator is presently fixed at Rs. 20000/- (Rupees twenty thousand
only) payable by either party jointly or singly. The same shall be deposited by
the parties forthwith after they have consented to the appointment of
Conciliator ; (x) In the case of
Matrimonial Disputes, the conciliator shall be paid the fee at the rate and in
the manner applicable to the Mediators in these Rules ; (xi) Parties, together or
singly, shall deposit Rs. 250/- (Rupees two hundred fifty only) per sitting
towards charges for the use for conciliation of the Mediation Centre. In the
case of Conciliation in matrimonial disputes, no charges shall be payable ; (xii) The amounts mentioned
in clause (viii), (ix) and (xi) above shall be paid either in cash or through
Pay Order/Demand Draft drawn in favour of the Registrar General, J&K High
Court for which a receipt shall be duly issued by the Centre ; (xiii) A stamp paper of Rs.
1 00/- (Rupees one hundred only) shall be submitted for recording the terms of
a "Conciliated Settlement Agreement" if arrived at between the
parties ; (xiv) Self-attested
passport size photographs of all the parties shall be affixed on the
"Conciliated Settlement Agreement", if any ; (xv) Self-attested ID
Proofs of all the parties shall also be attached to the "Conciliated
Settlement Agreement", if any ; (xvi) In addition to the
signatures, thumb impression of all the signatories to the "Conciliated
Settlement Agreement" shall be obtained on the last page of the
"Conciliated Settlement Agreement" and encircled with name(s) of the
person whose thumb impression is affixed, along with proper indication of the
thumb impression viz. right thumb impression (RTI) or left thumb impression
(LTI), as the case may be ; (xvii) Certified copies of
the "Conciliated Settlement Agreement" may be collected after a week
of the execution of the same. Copies of "Conciliated Settlement
Agreement" shall be supplied to the parties and/or their counsel free of
cost only once. Subsequent copies, if required shall be supplied on payment of
Rs. 5/- (Rupees five only) per page and Rs. 50/- (Rupees fifty only) as
Processing fee. The same shall be made available after three working days of
the application ; (xviii) In case of
requirement of an expert/psychologist/counsellor, the same shall be appointed
only with the written consent of the parties. The parties shall be liable to
deposit Rs. 2000/(Rupees two thousand only) per vist for such
expert/psychologist/counsellor jointly/severally ; (xix) The coordinator may
on consideration of any special circumstances of the dispute or the parties
including their financial condition, waive payment of any of the charges
payable under these Rules. In
the event of the parties arriving at the settlement of a dispute at a
Pre-litigation stage, the settlement shall be drawn up and enforced in the
manner prescribed under Section 56 of the Arbitration and Conciliation Act,
1996. (i) Mediator will be paid
honorarium as fixed by the High Court which may be re- fixed, reviewed from
time to time ; (ii) Each party shall bear
the costs for production of witnesses on his side including experts, or for
production of documents. Costs shall be assessed by the Mediator/Conciliator ; (iii) Where a party is
entitled to legal aid under section 12 of the Legal Services Authorities Act,
1987, the amount of fee payable to the mediator and costs shall be paid by the
concerned Legal Services Authority under that Act. The
Mediator/Conciliator shall, (i) follow and observe
these rules strictly and with due diligence ; (ii) not carry on any
activity or conduct which could reasonably be considered as conduct unbecoming
of Mediator/Conciliator ; (iii) uphold the integrity
and fairness of the mediation process ; (iv) ensure that the
parties involved in the Mediation/Conciliation are fairly informed and have an
adequate understanding of the procedural aspects of the process ; (v) satisfy
himself/herself that he/she is qualified to undertake and complete the
assignment in a professional manner ; (vi) disclose any interest
or relationship likely to affect impartiality or which might seek an appearance
of partiality or bias ; (vii) avoid, while
communicating with the parties, any impropriety or appearance of impropriety ; (viii) be faithful to the
relationship of trust and confidentiality imposed in the office of Mediator/Conciliator
; (ix) conduct all
proceedings related to the resolution of dispute, in accordance with the
applicable law ; (x) recognize that
Mediation/Conciliation is based on the principles of self determination by the
parties and that mediation process relies upon the ability of parties to reach
a voluntary, undisclosed agreement ; (xi) maintain the
reasonable expectations of the parties as to confidentiality ; (xii) refrain from promises
or guarantees of results. Until
a panel of Mediators/Conciliators is prepared by the High Court and the
District and Sessions Judge as stated in Rule 3, the Courts may nominate a
Mediator/Conciliator of their choice if the Mediator/Conciliator belongs to the
various classes of persons referred to in Rule 4 and is duly qualified and is
not disqualified, taking into account the suitability of the
Mediator/Conciliator for resolving the particular dispute(s).MEDIATION AND CONCILIATION RULES, 2019
PREAMBLE