DAC Mediation Rules, 2017

Where any agreement, submission or reference provides for mediation or conciliation by Delhi Arbitration Centre (DAC) or under the Mediation Rules of the Delhi Arbitration Centre (DAC Mediation Rules), the parties shall be taken to have agreed that the mediation or conciliation shall be conducted in accordance with the following Rules, or such amended Rules as DAC may have adopted to take effect before the commencement of mediation. The Rules are subject to such modifications as the parties may agree in writing at any time.

These Rules shall also apply to the mediation of present or future disputes where the parties seek amicable settlement of such disputes and where, either by stipulation in their contract or by an agreement to mediate, they have agreed that these Rules shall apply. The parties may agree to vary these Rules at any time.

These Rules shall also apply to mediation initiated under the Arb-Med-Arb procedure, where mediation is commenced on a referral by an arbitral tribunal.

Mediation under these Rules is a confidential, voluntary and private dispute resolution process in which a neutral person or persons (the mediator(s)) helps the parties to reach a negotiated settlement.

If a dispute arises, a party may request the initiation of mediation by delivering a written request for mediation to the other party or parties with copies to DAC. Such request for mediation shall contain a brief self-explanatory statement of the nature of the dispute, the quantum in dispute (if any), the relief or remedy sought and nominating a mediator or mediators thought suitable.

A party or parties who receive a request for mediation shall notify any other party and DAC within 15 days after receipt of the request whether they are willing for mediation and whether any mediator nominated is acceptable. Failure by any party to reply within 15 days shall be treated as a refusal to mediate.

Notwithstanding anything contained in Rule 2A, a party to a dispute or all parties to the dispute may request the initiation of mediation by submitting a Mediation Submission Form to DAC.

On receipt of Mediation Submission Form by a party to a dispute, DAC shall send an invitation to mediate, nominating a Mediator or Mediators as the case may be and scheduling the date, time and venue of the 1st session of mediation. The party who receive the invitation for mediation can either attend the mediation session as per the invitation before the mediator, or can notify his inability to attend on the scheduled date or express his objection to the nominated mediator, so that DAC can nominate another mediator or reschedule the 1st session based on the convenience of the parties and the mediator. If there is no response from the opposite party or if he fails to appear on the scheduled date, it shall be treated as a refusal to mediate.

In case the mediation is initiated based on Arb-Med-Arb procedure, DAC shall send an invitation to the Parties to attend the first session of mediation, mentioning the name of the Mediator or Mediators as the case may be and the date, time and venue of the 1st session. The parties can either attend the mediation session as per the invitation before the mediator, or can notify his/their inability to attend on the scheduled date or express his/their objection to the nominated mediator, so that DAC can nominate another mediator or reschedule the 1st session based on the convenience of the parties and the mediator. If there is no response from the parties or if one or all the parties fail to appear on the scheduled date, it shall be treated as a refusal to mediate.

Where the parties agree on mediation and agree on a mediator and the proposed mediator is willing to serve, they will notify DAC. The mediation shall then proceed in accordance with these Rules.

If the parties fail to agree on the appointment of a mediator, DAC will appoint a single mediator who is prepared to serve.

There shall be one mediator, unless the parties agree that there shall be three mediators. In case of three mediators, each party shall appoint one mediator and the parties may agree on a name of the third mediator, who shall act as the Presiding Mediator. If the parties fail to agree on the third mediator, DAC shall appoint the third mediator.

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 select the sole mediator and failing unanimity in that behalf, DAC shall appoint a sole mediator.

The appointment of mediator by DAC under this Rule is deemed to be made on the agreement of parties as per Sec. 64(2) of the Arbitration & Conciliation Act, 1996.

No person shall act as mediator in any dispute in which that person has any financial or personal interest in the result of the mediation except by consent of the parties. Before accepting an appointment, the proposed mediator shall disclose to the parties and to DAC if DAC has made the appointment, any circumstances likely to create a presumption of bias or prevent a prompt resolution of the dispute. If any disclosure is made, DAC shall immediately communicate the information to the parties for their comments. If any party takes objection to the proposed mediator within 3 days he shall not be appointed. The replacement mediator will be appointed in the same manner as the mediator, who is replaced.

Upon appointment of mediator, DAC will work with the parties to establish the time and location of each mediation session.

The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings.

Where the parties do not agree on any particular procedure to be followed by the mediator, the mediator shall follow the procedure hereinafter mentioned, namely:

Once the parties agree to proceed with mediation, they shall sign an agreement to mediate.

The mediator shall use his best endeavors to conclude the mediation within 60 days of his appointment. His appointment shall not extend beyond a period of three months without the written consent of all parties.

The mediator is not bound by the law of procedure or Evidence Act.

The mediator may conduct the mediation in such manner, as he considers appropriate, taking into account the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute.

The mediator shall be guided by the principles of fairness and justice, have regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute. The mediator is bound by the DAC Mediators’ Professional Code of Conduct.

The mediator may obtain expert advice in technical matters with the consent of the parties, who shall bear the expenses incurred.

The mediator shall disclose the substance of all information concerning the dispute which he receives from one party, to the other party and the other party shall be given opportunity to present explanations.

The mediator shall attempt to facilitate voluntary resolution of the dispute 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, 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.

After each session of mediation, the Mediator shall submit a Mediation Record Form, indicating the duration of the mediation session and result of the session to DAC. This shall be signed by the mediator and DAC in case of institutional mediation and by the mediator and the parties in case of ad-hoc mediation.

The mediator may communicate with the parties together or with any party separately, including private meetings and each party shall co-operate with the mediator. The parties shall give full assistance to enable the mediation to proceed and be concluded within the time stipulated.

Each party may at its own initiative or at the invitation of the mediator, give suggestions for settlement of the dispute.

The parties must understand that the mediator only facilitates in arriving at a decision to resolve disputes and that he will not and cannot impose any settlement nor does the mediator give any warranty that the mediation will result in a settlement. The mediator shall not impose any decision on the parties.

While no one can be compelled to commit to settle his case in advance of mediation, all parties shall commit to participate in the proceedings in good faith with the intention to settle the disputes.

DAC will make the necessary arrangements for the mediation, including –

DAC, together with the Mediator, will assist in drawing up the mediation agreement, if necessary.

The parties may be represented or assisted by persons of their choice. Each party shall notify in advance the names and the role of such persons to DAC and the other party. Each party shall have full authority to settle the matter before the mediator. The parties will confer upon their representatives the necessary authority to settle the dispute.

If any of the parties are not able to be present personally, he/they can be represented through their counsel or power of attorney holders. But such counsel or power of attorney holder shall have the power to enter into any settlement.

If any of the party is assisted by a legal counsel, the other party shall also be entitled to such assistance by a legal counsel.

The names, addresses, phone and fax numbers of all parties to the dispute, and those who will represent them, should be exchanged between the parties and also furnished to DAC.

Mediation is a private and confidential process. Every document, communication or information disclosed, made or produced by any party for the purpose of or related to the mediation process shall be disclosed on a privileged and without prejudice basis and no privilege or confidentiality shall be waived by such disclosure. Confidentiality also extends to the settlement agreement except where its disclosure is necessary for implementation or enforcement.

Mediation proceedings are settlement negotiations, and all offers, promises, conduct and statements, whether written or oral, made in the course of the proceedings, are inadmissible in any litigation or arbitration of the dispute. However, evidence that is otherwise admissible shall not be rendered inadmissible as a result of its use in the mediation session.

The Mediation will be conducted in confidence, and no transcript or formal record will be made. No audio-visual recording will be made of the proceedings. Only the Mediator, the parties and/or their representatives and advisers and DAC staff as required will be permitted to be present during the mediation.

Nothing that transpires during the course of the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.

Parties shall maintain confidentiality in respect of events that transpired during mediation and shall not rely on or introduce the said information in any other proceedings as to:

When the mediator finds that there exist elements of settlement, he shall formulate the terms of a possible settlement and submit to the parties for their observations. After receiving their observations, the terms may be reformulated by the mediator.

If the parties reach agreement on the settlement terms, the mediator with the assistance of DAC, may draw up a settlement agreement on the terms agreed by the parties and the parties may sign the settlement agreement. The mediator shall authenticate the agreement and furnish a copy to each party.

When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them. The settlement agreement shall have the same status as that of an arbitral award and can be executed and enforced as a decree of a court.

In the case of Arb-Med-Arb procedure, where a dispute is fully or partially resolved, the same shall be reduced to writing and signed by the parties or their power of attorney holder, which shall be submitted to DAC and DAC shall forward the same to the Arbitral Tribunal along with the Mediation Status Report.

In the case of court-referred mediation, where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues, the same shall be reduced to writing and signed by the parties or their power of attorney holder. If any counsels have represented the parties, they shall attest the signature of their respective clients. The agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him, forward the same to the Court in which the suit is pending. Where no agreement is arrived at between the parties, before the prescribed time limit or where, the mediator is of the view that no settlement is possible, he shall report the same to the said Court in writing.

The mediation process shall come to end:

On completion of mediation, the Mediator(s) shall submit a Completion Report to DAC.

After receipt of Completion Report, DAC shall issue a Mediation Status Report to the parties, if they so request, intimating the final status of the process.

In case of mediation under the Arb-Med-Arb procedure, DAC shall send the Mediation Status Report to the Arbitral Tribunal. If the parties have fully or partially resolved the dispute, a copy of the settlement agreement shall also be forwarded to the Arbitral Tribunal.

Unless otherwise agreed, each party shall bear its own costs regardless of the outcome of the mediation or of any subsequent arbitral or judicial proceedings. All other costs and expenses shall be borne equally by the parties and the parties shall be jointly and severally liable to pay to the mediator such costs, including:

The Mediator fee shall be fixed by DAC in accordance with the DAC Mediation Fee Schedule, unless the mediator and the parties have agreed on a different engagement term at the time of appointment.

The administrative costs of mediation shall be fixed by DAC in accordance with the DAC Mediation Fee Schedule.

The sum designated in the DAC Mediation Fee Schedule of Initial Deposits shall be deposited by each of the parties with DAC before the mediator enters upon the mediation, as a contribution to the cost and proper expenses of the mediation including the mediator’s fees and expenses.

The mediator or DAC may at any time during the mediation require the parties to make further deposits to cover any additional anticipated fees and expenses and suspend the process until such deposit is made.

Any surplus funds deposited shall be returned to the parties at the conclusion of the mediation.

All parties recognize that at the mediation session(s) and at every other point of the proceedings:

Parties may be represented by a counsel at any stage of the mediation process, and are encouraged to consult legal counsel concerning the proceedings or any proposed settlement agreements.

The parties jointly and severally release, discharge and indemnify the mediator and DAC in respect of all liability whatsoever, whether involving negligence or not, from any act or omission in connection with or arising out of or relating in any way to any mediation conducted under these Rules, save for the consequences of fraud, dishonesty or violation of DAC Mediators’ Professional Code of Conduct.

No mediator shall be summoned by any party to appear in a Court of law 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 proceedings.

Under these Rules a decision to be taken by DAC, shall be taken by the Registrar, DAC. The Registrar may, if required, delegate such of his duties and functions to a Deputy Registrar or Additional Registrar, who may decide such issues as are specifically authorized by the Registrar.

The interpretation of any provision in these Rules shall be made by DAC.

The Fee structure under the Rules shall be fee published by DAC in the DAC Mediation Fee Schedule as on the date of submission of mediation. The current fee schedule of DAC, mentioned in Schedule-3, shall be notified by DAC from time to time or published in its official web site.

Any of the above procedures may be altered by the Registrar, DAC, in his sole discretion, to fit the circumstances of a particular case. Any matter not specifically addressed by these rules, or any conflict or ambiguity in these rules, will be decided by the Registrar, DAC. The Registrar, in his sole discretion, has authority to prepare forms, resolve procedural disputes, impose time limits on the parties, and otherwise require a party to take action or refrain from taking action.

DAC shall have the power and authority to effectuate the purposes of these Rules, including establishing appropriate rules and procedures governing mediation and altering, amending or modifying these Rules in accord with the law.

Promotion of Mediators’ Services. Subject to applicable laws and to regulations governing professional practice, Mediators will present and promote their practice in a truthful way. They may quote freely from, and link to, their Profile on the DAC website and they are free to replicate that Profile, or extracts from it, for their own professional purposes.

Appointment. Before the mediation begins, Mediators will advise the parties (eg. by way of directing them to the Mediator’s Profile on the DAC website, or in the mediation agreement):

Diligence. Mediators may accept an assignment to act as Mediator in any situation where they feel competent to serve in that capacity.

Independence, Neutrality and Impartiality.

Conflicts of Interest.

Procedure. Mediators will satisfy themselves that the parties to the mediation and their advisers understand the characteristics of the mediation process, their roles as parties and advisers, and the role of a mediator. The Mediator will ensure that before the mediation begins, the parties have understood and agreed the terms and conditions which will govern the mediation including those relating to obligations of confidentiality on the Mediator and on the parties. It is best practice for those terms to be contained in a written Mediation Agreement unless the parties or the circumstances dictate otherwise.

Fairness and Integrity of the Process.

Termination of the Process.

Feedback. Unless inappropriate in the circumstances, Mediators will, at the conclusion of a mediation, invite the parties and advisers and any co-mediators or assistant mediators, to complete a Feedback Request Form and deposit it in the Box kept for the purpose in the Mediation Centre or send the same to DAC.

Fees.

Mediators will keep confidential all information acquired in the course of serving as a mediator in a mediation unless:

The Mediator may, however, disclose having previously served as a mediator in a mediation involving one or more of the parties, provided none of the details of that case are disclosed.

Mediators will discuss confidentiality with the parties before or at the beginning of the mediation and obtain their consent to any communication or practice by the Mediator that involves the disclosure of confidential information.

Mediators may use or disclose confidential information obtained during a mediation when, and to the extent that, they believe it to be necessary to prevent death or serious physical harm or damage from arising or believe an illegal act may realistically arise. Before using or disclosing such information, if not otherwise required to be disclosed by law, Mediators must, if they consider it appropriate, make a good faith effort to persuade the party and/or the party’s counsel or other advisers, to act in such a way that would remedy the situation.

The Mediator shall follow and observe the Code strictly and with due diligence and shall not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a mediator.

The Mediator may consult the institution or DAC about any professional or ethical dilemmas.

Where the Mediator is subject to the Code, a party to a mediation who believes there has been a lack of compliance with this Code may submit a complaint to this effect to DAC on the Mediators’ Conduct Assessment.

The Professional Conduct Assessment Process may be activated by a Party in a mediation to seek redress for an alleged code of conduct breach if the Discussion Step has not resolved the issue, within a period of one month. To activate the Assessment Process, the Party shall file a formal complaint to the Registrar, DAC by filing the Mediator Complaint Initiation Form. DAC will promptly acknowledge receipt and send a copy to the Mediator whose conduct is the subject of the Complaint.

If the complaint is seen prima-facie to be frivolous, the same will be dismissed by the Registrar, DAC and intimated to the Party.

After having received an admissible Application, DAC will promptly appoint a Professional Conduct Assessor being a member of the DAC Mediator Disciplinary Committee, to hear the complaint and the Mediator’s case and decide upon the resolution.

The Assessor will decide the appropriate process in each case, which may involve one or more hearings in person, be conducted by written, electronic, video or telephonic communications, or any suitable combination. The Assessor will in all cases strive to understand all relevant facts, and allow the Party and the Mediator full opportunity to present their respective cases and to rebut the other side’s arguments. The Assessment sessions will be private.

The Assessment Process will last no more than three months following appointment of the Assessor by DAC. At the end of the Assessment Process, the Assessor will issue a decision having one or more of the following outcomes:

The decision of the Assessor will be accompanied by its reasons. The decision will become effective as an arbitral award.

When imposing the sanction of suspension or permanent withdrawal of the DAC Mediator, the Assessor may determine that this sanction will be suspended unless on a subsequent occasion the Mediator is in further breach of the Code of Professional Conduct within a certain period.

The Assessor will immediately send a copy of their decision to the Party, the Mediator against whom the complaint is directed, and DAC.

Subject to section E(vi), the costs of the Assessment Process will be shared equally by the Party and the Mediator.

Members of the DAC Mediator Disciplinary Committee shall be appointed from time to time by the Governing Council of DAC. The members shall be selected from the DAC Reviewers. The members shall be appointed for a term of four years and shall be eligible for reappointment.

When a Complaint is received against a Mediator, DAC will appoint a Professional Conduct Assessor from among the members of the DAC Mediator Disciplinary Committee, who are reasonably local to the Parties and the Mediator in each case in order to contain costs.

An estimate of costs will be provided to the parties promptly after the Assessor is appointed.

The Assessor may be challenged by the Party or by the Mediator, in the event of actual or potential conflict of interest or for any other valid reason which could compromise impartiality. Decisions on challenges will be made by the Registrar, DAC.

Any challenge by the Party or Mediator must be presented to DAC no later than 7 days after notification of the identity of the Assessor and be fully supported by reasons.

Model Agreement to Mediate — available under Forms & Procedures.

DAC Feedback Request Form — available under Forms & Procedures.

DAC Mediator Evaluation Form — available under Forms & Procedures.

DAC Mediation Fee Schedule — the schedule in force is published under Forms & Procedures and notified by DAC from time to time.