Mediators and Conciliators of the Company

Regional Director shall prepare a panel of experts willing and eligible to be appointed as mediators or conciliators in the respective regions and such panel shall be placed on the website of the Ministry of Corporate Affairs or on any other website as may be notified by the Central Government. The Regional Director may invite applications from persons interested in getting empanelled as mediators or conciliators of the company and possessing the requisite qualifications specified in Rule 4. A person who intends to get empanelled as mediator or conciliator and possesses the requisite qualifications shall apply to the Regional Director in Form MDC-1. Application received under sub-rule (3), if rejected by the Regional Director, the Regional Director shall record the reasons in writing for the same. The Regional Director shall invite applications from persons interested in getting empanelled as mediator or conciliator every year during the month of February and update the panel which shall be effective from 1^st of April of every year. Provided that for Financial Year 2016 to 2017, the Regional Director may call for applications from the persons interested in getting empanelled as mediator or conciliator, within 60 days from the date of publication of these rules and prepare the panel for the current financial year within a period of 30 days.

Qualifications for empanelment

A person shall not be qualified for being empanelled as mediator or conciliator unless he-

• Has been a judge of the Supreme Court of India; or
• Has been a judge of a High Court; or
• Has been a District and Sessions Judge; or
• Has been a Member or Registrar of a Tribunal constituted at the national level under any law for the time being in force; or
• Has been an officer in the Indian Corporate Law Service or Indian Legal Service with fifteen years’ experience; or
• Is a qualified legal petitioner for not less than ten years; or
• Is or has been a professional for at least fifteen years of continuous practice as Chartered Accountant or Cost Accountant or Company Secretary; or
• Has been a Member or President of any State Consumer Forum; or
• Is an expert in mediation or conciliation who has successfully undergone training in mediation or conciliation.

Disqualifications for empanelment

A person shall be disqualified for being empanelled as mediator or conciliator, if he-

• Is an discharged insolvent or has applied to be adjudicated as an insolvent and his application is pending;
• Has been convicted for an offence which, in the opinion of the Central Government, involves moral turpitude;
• Has been removed or dismissed from the service of the Government or the corporation owned or controlled by the Government;
• Has been punished in any disciplinary proceeding, by the appropriate disciplinary authority; or
• Has, in the opinion of the Central Government, such financial or other interest in the subject matter or is related to any of the parties, as is likely to affect prejudicially the discharge by him of his functions as a mediator or conciliator.

Application for appointment of Mediators or Conciliators and their appointment

1) Parties concern may agree on the name of the sole mediator or conciliator for mediation or Conciliation between them; Where, there are two or more sets of parties and are unable to agree on a sole mediator or conciliator of the company, the Central Government or the Tribunal or the Appellate Tribunal may ask each party to nominate the mediator or conciliator or the Central Government or the Tribunal or the Appellate Tribunal may appoint the mediator or conciliator, as may be deemed necessary for mediation or conciliation between the parties.

2) The application to the Central Government or the Tribunal or the Appellate Tribunal, as the case may be, for referring the matter pertaining to any proceeding pending before it for mediation or conciliation shall be in Form MDC-2 and shall be accompanied with a fee of one thousand rupees.

(3) On receipt of an application under sub-rule (2), the Central Government or the Tribunal or the Appellate Tribunal shall appoint one or more experts from the panel.

(4) The Central Government or the Tribunal or the Appellate Tribunal, as the case may be, before which any proceeding is pending may, suo motu, refer any matter pertaining to such proceeding to such number of experts from the Mediation and Conciliation Panel, if it deems fit in the interest of parties.

Deletion from the Panel

The Regional Director may by recording reasons in writing and after giving him an opportunity of being heard, remove any person from Panel.

Withdrawing name from Panel

Any person who intends to withdraw his name from the Mediation and Conciliation Panel may make an application to the Regional Director indicating the reasons for such withdrawal and the Regional Director shall take a decision on such application within fifteen days of receipt of such application and update the Panel accordingly.

Duty of mediators or conciliators to disclose certain facts

(1) It shall be the duty of a mediator or conciliator to disclose to the Central Government or the Tribunal or the Appellate Tribunal, as the case may be, about any circumstances which may give rise to a reasonable doubt as to his independence or impartiality in carrying out his functions.

(2) Every mediator or conciliator shall from the time of his appointment and throughout continuance of the mediation or conciliation proceedings, without any delay, disclose to the parties about existence of any circumstance referred to in sub-rule (1).

Withdrawal of appointment

The Central Government or the Tribunal or the Appellate Tribunal as the case may be, upon receiving any disclosure furnished by the mediators or conciliators of the company under rule 9, or after receiving any other information from a party or other person in any proceeding which is pending and on being satisfied that such disclosures or information has raised a reasonable doubt as to the independence or impartiality of such mediator or conciliator, may withdraw his appointment and in his place, appoint any other mediator or conciliator in that proceeding: Provided that the mediator or conciliator may, offer to withdraw himself from such proceeding and request the Central Government or the Tribunal or the Appellate Tribunal as the case may be to appoint any other mediator or conciliator.

Procedure for disposal of matters

(1) For the purposes of mediation and conciliation, the mediator or conciliator shall follow the following procedure, namely:-

1. i) He shall fix, in consultation with the parties, the dates and the time of each mediation or conciliation session, where all parties have to be present:

(ii) He shall hold the mediation or conciliation at the place decided by the Central Government or the Tribunal or the Appellate Tribunal, as the case may be, or such other place where the parties and the mediator or conciliator jointly agree;

(iii) He may conduct joint or separate meetings with the parties;

(iv) Each party shall, ten days before a session, provide to the mediator or conciliator  brief memorandum setting forth the issues, which need to be resolved, and his position in respect of those issues and all information reasonably required for the mediator or conciliator to understand the issue and a copy of such memorandum shall also be given to the opposite party or parties: Provided that in suitable or appropriate cases, the above mentioned period may be reduced at the discretion of the mediator or conciliator;

(v) Each party shall furnish to the mediator or conciliator such other information as may be required by him in connection with the issues to be resolved.

(2) Where there is more than one mediator or conciliator, the mediator or conciliators may first concur with the party that agreed to nominate him and thereafter interact with the other mediator or conciliator, with a view to resolve the dispute.

Mediators or Conciliators not bound by the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908

The mediators or conciliators shall not be bound by the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908 while disposing the matter, but shall be guided by the principles of fairness and natural justice, having regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute.

Representation of parties

The parties shall ordinarily be present personally or through an authorized attorney at the sessions or meetings notified by the mediators or conciliators. Provided that the parties may be represented by an authorized person or counsel with the permission of the mediator or conciliator in such sessions or meetings and the mediators or conciliators or the Central Government or the Tribunal or the Appellate Tribunal as the case may be, shall be entitled to direct or ensure the presence of any party to appear in person: Provided further that the party not residing in India may, with the permission of the mediator or conciliator, be represented by his or her authorized representative at the sessions or meetings.

Consequences of non-attendance of parties at sessions or meetings on due dates

If a party fails to attend a session or a meeting fixed by the mediators or conciliators deliberately or willfully for two consecutive times, the mediation or conciliation shall be deemed to have failed and mediator or conciliator of the company shall report the matter to the Central Government or the Tribunal or the Appellate Tribunal, as the case may be.

Administrative assistance

In order to facilitate the conduct of mediation or conciliation proceedings, the mediators or conciliators with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

Offer of settlement by parties

Any party to the proceeding may, “without prejudice” offers a settlement to the other party at any stage of the proceedings, with a notice to the mediator or conciliator. Any party to the proceeding may make a, “with prejudice” offer to the other party at any stage of the proceedings with a notice to the mediator or conciliator.

Role of Mediators or Conciliators

The mediators or conciliators 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 resolve the dispute, emphasizing that it is the responsibility of the parties to take decision which affect them and he shall not impose any terms of settlement on the parties: Provided that on consent of both the parties, the mediator or conciliator may impose such terms and conditions on the parties for early settlement of the dispute as he may deem fit. Parties alone responsible for taking decision.-The parties shall be made to understand that the mediators or conciliators of the company facilitates in arriving a decision to resolve the dispute and that he shall not and cannot impose any settlement nor the mediator or conciliator give any assurance that the mediation or conciliation shall result in a settlement and the mediator or conciliator shall not impose any decision on the parties.

Time limit for completion of mediation or conciliation

(1) The process for any mediation or conciliation under these rules shall be completed within a period of three months from the date of appointment of expert or experts from the Panel.

(2) On the expiry of three months from the date of appointment of expert from the Panel, the mediation or conciliation process shall stand terminated.

(3) In case of mediation or conciliation in relation to any proceeding before Tribunal or Appellate Tribunal which could not be completed within three months, the Tribunal or as the case may be, the Appellate Tribunal, may on the application of mediator or conciliator or any of the party to the proceedings, extend the period for mediation or conciliation by such period not exceeding three months.

Ethics to be followed by Mediators or Conciliators

The mediator or conciliator shall-

a) Follow and observe the rules strictly and with due diligence;

(b) Not carry on any activity or conduct which shall reasonably be considered as conduct unbecoming of a mediator or conciliator;

(c) Uphold the integrity and fairness of the mediation or conciliation process;

(d) Ensure that the parties involved in the mediation or conciliation are fairly informed and have an adequate understanding of the procedural aspects of the process;

(e) Satisfy himself or herself that he or she is qualified to undertake and complete the assignment in a professional manner;

(f) Disclose any interest or relationship likely to affect impartiality seeks an appearance of partiality or bias;

(g) Avoid, while communicating with the parties, any impropriety or appearance of impropriety;

(h) Be faithful to the relationship of trust and confidentiality imposed in the office of mediator or conciliator:

(i) Conduct all proceedings related to the resolutions of a dispute, in accordance with the relevant applicable law;

j) Recognize that the mediation or conciliation is based on principles of self- determination by the parties and that the mediation or conciliation process relies upon the ability of parties to reach a voluntary, undisclosed agreement; and

k) Maintain the reasonable expectations of the parties as to confidentiality and refrain from promises or guarantees of results.

Provided that if any party finds conduct of mediator or conciliator violative of ethics laid down in this rule, the party may immediately bring it to the notice of the Regional Director.

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