Preference of Parties in Selecting a Mediator Under Mediation Act, 2023

Mediation is built on party autonomy, trust and voluntary participation. The selection of a suitable mediator is therefore an important part of the process. The Mediation Act, 2023 recognises this principle by allowing parties to agree upon a mediator and by requiring mediation service providers to consider their preferences. 

Such preferences may relate to expertise, language, professional background, experience, neutrality and familiarity with the subject matter.

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Meaning of Preference of Parties in Selecting a Mediator

The preference of parties refers to the choice, expectation or requirement expressed by the disputing parties regarding the person who should conduct the mediation. It may involve the selection of a particular individual or the identification of qualities that the mediator should possess.

For example, parties to a construction dispute may prefer a mediator familiar with infrastructure contracts. Parties to a family dispute may consider sensitivity, communication skills and experience in matrimonial mediation more important than technical legal expertise.

The right to express a preference does not mean that one party can unilaterally impose a mediator on the other. Mediation remains a consensual process. The appointment must ordinarily be based on mutual agreement or carried out through a legally recognised institutional mechanism.

The preference of the parties may concern:

• The name of a particular mediator acceptable to all parties;
• Professional or technical expertise in the subject matter;
• Experience in handling similar disputes;
• Knowledge of a particular industry or commercial practice;
• Language and communication abilities;
• Cultural or social sensitivity;
• Location and availability;
• Experience in online or cross-border mediation;
• The mediator’s professional background; and
• The mediator’s style or approach to mediation.

These considerations help the parties identify a mediator who can understand the nature of the dispute and manage discussions effectively.

Statutory Recognition Under the Mediation Act, 2023

The Mediation Act, 2023 provides a formal legal framework for mediation in India. The Act promotes mediation in civil and commercial disputes, recognises institutional mediation and regulates important aspects of mediator appointment and conduct.

Sections 8 and 9 are particularly relevant to the preference of parties in selecting a mediator. These provisions must be read together because Section 8 establishes the parties’ freedom to select a mediator, while Section 9 guides a mediation service provider when it makes an appointment from its panel.

Appointment of Mediators Under Section 8

Section 8 of the Mediation Act, 2023 deals with the appointment of mediators. It gives significant importance to party autonomy.

Nationality of the Mediator

Section 8(1) provides that, unless the parties agree otherwise, a person of any nationality may be appointed as a mediator. Therefore, Indian nationality is not an absolute requirement for appointment.

A mediator of foreign nationality must, however, possess the qualifications, experience and accreditation that may be specified under the applicable framework. This requirement maintains professional standards where parties select a foreign mediator, particularly in cross-border or international commercial disputes.

The provision is useful where a dispute involves foreign businesses, multinational contracts or parties located in different countries. The parties may prefer a mediator who understands international business practices, cross-border transactions or the legal and commercial environment connected with the dispute.

Freedom to Agree on the Mediator

Section 8(2) provides that the parties are free to agree upon the name of the mediator and the procedure for appointment.

This freedom has two dimensions. First, the parties may directly choose a particular mediator. Secondly, they may agree upon a process through which the mediator will be selected.

The appointment procedure may require the parties to jointly nominate a mediator, select a person from an institutional panel or ask a neutral institution to recommend suitable candidates. A contract may also specify how a mediator will be selected if a dispute arises.

This provision reflects the consensual nature of mediation. Since the mediator must communicate with all sides, manage difficult discussions and assist in identifying settlement options, confidence in the mediator is essential.

Appointment Through a Mediation Service Provider

The parties may not always be able to agree upon a mediator. Section 8 therefore provides an institutional mechanism for making the appointment.

Where no agreement is reached, the party seeking to initiate mediation may apply to a mediation service provider for the appointment of a mediator. Upon receiving the application, the service provider must make the appointment within the statutory period.

The mediation service provider may appoint:

• The mediator already agreed upon by the parties; or
• A mediator from its panel where the parties cannot agree or the agreed mediator refuses to act.

The consent of the mediator is also necessary. A person cannot be compelled to accept an appointment. An agreed mediator must communicate willingness or refusal within the period prescribed by the Act.

Preference of Parties Under Section 9

Section 9 specifically addresses the preference of parties. It provides that while appointing a person from its panel, the mediation service provider must consider the person’s suitability and the preference of the parties for resolving the dispute.

The provision becomes particularly important when the parties have not jointly selected a named mediator and the appointment has to be made by a mediation service provider.

Section 9 requires the service provider to consider two connected factors:

1. The suitability of the mediator for the particular dispute; and
2. The preferences expressed by the parties.

The provision does not require an institution to accept every demand made by a party. Instead, it requires genuine consideration of reasonable preferences while selecting a suitable mediator from the available panel.

Difference Between Party Choice and Party Preference

Party choice and party preference are closely connected but are not identical.

Party choice generally refers to a situation where all parties agree upon the name of a particular mediator. Such an appointment is based on mutual consent under Section 8.

Party preference becomes more relevant where a mediation service provider must select a mediator from its panel. The parties may not agree on one name, but they may indicate the characteristics, experience or background that the appointed mediator should possess.

For example, one party may propose three mediators while the other may reject those names but agree that the mediator should have experience in intellectual property disputes. The institution may then appoint a suitable mediator from its panel after considering that common preference.

Therefore, party choice concerns the selection of a particular individual, while party preference may concern the qualities required for an effective appointment.

Factors That Parties May Consider While Selecting a Mediator

No single mediator is suitable for every dispute. The requirements of a family dispute may differ considerably from those of a banking, construction or technology dispute. The parties should therefore consider the nature of the dispute and the circumstances surrounding it.

Independence and Impartiality

The mediator must be independent and impartial. Independence relates to the absence of relationships or circumstances that may influence the mediator. Impartiality concerns the mediator’s ability to treat all parties fairly without favouring one side.

A person may possess extensive expertise but still be unsuitable because of a professional, personal or financial connection with one of the parties.

Subject-Matter Knowledge

Technical knowledge can be valuable in complex disputes. A mediator familiar with the relevant subject may understand the terminology, commercial realities and practical difficulties more quickly.

Subject-matter knowledge may be particularly useful in disputes relating to:

• Construction and infrastructure;
• Intellectual property;
• Banking and finance;
• Insurance;
• Technology and data;
• Employment;
• Healthcare;
• Real estate; and
• International trade.

However, technical expertise should not be treated as the only criterion. Mediation skills remain essential because the mediator’s primary role is to facilitate communication and voluntary settlement rather than decide the legal merits.

Mediation Training and Experience

The ability to conduct mediation differs from the ability to argue or decide a legal case. Effective mediation requires listening, negotiation management, emotional awareness, confidentiality and the ability to identify underlying interests.

Parties may therefore examine the mediator’s training, accreditation, practical experience and record of handling comparable disputes.

Communication and Language

The mediator should be able to communicate clearly with all parties. Language becomes especially important where the participants are more comfortable expressing themselves in a regional language.

Section 15 of the Act permits the mediator, with the consent of the parties, to determine the language or languages used in the mediation. Selecting a mediator who understands the preferred language may make participation more meaningful and reduce misunderstanding.

Cultural and Social Sensitivity

Certain disputes involve personal relationships, community practices, workplace dynamics or cultural concerns. A mediator with appropriate sensitivity may create a more comfortable and respectful environment.

Cultural familiarity must not, however, compromise neutrality. The mediator must remain fair and avoid assumptions based on identity, social position or background.

Availability and Ability to Complete the Process

Availability is a practical but important consideration. The Act prescribes a time frame for completing mediation. Appointment of a highly experienced mediator may not be useful if that person cannot devote sufficient time to the proceedings.

The mediator should be able to schedule sessions, review necessary documents and maintain continuity in the process.

Mediation Style

Mediators may differ in their methods. Some focus primarily on facilitating communication, while others may take a more structured approach to identifying risks and settlement possibilities.

The chosen style should suit the nature of the dispute, the relationship between the parties and their expectations. In emotionally sensitive disputes, a patient and relationship-focused approach may be appropriate. In complex commercial matters, the parties may prefer a structured process with careful examination of commercial risks.

Role of the Mediation Service Provider

A mediation service provider has an important responsibility when appointing a mediator from its panel. Its role is not limited to selecting the next available name.

The provider should consider the nature and complexity of the dispute, the qualifications of panel members, the preferences communicated by the parties, possible conflicts of interest and the mediator’s availability.

Where the parties express different preferences, the provider may identify a mediator who reasonably addresses the concerns of both sides. The institution should avoid an appointment that creates a justified concern regarding independence or suitability.

The provider may also seek further information about the dispute before making the appointment. Such preliminary information should remain limited to what is necessary for selecting an appropriate mediator.

Conflict of Interest and Disclosure by the Mediator

Party preference cannot override the requirement of neutrality. Section 10 requires a person appointed as mediator to disclose in writing any circumstance that may constitute a conflict of interest or give rise to justifiable doubts regarding independence or impartiality.

The disclosure obligation applies before the mediation begins and continues throughout the proceedings. A mediator must disclose a conflict that arises later or comes to notice during mediation.

Relevant circumstances may include:

• A past or present professional relationship with a party;
• A financial interest connected with the dispute;
• A personal relationship with a participant;
• Previous advice given in relation to the matter;
• Repeated appointments by one party; or
• Any other circumstance affecting perceived neutrality.

After disclosure, all parties may waive the objection in writing. Such waiver amounts to their consent to the mediator continuing with the proceedings.

However, where a party seeks replacement following disclosure, the statutory mechanism for terminating the mediator’s mandate may be used.

Replacement of a Mediator

A mediator initially preferred or selected by the parties may later become unable or unsuitable to continue. A conflict may arise, the mediator may withdraw or doubts regarding independence may emerge.

The Act addresses such situations through Sections 11 and 12. In institutional mediation, the mediation service provider may terminate the mediator’s mandate in circumstances recognised by the Act. A replacement mediator must then be appointed from the panel within the prescribed period.

In mediation other than institutional mediation, the parties may appoint another mediator after termination of the earlier appointment.

The replacement process protects both continuity and fairness. It prevents the mediation from failing merely because the first mediator cannot continue.

Limits on the Preference of Parties

The parties’ preference is important, but it is not absolute. Certain legal and ethical requirements cannot be excluded merely because both parties prefer a particular person.

A preferred mediator must be capable of acting independently, neutrally and impartially. The individual must also satisfy applicable qualifications, registration conditions, institutional rules and professional standards.

A mediation service provider may be unable to appoint the preferred person where:

• The person is not on the relevant panel;
• The person refuses the appointment;
• A disqualifying conflict of interest exists;
• The person lacks the required qualifications;
• The person is unavailable;
• The preference is discriminatory or unreasonable; or
• The appointment may undermine the integrity of the process.

Party autonomy must therefore operate within the framework of fairness, legality and professional responsibility.

Recording Preferences in a Mediation Clause

Parties entering commercial contracts may address mediator selection in advance through a properly drafted mediation clause.

The clause may specify:

• Whether mediation will be institutional or independent;
• The agreed mediation service provider;
• The number of mediators;
• The method of nomination;
• Required qualifications or experience;
• The language of mediation;
• The place or online mode of mediation; and
• A fallback procedure where the parties cannot agree.

A clause should not be so restrictive that appointment becomes impossible. For example, requiring a mediator with extremely narrow qualifications may delay the process if no such person is available.

The clause should balance certainty with flexibility. It may identify the type of experience required while allowing the chosen institution to appoint a suitable person where no joint nomination is made.

Practical Approach to Selecting a Mediator

A structured selection process can reduce disagreement and prevent delay. 

• The parties may first identify the nature of the dispute and determine whether specialist knowledge is necessary. 
• They may then prepare a shortlist based on professional qualifications, mediation experience, language, availability and absence of conflicts.
• Each proposed mediator should make appropriate disclosures before appointment. The parties should also clarify fees, scheduling arrangements, the mode of mediation and the applicable institutional rules.
• Selection should not be based only on professional reputation or former judicial position. 
• The ability to facilitate dialogue, remain patient, manage unequal bargaining positions and preserve confidentiality is equally important.

Conclusion

The preference of parties in selecting a mediator is a significant feature of the Mediation Act, 2023. Sections 8 and 9 recognise both direct party choice and institutional consideration of party preferences. This framework strengthens trust, autonomy and suitability in mediation. 

However, the chosen mediator must remain independent, impartial, competent and free from disqualifying conflicts. A careful selection process can improve participation, procedural fairness and the possibility of a durable settlement.