Prohibited Conduct of a Mediator Under Mediation Act, 2023

Mediation succeeds only when the parties trust the mediator to remain fair, neutral and confidential throughout the process. For this reason, the Mediation Act, 2023 places several restrictions on the conduct of mediators. 

A mediator cannot favour any party, misuse confidential information, hide conflicts of interest or force a settlement. These restrictions protect the integrity of mediation, ensure voluntary dispute resolution and strengthen confidence in India’s mediation framework.

Add LawBhoomi as your preferred source on Google.

Add Now →

What Is Prohibited Conduct of a Mediator?

Prohibited conduct of a mediator refers to any act or omission that compromises the fairness, neutrality, independence or confidentiality of the mediation process. Such conduct is inconsistent with the legal and ethical responsibilities imposed upon mediators under the Mediation Act, 2023.

Unlike judges or arbitrators, mediators do not decide disputes. Their role is limited to facilitating communication, helping parties understand each other’s concerns and encouraging a mutually acceptable settlement. Any conduct that exceeds or misuses this role may amount to prohibited conduct.

The restrictions imposed on mediators are intended to:

• Maintain public confidence in mediation.
• Protect the voluntary nature of dispute resolution.
• Ensure equality between the parties.
• Preserve confidentiality.
• Prevent misuse of authority or influence.
• Promote ethical standards within the mediation profession.

Why Are Restrictions on Mediators Necessary?

The success of mediation depends largely on the confidence of the parties in the mediator. Parties often disclose confidential information, commercial strategies, financial details and personal concerns during mediation. Such openness is possible only when there is complete faith in the mediator’s neutrality and professionalism.

Restrictions on mediators therefore serve several important purposes:

• They ensure that no party gains an unfair advantage.
• They prevent abuse of confidential information.
• They maintain the independence of the mediator.
• They encourage voluntary settlements rather than forced compromises.
• They enhance the credibility and acceptance of mediation as an effective dispute resolution mechanism.

Without these safeguards, mediation could lose its effectiveness and parties may hesitate to participate honestly in the process.

What Does the Mediation Act, 2023 Say About Prohibited Conduct?

The Mediation Act, 2023 does not contain a single provision titled “Prohibited Conduct of a Mediator.” Instead, various sections collectively establish the legal duties and restrictions applicable to mediators.

Important provisions include:

• Section 10 – Disclosure of circumstances giving rise to conflict of interest.
• Section 15 – Conduct of mediation proceedings.
• Section 16 – Role of the mediator.
• Section 17 – Restrictions on the mediator in other proceedings.
• Section 22 – Confidentiality.
• Section 23 – Privilege and inadmissibility of mediation communications.
• Section 52 – Power of the Mediation Council of India to frame regulations regarding professional standards and ethics.

Together, these provisions ensure that mediators act independently, ethically and professionally throughout the mediation process.

Can a Mediator Show Bias Towards Any Party?

No. A mediator must always remain impartial.

Impartiality means treating every party equally without showing favour, prejudice or preference. Even the appearance of bias can reduce confidence in the mediation process.

Examples of biased conduct include:

• Supporting one party’s legal position.
• Giving greater opportunity to one party to present its case.
• Showing personal preference based on relationship, status or background.
• Displaying hostile behaviour towards a particular party.
• Allowing previous professional or personal relationships to influence mediation.

A mediator must ensure that every participant receives equal opportunity to explain concerns, negotiate and participate in settlement discussions.

Can a Mediator Hide a Conflict of Interest?

No. One of the most important duties of a mediator is to disclose any circumstance that may create a conflict of interest.

A conflict of interest may arise where the mediator:

• Has a financial interest in the dispute.
• Has previously advised one of the parties.
• Has a business relationship with either party.
• Is related to any participant.
• Has any personal interest that could affect neutrality.

The obligation to disclose is continuous. Even if a conflict arises after mediation has commenced, the mediator must immediately disclose it to all parties.

Failure to disclose such circumstances may seriously affect the fairness of mediation and may result in replacement of the mediator.

Can a Mediator Force the Parties to Settle?

No. Mediation is based entirely on voluntary participation.

A mediator cannot:

• Compel acceptance of settlement terms.
• Threaten any party.
• Pressure parties to compromise.
• Use emotional manipulation.
• Insist that mediation must end in settlement.

The mediator may encourage discussion, identify possible solutions and facilitate negotiation. However, the final decision always belongs to the parties.

A settlement reached under pressure defeats the very purpose of mediation and may later become vulnerable to legal challenge.

Can a Mediator Decide Who Is Right or Wrong?

No.

Unlike a judge or arbitrator, a mediator does not determine liability or pronounce a binding decision.

The mediator should avoid:

• Declaring one party legally correct.
• Giving a verdict.
• Determining compensation.
• Acting like a judge.
• Passing orders.

Instead, the mediator facilitates dialogue and helps parties reach their own mutually acceptable resolution.

Can a Mediator Give Legal Advice?

A mediator may explain the mediation process and assist parties in understanding issues. However, the mediator should not act as the legal adviser of either party.

Giving legal advice to one party may:

• Create inequality.
• Affect impartiality.
• Influence negotiations unfairly.
• Undermine confidence in mediation.

Parties remain free to obtain independent legal advice whenever required.

Can a Mediator Later Act as an Arbitrator or Lawyer in the Same Dispute?

Generally, no.

The Mediation Act restricts a mediator from subsequently acting in another adjudicatory or representative capacity concerning the same dispute unless permitted by law or with the consent contemplated under the applicable framework.

The mediator should not subsequently become:

• Arbitrator.
• Advocate.
• Legal representative.
• Counsel.
• Witness in relation to confidential mediation communications.

This restriction protects the confidentiality of mediation and ensures that information obtained during private discussions is not later used against either party.

It also prevents conflicts between the mediator’s neutral role and later professional responsibilities.

Can a Mediator Be Called as a Witness?

As a general rule, mediation communications enjoy legal protection.

A mediator should not be compelled to disclose confidential communications or appear as a witness regarding matters protected during mediation, except in circumstances recognised by law.

This protection exists because:

• Parties communicate openly during mediation.
• Confidential discussions encourage settlement.
• Fear of later disclosure may discourage honest negotiations.

The privilege attached to mediation communications strengthens confidence in the process.

Can a Mediator Disclose Confidential Information?

No, except where disclosure is legally permitted.

Confidentiality is one of the core principles of mediation.

Information obtained during mediation generally cannot be disclosed without lawful justification.

Confidential information may include:

• Settlement proposals.
• Admissions made during discussions.
• Financial information.
• Commercial strategies.
• Personal communications.
• Documents produced only for mediation.

Maintaining confidentiality encourages parties to negotiate freely without fear that discussions will later be used against them.

When Can Confidentiality Be Lifted?

Although confidentiality is the general rule, limited exceptions exist.

Disclosure may be permitted where:

• It is required under the Mediation Act.
• Disclosure is necessary for enforcement or challenge of a mediated settlement agreement where permitted by law.
• Another law specifically requires disclosure.
• The parties consent to disclosure in circumstances recognised by law.

Outside these limited situations, mediators must preserve confidentiality throughout and even after completion of mediation.

Can a Mediator Record Mediation Proceedings?

The objective of mediation is to provide an open and informal environment where parties can negotiate honestly.

Unauthorised recording of mediation proceedings or confidential discussions is inconsistent with the principle of confidentiality and may seriously affect trust between the parties.

Maintaining privacy allows parties to speak freely without concern that discussions may later become public.

Can a Mediator Misuse Information Obtained During Mediation?

No.

Information acquired during mediation belongs exclusively to the mediation process.

A mediator should never:

• Use confidential information for personal benefit.
• Share business information with competitors.
• Reveal commercial secrets.
• Use confidential admissions in future proceedings.
• Exploit private information for professional advantage.

Misuse of confidential information amounts to serious professional misconduct and undermines the credibility of mediation.

Can a Mediator Accept Gifts or Personal Favours?

A mediator should avoid accepting gifts, financial benefits or personal favours that may affect independence or create an appearance of bias.

Even where no actual bias exists, acceptance of valuable gifts may raise doubts regarding impartiality.

Best practices require mediators to avoid situations where personal benefits could influence professional judgment.

Can a Mediator Mislead the Parties?

No.

Honesty and integrity form the foundation of mediation.

A mediator should never:

• Make false statements.
• Misrepresent legal consequences.
• Give misleading assurances.
• Create unrealistic expectations.
• Conceal important procedural information.

Transparent communication promotes informed decision-making and strengthens confidence in mediation.

Can a Mediator Use Pressure or Undue Influence?

No.

A mediator facilitates negotiations but cannot manipulate parties into settlement.

Improper conduct includes:

• Intimidation.
• Threats.
• Persistent pressure.
• Emotional coercion.
• Exploiting unequal bargaining power.

The settlement must always represent the free and voluntary decision of the parties.

What Ethical Duties Prevent Prohibited Conduct?

Several ethical responsibilities operate alongside statutory provisions to ensure proper conduct by mediators.

Independence

A mediator must remain free from external influence, financial pressure or personal interests.

Independent decision-making strengthens public confidence in mediation.

Neutrality

Neutrality requires the mediator to avoid taking sides during negotiations.

The mediator should encourage balanced discussions and equal participation.

Impartiality

Every party must receive equal treatment regardless of financial status, social position, profession, gender, religion or background.

Impartiality is essential for a fair mediation process.

Integrity

The mediator must act honestly, transparently and professionally throughout the proceedings.

Integrity includes avoiding deceptive practices, conflicts of interest and misuse of confidential information.

Competence

A mediator should possess the knowledge, skills and preparation necessary to conduct mediation effectively.

Professional competence helps parties resolve disputes efficiently while maintaining fairness.

Respect for Party Autonomy

The mediator should always respect the right of parties to make their own decisions.

Settlement belongs to the parties, not the mediator.

What Happens If a Mediator Engages in Prohibited Conduct?

Improper conduct may have significant legal and professional consequences.

Possible consequences include:

Replacement of the Mediator

Where impartiality or independence is compromised, the parties may seek appointment of another mediator in accordance with the applicable legal framework.

Termination of Mediation

Serious misconduct may make continuation of mediation impossible.

Loss of trust often results in termination of mediation proceedings.

Challenge to the Settlement

If prohibited conduct has materially influenced the mediation process, it may become relevant while challenging the validity or enforcement of a mediated settlement agreement in situations recognised by law.

Professional Consequences

Depending on future regulations framed by the Mediation Council of India and applicable institutional rules, mediators may face:

• Removal from panels.
• Suspension.
• Cancellation of accreditation.
• Disciplinary proceedings.
• Reputational damage.

Difference Between Ethical Duties and Prohibited Conduct

Ethical duties prescribe how a mediator should behave, while prohibited conduct identifies actions that must be avoided to preserve the integrity of mediation.

Conclusion

The Mediation Act, 2023 establishes a strong legal framework to ensure that mediators perform their functions with fairness, independence and integrity. Although the Act does not provide a single list of prohibited conduct, its various provisions collectively prevent bias, conflicts of interest, breaches of confidentiality, coercion and misuse of the mediator’s position.