Termination and Replacement of a Mediator Under Mediation Act, 2023

Termination and replacement of a mediator are important safeguards in the mediation process. A mediator must remain independent, neutral and impartial throughout the proceedings.

When circumstances create doubts regarding these qualities, or when the mediator withdraws, the law provides a mechanism to end the mediator’s mandate and appoint another mediator. Sections 10, 11 and 12 of the Mediation Act, 2023 establish the principal rules governing this process.

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Meaning of a Mediator’s Mandate

The mandate of a mediator refers to the authority and responsibility given to the mediator to conduct mediation between the parties. This authority begins when the mediator is validly appointed and accepts the appointment.

A mediator does not decide the dispute like a judge or arbitrator. The mediator assists the parties in communicating, identifying the disputed issues, understanding their respective interests and exploring possible terms of settlement. The mediator cannot impose a settlement or compel either party to accept a particular proposal.

The mandate therefore authorises the mediator to manage and facilitate the mediation process while remaining within the limits prescribed by law, the mediation agreement and the applicable institutional rules.

Termination of the mandate means that the particular mediator can no longer continue to act in that mediation. It does not necessarily mean that the mediation proceedings themselves have ended. A replacement mediator may be appointed so that the parties can continue their attempt to settle the dispute.

Importance of Independence and Impartiality

The effectiveness of mediation depends substantially on the confidence of the parties in the mediator. Parties are more likely to participate openly when they believe that the mediator has no personal interest in the dispute and does not favour either side.

Section 15 of the Mediation Act, 2023 requires the mediator to assist the parties in an independent, neutral and impartial manner. The mediator must also be guided by objectivity and fairness and must protect the voluntariness, confidentiality and self-determination of the parties.

These requirements are not merely desirable professional qualities. They form part of the statutory duties of a mediator. A real or potential conflict of interest may weaken the integrity of the process and may justify termination and replacement.

Conflict of Interest and Duty of Disclosure

Section 10 of the Mediation Act, 2023 deals with conflict of interest and disclosure. It places a continuing obligation on the mediator to disclose circumstances that may affect the mediator’s independence or impartiality.

Before mediation begins, the person appointed as mediator must disclose in writing any personal, professional, financial or other circumstance that may constitute a conflict of interest. Disclosure is also required where the circumstance is likely to give rise to justifiable doubts regarding independence or impartiality.

The duty continues throughout the mediation. If a new conflict arises during the proceedings, or an existing circumstance later comes to the mediator’s knowledge, it must be disclosed to the parties without delay and in writing.

A conflict of interest may arise from several kinds of relationships or interests. These may include:

• A personal relationship with one of the parties, advocates or important participants in the mediation.
• A previous or existing professional relationship with a party.
• A financial interest connected with the dispute or its possible outcome.
• Prior involvement in the same dispute in another professional capacity.
• Circumstances that create a reasonable appearance of bias, even where actual bias cannot be proved.

The legal concern is not limited to demonstrated partiality. The existence of justifiable doubt regarding independence or impartiality may itself become relevant.

Waiver of Objection by the Parties

Disclosure of a conflict does not automatically require removal of the mediator. Section 10 allows the parties to waive their objection after receiving the disclosure.

Such waiver must be expressed in writing by all the parties. Written consent is important because it establishes that the parties were informed about the circumstances and consciously agreed to continue with the same mediator.

A waiver cannot be presumed from silence, continued attendance or informal conduct. The statutory requirement of written consent protects the parties and reduces the possibility of later disputes regarding whether the conflict was accepted.

Where all parties waive the objection in writing, the mediator may ordinarily continue. However, the mediator must still consider whether continuing would be consistent with professional and ethical standards. Certain conflicts may be so serious that withdrawal remains appropriate despite the willingness of the parties.

Replacement Following Disclosure

After disclosure under Section 10, either party may desire to replace the mediator. The procedure depends upon whether the mediation is institutional or non-institutional.

In institutional mediation, the party seeking replacement must apply to the mediation service provider for termination of the mediator’s mandate. The service provider then considers the matter under the statutory framework.

In mediation other than institutional mediation, the party may terminate the mediator’s mandate directly. Since there is no administering institution controlling the appointment process, the parties must handle the termination and subsequent appointment themselves.

This distinction recognises the different administrative structures of institutional and private mediation.

Termination of the Mediator’s Mandate Under Section 11

Section 11 primarily governs termination by a mediation service provider. It identifies three circumstances in which the service provider may terminate the mandate of a mediator.

Application by a Party Following Disclosure

The first ground arises when a party submits an application under Section 10(4) after the mediator has disclosed a conflict of interest.

The party is not required to continue with a mediator in whom confidence has been lost merely because the relevant circumstance was disclosed. Disclosure provides transparency, but it does not eliminate the conflict itself.

The mediation service provider may terminate the mandate after receiving the application. This mechanism protects the voluntary and confidence-based character of mediation.

Information Received From a Participant or Other Person

The second ground applies when the mediation service provider receives information that the mediator is involved in a conflict of interest. The information may come from a participant in the mediation or from any other person.

This provision is wider than a direct application by a party. It permits the institution to take notice of credible information even when the conflict was not disclosed by the mediator or initially raised by a party.

However, the mediator cannot be removed merely because an allegation has been made. The proviso to Section 11 creates procedural safeguards.

Before terminating the mandate on this ground, the mediation service provider must give the mediator an opportunity of being heard. After hearing the mediator, the provider must find that there is justifiable doubt regarding the mediator’s independence or impartiality.

The matter must also be brought to the notice of the parties, and either party must desire replacement. These requirements protect both institutional integrity and procedural fairness.

Withdrawal by the Mediator

The third ground arises when the mediator withdraws from mediation for any reason. A mediator may withdraw because of illness, personal circumstances, professional commitments, inability to continue within the required period or discovery of a conflict that makes continued participation inappropriate.

Withdrawal ends the mediator’s ability to conduct the proceedings, but it need not defeat the mediation itself. Section 12 permits another mediator to be appointed within the prescribed period.

A responsible mediator should communicate the withdrawal promptly and clearly so that unnecessary delay is avoided. The mediator must also continue to protect all confidential information obtained during the proceedings.

Procedure for Termination in Institutional Mediation

Institutional mediation is administered by a mediation service provider. The provider generally manages appointments, scheduling, fees and administrative support.

Where termination is requested, the following broad steps may arise:

1. A party submits an application seeking termination of the mediator’s mandate, or relevant information concerning a conflict is received by the service provider.
2. Where the allegation comes from a participant or another person, the mediator is given an opportunity to respond.
3. The service provider examines whether the circumstances create justifiable doubt regarding independence or impartiality.
4. The relevant information is brought to the notice of the parties.
5. If either party desires replacement and the statutory conditions are satisfied, the service provider terminates the mandate.
6. A replacement mediator is appointed from the panel maintained by the provider.

The procedure should be handled without disclosing unnecessary details beyond those needed to decide the issue. Confidentiality remains important even during the termination process.

Termination in Non-Institutional Mediation

Non-institutional mediation is conducted without administration by a recognised mediation service provider. The parties generally agree directly on the mediator and the procedure.

Under Section 10(4), where a conflict is disclosed and either party wishes to replace the mediator, the party may terminate the mediator’s mandate.

The mediation agreement may contain a detailed procedure for raising objections and appointing a substitute. In the absence of such provisions, written communication should clearly record the termination, the effective date and the intention to appoint another mediator.

Clear documentation is important because it avoids uncertainty about whether the former mediator remains authorised to conduct sessions or handle settlement documents.

Replacement of a Mediator Under Section 12

Section 12 provides a time-bound mechanism for replacing a mediator after termination of the mandate. The applicable procedure again depends upon the nature of the mediation.

Replacement in Non-Institutional Mediation

Where the mandate is terminated in mediation other than institutional mediation under Section 10(4)(ii), the parties may appoint another mediator within seven days from the date of termination.

The use of a short period supports continuity. Mediation often depends upon momentum, active communication and willingness to negotiate. A lengthy gap may weaken the progress already made.

The replacement mediator should be appointed through the procedure agreed upon by the parties. Before accepting the appointment, the new mediator must make the disclosures required under Section 10.

Replacement in Institutional Mediation

Where the mandate is terminated under Section 11, the mediation service provider must appoint another mediator from its panel within seven days from the date of termination.

The provider should consider the suitability of the proposed mediator and the preferences of the parties. Section 9 requires a service provider, while appointing a mediator from its panel, to consider these factors.

The replacement should therefore not be treated as a purely mechanical appointment. The mediator’s expertise, experience, availability, language abilities and possible conflicts may be relevant.

Status of Earlier Mediation Proceedings

The Mediation Act does not state that every step conducted before replacement automatically becomes invalid. Termination relates to the mandate of the mediator rather than the validity of the entire mediation process.

However, the replacement mediator must preserve fairness and party confidence. The new mediator may need to consult the parties regarding how the proceedings should continue. Depending on the stage of mediation, it may be appropriate to hold fresh preliminary meetings, restate the process and reconsider matters previously discussed.

Private communications made to the former mediator present a sensitive issue. Information disclosed during a private session is generally shared on the understanding that it will not be communicated without permission. It should not automatically be transferred to the replacement mediator.

The parties may jointly decide what procedural information can be provided to the replacement mediator. The new mediator must conduct the process independently and should not rely upon undisclosed impressions or opinions of the previous mediator.

Confidentiality After Termination

Termination of the mandate does not release the outgoing mediator from confidentiality obligations.

Section 22 requires the mediator, mediation service provider, parties and participants to keep mediation communications confidential. This includes opinions, suggestions, promises, proposals, apologies, admissions and documents prepared solely for mediation.

The outgoing mediator must not disclose confidential communications to the replacement mediator, a court, an arbitral tribunal or any other person except where disclosure is legally permitted.

Section 23 also protects mediation communications from disclosure in adjudicatory proceedings. Certain statutory exceptions apply, including information concerning professional misconduct or malpractice of the mediator, threats to commit an offence, domestic violence, child abuse and significant imminent threats to public health or safety.

Thus, confidentiality continues even after withdrawal, termination or replacement.

Effect on the Time Limit for Mediation

Section 18 requires mediation to be completed within 120 days from the date fixed for the first appearance before the mediator. The parties may agree to extend this period, but the extension cannot exceed 60 days.

Sections 11 and 12 do not expressly restart the statutory period when a replacement mediator is appointed. Therefore, replacement should ordinarily be understood as a continuation of the existing mediation rather than commencement of an entirely new proceeding.

This makes the seven-day appointment requirement particularly important. Delay in replacement may reduce the time available to the new mediator and the parties.

The service provider and parties should therefore act promptly and organise the remaining sessions efficiently.

Termination of Mandate and Termination of Mediation

Termination of the mediator’s mandate under Section 11 must be distinguished from termination of mediation under Section 24.

Termination of mandate removes a particular mediator from the proceedings. The process may continue before a replacement mediator under Section 12.

Termination of mediation ends the proceedings themselves. Under Section 24, mediation terminates:

• On the signing and authentication of a mediated settlement agreement.
• On a written declaration by the mediator that further efforts at mediation are no longer justified.
• On written communication by a party or the parties expressing the intention to opt out of mediation.
• On expiry of the statutory time limit.

Therefore, dissatisfaction with a mediator does not necessarily require abandonment of mediation. Replacement allows the parties to continue the process before another neutral person.

Fees and Administrative Consequences

Replacement may involve questions relating to fees already paid, the remuneration of the outgoing mediator and charges payable to the replacement mediator.

Section 25 provides that the costs of mediation include the mediator’s fees and charges of the mediation service provider. Unless otherwise agreed, these costs are borne equally by the parties.

The precise financial consequences of replacement may depend upon applicable regulations, institutional rules, the mediation agreement and the work already performed. Institutional rules should ideally clarify whether unused fees are refundable, how the outgoing mediator is compensated and whether additional deposits are required.

Financial arrangements should not interfere with the independence of the termination decision.

Conclusion

Termination and replacement of a mediator under the Mediation Act, 2023 are governed mainly by Sections 10, 11 and 12. A mediator must disclose actual or potential conflicts of interest before and during mediation. 

Parties may waive an objection in writing or seek replacement. In institutional mediation, the mediation service provider may terminate the mandate and must appoint another mediator within seven days. In non-institutional mediation, the parties may appoint a replacement within the same period.

Termination of a mediator’s mandate does not automatically terminate mediation. The proceedings may continue before a replacement mediator, subject to confidentiality, fairness and the statutory time limit. These provisions strengthen the integrity of mediation by ensuring that the process remains neutral, voluntary and worthy of the confidence of all parties.