Arbitration and Conciliation Act Section 8A — Power of the court, seized of petitions under sections 9 or 11 of the Act, to refer the dispute to Mediation or Conciliation

CHAPTER II — Arbitration agreement

Civil

Summary

Sub-section (1) allows a court that is already dealing with a petition under section 9 or section 11 of the Act to refer the dispute to mediation or conciliation. This can happen only if, during the pendency of the petition, the court thinks there are elements of a settlement that the parties might accept, and only with the consent of the parties. The reference can be made either to mediation or to conciliation.

Sub-section (2) sets out the procedure for referring a dispute to mediation. Under clause (a), when a dispute is referred to mediation, the procedure framed under that Act shall apply. Under clause (b), if the mediation is successful, the Mediator must immediately forward the mediated settlement to the referral court. Under clause (c), on receiving the mediated settlement, the referral court must independently apply its judicial mind and record its satisfaction that the settlement is genuine, lawful, voluntary, and entered into without coercion, undue influence, fraud, or misrepresentation, and that there is no other legal impediment to accepting it. Under clause (d), the court must record a statement on oath of the parties or their authorised representatives, affirming the mediated settlement and giving a clear undertaking to abide by its terms. Under clause (e), if the court is satisfied, it shall pass an order in terms of the settlement. Under clause (f), if the main petition in which the reference was made is still pending, it shall be disposed of by the referral court in terms of the settlement. Under clause (g), if the main petition in which the reference was made has already been disposed of, the mediated settlement and the matter shall be listed before the referral court, which shall pass orders in accordance with clauses (iii), (iv), and (v). Under clause (h), such a mediated settlement has the same status and effect as an arbitral award and may be enforced in the manner specified under section 36 of the Act.

Sub-section (3) states that with respect to a reference of a dispute to conciliation, the provisions of Part II of this Act shall apply as if the conciliation proceedings were initiated by the parties under the relevant provision of this Act.

Official Text

(1) If during the pendency of petitions under sections 9 or 11 of the Act, it appears to the court, that there exists elements of a settlement which may be acceptable to the parties, the court may, with the consent of parties, refer the parties, for resolution of their disputes, to,-

(a) mediation; or

(b) conciliation.

(2) The procedure for reference of a dispute to mediation is as under–

(a) where a dispute has been referred for resolution by recourse to mediation, the procedure framed under that Act shall apply;

(b) in case of a successful resolution of the dispute, the Mediator shall immediately forward the mediated settlement to the referral court;

(c) on receipt of the mediated settlement, the referral court shall independently apply its judicial mind and record a satisfaction that the mediated settlement is genuine, lawful, voluntary, entered into without coercion, undue influence, fraud or misrepresentation and that there is no other legal impediment in accepting the same;

(d) the court shall record a statement on oath of the parties, or their authorised representatives, affirming the mediated settlement as well as a clear undertaking of the parties to abide by the terms of the settlement;

(e) if satisfied, the court shall pass an order in terms of the settlement;

(f) if the main petition, in which the reference was made is pending, it shall be disposed of by the referral court in terms thereof;

(g) if the main petition, in which the reference was made stands disposed of, the mediated settlement and the matter shall be listed before the referral court, which shall pass orders in accordance with clauses (iii),

(iv) and (v);

(h) such a mediated settlement, shall have the same status and effect as an arbitral award and may be enforced in the manner specified under section 36 of the Act.

(3) With respect to reference of a dispute to conciliation, the provisions of Part II of this Act shall apply as if the conciliation proceedings were initiated by the parties under the relevant provision of this Act.