MEDIATION UNDER CONSUMER PROTECTION LAW

[Mr. M. GOVINDARAJAN]

Mediation

Section 2(25) of the Act defines the term ‘mediation’ as the process by which a mediator mediates the consumer disputes.

Reference to mediation

Section 36 provides that every proceedings before the District Commission/State Commission/National Commission shall be conducted by the President of that Commission and at least one member thereof, sitting together.  At the first hearing of the complaint after its admission, or at any later stage, if it appears to the District Commission that there exists elements of a settlement which may be acceptable to the parties, except in such cases as may be prescribed, it may direct the parties to give in writing, within five days, consent to have their dispute settled by mediation in accordance with the provisions of Chapter V of the Act.

If the parties to the dispute agree to settle their dispute by means of arbitration, consent shall be given by both parties to the Commission.  The Commission shall, on receipt of the consent to settle the dispute by means of arbitration, refer the matter to mediation.

Matters not to be referred to mediation

The following matters shall not be referred to mediation-

• the matters relating to proceedings in respect of medical negligence resulting in grievous injury or death;
• matters which relate to defaults or offences for which applications for compounding of offences have been made by one or more parties;
• cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion;
• cases relating to prosecution for criminal and non-compoundable offences;
• cases which involve public interest or the interest of numerous persons who are not parties before the Commission.

The parties to the dispute may not choose for mediation.  If it appears to the Commission that no elements of a settlement exist which may be acceptable to the parties or that mediation is otherwise not appropriate having regard to the circumstances of the case and the respective positions of the parties, the Commission may continue the proceedings for disposal of the dispute as per the provisions contained in the Act.

The parties shall not initiate any arbitral or judicial proceedings in respect of a matter which is the subject-matter of the mediation and also when such parties have expressly undertaken not to initiate any such proceeding.

Consumer Mediation Cell

The State Government shall establish, by notification, a consumer mediation cell to be attached to each of the District Commissions and the State Commissions of that State.   The Central Government shall establish, by notification, a consumer mediation cell to be attached to the National Commission and each of the regional Benches.  A consumer mediation cell shall consist of such persons as may be prescribed.

The Mediation Cell shall have such support staff as may be decided by the President of that Commission in consultation with the concerned Government and that Government shall provide all administrative assistance and infrastructure facilities required by the Commission

Empanelled mediators

Every Mediation Cell set up in a Commission, shall have a panel of mediators on the recommendation of a selection committee consisting of the President and a member of that Commission.

For the purpose of mediation, the National Commission or the State Commission or the District Commission, as the case may be, shall prepare a panel of the mediators to be maintained by the consumer mediation cell attached to it, on the recommendation of a selection committee consisting of the President and a member of that Commission.

Qualifications of mediators

The qualifications and experience required for empanelment as mediator, the procedure for empanelment, the manner of training empanelled mediators, the fee payable to empanelled mediator, the terms and conditions for empanelment, the code of conduct for empanelled mediators, the grounds on which, and the manner in which, empanelled mediators shall be removed or empanelment shall be cancelled and other matters relating thereto, shall be such as may be specified by regulations.

Nomination of a mediator

The District Commission, the State Commission or the National Commission shall, while nominating any person from the panel of mediators referred to in section 75, consider his suitability for resolving the consumer dispute involved.

Validity period

The panel of mediators shall be valid for a period of five years, and the empanelled mediators shall be eligible to be considered for re-empanelment for another term, subject to such conditions as may be specified by regulations.

Duties of mediator

The mediator is disclose-

• any personal, professional or financial interest in the outcome of the consumer dispute;
• the circumstances which may give rise to a justifiable doubt as to his independence or impartiality; and
• such other facts as may be specified by regulations.

Procedure for mediation

The following is the procedure of mediation as per the provisions of the Act-

• The mediation shall be held in the consumer mediation cell attached to the District Commission, the State Commission or the National Commission, as the case may be.
• The mediator nominated by such Commission shall have regard to the rights and obligations of the parties, the usages of trade, if any, the circumstances giving rise to the consumer dispute and such other relevant factors, as he may deem necessary and shall be guided by the principles of natural justice while carrying out mediation.
• The mediator so nominated shall conduct mediation within such time and in such manner as may be specified by regulations.
• If an agreement is reached between the parties with respect to all of the issues involved in the consumer dispute or with respect to only some of the issues, the terms of such agreement shall be reduced to writing accordingly, and signed by the parties to such dispute or their authorized representatives.
• The mediator shall prepare a settlement report of the settlement and forward the signed agreement along with such report to the concerned Commission.
• Where no agreement is reached between the parties within the specifie time or the mediator is of the opinion that settlement is not possible, he shall prepare his report accordingly and submit the same to the concerned Commission.
• The District Commission or the State Commission or the National Commission, as the case may be, shall, within seven days of the receipt of the settlement report, pass suitable order recording such settlement of consumer dispute and dispose of the matter accordingly.
• Where the consumer dispute is settled only in part, the District Commission or the State Commission or the National Commission, as the case may be, shall record settlement of the issues which have been so settled and continue to hear other issues involved in such consumer dispute.
• Where the consumer dispute could not be settled by mediation, the District Commission or the State Commission or the National Commission, as the case may be, shall continue to hear all the issues involved in such consumer dispute.

Replacement of mediator

Where the District Commission or the State Commission or the National Commission, as the case may be, is satisfied, on the information furnished by the mediator or on the information received from any other person including parties to the complaint and after hearing the mediator, it shall replace such mediator by another mediator.

On death of a party

A settlement agreement shall not be discharged by the death of any party thereto and shall be enforceable by or against the legal representative of the deceased party. Nothing in this rule shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

Refund of fee

Where the Commission refers the parties to mediation, the complainant shall be entitled to receive full amount of application fee paid in respect of such complaint, if a settlement is reached between such parties.

Duties of Consumer mediation Cell

Every consumer mediation cell shall maintain-

• a list of empanelled mediators;
• a list of cases handled by the cell;
• record of proceeding; and
• any other information as may be specified by regulations.

Every consumer mediation cell shall submit a quarterly report to the District Commission, State Commission or the National Commission to which it is attached, in the manner specified by regulations.