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When court should strike off mediation report?

IN THE HIGH COURT OF KERALA

W.P. (Crl.) No. 278 of 2012

Decided On: 06.07.2012

Prabhavathy, K.
Vs.
Director General of Police and Others

Hon’ble Judges/Coram: Mr. Justice K.T. Sankaran and Mr. Justice M.L. Joseph Francis

Citation: ILR 2012(3) Kerala 922

1. The question which arises for consideration in this Writ Petition is whether the report submitted by the mediator is liable to be declared illegal and void and whether the report can be removed from the file by destruction. Though the Writ Petition is filed for the issue of Habeas Corpus directing the respondents to produce Anitha and Akshay (the daughter and grandson of the petitioner) before Court, that question does not survive for consideration since the learned counsel for the petitioner submitted that the petitioner is at present satisfied that her daughter Anitha and grandson Akshay are safe and their whereabouts are known to the petitioner.

2. In an earlier round of litigation where Anitha’s husband and his parents filed O.P. (F.C.) No. 2219 of 2011, a mediation settlement was arrived at between the parties and a compromise petition was filed before Court. As per the terms of settlement, the parties agreed as to what should be done to ensure the welfare and well-being of Anitha and Akshay. In terms of the settlement, Anitha started living in the house of the petitioner. After a few months, she went to Doha to join her husband. Akshay was also taken with her. Thereafter, Akshay was brought back by the fifth respondent, father-in-law of Anitha. The present Writ Petition arose in that context.

3. The learned counsel for the petitioner submitted that the petitioner came to know that Akshay is safe for the present in the house of the fifth respondent. Therefore, the counsel submitted that no relief is required as per the original relief prayed for in the Writ Petition.

4. Earlier, when this Writ Petition came up for hearing, the parties agreed that the disputes could be resolved by mediation in the presence of the mediator who acted as mediator on the previous occasion. An order dated 12th June, 2012 was passed accordingly. Thereafter, the mediator issued notice to the parties and fixed a date for mediation. However, the petitioner did not appear before the mediator. The petitioner informed the mediator that she would not be participating in the mediation proceedings. The mediator filed a report dated 21st June, 2012.

5. Now the dispute centres around the validity of the mediator’s report. The petitioner filed I.A. No. 9262 of 2012 to declare that the mediator’s report is illegal and void and to remove the same from the file by destruction. Sri Sreelal Warriar, the learned counsel appearing for the petitioner submitted that the mediator violated the provisions of Civil Procedure (Alternative Dispute Resolution) Rules and therefore, his report is liable to be struck off. This prayer is opposed by respondents 4 and 5.

6. The mediator arrived at a few “observations and conclusions” in his report which are enumerated in paragraphs 1 to 12 of the report. The mediator stated in the report thus:

Based on the discussions the mediator had with the respondent Mr. Ajith, his wife Mrs. Prameela, their counsel Advocate Rekha Vasudevan, discussions with Mr. Midhun Ajith, Mrs. Anitha Midhun via video conferencing during the mediation session, and telephonic discussions with Mrs. Anitha personally, 1 could arrive at a few observations and conclusions which are reported as below.
7. On a perusal of the report submitted by the mediator, it is seen that the mediator has arrived at several findings and conclusions. It is also seen that video conferencing was done by the mediator even after the petitioner expressed her view that she was not participating in the mediation. The mediator concluded the report by saying this:

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This report is submitted before the Hon’ble High Court of Kerala in the above referred W.P.C. for appropriate orders and directions.
8. Civil Procedure (Alternative Dispute Resolution) Rules, 2008 were framed by the High Court of Kerala in exercise of the powers conferred under Section 122 of the Code of Civil Procedure, 1908 and clause (d) of subsection (2) of Section 89 of the Code, with previous approval of the Government of Kerala. Rule 23 of the Rules reads as follows:

Rule 23 : Communication between mediator and the court.– (a) There shall be no communication between the mediator and the court except for:

(i) intimating about the failure of the party to attend the mediation;

(ii) intimating that the parties have settled the dispute;

and

(iii) getting advice on procedural matters with the consent of the parties.

(b) The communication with respect to matters stated in sub-cl.(i) to (iii) of cl. (a) above shall be in writing and the copies of the same shall be given to the parties or their counsel or authorised representatives.

9. Rule 17 provides that any party to the suit may, ‘without prejudice’ offer a settlement to the other party at any stage of the mediation proceedings. Rule 18 provides that the mediator shall attempt for voluntary resolution of the dispute by the parties by facilitating discussion between the parties directly or by communicating with each of them, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them. The said Rule also provides that the mediator shall not impose any terms of settlement on the parties. Rule 20 provides for confidentiality, disclosure and inadmissibility of information. Rule 24 provides that where no agreement is arrived at between the parties, before the time-limit stated in Rule 19 or where the mediator is of the view that no settlement is possible, he shall report the same to the court in writing. Rule 27 provides the ethics to be followed by the mediator which inter alia provides that the mediator shall not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a mediator and uphold the integrity and fairness of the mediation process. Rule 27 provides that the mediator shall recognise that mediation is based on principles of self-determination by the parties and that mediation process relies upon the ability of parties to reach a voluntary agreement.

10. In Moti Ram and another v. Ashok Kumar and another 2011 (1) K.H.C. 37(S.C.)=MANU/SC/1077/2010 : (2011) 1 S.C.C. 466 referring to the scope of mediation, the Supreme Court held thus;

In this connection, we would like to state that mediation proceedings are totally confidential proceedings. This is unlike proceedings in court which are conducted openly in the public gaze. If the mediation succeeds, then the mediator should send the agreement signed by both the parties to the court without mentioning what transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the court stating that the ‘Mediation has been unsuccessful’. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.

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11. In B.P. Moideen Sevamandir and another v. A. M. Kutty Hassan MANU/SC/8467/2008 : (2009) 2 S.C.C. 198, pending Second Appeal, the dispute was referred to Lok Adalath organised by the High Court Legal Services Committee. The Lok Adalath sent the failure report to the Court stating thus:

We have discussed the matter with the counsel and their parties and considering the nature of demand made by the appellants, there is no chance of settlement.
The Second Appeal was later dismissed for default. In that context, the Supreme Court held thus:

10. Although the members of Lok Adalats have been doing a commendable job, sometimes they tend to act as Judges, forgetting that while functioning as members of Lok Adalats, they are only statutory conciliators and have no judicial role. Any overbearing attitude on their part, or any attempt by them to pressurise or coerce parties to settle matters before the Lok Adalat (by implying that if the litigant does not agree for settlement before the Lok Adalat, his case will be prejudiced when heard in court), will bring disrepute to Lok Adalats as an alternative dispute resolution process (for short ‘ADR process’) and will also tend to bring down the trust and confidence of the public in the judiciary.

* * *
14. The Lok Adalats should also desist from the temptation of finding fault with any particular litigant, or making a record of the conduct of any litigant during the negotiations, in their failure report submitted to the court, lest it should prejudice the mind of the court while hearing the case. For instance, the observation in the failure report dated 3-4-2008 of the Lok Adalat in this case (extracted in para 3 above) that there is no chance of settlement on account of the ‘nature of demands made by the appellants’, implied that such demands by the appellant were unreasonable. This apparently affected the mind of the learned Single Judge who assumed that the appellants were cantankerous, when the second appeal and application for restoration came up for hearing before the court.

* * *

17. When a case is to be heard and decided on merits by a court, the conduct of the party before the Lok Adalat or other ADR for a, howsoever stubborn or unreasonable, is totally irrelevant. A court should not permit any prejudice to creep into its judicial mind, on account of what it perceives as unreasonable conduct of a litigant before the Lok Adalat. Nor can its judgment be ‘affected’ by the cantankerous conduct of a litigant. It cannot carry ‘”ill will’ against a litigant, because he did not settle his case. It is needless to remind the oath of office, which a Judge takes when assuming office. He is required to perform his duties without fear or favour, affection or ill will. Any settlement before the Lok Adalat should be voluntary. No party can be punished for failing to reach the settlement before the Lok Adalat.

12. In State of Punjab and another v. Jalour Singh and others MANU/SC/7021/2008 : A.I.R. 2008 S.C. 1209, the Supreme Court held that “no Lok Adalat has the power to ‘hear’ parties to adjudicate cases as a court does. It discusses the subject-matter with the parties and persuades them to arrive at a just settlement.”

13. Going by Rule 23 of the Rules, a mediator is not entitled to communicate to the court except in respect of the matters mentioned in the Rule. Sub clauses (i) and (ii) of Clause (a) of Rule 23 do not cause any difficulty for interpretation. What is the meaning of the words “getting advice on procedural matters with the consent of the parties” occurring in Sub clause (iii) of Clause (a) of Rule 23 is the question which arises for decision. Sri Joby Jacob Pulickekudy, the learned counsel appearing for the fourth respondent, submitted that the mediator has only sought the advice on procedural matters and therefore, the mediation report is legal and proper. A mediator can get advice on procedural matters only with the consent of parties. If the parties do not give consent, the mediator has no right to get advice on procedural matters. In the present case, the petitioner was not present at all before the mediator. She expressed her view that she was not participating in the mediation. The mediator, therefore, could communicate to the court only in the manner provided under sub-clause (i) of Clause (a) of Rule 23 and submit a failure report. In the absence of parties, the mediator had no jurisdiction to seek the advice on procedural matters. One of the parties having expressed her reluctance to appear before the mediator, the mediator was not justified in arriving at “findings and conclusions” and thereafter seeking directions from the court. Even the directions sought for are not on procedural matters or to enable the mediator to carry on the mediation proceedings in a particular manner, but the directions are sought to be issued to the parties. The mediator was not justified in undertaking a video conferencing with some of the parties in the absence of commencement of mediation in accordance with law. No mediation at all took place. On the refusal of a party to appear before the mediator, there was no justification for the mediator to undertake an expedition with respect to the disputes between the parties. Conducting a video conferencing, in the absence of one of the parties, was also quite illegal. Smt. Rekha Vasudevan, the learned counsel appearing for the 5th respondent, submitted that the prayer made by the petitioner is not maintainable in view of Rule 22 of the Rules. Rule 22 provides that no mediator shall be held liable for anything bona fide done or omitted to be done by him during the mediation proceedings. The prayer made in the application is not to take any action against the mediator. No action is sought to be taken against the mediator. Immunity contemplated under Rule 22 does not take away the power of the court to say that the mediation report is not liable to be accepted or to strike off the mediation report or to hold that the mediator acted without jurisdiction. The very appointment of mediator by the court carries with it the power to cancel it also. If the mediator has misconducted himself or if the mediation report is otherwise illegal being contrary to the Rules, the court in which the proceedings are pending would have jurisdiction to pass appropriate orders with regard to the acceptability or otherwise of the mediation report. Immunity under Rule 22 does not deter the court from doing so.

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We are satisfied that the mediator travelled beyond his powers and the mediation report is liable to be struck off, except to the extent of communication that the mediation failed. Accordingly, the Writ Petition is disposed of as follows:

(i) The relief prayed for the issue of a writ of Habeas Corpus is rejected;

(ii) I.A. No. 9262 of 2012 is partly allowed and the mediator’s report is struck off the file except to the extent that the report mentions that the mediation failed

(iii) The Registry shall make appropriate endorsement on the mediation report in accordance with this judgment.

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