Section 6 in Alternative Dispute Resolution and Mediation Rules, 2017
6. Procedure to be adopted by the Court.
(1)The procedure to be adopted by a court under section 89 of the Code is as under:(i)When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing for appearance of parties. The court should acquaint itself with the facts of the case and the nature of the dispute between the parties.(ii)The court should first consider whether the case falls under any of the categories of the cases which are required to be tried by courts and not fit to be referred to any Alternative Dispute Resolution processes. If it finds the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to Alternative Dispute Resolution processes. It will then proceed with the framing of issues and trial.(iii)In other cases (that is, in cases which can be referred to Alternative Dispute Resolution processes) the court should explain the choice of five Alternative Dispute Resolution processes to the parties to enable them to exercise their option.(iv)The court should first ascertain whether the parties are willing for arbitration. The court should inform the parties that arbitration is an adjudicatory process by a chosen private forum and reference to arbitration will permanently take the suit outside the ambit of the court. The parties should also be informed that the cost of arbitration will have to be borne by them. Only if both parties agree for arbitration, the matter should be referred to arbitration.(v)If the parties are not agreeable for arbitration, the court should ascertain whether the parties are agreeable for reference to conciliation which will be governed by the provisions of the Arbitration and Conciliation Act 1996. If all the parties agree for reference to conciliation and agree upon the conciliator/s, the court can refer the matter to conciliation in accordance with Section 64 of the Arbitration and Conciliation Act 1996.(vi)If parties are not agreeable for arbitration or conciliation, the court should, keeping in view the preferences/options of parties, refer the matter to any one of the other three Alternative Dispute Resolution processes : (a) Lok Adalat; (b) mediation by a neutral third party facilitator or mediator; and (c) a judicial settlement, where a Judge assists the parties to arrive at a settlement.(vii)If the case is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled, the court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Where the parties opt for the guidance of a Judge to arrive at a settlement, the court shall follow such procedure as may be prescribed.(viii)If the reference to the Alternative Dispute Resolution process fails, on receipt of the Report of the Alternative Dispute Resolution Forum, the court shall proceed with hearing of the case in accordance with law.(ix)Failure to arrive at a settlement would not preclude the Court from making fresh reference of the case for Alternative Dispute Resolution.(x)if the settlement includes disputes which are not the subject matter of the suit, the court may direct that the same will be governed by Section 74 of the Arbitration and Conciliation Act 1996 (if it is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat).(xi)If any term of the settlement is ex facie illegal or unenforceable, the court should draw the attention of parties thereto to avoid further litigations and disputes about executability.(2)The Court should also bear in mind the following consequential aspects, while giving effect to Section 89 of the Code :(i)If the reference is to arbitration or conciliation, the court has to record that the reference is by mutual consent. Nothing further need be stated in the order sheet.(ii)If the reference is to any other Alternative Dispute Resolution process, the court should briefly record that having regard to the nature of dispute, the case deserves to be referred to Lok Adalat, or mediation or judicial settlement, as the case may be. There is no need for an elaborate order for making the reference.(iii)If the court refers the matter to an Alternative Dispute Resolution process (other than Arbitration), it should keep track of the matter by fixing a hearing date for the Alternative Dispute Resolution Report.(iv)Normally the court should not send the original record of the case when referring the matter for an Alternative Dispute Resolution forum. However if the case is referred to a Court annexed Mediation Centre which is under the exclusive control and supervision of a Coordinator appointed by the High Court, the original file may be made available wherever necessary. In all other cases it is sufficient to send only the referral order to the Alternative Dispute Resolution Forum.(3)(i)No next friend or guardian for the Plaintiff/Defendant shall without the leave of the Court, expressly recorded in the proceedings of the Court opt for any one of the modes of Alternative Dispute Resolution nor shall enter into any settlement on behalf of a minor person under disability with reference to the suit in which he acts as mere friend or guardian.(ii)Where an application is made to the Court for leave to enter into a settlement initiated into the Alternative Dispute Resolution proceedings on behalf of a minor or other person under disability and such minor or other person under disability is represented by Counsel or pleader, the counsel or pleader shall file a certificate along with the said application to the effect that the settlement is, in his opinion, for the benefit of the minor or other person under disability. The decree of the Court based on the settlement to which the minor or other person under disability is a party, shall refer to the sanction of the Court thereto and shall set out the terms of the settlement.
