Mediation Rules

May 21, 2016

ONLINE CONSUMER MEDIATION CENTRE MEDIATION RULES, 2016

Effective as on 11th April 2016

CHAPTER I – PRELIMINARY

Rule 1 – Applicability
Rule 2 – Definitions
Rule 3 – Communications

CHAPTER II – THE PROCESS

Rule 4 – Choice of Dispute Resolution
Rule 5 – Commencement
Rule 6 – Review
Rule 7 – Response
Rule 8 – Online Negotiation
Rule 9 – Online Mediation
Rule 10 – Termination
Rule 11 – Settlement through Mediation

CHAPTER III – ROLE OF PARTICIPANTS

Rule 12 – Role of Mediator
Rule 13- Role of Parties and their Representatives
Rule 14 – Role of Centre

CHAPTER IV – RULES RELATED TO MEDIATOR

Rule 15 – Appointment of Mediator
Rule 16 – Qualifications of Mediator
Rules 17 – Assignment of cases
Rule 18 – Removal of Mediator from Centre’s Empanelment
Rule 19 – Confidentiality

CHAPTER V – MISCELLANEOUS

Rule 21 – Fees
Rule 22 – Exclusion of Liability
Rule 23 – Amendments

CHAPTER I

PRELIMINARY

Rule 1: APPLICABILITY

  1. The dispute resolution, which includes negotiation and mediation is based on the Mediation Rules (the “Rules”) framed by the Online Consumer Mediation Centre (the Centre) established at National Law School of India University, Bengaluru.
  2. The Rules apply where the Parties have agreed either by stipulation in a contract or by agreement to submit to the Centre’s dispute resolution process or by reference from the Court/Commission/ Fora to try to resolve their dispute.
  3. The Centre accepts the cases arising out of electronic transactions involving at least one consumer within the definition of Consumer Protection Act, 1986.
  4. The Rules applies to both present and future disputes against e-commerce company.
  5. The Rules as in effect on the date of the commencement of the dispute resolution shall apply.

Rule 2: DEFINITIONS

  1. “Communication” means any information (including a statement, declaration, demand, notice, response, submission, notification or request) made physically or by means of information generated, sent, received or stored by electronic, magnetic, optical or similar means.
  2. “Consumer” means a consumer as defined under the Consumer Protection Act, 1986.
  3. “Designated electronic address” means an information system, or portion thereof, designated by the parties to the dispute resolution process to exchange communications related to that process.
  4. “Dispute Resolution” includes negotiation and mediation.
  5. “Online Mediation” means a mediation process facilitated through the use of internet supported by audio/video conferencing or text-based communication or live transmission of data, in part or in full, carried out in compliance with these Rules.
  6. “Online Negotiation” means a negotiation process facilitated through the use of internet supported by video conferencing or live transmission of data, in part or in full, carried out in compliance with these Rules.
  7. “Online platform” means a system adopted by the Centre for the purpose of generating, sending, receiving, storing, exchanging or otherwise processing communications under these Rules.
  8. “Mediation” means as a process whereby a mediator is appointed by the Centre, to facilitate the parties in a voluntary and structured negotiation to assist the parties to amicably resolve their dispute and to decide for themselves to settle the dispute and the terms of any such settlement.
  9. “Mediator” means a third-party neutral appointed from among the empanelled mediators, of the Centre, to assist the Parties in resolving the dispute through the Centre.
  10. “Mediation Agreement” means an agreement by the parties to submit to mediation all or certain disputes which have arisen or which may arise between them; a Mediation Agreement may be in the form of a mediation clause in a contract or in the form of a separate contract. When a business responds and begins the negotiation it is deemed that they have entered into contract/submitted the case for mediation.
  11. “Negotiation” means a communication between two or more disputing parties in an effort to resolve their differences and arrive at mutually agreeable solutions.
  12. “Party/ Parties” means such person/persons having authority to represent and settle the dispute.
  13. “Settlement” means a voluntary agreement reached by the Parties to the dispute resolution. Settlement agreement means an understanding reached by the parties towards the case filed by the consumer on all or some of the issues either in negotiation or mediation.

Rule 3: COMMUNICATIONS

  1. Every communication from the online platform shall be sent out through mail only including the following steps request to review case; acceptance/rejection of case; request to appoint mediator; appointment of mediator; communications made during the process of negotiation/mediation; uploaded files; settlement agreement etc.
  2. The Centre shall not send any communication through post or print.

CHAPTER II

THE PROCESS

Rule 4: CHOICE OF DISPUTE RESOLUTION

  1. The Centre provides facilities for the parties to choose to settle their disputes either through negotiation or mediation or both.
  2. The parties may first attempt to resolve their dispute amicably by mutual negotiations through the Centre, failing which such dispute may be referred to the Centre’s mediation process.
  3. The respondent may, at the time of response, provide any other relevant information, including information in support of its response to the dispute.
  4. The Centre although advocates for online settlement, provides for both online negotiation/mediation and physical negotiation/mediation.

 

Rule 5: COMMENCEMENT

  1. The initiating party or any person authorised on behalf of the initiating party to negotiate/mediate only shall participate in the process.
  2. In order to access the Centre’s platform, the party wishing to resolve a dispute against any e-commerce company through the Centre must register with    https://onlinemediationcenter.ac.in/.
  3. The initiating party shall file a submission through the Centre’s registration process as provided through the online platform. The submission should, as far as possible, be accompanied by any such documents and other evidence relied upon by the claimant, or provides references to them.
  4. Details of registration shall comprise of:
    • Name, age, gender, address, State and Country, telephone, designated electronic address or other communication references of the parties to the dispute, identity proof number and scanned copy of the Identity Proof.
    • In case of the Business, there is no registration required.
  5. The initiating party shall choose the e-commerce company against which claim is made and provide for Order no. / Bill No. / Purchase No.  There is no bar on the number of cases that can be filed against a single company but claim or dispute on same order number/invoice number cannot be filed again.
  6. Details of the Complaint shall comprise of
    • Pending cases, if any, pursued against the party against whom the dispute is initiated with regard to the specific dispute;
    • Purchase Date
    • Receipt Date
    • Value of goods/services
    • Nature of dispute
    • Detailed description of the dispute;
    • Upload of relevant documents in support of the dispute, if any; and
    • Relief sought
    • The remedy sought from the business.
  7. Together with the request and the registration details abovementioned, the party filing shall pay the registration fee as provided by the Centre’s Fee Schedule hereto in force on the date the request is filed.
  8. The Centre shall electronically acknowledge receipt of the request and of the filing fee to the party filing the complaint.
  9. The Centre shall notify the business against whom the case is initiated and invite for dispute resolution process only after reviewing the case.

Rule 6: REVIEW BY CENTRE

  1. The Centre will review the case to check the eligibility and reject the cases if it is found to be outside the scope of the Centre or any other reason the Centre deems fit. While doing so, the Centre shall provide adequate reasons for rejection of the case.
  2. Only after the case is reviewed and accepted, an email notification/invite will be sent out to the business against whom the claim has arisen.
  3. The process is voluntary and business may not agree to participate in the online platform. In these cases, there is will be no refund or transfer of the registration fees paid towards the case.
  4. The Centre does not bear the responsibility nor promises that the business shall participate in the process. The Centre only acts as an intermediary providing a platform for the consumer and business to reach out an amicable settlement.

Rule 7: RESPONSE FROM THE BUSINESS

  1. The Centre after accepting the case as abovementioned shall notify the party against whom the complaint is initiated within 7 days of receipt of the request. Failure by the business to reply within 10 days shall be treated as a refusal and the case will be treated as not settled and closed for future reference.
  2. The person authorised on behalf of the business to negotiate/mediate and make settlement only shall participate in the process.

Rule 8: NEGOTIATION

  1. The negotiation process shall comprise of negotiation only between the parties, and their representatives, if any.
  2. The negotiation part consists three parts: a. make a settlement offer b. request to appoint a mediator and; c. have conversation similar to Instant Messaging/ Chat Box platforms.
  3. The parties are given seven days from the day of joining/acceptance of business to the platform to resolve among themselves.
  4. The parties can directly opt for appointment of mediator instead of negotiating. Only when the appointment of mediator is requested, the Centre shall appoint the Mediator in five working days. In case no attempt to appoint a mediator is made by either party after initiating the negotiation after 7 days, the Centre shall send a message/email to the parties to make the request.
  5. The Centre shall not appoint a mediator if the request is not received as the process of mediation is voluntary and party centric.
  6. If no response is found as mentioned in 7.4 for 7 days, the Centre shall the deem the case to be not settled and shall close the case accordingly.
  7. There is no settlement agreement drawn by the Centre on behalf of the parties. Once a  settlement offer is accepted by the other party, the case is closed and no further actions can be taken.
  8. The process once settled as aforementioned cannot be reopened under any circumstance.

Rule 9: MEDIATION

  1. The Centre acknowledges that the process of mediation is voluntary and party centric. Also, the determination of outcome is from parties as the process/online platform is strictly limited to structure and assistance.
  2. The appointment of the mediator shall happen according to the chapter II of these rules.
  3. The conduct of online mediation is left to be determined by the mediator in agreement with the parties.
  4. The mediator in agreement with the parties shall choose the synchronous/concurrent way or asynchronous/non-concurrent way or the combination of both.
  5. The mediator may conduct joint or separate meetings with the parties.
  6. At any time during the proceedings the mediator may require or allow the parties (upon such terms as the mediator shall determine) to provide additional information, produce documents, exhibits or other evidence within such period of time as the mediator shall determine.
  7. The mediator shall use his best effort to conclude the mediation within twenty-one (21) days of his appointment.
  8. The parties may agree to a one-time extension of the mediation proceedings. However no such extension shall be for more than fifteen (15) days.
  9. The mediator shall not be bound by the Code of Civil Procedure, 1908 or the Evidence Act, 1872, but shall be guided by principles of natural justice, have regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute.
  10. At any time during the process of mediation, if either of the party is found to be irresponsive for 10 days or more, the Centre shall deem the case to be not settled and shall case the close accordingly.

Rule 10: TERMINATION

  1. The mediation shall be terminated:
    1. by the signing of a settlement agreement by the parties covering any or all of the issues in dispute between the parties;
    2. by the decision of the mediator if, in the mediator’s judgment, further efforts at mediation are unlikely to lead to a resolution of the dispute; or
    3. by a written declaration of a party at any time after a first discussion of the parties with the mediator;
    4. in any other mode as provided under these Rules.
  2. Upon the termination of the mediation, the mediator shall promptly send to the Centre a notice in writing that the mediation is terminated and shall indicate the date on which it terminated, whether or not the mediation resulted in a settlement of the dispute and, if so, whether the settlement was full or partial. The mediator shall send to the parties a copy of the notice so addressed to the Centre.
  3. The Centre shall keep the said notice of the mediator confidential and shall not, without the written authorization of the parties, disclose either the existence or the result of the mediation to any person.
  4. The Centre may, however, include information concerning the mediation in any aggregate statistical data that it publishes concerning its activities, provided that such information does not reveal the identity of the parties and mediator or enable the particular circumstances of the dispute to be identified.

Rule 11: SETTLEMENT THROUGH MEDIATION

  1. Based on the settlement terms, the mediator may draw up a settlement agreement on the terms agreed by the parties and the parties may sign the settlement agreement. The mediator shall authenticate the agreement and furnish a copy to each party.
  2. In case of physical mediation, the Mediator shall promptly notify the Centre of the signing of a settlement agreement by the parties or of any notification given to or by the mediator, and shall provide the Centre with a copy of any such notification.
  3. When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them. The settlement agreement shall have the same status as that of a settlement agreement that can be executed as provided under Section 73of the Arbitration and Conciliation Act, 1996.
  4. In case of court-referred mediation, where an agreement is reached between the parties in regard to the issues referred, the same shall be reduced to writing and shall be submitted by the Parties to the Court/Commission/Forum in which the suit is pending.

CHAPTER III

ROLE OF PARTICIPANTS

Rule 12: ROLE OF MEDIATOR

  1. The mediator may conduct the mediation in such manner, as he considers appropriate, taking into consideration the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute.
  2. The mediator shall upon approval from the party, may disclose all such information concerning the dispute received to the other party and the other party shall be given opportunity to present explanations.
  3. The mediator shall attempt to facilitate voluntary resolution of the dispute between the parties and he shall not impose any terms of settlement on the parties.
  4. The mediator is bound by the Centre’s Code of Conduct.
  5. The mediator shall be neutral, impartial and independent.

Rule 13: ROLE OF PARTIES AND THEIR REPRESENTATIVES

  1. Each party and their representative shall act in good faith throughout the mediation.
  2. The parties shall co-operate to enable the mediation to proceed and be concluded within the time stipulated.
  3. The parties may be represented by persons authorised of their choice. Each party shall notify in advance the names and the role of such persons to the Centre and the other party. The parties shall confer upon their representatives the necessary authority to participate and settle the dispute.
  4. Parties may be represented by a counsel at any stage of the mediation process, and are encouraged to consult legal counsel concerning the proceedings or any proposed settlement agreements.
  5. The parties shall be bound by the Centre’s Code of Conduct

Rule 14: ROLE OF CENTRE

  1. The Centre will make appropriate arrangements for mediation, including-
    1. Appointment of mediators;
    2. Provision of online infrastructure for parties to resolve disputes through mediation;
    3. Enable exchange of information, documents and summaries between the parties and mediator through the online platform.
  2. The role of the Centre including online platform as mentioned is strictly limited to the structure and assistance.

Rule 15: CONFIDENTIALITY

  1. All information, records, reports or other documents received by the Centre and the mediator will be confidential.
  2. Any settlement agreement between the parties shall be kept confidential, except that a party shall have the right to disclose it to the extent that such disclosure is required by applicable laws of India or necessary for purposes of its implementation or enforcement.
  3. Unless required to do so by applicable laws of India and in the absence of any agreement of the parties to the contrary, a party shall not in any manner produce as evidence in any judicial, arbitral or similar proceedings:
    1. any documents, statements or communications which are submitted by another party or by the Mediator in or for the Proceedings, unless they can be obtained independently by the party seeking to produce them in the judicial, arbitral or similar proceedings;
    2. any views expressed or suggestions made by any party within the Proceedings with regard to the dispute or the possible settlement of the dispute;
    3. any admissions made by another party within the Proceedings;
    4. any views or proposals put forward by the Mediator within the Proceedings; or
    5. the fact that any party indicated within the Proceedings that it was ready to accept a proposal for a settlement.
  4. Any notes taken by a person concerning the meetings of the parties with the mediator shall be destroyed on the termination of the mediation.
  5. No audio-visual recording of the mediation will be made of the proceedings, irrespective of whether the mediation was made through the online platform or otherwise.
  6. Mediations are private. Only the Mediator, the parties and/or their representatives, advisers or Counsel and staff of the Centre as required will be permitted to be present during the mediation.
  7. Nothing that transpires during the course of the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.
  8. The Centre or the mediator will not be compelled to divulge such records or to testify or give evidence in regard to the mediation in any adversary proceeding or judicial forum.
  9. In case of disputes filed before the Court, Commissions or Forums, the Settlement Agreement duly signed by the Parties may be submitted.
  10. The files added/attached by any party or mediator shall be viewable by all on the online platform and can be downloaded.

CHAPTER IV

RULES RELATED TO MEDIATOR

Rule 16: QUALIFICATIONS FOR EMPANELMENT OF MEDIATORS

  1. The Centre shall appoint mediators through an empanelment process, wherein experts and trained mediators, who are willing to be empanelled with the Centre shall apply to the Centre through an empanelment form provided on the website of the Centre.
  2. Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.
  3. Mediator for the purpose of empanelment with the Centre shall have mandatorily undergone 40 hour training in Mediation imparted by any High Court or Mediation Centre/s established by such High Court/s or who has undergone a formal course of study or training in Mediation imparted by any recognised University/Institution (whether in India or abroad).
  4. Mediators with special qualification or expertise in the area of Consumer Laws in India or with a proven record of handling consumer disputes shall be given preference while nominating mediators for the panel.
  5. The applications received by the Centre towards empanelment shall be scrutinized and upon acceptance the applicants shall have to compulsorily undergo training of the online platform given by the Centre.
  6. Mediators empanelled with the Centre are expected to periodically engage in various forms of continued education to refine and improve their mediation knowledge and skills.
  7. Mere receipt of application for empanelment does not give a right to get empanelled. The Centre after considering the application shall have the discretion of appointment of mediators on the panel.
  8. The panel of mediators shall be placed on the website of the Centre.

 

Rule 17: APPOINTMENT OF MEDIATOR

  1. In online mediation process, once the parties agree to enter the Mediation Phase, mediator is appointed to the case in question by the Centre and the Parties are automatically notified via e-mail.
  2. No person shall act as mediator in any dispute in which that person has any financial or personal interest in the result of the mediation except by consent of the parties. Before accepting an appointment, the proposed mediator shall disclose to the parties and to the Centre, any circumstances likely to create a presumption of bias. Upon receipt of the information, the Centre shall immediately communicate the information to the parties for their comments. If any party takes objection to the proposed mediator within 7 days, such mediator shall not be appointed. A replacement mediator will be appointed in the same manner as the mediator, who is replaced.
  3. Upon appointment of the mediator, the Centre shall promptly notify the parties of the name of the mediator and in relation to the mediator.
  4. The mediator, by accepting appointment, confirms that the mediator shall devote the time necessary to conduct the mediation proceedings diligently, expeditiously and in accordance with the time limits as prescribed in the Rules.

Rule 18: ASSIGNMENT OF CASES TO MEDIATOR

  1. The parties are not allowed to choose the mediator of their own.
  2. The Centre as mentioned in the provisions above shall appoint the mediator looking into the nature of the case and the type of dispute.
  3. Only one mediator shall be appointed for a case involving online mediation. In case of physical mediation, the parties may request for more than one mediator subject to approval from the Centre.

Rule 19: REMOVAL OF MEDIATOR FROM CENTRE’S EMPANELMENT

  1. A mediator shall be removed or his name may be deleted from the Centre’s list of empanelled mediators on one or more of the following circumstances:
    1. he resigns or withdraws in writing, his name from the panel;
    2. he is declared insolvent by any court or is declared to be of unsound mind;
    3. violates Rules and Code of Conduct of the Centre in conducting the mediation proceedings;
  2. Upon receipt of any such information, the Centre, shall conduct such inquiry as it deems fit, and if the Centre is satisfied that it is not possible or desirable to continue the name of that person in the panel, the mediators name shall be removed or deleted from the list of Empanelled Mediators.

CHAPTER VI

MISCELLANEOUS

Rule 20: FEES

  1. Fees shall be as per the Fee Schedule provided by the Centre. The Centre may, with the recommendation of the Advisory Committee amend the Fee Schedule from time to time.
  2. The fees shall be paid at the time of registration of the complaint.
  3. Refund of fees shall be applicable as provided under Terms of Use or under these Rules.

Rule 21: EXCLUSION OF LIABILITY

  1. Except in case fraud, dishonesty, violation of the Centre’s Mediators’ Professional Code of Conduct or any other deliberate wrongdoing, the mediator and the Centre shall not be liable to any party for any act or omission in connection with any mediation conducted under these Rules.

Rule 22: AMENDMENTS

  1. These rules may be amended or modified by the Centre at any time without notice.