Section 10 of Mediation Act 2023 - Conflict of Interest and Disclosure

Section 10 of the Mediation Act, 2023 (Act No. 32 of 2023) deals with a mediator's duty to disclose circumstances that may create a conflict of interest or give rise to justifiable doubts about the mediator's independence or impartiality. It also provides the parties with choices after disclosure, including written waiver of an objection or replacement of the mediator.

Commencement status: The Mediation Act, 2023 provides for different provisions to be brought into force on dates notified by the Central Government. The commencement notification dated 9 October 2023 brought specified provisions into force, but Section 10 was not included in that notified group. Readers should therefore verify any later commencement notification before relying on Section 10 as an operative statutory provision.

Text and meaning of Section 10

Section 10 - Conflict of interest and disclosure.

Sub-section (1): Before mediation begins, the appointed mediator must disclose in writing to the parties any actual or potential personal, professional, financial or other circumstance that may constitute a conflict of interest or may give rise to justifiable doubts concerning the mediator's independence or impartiality.

Sub-section (2): If such a conflict newly arises during mediation, or comes to the mediator's knowledge during the process, the mediator must disclose it to the parties in writing without delay.

Sub-section (3): After a disclosure under sub-section (1) or (2), all parties may waive an objection by expressing the waiver in writing. Such written expression is treated as the consent of the parties.

Sub-section (4): If either party wants the mediator replaced following disclosure, the procedure depends on whether the mediation is institutional or non-institutional. In institutional mediation, the party applies to the mediation service provider for termination of the mediator's mandate. In other mediation, the party terminates the mediator's mandate.

Purpose of the conflict-of-interest rule

The disclosure requirement is designed to protect confidence in the neutrality of mediation. The statutory test is not confined to an established conflict. It also covers a potential circumstance and a circumstance likely to create justifiable doubts about independence or impartiality. The provision therefore requires disclosure before the mediation where relevant circumstances already exist and continuing disclosure if a relevant matter later arises or becomes known.

What must a mediator disclose?

Section 10(1) expressly refers to circumstances that are personal, professional, financial or otherwise. The wording is deliberately broad. A circumstance falls within the disclosure obligation when it may constitute a conflict of interest or is likely to give rise to justifiable doubts about the mediator's independence or impartiality.

Written disclosure before mediation

The disclosure under Section 10(1) must be made in writing and prior to the conduct of mediation. This enables the parties to consider the information before substantive mediation proceeds and decide whether they are willing to continue with the appointed mediator.

Continuing duty during mediation

The duty does not end after the initial disclosure. Under Section 10(2), a mediator must disclose without delay any relevant conflict that newly arises or comes to the mediator's knowledge during mediation. The statutory structure therefore creates an ongoing disclosure obligation throughout the mediation process.

Waiver of objection by all parties

Disclosure does not automatically require replacement of the mediator. Section 10(3) permits the parties to waive an objection. The waiver must be expressed in writing by all parties, and the provision treats that written expression as their consent. A unilateral waiver by only one party does not satisfy the wording of sub-section (3).

Replacement of mediator after disclosure

Section 10(4) distinguishes between two forms of mediation. For institutional mediation, a party seeking replacement applies to the mediation service provider for termination of the mediator's mandate. For mediation other than institutional mediation, the party seeking replacement terminates the mediator's mandate.

This provision should be read with Section 11, which addresses termination of a mediator's mandate by a mediation service provider, including upon an application made under Section 10(4)(i) and upon information concerning a conflict of interest.

Related provisions of the Mediation Act 2023

Section 10 forms part of Chapter IV dealing with mediators. Section 8 addresses appointment of mediators, while Section 9 requires a mediation service provider, when appointing from its panel, to consider suitability and the preference of the parties. Section 10 then addresses independence, impartiality and conflict disclosure after a person has been appointed as mediator.

Key points

A mediator must make relevant conflict disclosures in writing before mediation.
The obligation covers actual and potential circumstances capable of creating a conflict or justifiable doubts about independence or impartiality.
The duty continues throughout mediation and newly arising or newly discovered conflicts must be disclosed without delay.
All parties may waive an objection in writing after disclosure.
A party may seek replacement of the mediator, with the procedure depending on whether the mediation is institutional or non-institutional.
The commencement status of Section 10 should be checked against the latest Central Government notification.

This page explains the statutory provision for general legal information. For the authoritative text and commencement position, refer to the Act and notifications published by the Government of India.