Section 12 of the Mediation Act 2023 - Replacement of Mediator

Section 12 of the Mediation Act, 2023 provides the mechanism and time limit for appointing another mediator after the mandate of the existing mediator has been terminated. The procedure differs between mediation other than institutional mediation and termination under Section 11.

Current commencement position: Section 1(3) permits different provisions of the Mediation Act, 2023 to commence on different dates. The Central Government notification dated 9 October 2023 brought specified provisions into force, but Section 12 was not included in that notified group. Accordingly, the latest commencement notification should be checked before treating Section 12 as an operative statutory requirement.

What Section 12 provides

Section 12 - Replacement of mediator. Upon termination of the mandate of a mediator:

(i) for mediation other than institutional mediation under Section 10(4)(ii), the parties may appoint another mediator within seven days from the termination; and

(ii) where the mandate is terminated under Section 11, the mediation service provider must appoint another mediator from its maintained panel within seven days from the termination.

Purpose of Section 12

The provision is designed to avoid unnecessary interruption of mediation after a mediator's mandate ends. It creates a seven-day replacement framework and allocates responsibility according to the form of mediation involved.

Replacement in mediation other than institutional mediation

Section 12(i) is linked to Section 10. Under Section 10(4)(ii), in mediation other than institutional mediation, a party seeking replacement following the relevant conflict-of-interest disclosure may terminate the mediator's mandate. Section 12 then permits the parties to appoint another mediator within seven days from that termination.

Replacement after termination under Section 11

Section 12(ii) applies when termination takes place under Section 11. In that situation, the mediation service provider is required to appoint another mediator from the panel maintained by it within seven days from termination.

Meaning of important terms

Mediator

Section 3 defines a mediator as a person appointed to undertake mediation and includes a person registered as a mediator with the Mediation Council of India.

Mediation service provider

The definition in Section 3 covers the bodies or organizations recognized under the Act to conduct mediation and provide mediation-related facilities or services. In the institutional setting addressed by Section 12(ii), the service provider has the responsibility of making the replacement appointment from its panel.

Institutional mediation

Institutional mediation is mediation conducted under the aegis of a mediation service provider. This distinction matters because Section 12 assigns the replacement function differently depending on whether the process is institutional or falls within the non-institutional situation referred to in Section 10(4)(ii).

Seven-day period under Section 12

Both clauses use a period of seven days calculated from termination of the mediator's mandate. In the first situation the parties may appoint another mediator; in the second, the mediation service provider shall appoint another mediator from its panel.

How Sections 10, 11 and 12 work together

Section 10 - Conflict of interest and disclosure deals with disclosure and the parties' response to a potential conflict. Section 11 - Termination of mandate of mediator specifies circumstances in which a mediation service provider may terminate a mediator's mandate. Section 12 then addresses appointment of the replacement mediator. These provisions should therefore be read together.

Official legal source

For the authoritative statutory text and commencement footnote, see the official Mediation Act, 2023 on India Code. India Code has also announced migration to indiacode.gov.in.