Mediation Act, 2023 | Chapter IX | Section 40

Section 40 of the Mediation Act, 2023: Mediation Service Providers

Section 40 of the Mediation Act, 2023 (Act 32 of 2023) identifies the organisations and institutions that qualify as mediation service providers and describes their recognition by the Mediation Council of India. It forms part of Chapter IX, titled Mediation Service Providers and Mediation Institutes.

Commencement status: The Central Government's notification S.O. 4384(E), dated 9 October 2023, commenced selected provisions of the Act but did not include Section 40. The statutory text below should therefore not, without a further commencement notification, be treated as an operative provision. Check the latest notifications before relying on its commencement.

Text of Section 40 - Mediation service provider

40. (1) "mediation service provider" includes-

(a) a body or an organisation that provides for the conduct of mediation under this Act and the rules and regulations made thereunder and is recognised by the Council; or

(b) an Authority constituted under the Legal Services Authorities Act, 1987; or

(c) a court-annexed mediation centre; or

(d) any other body as may be notified by the Central Government:

Provided that the bodies referred to in clauses (b), (c) and (d) shall be deemed to be mediation service providers recognised by the Council.

(2) The mediation service provider shall be recognised by the Council in the manner as may be specified.

Meaning of mediation service provider

Under Section 3(m), the expression "mediation service provider" refers to a provider described in Section 40(1). The statutory definition includes recognised organisations conducting mediation, authorities constituted under the Legal Services Authorities Act, 1987, court-annexed mediation centres and any other body notified by the Central Government.

Four categories under Section 40(1)

Clause (a): Council-recognised organisations

A body or organisation conducting mediation in accordance with the Act and the applicable rules and regulations falls within this category when recognised by the Mediation Council of India.

Clause (b): Legal Services Authorities

Authorities constituted under the Legal Services Authorities Act, 1987 are expressly included. Under the proviso to Section 40(1), these authorities are deemed recognised by the Council.

Clause (c): Court-annexed mediation centres

Mediation centres established by courts are included. Section 3(e) defines "court-annexed mediation" to include pre-litigation mediation conducted at centres established by a court or tribunal. Such centres are also deemed recognised under the proviso.

Clause (d): Other notified bodies

The Central Government may notify additional bodies. A body covered by such a notification is deemed recognised by the Council under the proviso.

Recognition under Section 40(2)

Section 40(2) provides for recognition of mediation service providers by the Council in the manner specified. Section 3(y) explains that "specified" means specified by regulations made by the Council. The deemed-recognition proviso in subsection (1) should be read together with this recognition requirement.

Section 31 provides for establishment and incorporation of the Mediation Council of India. Section 38 describes the Council's duties and functions. Section 41 sets out the contemplated functions of mediation service providers, including accreditation and panels of mediators, mediation facilities, professional standards and facilitating registration of mediated settlement agreements. The commencement of each provision must be checked independently.

Official legislation and notifications

The distinction between an enacted provision and a provision brought into force by notification is important when applying Section 40.