Section 9 of Mediation Act 2023 - Preference of Parties
Section 9 of the Mediation Act, 2023 deals with the preference of parties when a mediation service provider appoints a mediator from its panel. The provision requires the service provider to consider both the suitability of the proposed mediator and the preference of the parties for resolving the dispute.
Text of Section 9 - Preference of Parties
Meaning and Scope of Section 9
Section 9 applies when the appointment is being made by a mediation service provider from its panel of mediators. It directs the provider to take two matters into account: the proposed mediator's suitability for the dispute and the preference expressed by the parties.
The provision supports party participation in the mediator-selection process while preserving the mediation service provider's responsibility to consider whether the proposed mediator is suitable for the particular dispute. Section 9 should therefore be read with Section 8, dealing with appointment of mediators, and Section 10, dealing with conflict of interest and disclosure.
Key Requirements Under Section 9
1. Appointment from the panel
The statutory direction operates when the mediation service provider appoints a person from the panel of mediators maintained by it.
2. Suitability of the mediator
The mediation service provider must consider whether the mediator is suitable for resolving the dispute. Suitability is relevant because different disputes may require different subject knowledge, professional experience, language ability, availability or other appropriate attributes.
3. Preference of the parties
The provider must also consider the preference of the parties. This requirement reflects the party-oriented character of mediation and ensures that the parties' stated preference forms part of the appointment decision.
Relationship with Section 8 of the Mediation Act
Section 8 of the Mediation Act, 2023 governs appointment of mediators. It recognizes the parties' freedom to agree upon the name of a mediator and the procedure for appointment. Where the statutory mechanism requires a mediation service provider to appoint a mediator from its panel, Section 9 adds the specific requirement that suitability and party preference be considered.
Relationship with Conflict of Interest Rules
Preference for a mediator does not displace the safeguards governing independence and impartiality. Section 10 contains disclosure requirements concerning circumstances that may constitute a conflict of interest or give rise to justifiable doubts regarding a mediator's independence or impartiality.
Practical Effect of Section 9
In an institutional appointment from a maintained panel, parties may communicate their preference regarding the mediator. The mediation service provider is required to consider that preference together with the mediator's suitability. The section uses the expression "consider" and does not state that a party's preference automatically determines the appointment.
