THE HIGH COURT OF KERALA

NOTIFICATION

No. D1(A)-58357/2002.

20th September 2007.

By virtue of the powers conferred by Section 122 of

the Code of Civil Procedure, 1908 and Clause (d) of Sub-

section (2) of Section 89 of the said Code and of all other

powers enabling it in this behalf, the High Court of Kerala

hereby publishes for general information the draft of the

Civil Procedure (Alternative Dispute Resolution) Rules,

2007.

Notice is hereby given that the said draft Rules will

be taken up for consideration after 30 days from the date

of publication of this notification in the Gazette. Any

objections or suggestions received from any person with

regard to the draft rules will be considered by the High

Court.

Objections or suggestions, if any, shall be addressed

to the Registrar (Subordinate Judiciary), High Court of

Kerala, Kochi-31.

CIVIL PROCEDURE (ALTERNATIVE DISPUTE RESOLUTION)

RULES, 2007

Rule 1—Title:

These Rules shall be called the ‘Civil Procedure

(Alternative Dispute Resolution) Rules, 2007’.

PART—1

[General Rules]

Rule 2—Definitions:

(a)

Settlement by ‘Arbitration’ means the process by

which an arbitrator appointed by parties or by

the Court, as the case may be, adjudicates the

disputes between the parties to the suit and

passes an award by applying the provisions of

the Arbitration and Conciliation Act, 1996 (26 of

1996) and the Rules made thereunder, in so far

as they refer to arbitration.

(b)

Settlement by ‘Conciliation’ means the process by

which a conciliator who is appointed by parties

or by the Court, as the case may be, conciliates

the disputes between the parties to the suit by

applying the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) and the Rules

made thereunder, in so far as they relate to

conciliation.

(c)

Settlement by ‘Mediation’ means the process by

which a mediator appointed by parties or by the

Court, as the case may be, mediates the dispute

between the parties to the suit by applying the

provisions of these Rules, in so far as they relate

to mediation.

(d)

Settlement by ‘Lok Adalat’ means settlement by

way of compromise entered into before the Lok

Adalat as provided for by the Legal Services

Authority Act, 1987 (39 of 1987).

(e)

‘Judicial Settlement’ means settlement by way of

compromise entered into before a suitable

institution or person to which the Court has

referred the dispute for settlement in accordance

with the provisions of the Legal Service Authority

Act, 1987 (39 of 1987).

Rule 3—Procedure for directing parties to opt for

alternative modes of settlement:

(a)

The court shall after formulating the terms of

settlement under Section 89 (1) of the Code of

Civil Procedure give them to the parties to submit

their observations within such time as the court

may specify.

(b)

The court may after hearing the parties,

reformulate the terms of a possible settlement and

shall direct the parties to opt for one of the

modes of settlement of disputes outside the

Court as specified in clauses (a) to (d) of sub-

section (1) of Section 89 of the Code of Civil

Procedure within 15 days from the date fixed for

submission of observations by the parties.

Rule 4—Court to give guidance to parties while giving

direction to opt:

(a)

The court shall before directing the parties to

exercise option under clause (b) of Rule 2, give

such guidance as it deems fit to the parties, by

drawing their attention to the relevant factors

which parties will have to take into account,

before they exercise their option as to the

particular mode of settlement, namely;

(i) that it will be to the advantage of the parties,

so far as time and expense are concerned, to opt

for one or other of these modes of

settlement referred to in Section 89 of the

Code of Civil Procedure rather than seek a trial

on the disputes arising in the suit;

(ii) that, where there is no relationship between

the parties which requires to be preserved, it

may be in the interest of the parties

to seek reference of the matter to

arbitration as

envisaged in clause (a) of

sub section (1) of Section 89 of the Code of

Civil Procedure;

Kerala Gazette No. 40 dated 9th October 2007.

PART III

JUDICIAL DEPARTMENT

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(iii) that, where there is a relationship between

the parties which requires to be preserved, it

may be in the interest of parties to seek

reference of the matter to conciliation or

mediation, as envisaged in clauses (b) or (d) of

sub section (1)

of Section 89 of the Code of

Civil Procedure.

Explanation:—Disputes arising in matrimonial,

maintenance and child custody matters shall,

among others, be treated as cases where a

relationship between the parties has to be

preserved.

(iv) that, where parties are interested in a

final settlement which may lead to a compromise,

it will be in the interests of the parties to

seek reference of the matter to Lok Adalat or to

judicial settlement as envisaged in clause (c)

of sub-section (1) of section 89 of the Code of

Civil Procedure.

Rule 5—Procedure for reference by the Court to the

different modes of settlement:

(a)

Where all parties to the suit decide to exercise

their option and to agree for settlement by

arbitration, they shall apply to the court, within

thirty days of the direction of the court under

clause (b) of Rule 3 and the court shall, within

thirty days of the said application, refer the

matter to arbitration and thereafter the provisions

of the Arbitration and Conciliation Act, 1996 (26

of 1996) which are applicable after the stage of

making of the reference to arbitration under that

Act shall apply as if the proceedings were

referred for settlement by way of arbitration under

the provisions of that Act.

(b)

Where all the parties to the suit decide to

exercise their option and to agree for settlement

by the Lok Adalat or where one of the parties

applies for reference to Lok Adalat, the procedure

envisaged under the Legal Services Act, 1987 and

in particular by section 20 of that Act, shall apply.

(c)

Where all the parties to the suit decide to

exercise their option and to agree for judicial

settlement, they shall apply to the court within

thirty days of the direction under clause (b) of

Rule 3 and then the court shall, within thirty days

of the application, refer the matter to a suitable

institution or person and thereafter the provisions

of the Legal Services Authority Act, 1987 (39 of

1987) which are applicable after the stage of

making of the reference to Lok Adalat under that

Act, shall apply as if the proceedings were

referred for settlement under the provisions of

that Act.

(d)

Where all the parties opt and agree for

conciliation, they shall apply to the court, within

thirty days of the direction under clause (b) of

Rule 3 and the court shall, within thirty days of

the application refer the matter to conciliation and

thereafter the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) which are

applicable after the stage of making of the

reference to conciliation under that Act, shall

apply, as if the proceedings were referred for

settlement by way of conciliation under the

provisions of that Act.

(e)

Where all the parties opt and agree for mediation,

they shall apply to the court within thirty days

of the direction under clause (b) of Rule 3 and

the court shall, within thirty days of the

application, refer the matter to mediation and

thereafter the provisions of these Rules shall

apply, in so far as they relate to mediation.

(f)

Where, there are more than 2 sets of parties

having diverse interests and some of then opt

and agree to resolve the dispute between them

by arbitration or conciliation or judicial settlement

or mediation, they shall apply to the court within

30 days of the direction under clause (b) of Rule

3 and then the court shall, within 30 days of the

application refer the matter for settlement in the

manner agreed to by the parties, provided that

the court is of the opinion that the dispute

between the consenting parties can be resolved

independently.

(g)

Where there is no consensus among the parties

as to the mode of settlement, the court shall,

after affording to the parties an opportunity of

hearing, persuade the parties to arrive at a

consensus as to the mode of settlement and if

the parties are not able to arrive at a consensus

as to the mode of settlement, consider whether

the matter can be referred for decision by

arbitration, if one of the parties is willing for

settlement by arbitration as provided under clause

(f) above.

(h)

(i) No next friend or guardian for the suit shall,

without the leave of the court, expressly recorded

in the proceedings of the court, opt for any one

of the modes of alternative dispute resolution nor

shall enter into any settlement on behalf of a

minor or person under disability with reference to

the suit in which he acts as mere friend or

guardian.

(ii) where an application is made to the court for

leave to enter into a settlement initiated into in

the alternative dispute resolution proceedings on

behalf of a minor or other person under disability

and such minor or other person under disability

is represented by counsel or pleader, the counsel

or pleader shall file a certificate along with the

said application to the effect that the settlement

is, in his opinion, for the benefit of the minor or

other person under disability. The decree of the

court based on the settlement to which the minor

or other person under disability is a party, shall

refer to the sanction of the court thereto and

shall set out the terms of the settlement.

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Rule 6—Appointment of Arbitrator, Conciliator, Judicial

Settlement Authority and Mediator:

(a)

Where all parties to the suit decide to exercise

their option and agree for settlement by

arbitration, they shall while applying to the court

under Rule 5 furnish the names of arbitrator/

arbitrators acceptable to them and if the parties

fail to reach a consensus on the arbitrator/

arbitrators to be appointed, the court shall, after

affording the parties an opportunity of hearing,

persuade the parties to arrive at a consensus as

to the arbitrator/arbitrators and if the parties still

fail to reach a consensus, appoint the arbitrator/

arbitrators, having regard to the nature of the

dispute and the qualification, competency,

independence, impartiality etc. of the arbitrator

proposed to be appointed, provided that in any

case, the number of arbitrator appointed shall not

be an even number.

(b)

Where all parties to the suit decides to exercise

their option and agree for settlement by

conciliation or judicial settlement otherwise than

through Lok Adalat or mediation, they shall while

applying to the court under Rule 5 furnish the

names of conciliator/conciliators or judicial

settlement authority or mediator/mediators, as the

case may be, acceptable to them and if the

parties fails to reach a consensus on the

conciliatory forum, the court shall, after affording

the parties and opportunity of hearing, persuade

the parties to arrive at a consensus as to the

conciliatory forum and if the parties still fail to

reach a consensus, appoint a sole conciliatory

forum to settle the dispute.

Rule 7—Applicability to other proceedings:

The provisions of these Rules may be applied to

proceedings before the Courts, including Family Courts

constituted under the Family Courts Act (66 of 1984), while

dealing with matrimonial, maintenance and child custody

disputes, wherever necessary, in addition to the rules

framed under the Family Courts Act, (66 of 1984).

PART II

[Mediation Rules]

Rule 8—Qualifications of persons to be nominated/

appointed as mediators:

The following persons shall be treated as qualified

and eligible for being enlisted in the panel of mediators

under Rule 3, namely:

(a)

(i) Retired Judges of the Supreme Court of

India;

(ii) Retired Judges of the High Court;

(iii) Retired District Judge and Sessions Judges.

(b)

Legal practitioners with at least fifteen years

standing at the Bar (at the level of the Supreme

Court or the High Court; or the District Courts or

Courts of equivalent status).

(c)

Experts or other professionals with at least fifteen

years standing in the respective fields.

Rule 9—Disqualifications of persons to be nominated/

appointed as mediators:

The following persons shall be deemed to be

disqualified for being nominated/appointed as mediators:

(i)

any person who has been adjudged as insolvent

or is declared of unsound mind.

(ii)

any person against whom criminal charges

involving moral turpitude are framed by a criminal

court and are pending:

(iii)

any person who has been convicted by a

criminal court for any offence involving moral

turpitude;

(iv)

any

person

against

whom

disciplinary

proceedings or charges relating to moral turpitude

have been initiated by the appropriate disciplinary

authority which are pending or have resulted in a

punishment.

(v)

any person who is interested or connected with

the subject matter of dispute or is related to any

one of the parties or to those who represent them,

unless such objection is waived by all the parties

in writing.

(vi)

any legal practitioner who has or is appearing for

any of the parties in the suitor in any other suit

or proceedings.

Rule 10—Venue for conducting mediation:

The mediator shall conduct the mediation at any

place as may be agreed upon by the parties or fixed by

the mediator.

Rule 11—Duty of mediator to disclose certain facts:

(a)

When a person is approached in connection with

his possible appointment as a mediator, the

person shall disclose in writing to the parties, any

circumstances likely to give rise to a justifiable

doubt as to his independence or impartially.

(b)

Every mediator shall, from the time of his

appointment and through out the continuance of

the mediation proceedings, without delay, disclose

to the parties in writing, about the existence of

any of the circumstances referred to in clause (a).

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Rule 12—Cancellation of appointment

Upon information furnished by the mediator under

Rule 6 or upon any other information received from the

parties or other persons, if the Court, in which the suit is

filed, is satisfied, after conducting such inquiry as it deems

fit, and after giving a hearing to the mediator, that the said

information has raised a justifiable doubt as to the

mediator’s independence or impartiality, it shall cancel the

appointment by a reasoned order and replace him by

another mediator.

Rule 13—Procedure of mediation

(a)

The parties may agree on the procedure to be

followed by the mediator in the conduct of the

mediation proceedings.

(b)

Where the parties do not agree on any particular

procedure to be followed by the mediator, the

mediator shall follow the procedure thereinafter

mentioned, namely:—

(i)

He shall fix, in consultation with the parties, a

time schedule, the dates and the time of each

mediation session, where all parties have to

be present.

(ii) He may conduct joint or separate meetings

with the parties;

(iii) Each party shall furnish to the mediator,

copies of pleadings or documents or such

other information as may be required by him

in connection with the issues to be resolved.

Provided that where the mediator is of the opinion

that he should look into any original document, the court

may permit him to look into the original document before

such officer of the court and on such date or time as the

court may fix.

Rule 14—Mediator not bound by Evidence Act, 1872 or

Code of Civil Procedure, 1908

The mediator is not bound by the Code of Civil

Procedure 1908 or the Evidence Act, 1872, but shall be

guided by principles of fairness and justice, have regard

to the rights and obligations of the parties usages of

trade, if any, and the nature of the dispute.

Rule 15—Appearance of parties at sessions or meetings

on due dates

The parties shall be present personally or through

their counsel or through their authorized representatives.

Rule 16— Administrative Assistance

In order to facilitate the conduct of mediation

proceedings, the parties may arrange for administrative

assistance by a suitable institution or person with the

consent of the mediator.

Rule 17—Offer of settlement by parties

Any party to the suit may, ‘without prejudice’, offer

a settlement to the other party at any stage of the

proceedings, with notice to the mediator.

Rule 18—Role of mediator

“(i)

The mediator shall attempt for voluntary resolution

of the dispute by the parties by facilitating

discussion between the parties directly or by

communicating with each of them, by assisting

parties

in

identifying

issues,

reducing

misunderstandings, clarifying priorities, exploring

areas of compromise, generating options in an

attempt to solve the dispute and emphasizing that it

is the parties own responsibility for making decisions

which affect them.

(ii)

The mediator shall not impose any terms of

settlement on the parties.”

Rule 19—Time limit for completion of mediation

On the expiry of sixty days from the date fixed for

the first appearance of the parties before the mediator,

the mediation shall stand terminated, unless the court,

which referred the matter, either suo moto, or upon

request by the mediator or any of the parties, and upon

hearing all the parties, is of the view that extension of time

is necessary or may be useful; but such extension shall

not be beyond a further period of 60 days.

Rule 20—Confidentiality, disclosure and inadmissibility

of information

(1)

The mediator shall not disclose confidential

information concerning the dispute received from any

party to the proceedings unless permitted in writing

by the said party.

(2)

Parties shall maintain confidentiality in respect of

events that transpired during mediation and shall not

rely on or introduce the said information in any other

proceedings as to:

(a) views expressed by a party in the course of the

mediation proceedings;

(b) documents obtained during the mediation which

were expressly required to be treated as

confidential or other notes, drafts or information

given by parties or mediators.

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(c) Proposals made or views expressed by the

mediator;

(d) Admission made by a party in the course of

mediation proceedings;

(e) The fact that a party had or had not indicated

willingness to accept a proposal.

(3)

There shall be no stenographic or audio or video

recording of the mediation proceedings.

Rule 21—Privacy

Mediation sessions and meetings are private; only the

concerned parties or their counsel or authorized

representatives can attend. Other persons may

attend only with the permission of the parties or

with the consent of the mediator.

Rule 22—Immunity

No mediator shall be held liable for anything bona fide

done or omitted to be done by him during the

mediation proceedings for civil or criminal action nor

shall he be summoned by any party to the suit to

appear in a court of law to testify in regard to

information received by him or action taken by him

or in respect of drafts or records prepared by him or

shown to him during the mediation proceedings.

Rule 23—Communication between mediator and the

court

(a)

There shall be no communication between the

mediator and the court except for

(i) intimating about the failure of the party to attend

the mediation;

(ii) intimating that the parties have settled the

dispute; and

(iii) getting advice on procedural matters with the

consent of the parties.

(b)

The communication with respect to matters stated in

sub clauses (i) to (iii) of clause (a) above shall be in

writing and the copies of the same shall be given to

the parties or their counsel or authorized

representatives.

Rule 24—Settlement Agreement

(1)

Where an agreement is reached between the parties

in regard to all the issues in the suit or some of the

issues the same shall be reduced to writing, verified

and signed by the parties or their power of attorney

holder. The signatures of the parties to such an

agreement shall be attested by their respective

counsel or by any of the authorities mentioned in

Rule 27 of the Kerala Civil Rules of Practice.

(2)

The agreement of the parties so signed and attested

shall be submitted to the mediator who shall, with a

covering letter signed by him, forward the same to

the court in which to the suit is pending.

(3)

Where no agreement is arrived at between the

parties, before the time limit stated in Rule 14 or

where, the mediator is of the view that no settlement

is possible, he shall report the same to the said court

in writing.

Rule 25—Court to fix a date for recording settlement

and passing decree

(1)

Within seven days of the receipt of any settlement,

the court shall issue notice to the parties fixing a

day for recording the settlement, such date not being

beyond a further period of fourteen days from the

date of receipt of settlement, and the court shall

record the settlement, if it is lawful.

(2)

The court shall then pass a decree in accordance

with the settlement so recorded, if the settlement

disposes of all the issues in the suit.

(3)

If the settlement disposes of only certain issues

which are severable and if a decree could be passed

to the extent of the settlement, the court after

recording the settlement on the date fixed for the

same, may pass a decree straight away in

accordance with the settlement on those issues which

were settled without waiting for a decision of the

court on other issues which are not settled. If the

issues settled are not servable the court shall wait

for the decision of the court on other issues which

are not settled.

(ii) if the issues are not servable, the court shall wait

for a decision of the court on the other issues which

are not settled.

Rule 26—Fee of mediator and costs

(1)

The fee of the mediator/mediators and the

expenditure for the mediation shall be fixed by the

mediator/mediators with the concurrence of the court

and the same shall be paid by the parties so agreed.

(2)

Where a party is entitled to legal aid under

Section 12 of the Legal Services Authority Act, 1987,

the amount of fee payable to the mediator and costs

shall be fixed by the mediator in consultation with

concerned Legal Services Authority and with the

concurrence of the court. The fee and costs so fixed

shall be paid by the concerned Legal Services

Authority.

Rule 27—Ethics to be followed by the mediator

The mediator shall:

(1) follow and observe these Rules strictly and with

due diligence;

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(2) not carry on any activity or conduct which

could reasonably be considered as conduct

unbecoming of a mediator;

(3) uphold the integrity and fairness of the mediation

process;

(4) ensure that the parties involved in the mediation

and fairly informed and have an adequate

understanding of the procedural aspects of the

process;

(5) satisfy himself/herself that he/she is qualified to

undertake and complete the assignment in a

professional manner;

(6) disclose any interest or relationship likely to

affect impartiality or which might seek an

appearance of partiality or bias;

(7) avoid, while communicating with the parties, any

impropriety or appearance of impropriety;

(8) be faithful to the relationship of trust and

confidentiality imposed in the office of mediator;

(9) conduct all proceedings related to the resolutions

of a dispute, in accordance with the applicable law;

(10) recognize that mediation is based on principles

of self-determination by the parties and that

mediation process relies upon the ability of

parties to reach a voluntary agreement;

(11) maintain the reasonable expectations of the

parties as to confidentiality;

(12) refrain from promises or guarantees of results.

(By order)

A. V. RAMAKRISHNA PILLAI,

Registrar (Subordinate Judiciary).

Explanatory Note

(This does not form part of the notification, but is

intended to indicate its general puport).

The Honourable Supreme Court in its Judgement in

WP (C) 496/2002 entitled ‘Salem Advocates Bar

Association Vs. Union of India, directed the High Courts

to frame necessary rules to give effect the alternative

modes of dispute resolution envisaged in Section 89 of

the code of Civil Procedure as amended by Act 46 of

1999.

The High Court after considering the matter in all its

detail, decided to issue separate rules providing guidelines

for alternative dispute resolution.

This notification is intended to achieve the above

object.