The B

PUBL

(NO. PATNA 516) P

No. B/Estt.(H.C.)-06

High Court of Patna propose

122 of the Code of Civil Pr

September, 2008 in Bihar G

from the persons likely to be

taken into consideration on

Gazette.

AND WHEREAS, the

publication 05th September,

AND WHEREAS, no

by the High Court of Patna.

NOW, THEREFORE, i

read with Section-126 and

following rules made by the

published namely:-

Bihar Civil Procedure (Medi

REGISTE

Bihar Gaze

XTRA ORDIANARY

LISHED BY AUTHORIT

9 KARTIK 1930 (S)

PATNA, FRIDAY, 31ST OCTOBER 2

LAW DEPARTMENT

————

NOTIFICATION

24th October 2008

6-03/2008/5251/J Whereas the draft of the follow

ed to make was published as required by sub-se

rocedure, 1908 (Act 5 of 1908) in Notification N

Gazette dated 05th September, 2008 inviting objec

e affected thereby and notice was given that the sa

or after fifteen days from the date of its public

e said copy of the Gazette Notification was m

2008.

objections or suggestions have been received to

in exercise of the powers conferred by Section

127 of the Code of Civil Procedure, 1908 (

e High Court, Patna and approved by the State G

iation) Rules, 2008.

By the order of Gove

RAJENDRA KUMA

Sec-cum-legal Rem

ERED NO. PT.-40

ette

2008

wing rules which the

ection (1) of Section-

No. 4235 dated 05th

ctions or suggestions

aid draft rules will be

cation in the Official

made available to the

o the said draft rules

-89 and Section-122

Act 5 of 1908) the

Government is hereby

ernor of Bihar,

AR MISHRA,

membrancer.

BIHAR GAZETTE (EXTRA) 31ST OCTOBER 2008

BIHAR CIVIL PROCEDURE (MEDIATION) RULES, 2008

1. Title and Commencement--(i) These Rules shall be called the Bihar Civil

Procedure (Mediation) Rules, 2008.

(ii) They shall come into force from the date of publication in the Official Gazette.

2. Appointment of Mediator-- Mediator or Mediators shall be appointed as

follows:

(a) The parties to a suit may all agree on the name of a sole mediator for

mediating between them.

(b) Where there are two sets of parties and are unable to agree on a

sole mediator, each set of parties shall nominate a mediator.

(c) Where parties agree on a sole mediator under Clause (a) or where

parties nominate more than one mediator under Clauses (b) the

mediator need not necessarily be from the panel of the mediators

referred to in Rule-3 nor should possess the qualifications referred to

in Rule-4 but should not be a person who suffers from the

disqualification referred to in Rule-5.

(d) Where there are more than two sets of parties having diverse

interests, each set shall nominate a person on its behalf and the said

nominees shall select the sole mediator and failing unanimity in that

behalf, the court shall appoint a sole mediator.

3. Panel of Mediators—

(a) The High Court shall for the purpose of appointing mediators

between parties in suits filed on its original side prepare a panel of

mediators and publish the same on its Notice Board, within thirty

days of the coming into force of these Rules with a copy to the Bar

Association attached to the original side of the High Court-

(b) (i) The District & Sessions Judge or Courts of equal status in each

District & Principal Judge Family Court shall, for the purpose of

appointing mediators to mediate between the parties in suits filed on

their original side, prepare a panel of mediators, within a period of

sixty days of the commencement of these rules, after obtaining the

approval of the High Court to the names included in the panel and

shall publish the same on their respective Notice Boards.

(ii) Copies of the said panel referred to in Clause (i) shall be forwarded

to all the Courts of equivalent jurisdiction or Courts Subordinate to

the Courts referred to in Sub-Clause (i) and to the Bar Association

attached to each of the Courts.

shall be obtained before empanelling them.

(d) The panel of names of mediators shall be accompanied by an

annexure giving details of the qualification of the mediators and their

professional or technical experience in different fields.

4. Qualifications of persons to be empanelled under Rule-3—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 & Sessions Judges and retired Judges of

equivalent status.

(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.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

retired senior bureaucrats or retired senior executives.

(d) Institutions which are themselves expert in mediation and have been

recognized as such by the High Court provided the names of its

members are approved by the High Court initially or whenever there

is change in membership.

5. Disqualifications of persons — The following persons shall be deemed to be

disqualified for being empanelled as mediators :-

(i) Any person who has been adjudged as insolvent or is declared of

unsound mind, or

(ii) Any person against whom criminal charged involving moral

turpitudes are framed by a Criminal Court and are pending, of

(iii) Any person who have been convicted by a criminal courts for any

offence involving moral turpitude;

(iv) Any person against whom disciplinary proceedings or charges,

relating to moral turpitudes 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 or

dispute or is related to any one of the parties or to those 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 suit or in any other suit or proceedings.

(vii) Such other categories of persons as may be notified by the High

Court.

6. Venue for Conducting Mediation—The mediator shall conduct the mediation at

one or other of the following places:-

(i)

Venue of the Lok Adalat or Permanent Lok Adalat.

(ii)

Any place identified by the District Judge within the Court precincts

for the purpose of conducting mediation.

(iii)

Any place identified by the Bar Association or State Bar Council for

the purpose of mediation, within the premises of the Bar Association

or the State Bar Council, as the case my be.

(iv)

Any other place as may be agreed upon by the parties subject to the

approval of the Court.

7. Preference —The Court shall, while nominating any person from the panel of

mediators referred to in Rule (3), consider his suitability for resolving the particular class

of dispute involved in the suit and shall give performance to those who have proven

record of successful mediation or who have special qualification or experience in

mediation.

8. Duty of mediator to disclose certain facts—

(i) When a person is approached in connection with his possible

appointment as mediator, the person shall disclose in writing to the

parties, any circumstances likely to give rise to justifiable doubt as to

his independence or impartiality.

(ii) Every mediator shall, from the time of his appointment and

throughout continuance of the mediation proceedings, without delay,

disclose to the parties in writing about the existence of any of the

circumstances referred to in Sub-Rule (i).

9. Cancellation of Appointment .—upon information furnished by the mediator

under Rule-8 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 enquiry as it deems

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

BIHAR GAZETTE (EXTRA) 31ST OCTOBER 2008

justifiable doubt as to the mediators independence or impartiality, it shall cancel the

appointment by a reasoned order and replace him by another mediator.

10. Removal or Deletion from Penal —A person whose name is placed in penal

referred to in Rule-3 may be removed or his name be deleted from the said penal, by the

Court which empanelled him, if :-

(i)

He resigns or withdraws his name from the penal for any reason;

(ii)

He is declared insolvent or is declared of unsound mind;

(iii)

He is a person against whom criminal charges involving moral

turpitude are framed by a Criminal Court and are pending;

(iv)

He is a person who has been convicted by a Criminal Court for any

offence involving moral turpitude;

(v)

He is person against whom disciplinary proceedings on charges

relating to moral turpitudes have been initiated by appropriate

disciplinary authority which are pending or have resulted in a

punishment

(vi)

He exhibits or displays conduct, during the continuance of the

mediation proceedings, which is unbecoming of a mediator;

(vii)

The Court which empanelled, upon receipt of information, if it is

satisfied, after conducting such enquiry as is deemed fit, is of the view,

that it is not possible or desirable to continue the name of that person

in the penal.

Provided that before removing or deleting his name under Clauses VI and VII

the Court shall hear the mediator, whose name is proposed to be

removed or deleted from the penal and shall pass a reasoned orders.

11. Procedure of mediation—

(a) The parties may agree on the procedure to be followed by the

mediator in the conduct of 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

hereinafter mentioned (namely) as follows:

(i)

He shall fix, in consultation with parties, a time schedule, the

dates and time of each mediation session, where all parties

have to be present;

(ii)

He shall hold the mediation conference in accordance with

the provisions of Rule-6.

(iii)

He may conduct joint or separate meetings with the parties.

(iv)

Each party shall, ten days before a session, provide to the

mediator a brief memorandum setting forth issues, which

according to it, need to be resolved, and its position is

respect to those issues, and all information reasonably

required for the mediator to understand the issue, such

memoranda shall also be mutually exchanged between the

parties;

(v) Each party shall furnish to the mediator, copies of the

pleadings or documents or such other information as may be

required by him in connection with the issue to be resolved.

Provided that where the mediator is of the opinion that he should

look into the 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 Court may fix.

(vi)

Each party shall furnish to the mediator, copies of the

pleadings or documents or such other information as may be

required by him in connection with the issues to be solved.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

shall first confer with the party that nominated him and shall

thereafter interact with the other mediator, with a view to resolving

the dispute.

12. Mediator not bounded by Evidence Act, 1872 or Code of Civil Procedure

1908 —The Mediator shall no be bound by the Code of Civil Procedure, 1908 or the

Evidence Act, 1872 but shall be guided by principles of fairness and justice have due

regards to the rights and obligations of the parties, usages of trade, if any and the nature

of the dispute.

13. Non-attendance of parties at Sessions or Meetings on due dates.—

(i) The party shall be present personally or may be represented by their

counsel or power of attorney's holders at the meetings or sessions

notified by the mediator.

(ii) If a party fails to attend a Session or a Meeting notified by a mediator, other

parties or the mediator can apply to the Court in which the suit is filed, to

issues appropriate directions to that party to attend before the mediator and if,

the Court finds that a party is absenting himself before the mediator without

sufficient reason, the Court may take action against the said party by

imposition of costs.

(iii) The parties not resident in India, may be represented by their counsel or

power of Attorney holders at the Sessions or Meetings.

14. Administrative Assistance—In order to facilitate the conduct of mediation

proceedings, the parties, or the mediator with the consent of the party, may arrange for

administrative assistance by a suitable institution or person.

15. Offer of Settlement by parties —

(a)

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.

(b) Any party to the suit may make a "with prejudice" offer, to the other

party at any stage of the proceedings, with the notice to the

mediator.

16. Role of Mediator.—The mediator shall attempt to facilitate voluntary

resolution of the dispute by the parties and communicate the view of each party to the

other, assist them in identifying issues, reducing misunderstandings, clarifying priorities,

exploring areas of compromise and generating options in an attempt to solve the

dispute, emphasizing that it is the responsibility of the parties to take decision which

effect them, he shall not impose any terms of settlement on the parties.

17. Parties alone responsible for taking decision—The parties must understand

that the mediator only facilitates in arriving at a decision to resolve dispute and that he

will not and can not impose any settlement nor does the mediator give any warranty that

the mediation will result in a settlement. The mediator shall not impose any decision on

the parties.

18. 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 motu, 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 thirty days.

19. Parties to act in good faith—While on one can be compelled to commit to

settle his case in advance by way of mediation, all parties shall commit to participate in

the proceedings in good faith with the intention to settle the dispute, if possible.

BIHAR GAZETTE (EXTRA) 31ST OCTOBER 2008

20. Confidentiality, disclosure and inadmissibility of information—

(i)

When a mediator receives confidential information concerning the

dispute from any party, he shall disclose the substance of that

information to the other party, if permitted, in writing by the first party.

(ii)

When a party gives information to the mediator subject to a specific

condition that it is to be kept confidential, the mediator shall not

disclose that information to the other party, nor shall the mediator

voluntary divulge any information regarding the documents or what is

conveyed to him orally as to what transpire during the mediation.

(iii)

Receipt or perusal, or preparation of records, reports or other

documents by the mediator, or receipt of information orally by the

mediator while serving in that capacity, shall be confidential and the

mediator shall not be compelled to divulge information regarding the

documents nor in regard to the oral information nor to what transpire

during the mediation.

(iv)

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 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;

(c)

Proposal 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.

(v)

There shall be no stenographic or audio or video recording of the

mediation proceedings.

21. Privacy —Mediation sessions and meetings are private; only the concerned

parties or their counsel or powers of attorney holders can attend. Other persons may

attend only with the permission of the parties or with the consent of the mediators.

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.

23. Communication between mediator and the Court . —

(i)

In order to preserve the confidence of parties in the court and the

neutrality of the mediator there should be no communication

between the mediator and the court except as stated in clause (ii)

and (iii) of this Rule.

(ii)

If any communication between the mediator and the Court is

necessary, it shall be in writing and copies of the same shall be

given to the parties or their counsel or power of attorney holder.

(iii)

Communication between the mediator and the Court shall be limited

to communication by the mediator.

(a) With the court about the failure of party to attend;

(b) With the court with the consent of the parties;

settlement through mediation;

(d)That the parties have settled the dispute or disputes.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

24. Settlement of agreement—

(i) 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 and signed by the parties or their power of

attorney holder. If any counsel has represented the parties they

shall attest the signature of their respective clients.

(ii) The agreement of the parties so signed and attested shall be

submitted to the mediator who shall, with a covering letter signed

by him, forwarded the same to the court in which the suit is

pending.

(iii) Where no agreement is arrived at between the parties, before the

time limit stated in Rule 18 or where, the mediator is of the view

that no settlement is possible, he shall report the same to the said

Court in writing.

25. Court to fix a date for recording settlement and passing Decree—

(i) Within seven days of the receipt of any settlement, the Court shall

issue notice to the parties fixing day for recording settlement, such

date not being beyond a further period of fourteen days from the

date of receipt of the settlement and the Court shall record the

settlement, if it is not collusive.

(ii) 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.

(iii) If the settlement disposes of only certain issues arising in the suit,

the Court shall record the settlement in respect of those issues

settled on the date fixed for recording the settlement, and

(a) If the issues are severable from other issues and if a decree could

be passed to the extent of the settlement covered by those issues,

the Court may pass a decree straightway in accordance with the

settlement on those issues without waiting for a decision of the

court on the other issues, which are not settled.

(b) If the issues are not severable, the Court shall wait for a

decision of a Court on the other issues which are not settled.

26. (i) Fee of mediator and cost.—At the time of referring the disputes to

mediation, the Court shall, after consulting the mediator and the parties, fix the fee of the

mediator.

(ii) As far as possible a consolidated sum may be fixed rather than for

each session or meeting.

(iii) Where there are two mediators as in Clause (b) of the Rule 2, the

Court shall fix the fee payable to the mediators which shall be

shared equally by the two sets of parties.

(iv) The expense of the mediation including the fee of the mediator,

costs of administrative assistance and other ancillary expenses

concerned shall be borne equally by the various contesting parties

or as may be otherwise directed by the court.

(v) Each party shall bear the costs for production of witnesses on his

side including experts, or the production of documents.

(vi) The mediator may, before the commencement of mediation direct

the parties to deposit equal sums, tentatively, to the extent of 40%

of the probable costs of the mediation, as referred to in Clauses

(i), (iii) & (iv). The remaining 60% shall be deposited with the

mediator, after the conclusion of the mediation. For the amount of

cost paid to the mediator, he shall issue the necessary receipts

BIHAR GAZETTE (EXTRA) 31ST OCTOBER 2008

and a statement of account shall be filled, by the mediator in the

Court.

(vii) The expenses of mediation including fee, if not paid by the parties,

the Court shall, on the application of the mediator or parties, direct

the concerned parties to pay, and if they do not pay, the Court

shall recover the said amounts as if there was a decree for the

said amount.

(viii) 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 paid by the concerned Legal Services

Authority under that Act.

27. Ethics to be followed by mediator—The mediator shall;

(i) Follow and observe these rules strictly and with due diligence.

(ii) Not carry on any activity or conduct which could reasonably be

considered as conduct unbecoming of a mediator;

(iii) Uphold the integrity and fairness of the mediation process;

(iv) Ensure that the parties involved in the mediation are fairly informed

and have an adequate understanding of procedural aspect of the

process;

(v) Satisfy himself / herself that he/she is qualified to undertake and

complete the assignment in a professional manner.

(vi) Disclose any interest or relationship likely to affect impartiality for

which might seek an appearance of partiality of bias;

(vii) Avoid, while communicating with the parties, any impropriety or

appearance of impropriety;

(viii) Be faithful to the relationship of trust and confidentiality imposed in

the office of mediator.

(ix) Conduct all proceedings related to the resolutions of dispute, in

accordance with the applicable law.

(x) Recognize that mediation is based on principle of self-determination

by the parties and that mediation process relies upon the ability of

parties to reach a voluntary, undisclosed agreement.

(xi) Maintain the reasonable expectation of the parties as to

confidentiality.

(xii) Refrain from promises or guarantees of results.

28. Transitory Provision— Until a panel of mediators is prepared by the High

Court or the District Courts as provided under Rule-3, the Court concern may nominate a

mediator of their choice, if the mediator belongs to the various classes of person referred

to in Rule 4 and is duly qualified and is not disqualified, taking into account the suitability

of the mediator for resolving the particular dispute.

————

PUBLISHED AND PRINTED BY THE SUPERINTENDENT,

BIHAR SECRETARIAT PRESS, PATNA.

Bihar Gazette (Extra) 516—571+400—D.T.P.