Party's Unwillingness To Participate in Mediation Proceedings Cannot Be A Ground For Refusal Of Reference To Mediation: Karnataka High Court

The Karnataka High Court recently clarified that merely because a party is not willing to participate in Mediation proceedings, it could not be a ground for not referring the matter to the Mediation Centre.Remarking that this was a popular misconception, Justice Suraj Govindaraj relied on Rule 13 of the Karnataka Civil Procedure (Mediation) Rules, 2005 whereby the Court had the power to direct a party to appear before the mediator, and in the event of a Court finding that a party was absenting himself before the mediator without sufficient reason, costs could be imposed on such a party."In view of Rule 13 of the Mediation Rules, 2005, it is no longer permissible for either counsel or the party in a proceeding to refuse participation in mediation proceedings, if at all a party were to absent himself, the Court could impose costs as also repeated costs until the party were to appear and participate in the mediation proceedings."The High Court held that a Court was not powerless to issue appropriate directions to the parties to attend the Mediation, in fact it was the bounden duty of the Court to issue necessary directions so that all the parties participate in the mediation process in terms of the Mediation Rules, 2005.Furthermore, the Bench said that a Court would necessarily have to provide for 60 days time for effective Mediation. While referring the matter to Mediation, the Court would also have to take cognizance of the time for commencement of Mediation to the return of the file back from the Mediation Centre to the Court, it added.The parties in the present matter were engaged in a suit for partition and separate possession of the schedule property.In July, 2016 the trial court had referred the matter to Mediation to the Bangalore Mediation Centre and had adjourned the matter to August 18, 2016. When the defendants filed a memo for an extension of time on August 18, the same was refused. Aggrieved by the trial court's order, the defendants approached the High Court. Submission Before Court:Advocate BC Thiruvengadam appearing for the present petitioner, claimed that the Trial Court's order was neither in compliance of the decision of the Supreme Court in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Limited and Others nor the Mediation Rules of 2005. Relying on Afcons Infrastructure, the petitioner argued that the trial court was bound by the provision of Section 89 of CPC to refer all cases to the three ADR processes namely, Lok-Adalath, Mediation and Judicial Settlement.It was further submitted that when the matter was referred to Mediation on July 27, 2016, the trial court ought to have granted a period of 60 days for the parties to try and resolve the matter as provided under Rule 18 of the Mediation Rules, 2005. When the Mediator sent back the file on account of the date fixed by the Court, the petitioners had requested that the file be sent back to Mediation Centre to facilitate an amicable settlement by filing a memo, but trial Court rejected the memo and posted the matter for recording of evidence.Advocate NR Jagadeeshwara, counsel for respondent No.1 had earlier submitted that the respondents were not willing to participate in the mediation proceedings.But when the matter was heard on the date of pronouncing the order, the respondents submitted that in light of the submission made by the petitioners, they would be willing to participate in the mediation proceedings, if the matter was sent back to the Mediation Centre. Findings of the Court:The Bench noted that there were various procedural irregularities in the manner in which the trial Court had conducted the matter. "It would therefore be required for this Court to observe these irregularities and to issue necessary directions to Courts in respect of how an ADR proceedings are required to be resorted to and procedure to be followed", it said.Noting that the Afcons case was applicable to all proceedings where Section 89 of CPC was applicable, the Court noted that all Courts were required to apply the dicta laid down by the Apex Court in Afcons, in its entirety so as to encourage and facilitate the ADR process and provide a meaningful methodology of resolution of disputes. "ADR process has been introduced in our country not only to cater to the docket explosion, on account of the tremendous strain on the resources of the judiciary but also to facilitate an amicable resolution of a dispute rather than a contested dispute resolution in a Court of law."Since the Supreme Court categorically stated in Afcons that having regard to the tenor of provision Rule 1'A' of order 10 of CPC, the Civil Court "should invariably" refer the cases to ADR process, the recourse to Section 89 of CPC was mandatory.With regard to Rule 18 of the Mediation Rules, 2005, it was noted that the time period of 60 days would commence only from the time of first appearance before the mediator, also the said 60...

Party's Unwillingness To Participate in Mediation Proceedings Cannot Be A Ground For Refusal Of Reference To Mediation: Karnataka High Court

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