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nandy   13 February 2022

Mediation completed excluding 1of 3 parties. can immediate stay be obtained?

My aunt is defendant 2 in a partition suit with two other parties. During the Jan covid SOP, the plaintiff and defendant 1 got the judge to refer to ADR. She only got to know now while mediation was completed in Jan and is awaiting order in lok Adalat (some time next month).

I have seen cases where higher court has been moved to cancel the mediation settlement and continue the civil suit. But that takes time and vital evidence such as the old house can be destroyed.

Can immediate stay of mediation proceeding and continuation of the civil suit be asked i n higher court? Ideally she would not want the civil court to ratify the lok adalat order (which may be passed next month)



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 9 Replies

Kishor Mehta (CEO)     13 February 2022

In mediation all the concerned parties are to be made participants. If any party is not made a participant the mediator's order can not be made legally applicable to him/her. You should approach the Court which has refered the order to ADR.

1 Like

P. Venu (Advocate)     13 February 2022

The facts posted are less than convincing. Mediation requires the pro-active participaion of all the parties.

1 Like

Dr J C Vashista (Advocate)     14 February 2022

Well analysed, opined and advised by expert Mr. Kishor Mehta and Mr. P Venu, I agree.

All parties has to participate proactively in any mediation proceeding, which is voluntary and not binding if any of the party to lis do not agree. There is no such procedure/ provision/ requirement to stay mediation proceeding.

Lok Adalat is altogather a different forum, which can not be mixed with Mediation / ADR.

nandy   14 February 2022

@P Venu: Sir How do we establish that all parties have participated. It is one thing if a video recording of the mediation meetings are provided to the parties but if its only thw word of the mediator then it opens the door for all kinds of corruption. 

What is the proof that all the parties have participated? that is exactly what I would like to know. If the mediaotr says all have participated how does one prove that they did not?

1. how do you identify if the persons in the room are the actual parties? Practically any document can be obtained for a fee. Lets remember even aadhar is not fool proof. Its actually really hard to establish one's identity in a fool proof manner

2.One possibility is that someone else impersonated her. i know of 2 sale deeds created in this manner so I am thinking this is possilbe in mediation too? If other parties confirm X to be the person and mediator agrees then X can impersonate a party?

3.@Vashista: Sir, One of the advocates desling with mediation said on phone that mediation finalizes the settlement and then it is turned into a formal agreement in the lok adalat. is that not correct? If this is wrong please explain , we are still not really clear on the process

We are still trying to understand exactly what/ happened but one thing is clear in that even though case ststus shows ADR as of |Jan 15 she got no intimation of the same and has not participated in any . Orally an advocate who was asked to check on mediation status has reported it is over. We are still trying to get written information.

@kishor Sir the court process is itself  in question because her advocate was absent. (he had retired in previous hearing.)The request for ADR was made and order passed. in same hearing. We are given to understand if one of the party advocates is absent no business should occur. (we are still awaiting the ordersheet to see exactly what transpired). Only parts of the information is available in the online case status

Thank you all for your replies. we dont undestand the mediation process well and the information received orally is not always reliable.

Kishor Mehta (CEO)     14 February 2022

{1} Usually in a mediation proceeding, ordered by a Court, the idetities of the participants are established. (2) If your mother was not invited to the mediation, in spite of being a party, she has just to state so to the Court and it will override the mediation rulings. 

1 Like

Dr J C Vashista (Advocate)     14 February 2022

@ Nandy,

As you have asked, "One of the advocates desling with mediation said on phone that mediation finalizes the settlement and then it is turned into a formal agreement in the lok adalat. is that not correct?"  It is not so.

When the case is settled amicably in mediation proceeding, it is returned to the court as "settled" then the court inquires and confirms from the parties about their settlement,.When parties confirm terms and conditions of settlement agreed as mentioned therein the settlement drawn in Mediation proceeding, and accepted before the Judge concerned it becomes court order /decree (as the case may be).

However, concept of Lok Adalat is totally different to Mediation proceeding.  

 

1 Like

P. Venu (Advocate)     14 February 2022

Please post the material facts. Which Court? What is the case No.?

nandy   15 February 2022

@kishor Sir The worrying point is that all literature say settlement arrived at in a mediation is binding and cannot be appealed. Thats why there is a concern.

I just found out today that it is plaintiff initiated private mediation and not court ordered

Will there still be an opportunity to override the mediation ruling?

2.As for identites of parties -the whole point of OTP for pracctically every transaction is becuase impersonationis such a threat.
It is even more important in mediation when somethhing as valuable as property
is being handled. So should'nt the same requirements of photo identification,
thumb impression apply when the mediation settlement is signed?
All the frauds that can happen in subregistrar office can happen in the mediation location too since as far as property goes

So if someone shows a document with my signature saying I agrered to sell my house in mediation monitored by Y I am stuck and unless I can prove signature forgery I have to go through  (This is not the current case since court is involed but the lack of rigor in
identifying parties opens lot of doors)

I feel simply finalizing a settlement with a mediator is no different from signing a sale deed with witnesses. That process generated a lot of frauds and isnt it that registration of sale deeds under govt. authority was mandated to counter that?

 

@Vashishta Sir thanks for that clarification. So atleast we can ignore lok adalat for now

ply finalizing a settlement with a mediator is no different
from signing a sale deed with witnesses. That process generated a lot of frauds
and isnt it that registration of sale deeds under govt. authority
was mandated to counter that?

@Vashishta Sir thanks for that clarification. So atleast we can ignore lok adalat for now

@PVenu Sir The issue of impersonation in a transaction is universal. From gas booking, credit card spednig  to foirged cheques it has a long history. Like anyoneelse mediators too can be fradulent. From bank officials (Nirav modi and other scames) CEOs (satyam,replublic tv, ICICI ceo) the list is endless and has no boundaries.

I dont want to put thespecific case in a public forum but I will upload partial snips shortly

Kishor Mehta (CEO)     15 February 2022

Do not while away time on this platform consult an advocate and take immediate crimal and civil action in the matter.


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