Going by Rule 23 of the Rules, a mediator is not entitled to communicate to the court except in respect of the matters mentioned in the Rule. Sub clauses (i) and (ii) of Clause (a) of Rule 23 do not cause any difficulty for interpretation. What is the meaning of the words "getting advice on procedural matters with the consent of the parties" occurring in Sub clause (iii) of Clause (a) of Rule 23 is the question which arises for decision. Sri Joby Jacob Pulickekudy, the learned counsel appearing for the fourth respondent, submitted that the mediator has only sought the advice on procedural matters and therefore, the mediation report is legal and proper. A mediator can get advice on procedural matters only with the consent of parties. If the parties do not give consent, the mediator has no right to get advice on procedural matters. In the present case, the petitioner was not present at all before the mediator. She expressed her view that she was not participating in the mediation. The mediator, therefore, could communicate to the court only in the manner provided under sub-clause (i) of Clause (a) of Rule 23 and submit a failure report. In the absence of parties, the mediator had no jurisdiction to seek the advice on procedural matters. One of the parties having expressed her reluctance to appear before the mediator, the mediator was not justified in arriving at "findings and conclusions" and thereafter seeking directions from the court. Even the directions sought for are not on procedural matters or to enable the mediator to carry on the mediation proceedings in a particular manner, but the directions are sought to be issued to the parties. The mediator was not justified in undertaking a video conferencing with some of the parties in the absence of commencement of mediation in accordance with law. No mediation at all took place. On the refusal of a party to appear before the mediator, there was no justification for the mediator to undertake an expedition with respect to the disputes between the parties. Conducting a video conferencing, in the absence of one of the parties, was also quite illegal. Smt. Rekha Vasudevan, the learned counsel appearing for the 5th respondent, submitted that the prayer made by the petitioner is not maintainable in view of Rule 22 of the Rules. Rule 22 provides that no mediator shall be held liable for anything bona fide done or omitted to be done by him during the mediation proceedings. The prayer made in the application is not to take any action against the mediator. No action is sought to be taken against the mediator. Immunity contemplated under Rule 22 does not take away the power of the court to say that the mediation report is not liable to be accepted or to strike off the mediation report or to hold that the mediator acted without jurisdiction. The very appointment of mediator by the court carries with it the power to cancel it also. If the mediator has misconducted himself or if the mediation report is otherwise illegal being contrary to the Rules, the court in which the proceedings are pending would have jurisdiction to pass appropriate orders with regard to the acceptability or otherwise of the mediation report. Immunity under Rule 22 does not deter the court from doing so.
We are satisfied that the mediator travelled beyond his powers and the mediation report is liable to be struck off, except to the extent of communication that the mediation failed.
IN THE HIGH COURT OF KERALA
W.P. (Crl.) No. 278 of 2012
Decided On: 06.07.2012
Prabhavathy, K. Vs. Director General of Police and Others
Hon'ble Judges/Coram:
Mr. Justice K.T. Sankaran and Mr. Justice M.L. Joseph Francis
Citation: ILR 2012(3) Kerala 922
