Stages of mediation, models of mediation and code of conduct for mediators

Alternative Dispute Resolution Systems · Unit V · Topic 17 of 18 · 5 min read

The stages of a mediation from introduction and joint session to private sessions and closing, the facilitative, evaluative, transformative and other models, and the ethical duties of mediators: neutrality, disclosure, confidentiality, self-determination and competence.

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On this page

1. Stages of mediation
2. Models of mediation
3. Code of conduct for mediators
4. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Four stages, four models, five duties. Questions on Unit V are predictable. The stages follow the structure taught in court-annexed mediation training in India; the models are classified by what the mediator does; the code of conduct reduces to a short list of duties that the Mediation Act, 2023 now states in sections 10, 15 to 17 and 22 to 23 (not yet in force).

1. Stages of mediation

Stage 1: Introduction (opening statement). The mediator introduces himself and the parties, explains the process, his neutral role, confidentiality, the possibility of separate sessions, that he will not impose a decision, and ground rules (one speaker at a time, respect). He builds trust and confirms the parties have authority to settle.
Stage 2: Joint session. Each party, or its counsel, tells its side without interruption. The mediator listens, summarises, reframes hostile statements and identifies the issues. The aim is to let each side hear the other and to gather information.
Stage 3: Separate sessions (caucus). The mediator meets each party alone. In private, parties reveal interests, fears and priorities they will not state in front of the other. The mediator explores options, tests reality (“what will happen if this goes to trial?”), and carries proposals back and forth. Whatever is said in a separate session is confidential unless the party permits disclosure. Joint and separate sessions may alternate as often as needed.
Stage 4: Closing. If settlement is reached, the terms are confirmed in a joint session, reduced to writing, signed by the parties and, in the Mediation Act scheme, authenticated by the mediator (section 19). In court-annexed mediation the agreement goes to the referring court, which passes a decree or order in its terms. If not, the mediator closes the mediation and reports only that it failed, without giving reasons or disclosing what happened (section 21 of the Mediation Act; Moti Ram, below).

Some texts add a preliminary stage (referral, appointment and convening of the mediator) and a stage of generating and evaluating options between the caucus and closing. Either scheme is acceptable if each stage is explained.

2. Models of mediation

Facilitative mediation. The mediator manages the process and helps the parties communicate, understand interests and generate their own options. He does not give an opinion on the merits or recommend a result. This is the model of court-annexed mediation in India and of section 16 of the Mediation Act.
Evaluative mediation. The mediator, usually an expert or a retired judge, assesses the strengths and weaknesses of each case, predicts the likely outcome in court, and may suggest terms. It is closer to conciliation and is common in commercial and insurance disputes.
Transformative mediation. Developed by Bush and Folger (The Promise of Mediation, 1994), it aims less at settlement than at changing the way the parties relate: empowerment (each party's capacity to decide) and recognition (each party's understanding of the other). Used in family, workplace and community disputes.
Settlement mediation. The mediator concentrates on moving the parties' positions towards a compromise figure; common in money claims.
Narrative mediation. The mediator helps the parties construct a new account of the conflict that both can accept.

Mediation may also be classified by where it happens: court-annexed (at a centre established by a court, section 3(e) of the Mediation Act), institutional (under a mediation service provider, section 3(f)), private, community mediation of disputes affecting peace in a locality (sections 43 and 44), and online (section 30).

3. Code of conduct for mediators

Before the Mediation Act, the ethical duties of court-annexed mediators were set out in the mediation rules framed by High Courts on the model approved in Salem Advocate Bar Association (II) (2005), and in the training manual of the Supreme Court's Mediation and Conciliation Project Committee. The Act gives the Mediation Council of India power to specify standards of professional and ethical conduct (section 15(3)); the Council was established by notification on 27 August 2026. The duties are:

Impartiality and neutrality: no favour to either side, no personal interest in the outcome.
Disclosure of conflict of interest before accepting and throughout; the parties may waive in writing or seek replacement (section 10).
Party self-determination: the decision belongs to the parties; no coercion, no imposed settlement, no assurance that it will succeed (section 16(2)).
Confidentiality: no disclosure of mediation communications, no audio or video recording, no testimony in later proceedings (sections 22 and 23), subject to the statutory exceptions for threats of an offence, domestic violence or child abuse, and imminent threats to public health or safety.
Competence: accept only matters he is trained and qualified to handle.
No dual role: not to act as arbitrator, counsel or witness in the same dispute (section 17).
Diligence and timeliness: conduct the process without delay (section 18 sets 120 days, extendable by 60).
Fees: charge only the prescribed or agreed fee, and accept no gifts or favours from a party.
Integrity in withdrawal: withdraw where the process is being used for an improper purpose or where he can no longer be impartial.

In Moti Ram v. Ashok Kumar, 2010 INSC 859, (2011) 1 SCC 466, the Supreme Court held that mediation proceedings are confidential and the mediator should not send the court a report of what transpired. If the mediation fails, the report should say only “settled” or “not settled”; if it succeeds, the settlement agreement goes to the court.

4. Problem

The success of mediation depends upon the role of the mediator. Discuss. (December 2018)

Treat it as a structured essay. The parties decide, but the mediator determines whether they can reach a decision: by creating trust at the introduction, managing emotions in the joint session, uncovering interests and testing reality in caucus, and helping record a clear agreement at the close. A mediator who is partial, breaches confidence or pressures the parties defeats the process, which is why the code of conduct and sections 10, 15, 16 and 22 exist. Close by noting the limit: even a skilled mediator cannot succeed where a party lacks authority to settle or wants only delay.

How this is examined

“Explain the different stages of mediation” (November 2021), “Stages of mediation” and “Models of mediation” (short notes, June 2019 and December 2019) and “Explain the code of conduct for mediators” (December 2018) are all drawn from this note. For stages, write what the mediator does in each. For models, define each and say where it is used. For the code, list the duties with the Mediation Act section and Moti Ram on confidentiality.

Now try the real questions: Alternative Dispute Resolution Systems past question papers.