Section 41 of Mediation Act 2023 - Functions of Mediation Service Providers

Section 41 of the Mediation Act, 2023 sets out the functions that a mediation service provider is intended to perform within the statutory framework for institutional mediation in India. These functions include accrediting mediators, maintaining panels, providing mediators and infrastructure, promoting professional and ethical conduct, and facilitating registration of mediated settlement agreements.

Commencement status: The Mediation Act, 2023 received Presidential assent on 14 September 2023 and was published on 15 September 2023. Under section 1(3), different provisions may be brought into force on different dates. The Central Government notification dated 9 October 2023 brought specified provisions into force, but Section 41 was not included in that notification. Accordingly, Section 41 should be read as an enacted provision whose operation depends on a commencement notification under section 1(3), unless a later applicable notification brings it into force.

Text and scope of Section 41

Section 41 - Functions of mediation service providers

The mediation service providers shall perform the following functions, namely:

accredit mediators and maintain panel of mediators;
provide the services of mediator for conduct of mediation;
provide all facilities, secretarial assistance and infrastructure for the efficient conduct of mediation;
promote professional and ethical conduct amongst mediators;
facilitate registration of mediated settlement agreements in accordance with the provisions of section 20; and
such other functions as may be specified.

What is a mediation service provider?

Section 40 of the Mediation Act, 2023 identifies the entities that may fall within the statutory concept of a mediation service provider. In substance, the provision covers a body or organisation recognised by the Mediation Council of India for conducting mediation under the Act, an authority constituted under the Legal Services Authorities Act, 1987, a court-annexed mediation centre, and any other body notified by the Central Government, subject to the wording and requirements of Section 40.

The concept is important because the Act is designed to promote institutional mediation. A mediation service provider is therefore not merely a venue. Section 41 assigns it functions relating to mediator accreditation and panels, appointment support, facilities, administration, professional standards and settlement-registration assistance.

Functions under Section 41 explained

1. Accreditation and panel of mediators

Section 41(a) contemplates accreditation of mediators and maintenance of a panel of mediators. This supports an organised institutional system in which suitable mediators can be identified and made available through a mediation service provider.

2. Providing a mediator for mediation

Under Section 41(b), the provider is to make mediator services available for the conduct of mediation. This function supports the appointment and administration of mediations conducted through an institution or service provider.

3. Facilities, secretarial assistance and infrastructure

Section 41(c) requires the provider to make available the facilities, secretarial assistance and infrastructure needed for efficient mediation. Depending on the applicable framework, this may include administrative coordination, scheduling, communications, suitable meeting facilities and support for the mediation process.

4. Professional and ethical conduct

Section 41(d) places promotion of professional and ethical conduct among mediators within the functions of a mediation service provider. This complements the wider statutory role of the Mediation Council of India in developing standards for professional and ethical conduct.

5. Registration of mediated settlement agreements

Section 41(e) links the provider's role with Section 20. Section 20 deals with registration of mediated settlement agreements and permits registration in the manner contemplated by that provision. The service provider's statutory function is to facilitate such registration rather than to replace the legal requirements prescribed by the Act and the applicable framework.

6. Other specified functions

Section 41(f) allows additional functions to be specified. The expression should be read with the Act's rule-making and regulation-making framework and with any valid notifications, rules or regulations applicable to mediation service providers.

Relationship with Sections 40 and 42

Section 41 sits in Chapter IX of the Mediation Act, 2023. Section 40 concerns mediation service providers, while Section 41 states their functions. Section 42 separately concerns mediation institutes for training, continuing education and certification of mediators as contemplated by the Act. Reading these provisions together helps distinguish mediation-service administration from mediator training and education.

Practical significance of Section 41

It gives institutional mediation providers a defined statutory role.
It connects mediator accreditation and panels with institutional administration.
It recognises that effective mediation requires administrative and infrastructure support as well as the mediator.
It links service providers with professional and ethical standards.
It provides an institutional support role for registration of mediated settlement agreements under Section 20.