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Mediation as an appropriate dispute resolution


Justice delayed is justice denied.

- William E. Gladstone


The problem of large number of pending legal cases in India is not new and has been persistent since time immemorial.

Various reasons accounting for slow courts and delayed justice are lack of transparency, complex judiciary, etc. However, the solution to this prolonged issue is ADR most commonly known as Alternative Dispute Resolution. ADR follows various mechanisms such as Arbitration, Mediation, and Conciliation.

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To overcome the complexity of the Judiciary, a less complicated method such as mediation is the way out. Mediation is less formal, less expensive, people-friendly, time-saving, efficient, and effective. It allows the parties to freely interact and find a solution to their problem by understanding the cause of conflict and their interests. For a better understanding of this promising solution, it is better to divulge into the concept of mediation.


What does mediation mean?

Mediation is a non-binding, party-centered, confidential process where a neutral third person possessing good communication, negotiation, and interactive skills aids the settlement between the disputant parties on mutually agreed terms. As per the Black law dictionary “Mediation is a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.” In India, though there is no statute on Mediation, however, the meaning and scope of mediation were clarified by the Supreme Court in Salem Advocates Bar Association v Union of India ( 2005 6 SCC 344). In this case, the Supreme Court also formulated the model civil procedure mediation rules to be framed by High Courts.


Mediation doesn’t focus on blaming or proving the guilt rather it has a problem-solving approach and focuses on the interest of the parties. The mediator can’t be called in any court to justify the process of mediation. Neither, he needs to disclose the procedure of mediation or the statements made during the process of mediation as it is a confidential process and can’t be disclosed without the written permission of the parties. In India, Mediation is court-annexed which means after the settlement is reached, the mediators or the parties with the help of mediators need to draft a settlement agreement that has to be sent to the court, duly signed by the mediator, to pass an appropriate order. In the case of Salem Advocates Bar Association v Union of India (2005 6 SCC 344), the Supreme Court interpreted clause d of section 89(2) of Civil Procedure Code that the court shall pass a decree after receiving the settlement agreement sent to it by the mediator after hearing both the parties. In case there is no settlement, even then the court needs to be informed of the same. However, the reason for non-settlement need not be mentioned.


History of Mediation

The history of mediation dates back pre-British period when Mahajans used to resolve the dispute between the merchants. However, this informal method got legalized and recognized as a formal ADR mechanism with the onset of the British Raj. The introduction of Lok Adalats in the Indian Judicial system where the decision of Lok Adalat is equivalent to that of a civil court brought popularity to mediation. The other pillar for the development of Mediation as an ADR mechanism in section 89 of the Civil Procedure Code, 1908 which was inserted in 1999 based on the recommendation of ISDLS (Institute for the Study and Development of Legal Studies) that suggested ADR mechanisms as a way forward to slow Indian Judicial System. Though it was challenged by a group of lawyers, in a landmark judgment of Salem Advocates Bar Association v Union of India (2005 6 SCC 344), the Supreme Court made it mandatory for courts to refer cases to the alternative forums. Since then there has been significant contribution in this field by the lawyers and in 2005, under Justice R C Lahoti, a mediation and conciliation committee was established and a project on mediation was also initiated in Delhi. A permanent Mediation Centre has also been inaugurated in the Tis Hazari Court complex along with two mediation centers one at Karkardooma court and Patiala Court.


The distinction between various ADR Mechanism

Arbitration, conciliation, and mediation are various ADR mechanisms. Though they are often considered to be, they can be distinguished from each other. Mediation and Conciliation are informal processes whereas arbitration is more formal than the other two. Mediation is a non-binding, voluntary, and informal process where the neutral third party doesn’t directly participate in the dispute resolution but helps in having various alternatives for the parties to reach an agreement. There has to be only one mediator who can use his method to resolve the dispute. He can merely make suggestions on what needs to be done, however, the parties are the real decision-makers.

Conciliation is a voluntary proceeding and involves the direct participation of the third party, known as the conciliator, who plays an advisory role. The conciliator tries to resolve the issue by the process given in sections 61 to 81 of Arbitration and Conciliation Act, 1996. He does so by alleviating the tension and improving the communication between the parties. There is no requirement for a conciliation agreement, contrary to the arbitration agreement. Arbitration, on the other hand, can be voluntary or compulsory and requires an arbitration agreement as mentioned in section 2A of the Arbitration Act, 1940. The arbitrator is also involved directly and he needs to follow strict legal guidelines. He decides the disputes based on facts and pieces of evidence. It is similar to court proceedings. The decision of the arbitrator is binding on the parties. There can be more than one arbitrator and their number and appointment are described in sections 10 and 11 of the Arbitration and Conciliation Act, 1996.


Where can Mediation be used?

Whenever the parties think that their matter shouldn’t be deferred due to slow proceedings of the court, or they want a fast-track solution or they don’t want to put a burden on their pocket, mediation is an easy way out. Mediation can be used in cases of

  • Breach of contract

  • Small business dispute

  • Family issues

  • Real estate dispute

  • Personal injury matter


Essentials of Mediation

The key ingredients of Mediation are:

  1. Independent Mediator: A mediator is an independent impartial third party mastering the communication and negotiation skills who provides the disputant parties with various alternatives to reach a settlement that is beneficial to both parties.

  2. Non-Binding process: Mediation is a process that allows the parties to actively participate in the process of settling. However, the points of the agreement made by the mediator are mere suggestions and are non-binding, unlike arbitration. If the parties to a dispute are not satisfied with the outcome, they are free to approach the court regarding a further course of action. Even the party that submitted for mediation can leave midway if it doesn’t find the process worthy of their time and interest.

  3. Confidentiality: the whole process of mediation is confidential. If the parties do not want to disclose any fact or information they can’t be compelled to do so. The whole process is confidential and the statements made, the process, or the facts of Mediation shouldn’t be disclosed even in further court proceedings or Arbitration process without the written permission of the parties.

  4. Court annexed: In India, the process of mediation is court-annexed i.e., once the parties have reached a settlement agreement has to be drafted and sent to court attested by the Mediator for passing of the order. Even if the parties do not reach a settlement the court needs to be informed of the same.

  5. Fair process: Mediation is a fair process as the party themselves gets to decide what is beneficial for them. Mediation focuses on the interest of the parties involved and a mediator merely uses his negotiation skill to lay down various options on the table. Apart from this, the party gets a free choice on whether or not to go ahead with the choice laid down before them. They can abandon the process anytime they want if it doesn’t suit their interest.


Role of a mediator

The most important role of a mediator is to facilitate communication between the disputant parties to reach a settlement time and cost- effectively. He is the organizer of the meeting, however, he can’t impose his decision on the parties as it has to be reached by mutual agreement. Though a mediator forms a bridge between the two parties, he can’t advise them legally even if he is qualified to do so.


Stages of Mediation

  1. The opening statement of the Mediator: the process of mediation is initiated by the mediator. He introduces the parties, tells about the goal of the process using simple language. This is a vital step as the mediator opens the way for the parties for better communication. He provides them step by step roadmap of the procedure ensuring and assuring the confidentiality of the process.

  2. Disputant’s opening statement: the parties then come forward to describe their disputes, finances, and consequences. While one of them is speaking the other party is not allowed to interrupt as the mediator may plan a mid-way out based on the differences between the parties which can be comprehended by clearly knowing the facts and cause of contention from both parties.

  3. Joint discussions: once the party has spoken about its issue the floor is open for the other party to respond so that it gives a way for both the parties to respond directly to the issues based on their receptivity and understanding.

  4. Option finding and evaluating stage: once the cause of contention is known the mediator tries to lay down the options best suited to the interest of both parties.

  5. Private caucuses: after both the parties have told their side of the story and have talked about their issues, the mediator meets both the parties individually and privately. The mediator then discusses the strengths and weaknesses of each position and exchange offers. These private meetings are conducted in separate rooms and are based on the mediator's opinion regarding different options made available to the parties.

  6. Joint discussion: this is an unusual step where the mediator may bring the parties together to discuss the options provided to them. The negotiation of this kind doesn’t usually take place as the mediator doesn’t generally bring the parties together until the settlement is reached or the time allotted for mediation has ended.

  7. Closure: after the parties have reached a conclusion the mediator puts its main provisions in writing and gets it signed by both the parties and will send it to court for passing it further, duly signed by him. If they’re unable to conclude then also the mediator helps the parties to determine whether or not they should further meet. And, if according to them it’s not worth meeting as they are not able to settle, the same is informed to the court to decide further course of action.


Conclusion

Mediation is a modern and easy approach to alleviate the burden on the Indian judicial system as it not only reduces the number of pending cases but also goes easy on the pocket of parties and saves their time. Mediation, being non-binding and confidential involves minimal risk for the parties. As a party always has an option to opt-out mediation can never be considered a failure even if a settlement is not reached. Despite having such perks, mediation is not full-fledged yet because of insufficient funds for the proper introduction of this mechanism to each sector of society be it rural or urban, rich or poor. Another reason because of which Mediation is not widely popular is because negotiation and mediation don’t form a part of the Indian education system thus people are not aware of the know–how of the process and the technicalities by using which the disputes can be resolved out of the court speedily, efficiently and effectively. Third, and the most important reason is that because the Indian judicial system is deeply embedded in minds of the citizen that they consider going to court as the only way to solve a dispute.


By Manshi Shankar




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