WHAT IS MEDIATION?
Mediation is a mechanism in which the participants interact with an objective and an unbiased individual who is unanimously chosen and helps them negotiate their conflicts. For starters, the dispute may involve an arrangement, an inheritance issue, or a lawsuit for damages. It is also possible to mediate problems surrounding child custody, right of access and child protection. Other alternative strategies for conflict settlement are also available in certain forms of situations. If a couple divorces and meets with a impartial third person who helps them solve separation disputes and split wealth and land, this is an illustration of mediation.
STAGES TO EFFECTIVE MEDIATION:
Essentially, there are a few stages to effective mediation. These include the introduction, problem statement, compilation of information, problem identification, negotiation; and, ultimately, resolution.
WHO IS A MEDIATOR? The mediator is a facilitator who does not have any authority to settle the dispute. As the mediator goes into the process, the parties will fashion the solution. The mediator is a lawyer in many countries, but does not offer legal counsel when in the role of a mediator. Trained members of family law , social work , social psychology or therapy / counselling careers are the bulk of applicants who train as family mediators. These applicants must be qualified to the standard or equivalent of a degree and hold a recognised certification. Depending on the situation, a mediation session will last anywhere from two hours to a whole day. While there are usually many breaks and occasions for private discussions with the mediator and/or with the advocate, all parties attend the entire session.
ARE LAWYERS AND MEDIATORS THE SAME?
No, they are not the same. A mediator is a third entity that can provide legal data but does not give legal counsel and does not "represent" either entity. A lawyer is bound by the requirement to represent one party only, and does not represent two parties.
HOW THE MEDIATION DOES WORKS?
The conference is held at the place which is mutually agreeable by the parties and the mediator at a neutral place, it can be at the office of the mediator or any other place suggested. Usually, at the session the parties, their attorneys if present, the mediator or others are present. The council may or may not represent the parties. When the counsel is presented the parties are encouraged to work with the mediators and to confer with an attorney on legal issues. The protocol for the mediation is usually set before the session, and the attendance at the mediation is necessary. There are stages for a facilitative mediation.
RELATED SECTIONS Section 89, CODE OF CIVIL PROCEDURE:
Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for (a) arbitration;(b) conciliation;(c) judicial settlement including settlement through Lok Adalat; or(d) mediation. (2) Where a dispute had been referred-(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat following the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.
ROLE OF THE MEDIATOR
The first and foremost role of the mediator is to facilitate effective communication between the parties in a suit with the sole objective of helping them to reach a mutually agreed solution which is not time-consuming, fair and cost-effective. The mediator's role is only to give suggestions and does not have any authority to conclude the session or to give any judgement. The mediator should not provide any legal advice to the parties even if he is a lawyer as the legal advice is only given by the council. However, the mediator can give parties a way to explore more options. The code of conduct should be specified for the mediators shall be followed by the mediator and there should be complete impartiality by the mediator. The mediator cannot be summoned as a witness on what took place and to what came to his/her knowledge during mediation. The mediator can disclose information to the court only when the parties agree to it with a written statement.
BENEFITS and DRAWBACKS OF MEDIATION
Mediation is less hostile than legal hearings, which makes it less traumatic, and it also finds it much more possible that you can go on in a decent relationship. By having stronger contact and understanding for both of you, it can also deepen a friendship. Some of the limitations of mediation are that, unless directed by the Judge, the party could not be forced to join. A legal precedent or the complicated procedural problems involved must be identified. There may be a case in which parties with the ability to agree are unable or unable to compromise. In a given scenario, it might even not be cost-efficient.
There are numerous benefits to the mediation process. Firstly, mediation is more cost-effective than the court as court proceedings are costly. Secondly, it can save time as court proceedings are generally lengthy and time-consuming. Thirdly, it is private and confidential as the mediator is not allowed to give access to the information of the parties unless the court asks. Fourthly, the mediation process is completely impartial and gives chance to both the parties to be heard.
There are also drawbacks to this process of law. Firstly, there is no guarantee that the negotiation will work or if there is a settlement. Secondly, If the party is accused of something publically, then the party may want the public vindication that comes with the court case. Thirdly, attempting cooperation is not suitable and mediation is not advised for domestic abuse cases as one side of the party has a reason to fear by the other party, the resolution will not be reached.
Mediation through the Years
The 1996 Arbitration and Conciliation Act was the first law to incorporate mediation into the Indian judicial system. Introducing Sub-section (1 ) of Section 30 of the Arbitration and Conciliation Act 1996, while arbitral hearings have began, it allows the parties involved to discuss the alternative of mediation and conciliation and thereby empowers the arbitral tribunal to use mediation as a method of settling conflicts. Nevertheless, this clause supporting mediation has almost been made defunct due to a lack of adequate implementation (or even formation) of the particular laws of mediation. However, the implementation of Section 89 of the Code of Civil Procedure, 1908 (first incorporated in Section 30 of the Arbitration and Conciliation Act, 1996), which deals with the exploration of the various means of dispute settlement, rectified this to a certain degree. Also, this section first proposed the concept of "judicial mediation"
In this basis, the Court can require the parties to pursue methods of mediation , arbitration and other means of alternative conflict settlement if it is satisfied that the conditions are such that the parties may try to resolve their disputes in a friendly manner if they are attempted. Nonetheless, unlike other constitutionally recognised types of non-binding alternate dispute settlement, there is currently no clear law resolving the question of mediation in India and maintaining "confidentiality."
MEDIATION V/ S ARBITRATION
In mediation, there is the involvement of a third party called a mediator to assist the parties of the suit so that the parties come to a decision which will be mutually decided. The mediator cannot give justice to the dispute. Whereas, arbitration is a private trial where a rational third party is involved to analyze the dispute between the parties and pass on a decision. Mediation is generally collaborative where the parties work together to solve the dispute with the help of the mediator and arrive at a mutually agreed decision. Whereas, arbitration is usually adversarial in which the arbitrator gives his judgement to the dispute. Mediation is an informal procedure of law as this process can be done at any place mutually described by the parties and the mediator. Whereas, arbitration is more of a formal procedure because the arbitration matters are much like courtroom proceedings and basic court norms are followed. In mediation along with the meetings with the parties, the mediator also hears the parties in private meeting so that there is no discrimination on any side. Whereas in arbitration, the arbitrator remains neutral and there are no such private meetings for the parties, thus, the judgement is based on evidentiary hearings.
Written By Priyal Doshi, Jindal Global Law School.