CENTRAL UNIVERSITY OF SOUTH BIHAR

Alternative Dispute Resolution

Assignment
Topic: Mediation Proceedings
Submitted to-
Dr. Anurag Aggarwal
Assistant Professor

Submitted by-
ABHIJEET KUMAR
cusb1813125002
Central University Of South Bihar

Table of Content
1. Acknowledgment
2. Introduction
3. Evolution of mediation in India
4. Types of mediation
5. Advantages and Disadvantages of Mediation
6.Process of Mediation
7.Stages of Mediation
8. Role of Mediator
9. Constitutional validity and laws related to the mediation
10 Case Law
11. Conclusion
12 Bibliography

ACKNOWLEDGEMENT
An enterprise of such a magnitude as this research on “Mediation Proceedings ” could
only
fructify in such a short span of time due to the coalescing of able guidance and
support of
many learned and able persons, whose efforts and cooperation, I as the
researcher,with a sense
of gratitude, being duty bound too, acknowledge in no particular order. My deepest
gratitude
and thanks to the Hon’ble Prof, Dr. Anurag Aggarwal , Central University of South
Bihar,an
eminent professor and scholar gave enough time and space for free exchange of ideas
and,
opinions greatly benefiting me in augmentation and critiquing of many of the opinions
which
findtheir place in this work.
Despite the busy schedule and onerous academic responsibilities, he gave me ample
timewhenever she was approached for his invaluable guidance. I would like to extend
my sin
cere thanks to all of my friends for their review and honest remarks. Last, but not the
least my
eternal gratitude is due, to my loving parents whose constant unflinching support,
blessings
and encouragement both, temporal and emotional support, to meet any challenge with
confi
dence including, of this purposive academic exercise.
Introduction (Concept Of Mediation)
An Alternative Dispute Resolution is an outcome of all such problems which are
facing by
the public constantly in the litigation. It is like a substitute to the traditional
method of
resolving dispute and justice. An ADR mechanism mainly focuses on delivering
justice
through mutual consent of the parties in the minimum time without any delay like
in
litigation. An ADR mechanism recognized four methods to resolve any dispute
such as
arbitration, conciliation, mediation and negotiation. Alternative methods are work
on the
mutual consensus and try to settle dispute with as early as practicable. ADR
mechanism is
an option to the public who don’t want to go for conventional method or want to
resolve
their matter without courts interference. These mechanisms have their own
advantage as
well as flaws, like any other process have might do. Yet, particularly in the context
of
mediation, it needs emphasis that this is only one of the important objectives.
Mediation as a
processual intervention in the legal system fulfills other instrumental and intrinsic
functions
which are of an equal, if not greater importance. In its instrumental function,
mediation is a
means to fulfilling stated objectives. The intrinsic function of mediation
emphasizes the
value of mediation as an end in itself.1
Mediation is a voluntary and confidential process of dispute resolution in which an
impartial
third party, known as a mediator, facilitates communication and negotiation
between two or
more parties in order to help them reach a mutually acceptable agreement.
Mediation is a
voluntary process, and the parties involved must agree to participate in it. It is also
a
confidential process, which means that anything discussed during the mediation
cannot be
disclosed outside of the mediation process. The mediator's role is to help the
parties clarify
the issues, identify their interests and needs, and explore possible solutions. The
mediator
may also help the parties to communicate effectively and find common ground. If
an
agreement is reached, the mediator can help the parties to draft a written
agreement that
reflects their agreement.
The mediator does not make decisions or impose solutions, but instead helps the
parties
explore their interests, needs, and concerns, and identify possible solutions to their
dispute.
Mediation can be used in a wide range of disputes, including family, business,
employment,
and community conflicts. It is often preferred over litigation or other forms of
dispute
resolution because it is faster, less expensive, and less adversarial. Mediation can
also help
preserve relationships between the parties, as they are more likely to feel heard
and
understood during the process. In mediation, the parties are empowered to reach
their own
solutions, which can be more creative and flexible than those imposed by a court
or
arbitrator. The mediator acts as a neutral facilitator, ensuring that the parties
communicate
effectively and stay focused on their goals. The mediator may also help the parties
draft a
written agreement that reflects their understanding and intentions.
Overall, mediation is a useful and effective way to resolve disputes in a
collaborative and
constructive manner, and it can benefit all parties involved by reducing conflict,
promoting
understanding, and fostering positive relationships. It is mediation is a flexible,
confidential,
and effective way to resolve disputes without resorting to litigation.

Evolution of Mediation in India

Mediation, as a form of alternative dispute resolution, has been practiced in India
for
centuries. Historically, mediation was known as 'Panchayat' and was the
traditional method
of dispute resolution in rural areas of India. The Panchayat system involved the
appointment
of community elders or respected individuals to mediate disputes and reach a
resolution.
The first legislative recognition of mediation in India came in 1996 with the
enactment of
the Arbitration and Conciliation Act.
This Act provided a legal framework for the settlement of disputes through
mediation and
other forms of alternative dispute resolution. The Act also established the Indian
Council of
Arbitration to promote the use of alternative dispute resolution methods. In 2002,
the
Supreme Court of India issued guidelines for court-annexed mediation to
encourage the use
of mediation in civil disputes. These guidelines were updated in 2005 and again in
2019 to
make mediation a more integral part of the Indian legal system. The Indian
government has
also taken steps to promote mediation. In 2004, the Ministry of Law and Justice
established
the Mediation and Conciliation Project Committee to promote mediation as a
means of
resolving disputes. In 2017, the Ministry of Law and Justice launched the
'Mediation for
Justice' scheme to promote the use of mediation in the justice system. Today,
mediation is
widely recognized and practiced in India as an effective and efficient means of
resolving
disputes. It is used in a wide range of disputes, including commercial, family, and
community disputes.
The Indian government and legal system continue to promote the use of mediation
as an
alternative to litigation, and it is expected that mediation will continue to play an
important
role in the resolution of disputes in India. In modern times, mediation has gained
more
recognition and importance as an effective means of resolving disputes in India.
The Indian
legal system has also recognized the importance of mediation as an alternative to
litigation,
and there have been several efforts to promote mediation as a form of dispute
resolution.
After India became independent, even then problems continued to arise & now
problems
began to erupt at a rapid pace. As the society began to get more & more complex
problems
were now of such a nature that no longer such disputes could be settled earlier.
Moreover,
the colonial rule left behind lasting impacts on the people and the people now were
attracted
more towards the adversarial system of dispute resolution rather than the
traditional form of
resolution thereby leading to instituting of more and more cases. Rapidly
thereafter, due to
the growing population and increasing needs of the people it became really
difficult to cope
up with the number of cases that were instituted & cases that were disposed of and
at
present India is plagued with the problem of immense backlog of cases and that of
docket
explosion.
On an average, a case filed in India continues for a minimum of 4-5 years and the
losing
party keeps challenging the decision until all forums are exhausted and the process
continues to go on and on. However, on the contrary a mediation can resolve the
dispute in
about 2.5 hours and in very complex cases it can go on up to about 3 months.
Further, the
Delhi High Court aptly noted that India has a backlog of 2.8 crore cases& that in
order to
clear the backlog one would clearly require more than 464 year. It is pertinent to
note that in
the recent times the Apex Court of India as well as the legislature has been
inclined at
introducing mediation as a preliminary mode of dispute resolution wherever
possible. The
amending of the Commercial Courts Act, 2015 by an Ordinance promulgated in
May 2018
making pre-institutional mediation mandatory for commercial disputes apart from
the
conventional Section 89 mediation process has indeed been a great move forward
towards
promoting alternative dispute resolution mechanisms especially mediation.
Additionally,
in the recent hearing of the Ayodhya Dispute, the five judges bench directed the
parties to
explore a court appointed & court monitored mediation so as to find out a
permanent
solution to the Ram Janmabhoomi-Babri Masjid dispute.3
Types of Mediation
There are several types of mediation in ADR, including:4
1. Facilitative Mediation: This type of mediation focuses on facilitating
communication between
the parties to help them come to a mutually agreeable resolution. The mediator does
not provide any
opinions or make any decisions for the parties.
2. Evaluative Mediation: In this type of mediation, the mediator may provide an
evaluation of the
strengths and weaknesses of each party's position, and offer suggestions for a possible
resolution.
3. Transformative Mediation: This type of mediation focuses on transforming the
relationship
between the parties by improving communication and promoting understanding. The
mediator helps
the parties to recognize and acknowledge each other's perspectives and feelings.
4. Narrative Mediation: This type of mediation emphasizes the importance of the
parties' stories
and experiences, and encourages them to share their perspectives and feelings with
each other. The
mediator helps the parties to understand each other's stories and find common ground.
5. Online Mediation: This type of mediation takes place through an online platform,
such as video
conferencing or messaging, and is becoming more popular due to its convenience and
accessibility.
The mediator facilitates the communication and negotiation between the parties
online.
6. Court-Annexed Mediation: This type of mediation is ordered by a court and takes
place in a
court setting. The mediator helps the parties to negotiate a settlement, which may be
approved by
the court as a final judgment.
Mediation India are divided into two types which are generally followed:5
1. Court referred Mediation: The court may refer a pending case for mediation in
India under
Section 89 of the Code of Civil Procedure, 1908. This kind of mediation is often used
in
Matrimonial disputes, particularly divorce cases.
2. Private Mediation: In Private Mediation, qualified personnel work as mediators
on a fixed
expense premise. Anyone from courts, to the general population, to corporates as well
as the
government sector, can appoint mediators to resolve their dispute through mediation.

Advantage and Disadvantages of Mediation

Mediation, like any other method of Alternative Dispute Resolution (ADR), has its
advantages and
disadvantages. Some of the potential advantages of mediation include:6
1. Cost-effective: Mediation is usually less expensive than traditional litigation
because it is a much
quicker process and does not involve extensive legal fees, court costs, and other
expenses associated
with a court trial.
2. Confidentiality: Unlike a public court trial, mediation sessions are private and
confidential. This
allows parties to freely discuss the issues and work towards a mutually acceptable
resolution
without worrying about the details being made public.
3. Control: In mediation, parties have greater control over the outcome of the dispute.
Unlike a
court trial where the judge makes the final decision, parties can craft their own
solutions in
mediation and work together to create a mutually beneficial outcome.
4. Flexibility: Mediation is a flexible process that can be tailored to meet the needs of
the parties
involved. This allows for creative solutions that may not be available through
traditional litigation.
5. Preservation of relationships: Mediation allows parties to work together to
resolve their
dispute, which can help preserve their relationship, especially in cases where the
parties will
continue to work or live together.
6. Speed: Mediation is often a much faster process than traditional litigation, which
can drag on for
years. A successful mediation can be concluded in a matter of weeks or even days.

Disadvantages:

1. No guaranteed resolution: Unlike arbitration, the mediator does not have the
authority to make
a binding decision. The parties themselves must agree on a resolution, which means
that mediation
does not guarantee a resolution of the dispute.
2. Limited scope of mediation: Mediation may not be suitable for all types of
disputes, especially
those involving complex legal or technical issues. In such cases, parties may need to
resort to other
forms of ADR or go to court.
Imbalance of power: There may be an imbalance of power between the parties
involved in the
mediation process. One party may be more dominant or may have more bargaining
power than the
other, making it difficult to reach a fair and equitable resolution.
4. Inability to enforce agreements: If the parties reach an agreement in mediation,
there is no
guarantee that they will follow through with it. Unlike arbitration, there is no legal
mechanism for
enforcing a mediated settlement agreement.
5.Costs: Although mediation is generally less expensive than going to court, it still
involves costs
such as the mediator's fees and the parties' legal fees. Additionally, if the mediation
does not result
in a settlement, the parties may still need to go to court, which could result in
additional costs.
Overall, while mediation can be a useful tool for resolving disputes, it is not always
the best
solution for every situation. Parties should carefully consider the advantages and
disadvantages of
mediation, as well as other forms of ADR and traditional litigation, before deciding
on a course of
action.

Process of Mediation
Mediation is a process of resolving conflicts or disputes between two or more parties
with the help
of a neutral third party, called a mediator. The process typically involves the
following steps:7
1. Introduction: The mediator introduces themselves and explains the mediation
process to the
parties involved.
2. Opening statements: Each party has an opportunity to make an opening statement,
outlining
their position and concerns.
3. Information gathering: The mediator will ask questions and gather information to
better
understand the situation and the parties' perspectives.
4. Identifying issues: The mediator will work with the parties to identify the key
issues that need to
be addressed.
5. Generating options: The mediator will help the parties generate options for
resolving the issues.
6. Negotiating: The parties will engage in negotiations with the help of the mediator,
exploring the
different options and working towards a mutually acceptable resolution.
7. Reaching an agreement: If the parties are able to reach an agreement, the
mediator will help
them formalize the agreement and document it.
8. Follow-up: The mediator may follow up with the parties to ensure that the
agreement is being
implemented and to address any issues that may arise.
Throughout the mediation process, the mediator remains neutral and does not take
sides. The goal is
to help the parties work together to find a solution that meets their needs and interests,
while
avoiding the costs and stress of going to court.

Stages of Mediation -
Most mediations proceed as follows:
Stage 1: Mediator's opening statement- After the disputants are seated at a table,
the mediator
introduces everyone, explains the goals and rules of the mediation, and encourages
each side to
work cooperatively toward a settlement.
Stage 2: Disputants' opening statements- Each party is invited to describe the
dispute and its
consequences, financial and otherwise. The mediator might entertain general ideas
about resolution,
as well. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint discussion- The mediator might encourage the parties to respond
directly to the
opening statements, depending on the participants' receptivity, in an attempt to further
define the
issues.
Stage 4: Private caucuses- The private caucus is a chance for each party to meet
privately with the
mediator. Each side will be placed in a separate room. The mediator will go between
the two rooms
to discuss the strengths and weaknesses of each position and to exchange offers. The
mediator
continues the exchange as needed during the time allowed. These private meetings
comprise the
guts of mediation.
Stage 5: Joint negotiation- After caucuses, the mediator might bring the parties back
together to
negotiate directly, but this is unusual. The mediator usually doesn't bring the parties
back together
until a settlement is reached or the time allotted for the mediation ends.
Stage 6: Closure- If the parties reach an agreement, the mediator will likely put its
main provisions
in writing and ask each side to sign the written summary of the agreement. If the
parties didn't reach
an agreement, the mediator will help the parties determine whether it would be fruitful
to meet
again later or continue negotiations by phone.
Role of Mediator -
A mediator is a neutral third-party who facilitates communication and negotiation
between two or
more parties who are in conflict or disagreement. The role of a mediator is to help the
parties reach
a mutually acceptable resolution to their dispute, without imposing a solution or
taking sides.8
Some of the key responsibilities of a mediator include:
8 https://www.nolo.com/legal-encyclopedia/mediation-six-stages-30252.html April, 13 th , 2023, (08:23AM)
9 | P a g e1. Creating a safe and neutral environment: A mediator must create a
comfortable and neutral
setting for the parties to express their views and feelings without fear of judgment or
retaliation.
2. Facilitating communication: A mediator must facilitate communication between
the parties,
ensuring that each party has an opportunity to express their concerns and perspectives
3. Identifying the underlying issues: A mediator must help the parties identify the
underlying
issues that are causing the conflict and work with them to find ways to address those
issues.
4. Generating options: A mediator must help the parties generate options for
resolving the conflict
that are acceptable to all parties.
5. Facilitating negotiations: A mediator must facilitate negotiations between the
parties to help
them reach a mutually acceptable resolution.
6. Drafting an agreement: A mediator must help the parties draft an agreement that
reflects their
mutual understanding and agreement.
Overall, the role of a mediator is to help the parties in conflict find a way forward that
is acceptable
to everyone involved.
Constitutional validity and laws related to the mediation:
Section 89 of the Civil Procedure Code provides for the settlement of disputes outside
of court
through various methods including mediation. The section allows the court to refer
parties to
mediation or any other appropriate alternative dispute resolution mechanism and stay
the
proceedings for a period of time to facilitate settlement.
Some other sections that are relevant to mediation in India are:
Section 30 of the Arbitration and Conciliation Act, 1996, which provides for the
settlement of
disputes through conciliation, which is similar to mediation.
Section 442 of the Companies Act, 2013, which requires companies to provide for
mediation as a
means of resolving disputes between the company and its stakeholders.
Section 12A of the Commercial Courts Act, 2015, which provides for the referral of
commercial
disputes to mediation, and requires parties to participate in good faith.
Section 73 of the Indian Contract Act, 1872, which provides for the discharge of a
contract by
mutual agreement, which can be facilitated through mediation.
In 2002, the Supreme Court in the case of Salem Advocate Bar Association vs. Union
of India9 ,
held that mediation is a recognized and valid alternative to the adversarial system of
justice
delivery. The Court observed that the traditional adversarial system of justice often
leads to delay,
expense, and acrimony, and that mediation offers a faster, more cost-effective.
Case Laws-
1. Union of India v. Singh Builders Syndicate (2009): This case laid down the
principle that
courts should encourage parties to settle their disputes through mediation, and should
only interfere
with the process in exceptional circumstances.
2. Salem Advocate Bar Association v. Union of India (2005): In this case, the
Supreme Court of
India held that mediation proceedings are confidential, and the mediator cannot be
compelled to
disclose information about the mediation without the consent of the parties
3. Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya (2003): This case established
that an
agreement reached through mediation is binding on the parties, and can be enforced
by a court of
law.
4. State of Punjab v. Jalour Singh (2008): In this case, the court held that if a
settlement
agreement reached through mediation is not complied with by one of the parties, the
other party can
seek to enforce the agreement through the court.
5. Jagdish Chander v. Ramesh Chander (2007): This case established that the court
has the
power to refer a dispute to mediation, even if one of the parties objects to the process.
6. United States v. Bank of America (2014) - This case established that mediation
can be used in
criminal cases to resolve disputes and avoid prosecution, and that the mediator's role
is to facilitate
communication between the parties involved.
7. Farmers Ins. Exch. v. Superior Court (2013) - This case established that
mediation
confidentiality is essential to the integrity of the mediation process, and that the
mediator cannot be
compelled to testify about what occurred during the mediation.
8. Cassano v. Durham (2004) - This case established that mediation can be an
effective tool for
resolving disputes in employment law, and that parties involved in employment
disputes may be
required to participate in mediation before pursuing legal action.
These are just a few examples of the many case laws related to mediation
proceedings. It is
important for parties and mediators to be familiar with the relevant laws and cases in
their
jurisdiction.
Conclusion -
Mediation can be a helpful tool in solving many of today's problems. It is a process in
which a
neutral third party helps two or more parties to resolve a dispute or conflict.
Mediation allows
parties to have an open dialogue and work together to find a mutually acceptable
solution to their
problem. It can be particularly effective in today's complex and interconnected world,
where many
issues require collaboration and cooperation between different groups and individuals.
For example,
mediation can be used to resolve conflicts between coworkers, neighbours or family
members. It
can also be used to resolve disputes between businesses, governments, and non-profit
organizations.
Mediation has many benefits, including:
1. Cost-effective: Mediation is generally less expensive than going to court.
2. Time-saving: Mediation can often resolve disputes more quickly than going to
court.
3. Confidentiality: Mediation is a confidential process, which can encourage parties to
be more open
and honest.
4. Voluntary: Mediation is a voluntary process, which means that both parties must
agree to
participate.
5. Relationship-building: Mediation can help parties to build better relationships with
each other,
which can be particularly important in ongoing business or personal relationships.
Meanwhile mediation may not be the solution to every problem, but it can be an
effective tool for
many individuals and organizations looking to resolve disputes in a collaborative and
cost-effective
manner.
Bibliography:
1. https://delhicourts.nic.in/dmc/MediationConciliation.htm
2. https://www.wipo.int/amc/en/mediation/what-mediation.html