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INTRODUCTION
Mediation is a private but structured method of dispute resolution. It is a voluntary
process in which both the disputing parties come together to find a solution to their
problem by entering into a written contract and appointing a mediator who assists
parties in reaching an amicable settlement. A mediator can be of any designation
and can be appointed either formally or informally. Contrary to conventional
courts, the decision of the mediator is not imposable and the decision-making
power rests in the disputing parties. Mediation provides the parties to express their
emotions, interests, end goal, and opinions which are often not given importance in
the conventional courts.
There are no fixed and rigid proceedings in alternate dispute resolution and
mediation is the most flexible of all these methods making it the most desirable
one. It is a party-centric and neutral procedure. Parties can withdraw from the
procedure of mediation at any stage without stating any explanation. All the
information and evidence presented during mediation is kept confidential thus
outside parties do not have access to the mediation proceedings. Data given to the
mediator cannot be used for any other purpose besides helping the mediator to
reach an appropriate resolution. This ensures that nobody’s public image gets
tarnished in the process.
One of the major advantages of mediation is that neither of the parties loses and the
interests of both the parties are conserved. It is a win-win situation for both parties.
The parties control the end result of the mediation and either party has the
advantage of terminating the mediation without giving any reason.
WHAT HAPPENED AT A TYPICAL MEDIATION?
The mediator will greet the parties on arrival and show each party to its own
private room. Usually, the mediator will formally open the mediation with a joint
session, attended by all parties and their lawyers. During this session, the mediator
provides an overview of the process, their role and the procedure. Each party then
has an opportunity to make an opening statement, giving its perspective on the
dispute and highlighting points of particular concern. After the opening, the
mediator will have private discussions with each party to assist in the negotiating
process.
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Ultimately, this may result in the parties reaching a settlement that is either
documented at the mediation or shortly thereafter, usually in the form of a
settlement agreement. Mediation does not always result in a settlement but it
generally has a high success rate.
TYPES OF MEDIATION
Court referred mediation
In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908
which empowers the court in matters where it appears to exist as a component of a
settlement that would be acceptable to both parties, the Court shall articulate the
terms of a possible settlement and refer the same for mediation for which
procedure may be prescribed by the court itself. In the case of Salem Advocate Bar
Association, Tamil Nadu v. Union of India, Supreme Court held in reference to the
matter of mediation that conciliation and arbitration are mandatory for court
matters. This judgment has granted legal and social recognition to mediation as a
dispute resolution in India. This type of mediation is often utilised in matrimonial
and family disputes, particularly divorce cases.
Private mediation
In private mediation, a qualified mediator is appointed by the parties on a fixed-fee
basis. Both the parties come together to resolve the issue amicably. A mediator can
be of any designation and anyone can appoint them to resolve disputes through
private mediation. It is a time-saving mechanism and gives various creative
outcomes for parties to choose from. The decision of the mediator is not ultimate
and hence not binding on the parties.
ADVANTAGES OF MEDIATION
Cost efficient and time saving
The cost incurred in the mediation process is nominal compared to judicial
procedures. It is not mandatory to appoint legal counsels in mediation thus a huge
cost is saved. There are no obligatory procedures like conventional courtrooms
hence saving procedural cost fees. The dispute resolution process is quicker due to
the least legal formalities and procedural flexibilities. A mediator has the liberty to
consider those issues she/he deems significant to bring parties to the agreement,
time-consuming evidence is generally avoided, thereby saving time and resources.
Flexible and creative solutions
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There exists no set procedure for mediation thus providing parties access to a wide
range of outcomes. Different mediators have different styles which are often
amended as per the requirements of the specific case. The resolutions achieved by
the process of mediation sometimes aren’t possible through arbitration or judicial
procedures. Both the parties work together to resolve the dispute among
themselves and are free to formulate customised solutions as per their
requirements.
Confidentiality and privacy
All the information and evidence presented during mediation is kept confidential
thus outside parties do not have access to the mediation proceedings. Data given to
the mediator cannot be used for any other purpose besides helping the mediator to
reach an appropriate resolution. In fact, there is such secrecy that there is unique
confidentiality between one party and the mediator i.e. if one party provides
information to the mediator, it can be kept confidential from the other party subject
to specific conditions. Another significant benefit of mediation in India is that it is
completely private and helps to protect the public image of the parties. Only the
disputing parties and the appointed mediator is present during the process making
it personal and private.
Restoration of relationship
In conventional court proceedings blame is put on one of the parties which is often
detrimental to the relationship of the parties. The final decision of the court is
imposed on both the parties and it can be undesirable because one party always
loses. On the contrary in mediation parties alone are responsible for their own
decision and can choose to not accept the final settlement brought about by this
process. This helps parties to come to a solution peacefully and amicably. Even if
the relationship between the parties was compromised due to existing issues it can
be restored by the process of mediation as it upholds the interests of both parties.
Control and dominion
The parties can choose the time, location, and the duration of the proceedings
giving parties a lot of control. Courts have their own schedule that is to be adhered
to by everyone hence it is not as convenient. Contrary to the judicial system parties
in mediation are not opponents but are collaborators striving to find a resolution
that is mutually acceptable. One of the major advantages of mediation is that
neither of the parties loses and the interests of both the parties are conserved. The
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parties control the end result of the mediation and either party has the advantage of
terminating the mediation without giving any reason.
WHAT ARE THE OTHER BENEFITS OF MEDIATION?
Some of the potential benefits of mediation include:
Communication problems between the parties can be overcome. The
mediator is a neutral third party who can act as an intermediary between the
different personalities and negotiating styles of the parties.
The mediator can help the parties work through a deadlock situation that can
be created by competitive or positional negotiation.
Business relationships can be preserved or enhanced by mediation. Long-
term relationships, arrangements in small or sensitive markets, joint ventures
and similar relationships can be restored.
Confidentiality and privilege are cornerstones of the mediation process.
Agreements to mediate usually provide specific protection for
confidentiality and privilege. The private nature of mediation also ensures
that negative or embarrassing precedents are avoided.
The parties have complete choice over the selection of the mediator and can
therefore choose the mediator who is most appropriate for the dispute.
Conversely, the parties cannot choose a judge if the matter goes to full trial.
The legal costs, lost opportunity costs and management time can be reduced
through mediation.
Mediation can produce outcomes that might not be possible via
determination by the court or arbitration. The limited scope of legal
remedies in court or arbitration may be inappropriate to resolve the wide
range of business or commercial issues that might arise (for example, the
need for new financing). The result can be new business opportunities and
restructuring of old relationships.
The client’s personal, commercial and technical needs, interests, aims and
objectives can be achieved through mediation. The process helps the client
to identify underlying interests and the implications that various alternative
outcomes may have on those interests.
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The process is entirely flexible and can be tailored to meet the parties’ needs
and all issues.
The clients have active participation in the mediation process and control the
outcome.
Mediation is voluntary. The parties can withdraw from, or terminate,
the mediation at any time. The mediator has no coercive powers.
The process is culturally sensitive and adaptable. A team of mediators can be
employed, representing the diverse cultural backgrounds, in multi-party
cases. A bilingual mediator can establish credibility and authority in a case
involving language obstacles.
The mediation process provides a tool for project managing large, complex
or multi-party disputes.
Mediation can provide a speedier resolution. It can be arranged quickly,
often within a few days or weeks.
A mediation can take from a few hours to one or more
days. Mediations rarely take more than a few days, even in relation to
complex or multi-party commercial disputes.
The mediation process is low-risk; there is “nothing to lose” by attempting
a mediation.
Mediation has a high success rate and produces durable results. The statistics
vary, but range from 65% to 85%, representing cases that settle at mediation,
and some mediators advertise success rates in excess of 90%. The outcome
is likely to be more palatable to clients than any solution that a court or
arbitration tribunal imposes, as the clients themselves have responsibility for
creating it.
Our firm are committed to using mediation whenever possible, to avoid the need
for costly litigation. Our dispute resolution lawyers are all experienced in
organising and conducting a mediation.
This guide is for general information only and does not constitute legal advice. If
you would like to discuss anything in this article please get in touch.
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CONCLUSION
Mediation in India is gaining popularity as it is a low-cost, party-centric and
neutral procedure. There is a need for dedicated law enacted to formalize the
process of mediation. To have a better understanding of their rights parties can hire
legal professionals specially trained in ADR to represent them and explain the
situation in a professional way to the mediator. For all these benefits of mediation,
in the coming future, it will be the most common method of dispute resolution
especially in corporate affairs and family disputes.
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