Throughout history, nearly every community, country, and culture has used informal

methods for dispute resolution, many of which share features with modern mediation.
In India, while clear historical records are scarce, evidence suggests that mediation
practices date back to ancient times, with tribal communities employing various
dispute resolution techniques. Ancient Indian philosophy and legal systems, rooted in
Vedic traditions, emphasized wisdom, reason, and prudence, forming the basis of early
mediation practices. Key historical examples include the Kula, Shreni, and Puga
tribunals, which resolved disputes within families, artisan groups, and trade
associations, respectively.

During British colonial rule in India, traditional mediation practices were overshadowed
by the British legal system, which required clear decisions rather than compromises.
Despite this, informal mediation persisted, particularly among business communities.

In the United States, mediation developed significantly in the 20th century, with
community mediation addressing racial tensions and private mediation growing in
response to the cost benefits recognized by insurance companies. Court-annexed
mediation also expanded, integrating mediation into the legal system.

In India, legislative recognition of mediation began with the Industrial Disputes Act of
1947 and continued with the Arbitration and Conciliation Act of 1996, and further
advancements were made with the CPC Amendment Act of 1999. The Indian judiciary
has supported mediation to address the backlog of cases, and various mediation
centers have been established across the country. The Mediation and Conciliation
Project Committee (MCPC), formed in 2005, has been pivotal in promoting and
institutionalizing mediation in India, ensuring it complements the judicial system.
Court-annexed mediation centers provide mediation services within the judicial
framework, maintaining the integrity and public trust in the legal system.

The Nature of Conflict and Mediation

Conflict arises from various differences among people, groups, and nations, including
cultural, personality, and situational differences. Unresolved differences lead to
disagreements, which can escalate into disputes and ultimately conflicts. These
conflicts, if left unaddressed, can lead to violence and war, forming a continuum of
tension.
Dimensions of Conflict

1. The Conflict Core: At the heart of any conflict lies a sense of threat to human dignity,
safety, reputation, and other core values. This threat generates emotions such as fear,
anger, and frustration, which must be addressed for effective conflict resolution.

2. The Conflict Spiral: As conflicts escalate, they affect individuals, relationships, and
communities, leading to increased rigidity and emotional responses. Legal advice often
complicates this further, necessitating a neutral party to help manage and resolve the
dispute.

3. The Conflict Triangle: Conflicts have three primary aspects:

-People: Involves dealing with diverse individuals with unique backgrounds and
emotional responses.

- Process: Each conflict has its own communication pattern and interaction dynamics.

- Problem: The specific issues and interests involved in the conflict.

Causes and Strategies for Conflict Resolution

Conflicts can arise from various causes, including lack of information, differing
interests, poor relationships, structural issues, and value differences. Strategies to
address these include agreeing on important data, focusing on interests rather than
positions, improving communication, reallocating resources, and finding common
goals.

Concept of Mediation

Mediation is a voluntary, structured process where a neutral third party assists

1.Voluntary Participation: Parties retain control over the decision to settle and the terms
of the settlement.

2. Party-Centered: The disputants are central to the process, actively participating in

3. Structured Yet Flexible: The process is formalized but allows for flexibility to suit the
needs of each case.

4. Neutral Mediation: The mediator remains impartial and does not impose decisions
but facilitates communication and evaluation of claims.
Types and Advantages of Mediation

1. Court-Referred Mediation: Cases pending in court can be referred for mediation.

2. Private Mediation: Qualified mediators offer their services independently to resolve

Advantages:

- Parties control the scope and outcome.

- Participation is direct and voluntary.

- The process is speedy, economical, simple, flexible, and conducted in a conducive

- Ensures fairness, confidentiality, and effective communication.

- Maintains and restores relationships.

- Focuses on long-term interests and provides creative solutions.

- Promotes finality and compliance, often resolving related disputes.

Mediation ultimately transforms conflict resolution by addressing emotional states,

Comparison between Judicial Process and Various ADR

1. Nature: Adjudicatory process where a third party (judge) decides the outcome.

2. Governance: Governed by statutory provisions.

3. Binding Decision: Decision is binding on the parties.

4. Adversarial: Focus on past events and determination of rights and liabilities.

5. Participation: Personal appearance or active participation of parties is not always

6. Formality: Formal proceeding held in public following strict procedural stages.

7. Appealability: Decision is appealable.

9. Fees: Involves payment of court fees.

Mediation

1. Nature: A non-adjudicatory negotiation process facilitated by a mediator.

2. Governance: Not governed or restricted by statutory provisions, allowing flexibility.

3. Binding Decision: Binding only if parties reach a mutually acceptable agreement.

4. Collaborative: Focuses on the present and future, with mutual agreement regardless
of rights and liabilities.

5. Participation: Requires personal appearance and active participation of parties.

6. Formality: An informal proceeding held in private with flexible procedural stages.

7. Appealability: Decree/order in terms of the settlement is final and not appealable.

8. Communication: Optimal opportunity for parties to communicate directly with each

9. Fees: Court fee refundable in case of settlement through court-annexed mediation.

IMPASSE IN MEDIATION

In mediation, an impasse refers to a situation where the parties are unable to progress
towards a resolution. It manifests as a stalemate, deadlock, or barrier and can arise due
to various reasons such as overt conflicts, resistance to solutions, or lack of creativity.
Impasses may also be strategic, aimed at pressuring the other party, or due to legitimate
reasons.

Types of Impasse:

1. Emotional Impasse:

- Causes: Personal animosity, mistrust, ego, false pride, fear of losing face, vengeance.

2. Substantive Impasse:
 - Causes: Lack of factual or legal knowledge, limited resources, incompetence, third-
party interference, inflexible principles, adamant attitudes.

3. Procedural Impasse:

- Causes: Lack of negotiation authority, power imbalances, mistrust of the mediator.

Stages When Impasse May Arise:

- Introduction and opening statement.

- Joint session.

- Separate session.

- Closing.

Techniques to Break Impasse:

- Reality testing.

- Brainstorming.

- Changing focus to the terms of the offer.

- Taking breaks or postponing.

- Cautioning about rigid stands.

- Involving third parties.

- Using humor.

- Acknowledging efforts.

- Identifying real reasons behind the impasse.

- Role-reversal exercises.

- Allowing emotional venting.

- Switching between joint and separate sessions.

- Focusing on underlying interests.

- Revisiting options.

- Changing topics.
- Observing silence.

- Holding hope.

- Changing sitting arrangements.

- Using hypothetical situations.

ROLE OF REFERRAL JUDGES IN MEDIATION

Referral judges play a crucial role in directing cases towards mediation. They must
carefully select cases suitable for mediation, considering the specifics of each case.
Proper timing and handling of the referral process can significantly impact the success
of mediation.

Statutory Requirements:

- Under Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908, courts
must consider ADR methods including mediation.

Stage of Reference:

- Typically after pleadings and before framing issues, but can be considered later if
necessary.

Consent:

- Consent is needed for arbitration and conciliation but not for mediation, Lok Adalat, or
judicial settlement.

Avoiding Delay:

- Referral judges must ensure that mediation does not delay trial proceedings by setting
specific timelines.

Choice of Cases:

- Unsuitable: Public interest cases, election disputes, serious fraud cases, etc.
- Suitable: Trade disputes, relationship disputes, tortious liability cases, consumer
disputes, etc.

ROLE OF LAWYERS IN MEDIATION

Lawyers play a vital role in all stages of mediation: pre-mediation, during mediation, and
post-mediation.

Pre-Mediation:

- Educate clients about mediation.

- Help clients understand the mediator’s role and the benefits of mediation.

- Prepare clients by assessing their needs and interests.

During Mediation:

- Maintain a positive attitude and cooperation.

- Assist clients in presenting their case.

- Engage in reality-testing and negotiation strategies.

- Participate in drafting clear and executable settlement agreements.

Post-Mediation:

- Guide clients on continuing litigation if mediation fails.

- Ensure clients understand and adhere to the settlement terms.

- Support the execution of the court’s orders based on the settlement.

ROLE OF PARTIES IN MEDIATION

Parties in mediation have a direct, active role in resolving their dispute. The process is
voluntary, and parties retain the decision-making power throughout.
Key Responsibilities:

- Focus on interests rather than entitlements.

- Communicate effectively and be open to persuasion.

- Trust the mediator and respect the process.

- Adhere to the settlement terms and cooperate in execution.

In essence, successful mediation relies on the collaborative efforts of all involved