Mediation And Brief Concept Of Mediation:
Mediation is an alternative method of resolving disputes without resorting to the courts. It is a
structured, voluntary and interactive negotiation process where a neutral third-party uses
specialized communication and negotiation techniques to help the parties in fulfilling their stated
objectives. As a party-centred process, it focuses on the interests, needs and rights of the parties.
Mediation is a procedure in which the parties discuss their disputes with the assistance of a
trained impartial third person(s) who assists them in reaching a settlement. It may be an informal
meeting among the parties or a scheduled settlement conference. The dispute may either be
pending in a court or potentially a dispute which may be filed in court. Cases suitable for
mediation are disputes in commercial transactions, personal injury, construction, workers
compensation, labor or community relations, divorce, domestic relations, employment or any
other matters which do not involve complex procedural or evidentiary issues. Attendance at the
mediation conference is voluntary by the parties, except where governed by statute or contract
clause.
The mediator is a person with patience, persistence and common sense. She/he has an arsenal of
negotiation techniques, human dynamics skills and powers of effective listening, articulation and
restatement. The mediator is a facilitator who has no power to render a resolution to the conflict.
The parties will fashion the solution as the mediator moves through the process. In many
jurisdictions the mediator is an attorney but can not give legal advise while in the role of a
mediator. However, the mediator's subject area expertise may be beneficial to the parties in
wording and framing the mediated agreement or in circumstances where the parties are open to
neutral case evaluation.
Laws Governing Mediation in India
Mediation first came to be legally recognised as a method of dispute resolution in the Industrial
Disputes Act, 1947.
In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided
for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to
alternative dispute resolution (ADR) methods to settle pending disputes.
Under this, consent of the parties was made mandatory and the court could refer cases for
arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.
Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r.
5(f)(iii). These allow the court to refer cases for mediation even when the parties are not ready
for reference for mediation if there is an element of settlement.
Fundamental Rules Of Mediation Are As Follows:[5]
1. A neutral mediator to conduct the mediation: A mediator should always be neutral, having
no personal or monetary interest in the dispute, or in either party.
2. Self-determination of the parties: Mediation is a process that is based on the self-
determination of disputant parties that is to say that the parties can make free choices keeping
their interest in mind. The mediator is thus responsible to conduct the process whereas the parties
determine the outcome of the settlement.
3. Confidentiality: The very essence of mediation is its confidentiality. The mediator should
take note:-
1. That she and the parties shall maintain confidentiality in all the matters relating to the
mediation proceedings. The confidentiality shall extend to the settlement agreement, unless there
is a necessity for the disclosure in order to implement and enforce it.
2. That it is not legally permissible for her, unless otherwise agreed to by the parties, to act as an
arbitrator or witness in any arbitral or judicial proceeding with respect to the dispute which is the
subject matter of mediation proceedings and the parties are also not allowed to introduce such
evidence.
3. That the only information regarding the behavior of the parties might be reported is: whether
the parties appeared at a scheduled mediation and whether or not they reached a solution.
4. Fairness of process: The mediation process should be a fair one. The parties should be treated
fairly and not arbitrarily and that their concerns should be addressed properly.
5. Voluntary process: The mediation process is impossible without the consent of the parties
involved. The parties are bound once they sign the settlement arrived at during mediation.
Arbitration Vs Mediation
Comparison Chart
Basis for
Mediation Arbitartion
Comparison
Mediation refers to a process of Arbitration is a substitute of public trial, with
resolving disputes wherein an no need of going court, wherein an
Meaning independent third party, assist the independent third party analyses the entire
parties involved in arriving at solution, situation and makes a decision binding on the
agreeable to all. parties.
Nature Collaborative Adversarial
Process Informal Formal
Role of expert Facilitator Judge
Number of
One One or more
expert
Meeting between the parties concerned
Private Only evidentiary hearings, no private
and the counsel takes place jointly and
communication meetings with the arbitrator.
separately.
Control over
Parties Arbitrator
outcome
Basis of outcome Needs, rights and interest of parties Facts and evidences
Outcome May or may not be reached. Definitely reached.
The mediator does not pass any
The decision of the arbitrator is final and
Decision judgement, but makes settlement only
binding upon the parties.
with the approval of parties.
When the agreement is reached or
Conclusion When the decision is handed down.
parties are deadlocked.
What Is Negotiation?
Negotiation is a discussion of issues in a case between opposing parties in order to come to a
settlement.
Key Features of Negotiation
The key features of negotiation are:
It’s an informal process with no set procedure;
It can be in writing or be verbal (in person);
It can take place between the parties directly or their lawyers;
It generally involves both parties making “concessions” or compromises to reach a
solution acceptable to both parties;
The parties are in control of the outcome. An agreement can only be reached with their
consent;
Negotiations are private and confidential. They cannot be used against you in court; and
The settlement reached at the end of a negotiation is often a “contract” that is binding on
the parties.
What Is Mediation?
Mediation is a process where a neutral third person (a mediator) will help the opposing parties
reach a negotiated settlement (this process can also be called conciliation). This is like a
negotiation but with a third party.
Key Features of Mediation
The key features of mediation are:
The parties select an independent third party to be a mediator;
The mediator facilitates the negotiation between the parties;
The mediator is objective and does not take sides;
The mediation is private and confidential. What is discussed cannot be used against you
in court;
The parties can decide what procedure to follow. It’s a flexible process;
The mediation involves a combination of private discussions with the mediator and group
discussions with the mediator and the other side; and
The objective is to reach a settlement, that will act as a binding contract.
