The Lex-Warrier: Online Law Journal ISSN (O): 2319-8338

MEDIATION: AN EFFECTIVE ALTERNATIVE DISPUTE

RESOLUTION MECHANISM
Anveksha Padhye*

Abstract
Our country’s judiciary has always been overburden and pendency in delivering judgments has one of the
common problems from the very beginning. Every problem has an alternative solution, so to solution of the
problem of litigation is an Alternative Dispute Resolution mechanism. An ALTERNATIVE
DISPUTE RESOLUTION (ADR) mechanism is based on the UNCITRAL model of international
commercial arbitration council. ALTERNATIVE DISPUTE RESOLUTION (ADR) mechanism
used four procedures, which are different from litigation such as arbitration, conciliation, mediation and
negotiation. This research work focuses on the mediation and its relevant aspects. Every ALTERNATIVE
DISPUTE RESOLUTION (ADR) mechanism procedures having their own effectiveness and limitations
but the research through this work tries to evaluate the effectiveness of mediation and its various aspects.
Mediation is a non – binding process and the parties have ownership of the cases, it is a process where parties
have to decide that they want to bind by this settlement or not. Mediation somehow differs from other
mechanism for non- binding in nature and full ownership has in the hands of parties of the case. The nature
of mediation process proves that this process have the social perspective and based on the combination of socio-
legal principles. This research article contains the brief history behind mediation in India and how its work
till date. The researcher tries to appraise the effectiveness of mediation and tries to find out basic principles on
which mediation based. This research article focuses on the procedural part as well as conceptual clarity. The
research mainly deals with socio-legal perspective of the mediation and how it contains both social and legal
aspects combo. At the last researcher gave the conclusion on the whole research and her opinions.

Keywords: ADR, Alternative Dispute Resolution, Mediation, Indian Judiciary, Pending litigation.

PREFERRED CITATION

 Anveksha Padhye, Mediation: an effective alternative dispute resolution mechanism, The

Lex-Warrier: Online Law Journal (2018) 7, pp. 338 – 345, ISSN (O): 2319-8338

* 4th Year B.A, LL.B (Hons.), Indore Institute of Law.

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INTRODUCTION

“Discourage litigation. Persuade your neighbours to compromise where you can. Point out them how the nominal
winner is often the real loser – in fees, expenses and waste of time.”

- Abraham Lincoln
An Alternative Dispute Resolution is an Yet, particularly in the context of mediation,
outcome of all such problems, which are it needs emphasis that this is only one of the
facing by the public constantly in the important objectives. Mediation as a
litigation. It is like a substitute to the processual intervention in the legal system
traditional method of resolving dispute and fulfils other instrumental and intrinsic
justice. An ALTERNATIVE DISPUTE functions, which are of an equal, if not
RESOLUTION (ADR) mechanism mainly greater importance. In its instrumental
focuses on delivering justice through mutual function, mediation is a means to fulfilling
consent of the parties in the minimum time stated objectives. The intrinsic function of
without any delay like in litigation. An mediation emphasizes the value of mediation
ALTERNATIVE DISPUTE as an end in itself1.
RESOLUTION (ADR) mechanism
An impartial third party, the conciliator or
recognized four methods to resolve any
mediator, assists the parties to a dispute in
dispute such as arbitration, conciliation,
reaching a mutually satisfactory and agreed
mediation and negotiation. Alternative
settlement of the dispute in a non – binding
methods are work on the mutual consensus
procedure. Mediation is a process by which
and try to settle dispute with as early as
disputing parties engage the assistance of a
practicable. ALTERNATIVE DISPUTE
neutral third party to act as a mediator2.
RESOLUTION (ADR) mechanism is an
option to the public who do not want to go Brief history

for conventional method or want to resolve In India, the law and practice of private and
their matter without courts interference. transactional commercial disputes without
These mechanisms have their own advantage court intervention can be traced back to
as well as flaws, like any other process have ancient times. Arbitration or mediation as an
might do. alternative to dispute resolution by municipal

1 M E D I A T I O N – realizing the potential and in/adr_conf/chandrachud3 .pdf last visited on 21-

designing implementation strategies., Dr. Justice 07-2018 at 9:44 AM
Dhananjaya Y. Chandrachud, available at http:// 2 Avtar Singh, Law of Arbitration & Conciliation and

lawcommissionofindia. nic. Alternative Dispute Resolution system (Eastern Book

Company, 10th edition) page no. 520

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courts has been prevalent in India from by mediation process rather than go to court
Vedic times. The earliest known treatise is for justice.
the Bhradarnayaka Upanishad, in which various
In generally there are five basic principles
types of arbitral bodies viz (i) the Puga (ii)
usually seen in the mediation process and the
the Sreni (iii) the Kula are referred to. These
mediator as well as the parties for an effective
arbitral bodies, known as Panchayats, dealt
outcome should follow it strictly. Five basic
with variety of disputes, such as disputes of
principles of mediation process are as
contractual, matrimonial and even of a
follows:-
criminal nature. The disputants would
ordinarily accept the decision of Parties should participate voluntarily

the panchayat and hence a settlement arrived It is necessary that no one should forced to
consequent to conciliation by mediate, it should be in the hands of parties
the panchayat would be as binding as the and they have to decide whether they want to
3
decision that was on clear legal obligations. mediate or go to the courts. Parties have their

PRINCIPLES OF THE MEDIATION voluntary participation in the mediation

process. It is going to be more fruitful.
Every process of ALTERNATIVE
DISPUTE RESOLUTION (ADR) People will cooperate more fully if they know

mechanism has its own basic principles on they are free to leave at any point. This

which it is work and giving positive engages their own free will and sense of

outcomes. Like as other process mediation purpose and enables them to drive the

has its own fundamental principles, which are process towards agreement rather than to be

helpful in settling disputes between the led to an understanding by a third party. If

parties on their mutual consensus. Parties they drive the process, they are more

choose mediation process over litigation may committed to the outcome.4

be because of these principles, which have Confidentiality matters in the process

given effective way to the process. Mediation
Within the mediation itself - the mediator
usually has seen in the family matters or any
must not divulge any confidences that are
neighbouring issues, which could be resolve
shared with them unless given permission to
do so. Unless someone shares a criminal

4 Principles of mediation, available at https://

3 ADR in India: Legislations and Practices, S. Chaitanya
rhizomenetwork. files. wordpress. com/ 2010/ 12/
Shashank, Kaushalya T. Madhavan, available at https:// principles_ of_ mediation. pdf last visited on 21-07-
www. lawctopus. com/ academike/arbitration -adr-in- 2018 at 12:15PM
india/ last visted on 21-07-2018 at 10:11 AM

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intent or act that involves harm to self or happens, then the mediation went the wrong
other. way. The mediator cannot perform the
function if there are circumstances that
 In respect of further proceedings
indicate doubts about his impartiality and
(except with the express permission
objectivity.6
of both sides)
 In order for people to feel safe to An agreement has to be settled with the
explore their fears and anxieties the satisfaction of parties concerned
process must be perceived to be
The responsibility for defining the problem,
entirely confidential.5
setting the agenda and agreeing the solution
All the information given in the mediation rests with the people in the dispute.7 The
shall be kept confidential and it cannot be mediation procedure can be started only if
used in the court proceedings neither by the there is an agreement between the parties.
mediators nor court can ask why the Mediation will not be started without both
mediation did not work. parties intending to resolve the dispute. In

Mediators are impartial such cases, mediation is misused only as a

mean of withholding the court process and
The mediator must act impartially and
keeping the situation at the "status quo". A
neutrally. He/she should observe all
mediator needs to know how to explain the
principles of mediation and consider only
advantages of such dispute resolution to the
matters of procedure. He/she should not
parties, so that they themselves voluntarily
comment, value judgments, nor give advice
agree to be part of such process. The parties
or suggesting solutions. Impartiality of a
should be informed on the possibility to
mediator should ensure that the parties
interrupt the mediation process at any stage,
accept him/her as a person who is sincerely
if they express need for such. The principle
dedicated to resolving the dispute and who
of willingness applies at all stages of the
favors both sides in the dispute, seeking
proceedings. A party or the mediator may at
solutions that would satisfy both sides in the
any time withdraw and then transfer the case
dispute. The mediator must keep in mind that
to the judge. A mediator can interrupt
his/her behavior, attitude, and sometimes the
mediation if he/she feels that party’s turn
techniques of mediation can bring a sense of
away from the solution or that are even more
sympathy towards one side. When that
opposed than they were at the start of

5Ibid nacela-posredovanja last visited on 21-07-2018 at

6 Basic principles of mediation, available at http:// 12:26 PM
www. posredovanje. me/en/posredovanje/ osnovna- 7 Supra 3

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mediation. The basic principle in the process intervention, but mediation differs from it in
of mediation is that the mediation procedure being purely a friendly act.10
should not harm the parties in any way, but
Mediation at one level of perception is a
to contribute to the resolution of their
means of avoiding the pitfalls of litigation.
dispute. Given that mediation is only a
The problems which arise in the resolution of
supplement to the court proceedings, it must
disputes through litigation are well known.
not prevent a party from exercising the right
These are, broadly (i) delay; (ii) expense; (iii)
of access to court and use of judicial
rigidity of procedures; and (iv) a reduction in
protection.8
the participatory role of parties.11 In the path
of resolving these pitfalls of litigation,
Mediation is without prejudice to other
procedures mediation is the most frequently adopted
ALTERNATIVE DISPUTE
It is important that people reserve the right
RESOLUTION (ADR) procedure.
to invoke other measures. If the mediation
The process of mediation may have to pass
were seen as an enforced procedure or one
through several stages such as :-
that removes an individual’s rights, it would
constrict the creativity and increases the  opening statement
9
potential for resistance.  opening statement to the parties
Is mediation an effective  summarizing and agenda setting.
ALTERNATIVE DISPUTE  exploration of issues.
RESOLUTION (ADR) mechanism or  private sessions or caucuses
not?  joint negotiation session
The use of the term “mediation” is well  agreement
known in International Law. It is the
Practitioners in this field adopt their own
technical term in International Law, which
perfected styles. They differ in their basic
signifies the interposition by a neutral and
steps. A lot depends upon the nature of the
friendly state between two States at war or on
dispute. The more complicated a matter, the
the eve of war with each other, of its good
more private meetings would be necessary to
offices to restore or to preserve peace. The
pave the ground for a joint meeting.
term is sometimes as a synonym for
A mediator may adopt either a facilitative or
evaluative approach. Mediators try to avoid

8 Supra 5 10 Supra 2
9 Supra 3 11 Supra 1

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opinions and judgments. They rather  Informality: - no court rules or legal

facilitate and encourage parties to open up precedents are involved in mediation.
their communications and disclose their The mediator does not impose a
interests and priorities. In this process the decision upon the parties. As
mediator gets the opportunity of locating the opposed to adversarial forums, the
points of difference and the area of mediator helps to maintain a
controversy or dispute. He may then help the business- like approach to resolving a
12
parties to bridge the gap between them. dispute. There are no fixed solutions
in mediation. Parties can look to
The essence of mediation lies in the role of
developing creative solutions to
the mediator as a facilitator. The mediator is
resolve matters and the solution rests
not an adjudicator. Unlike the Judge in a
with the parties themselves.
traditional Court setting or for that matter
 Privacy and confidentiality: - the
even an arbitrator, the mediator is neither a
mediation conference takes place in a
trier of fact nor an arbiter of disputes. The
private setting such as a conference
role of the mediator is to create an
room at any of the Arbitration
environment in which parties before him are
Associations. Mediation is not a
facilitated towards resolving the dispute in a
matter of public record. Its
purely voluntary settlement or agreement.
confidentiality is maintained.
The mediator is a neutral. The neutrality of
 Time and cost savings: - Mediation
the mediator is akin to the neutrality of a
generally lasts a day. Complex
Judge but the role of the mediator is
matters may require more time due to
completely different from that of a Judge.
highly technical issue and/ or
The mediator does not either deliver
multiple parties. Without the
judgment or dictate to the parties the terms
formalities found in litigation,
of the agreement.13
mediation usually results in
Mediation is an effective ALTERNATIVE substantial costs savings.
DISPUTE RESOLUTION (ADR)  Control: - Parties have control over
mechanism can be seen by these four benefits their participation in mediation. A
of the process such as:-
party can decide to terminate their
participation at any point in
mediation. Mediators help parties

12Avtar Singh, Law of Arbitration & Conciliation and 13 Supra 1

Alternative Dispute Resolution system (Eastern Book
Company, 10th edition) page no. 521

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maintain control over the negotiation a. Developing awareness;

that takes place.14 b. Advocacy;
c. Building capacities;
Implementation strategies
d. The creation of an institutional
For an effective implementation, there is framework; and
always a need of strategies and policies. The e. Actual implementation.15
public frequently uses mediation process but
Conclusion
there is lack of implementation and strategies
should be needed. Intervention of court as a There is no necessary interference of court in
supervisor is being necessary for an ALTERNATIVE DISPUTE
implementation of mediation positively. RESOLUTION (ADR) techniques but in
More mediation centers have to be set up by different stages court would have discharge
High courts and particular sect of cases some important functions. Mediation
should be giving to the mediation by courts. process is focuses only to reduction in arrears
and a flexible technique of ALTERNATIVE
The development of mediation as a viable
DISPUTE RESOLUTION (ADR)
alternative to litigation is still in the incipient
mechanism. The mediation believes not in
stages in India. Mediation center’s have
the adjudication of cases but in the settling
recently been set up by a few industry and
dispute. Mediator is also not allowed to
trade associations. Similarly, professional
adjudicate but can only try to settle dispute or
lawyers have in certain isolated instances
could communicate with the parties.
attempted to develop into full-fledged
Implementation of the process does not
professionals with expertise in mediation.
mean to take every case under mediation but
These instances are, however, sporadic and
initially it should apply on the small plot of
the overall potential of mediation remains to
cases and after witnessing the success
be explored. Strategies for successful
implementation could be done on large no.
implementation of mediation must, be
cases. Mediation is a significant process for
carefully assessed and a conscious effort has
reducing burden from the judiciary and it is
to be made towards the evolution of a
capable enough to shifts the focus from
process that will be acceptable to the society.
adjudication towards resolving or settling
In achieving a high level of acceptability for
dispute under fundamental legal system. It is
the mediation process, several issues need be
more facilitative for the development of law
focused upon and these include:
to approach preventive process unlike

14 Supra 12 pg 524 15 Supra 1

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litigation oriented approaches only. Above positive terms the ethical concerns of a
all, confidence in the mediation process will process to which the role of the mediator is
be fostered only if the mediator discharges in central.

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