Mediation: The Method of Alternate Dispute Resolution System

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There is a famous proverb “where there are two minds there will be three opinions”. Everybody has their own opinion and views, hence there may be a conflict of opinions. In today’s society, such conflicts are inevitable and a quick, easy, and strong mechanism for resolution of such conflicts at minimum cost is need of time. Such a mechanism reduces the burden on the judiciary. Arbitration, Mediation, Conciliation, Negotiations, Lok Adalats are some methods which can be used in such situations. These methods are collectively known as the Alternate Dispute Resolution (ADR) System. Let us discuss mediation as an alternate dispute resolution system. Section 89 of the Civil Procedure Code, 1908 lays down mediation as one of the alternate dispute resolution systems for the settlement of dispute outside the Court.

The concept of mediation is not new to India. In Ramayana, Angad was deployed by Lord Rama to meet Ravana to avoid the war. Even Lord Hanuman tried to avoid war when he went to Lanka for the first time. In Mahabharata Lord Krishna worked as a mediator between the Pandavas and Kauravas before the Great War at Kurukshetra. Gram panchayats, Gramsabhas, Jat panchayat, Khap panchayat, used the method of mediation to settle disputes.

Mediation a mode of dispute resolution and the facilitation of a negotiated agreement by a neutral third party called a mediator who has no decision-making power without recourse to the court of law. The mediator only acts as a facilitator and does not interfere in the decision of the dispute. The role of the mediator is rather to assist the parties in reaching their own decision on a settlement of the dispute. It is a voluntary and non–binding procedure. Mediation is a win-win method of dispute resolution. The parties to the dispute are under no obligation to agree to the settlement. In this process, the parties are in total control over their final settlement. The decision of the mediator cannot be imposed on the parties, the parties must voluntarily agree to accept it. The essence of mediation lies in the parties themselves finding a lasting solution to resolve and end their conflict rather than determining who is at fault.

Defining Mediation:

As per Black’s Law Dictionary, mediation is a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.
According to Barbara Stedman, mediation is a voluntary process in which a neutral third party assists the participants in resolving their disputes through a series of joint sessions and private caucuses.
According to Roger Smith, mediation is a sleeping giant of the civil justice system.
Article 1 of the Austrian Civil Law Mediation Act 2003 defines mediation as an activity voluntarily entered into by the Parties, whereby a professionally trained neutral facilitator (Mediator) using recognized methods systematically encourages communication between the Parties, with the aim of enabling the Parties to themselves reach a resolution of their dispute.
In the United States, mediation is defined under Section 2(1) the Uniform Mediation Act 2004 as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

Objects of Mediation:

Reduce obstacles to communication between participants
Address the needs of everyone involved
Allow the control of the process n the hands of participants.
Help to maximize the discovery of alternatives
Help participants to achieve their own resolution
Provide a proven model for future conflict resolution

Role of Mediator:

The role played by the mediator is a key ingredient in the qualitative success of mediation.

The mediator is a facilitator and not a decision-maker. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator; the mediator is neither a trier of fact nor an arbiter of disputes.
He should provide structure, focus, and assistance with communication to the parties in dispute. The role of the mediator is to create an environment in which parties before him are facilitated towards resolving the dispute in a purely voluntary settlement or agreement.
He should provide unbiased, impartial assistance and should not have any interest in the dispute. As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement.
He has to open up communication between the parties and between the parties and himself.
He has to enable the parties to understand their own interests and to understand the interests of the disputing party.
He must enable parties to distinguish between their positions and interests and to appreciate and evaluate their own interests and those of each other.
He has to ensure that through the mediation dialogue parties arrive at a solution which is in their best interest.
He has to control the process of negotiation.

Types of Mediations:

Facilitative Mediation:

Facilitative mediation is the most common type of mediation in which the mediator works with the parties on their own level. It is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In this type, the mediator predominantly holds joint sessions with all parties present and listens to both sides, asks questions, validates and normalizes parties’ views, structures a process, and makes informed suggestions based on years of professional knowledge. He/she assists the parties in reaching a mutually agreeable resolution. He/she does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case.

Evaluative Mediation:

Evaluative mediation emerged in court-mandated or court-referred mediation. It is based on the belief that mediators with expertise in the issues in conflict can help the parties to assess the strengths and weaknesses of their legal or other positions and that their opinion will be used to work to achieve settlements. In this type, the mediator has the specific legal knowledge and may even be a lawyer. The mediator hears the concerns of each party and gives legal advice. He/she assists the parties in reaching a resolution by pointing out the weaknesses of their cases and predicting what a judge or jury would be likely to do. He may make formal or informal recommendations to the parties as to the outcome of the issues. He/she is concerned with the legal rights of the parties rather than needs and interests and evaluates based on legal concepts of fairness.

Transformative Mediation:

Transformative mediation is based on the values of “empowerment” of each of the parties as much as possible, and “recognition” by each of the parties of the other parties’ needs, interests, values, and points of view. It is based on the belief that instead of seeking resolution a change (transform) in party-interaction, perception, and approach to conflict can be obtained. In this type, the two concerned parties meet together with the mediator and are encouraged to express their issues. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.

Advantages of Mediation:

Voluntary Process: Mediation is a voluntary process. It is optional for both parties. Unless both parties agree to mediation as a way to resolve their disagreement, a mediation session cannot be scheduled. The aim of mediation is to reach a mutually acceptable settlement of issues in dispute. Parties are not forced to mediate and settle by either an internal or external party to a dispute. There is no legal liability to any party refusing to participate in a mediation process. It is to be noted that some courts particularly in family and civil cases rule that parties must make a good faith effort in mediation before the court will be willing to hear the case. If the parties do not reach an agreement in mediation, they can use other methods of dispute resolution including litigation.
Informal Process: Mediation does not involve court rules or legal formalities. Lawyers are not necessary. There are no formal rules of evidence and no witnesses.
Flexible: The main aim of mediation is to resolve the dispute. There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case. Mediation can occur even during the trial or before any formal legal proceedings begin. There are no fixed solutions in mediation. Parties can look to develop creative solutions to resolve matters and the solution rests with the parties themselves.
Less Time Consuming: Mediation a mode of dispute resolution and the facilitation of a negotiated agreement by a neutral third party called a mediator who has no decision-making power without recourse to the court of law. Thus in mediation, no strict procedures are followed. Hence a mediation can be scheduled and held in a matter of days, not weeks or months. This advantage makes it very useful in solving labour disputes without hindering production. It prevents unnecessary delay in finding mutually agreeable resolutions.
Control of Parties: Mediation is a non-binding procedure. This means that, even though parties have agreed to submit a dispute to mediation, they are not obliged to continue with the mediation process after the first meeting. Thus, the parties remain always in control of a mediation. The continuation of the process depends on their continuing acceptance of it.
Confidentiality and Privacy: In mediation, parties come together in a private and neutral location to resolve the dispute with help of a mediator so that the solution is in the interest of both parties. Whatever is discussed during the session is treated as confidential and will not be disclosed to anyone unless it is expressly requested and agreed by both parties.
Safeguarding Relations: Mediation encourages dialogue between the parties in dispute. During mediations, the relationship between the parties isn’t overly damaged. It is a win-win method of dispute resolution system hence needs of each party are considered. The continuation of a healthy relationship is important for the implementation of the solution obtained during mediation. The mutual resolution will also help give the parties a place to start for future interactions.
High Rate of Compliance: It is a win-win method of dispute resolution system hence needs of each party are considered. Both the parties are involved and the mediator is facilitating the procedure. Each party has control over the process and the outcome. The aim of mediation is to find a mutually acceptable solution. Hence the parties comply with the outcome of the process.

Disadvantages of Mediation:

Mind Set of Parties: Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise.
Lack of Procedure: Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle.
Lack of Judicial Mind: It lacks the support of any judicial authority in its conduct. The mediator hired is an outside party. He or she may not have previous knowledge of the case and has never previously met the parties involved. A lawyer usually has some knowledge of the case and more than likely knows the party or parties involved. This can be somewhat of a hindrance in the process.
Voluntary Process: Parties are not forced to mediate and settle by either an internal or external party to a dispute. Party cannot be compelled to participate, except when ordered by Court. There is a possibility that a party with authority to settle is unavailable or unwilling to negotiate.
Non-Binding: Mediation is a non-binding process, hence either party can withdraw from the proceedings at any time. In litigation, the only party that can withdraw is the plaintiff, if they drop the suit. This means that even the party that is at fault, can withdraw if they are not happy with where the mediation process is headed. Similarly, the parties to the dispute are under no obligation to agree to the settlement. For making the outcome binding, the agreement requires the court’s sanction.

Matters in Which Mediation can be Used:

Marital Disputes
Labour Problems
Family Disputes
Business Disputes
Medical Negligence Cases
Environmental Disputes
Disputes between Advocates
Disputes Between Countries
Disputes Involving MNCs

Mediation is not recommended, where questions of law are
involved to be adjudicated by the Court, or in which offences of moral
turpitude and fraud are involved. Mediation is also not recommended,
when there is a serious imbalance between the positions of the parties, in
which fair negotiation is not possible.

Stages of Meditation:

Mediation is a informal multi-stage process designed to get results.

Stage-1: Selection of Mediation Centre:

Mediation begins when one or both disputants make contact with a mediation Centre. Although clie

Stage-2: Furnishing of Information and Correspondence:

The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Next, the mediator will define goals and protocol and set the guidelines and the time frame for the process.

Stage-3: Meeting of Parties:

In the mediation process, the mediator shall ensure that the parties and/or their counsel are present. There is no specific or prescribed seating arrangement.

Stage-4 Familiarizing Mediator with Facts About Dispute:

Each party is invited to describe the dispute and its consequences, financial and otherwise. Most often, the person (disputant) who requested the mediation session will go first. While one person is speaking, the other is not allowed to interrupt. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party.

Stage-5 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-6 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.

Stage-7 Gathering information:

The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator explores sensitive and embarrassing issues. The mediator distinguishes between positions taken by parties and the interests they seek to protect.

Stage-8 Facilitating Negotiation:

Mediator, helps the parties to communicate effectively and improve their mutual understanding. The mediator usually doesn’t bring the parties back together until a settlement is reached or the time allotted for the mediation ends. Mediator can also act to some extent as creative content providers for enriching the discussion.

Stage-9 Stage if Impasse:

Parties are encouraged to freely create possible options for agreement. Options that appear to be unworkable and impractical are also included. All ideas are written down so that they can be systematically examined later.

Stage-10 Termination of Mediation:

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. However, if negotiations fail and settlement cannot be reached the case is sent back to the referral Court.

Stage 10 Post Mediation:

If a settlement between the parties could not be reached, the case would be returned to the referral Court merely reporting “not settled”. The report will not assign any reason for non-settlement or fix responsibility on any one for the non-settlement.

Difference Between Arbitration and Mediation:

Arbitration	Mediation
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute.	Mediation a mode of dispute resolution and the facilitation of a negotiated agreement by a neutral third party called mediator who has no decision-making power without recourse to the court of law.
It is a formal process.	It is an informal process.
The arbitrator has decision making powers	Mediator has no decision making power.
Decision of arbitrator is binding on parties	Result of mediation is not binding on parties.
For start of arbitration there must be a pre-agreement between the parties.	For start of mediation pre-agreement is not necessary.
In an arbitration, the parties lose responsibility for and control over the dispute to the arbitrator.	In a mediation, the parties retain responsibility for and control over the dispute
Arbitration process is governed by law.	Mediation process is not governed by law.
There is no appeal against outcome of arbitration.	If parties are not satisfied they can go for litigation.
Arbitration is a rights-based procedure.	Mediation is an interest-based procedure.
In arbitration, a party’s task is to convince the arbitral tribunal of its case.	In a mediation the parties try to convince each other.

Difference between Mediation and Conciliation:

Mediation	Conciliation
Mediation is the process of resolving issues between party where third party assist them in resolving dispute	Conciliation is the process in which an expert is appointed to settle dispute between the parties.
It mainly refers to the code of civil procedure, 1908	It refers to the Arbitration and Conciliation Act, 1996
Confidentiality depends on trust	Confidentiality depends on extent by law.
Mediator acts as facilitator	Conciliator acts as facilitator and evaluator
There is an agreement between the parties	There is a settlement agreement between the parties.
mediation is enforceable by law if agreement is signed by both the parties.	It is executable as decree of Civil Court.

Conclusion:

Mediation is a voluntary, non-binding process. In litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In this type of dispute resolution system, the parties are free to choose an outcome which is capable of maintaining business relationships. It is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. At every stage of the process, parties are in control of the situation. If mediation fails then it helps in defining the facts and issues of the dispute for litigation.

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