Mediation

  1. What is Mediation?

Ans. Mediation is used as a form of dispute resolution, known as Alternative Dispute Resolution. In mediation legal disputes are resolved between two or more parties where a neutral third person negotiates and settles the case outside the court of law. Mediation is thus, referred to as a party-centred process that emphasizes on the needs, rights, and interests of the parties involved.

2. Who is Mediator?

Ans. A mediator is a neutral third person who encourages those in the dispute to talk to each other about the issues. The mediator is not an advice-giver or decision-maker. The parties examine the real problems, large or small. They then create and agree upon an outcome that meets their needs and addresses their concerns.

Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. It depends on the mediator’s skill and training.

3. Which types of disputes is suitable for mediation?

Ans. Mediation is suitable for resolving a wide range of disputes including:Business and commercial

Partnership

Family matters

Labour disputes

Personal Injure

Industrial and Construction

4. What is the difference between Arbitration and Mediation?

Ans. In an arbitration, the arbitrator looks into the legal rights and wrongs of a dispute and makes a decision. Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not. It is very much like the way a court case is decided by a judge, except that the process does not take place in a court room, and it is not open to the public. As in a court case, there is usually a winning and a losing party in an arbitration.

In a mediation, the mediator, essentially, helps parties to settle their disputes by a process of discussion and narrowing differences. The mediator helps the parties to arrive at an agreed solution. He does not decide the dispute. A successful mediation results in an agreement signed by the parties, whereas a contested arbitration results in a decision by the arbitrator himself without the agreement of the parties. In a mediation, there is no such thing as a winning or losing party, because there is no binding decision without both parties agreeing to one.

5. Why should we choose Mediation over Arbitration?

ans. Nature – Arbitration is formal and it follows almost same procedures as in litigation but out of court. Whereas, Mediation is informal.

Elements- Arbitration needs facts and evidence. Mediation does not require any such evidence.

Expenses- Arbitration is Expensive. Mediation is less expensive.

Modus operandi- Arbitration is exercised very similar like litigation, besides, its proceeding has to be performed officially by following proper steps of arbitration including filing application, facts, evidence, witness, or any such relevant documents. Whereas, Mediation is entirely friendly and there is as such no defined process, it can be done in any friendly manner as per the convenience of the parties.

Time- Arbitration is time taking. Mediation is less time taking.

Regulating power- Arbitrators are the authority, very similar to judge and he she give decision based on the given facts, evidence and circumstances. Mediators assist parties to make their own decision, which should be beneficial to both the parties.

Result- In arbitration, result is win or loss one party wins and other loss. In mediation it is win-win situation so, result is mutually beneficial.

6. Ways in which mediation is classified?

ans. Statutory/Mandatory: According to law, there are certain disputes that require to be resolved through the process of mediation. For example, settling labour law and family law disputes require mediation. Section 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003acknowledges for mandatory mediation.

Court Ordered: When cases are filed in India, both parties are given the option to select from a list of ADRs and pursue them until and unless it is very essential to move to court. Most of the jurisdictions in India recommend some sort of alternative dispute resolution (ADR) before they come to the court of law for trial. This particular type can further be classified as:

Court-Annexed: Here, the services of mediation are provided by the court itself. It is the court that appoints the mediator, sets the lapsing date etc.

Court-Referred: Under this system of mediation, the courts job is very direct. It simply refers to the mediator available at that time.

Private: In this type of mediation, the mediators function independently, i.e. not appointed by the court. This implies that such services are given away on private, by means of money. Such services are provided by the Court qualified mediators or some general public etc.

Contractual: It is often found in civil contracts that in case there is any dispute among either party, then it shall be resolved through mediation instead of fighting legal suits. This is known as the mediation clause.

7. What is the procedure of Mediation?

Ans. Mediation is a voluntary process in which the mediator facilities the disputing parties. Mediation can be accommodated. Mediation gives the parties the opportunity to discuss the issues. The mediator helps the parties to agree on a mutually acceptable resolution. Mediation must is strictly confidential

8. What is the current scenario of Mediation in India?

Ans. The 129th Law Commission of India report suggests courts to refer disputes for mediation mandatorily.  The Supreme Court observed that all cases, which are related to commerce, trade, contracts, consumer disputes and even tortious accountability, could normally be mediated. The amendment to the Commercial Courts Act 2015 (Section 12A) in 2018, made it compulsory for parties to go through the restoration of pre-institution mediation under the act before instituting a suit. High Courts have their own individual set of regulations governing Mediation and Conciliation by the websites of several High Courts. There are amendments made in other acts to make mediation part in the procedure like Consumer protection Act, 2019, Real Estate (Regulation and Development) Act, 2016. Etc.

9. What is the scenario of Mediation in foreign countries?

Ans. Europe

The EU has adopted a Code of Conduct for Mediators and this is a very effective way forward.  A draft Directive on mediation was published in 2004, national attitudes, formulated by usage of the Civil Codes or Common Law, will determine the attitude of the respective judiciaries towards mediation usage in each of the member states of the EU.

Africa

In Lagos, Nigeria, CEDR has worked with the courts and a team of local people who wish to improve on current dispute resolution methods by speeding up and reducing the cost of the delivery of justice. In 2004 and 2005, a team of trainers has visited Lagos and Abuja to train mediators, train trainers locally and help to establish the Lagos-based mediation service. So effective has been the work done there that the Chief Justice of Nigeria has appointed a designated mediation High Court Judge (himself, now an accredited mediator) as well as agreeing to open up in each of the 33 national Court Centres the same Multi Door Courthouse system which is now operating in Lagos.

Asia

Singapore has become a serious player on the mediation scene, and other countries are developing a mediation capability. China is now a force to be reckoned with, not just for its economic growth and success, but because that very growth and success has generated the need to look outwards and to work in the style of their trading partners when trading relationships mean more than just a one-off deal.

10. Steps needed to promote mediation in India?

Ans. The public should be made aware of the benefits of mediation over traditional litigation. Mediation should be made easily accessible to the public at large. There is a need for Mediation Centres to have a good quality of infrastructure and a standard figure or pattern to make the parties feel comfortable. Inducements and remembrance to lawyers to enlighten the parties about the internal proceedings in the mediation process to make such notified choices. Exorbitant ethical standards (ethical code and code of conduct) to be obeyed.

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