INTRODUCTION: Mediation is a centuries-old method of resolving conflicts that have been used since the Vedic period. It is low-cost, and it keeps things, particularly family matters, confidential between three parties, two parties, and the mediator. Furthermore, the solution is not imposed on any party; it is a compromise reached by both parties. As a result, it provides an effective answer that is also serene.
ADR (Alternative Dispute Resolution) is a relatively new practice in India for resolving disputes. In India, the mediation process is an age-old mechanism for resolving disputes that date back to the Vedic period. It benefits both parties: the courts are less overburdened with cases, and the parties are able to resolve their disputes more quickly, with fewer difficulties, and in a more efficient manner. As a result, mediation has been given a prominent place in Indian law.
The difference between going through the lawsuit process and going through the mediation process in India is that in litigation, there is a blame game, and the blames must be developed in order for the Court to provide a remedy; in Indian mediation, the matter is resolved through negotiation, where the remedy is aimed with the parties’ consent after considering both sides’ expectations.
Arbitration, conciliation, negotiation, and mediation are the different kinds of alternative conflict resolution in India. Among the three processes, mediation is the most common in India.
WHAT IS MEDIATION?: In India, mediation is a voluntary process in which disputing parties agree to work together to solve their legal problem by signing a written contract and choosing a mediator. The conflicting parties retain decision-making authority, with the mediator serving as a buffer to help them reach an agreement. The parties might retain ADR lawyers to represent them in front of the mediator and provide a professional explanation of the situation.
The main distinction between arbitration and mediation is that arbitration is a more official process. An arbitrator must be formally appointed either ahead of time or on the spot. A mediator can be anyone, with any title, and can be appointed formally or informally, depending on the parties’ wishes. In India, the mediation law has been made more user-friendly and flexible.
Mediation in India is separated into two types, both of which are widely used:
1.) Court referred Mediation– A court may refer a pending matter to India for mediation under Section 89 of the Code of Civil Procedure, 1908. In matrimonial issues, particularly divorce cases, this sort of mediation is widely used.
2.) Private Mediation– Qualified professionals operate as mediators on a fixed-fee basis in Private Mediation. Anyone, including courts, the general public, corporations, and the government sector, can choose mediators to resolve their dispute through mediation.
PROCESS OF MEDIATION IN INDIA: Most people choose mediation to amicably address the legal issues of their own volition, making mediation in India a party-centric and neutral process. A third party, a mediator, is recruited to guide the parties toward an amicable resolution of their differences. Mediation is a type of structured dialogue and discussion in which parties, with the help of a mediator, present their difficulties and potential solutions to one other. The individual can be anyone the parties choose or an ADR lawyer that the parties agree on.
Following that, the mediator supports them in reaching an agreement depending on the terms they have consented to. Because mediation is a voluntary process in which the parties retain all rights and powers, any party can leave at any time without giving a reason.
Mediation encourages parties to actively and directly participate in dispute resolution by explaining the facts of their issue, laying forth options or ways to resolve the problem, and reaching a final conclusion by reaching an agreement. In India, the mediation process follows all of the normal rules of evidence, including witness questioning and cross-examination. You can discuss with your ADR lawyer how you can put out your expectations and negotiate with the opposing party to learn about all of your legal rights regarding the matter.
Mediation is a completely private technique of dispute settlement in India, which is one of its main advantages. Only the disputing parties and the mediator are involved, keeping the parties’ personal and private affairs private. The mediator is a neutral and unbiased third person who assists the parties in reaching their own agreement. In India, all remarks made during the mediation process cannot be used in legal actions or anywhere else without the written approval of all parties.
In India, the mediator collaborates with the parties to facilitate the conflict resolution mediation process, rather than adjudicating a dispute by imposing a conclusion on them. A mediator’s duty is both facilitative and evaluative. When a mediator manages the relationship between the parties, encourages and promotes communication between them, manages interruptions and outbursts from them, and motivates them to reach an amicable agreement, he is said to be facilitating.
Either information provided by any party, as well as any document made or presented, is inadmissible and sealed during the mediation process in India. Any admission made during mediation cannot be used in a subsequent court proceeding, and any information given to the mediator cannot be shared with the other party unless the other party expressly authorizes it. The mediator will not be called as a witness in any court case and will not be able to provide any information about the procedures.
Mediation has been successfully employed in divorce disputes and corporate matters to find a quick solution that is not only time-saving and cost-effective but also keeps the entire dispute resolution process confidential. In India, the mediation procedure is flexible since it helps conflicting parties reach a peaceful agreement while also lowering the weight of pending cases in the courts.
EFFECTIVENESS OF MEDIATION: Even the court has assigned cases to mediation since it is a simpler and faster way to reach a resolution. The most popular technique of mediation in India is divorce mediation. Mediation in divorce proceedings, property lawsuits, and family matters helps to keep the situation private between the parties, rather than bringing it to the attention of the public, and to seek a settlement while maintaining the peace.
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