Concept of Mediation in India

Mediation is an age old process of dispute resolution practiced since vedic period.It is a low cost, keeping the matters, especially family matters secret among three parties, two parties & the mediator. Moreover, the solution is not imposed in any party, it is a solution that both the parties agreed to. It, thus gives an effective solution in a peaceful manner.

Alternative Dispute Resolution method of resolving disputes is relatively new trend in India. The mediation process in India is not a newly invented procedure for dispute redressal, it is an age old process since vedic period. It is beneficial for both the sides – the courts are being a bit less burdened with cases, and the parties are getting their issue resolved quickly with less hassles & in a smoother way. Thus, there has been made an important position for mediation in Indian Law.

The difference between taking a matter to litigation and taking it for a mediation process, is that in litigation, there is a blame game & the blames are to be proved, depending that the court should give the solution; & in Indian mediation, the matter gets resolved through negotiation, where the solution is sought through consent of the parties after considering the demands of both the sides.

The alternate dispute resolution India consist following types of ADR in India-

  • Arbitration
  • Conciliation
  • Negotiation
  • Mediation

Mediation in India is the most popular among all the three processes.

                                           WHAT IS MEDIATION ?

Mediation in India is a voluntary process where the disputing people decide to mutually find a solution to their legal problem by entering into a written contract & appointing a mediator. The decision – making powers remain with the disputing parties, with the mediator acting as a buffer to bring them an understanding. The parties can hire ADR lawyers to represent them before the mediator & explain the situation in a professional way. The difference between arbitration & mediation is that arbitration is a more formal process than mediation. An arbitrator needs to be formally appointed either beforehand or at the time of need. A mediator can be anyone, can be appointed formally or casually depend upon the wish of the parties. The mediation law in India has been made user friendly & pretty flexible.

Mediation India are divided into two categories which are commonly followed:

  1. Court referred mediation

The court may refer a pending case for mediation in India u/s 89 of the CPC 1908. This type of mediation if frequently used in Matrimonial disputes, particularly divorce cases.

  • Private Mediation

In pri. Mediation, qualified personnel works as mediators on a fixed-fee basis. Anyone from courts, to the gen public, to corporate as well as the gov sector, can appoint mediator to resolve their dispute through mediation.

                   PROCESS OF MEDIATION IN INDIA

In most cases, people voluntarily opt for mediation to mutually resolve their legal issue, making mediation in India a party –centric & neutral process. A third party i.e. a mediator is appointed who acts unbiasly in directing the parties to amicably resolve their issues. Mediation employs structured communication & negotiation where people put their issues & solutions for them in front of each other with the help of a mediator. The person can be anyone the parties have chosen, or an ADR lawyer agreed on by the parties.

The mediator then helps then to reach a conclusion based on their agreed upon terms. As it is a voluntary process & the parties retain all the rights &powers, any party can withdraw from the process of mediation at any phase without stating a reason.

Mediation encourages the parties to participate in dispute resolution actively & directly whereby they explain the facts of their dispute, lay down option or ways to resolve the dispute and make a final decision by coming to a settlement. The mediation process in India follows all the gen rules of evidence & examination & cross-examination of witnesses. To know all the legal rights you have over the issue, you can discuss with your ADR lawyer how you can put up your demands & negotiate with the other parties.

One of the benefits of mediation in India is that it is completely pvt method of disputes resolution. Only the disputing parties & the mediator are involved, making the affairs of the parties personal and private. The mediator is an impartial & independent third party, who helps the parties in finding their own solution. All statements made during the process of mediation in India cannot be disclosed in civil proceedings or any other place without the prior consent of all parties in writing.

In mediation in India the mediator works together with parties to facilitate the dispute resolution mediation process &does not adjudicate a dispute by imposing a decision upon the party. The mediator’s role is both facilitative & evaluative. A mediator facilitates when he manages the interaction between the parties, encourages & promote communication between them & manages interruption& outburst by them & motivate them to arrive at amicable settlement.

Process of mediation in India is completely confidential as any info furnished by any party & a document prepared or submitted is inadmissible & sealed. Any admission made during mediation cannot be used in any other court case & any info provided to the mediator cannot be disclosed to the other party unless the other party specifically permits the mediator to do so. The mediator cannot be called as a witness to testify in any court case and cannot disclose any info related to the proceedings.

Mediation as an ADR process has been effectively used in matrimonial dispute and corp affairs to find a prompt solution which is not only time saving & cost effective but also keeps the entire dispute resolution process pvt. The process of mediation in India is flexible as it works to-ways by helping disputing parties to mutually resolve their issue and reducing the burden of pending cases on the court

STEPS IN THE MEDIATION PROCESS

Whenever any case is to be sent to mediation, the following steps are followed-

Step 1: convening the Mediation Process

The convening of the mediation is often the most difficulty & challenging part of the mediation process. It involves a varied range of procedures-

  • Reference to ADR by the court

The court is required to direct the parties to opt for any five modes of alternative dispute resolution & refer the case to the arbitration, conciliation, judicial settlement, Lok Adalat or mediation u/s 89 & & order X rule 1A of CPC, 1908.

The court must consider the option exercised by the parties & the suitability of the particular case for the option chosen. The judge making the reference, known as the referral judge, is required to acquaint himself with the facts & the nature of the dispute, & objectively asses the suitability of ADR.

This appropriate stage for making the reference in civil cases is after the completion of pleadings & before framing the issues, while in cases pertaining the family law, the appropriate time for making the reference would be immediately after service of notice on the respondent & before the filing of objection/WS by the respondent

Even if the court did not refer the cases to ADR at these times, nothing prevents it from referring to it at a later stage

  • Preparation for mediation

The referral judge then has the crucial job of bringing the parties together & motivating them to resolving their disputes through mediation. This involves finding the reasons for any disinclination on behalf of the parties to enter into mediation along with explaining the concept, process & advantages of mediation.

While the consent of parties is required for mediation the court can also apply external pressure to induce the parties to enter the mediation, to the extent of ordering & forcing them to do so.

  • Referral order

A referral order issued by the referral judge initiate the process of mediation & the foundation of court referred mediation. An ideal referral order contains detail like name of the referral judge, case no, name of the parties , date & year of the institution of the case , stage of trail, nature of the dispute , the statutory provision under which the reference is made, next date of hearing before the referral court whether the parties have consented for mediation, name of the institution/mediator to whom the cases is referred for mediation, the date & time for the parties to report before the institution/mediator, the time limit for completing the mediation, quantum of fee/remuneration if payable & contact address & telephone no of the parties & their advocates.

Step 2: Initiation of the Mediation Process

The mediator has to ensure that the parties and their counsels are present at the commencement of the mediation process.

                           Introduction & opening statement

 Introduction

  • The mediator gives an introduction with his qualification, establishes his neutrality & reposes faith in the mediation process.
  • The mediator request the parties to introduce themselves, attempt to develop a rapport with them & gain their confidence & trust.
  • The motive is to create a constructive environment conducive to negotiation & motive the parties for a amicable resolution of disputes.
  • The mediator establishes a control over mediation process.
  • There is no standard set of rules that have to be followed, making the mediation process flexible.

Opening Statements

  • The mediator’s opening statement is intended to explain the parties-

       The concepts, processes & stages of mediation,

         The role of the mediator, advocates & parties &

        The advantages & ground rules of mediation.

  • The mediator confirms that the parties had understood the process & gives them the opportunity to clarify any doubts.
  • Statements are also sought from the negotiators. The parties articulate their positions, enabling the other party to understand what they want.
  • This is followed by a restatement of a problem by the mediator where an attempt is made to incorporate the differing perspective.

Step 3: Setting the Agenda

  • Setting the agenda is an important duty imparted on the mediator in order to shed clarity in the mediation process & remove the vagueness.
  • It involves setting down the order in which negotiation is to be proceed & gives a parties a standard using which they can individually evaluate the progress of the negotiation.
  • The mediator may mention the time & venues for the negotiation sessions, alon with the issues before the parties, to be discussed sequentially.

Step 4: Reaching a settlement

  • By helping parties to understand the reality of their situation & give up a rigid positions, the mediator creates creative option for settlement.
  • The mediator can conduct as many separate sessions as necessary & may even conduct sessions with groups on the same side with diverging interest.
  • The parties negotiate through the mediator until a solution mutually accepted to all the parties involved. The mediator directs the parties involved. The mediator directs the parties to a solution which he believes will satisfy the underlying interest of the parties.
  • In case negotiation fails, the case is sent back to the referral court.

                      ADVANTAGES OF MEDIATION

  • Control in the hand of parties
  • Consent- based work
  • Participation of all the parties
  • Economically feasible
  • Confidentiality of the facts
  • Conducive to dispute resolution
  • Mutuality of work
  • Support by mediator
  • Finality
  • Refund of court fees

                                                DISADVANTAGES OF MEDIATION

  • Informality
  • Unfairness
  • Success not guaranteed

At times, even the court referred mediation, as it is & easier & quicker process to get a resolution. Specially the divorce mediation in India is most common method of mediation. The mediation in divorce cases, property cases, family matters, help to keep the matter limited to the parties only, & does not bring it before public, and reach to a solution maintain peace.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

                                          

      

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