The justice delivery system in India is known for the huge pendency of cases
resulting in undue delay. And ‘justice delayed is justice denied’. The way
forward to reduce the burden may be taking recourse to ADR mechanism – commonly
understood to be Alternative Dispute Resolution, but more recently as
Appropriate Dispute Resolution. These mechanisms could be adversarial like
arbitration or non-adversarial like mediation and conciliation. The Code of
Civil Procedure (Amendment) Act of 1999 inserted Section 89 in the Code of Civil
procedure 1908, providing for reference of cases pending in the courts to the
various ADR mechanisms specified therein.
Non-adversarial ADR mechanisms like mediation are less formal, people-friendly,
less complicated and allow the disputant parties to freely interact and
communicate with each other to understand the root cause of their conflict,
identifying their underlying interests, and helps them focus on finding out the
solution themselves. Such an approach rebuilds relationships as also saves the
time and money both the parties would spend in litigation.
While there is no stand-alone statute on mediation, the Supreme Court has
Salem Advocate Bar Association v. Union of India (Salem II) the
meaning and scope of mediation, and has formulated the Model Civil Procedure
Mediation Rules to be framed by the High Courts. Another judgment clarifying the
law on mediation is that of
Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd.
Mediation And Brief Concept Of Mediation:
According to Black Law Dictionary, “Mediation is a method of non-binding dispute
resolution involving a neutral third-party who tries to help the disputing
parties reach a neutrally agreeable solution.”
Mediation is a voluntary, party-centred, non-binding, confidential, and
structured process, where a rational and neutral third party, who possesses
special communication, negotiation, social and interactive skills to facilitate
a mutual settlement between the disputant parties. In mediation, the parties
settle their disputes themselves on mutually agreed terms, leading to a win-win
situation. The approach in mediation is not to see the guilt or innocence of the
disputant parties, but to help the parties to focus on their interests and
priorities. Mediation promotes active and direct participation of the parties.
The function of the mediator is mainly that of a facilitator.
Mediation is a confidential process and whatever transpires in the mediation is
not subject to disclosure without the written consent of all the
disputant-parties. The mediator cannot be called to the court or be asked to
testify any of the proceedings or reveal any discussion that took place during
mediation. The statements made during mediation process cannot be leaked. In
India, mediation is still primarily Court-annexed. If a settlement is reached in
a Court-annexed mediation, then the mediator, or parties with the assistance of
the mediator, frames the settlement agreement, which is duly signed by the
parties and the mediator and then sent to the Court for passing of an
appropriate order. In
Salem Advocate Bar Association v. Union of India
(2005) 6 Supreme Court Cases 344, the Supreme Court construed Clause (d) of
Section 89 (2) of Code of Civil Procedure to mean that when the mediation
succeeds and the agreement is made on the consensus of both the parties, the
mediator will send the report of settlement agreement to the Court for the
Court, after giving notice and hearing the parties, to give effect to the
compromise and pass a decree in accordance with the terms of settlement accepted
by the parties.
Should there be no settlement, the mediator sends a report to the Court stating
that the mediation was “not settled”, the reason for such non-settlement is not
mentioned by the mediator. Thus, mediation is a people-friendly, effective,
efficient, less expensive, time saving, less stressful and convenient process to
resolve disputes with mutual respect and without painting the other party black.
The focus in mediation is on the future, with an emphasis on building
relationships, rather than fixing the blame for what has happened in the
past.It is perhaps the best way to part ways amicably and brings closure to
Fundamental Rules Of Mediation Are As Follows:
1. A neutral mediator to conduct the mediation:
A mediator should always
be neutral, having no personal or monetary interest in the dispute, or in either
2. Self-determination of the parties:
Mediation is a process that is
based on the self-determination of disputant parties that is to say that the
parties can make free choices keeping their interest in mind. The mediator is
thus responsible to conduct the process whereas the parties determine the
outcome of the settlement.
The very essence of mediation is its confidentiality.
The mediator should take note:
ØThat she and the parties shall maintain confidentiality in all the matters
relating to the mediation proceedings. The confidentiality shall extend to the
settlement agreement, unless there is a necessity for the disclosure in order to
implement and enforce it.
ØThat it is not legally permissible for her, unless otherwise agreed to by the
parties, to act as an arbitrator or witness in any arbitral or judicial
proceeding with respect to the dispute which is the subject matter of mediation
proceedings and the parties are also not allowed to introduce such evidence.
ØThat the only information regarding the behavior of the parties might be
reported is: whether the parties appeared at a scheduled mediation and whether
or not they reached a solution.
4. Fairness of process:
The mediation process should be a fair one. The
parties should be treated fairly and not arbitrarily and that their concerns
should be addressed properly.
5. Voluntary process:
The mediation process is impossible without the
consent of the parties involved. The parties are bound once they sign the
settlement arrived at during mediation.
Approach Of The Mediator:
The mediator is an essential ingredient of a successful mediation. Mediator must
be neutral, and must be able to understand the underlying issues arising in
conflict between the parties to assist them in arriving at a mutual and
voluntary agreement. A mediator should endeavour to establish a channel between
the disputant parties and facilitate the communication process between the
parties and during this process the mediator should use language that is
mutually applicable. The mediator should use simple words so that both the
parties can easily comprehend. The mediator should have appropriate posture, a
calm-tone and moderate behavior while dealing with the parties. The mediator
should also take into notice the seating arrangement, so as to ensure proximity,
eye contact and audibility. As the mediator controls the process, she should
insist on decorum and order should the parties develop any heated argument or
starts losing their temper.
Under Rule 16 of Model Civil Procedure Mediation Rules, the role of a mediator
is mentioned. It states that the mediator shall attempt to facilitate voluntary
resolution of the dispute by the parties, and communicate the view of each party
to the other, assist them in identifying issues, reducing misunderstandings,
clarifying priorities, exploring areas of compromise and generating options in
an attempt to solve the dispute, emphasizing that it is the responsibility of
the parties to take decision which effect them; he shall not impose any terms of
settlement on the parties. While Rule 12 provides that the mediator is not bound
by the Evidence Act, 1872 and the Code, but should be guided by principles of
fairness and justice, having regard to the rights and obligations of the
parties, usages of trade, if any, and the nature of the dispute.
Mediation- Step By Step:
The following stages and sessions are to be followed in mediation:
1. Opening Statement-
The mediator commences the session with an opening
statement. It should be a simple one using lucid language. Through this stage
the mediator opens the channel of communication between the disputant parties.
Here the mediator takes the responsibility to make the participating parties
understand the very essence of mediation, give a brief idea about the sessions
and stages that needs to be followed, provide a roadmap of the session, assure
the parties about the confidentiality of mediation and also explains her role as
a mediator and highlights the non-adversarial aspect of mediation process like
the absence of recording of evidence or their statements.
2. The Opening Statement is followed by the following stages:
i. Problem Understanding Stage
ii. Needs and interests understanding stage
iii. Problem defining stage
iv. Issues identification stage
v. Options identification stage
vi. Options evaluation stage
vii. Ending mediation
Unlike litigation or arbitration, it is permissible for a mediator to speak to
either party in a private session, also known as a caucus. The mediator can
choose to conduct the various stages of mediation listed above in private
sessions as well as in joint sessions as per requirement.
It may also be emphasized that every kind of case is not suitable or appropriate
for mediation Cases involving, for instance, questions of Constitutional Law and
heinous crimes which cannot be mediated. Mediation is more appropriate for cases
relating to matrimonial disputes, custody and maintenance disputes, contractual
breach, real estate disputes etc. Also, a case must be ‘ripe’ for the parties to
have a consensual mindset to reach a settlement. Certain cases can therefore be
more appropriately resolved through litigation or arbitration and certain kinds
Mediation: A Way Forward
This paper has dealt with mediation, meaning and concept, rules of mediation,
approach of a mediator and stages of mediation. The importance of mediation as
an ADR way has gain much importance and significance in the recent times. It
may, however, be noted here that as per the Souvenir- National Conference on
Mediation 2012 by Mediation & Conciliation Project Committee, Supreme Court of
India, New Delhi, the success of mediation and its acceptance varies across the
country. The Souvenir gives the statistical number of mediation activities
carried on various states as on 12thMarch, 2012, showing the highest success
rate of mediation is 73.41% in Delhi and lowest being in the state of Goa.
In order to take mediation ahead and use it in the best possible manner, it is
imperative to spread its awareness amongst the public. More crucially, those
engaged in mediation must acquire mediation skills in a scientific and
structures manner. Law students must be exposed to mediation skills training at
the University level itself. Lawyers or other professionals who wish to mediate
must undergo continuing professional development courses to hone their mediation
skills. It is only if those from a legal background have a crystal clear
knowledge about mediation that they can inform and guide their client to avail
of the benefits of mediation. Many relationships can be saved through mediation
and also the burden of cases upon the Courts will reduce. Encouraging, mediation
as an Appropriate Dispute Resolution mechanism may well be the way forward for
ensuring speedy delivery of justice.
(2005) 6 S.C.C. 344
(2010) 8 S.C.C. 24
Sukumar Ray, Alternate Dispute Resolution Along With The Gram Nyayalayas Act
72 (Eastern Law House 2012).
1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 12
1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 12-13
Salem Advocates Bar Association v. Union of India, A.I.R. 2005 S.C. 3353.
1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 13-14
 Mediation as an ADR, Shodhganga (July 04, 2018, 4:55 PM) http://shodhganga.inflibnet.ac.in/bitstream/10603/44117/10/10_chapter%204.pdf