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Mediation As An Appropriate Dispute Resolution

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 examined in Salem Advocate Bar Association v. Union of India[1] (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.[2]

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.”[3]

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.[4]It is perhaps the best way to part ways amicably and brings closure to the conflict.

Fundamental Rules Of Mediation Are As Follows:[5]

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 party.

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.

3. Confidentiality: 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.[6]

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 through mediation.

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.[8]

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.

[1](2005) 6 S.C.C. 344
[2](2010) 8 S.C.C. 24
[3]Sukumar Ray, Alternate Dispute Resolution Along With The Gram Nyayalayas Act 72 (Eastern Law House 2012).
[4]1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 12 (2010).
[5]1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 12-13 (2010).
[6]Salem Advocates Bar Association v. Union of India, A.I.R. 2005 S.C. 3353.
[7]1 Dr. Aman Hingorani, All India Bar Examination: Preparatory Materials 13-14 (2010).
[8] Mediation as an ADR, Shodhganga (July 04, 2018, 4:55 PM)

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