MEDIATION - A DISPUTE RESOLUTION PROCESS
Author- Shikha Chandlekar
This article discusses the importance of Mediation as a dispute resolution mechanism vis-à-vis the Mediation Bill, 2021 and its impact.
Disputes are inescapable in every business and every dispute has three facet- people, process and problem. To have a dispute is not an issue but the important aspect is that how the parties would handle that dispute. Alternate dispute resolution (ADR) is a method by which voters settle disagreements outside the conventional Court of law. In India, modes of ADR include Arbitration, Negotiation, Mediation, and Lok Adalats.
Mediation is a voluntary attempt to settle a legal dispute through active participation of an independent third party / parties (mediator / mediators). Mediation is an easy-going, people friendly, less complicated process that allows the parties to communicate with each other to resolve the principal cause of their conflict. A mediator is a person with tolerance, persistence and native wit. She/he has an arsenal of negotiation techniques and powers of effective listening, articulation and restatement.A mediator does not thrust a solution on the parties but works to find points of agreement and make those in conflict agree on a fair ground.
Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation rights, etc) and is often ordered by the Courts in such cases. Mediation also has become more recurrent in contract and civil damage disputes. Mediation in India may be: (i) Court referred, (ii) private, or (iii) as provided under a specific statute. Mediation takes place in private ADR centres or mediation centres, even at centres set up by Courts or tribunals. The pecuniary cost of Mediation is less than the cost of Litigation in a Court and may achieve an early settlement and an end to worry.
In India, the philosophy of mediation is historic and deeply ingrained. From Lord Krishna mediating between the Kauravas and Pandavas in the Mahabharata through family elders resolving domestic differences to Gram panchayat resolving community disputes, there exists a strong culture of mediation in India. With the passage of time, certain statutes came into existence to provide mediation as a mode of settlement of disputes between the parties. India being a signatory to the United Nations Convention on International Settlement Agreements Resulting from Singapore Mediation Convention gives mediation settlements the force of law.
The Mediation Bill, 2021 seeks to promote mediation, particularly institutional mediation, and provide an apparatus for enforcing mediated settlement agreements. Reasons as to why mediation should be resorted to as a means of dispute resolution as against the traditional mode of litigation are:
- Mediation is pocket friendly.
- Mediation is fair and impartial.
- Mediation saves time.
- Mediation is privileged.
- Mediation avoids litigation.
- Mediation promotes cooperation.
- Mediation picks out underlying issues.
- Mediation allows distinctive solutions.
The mediator’s affair is to help the disputants resolve the problem through a procedure that encourages each side to:
- Identify the strengths and weaknesses of their case
- Understand that “accepting less than expected” is an attribute of a fair settlement, and
- Agree on a satisfactory solution.
That does not mean that the merits of the case aren’t factored into the analysis—they are. The mediator will evaluate the case and highlight the weaknesses of both the parties, and nothing will be concluded unless both the parties say yes to it. Mediation is a multi-stage procedure with the aim of reaching positive outcomes. It is informal, unlike a Court driven litigation or an arbitration, but there are distinct stages to the process that account for the system’s high rate of success. The duration it will take to solve the problem will depend on the complexity of the case. Somewhat uncomplicated cases will resolve in half a day or so. More complicated cases will acquire a full day or more of mediation sessions, followed by several settlement negotiations. If the mediation fails to reach to a joint conclusion, either party has the liberty to file a lawsuit or continue pursuing the Mediation. Mediation proceedings are confidential, and are concluded within 180 days (may be extended by 180 days by the parties). A party may withdraw from mediation after two sessions of it. Most mediations proceed as follows:
Stage 1: Mediator’s foreword;
Stage 2: Disputants’ foreword;
Stage 3: Joint Session;
Stage 4: Private caucuses (separate sessions);
Stage 5: Joint negotiation;
Stage 6: Closure.
The objective of these stages is to manifest neutrality, to spread awareness about the process, develop empathy with the parties, gain confidence and trust of the parties, establish an environment that is conducive to constructive negotiations, motivate the parties for a polite settlement of the dispute and establish control over the process. As per data published by the National Legal Services Authority for the year 2021-22, India had 397 functional ADR centres, 570 mediation centres, 16,565 mediators, and nearly 53,000 cases were settled through mediation.
On analysing the aforesaid, one cannot deny that India does not have provisions concerning mediation. Even though various statutes have given the parties the liberty to get their disputes resolved via mediation and there also exists Court referred as well as private means of engaging in mediation, there is a lack of procedural guidance in this regard. In order to take the mediation ahead and utilise the same, it is important to spread its awareness amongst the voters. Many interrelations can be saved via mediation and also the burden of cases upon the Courts will reduce.
It has been rightly quoted by Abraham Lincoln,[1]
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
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