This article is written by Shloka Rajpure, pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho), and Ruchika Mohapatra (Associate, LawSikho).
This article has been published by Shoronya Banerjee.
Alternate Dispute Resolution (ADR) is a legally permitted informal but structured means of settling disputes outside of the courtroom. This is a relatively new trend in India. With the increase in the number of cases filed every day, inordinate delays, and the increasing burden on courts, ADR in India is gaining more popularity. While courts follow complicated, rigid, and long procedures; ADR is more informal, flexible, and quick. The problem with taking a matter to litigation is that there has to be blame put on one of the parties and that blame has to be proved. Such a case can be exhausting for both parties as it is an expensive and lengthy process.
The main characteristics of mediation are that it provides; a voluntary, confidential, non-binding, and interest-based procedure. No decisions are imposed on the parties and it is at their discretion to accept the outcome. Parties wishing to avoid the glare of publicity can use mediation to keep their disputes confidential and personal. Out of all the methods of dispute resolution, mediation is the most preferable and convenient.
History of mediation in India
Mediation is an age-old practice in India dating back to the Vedic period. In Hinduism, a lot of significance is given to the elderly and their expertise, experience, and knowledge. Seeking their advice for family disputes has been a practice since time immemorial. A similar form of dispute resolution can be witnessed in the panchayat system.
Types of alternate dispute resolutions
There are four types of alternate dispute resolutions which are as follows-
It is a procedure in which one or more arbitrators are selected mutually by both the parties to whom the dispute is submitted. Their decision is final and binding. The administration of arbitration is in accordance with the procedure of an institution (tribunal).
Through direct or indirect communication the parties with conflicting views discuss the form of action to agree to resolve the dispute amicably. Negotiation is the first step towards solving an existing dispute before having any third-party involvement.
One party who initiates to resolve the dispute communicates to another party the subject matter of the dispute through a written agreement. When the other party agrees a conciliator is appointed. Two or more conciliators can be appointed if both parties agree to such a requirement. The advice given by the conciliator is non-binding on the parties.
It is the most informal way of dispute resolution. Two parties come together to appoint a mediator who is unbiased in facilitating dispute resolution amicably. This method is generally preferred in family and matrimonial disputes especially in divorce cases.
What is mediation?
Mediation is a private but structured method of dispute resolution. It is a voluntary process in which both the disputing parties come together to find a solution to their problem by entering into a written contract and appointing a mediator who assists parties in reaching an amicable settlement. A mediator can be of any designation and can be appointed either formally or informally. Contrary to conventional courts, the decision of the mediator is not imposable and the decision-making power rests in the disputing parties. Mediation provides the parties to express their emotions, interests, end goal, and opinions which are often not given importance in the conventional courts.
There are no fixed and rigid proceedings in alternate dispute resolution and mediation is the most flexible of all these methods making it the most desirable one. It is a party-centric and neutral procedure. Parties can withdraw from the procedure of mediation at any stage without stating any explanation. All the information and evidence presented during mediation is kept confidential thus outside parties do not have access to the mediation proceedings. Data given to the mediator cannot be used for any other purpose besides helping the mediator to reach an appropriate resolution. This ensures that nobody’s public image gets tarnished in the process.
One of the major advantages of mediation is that neither of the parties loses and the interests of both the parties are conserved. It is a win-win situation for both parties. The parties control the end result of the mediation and either party has the advantage of terminating the mediation without giving any reason.
Types of mediation
Court referred mediation
In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908 which empowers the court in matters where it appears to exist as a component of a settlement that would be acceptable to both parties, the Court shall articulate the terms of a possible settlement and refer the same for mediation for which procedure may be prescribed by the court itself. In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, Supreme Court held in reference to the matter of mediation that conciliation and arbitration are mandatory for court matters. This judgment has granted legal and social recognition to mediation as a dispute resolution in India. This type of mediation is often utilised in matrimonial and family disputes, particularly divorce cases.
In private mediation, a qualified mediator is appointed by the parties on a fixed-fee basis. Both the parties come together to resolve the issue amicably. A mediator can be of any designation and anyone can appoint them to resolve disputes through private mediation. It is a time-saving mechanism and gives various creative outcomes for parties to choose from. The decision of the mediator is not ultimate and hence not binding on the parties.
Advantages of mediation
Cost efficient and time saving
The cost incurred in the mediation process is nominal compared to judicial procedures. It is not mandatory to appoint legal counsels in mediation thus a huge cost is saved. There are no obligatory procedures like conventional courtrooms hence saving procedural cost fees. The dispute resolution process is quicker due to the least legal formalities and procedural flexibilities. A mediator has the liberty to consider those issues she/he deems significant to bring parties to the agreement, time-consuming evidence is generally avoided, thereby saving time and resources.
Flexible and creative solutions
There exists no set procedure for mediation thus providing parties access to a wide range of outcomes. Different mediators have different styles which are often amended as per the requirements of the specific case. The resolutions achieved by the process of mediation sometimes aren’t possible through arbitration or judicial procedures. Both the parties work together to resolve the dispute among themselves and are free to formulate customised solutions as per their requirements.
Confidentiality and privacy
All the information and evidence presented during mediation is kept confidential thus outside parties do not have access to the mediation proceedings. Data given to the mediator cannot be used for any other purpose besides helping the mediator to reach an appropriate resolution. In fact, there is such secrecy that there is unique confidentiality between one party and the mediator i.e. if one party provides information to the mediator, it can be kept confidential from the other party subject to specific conditions. Another significant benefit of mediation in India is that it is completely private and helps to protect the public image of the parties. Only the disputing parties and the appointed mediator is present during the process making it personal and private.
Restoration of relationship
In conventional court proceedings blame is put on one of the parties which is often detrimental to the relationship of the parties. The final decision of the court is imposed on both the parties and it can be undesirable because one party always loses. On the contrary in mediation parties alone are responsible for their own decision and can choose to not accept the final settlement brought about by this process. This helps parties to come to a solution peacefully and amicably. Even if the relationship between the parties was compromised due to existing issues it can be restored by the process of mediation as it upholds the interests of both parties.
Control and dominion
The parties can choose the time, location, and the duration of the proceedings giving parties a lot of control. Courts have their own schedule that is to be adhered to by everyone hence it is not as convenient. Contrary to the judicial system parties in mediation are not opponents but are collaborators striving to find a resolution that is mutually acceptable. One of the major advantages of mediation is that neither of the parties loses and the interests of both the parties are conserved. The parties control the end result of the mediation and either party has the advantage of terminating the mediation without giving any reason.
Mediation in India is gaining popularity as it is a low-cost, party-centric and neutral procedure. There is a need for dedicated law enacted to formalize the process of mediation. To have a better understanding of their rights parties can hire legal professionals specially trained in ADR to represent them and explain the situation in a professional way to the mediator. For all these benefits of mediation, in the coming future, it will be the most common method of dispute resolution especially in corporate affairs and family disputes.
- https://www.mediate.com/articles/mediation-in-india-articile.cfm#:~:text=One%20of%20the%20primary%20benefits,the%20parties%20personal%20and%20private.&text=A%20mediator’s%20role%20is%20both%20 facilitative%20and%20evaluative.
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