In this article, Akanksha Mathur of National Law University, Delhi discusses the procedure to go for mediation and the issues one should be aware of before going for it.

With changing times, an increasing number of people are resorting to alternative methods of dispute resolution such as mediation in order to resolve their issues.

What is Mediation?

Mediation is an alternative method of resolving disputes without resorting to the courts. It is a structured, voluntary and interactive negotiation process where a neutral third-party uses specialized communication and negotiation techniques to help the parties in fulfilling their stated objectives. As a party-centred process, it focuses on the interests, needs and rights of the parties.

Laws Governing Mediation in India

Mediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947.

In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to alternative dispute resolution (ADR) methods to settle pending disputes.

Under this, consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.

Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r. 5(f)(iii). These allow the court to refer cases for mediation even when the parties are not ready for reference for mediation if there is an element of settlement.

Types of Mediation

Mediation is of many kinds-

• Statutory/Mandatory

There are some kinds of disputes that are required by law to be subjected to the mediation process, such as disputes in labour and family law. In India, r. 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare.

• Court Ordered

Some sort of alternative dispute resolution is required by most jurisdictions in India before resolution through the judicial process. As soon as a case is filed, the parties are provided with a number of ADR options out of which they must select and pursue one unless exempted by the court.  

1. Court-Annexed

   Under Court-Annexed Mediation, the mediation services are provided by the court as part of the judicial system.

   The Court maintains a list of skilled and experienced mediators who are available to the parties. The Court appoints a mediator and sets a date by when the mediation must be completed. The results of the mediation are confidential, and any agreement reached is enforceable as a judgement of the court.

   Since the case is referred to a court-annexed mediation service, the overall supervision is kept on the process and there is no feeling of abandonment by the system. The litigants, lawyers and judges become participants in the system and it is felt that the settlement is achieved by all the actors in the justice delivery system.

   The same lawyers who appeared in the case represent their clients before a mediator and the litigants are also allowed to participate. The popular acceptance for mediation also improves as it is the integral and impartial court-system which is seen as extending an additional service. The dispensation of justice thus becomes well-coordinated.

2. Court-Referred

Under Court-Referred Mediation, the court merely refers the matter to a mediator.

• Private

In private mediation, mediation services are offered on a private, monetary basis by qualified mediators to the Court, general public, and the commercial and governmental sectors for dispute resolution through mediation. Recourse may also be taken to private mediation in pending cases or pre-litigation disputes.

Contractual

1. Parties to a contract may include a mediation clause to resolve disputes as part of the terms of their agreement as it can effectively resolve contractual disputes before they turn into a protracted legal battle. The conditions of the mediation and the selection of the mediator are mentioned in the contract. The results of the mediation may be enforced as judgements of a court.
2. VoluntaryParties to a dispute may also decide to seek mediation off their own accord, without being compelled by the law, the court or a contract. This can be done at any time and is controlled by the parties.

Cases Suited for ADR

In Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors., the Supreme Court laid down guidelines pertaining to the kind of cases that would be eligible for ADR and those not. It ruled that the following nature of cases would be considered unsuitable for ADR-

1. Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court.
2. Disputes relating to election to public offices.
3. Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.
4. Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.
5. Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government.
6. Cases involving prosecution for criminal offences.

All other civil suits and cases were to be considered suitable for ADR, such as-

1. All cases relating to trade, commerce and contracts, including-

• Disputes arising out of contracts (including all money claims);
• Disputes relating to specific performance;
• Disputes between suppliers and customers;
• Disputes between bankers and customers;
• Disputes between developers/builders and customers;
• Disputes between landlords and tenants/licensor and licensees;
• Disputes between insurer and insured;

All cases arising from strained or soured relationships, including-

• Disputes relating to matrimonial causes, maintenance, custody of children;
• Disputes relating to partition/division among family members/co-parceners/co-owners;
• Disputes relating to partnership among partners.

All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including-

• Disputes between neighbours (relating to encroachments, nuisance etc.);
• Disputes between employers and employees;
• Disputes among members of societies/associations/Apartment owners Associations;

All cases relating to tortious liability including

• claims for compensation in motor accidents/other accidents;

All consumer disputes including

• Disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or `product popularity.

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 difficult and 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 of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation under Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908. 

The Court must consider the option exercised by the parties and 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 and the nature of the dispute, and objectively assess the suitability of ADR.

This appropriate stage for making the reference in civil cases is after the completion of pleadings and before framing the issues, while in cases pertaining to family law, the appropriate time for making the reference would be immediately after service of notice on the respondent and before the filing of objections/written statements 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 and motivating them to resolve 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 and 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 or forcing them to do so.

• Referral Order

A referral order issued by the referral judge initiates the process of mediation and s the foundation of a court-referred mediation. An ideal referral order contains details like name of the referral judge, case number, name of the parties, date and year of institution of the case, stage of trial, 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 case is referred for mediation, the date and time for the parties to report before the institution/ mediator, the time limit for completing the mediation, quantum of fee/remuneration if payable and contact address and telephone numbers of the parties and 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 and Opening Statement

Introduction

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

Opening Statements

• The mediator’s opening statement is intended to explain to the parties-
  • the concepts, processes and stages of mediation,
  • the role of the mediator, advocates and parties and
  • the advantages and ground rules of mediation.

• The mediator confirms that the parties have understood the process and gives them the opportunity to get any doubts clarified.
• 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 the problem by the mediator where an attempt is made to incorporate the differing perspectives.

Step 3: Setting the Agenda

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

Step 4: Facilitation of Negotiation and Generation of Options

Joint Session

The purpose of the joint session is to gather information.

• The mediator provides an opportunity for the parties to hear and understand each other’s perspectives, relationships and feelings.
• The petitioner is allowed to explain their case in their own words, followed by the presentation of the case by their counsel and the statement of the legal issues. Similarly, the defendant is allowed to explain their case, followed by the presentation of the case and statement of the legal issues involved by the defendant’s counsel.
• The mediator attempts to understand the facts, issues, obstacles and possibilities and ensures that each participant feels heard.
• The mediator encourages communication and asks questions to elicit information.
• At the completion of the joint session, the mediator may also suggest meeting each party with their counsel separately.

Separate Sessions

• The separate sessions are meant for the mediator to understand the dispute at a deeper level.
• It provides the parties with a forum to further vent their feelings and disclose confidential information they do not wish to share with the other parties.
• It helps the mediator to understand the underlying interests of the parties, the positions taken by them and the reasons for these positions, identify areas of dispute, differential priorities and common interests, and to shift the parties to a mood of finding mutually-acceptable solutions.
• The mediator is supposed to reaffirm confidentiality, gather further information and challenge and test the perceptions and conclusions of the parties in order to open their minds to different possibilities. This is to be done by asking effective questions and helping the parties understand the strengths and weaknesses of their cases.
• The mediator offers options which he feels bests satisfies the underlying interests of the parties.

Step 5: Reaching a Settlement

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

Step 6: Closing

• There is no fixed procedure that must be followed.
• Once the terms of the settlement have been agreed to, the parties are reassembled.
• The mediator orally confirms the terms the terms of the settlement as a procedural requirement.
• The parties, with the mediator’s aid, write down the terms of the settlement and sign the agreement.
• The settlement has the binding nature of a contract and is enforceable in a court of law.
• In his closing comment, the mediator thanks the parties for their help and participation in the mediation process.

In case no settlement is reached between the parties, the case is returned to the referral court stating failure to settle. The proceedings of the mediation are kept confidential and cannot be revealed even to the court.

Advantages of Mediation

Mediation is a better and more lucrative alternative to the court system as-

• Control- It gives the parties control over the scope of the mediation in terms of the issues discussed,  and its outcome, with regard to the terms of the settlement and to settle or not.

Control is vested not with a judge or jury, but the parties themselves and helps them in reaching a mutually agreeable solution.

By giving control to the parties, it may also result in the settling of related and connected issues and disputes.

It also allows the parties to satisfy their long-term and underlying interests at each stage. This is immensely beneficial as it allows the parties creativity in examining alternatives, evaluating options and reaching a settlement. When the parties themselves agree to the terms of the settlement, there is compliance with the terms.

• Consent-based- Based on voluntary consent, it allows any party to opt out at any stage if they find mediation to be unhelpful.

• Participation- It allows the parties to directly participate in the negotiation and present the case in their own perspective.

• Economical-  Mediation takes less time to resolve disputes than standard legal channels. While courts may take months or years to pronounce judgements in cases, mediations take mere hours. According to figures released by the Bangalore Mediation Centre, while the mediation process can take a maximum of 60 days, the average time taken to settle a case is a mere two hours.

If a settlement is reached, the parties also save money on their hourly costs and no further litigation. Court fees are also refunded.

Since it takes less time, it is speedy, economical and efficient.

• Confidentiality- Mediations remain strictly confidential, with the terms of the mediation being known only to the parties involved and the mediator. This aids in better and effective communication between the parties.

• Conducive to dispute resolution- By providing a procedure that is simple and flexible, mediation can be modified to the demands of each case and allows the parties to carry on with their day to day activities. It thus created an informal, cordial and conducive environment for dispute resolution.

• Mutuality- Since parties to a mediation are amenable to mutually working towards a solution, they are more receptive to the other party’s side. This aids in restoring the relationship between the parties and settles the dispute in a mutually beneficial manner.

• Support by mediator- As a neutral, impartial and independent third-party, mediators ensure that the mediation remains a fair process. They also guide the parties through the process as neutral facilitators, encourage creativity in resolution and broaden the range of solutions.

• Finality- Mediation promotes finality in dispute resolution as there is no scope for an appeal, a revision or further litigation on the successful conclusion of a mediation.

• Refund of court fees- Court-referred mediation also allows for a refund of court fees in cases of settlement.

Disadvantages of Mediation

• Informality- In the informal setting of a mediation, there are no formal rules or procedures that have to be followed. Thus, mediators do not have access to a lot of tools to get people to testify or produce evidence to get to the truth of a matter.

• Unfairness- Moreover, the lack of formal rules means that there is no way to ensure a fair procedure for the parties involved. An aggressive party might be able to steamroll a timid one despite the best efforts of the mediator.

The imbalances of power that exist in a family may thus also lead to unfairness in the mediation.

• Success not guaranteed- Mediation may also be unsuccessful and not lead to a settlement between the parties involved. The parties will then have to resort to the money and time intensive court system after already wasting a significant amount of them in the mediation.

• Non-binding- The agreement reached in a mediation is non-binding. Parties to a settlement may also attempt to dispute the settlement agreement in case the agreement is not made binding on them. They can file another suit in court challenging the legitimacy of the settlement, creating another dispute on top of the underlying one.

The only solution to this is to agree to make the settlement agreement binding on both parties before signing it.

What To Consider When Going for Mediation

Time and Cost of the Mediation Process

• Time

Mediation can take any amount of time, ranging from several hours to days. This depends on the complexity of the issues to be discussed, the number of parties, and their preparation, flexibility, and desire to resolve disputes.

According to figures presented by the Bangalore Mediation Centre, however, the average mediation in India takes only two hours. Moreover, the parties are given a maximum of 60 days to resolve their disputes before reverting to the court.

• Cost

The cost of mediation is extremely economical as compared to the courts. A single motion filed by an attorney often costs more than the mediation. Mediation fees currently range between Rs. 15,000 to Rs. 70,000.

A mediation is also less emotionally stressful than a trial might be.

What to Discuss With Your Lawyer Before Going to Mediation

• Alternatives to Trial to be Taken Up

Alternative methods to litigation and trial for dispute resolution that can be referred to by the court include arbitration, conciliation, judicial settlement through Lok Adalat, and mediation. It is a good idea to discuss with your lawyer exactly which method to take up as an alternative to trial.

• Form of Mediation to be Pursued

There are many different forms of mediation, with the most popular being traditional mediation. A traditional mediation has many distinct phases, such as openings, joint sessions etc. Other forms of mediation include-

• Facilitative Mediation
• Transformative Mediation
• Evaluative Mediation
• Directive Mediation

You can read more about them here.

• Parties to be Present at the Mediation

The success of a mediation depends highly on the parties present at the table. This, too, varies according to the kind of mediation.

Any mediation requires a person who can make a binding decision to be present.

Parties may also want their technical experts to be present as it allows them the opportunity to learn more in a short amount of time.

In emotionally charged mediation, it may be prudent for a party to ensure the presence of their psychologist.

• Risk Factors

Mediation statements are issued by the parties days before the mediation begins. These contain the factual claims and legal arguments according to a party. The parties and their counsels then need to discuss the risk factors, i.e. the opposition’s strengths and their weaknesses. This also allows them to start considering solutions.

• Timing of the Mediation

Timing is crucial in a mediation. A person should discuss the timing of the mediation with their lawyer. The ideal time is as early in the dispute as possible after the parties and counsels have a good knowledge of the factual and legal issues. It should take place before expensive phases in the trial, such as depositions.

Challenging a Mediation Agreement

A successful mediation results in a negotiated agreement that takes the place of a contract between the parties. The parties cannot pursue any litigation for the underlying dispute if they are dissatisfied with the settlement reached as it would amount to a breach of the contract.

However, if the parties wish to dispute the agreement, they can bring an action in court challenging the validity of the agreement based on principles of contract law, and not on the basis of the underlying dispute.

 

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References

1. Mediation in The Indian Legal System at http://chetananand.co.in/index.php?route=product/category&path=103_108
2. https://en.wikipedia.org/wiki/Mediation
3. Procedure to be Followed During a Mediation at https://vakilsearch.wordpress.com/2011/01/15/procedure-to-be-followed-during-a-mediation/
4. Afcons Infrastructure Ltd. & Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors. (2010) 8 SCC 24
5. http://mediationbhc.gov.in/PDF/concept_and_process.pdf