Q. WHAT IS MEDIATION.
A. Mediation is an attempt at resolving a dispute by settlement with the assistance of a Mediator who is a neutral third party. The mediator may be :
• A judicial officer (retired or sitting judge)
• An Advocate
• An otherwise trained professional
When a sitting judicial officer acts as a mediator in a case, his services are available free of cost and without any other charges on any of the parties.
Q. What is the Legal provision governing Mediation?
A. Section 89 Civil Procedure Code,CPC provides for early settlement of cases by Alternative Dispute Resolution mechanisms, namely-
- Arbitration
- Concillation
- Judicial Settlement/Lak Adalats
- Mediation
Q. WHAT DOES A MEDIATOR DO?
A. A mediator assists the parties in arriving at an amicable solution through negotiation. He facilitates the parties in reaching a mutually acceptable agreement. The parties need not agree to the terms of settlement, if they are not satisfied. Judges and arbitrators make decisions that are imposed on parties but a mediator helps the parties to evaluate the probable outcome of a dispute and then leads them to an acceptable settlement.
Q. WHAT HAPPENS IN A MEDIATION SESSION?
A. A mediator meets both the parties in a joint mediation session. The initial meeting provides for:
• An introduction to the participants and the mediation process.
• An opportunity to discuss issues affecting settlement that are important for the mediator to know.
• An opportunity to determine what information would be helpful for the mediator to have at or in advance of the mediation.
The joint session provides an opportunity for each participant, either directly or through counsel, to express their view of the case to the other participants and how they would like to approach settlement. The opening statements are intended to begin the settlement process, not to be adversarial or a restatement of positions.
Q. MEDIATION PROCEDURE
A. Formal procedures as in a Court or arbitration are completely absent in mediation proceedings. Both parties and their advocates participate freely without any set procedures or any rules of evidence.
The absence of formality provides for an open discussion of the issues and allows a free interchange of ideas making it easier for the parties to determine their interest and fashion a solution accordingly.
A mediator may, if necessary, meet the disputing parties individually and in private. Such meetings are completely confidential and are intended to understand the needs of each participant and what prevents him or her from reaching a settlement.
In these private meetings, the mediator often assists parties to prioritize their interest and options for settlement and to assess the relative strengths and weaknesses of their positions.
Once a settlement is reached, the mediator records it with the signatures of the parties.
Q. HOW IS THE MEDIATOR ASSIGNED TO A CASE?
A. Since mediation is presently being encouraged only in regard to disputes pending in a court, the concerned court may decide whom to nominate as a mediator for a particular dispute, unless the litigating parties agree to a neutral mediator in whom they have full confidence.
Key Points About the Mediation Process
• All mediation proceedings are confidential. Documents generated for the mediation are also confidential and may not be introduced during a subsequent trial should the case not settle.
• Counsel and parties with settlement authority must attend mediation sessions. Certain exceptions may be granted for institutional parties or if a party is a unit of government.
• Unless the presiding judge indicates otherwise, referral of a case to mediation does not stay other proceedings in the case or alter applicable litigation deadlines.
A judicial officer may, while referring a case to mediation, fix a time limit for completing the mediation process.
Q. WHO PROTECTS THE INTEGRITY OF THE MEDIATION SYSTEM?
A. Information about the mediation is confidential and may not be disclosed to the Judge hearing the case. The parties in the pending litigation cannot also use the information. The High Court has framed Mediation Rules, which can be made available on request.
Q. WHAT ARE THE BENEFITS OF MEDIATION FOR LITIGANTS?
A. (i) Procedures more satisfying results
• Helps settle all or part of the dispute much sooner than regular trial.
• Permits a mutually acceptable solution that a court would not have the power to order.
• Saves time and money
• Preserve ongoing business or personal relationships
• Increases satisfaction and thus results in a greater likelihood of a lasting resolution.
(ii) Allows more flexibility, control and participation
• Tailors the procedures used to seek a resolution
• Broadens the interests taken into consideration
• Fashions a business-driven or other creative solution that may not be available from the court.
• Protects confidentiality
• Eliminates the risks of litigation (iii) Enables a better understanding of the case
• Provides an opportunity for clients to communicate their views directly and informally
• Helps parties get to the core of the case and identify the disputed issues.
• Helps parties agree to exchange key information directly.
(iv) Improves case management
• Narrows the issues in dispute and identifies areas of agreement and disagreement.
(v) Reduces hostility
• Improves the quality and tone of communication between parties.
• Decreases hostility between clients and lawyers.
• Reduces the risk that parties will give up on settlement efforts.
Q. HOW TO INITIATE MEDIATION
A. Where both the parties agree in a pending case to try to get their dispute settled through Mediation, the Court will record the same and send the file to Mediation Centre.
