What is Mediation?
Author: Sayantani Mukherjee
1. Mediation: Introduction
The foundation of any legal dispute is
based on the principle that one party is always at the losing end. In a court
of law, the judgment always declares one party as the winner and the other as a
loser unlike in mediation where both parties are in a win-win situation.
Mediation is one of the ADR mechanisms that focus on delivering justice with
the consent of both parties to the dispute within a minimum time limit
without any delay. The basic objective of mediation is to end the conflict with
the help of a mediator or conciliator i.e. a neutral third party. It is a
non-binding process in which an impartial third party or a neutral third party
often called a mediator assists the parties in reaching a mutually agreed
settlement.
2. Mediation in India
In India, ADR is considered a method of
resolving disputes by alternate modes of dispute resolution namely through
arbitration, mediation and conciliation, negotiation, and Lok Adalats. In Afcons
Infrastructure Ltd v M/s Cherian Varkey Construction[i],
Supreme Court held that the terms mediation and conciliation are interchangeable
and can be used synonymously. As per Rule 4 of the Civil Procedure and the
Mediation Rules of 2003[ii],
the definition of Mediation can be divided into several parts for better
understanding:
2.1. Mediation refers to
the process of settling any disputes between the parties with consensus as per
the Mediation Rules, 2003.
2.2. Mediator is either
appointed by the Court or by the parties themselves to facilitate discussion
between the parties pertaining to the agreement between the parties to the dispute.
2.3. The Mediators assist
the parties in identifying the issues, reducing misunderstandings, explore the
various aspects of disputes by generating options that would help the parties
in reducing the tension between them that would positively impact their
decision-making process.
2.4. It is the duty of
the mediator to clarify any misunderstanding between the parties and make them
understand that it is their responsibility to reach a settlement that would
benefit both of them.
3. Governing laws of Mediation in India
In India, mediation is
discussed under two main enactments, namely the Civil Procedure Code (CPC) and
the Arbitration and Conciliation Act (ACA). Mediation as a mode of resolving
disputes can either be Court annexed according to Section 89 of the CPC or it
can be agreed between the parties often called private mediation dealt under
Part III of the ACA. Apart from these legislations the Commercial Courts Act,
2015 and the rules under the Act also referred to mediation before the filing of the suit
by the parties.
4. Procedure for appointment of Mediators
The court-annexed
mediation is the Civil Procedure Mediation Rules discusses the appointment of
mediators by judges or at the suggestion of the parties to the disputes. Often
the empaneled mediators of the Court are considered by the court to take the
dispute for mediation. On the contrary in private mediation, the parties
include a clause in their contract to resolve their dispute through mediation.
5. Principles of Mediation
Like litigation, mediation is also based
on certain principles which lay the foundation of the mechanism founded on the
basis of mutual consensus between the parties. There is no provision under any
law for the time being in force guiding the fundamental principles of mediation, unlike arbitration and conciliation. In general, there are a few basic principles
to which the mediators, as well as the parties, must adhere. These are as
follows[iii]:
5.1. Voluntary participation – the parties
must at their own free will give consent to the process of mediation. In this
way, the chance of settlement increases, and the parties choose not to move the
court for that particular dispute.
5.2. Confidentiality – the mediators are
not allowed to divulge any information with respect to the dispute or any
confidential information about the parties without their prior consent. If the outcome of the mediation process is not fruitful then the Courts are not allowed
to ask the reason behind the failure of the process.
5.3. Neutrality- the Mediators are
expected to follow the procedure of mediation to the fullest and must not be
partial to any one party. The mediators are allowed to judge, make any comments, or provide any solution to the parties in reaching the settlement. But the
mediator is supposed to be sympathetic towards the parties and only facilitate
the parties in settling their disputes in an amicable manner.
5.4. Convenience of the parties- the
process of mediation should be convenient to both the parties and they must be
satisfied at first before initiating mediation. Unless there is an agreement
between the parties to mediate any dispute, mediation cannot and should not be
enforced on them. The fundamental basis of mediation is to resolve the dispute
without causing any harm to the parties.
6. Procedure of Mediation
Before the process of mediation starts
there are a few formalities that need to be followed[iv]:
i. The mediator must declare any conflict
of interest in the matter and shall withdraw if there is any conflict of
interest.
ii. The fees and expenses are made known
to the parties and if they agree then the process shall initiate.
iii. The parties and the mediator must
sign a confidentiality agreement prior to the process of mediation
7. How the procedure of mediation is conducted?
In this article, the procedure of mediation
is discussed according to the Commercial Courts (Pre-Institution Mediation and
Settlement Rules), 2018. The procedure is as follow[v]:
7.1. At first it is the duty of the
mediator to explain the process of mediation to the parties.
7.2. After the process is explained the
mediator fixes a date for the mediation session with the parties to which the
parties agree.
7.3. The mediator can hold a joint session
at first and then separately with each party as he/she deems necessary.
7.4. The parties are then asked to come up
with their proposals for settlement to the mediator or they can discuss their
proposals with each other in writing or orally as per their convenience.
7.5. Once the settlement is agreed upon by the parties it shall be reduced in writing and signed by the parties and the
mediator and then sent to the authority if it is a Court annexed mediation.
7.6. If the dispute remains unsettled
between the parties or there is no possibility to arrive at an amicable
solution then the mediator submits a report to the authority mentioning the
same.
Conclusion
Mediation unlike rulings of Court is not a
decree of the court and the mediator is not allowed to pass any judgment. The
role of the mediator is limited to the settlement of the dispute by facilitating
communication between the parties. Mediation as a whole is an unconventional
way of settling disputes by staying under the legal system.
[i] [2010] (7) SCALE 293
[ii] Rule 4 of the Civil Procedure and the Mediation Rules of 2003
[iii] Mediation as an effective ADR Mechanism, Anveksha Padhye, August, 2 (2018), available at: https://blog.ipleaders.in/mediation-meaning/
[iv] Principles of mediation, available
at https://rhizomenetwork.files.wordpress.com/2010/12/principles_of_mediation.pdf
[v] Mediation in India, The Mediation Chambers, available at: https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76
