What is Mediation-Three Pillars Of Mediation
Author- Shreya Pandey ----------------------------------------------------------------------------------
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What
is Mediation?
Mediation means
the settlement of the dispute by the third party who helps the parties to the
dispute to reach a common conclusion. According to the Black Law
Dictionary mediation is "a process of non-binding dispute
resolution where a neutral third party tries to help the disputing parties
reach a unanimously agreeable solution."
According to Rule
4 of the Civil Procedure - Alternate Dispute Resolution Rules, 2003 (ADR Rules) mediation is defined as the process through which a mediator who is
appointed by parties or by the Court mediates the dispute among the parties
with the help of the application of the provisions of the Mediation Rules, 2003
in Part II, and by conducting discussion between parties directly or through
the mediator by way of assisting the parties by identifying the issues, by
reducing misunderstandings between them, clarifying their priorities, exploring
areas where they can compromise, by producing options to solve the dispute and
focusing that it is the duties and responsibilities of parties to make
decisions which will affect them.
AfconsInfrastructure Ltd v. Cherian VarkeyConstruction (2010) the
Supreme Court stated that ‘mediation’ and ‘conciliation’ are used synonymously.
In this observation, the words ‘mediation’ and ‘mediator’ are used; they should
also be considered to mean ‘conciliation’ and ‘conciliator’.
Mediation
Based on three pillars
Mediation is
based on three pillars, they are:
i.
Confidentiality
ii. Neutrality
iii.
Voluntariness
Confidentiality
Confidentiality
means keeping things private between parties. In mediation proceedings, any
confidential information which is provided by one party to the mediator cannot
be disclosed to the other party.
The Arbitration
and Conciliation Act, 1996 and Code of Civil Procedure, 1908
explains some of the duties of mediators which are related to disclosure,
avoiding inappropriate conduct, maintaining confidentiality, etc.
The procedures
of Mediation are confidential and private in India. According to Section 75 of
the Arbitration and Conciliation Act, 1996
it is the duty of the conciliator and the parties to the mediation proceeding to keep all matters relating to it confidential, and that
confidentiality will even extend to the settlement agreement unless disclosure
of the proceedings is necessary for the purpose of enforcement and
implementation.
In much private
commercial mediation, it is considered good if the parties (to the dispute) and
the mediator sign an agreement relating to confidentiality prior to the
inception of mediation proceedings.
According to Section80(b) of the Arbitration and Conciliation Act, 1996 parties cannot present a conciliator as a
witness in any judicial or arbitration proceedings. In the proceedings where
the court refers the party for the mediation confidentiality is protected by
the rules which are laid by the courts under the Code of Civil Procedure,
1908, and Arbitration and Conciliation Act, 1996.
If, in any case,
the mediator discloses the confidential information, the injured party gets entitled
to sue him for breach of contract, willful misconduct, or negligence. The
injured party can also seek damages or a permanent injunction against disclosed
information. They may also seek interlocutory injunctions to prevent it.
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What is Mediation?
Mediation means
the settlement of the dispute by the third party who helps the parties to the
dispute to reach a common conclusion. According to the Black Law
Dictionary mediation is "a process of non-binding dispute
resolution where a neutral third party tries to help the disputing parties
reach a unanimously agreeable solution."
According to Rule
4 of the Civil Procedure - Alternate Dispute Resolution Rules, 2003 (ADR Rules) mediation is defined as the process through which a mediator who is
appointed by parties or by the Court mediates the dispute among the parties
with the help of the application of the provisions of the Mediation Rules, 2003
in Part II, and by conducting discussion between parties directly or through
the mediator by way of assisting the parties by identifying the issues, by
reducing misunderstandings between them, clarifying their priorities, exploring
areas where they can compromise, by producing options to solve the dispute and
focusing that it is the duties and responsibilities of parties to make
decisions which will affect them.
AfconsInfrastructure Ltd v. Cherian VarkeyConstruction (2010) the
Supreme Court stated that ‘mediation’ and ‘conciliation’ are used synonymously.
In this observation, the words ‘mediation’ and ‘mediator’ are used; they should
also be considered to mean ‘conciliation’ and ‘conciliator’.
Neutrality
Neutral means "impartial". When
the mediator appointed by the parties for the mediation process remains unbias
and impartial among the parties. A neutral mediator always helps the parties to
reach a common conclusion without favoring one.
If there
is any conflict of interest between mediators and the parties, it is the duty
of the mediator to inform about it before the mediation proceeding starts and
immediately after he gets aware of it if a conflict arises after the
commencement of the proceedings.
The mediator will be liable to face the civil
action if he fails to reveal the conflict of interest.
Voluntariness
Voluntariness means "own free will". It is required that parties to the mediation proceedings
had opted for it of their own will. It must not be forced upon them by the
court. Consent of both parties must be there. If any party deferred from it,
the court cannot go with mediation in any dispute.
In India, commercial mediation is quite new
and, therefore, most people opt for litigation for settling their disputes.
This is the reason that the percentage of cases that are settled by mediation is less in comparison to cases settled by litigation.
It is seen that the cases
referred by the court for the mediation are more than the one which is actually
voluntarily accepted by the parties.
If there is any conflict of interest between mediators and the parties, it is the duty of the mediator to inform about it before the mediation proceeding starts and immediately after he gets aware of it if a conflict arises after the commencement of the proceedings.
The mediator will be liable to face the civil
action if he fails to reveal the conflict of interest.
Voluntariness
Voluntariness means "own free will". It is required that parties to the mediation proceedings
had opted for it of their own will. It must not be forced upon them by the
court. Consent of both parties must be there. If any party deferred from it,
the court cannot go with mediation in any dispute.
In India, commercial mediation is quite new and, therefore, most people opt for litigation for settling their disputes. This is the reason that the percentage of cases that are settled by mediation is less in comparison to cases settled by litigation.
It is seen that the cases
referred by the court for the mediation are more than the one which is actually
voluntarily accepted by the parties.
Why parties should choose mediation over litigation
Highly followed up procedure in today's
scenario, mediation is strongly encouraged by the Supreme Court in various
cases for the parties in dispute.
Courts all across the country refer a large
number of cases for mediation proceedings because of its strong three pillars.
Unlike litigation which is time-consuming mediation is highly efficient.
Understanding its importance, every court in
India is emphasizing this proceeding. Mediation is also helping in
reducing the burden from the courts where matters are pending for years.
Mediation is chosen by the party's own will, its judgment gives more
satisfaction to them at the first instance than the litigation.
Party comes to a common conclusion after
discussion with the other party, however, in litigation judgments are
suppressed upon them even if the party is not satisfied leading to the filing
of an appeal or revision. This takes more time and is also expensive.
The meditation process is less costly in
comparison to litigation. The result of mediation is not binding as they are
mere suggestions on part of the mediator. Parties can reject it if they found
any kind of breach of confidentiality, etc.
Whereas,
judgments of litigations are binding upon the parties and lead to the
initiation of contempt proceedings if parties don't oblige it.
With the time and growing importance,
Alternate Dispute Mechanisms are considered to be a more efficient and reliable
form of justice than litigation.
Highly followed up procedure in today's scenario, mediation is strongly encouraged by the Supreme Court in various cases for the parties in dispute.
Courts all across the country refer a large
number of cases for mediation proceedings because of its strong three pillars.
Unlike litigation which is time-consuming mediation is highly efficient.
Understanding its importance, every court in India is emphasizing this proceeding. Mediation is also helping in reducing the burden from the courts where matters are pending for years.
Mediation is chosen by the party's own will, its judgment gives more
satisfaction to them at the first instance than the litigation.
Party comes to a common conclusion after
discussion with the other party, however, in litigation judgments are
suppressed upon them even if the party is not satisfied leading to the filing
of an appeal or revision. This takes more time and is also expensive.
The meditation process is less costly in
comparison to litigation. The result of mediation is not binding as they are
mere suggestions on part of the mediator. Parties can reject it if they found
any kind of breach of confidentiality, etc.
Whereas,
judgments of litigations are binding upon the parties and lead to the
initiation of contempt proceedings if parties don't oblige it.
With the time and growing importance,
Alternate Dispute Mechanisms are considered to be a more efficient and reliable
form of justice than litigation.
