Introduction

Mediation is a collaborative negotiation process between two conflicting parties, guided by a neutral third-party mediator, to attain a harmonious resolution. Mediation is an ADR(alternate dispute resolution) method practiced in India, like arbitration and conciliation. In this, the Mediator calls a meeting of the parties to discuss the issues and offers suggestions for potential solutions.

Process Of Mediation

Mediation is an active process where the Mediator guides the parties to reach a mutually acceptable settlement to resolve their dispute.
There are generally four functional stages of Mediation, namely,

(i) introduction and opening statement,

(ii) junior sessions, and

(iii) separate session and closing.

These functional stages are informal and flexible, so the mediation process gains momentum, following a specific and predictable course, as illustrated below.

(i) Introduction and Opening Statement

• The Mediator introduces himself by providing information such as his name and qualifications.
• The Mediator requests the parties and their counsels to introduce themselves.
• The Mediator hoped the matter would be sorted and settled to get each party’s trust and confidence.
• In the opening statement, the Mediator explains to the parties the concept, process, advantages, and stages of Mediation.
• Also, the ground rules for Mediation are explained.
• Finally, the Mediator confirms that both parties have cleared the process and will allow them to clarify their doubts.

(ii) Junior sessions

• The Mediator invites both the parties to present their case.
• First, the plaintiff can state the case in his own words, followed by his counsel, who can present and state the legal issues involved. Likewise, the defendant is given an opportunity, followed by his counsel.
• The Mediator shall identify the areas of agreement and disagreement between the parties and should encourage communication to get additional information.
• At the completion of the joint session, the Mediator may meet each party with their counsel

(iii) separate Session and Closing

• This session aims to understand the dispute at a deep level to encourage parties to generate options and find mutually acceptable terms.
• The Mediator and each of the parties would talk about the Mediation in confidence.
• Then, the Mediator gathers further information by identifying each party’s differential priorities or the differential aspects of the disputes.
• In order to move the process forward, the Mediator engages in reality testing, in which the Mediator assists the parties in understanding the reality of their case and shifts the focus to problem-solving.
• Then, the Mediator offers options that serve each party’s common and maximum interest.

Where there is a settlement:-

• The parties are reassembled. The Mediator orally confirms the terms and reduces them to writing.
• The parties sign the agreement. Also, the Mediator may affix his signature to the signed agreement.
• In the closing statement, the Mediator thanked the parties for their participation and help in reaching the solution.

When there is no settlement:-

The case would be returned to the ‘referral court’ merely mentioning as ‘Not Settled.’

The statements made during the Mediation are strictly confidential. They should not be disclosed by any party, advocate, or Mediator to the Court or outside the Court, ensuring the privacy and security of the process.

Court and Mediation

Mediation does not necessarily require the association of Courts and judicial institutions. Yet, particularly in the developing stages, courts must discharge essential functions related to ADR techniques. This is quite apart from the position that, as a matter of law, Section 89 of the Code of Civil Procedure, 1908, does postulate an affirmative role for the Courts in promoting ADR techniques. A significant part of the focus of Mediation in India is on the functional relationship between ADR techniques and a reduction of arrears. Mediation, in order to be successful, has to be supplemented by Court evolved techniques of case management that would enable the Court to oversee the process of settling disputes through Mediation. The Court has to be aloof from the contents of the actual mediation process because parties must be free to discuss issues in dispute between them with a high degree of honesty and without being affected by any possible judicial proceedings. On the other hand, the Court must undertake the process of inculcating a habit of seeking recourse to Mediation as a preferred option to litigation.

Legislative Provisions Relating to Mediation

• The Industrial Disputes Act of 1947, under Section 4, empowers the Conciliators to mediate industrial disputes and encourage settlement. However, the majority of cases are still pending for conciliation proceedings.
• Chapter V, Sections 37-38 of the Consumer Protection Act, 2019 This Act also references disputes to the Mediation. Under Section 37 (1) of the Act 2019, if the District Commission at the first hearing of the complaint or at any stage of the hearing thinks that there is a chance of settlement through Mediation, then the commission may direct the parties to give written consent within five days to refer the matter to the Mediation.
• Order XXXIIA of CPC 1908 also recommends Mediation for various kinds of disputes, as it should not be limited only to personal, family, matrimonial, guardianship, custody, and maintenance matters.
• Section 89 read with Order X Rule 1A of the Code of Civil Procedure, 1908: As per Section 89 read with Order X Rule 1A of the CPC, after recording the admission and denial of documents, the Court shall direct the parties to the suit to opt for any of the ADR modes of settlement such as arbitration, conciliation, Lok Adalat or Mediation.
• The Hindu Marriage Act, 1955, under Section 14 (2), Section 29(2) of the Special Marriage Act, 1954, Section 9 of the Family Courts Act, 1984: It mandates the Court in the first instance to try a settlement between parties through Mediation.

Judicial Approach towards Mediation Process

1. The Supreme Court in “Hussainara Khatoon & Ors v. State Of Bihar” held that speedy trial is a fundamental right of every citizen. But till today, many cases are pending before the Indian Judiciary with the hope of getting justice as soon as possible. Hence, in order to get speedy justice for parties, Mediation has proved to be one of the best methods, and this method has also been suggested by many courts through its judgments.

 2. The Hon’ble Supreme Court in “Salem Bar Association v. Union of India” suggested referring the matter to Mediation. The Court observed that it is not necessary for the cases to be decided by the courts only. It can be solved through various alternative methods. The Hon’ble Supreme Court also said that the courts are required to encourage parties to settle their disputes through ADR. The Hon’ble Court also suggested forming a Committee to ensure effective and speedy justice for parties.

3. The Hon’ble Supreme Court observed in “MR Krishna Murthi v. New India Assurance Co. Ltd” the Hon’ble Supreme Court, while considering a plea seeking reform in the Motor Vehicle Accident Claims system, recommended to the Government to study the practicability while enacting Indian Mediation Act. The Court also suggested considering various facets of Mediation.

Benefits of Mediation

• Quick and responsive.
• Economical.
• There is no extra cost.
• Harmonious settlement.
• Creating solutions and remedies.
• Confidential and informal
• Parties controlling the proceedings.

Conclusion

Mediation is considered one of the most phenomenal methods of Alternative Dispute Resolution. It is indispensable to consider Mediation as the primary mode of dispute resolution. If there is proper awareness and encouragement about Mediation for people, it will undoubtedly deliver speedy justice to society as guaranteed under Article 21 of the Constitution of India. The judiciary, including the Advocates Bar Association, has to promote Mediation as it is the best mechanism for resolving disputes between parties, and it will be the best supplement to the Indian Judicial System. Today, it is necessary for the Government to take immediate initiative to pass the Mediation Bill, 2021, as suggested by the Hon’ble Supreme Court of India.

Dr. Moksha Kalyanram Abhiramula, Advocate

Disclaimer:

The contents of this article are provided for informational purposes only and should not be construed as professional advice. It is recommended that readers seek advice from appropriate professionals to address their specific situations. Neither the author nor the publisher accepts any responsibility or liability for any loss or damage resulting from using the information presented in this article.