What is mediation?

Mediation is a key part of the civil litigation system in both state and federal courts, and is an
integral dispute resolution tool for disputes involving federal agencies.[1] The most common disputes that
lead to mediation are those involving contracts, family law matters, and personal injury or employment
disagreements.[2] In a survey of U.S. business leaders, many recognized mediation’s advantages and
preferred mediations in commercial transaction disagreements, even over other alternative dispute
resolution methods. Specifically, the executives surveyed in the study believed that mediation preserves
commercial relationships better than arbitration and that mediation was superior to arbitration in saving
time and money.[3]  

Mediation can be an informal meeting that only lasts a couple hours, or can be a scheduled
settlement conference that lasts an entire day. This meeting can be held at a neutral location, such as the
mediator’s office. Mediation is voluntary to both parties and is nonbinding, meaning that the mediator
cannot force either party to follow a certain course of action, or do something that either refuses to do.
This distinguishes mediation from an arbitration, where the arbitrator, like a judge, can hand down a
decision that binds the parties to follow a course of action.

Who is the mediator and what is her role?

Because mediators have no decision-making authority and cannot impose a decision, there are no
legal requirements on who can serve as mediators.[4]

The mediator is, however, typically a trained professional who has extensive qualifications that
allow her to foster settlement and assist the parties in negotiating a settlement that is tailored to meet each
side’s needs. Due to mediation’s widespread popularity, both the American Bar Association and the
Association for Conflict Resolution have assisted many states in designing mediator certification
standards.[5] to become a certified mediator, mediators may be required to have a minimum of 20 to 50
hours of general mediator training and mediation experience either as a co-mediator or observer.[6] While
there is no requirement that parties use certified mediators, mediators with this level of training are often
more effective. Parties often have enormous resources invested in a dispute and the marginal additional
cost of a certified mediator is usually considered acceptable considering the increased chance of a
successful resolution such a mediator may provide.

This neutral third party helps parties reach a mutually agreeable settlement by identifying issues,
exploring areas of agreement, and finding areas of compromise.[7] Typically, the mediator will allot time
to each party to provide an account of the circumstances that have led to a dispute. After this accounting
of the facts, a mediator helps each party discover shared interests and discover resolutions that can
promote mutual gain.

What are the benefits of mediation? 

Mediation has numerous advantages over litigation, arbitration and negotiation without use of a
mediator.  First, lawyers, judges, and other decision-makers find that one of the greatest benefits of
mediation is that it can foster cooperation and understanding. Mediators examine the causes of conflict
and develop solutions. To reach a successful conclusion, the parties must collaborate with one another.
Litigation, by contrast, is more likely to breed hostility and mistrust between disputing parties because the
parties are competing with one another to “win.”
 Second, mediation is a cost-effective way of resolving a dispute.[8] It is much less expensive than
litigation and it offers a relatively predictive cost, all of which is paid to a mediator. In Arizona, for
example, trained mediators typically charge around $250 per hour.[9]  Litigation fees can be exorbitant
not only because of attorney’s fees, but also because of fees associated with filing a suit and paying
ancillary litigation costs.

Third, a mediation can be a much quicker process than litigation. Mediations aren’t cumbersome
processes and each mediation session may last two to three hours. This is especially helpful in family law
cases, where prolonged law disputes can have psychological and emotional costs for the children
involved. Studies have found that trials, which can take months to prepare for and weeks to conduct, have
a detrimental effect and cause tension for children.[10]

Fourth, mediation provides a confidential forum for resolving disputes. Private information that
may have to be revealed to the judge, jury, or public during a trial remains private during mediation since
mediation is conducted behind closed doors.[11] Furthermore, while the ultimate decision in a trial
becomes part of the public record, an agreement reached by the parties can remain private. Mediation’s
privacy can be especially appealing to divorcing spouses or if the facts underlying a dispute are of an
intimate nature.

Finally, mediations put dispute resolution into the hands of the disputing parties. Since there are
no complex rules of procedure and evidence, parties have a great deal of flexibility and can adjust the
breadth of the mediation to discuss whatever topics that they think are important.

Mediations, though with many benefits, are not always the best way to resolve a disagreement
because parties sometimes need a legally-binding outcome that will create obligations to solve their
problems. Despite this, a mediation can often help settle controversies while also decreasing aggression
and animosity between parties.

What are the types of mediation in India?

Mediation India are divided into two categories which are commonly followed:

1. Court referred Mediation:

2. Private Mediation:
In Private Mediation, qualified personnel works as mediators on a fixed-fee basis. Anyone from courts, to
the general public, to corporates as well as the government sector, can appoint mediators to resolve their
dispute through mediation.

Process of Mediation in India

In most cases, people voluntarily opt for mediation to mutually resolve their legal issue, making
mediation in India a party-centric and neutral process. A third party i.e. a mediator is appointed who acts
unbiasedly in directing the parties to amicably resolve their issues. Mediation employs structured
communication and negotiation where people put their issues and solutions for them in front of each other
with the help of a mediator. The person can be anyone the parties have chosen, or an ADR lawyer agreed
on by the parties.
The mediator then helps them to reach a conclusion based on their agreed upon terms. As it is a voluntary
process and the parties retain all the rights and powers, any party can withdraw from the process of
mediation at any phase without stating a reason.

Mediation encourages the parties to participate in dispute resolution actively and directly whereby they
explain the facts of their dispute, lay down options or ways to resolve the dispute and make a final
decision by coming to a settlement. The mediation process in India follows all the general rules of
evidence and, examination and cross-examination of witnesses. To know all the legal rights you have
over the issue, you can discuss with your ADR lawyer how you can put up your demands and negotiate it
with the other party.

One of the primary benefits of mediation in India is that it is a completely private method of dispute
resolution. Only the disputing parties and the mediator are involved, making the affairs of the parties
personal and private. The mediator is an impartial and independent third party, who helps the parties in
finding their own solution. All statements made during the process of mediation in India cannot be
disclosed in civil proceedings or any other place without the prior consent of all parties in writing.

In Mediation in India, the mediator works together with parties to facilitate the dispute resolution
mediation process and does not adjudicate a dispute by imposing a decision upon the parties. A
mediator’s role is both facilitative and evaluative. A mediator facilitates when he manages the interaction
between the parties, encourages and promotes communication between them and manages interruptions
and outbursts by them and motivates them to arrive at an amicable settlement.

Process of Mediation in India is completely confidential as any information furnished by any party and a
document prepared or submitted is inadmissible and sealed. Any admission made during mediation
cannot be used in any other court case and any information provided to the mediator cannot be disclosed
to the other party unless the other party specifically permits the mediator to do so. The mediator cannot be
called as a witness to testify in any court case and cannot disclose any information related to the
proceedings.

Mediation as an alternative dispute resolution process has been effectively used in matrimonial disputes
and corporate affairs to find a prompt solution which is not only time-saving and cost-effective but also
keeps the entire dispute resolution process private. The process of mediation in India is flexible as it
works two-ways by helping disputing parties to mutually resolve their issue and reducing the burden of
pending cases on the courts.

References:

1. https://lawshelf.com/shortvideoscontentview/alternative-dispute-resolution-mediation/
2. https://www.mediate.com/articles/mediation-in-india-articile.cfm