Mediation is a process in which an impartial or neutral third party assists disputants in finding a mutually acceptable solution. It is both confidential and voluntary. It is participatory. Parties have the chance to voice their feelings and are involved in creating solutions to end their dispute. Mediation is thus a combination of willingness of the parties to resolve their disputes and the skills of the Mediator to guide parties towards a settlement.
It is a good method of resolving disputes, especially those involving relationships which are not easily resolved through the litigation process, to the mutual satisfaction of both sides. These relationships can be personal, commercial, contractual or social.
Yes it does. Intense conflict tends to generate misunderstandings and suspicion. Many of these evaporate and vanish when parties are able to talk directly and air their grievances through the Mediation process. Because Mediation is not bound by the rules of a formal proceeding, the parties can bring up whatever concerns them most. They are not restricted to those issues which are the official, public subject of a dispute. The written settlement helps by protecting parties from further friction and misunderstandings so that the conflict can just fade away.
- It immediately puts disputants in control of both the dispute and its resolution.
- The process is voluntary and parties can opt out of it at any time if they feel it does not help them.
- The process is confidential, the procedure is simple and the atmosphere is informal. Procedure can be modified to suit the demands of each case. Mediation can be initiated at any stage in a case - pre-litigation, during trial or at the appeal stage. Issues can be limited or expanded during the course of the proceedings.
- It shows parties the strengths and weaknesses of their respective cases which helps them find realistic solutions.
- It focuses on long-term interests, examines alternatives and helps create options for settlement. It gives an opportunity to parties to fully resolve all their differences.
- The process improves communication between the parties which is crucial to resolving any dispute.
- Disputants save precious time and energy. Time spent in Mediation is significantly less than the time needed for trial and appeal. A case which lasts for years in court can be disposed of within days, weeks or months after Mediation starts.
- Disputants save costs on what invariably becomes a prolonged litigation. It is less expensive than other forms of dispute resolution. If the case is settled through Mediation, the court fee paid by the plaintiff is refunded.
- Mediation helps restore broken relationships and focuses on improving the future, not on dissecting the past.
- Parties opt for more by signing a settlement that works to benefit both.
- At the end of Mediation, disputants can actually shake hands with their opponents.
- With every case that is settled, other related cases between the parties also get settled.
- There is no further appeal. It saves judicial cost and time.
In litigation the judge decides the issue and the parties must accept that decision, subject to the right of appeal. Arbitration proceedings also end in awards which can be challenged. In Mediation parties are encouraged with the help of the Mediator to explore various mutually acceptable solutions to end their dispute. It is their resolution, not the Court's. However, when parties come to a settlement in Court-annexed Mediation, the Court also endorses the settlement by a judicial order. In India, presently the terms 'Mediation' and 'Conciliation' are used synonymously.
No. Some cases need a judicial pronouncement through litigation while others need an amicable settlement through Mediation. There is a complementary relationship between litigation and Mediation.
One party can contact the other party and suggest Mediation. If there is a Mediation clause built into the agreement that will bring both parties to the Mediation table. Otherwise parties can go through an Institute or Centre for Mediation. The Delhi High Court initiates Mediation by passing an order in a pending litigation with the consent of parties to try Mediation in cases it considers fit and appropriate. The Delhi High Court Mediation and Conciliation Centre also undertake pre litigation Mediation, i.e. Mediation before a case is filed in Court.
Parties can select their Mediator/s by consent. Where Mediation is directed by a Court like the Delhi High Court, the Mediator/s is/are appointed by the Court itself. Alternatively, upon reference by the Court, the Delhi High Court Mediation and Conciliation Centre appoints the Mediator/s from its panel of trained and experienced Mediators, who are members of the Delhi High Court Bar Association.
All disputing parties and all the important stakeholders in the matter come to the mediating table. Where the disputant is a company or a firm, it should be represented by an officer who has the authority to take the decision to settle the case. Parties are advised to bring their lawyers.
No. The process is completely voluntary and requires the consent of parties to come to the Mediation table and participate in the process. If, at any time, a party feels that its interests are not served by the process, the party may -terminate its participation without any adverse consequences.
No. Mediation is an opportunity for parties to amicably resolve their disputes. Parties can avail of Mediation before filing a case in Court. Parties can also avail of Mediation services at any stage of their litigation in Court. If Mediation fails, their rights before the Court remain intact. If a settlement is signed, they are bound by the settlement.
- Mediation services can be used by parties directly or through reference by the Court.
- Parties fill in a consent form made available to them by the Delhi High Court Mediation and Conciliation Centre for referring their case to Mediation.
- If the Mediator has or may be perceived to have any partiality or bias in the dispute referred to, he/she declines to act as Mediator.
- The Mediator is at liberty to meet the parties and their lawyers jointly or separately. Parties are encouraged to appear before the Mediator with their lawyers.
- The Mediator is in charge of the process and as long as it lasts, parties must abide by the Mediator's decision on the process to be followed
- In the first session, the Mediator and each party makes an opening statement. The process works by the Mediator helping parties to establish the basic facts, identify the underlying issues for resolution and focus parties on their long-term interests.
- Parties can give a brief summary of their respective cases to the Mediator and produce such documents as they may like. Copies thereof can be given to the other side.
- The Mediator engages in improving communication between the parties. This can be done in further joint sessions with all parties and their lawyers or in separate sessions with each party and its lawyer at a time, or a combination of-both.
- The Mediator then helps the parties examine their best and worst alternatives to settlement, gives them the freedom to create options and refines their suggestions to reach a mutually acceptable agreement. Once consensus is reached, it is reflected in the settlement agreement which is signed by the parties, their lawyers and the Mediator.
- If the matter has been referred by the Court, this settlement agreement will be filed in the Court for appropriate directions. The Court passes an order recording the settlement agreement in consent terms. If an Agreement is reached in pre-litigation reference to Mediation, such an Agreement shall have the same status and effect
- If for any reason a final settlement cannot be reached by the parties or if any party decides not to proceed with the Mediation process, the proceedings are terminated. The Mediator sends a report to the Court informing the Court that the mediation has been unsuccessful. No details or reasons are given and no blame apportioned as the proceedings are confidential between the parties and the Mediator. The report will not prejudice the Court or affect the merits of the case.
It is of utmost importance. Confidential information can be shared by the parties with the Mediator who does not disclose the same to the other side unless any party wants it to be so disclosed. Such confidential information does not form part of the Court's record. All matters relating to the proceedings are to be kept confidential because trust in the Mediator is the crux of Mediation. Views, suggestions, admissions, statements made, evidence produced, proposals made during Mediation proceedings cannot be used in any legal proceedings.
No. Unlike an Arbitrator, the Mediator does not give his/her own judgment about the dispute. The Mediator does not impose terms of settlement on any party. The Mediator does not take sides and does not take a decision. If no settlement is reached, the Mediator informs the Court of the failure to settle without giving any reasons.
Time taken in Mediation depends on the nature of the case. Most cases settle in about 3-5 sessions. Some take even less. Some may take more. But in no event can any Mediation process take more than 90 days which the limit is prescribed by the Mediation Rules of the Delhi High Court. In exceptional cases the Court allows more time up to 30 days. Misuse of the process of Mediation is not unknown. Parties must be wary of the use of Mediation as a delaying tactic or as an attempt to obtain information without a genuine desire to settle.
Yes it does. Section 89 Orders X 1A, 1C, 1D and XXXII-A of the Civil Procedure Code 1908 make it obligatory for the Court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. The Arbitration and Conciliation Act 1996 makes provisions for enabling settlements. Certain other statutes, like the Hindu Marriage Act 1955, focus on the judge's role in attempting reconciliation. The Industrial Disputes Act 1947 and The Family Courts Act 1984 also obligate the court to attempt reconciliation before adjudication. At the highest level, the Indian judiciary has decided that Mediation will be increasingly used in the legal system.
Yes, it is. The law is used to make a realistic assessment of the party's position. Substantive and procedural law is brought into the process. This helps to provide an appraisal of the strengths, weaknesses, limitations and implications of the case which helps settlement. A sustainable settlement must be legally sound, binding and lasting. This naturally calls for legal knowledge from the Mediator.
Success lies partly in the advantages of the process of Mediation and the Mediators' skills. It also lies largely in the readiness of the parties to settle. If someone is bent upon keeping a conflict going, even the most obvious solutions will not work. If everyone wants to see a conflict end, Mediation is the graceful and efficient way to do so.
Yes it is. Once parties reach a settlement agreement and sign it, it becomes enforceable under the provisions of the Code of Civil Procedure and the Arbitration and Conciliation Act. The Court enforces the settlement agreement by the legal process of Execution/ Contempt.
In the Delhi High Court, Mediation services are generally free for the litigant but the Court in given cases may direct the parties to share the costs equally.
If you desire to avail of the pre-litigation services of the Centre, you may contact the Centre directly by registering yourself with the Co-ordinator of the Centre. If you have been referred by an order of the Court, you and your lawyer first need to fill in the application for Mediation which will be provided to you by the Centre. You can then avail of the services of the Centre by marking your presence with the Co-ordinator.