What is mediation?

• Any Dispute resolution may be done through two ways. One is by adjudication which is binding process where a decision is given by third party. The second method is by negotiation which is non-binding and it is done through negotiation between the parties.
• A binding dispute resolution may be done any of the two ways. It may be done via public forum such as courts/tribunals or may be done through arbitral tribunals.
• The difference between the two is that in courts or tribunals adjudicating body is not chosen by the parties but the state and they are governed by procedural laws. In arbitral tribunals, the adjudication is done through the framework suggested by Arbitration and conciliation act of 1996.
• The significant difference between the binding and non-binding adjudication is that in former it is the possibility that decision may not arrive in the interest of one of the parties and could be averse to his interest i.e. one party wins and other loses. While in the later there remains an endeavor to arrive at mutual agreement between the parties and there is no win or lose situation but an amicable solution.
• This non-binding adjudication may further be done by two methods: By direct negotiation or by a neutral third party. For direct negotiation there are no set rules only the agreement is governed by Contract Act, 1872. The negotiation by neutral third party may be done by any of three modes-Mediation, Conciliation and Lok Adalats.
• Mediation, Conciliation and Lok Adalat are the non-adjudicatory processes of dispute resolution in which a neutral third party facilitates the parties to the dispute to reach a suitable settlement. In all these mechanisms a neutral third party is involved which listens to the parties at dispute in private or at joint meetings and facilitates an amicable settlement.

• As far as mediation is concerned it is a non-binding and non- adjudicatory dispute resolution process. In other words, it is a voluntary and flexible negotiated dispute resolution mechanism with the aid of experts. In this process it involves an expert who is neutral third party who listens to certain facts and circumstances of the dispute and creates an atmosphere conducive for parties to explore various options and seek to reach a satisfactory settlement.

• Though mediation and conciliation appear to be same but in practice they are different. Where the person facilitating the settlement also suggests the terms of settlement the term becomes conciliation and where the person facilitating the settlement merely facilitates the disputing parties to arrive at a settlement without suggesting any term so that the parties themselves find a solution and reconcile their difference, the process is mediation.

• Another view is that if the settlement is attempted by the third party is on a reference by a court in a pending litigation, it is mediation, and if the settlement is attempted with the help of third party it is called conciliation.

In other words the negotiate settlement assisted by the third party pre litigation is known as ‘conciliation’ and a negotiated settlement assisted by a neutral third party is a ‘mediation’.

Legal definition

• Mediation in its plain and simple meaning is nothing but facilitated negotiation.3 However, comprehensively, mediation may be defined as a voluntary process of dispute resolution where a neutral third party (the mediator) with the use of effective and specialized communication and negotiation techniques aids the parties in arriving at an amicable settlement.

• It has been derived from the Latin word ‘mediare’ which means ‘to be in the middle.’Therefore mediation may be defined as the process which is aimed at searching the middle path between the disputes  among the parties so that a mutually agreeable settlement may be worked out. It is a non-adversarial dispute settlement approach and a well-known ADR mechanism.

Scope and purposes

The Purpose behind ADR is to lower the burden of cases in Courts. Due to huge pendency of cases in courts it has become challenging for the courts to deal with such arrears of cases. While in case of mediation it is one of the purposes.  It is a means to avoid pitfall of litigation. There are plenty of problems with our justice delivery system. These are broadly delay, expense, rigidity of procedure and reduction in participatory role of parties.

We are already aware of the role of mediation in reducing expense of litigation and saving time for justice delivery. But let us understand the role of mediation in reducing procedural rigidity and facilitating participatory roles of parties in dispute resolution.

• Procedural flexibility: The institutional mechanism for justice dispensation lays great emphasis on applying rigid procedures so that one litigant can seek justice in accordance to same procedural formulation as another litigant. But over the time the procedural law has become so complicated that it sometimes leads to miscarriage of justice due to technical lacuna in the case. Mediation law on the other hand provides that it does not require rigid procedures and principles of evidence act and of code in the settlement of disputes. A mediator is flexible enough to listen to the parties separately at any stage which he considers necessary in his opinion.
• Participatory role: A limited role is provided to the parties by courts to participate in judicial procedures. It allows them to present their submissions before court through lawyers. Hence the legal professionals play a significant role in judicial procedures. However, in Mediation parties themselves are involved directly in resolution process. Parties in person may submit their special problems before the mediator. It also provides them to vent their emotions, opinions, interests and perceptions which is not often allowed in the formal judicial proceedings.

Hence, mediation has potential to solve an array of problems such as delay and expense, rigidity in procedure and provides participatory role to the parties and hence has potential to provide solutions which are beyond the conventional legal remedies.

Advantages of mediation

Mediation is a time conserving process and besides it saves time it also saves energy and money of parties. It is procedurally flexible and hence saves the parties from harassment and excursions of lengthy litigation. It is a simple procedure. It is informal and maintains confidentiality between the parties and mediator. It reduces tensions regarded with litigation. Several advantages of the process of mediation may be discussed under the following heads:

• Cost Effective and speedy resolution: Mediation offers an ADR mechanism for cost effective and expeditious resolution of disputes. The costs involved in the process of mediation are nominal in  comparison to the judicial procedures or Arbitration. In this process the lawyer’s fee and cost fee on the parties are saved. There are no procedural obligations in the process nor any legal claptrap. Hence the process is quite simple. The flexibility of procedures and avoidance of legal formalities leads to speedier resolution of dispute. On the top of that once the process reaches the settlement the dispute stands as resolved finally. Thereby the costs and hassles of successive appeals are avoided.

• Creative solutions: It allows the parties to formulate creative and tailor- made solutions for their disputes with regards to the needs and interests of the parties at dispute which would not have been possible through arbitration or litigation. In this process parties themselves resolves the disputes among themselves and are free to formulate a suitable solution by themselves as per their requirement. The hallmark of mediation is therefore its capacity to help the parties expand traditional settlement discussions and broaden resolution options, often by going beyond the legal issues in controversy. Hence, the mediation process provides novel broad-based solutions rather than straightforward legal adjudication.

• A Win-Win situation: Mediation is essentially non adversarial in nature and fundamentally parties are not opponents in mediation, but are collaborators striving towards a mutually acceptable resolution which results in a win-win situation as the final outcome is arrived at with the consent of both the parties and leaves both the parties satisfied. This is the beauty of the process of mediation that in this process neither of the parties loses but the outcome comes from the mutual agreement of both and interests of both the parties are conserved. Even where mediation does not result in a final settlement, and the dispute remains in trial, the joint communication established and the clarification of the nature of the dispute, if not an actual narrowing of the conflict, makes the trial proceed much more efficiently.

• Preservation of Relationships: In mediation the parties alone are responsible for their own decisions which come forth through the absence of formality of court procedures and through open discussion of issues and free interchange of ideas resulting into a greater likelihood of a lasting resolution.16 It facilitates both the parties to participate in the in the process directly without the involvement of legal expert, communicate their grievances freely and work together with the opposite party to reach mutually agreeable settlement. It provides an atmosphere where disputes are resolved in cool, composed and amiable atmosphere. Hence, focuses on long-term interests and bonding, fosters amity and friendship. Since neither of the party loses and at the end result there remains no scope of disagreement between them, relations between the parties are preserved for long term basis.

• Confidentiality: This is the prime advantage of Mediation process that confidentiality remains between the mediator and the parties concerned. Unlike proceeding of the court third parties cannot get access in mediation proceedings. The mediation proceedings are supposed to be confidential between the mediator and the parties. There is confidentiality even between one party and mediator i.e. if one party provides any information to the mediator; it is to be kept confidential even from the other party subject to a specific condition. Mediation is confidential whether or not it results in the settlement and resolution of the dispute. Even when it is unsuccessful one cannot disclose what has been transpired in the proceedings. This is despite the fact that confidentiality in mediation has no statutory backing19 because inherently the process is considered confidential. The courts have also emphasized upon the aspect of confidentiality in mediation proceedings.

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