ROLES & TECHNIQUES OF A MEDIATOR

MEDIATION AND ADR

Mediation is a voluntary, party-centered, and structured negotiation process in which a neutral third party assists the parties in resolving their dispute amicably through the use of specialized communication and negotiation techniques. The parties retain the right to decide whether or not to settle a dispute and the terms of any settlement in mediation. Even though the mediator facilitates their communications and negotiations, the parties always retain control over the dispute’s outcome.

The parties retain the right to decide whether or not to settle a dispute and the terms of settlement. Even if the case has been referred to mediation by the court or if mediation is required by a contract or a statute, the decision to settle and the terms of settlement are always left to the parties. The right to self-determination is a critical component of the mediation process. It leads to a settlement that was created by the parties themselves and is thus acceptable to them. The outcome of mediation is ultimately determined by the parties. Any party may withdraw from the mediation proceedings at any time before its conclusion, for any reason. Mediation, in essence, is an assisted negotiation process. Mediation addresses both the factual/ legal issues and the underlying causes of a dispute. Thus, mediation is broadly focused on the facts, law, and underlying interests of the parties, such as personal, business/commercial, family, social and community interests. The goal of mediation is to find a mutually acceptable solution that adequately and legitimately satisfies the needs, desires and interests of the parties.

Mediation is a fast, effective, convenient, and less expensive way to resolve a dispute with dignity, mutual respect, and civility. Mediation is carried out by a neutral third party, known as the mediator. Throughout the mediation process, the mediator maintains impartiality, independence, detachment, and objectivity. The mediator assists the parties in resolving their dispute during mediation. The mediator acts as a guide, assisting the parties in reaching their own solution to the dispute. Personal preferences or perceptions of the mediator have no bearing on the dispute resolution process. In Mediation, the mediator collaborates with the parties to facilitate the dispute resolution process rather than adjudicating a dispute by imposing a decision on the parties. The role of a mediator is both facilitative and evaluative. A mediator facilitates when he manages the interaction between the parties, encourages and promotes communication between them, manages their interruptions and outbursts, and motivates them to reach an amicable settlement.

The mediator employs specialized communication and negotiation skills to facilitate a productive interaction between the parties, allowing them to overcome negotiation impasses and reach mutually acceptable solutions. Mediation is a private, closed-door process that is not open to the public. Mediation is also confidential, which means that statements made during mediation cannot be used in civil proceedings or elsewhere without the written consent of all parties. Any statement or information provided by either party, as well as any document prepared or produced for/during mediation, are inadmissible and non-discoverable in any proceeding. Any concession or admission made during mediation may not be used in future proceedings.

Any settlement reached in a case referred to mediation during the course of litigation must be reduced to writing, signed by the parties involved, and filed in Court for an appropriate order to be issued. A pre-litigation settlement is a contract that is binding and enforceable between the parties. In the event of a failure to settle the dispute, the mediator’s report does not state the reason for the failure. The report will simply state, “not settled.”

BACKGROUND AND GROWTH

As the old adage goes, “Justice delayed is justice denied,” The massive backlog of cases in the Indian judiciary has shaken people’s faith in the system. It has also made it difficult for citizens to obtain timely and adequate redress of their grievances. Keeping this in mind, the Law Commission in its 124th and 129th Reports emphasized the importance of courts having the authority to compel parties in private litigation to use arbitration or mediation. The Law Commission advocated for amicable settlement of disputes between parties in its 129th Report, and the Malimath Committee recommended making it mandatory for courts to refer disputes for resolution through alternate means rather than litigation/trials after their issues had been framed by courts.

[1]Furthermore, in its 126th Report, the Law Commission recommended that disputes between the government and its employees be resolved through arbitration. It also recommended the implementation of conciliation procedures for writ matters, as well as the establishment of a Grievances’ Cell to deal with disputes and complaints of PSU and government employees regarding service matters, as well as the use of compulsory arbitration of issues. Moreover, the Malimath committee recommended that a new provision be added to the CPC that requires private litigants to use arbitration and mediation. The committee stated that granting such power to the courts would go a long way toward reducing the burden not only of Trial Courts but also of Revisional and Appellate Courts. As a result, there would be significant divergence of work at the base level, and the inflow of work from Trial Courts to Revisional and Appellate Courts would be reduced.

Therefore, in light of the above recommendations, the Code of Civil Procedure (Amendment) Bill, 1999 was introduced, which inserted Section 89, and Rules 1A, 1B, and 1C to Rule 1 of Order X

MEDIATION AND ITS TYPES

Court – Referred Mediation– It applies to cases pending in Court and which the Court would refer for mediation under Section 89 of the Code of Civil Procedure, 1908.

Private Mediation – In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector and also to the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.

Section 89 of the Civil Procedure Code, 1908

[2]Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.

This section requires courts to refer a dispute to the aforementioned ADR mechanisms if it appears to the court that there are elements of a settlement that may be acceptable to the parties, and the court shall then formulate the terms of such settlement, which will then be observed by the parties. Following receipt of the observations, the Court may, if possible, reformulate those terms and refer the dispute to the aforementioned ADR processes. Further the section provides that if a dispute is referred under sub section (1), then the ADR procedure shall be governed by the appropriate laws.

[3]It was held in Salem Advocate Bar Association v. Union of India that the purpose of section 89 of the Code is to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law’s delay and the limited number of judges which are available, it has now become imperative that resort should be had to ADR mechanism with a view to bringing an end to litigation between the parties at an early date. The Alternative Dispute Resolution mechanism as contemplated by section 89 is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. All this means is that effort has to be made to bring about an amicable settlement between the parties, but if settlements through those methods is not possible, despite efforts being made, the case will ultimately go to trial.

STAGES IN MEDIATION

A typical mediation consists of several stages. These stages are not rigid or inflexible, and they can be modulated to achieve the desired result.

1. [4]Mediation begins with an opening statement in which the mediator establishes his own neutrality, explains the process to the parties, and informs them that everything said during the proceedings is confidential and will not be used if either party decides to go to court to resolve the dispute. The mediator must instill trust in the parties by creating an environment conducive to constructive negotiation.
2. The mediator’s opening statement is followed by the parties’ own opening statement, in which the parties explain their case as each of them sees it, as well as their own perceptions and interests.
3. The stage of summarizing and agenda setting follows the parties’ statements.
4. The next stage is the exploration of issues. The mediator helps parties in focusing upon the issues which arise and in exploring those issues further.
5. This is followed by private sessions or caucuses between the mediator and each of the parties separately. During the course of these private sessions, the parties may exchange information with the mediator so as to enable a candid and frank assessment to be made of the interest of each party. A party in a private session may require the mediator not to disclose to the other party information which has been provided in the course of the session.
6. The private sessions are then typically followed by a joint negotiation session. Private sessions may again be resorted to by the mediator to dislodge a situation of an impasse.
7. Finally, the mediator will facilitate parties to move to an agreement which is a voluntary settlement arrived at between the parties for resolving the issues between them.

A MEDIATOR’S ROLE IN THE MEDIATION PROCESS

[5]Abraham Lincoln once said, “Discourage litigation. Persuade your clients to compromise, whenever you can. Point out to them the nominal winner is often a real loser- in fees, expenses and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good person”.

The Mediator is a neutral third party who assists disputing parties in reaching an agreement. Despite the fact that the parties have the final say on the outcome of the mediation, it is the mediator who initiates the meeting, discusses the problem, and then assists the parties in finding possible solutions. The main considerations for a mediator are impartiality and neutrality. He must maintain complete objectivity at all times. He doesn’t have the option of siding with any of the parties. His primary responsibility is to act as a catalyst between the parties. He must take the necessary steps to facilitate the parties’ discussions and act as a guide while assisting them in reaching a solution. In the case of litigation, there are a number of scenarios in which the parties choose to withhold some information that, if revealed, would cause the case to take a drastic turn. However, in the case of mediation, the parties are given the opportunity to sit alone with the mediator and discuss their side of the problem. It is the mediator’s job to draw the party out of his defensive shell and force them to reveal the truth. While doing so, the mediator’s job is to reassure the party that whatever is said in his presence will be kept completely confidential.

As a result, a mediator facilitates the interaction of the parties and encourages communication between them in order to reach an amicable settlement. He also assists each party in evaluating the situation, determining the likely outcome if the matter goes to trial, and determining how best to use the opportunity of mediation. Even though mediation is a party-centred process, the mediator is a critical component of the mediation structure. The Role of the Mediator is Facilitation not adjudication, The mediator is a neutral. The neutrality of the mediator is akin to the neutrality of a Judge but the role of the mediator is completely different from that of a Judge. The mediator does not either deliver judgment or dictate to the parties the terms of the agreement. As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement. This, the mediator can achieve if he understands and perceives the nature of his function correctly. As a facilitator, the mediator has to understand the underlying issues between the parties. In order to do so, the mediator has to open up communication between the parties and between the parties and himself. The mediator has to enable the parties to understand their own interests and to understand the interests of the disputing party. The mediator must enable parties to distinguish between their positions and interests. In the process of dialogue before him the mediator enables parties to appreciate and evaluate their own interests and those of each other. All along, as he facilitates communication between the parties, the mediator controls the process ensuring on the one hand that he is not judgmental or on the other, an advisor. The effort of the mediator is to ensure that through the mediation dialogue parties arrive at a solution which is in their best interest. Like many other branches of law, acronyms are not unknown to mediation and it has been stated that in enabling parties to move towards a settlement, the mediator has to reflect on the precepts of BATNA, WATNA and MLATNA.

ADVANTAGES OF MEDIATION

[6]Mediation is a better and more lucrative alternative to the court system as-

1. Control- It gives the parties control over the scope of the mediation in terms of the issues discussed, and its outcome, with regard to the terms of the settlement and to settle or not.

Control is vested not with a judge or jury, but the parties themselves and helps them in reaching a mutually agreeable solution.

By giving control to the parties, it may also result in the settling of related and connected issues and disputes.

It also allows the parties to satisfy their long-term and underlying interests at each stage. This is immensely beneficial as it allows the parties creativity in examining alternatives, evaluating options and reaching a settlement. When the parties themselves agree to the terms of the settlement, there is compliance with the terms.

• Consent-based- Based on voluntary consent, it allows any party to opt out at any stage if they find mediation to be unhelpful.
• Participation- It allows the parties to directly participate in the negotiation and present the case in their own perspective.
• Economical- Mediation takes less time to resolve disputes than standard legal channels. While courts may take months or years to pronounce judgements in cases, mediations take mere hours. According to figures released by the Bangalore Mediation Centre, while the mediation process can take a maximum of 60 days, the average time taken to settle a case is a mere two hours.

If a settlement is reached, the parties also save money on their hourly costs and no further litigation. Court fees are also refunded. Since it takes less time, it is speedy, economical and efficient.

• Confidentiality- Mediations remain strictly confidential, with the terms of the mediation being known only to the parties involved and the mediator. This aids in better and effective communication between the parties.
• Conducive to dispute resolution- By providing a procedure that is simple and flexible, mediation can be modified to the demands of each case and allows the parties to carry on with their day-to-day activities. It thus created an informal, cordial and conducive environment for dispute resolution.
• Mutuality- Since parties to a mediation are amenable to mutually working towards a solution, they are more receptive to the other party’s side. This aids in restoring the relationship between the parties and settles the dispute in a mutually beneficial manner.
• Support by mediator- As a neutral, impartial and independent third-party, mediators ensure that the mediation remains a fair process. They also guide the parties through the process as neutral facilitators, encourage creativity in resolution and broaden the range of solutions.
• Finality- Mediation promotes finality in dispute resolution as there is no scope for an appeal, a revision or further litigation on the successful conclusion of a mediation.
• Refund of court fees- Court-referred mediation also allows for a refund of court fees in cases of settlement.

DISADVANTAGES OF MEDIATION

1. Informality- In the informal setting of a mediation, there are no formal rules or procedures that have to be followed. Thus, mediators do not have access to a lot of tools to get people to testify or produce evidence to get to the truth of a matter.
2. Unfairness- Moreover, the lack of formal rules means that there is no way to ensure a fair procedure for the parties involved. An aggressive party might be able to steamroll a timid one despite the best efforts of the mediator.

The imbalances of power that exist in a family may thus also lead to unfairness in the mediation.

• Success not guaranteed- Mediation may also be unsuccessful and not lead to a settlement between the parties involved. The parties will then have to resort to the money and time intensive court system after already wasting a significant amount of them in the mediation.

Non-binding- The agreement reached in a mediation is non-binding. Parties to a settlement may also attempt to dispute the settlement agreement in case the agreement is not made binding on them. They can file another suit in court challenging the legitimacy of the settlement, creating another dispute on top of the underlying one.

The only solution to this is to agree to make the settlement agreement binding on both parties before signing it.

CONCLUSION

A successful mediation results in a negotiated agreement that takes the place of a contract between the parties. The parties cannot pursue any litigation for the underlying dispute if they are dissatisfied with the settlement reached as it would amount to a breach of the contract.

However, if the parties wish to dispute the agreement, they can bring an action in court challenging the validity of the agreement based on principles of contract law, and not on the basis of the underlying dispute.

[1] indianlawportal.co.in

[2] mumbaimediators.com

[3] indianlawportal.co.in

[4] lawcommissionofindia.nic.in 

[5] www.legalservicesindia.com 

[6] blog.ipleaders.in

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