Concept of Mediation
Mediation is a voluntary, structured process where a neutral third party assists
disputants in reaching an amicable resolution. Key features of mediation include:
1. Voluntary Participation: Parties retain control over the decision to settle and
the terms of the settlement.
2. Party-Centered: The disputants are central to the process, actively
participating in negotiations.
3. Structured Yet Flexible: The process is formalized but allows for flexibility to
suit the needs of each case.
4. Neutral Mediation: The mediator remains impartial and does not impose
decisions but facilitates communication and evaluation of claims.
5. Confidentiality: Mediation proceedings are private, and information
disclosed cannot be used in court without consent.
6. Efficient and Cost-Effective: Mediation is quicker and less expensive than
litigation, fostering mutual respect and preserving relationships.
Types and Advantages of Mediation
1. Court-Referred Mediation: Cases pending in court can be referred for
mediation.
2. Private Mediation: Qualified mediators offer their services independently to
resolve disputes.
Advantages:
• Parties control the scope and outcome.
• Participation is direct and voluntary.
• The process is speedy, economical, simple, flexible, and conducted in a
conducive environment.
• Ensures fairness, confidentiality, and effective communication.
• Maintains and restores relationships.
• Focuses on long-term interests and provides creative solutions.
• Promotes finality and compliance, often resolving related disputes.
Mediation ultimately transforms conflict resolution by addressing emotional states,
interaction patterns, and core problems, fostering a comprehensive and mutually
beneficial settlement.
Arbitration
1. Nature: Quasi-judicial process where arbitrator(s) decide the dispute.
2. Governance: Governed by the Arbitration & Conciliation Act, 1996.
3. Binding Decision: Award is binding on the parties.
4. Adversarial: Focus on determination of rights and liabilities.
5. Participation: Personal appearance or active participation of parties is not
always required.
6. Formality: Formal proceeding held in private with strict procedural stages.
7. Appealability: Award can be challenged on specified grounds.
8. Communication: No direct communication between parties.
9. Fees: Does not involve payment of court fees.
Mediation
1. Nature: Non-adjudicatory negotiation process facilitated by a mediator.
2. Governance: Not governed or restricted by statutory provisions, allowing
flexibility.
3. Binding Decision: Binding only if parties reach a mutually acceptable
agreement.
4. Collaborative: Focus on present and future, with mutual agreement
regardless of rights and liabilities.
5. Participation: Personal appearance and active participation of parties are
required.
6. Formality: Informal proceeding held in private with flexible procedural stages.
7. Appealability: Decree/order in terms of the settlement is final and not
appealable.
8. Communication: Optimal opportunity for parties to communicate directly
with each other.
9. Fees: Court fee refundable in case of settlement through court-annexed
mediation.
Comparison with Conciliation and Lok Adalat
Mediation vs. Conciliation
1. Both are non-adjudicatory and voluntary processes.
2. Mediator/Conciliator is a neutral third party.
3. Both processes are party-centered negotiations.
4. Confidentiality is a key aspect of both processes.
5. In conciliation, the agreement is enforceable as a decree of the court.
Mediation vs. Lok Adalat
1. Nature: Lok Adalat can be non-adjudicatory (Section 19) or both conciliatory
and adjudicatory (Section 22B).
2. Consent: Consent of parties is not mandatory for referring a case to Lok
Adalat.
3. Award: Award of Lok Adalat is deemed a decree of the Civil Court and is
executable.
4. Scope: Scope of negotiation in Lok Adalat is limited.
5. Involvement: Parties are less actively involved in Lok Adalat compared to
mediation.
6. Confidentiality: Confidentiality is not observed in Lok Adalat.
Role Play: Resolving a Dispute Using Arbitration and Mediation
Scenario
Two brothers dispute over a family portrait bequeathed to the "favourite child" by
their deceased father’s will, which does not specify who the favourite child is.
Arbitration
1. Issue: Determining which child is the "favourite".
2. Process: Each brother presents evidence to the arbitrator.
3. Decision: Arbitrator decides who fits the definition of the "favourite child"
based on evidence, awarding the painting to that brother.
4. Outcome: No compromise; one winner based on rights and evidence.
Mediation
1. Facilitation: Mediator helps the brothers negotiate a solution.
2. Process: Identifying needs, creating options, controlling the process, and
restoring relationship.
3. Outcome: Parties work out a mutually acceptable agreement, focusing on
creative compromises rather than strict determination of rights.
Stages of Mediation
1. Introduction and Opening Statement
• Establish neutrality, rapport, and understanding of the process.
• Introduce mediator and parties.
• Explain mediation process and ground rules.
2. Joint Session
• Gather information and perspectives.
• Encourage communication and summarize facts.
• Identify areas of agreement and disagreement.
3. Separate Session
• Understand deeper issues and emotions.
• Reality-testing and brainstorming options.
• Encourage creative and mutually acceptable solutions.
4. Closing
• Finalize and formalize the agreement reached.
• Ensure all parties understand and agree to the terms.
By comparing these processes, one can choose the most suitable method for dispute
resolution based on the nature of the conflict, the desired level of participation, and
the flexibility needed in the proceedings.
Summary: Mediation Process and Mediator Roles and Training
Linear Thinking in Mediation:
• Definition: Linear thinking is logical, rational, and fact-based.
• Use in Mediation: Mediators use linear thinking to analyze facts, test reality,
and understand the positions of parties.
Sub-Sessions:
• General Practice: Separate sessions are typically held with all members of one
side, including advocates and other accompanying members.
• Flexibility: Mediators may hold sub-sessions with individuals, groups, or just
advocates from both sides if all parties consent.
• Advantages: Sub-sessions can help mediators understand positions better
and facilitate negotiations, especially when there's a divergence of interest
among parties on the same side.
Exchange of Offers:
• Process: The mediator conveys options and offers between parties.
• Outcome: If negotiations succeed, a settlement is reached. If not, the case
returns to the referral court.
Closing Stage:
• Settlement Achieved:
• Terms are confirmed orally and in writing.
• The agreement is signed by all parties and their counsel.
• The mediator certifies and sends the agreement to the referral court.
• A date for court appearance is agreed upon.
• Settlement Not Achieved:
• The case is returned to the court with a "not settled" report.
• Confidentiality of the mediation process is maintained.
