Mediation
Introduction
• Every process of ADR mechanism has its own basic
principles on which it’s work and giving positive
outcomes.
• Mediation is one of the effective and now well
known alternative dispute resolution methods,
• mediation has its own fundamental principles which
are helpful in settling disputes between the parties
on their mutual consensus.
• Section 89 of the Code of Civil Procedure
• Mediation is a voluntary non binding private
dispute resolution process, in which a neutral
person helps the parties to reach their own
negotiated settlement
• Mediation consists of negotiation between
disputing parties, assisted by a neutral third
party
• it is defined as: "The intervention into a
dispute or negotiation by an acceptable,
impartial and neutral third party to assist
disputing parties in voluntarily reaching their
own mutually acceptable settlement of issues
in dispute".
Characteristics of Mediation Process
• involves two or more parties in dispute over one or more contract issue(s)
• entirely voluntary for non-litigious disputes
• non-coercive, in that the mediator does not decide for the parties, but
rather encourages them to agree to a settlement
• 'assisted negotiation', the third party neutral (mediator) remains impartial
• mediator may provide relationship-building or procedural assistance and
options which had not been previously contemplated by the parties
• mediator encourages parties to explore alternate possibilities/options in
settling the dispute
• more informal and relaxed than that of a court or an arbitration
• rules are those which are agreed to between the parties
• confidentiality is an important ingredient of mediation
• all communications are without prejudice and cannot be used as evidence
in subsequent arbitration or court action
• each of the disputing parties control the disclosure of information to the
mediator and what information can be disclosed to the other parties
Advantages
• Informal
• Quick
• Flexible
• Cost effective
• Confidential
• Preserves relationships
• Control remains with parties
• Allows for creative solutions
• High success rate of 80%
Disadvantages
• Not compulsory;
• Concerns exist around the enforceability of a mediation agreement;
• All parties must agree to a resolution as the result is not guaranteed;
• Can be difficult if either party are withholding information;
• Mediation may not be appropriate if one of the parties required public
disclosure;
• Utilising the services of an unskilled mediator can contribute to an
unproductive resolution;
• An unwillingness of one or both of the parties to cooperate can make the
whole process a waste of time, effort and money;
• If the dispute cannot be resolved in mediation the cost of mediation will
have been wasted;
• During the mediation process either party can withdraw from proceeding
at any time;
• There is the possibility that information may be given away to the other
party during the mediation process that could benefit the other party.
• Mediation The process in which an impartial person
helps disputing parties reach a voluntary, mutually
acceptable resolution of some or all of their issues.
• Mediator An impartial person who assists and
encourages parties in a dispute to:
• Communicate and work toward resolution in good
faith.
• Identify and convey their interests to one another.
• Assess risks.
• Consider possible settlement options.
• Resolve their dispute voluntarily.
Role of Mediator
• Serves as a neutral facilitator
• Summarizes restate and prioritizes
• Issues in a non judgmental manner
• Assists in the generation or clarification of
option
• Evaluates options and possible consequences
• Enforces the rules
• Identifies areas of mutual interest
Code of Conduct for Mediators
• The main objectives of this Code of Conduct
for Mediators are:
• To provide guiding principles for mediators’
conduct
• To provide a means of protection for
mediation participants
• To promote confidence in mediation as a
process for resolving disputes
Code of Conduct of Mediators:
• Impartiality
• Principle of self-determination
• Conflict of Interest
• Confidentiality
• Quality of process
• Agreement to Mediate
• Termination or suspension of mediation-
Principles of the mediation
• Parties should participate voluntarily
• Confidentiality matters in the process
• Mediators are impartial
• An agreement has to be settled with the
satisfaction of parties concerned
• Mediation is without prejudice to other
procedures
mediation generally produces or
promotes
• Greater Degree of Party Control
• Preservation of Relationships
• Mutually Satisfactory Results
• Comprehensive and Customized Agreements.
• A Foundation for Future Problem-Solving
Facilitative mediation model
• Preparatory phase
• Introductory phase
• Understanding phase
• Negotiation phase
• Agreement phase
• Concluding phase
Mediation Act 2023
• Formal Recognition and Framework:
The Act formally recognizes mediation as a valid and enforceable alternative to litigation,
providing a clear legal framework for its conduct.
• Emphasis on Institutional Mediation:
The Act promotes the growth of institutional mediation, which offers a more structured and
efficient process compared to ad hoc mediation.
• Cost and Time Efficiency:
Mediation is recognized as a cost-effective and time-saving alternative to traditional court
proceedings.
• Enforceability of Settlements:
Mediated settlement agreements are made enforceable as court decrees, strengthening the
confidence in mediation as a credible dispute resolution method.
• Online and Community Mediation:
The Act recognizes and encourages online mediation and community mediation, adapting to
evolving needs and promoting accessibility.
• Mediation Council of India:
The Act establishes a central body to register mediators, set professional standards, and
ensure quality in the mediation process.
• Time Limit:
OBJECTIVES OF MEDIATION ACT, 2023
• To establish a legal framework for formalising mediation practices across India.
• To promote the use of mediation as a cost-effective, time-saving, and amicable
dispute resolution process.
• To provide legal recognition and enforcement to mediated settlement agreements
(MSAs).
• To mandate pre-litigation mediation in certain cases for reducing the burden on
courts.
• To alleviate the overburdened judicial system by resolving disputes outside the
courtroom.
• To encourage parties to attempt resolution through mediation before pursuing
litigation.
• To encourage the establishment of mediation service providers for ensuring
professional and standardized mediation services.
• To encourage dispute resolution without hostility, preserving relationships and
goodwill.
• To establish a Mediation Council of India for regulating and promoting institutional
mediation and make mediation accessible to people from all strata of the society
Mediation Act 2023
• Scope and Application:
– The Act applies to mediations conducted in India
where:
• All or both parties reside or are incorporated in India
• The mediation agreement specifies resolution under this
Act
• It is an international mediation
• One party is a government entity and it pertains to a
commercial dispute
• Any other dispute notified by the government
• Pre-litigation Mediation:
– Parties may voluntarily undertake pre-litigation mediation before filing civil or
commercial suits
– Pre-litigation mediation is mandatory for commercial disputes of specified value
– Mediators for pre-litigation mediation must be registered with the Mediation
Council or empaneled by court-annexed mediation centres/legal services
authorities
• Mediation Process:
– Mediation shall be completed within 120 days, extendable by 60 days with
parties' consent
– The mediator shall assist parties in an independent, neutral and impartial
manner
– Mediation proceedings are confidential
– No audio/video recording of mediation proceedings is allowed
•
• Mediation Agreement (Section 4):
– This section defines what constitutes a mediation agreement, its
format, and how it can be recorded. It's important because it
establishes the legal basis for mediation proceedings.
• Writing Requirement: A mediation agreement must be in
writing.
• This can either be a clause within a larger contract or a
standalone document.
• The Act clarifies that ‘in writing’ includes:
– Any document signed by the parties.
– An exchange of communications, including electronic forms as per
the Information Technology Act, 2000.
– Relevant pleadings or other judicial filings where the existence of a
mediation agreement is not denied.
•
• Pre-litigation Mediation (Section 5):
• This is a crucial section as it introduces the concept of
voluntary pre-litigation mediation. It allows parties to
attempt mediation before filing a suit in court for civil
or commercial matters.
– Voluntary nature of pre-litigation mediation
– Special provisions for commercial disputes of Specified
Value
– Types of mediators who can conduct pre-litigation
mediation
– Specific provisions for mediation in motor vehicle accident
compensation cases
• Disputes Not Fit for Mediation (Section 6):
– This section is important as it outlines what types of
disputes cannot be resolved through mediation. It
refers to an indicative list in the First Schedule of the
Act.
• Power of Court to Refer Parties to Mediation
(Section 7):
– This section gives courts and tribunals the authority to
refer parties to mediation at any stage of proceedings,
even if pre-litigation mediation was unsuccessful. It
also allows for interim orders to protect parties'
interests during mediation.
• Appointment of Mediators: (Section 8)
– Parties can agree on a mediator of any nationality,
though foreign mediators must meet specified
qualifications.
– Parties are free to agree on the mediator and
appointment procedure.
– If parties don't agree, the initiating party can apply to
a mediation service provider for appointment.
– The service provider must appoint a mediator within 7
days, either as agreed by parties or from their panel.
• Mediators:
– Mediators may be appointed by:
• the parties by agreement, or
• a mediation service provider.
– Mediators must disclose any conflict of interest
that may raise doubts on their independence.
•
• Termination of Mediator's Mandate: (Section 11)
– A mediation service provider can terminate a mediator's mandate upon:
• a) Receiving an application from a party
• b) Learning of a conflict of interest
• c) The mediator's withdrawal
– For conflict of interest, termination occurs after a hearing if there's justifiable
doubt about the mediator's impartiality and a party desires replacement.
• Replacement of Mediator: (Section12)
– In non-institutional mediation, parties have 7 days to appoint a new mediator
after termination.
– For institutional mediation, the service provider must appoint a new mediator
from their panel within 7 days of termination.
• Territorial Jurisdiction (Section 13):
– This section establishes where mediation can take place and allows for online
mediation or mediation outside the court's jurisdiction with mutual consent of
the parties.
• Commencement of Mediation (Section 14):
– Defines when mediation proceedings are deemed to
have started, which is crucial for legal timelines.
• Conduct of Mediation (Section 15):
– The mediator's role and the principles guiding the
mediation process, emphasizing impartiality and
confidentiality.
• Time-limit for Completion of Mediation (Section
18):
– Sets a 120-day limit for mediation, extendable by 60
days, providing a clear timeframe for the process.
• Mediated Settlement Agreement (Section 19):
– Defines what constitutes a valid mediated settlement agreement and how it should be
documented.
• Registration of Mediated Settlement Agreement (Section 20):
– Allows for optional registration of settlement agreements, which can be important for
enforcement.
• Confidentiality (Section 22):
– Ensures the confidentiality of the mediation process, which is crucial for open and honest
communication between parties.
• Admissibility and Privilege Against Disclosure (Section 23):
– Protects the confidentiality of mediation communications in other legal proceedings, with
some exceptions.
• Termination of Mediation (Section 24):
– Specifies the conditions under which mediation proceedings are considered terminated.
• Cost of Mediation (Section 25):
– How the costs of mediation are to be shared between parties.
