Mediation is the flagship of the ADR movement, which for us is not alternative dispute resolution but appropriate dispute resolution. Mediation is a different paradigm and path from litigation. In litigation the focus is on the past, on establishing blame and liability and a win-lose result. In mediation the emphasis is on the future, on cooperation and communication, on sustainable solutions, which are a win-win for all parties.
Mediation focuses on long-term interests, shows parties the weaknesses, not just the strengths of their case, and makes them examine their alternatives to a negotiated agreement. It gives the parties the freedom to suggest options for settlement. Mediation is a voluntary process where the parties retain decision-making rights all through and are only bound when they enter into a written agreement concluding the mediation.
Founder, Indian Centre for Mediation and Dispute Resolution
In mediation the parties are encouraged to participate directly in the process. The expanded framework of discussion in mediation consists of both the applicable law and the underlying interests of the parties. The mediator, an expert in the process of dispute resolution, controls the proceedings, serving in the role of peacemaker. The process of mediation encourages the parties to voluntarily reach an agreement that meets all the parties' needs. It is intended to complement the judicial process and it is highly adaptable to different contexts.
After the settlement is reached, as mentioned earlier, it has the power of a binding contract between the parties and can be enforced by a court of law. It strengthens the mediation process, since it makes settlement immediately capable of being executed and also exposes the other party to the risk of civil contempt in the event that he does not show commitment to the implementation of the settlement
"My joy was boundless.I had learnt the true practice of law.I had learnt to find out better side of human nature and to enter men's hearts. I realised that the true function of a lawyer was to unite parties driven as under.
The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing out private compromises of hundreds of cases.
I lost nothing thereby-not even money; certainly not my soul"
The importance of mediation lies in the fact that it has the potential to provide an expeditious, economical and private resolution of the problems that have arisen between the parties. Most importantly, the process emphasises the participatory role of parties. The resolution of the dispute depends upon the parties themselves. Ultimately, each party knows best its needs and interests. Mediation enables each party to give expression to its perceptions and view points in a confidential and private surrounding. Every party is facilitated by a mediator to appreciate the perception of the disputing party to the problem at hand. Parties can explore all the facets of the relationship between them. Some of them cannot be dealt with in a conventional Court setting where reception of evidence is governed by strict rules. In matters relating to business and personal relationships, confidentiality is an important value for disputing parties. The negative publicity attendant upon a Court case can well be obviated when the parties deal with each other in a mediation proceeding which is private and the confidentiality of which is protected by the law. The scheduling of mediation can typically be arranged to suit the convenience of the parties so as to facilitate an early completion.