What is Mediation

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.

SRIRAM PANCHU
Senior Advocate 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.

The mediation procedure can be divided into six steps, each of which represents a particular stage of the mediation process. These stages are
  • Convening process and preliminary arrangements
  • Mediation introduction and laying down the ground rules for mediation
  • Statements by negotiators, followed by a restatement of the problem by the mediator
  • Setting the agenda for mediation
  • Facilitating the mediation, by generating options, if necessary
  • A negotiated settlement
  • 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

    Benefits of Mediation

    "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"

    -Mahatma Gandhi

    • The parties have CONTROL over the mediation in terms of its scope (i.e., the terms ofreference or issues can be limited or expanded during the course of the proceedings) and itsoutcome( i.e., the right to decide whether to settle or not and the terms of settlement.)
    • Mediation is PARTICIPATIVE. Parties get an opportunity to present their case in their ownwords and to directly participate in the negotiation.
    • The process is VOLUNTARY and any party can opt out of it at any stage if he feels that it isnot helping him. The self-determining nature of mediation ensures compliance with thesettlement reached.
    • The procedure is SPEEDY, EFFICIENT and ECONOMICAL.
    • The procedure is SIMPLE and FLEXIBLE. It can be modified to suit the demands of eachcase. Flexible scheduling allows parties to carry on with their day-to-day activities
    • The process is conducted in an INFORMAL, CORDIAL and CONDUCIVE environment.
    • Mediation is a FAIR PROCESS. The mediator is impartial, neutral and independent. Themediator ensures that pre-existing unequal relationships, if any, between the parties, do notaffect the negotiation.
    • The process is CONFIDENTIAL.
    • Mediation always takes into account the LONG TERM AND UNDERLYING INTERESTS OF THE PARTIES at each stage of the dispute resolution process - inexamining alternatives, in generating and evaluating options and finally, in settling the disputewith focus on the present and the future and not on the past. This provides an opportunity tothe parties to comprehensively resolve all their differences.
    • Mediation helps to maintain/ improve/ restore relationships between the parties.
    • In mediation the focus is on resolving the dispute in a MUTUALLY BENEFICIALSETTLEMENT.
    • A mediation settlement often leads to the SETTLING OF RELATED/CONNECTEDCASES between the parties.
    • Mediation allows CREATIVITY in dispute resolution. Parties can accept creative and nonconventional remedies which satisfy their underlying and long term interests, even ignoringtheir legal entitlements or liabilities
    • When the parties themselves sign the terms of settlement, satisfying their underlying needs and interests, there will be compliance.
    • Mediation PROMOTES FINALITY. The disputes are put to rest fully and finally, as there isno scope for any appeal or revision and further litigation.
    • REFUND OF COURT FEES is permitted as per rules in the case of settlement in a courtreferred mediation.
    • 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.