Meaning and Scope of Mediation

Meaning of Mediation
Features of Mediation:
1. Confidentiality
2. Voluntary
3. Non-Coercive
4. Non-Aggressive
5. Sustains Good Relationship
6. Informal
Scope of Mediation

I. Meaning of Mediation
“Mediation” is also a well-known term and it denotes to a method of non-binding dispute resolution where
the neutral third party tries to help the disputing parties to arrive at a negotiated settlement. It is synonymous
to the term `conciliation‟. Mediation is a client-driven process. Here the parties appoint a neutral third party
to mediate in a dispute that has arisen between the parties.

Mediation is considered to be one of the types of Alternative Dispute Resolution (ADR). A case can be
referred to mediation in the pre-litigation stage or even during litigation if the judge thinks it �t for the case
to be referred to a mediator. Mediation is a completely private endeavor where the parties and their facts are
kept confidential. The process of mediation is not based on any code or law. However, there are certain
common principals which are followed by the mediators at the time of the mediation session.

Several organizations like the Permanent Court of Arbitration have previously drafted ground rules for the
mediators to follow. Mediation was the process of amicable settlement in the past and is the present and
future.

Mediation is similar to a settlement conference between the parties and their attorneys who are facilitated by
a neutral third-party whose remuneration is given by the parties.

The process involves an exchange of positions through statement of counsel in a group session with all in
attendance, and then private “caucuses” are held at the mediator‟s discretion through which the mediator
explores positions, wants, and needs, and from this creates or solicits offers and counter-offers and if a
settlement is not reached after exhausting discussions and there is no plan and perceived benefit in
continuing discussions, then an “impasse” is declared.

The beauty of settlement through mediation is that it may bring about a solution which may not only be to
the satisfaction of the parties and, therefore, creates a win-win situation, the outcome which cannot be
achieved by means of judicial adjudication[ Vikram Bakshi & Ors V. Sonia Khosla, (2014) 15 SCC 80].

Settlement by `mediation‟ means the process by which a mediator who is appointed by parties or by the
Court mediates the dispute between the parties to the suit.
Settlement is reached by the application of the provisions of the Mediation Rules, 2003 in Part II,
and in particular, by facilitating discussion between parties directly or by communicating with each
other through the mediator, by assisting parties in identifying issues, reducing misunderstandings,
clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute
and emphasizing that it is the parties „own responsibility for making decisions which affect them[ Afcons
Infra. Ltd. & Anr V. M/S Cherian Varkey(2010) 8 SCC 24 ].

II. Features of Mediation

1. Confidentiality

Confidentiality plays a crucial role in making the parties come to a settlement. “The International Chamber
of Commerce (ICC)” mediation rules provide that “unless otherwise agreed by the parties or required by
applicable law, the mediation is private and confidential”.

Section 75 of the “Arbitration and Conciliation Act, 1996” which is an adoption of the UNCITRAL Model
Law requires the Conciliator and the confidentiality is to be maintained by all the parties relating to the
process and the proceeding.

2. Voluntary

Mediation is considered to be a voluntary process to reach a mutual settlement of issues in dispute.

Voluntary generally refers to two important aspects
1. Something that is freely chosen participation and freely made agreements between the
parties; and
2. That there is no force or influence from anywhere regarding the settlement of disputes. This
makes the process party-friendly and very adaptable.

3. Non-Coercive

Since mediation is a voluntary process it is non-coercive in nature, no person from holding an influential
position can coerce any party to agree to a settlement. Pressure can be created in a mediation process to
reach an agreement but until the parties are satisfied no conclusive agreement can be reached regarding the
process of mediation.

4. Non-Aggressive

In a mediation procedure, the mediator ensures that the parties do not engage in abusive behavior whether
verbally or otherwise. In litigation, the atmosphere in the courtroom is intense for the reason that the parties
openly hurl abuses at each other. This not only strains their relationship permanently but patronizes the
parties.

5. Sustains Good Relationship

Mediation can build and improve the relationships of the parties in a disputable cause after the completion
of the process of process.

The objective of mediation is to let the parties strike a settlement and hence the atmosphere of mediation is
similar to a counseling session where the parties can freely discuss things with each other. The cases where
relationships have turned bitter, mediation has been successful in restoring peace and friendly relations
between the parties.

6. Informal

The mediation is an informal process whereby the parties participate in meaningful interaction with one
another. The process of mediation is placed in informal surrounding so as to facilitate the process of
interaction between the parties.

III. Scope of Mediation

Mediation has transcended boundaries and has traversed various fields related to law. Now, mediation is
used to solve numerous disputes in the national and international level which include marital, corporate,
commercial, insurance-related, disputes related to maritime issues, issues of colleagues in a workplace.

Culture and language previously posed a problem in the process of mediation. Through research and the use
of various contemporary technologies, the scope of mediation has widened to the extent that the mediation
is preferred as a means of resolution of disputes over any other method.

The scope of mediation has been further increased by the multi-faceted organizations providing mediation
facilities at the national as well as the international level.

At the national level, the ADR cells in the respective district courts serve as an easily
accessible source of mediation to the rural population. At the international level the
Organizations like PCA, WIPO, and ICC provide cutting edge mediation services.
As rightfully said, mediation is the past the present and absolutely the future of amicable dispute settlement.