Made By :- Paras Sehgal

Enrollment number:- 02819103819

Ballb:-05
Date:-22 nd September 21

Q1.What is Mediation? Explain the difference between mediation and other ADR mechanisms

A1. Mediation is one of the methods of alternative dispute resolution (ADR) available to parties.
Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which is a
process of ADR somewhat similar to trial, mediation doesn’t involve decision making by the neutral
third party. ADR procedures can be initiated by the parties or may be compelled by legislation, the
courts, or contractual terms.Mediation is an informal, but structured settlement procedure. A
mediator is employed to facilitate and assist parties in reaching an amicable dispute settlement.

The main characteristics of mediation are that it provides; a voluntary, non-binding, confidential and
interest-based procedure. Parties are free to terminate mediation at any time after the first meeting. No
decision can be imposed on the parties involved, and they may or may not agree upon a negotiated
settlement. The confidentiality principle assures that any options the parties discuss will not have
consequences beyond the mediation process. Interest-based procedure means that the criteria
established to reach resolution does not solely adhere to the law, instead it can include considerations
concerning financial, business and personal interests as well.

The role of the mediator is to assist the parties in reaching a negotiated agreement. Unlike an arbitrator,
the mediator is not a decision-maker. In a facilitative mediation, the mediator merely assists the parties
in their communication and negotiations. In an evaluative mediation, the mediator also provides a non-
binding assessment of the dispute.

B. Difference between mediation and other ADR Mechanisms…..

1. PRESENCE OF CODE

Mediation does not have any formulated guidelines but has set standards of ethics which one is
required to follow. Negotiation is completely dependent on the clients. Lok Adalats gives great
freedom to the presiding judges to decide on the method and the process of Lok Adalat. Few clauses
regarding the establishment of Lok Adalats are enshrined in the Legal Services Authority Act,1987.

2. PRESENCE OF PROCEDURAL LAW

 A major stick for differentiating between the different types of ADR is finding out whether the
type is a law-driven process or a client-driven process. Arbitration is a law-driven process,
where the procedure is mentioned in several statutes and guidelines in which mediation and
negotiation are a client-driven process.

There is a process to be followed in the process of arbitration from the selection of the
arbitrator to the creation of the arbitral award; everything is according to a set of rules and
procedures.

On the contrary, in mediation, the mediator is the moderator of the procedure. While in
negotiation the parties are given prime importance, the parties decide the venue and the
time. The process is based on their preferences. Client counselling, on the other hand,
depends entirely upon the counsels.

3. POSITION OF THE COORDINATOR

The arbitrator follows the law and presents the arbitration award, which is equivalent to an order by
the civil court. On the other hand, the role of the mediator is to facilitate the negotiation between the
parties thus helping them reach a settlement. Unlike the arbitrator, the mediator cannot interfere and
suggest ways to settle the disputes. Mediators act as catalysts to speed up the process of discussion
between the parties.

4. POSITION OF THE PARTIES

The position of the parties in a dispute is often the thing that differentiates the different types of
Alternative Dispute Resolution methods. In some types, the parties are given more importance while
in the other type the coordinator is vested with all the powers.

In arbitration, for example, the arbitrator decides over the merits of the case and hence the arbitrator
is given greater power over the parties. Whereas in a negotiation process the parties are vested with
all the powers. They decide the venue, time, process and finally agree on their own.

In a mediation process, the position of the mediator is subordinate to that of the parties. The
mediators are often relegated to silent observers in mediation. The interest of the parties is given
prime importance in all the types of ADR. In Lok–Adalat the parties do not get to decide the venue of
the place.

5. GENRE OF CASES

The ambit of cases covered by the different types of ADR is also sometimes an area of differentiation.
For example, mediation ranges from marital to work-place related issues. Arbitration mainly deals
with commercial and business issues. Negotiation ranges for varied subjects and has a varied scope.
Local Lok-Adalats deal mostly in cases of telecom and finance where the corporations try to settle
their disputes in one-go. Panchayats have wide jurisdictions from civil to criminal cases.