Professional Documents
Culture Documents
Mediation is a confidential process by which a neutral, acting as a mediator, selected by the parties
or appointed by the court, assists the litigants in reaching a mutually acceptable agreement.
The role of the mediator is to assist in identifying the issues, reducing misunderstanding, clarifying
priorities, exploring areas of compromise, and finding points of agreement as well as legitimate
points of disagreement. Any agreement reached by the parties is to be based on the autonomous
decisions of the parties and not the decisions of the mediator.
It is anticipated that an agreement may not resolve all of the disputed issues, but the process can
reduce points of contention. Parties and their representatives are required to mediate in good
faith, but are not compelled to reach an agreement.
Meaning
Mediation is a process of Alternative Dispute Resolution, in which a neutral third party, the
mediator, assists two or more parties in order to help them negotiate an agreement, with concrete
effects, on a matter of common interest.
• It is negotiation carried out with the assistance of a third party.
• The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on
disputing parties.
Mediator
Who can appointment a mediator
Parties are free to agree on the name of the mediator or mediators for mediating between
them.
Who can be appointed as mediators
Any persons other than
• a person who has been adjudged as insolvent or persons
• against whom criminal charges involving moral turpitude are framed by a criminal court
• persons who have been convicted by a criminal court for any offence involving moral
turpitude
• person against whom disciplinary proceedings have been initiated by the appropriate
disciplinary authority
• any person who is interested or connected with the subject‐matter of dispute
• any legal practitioner who has or is appearing for any of the parties in the dispute
Chr. Of MEDIATION
• Neutrality
• Confidentiality
• Separate people from the problem
• Motivating Negotiators
• Counseling
Role of mediator
The mediator shall attempt to facilitate voluntary resolution of the dispute by the parties, and
communicate the view of each party to the other, assist them in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of compromise and generating options in
an attempt to solve the dispute, emphasizing that it is the responsibility of the parties to take
decision which effect them; he shall not impose any terms of settlement on the parties.
Stages of Mediation
Stages of Mediation
Stage I
Pre‐Mediation & Opening the Session
Stage II
Identification of Issues
Stage III
Generating Options and Problem‐Solving
Stage IV
Agreement Writing and Post‐Mediation
ADVANTAGES
• If mediation follows no set procedure, results in no assured outcome, and cannot compel
parties to agree unless those parties wish to do so, what advantages are there to
mediation?
• Mediation is relatively inexpensive.
• Mediation is relatively swift. Mediation does not run by a court schedule and sessions can
be easily scheduled any time at the mutual convenience of the parties and the mediator,
and can take place in a variety of locations.
• Mediation is relatively simple. There are no complex procedural or evidentiary rules which
must be followed.
• Mediation allows the parties to revise and adjust the scope of their conflict :In mediation, as
circumstances change so can the topics up for discussion. This increased flexibility makes it
easier for negotiators to act as problem‐solvers instead of adversaries.
• Mediation allows for flexible solutions and settlements. The relief available in court is
usually based on pecuniary damages, and equitable relief is hard to come by. In mediation,
however, the parties can agree to a settlement requiring, or restraining, action by one party
which was not originally envisioned as something beneficial to the other party.
• Settlements reached in mediation are more agreeable to both parties than court
judgments. Because any settlement arrived at through negotiation is necessarily agreed to
voluntarily by both parties, obligations under the agreement are more likely to be fulfilled
than obligations imposed by a court.
ERRORS OF MEDIATION
Some of the typically mentioned disadvantages /Errors of mediation.
Mediation does not always result in a settlement agreement. Parties might spend their time and
money in mediation only to find that they must have their case settled for them by a court. Opting
for mediation, therefore, presents something of a risk. Further, if mediation fails, much of a party’s
“ammunition” might have already been exposed to the opposing party, thereby becoming far less
useful in the ensuing trial.
Mediation lacks the procedural and constitutional protections guaranteed by the federal and state
courts. The lack of formality in mediation could be a benefit, as noted above, or a detriment.
Mediation between parties of disparate levels of sophistication and power, and who have disparate
amounts of resources available, might result in an inequitable settlement as the less‐well
positioned party is overwhelmed and unprotected.
Legal precedent cannot be set in mediation. Many discrimination cases, among others, are brought
with the intention of not only securing satisfaction for the named plaintiff, but also with the hope
of setting a new legal precedent which will have a broader social impact. These cases are only
“successful” if a high court (usually the United States Supreme Court) hands down a favorable
decision on the main issue. Mediation is therefore not beneficial for such cases.
Mediation has no formal discovery process. If one of the parties to a dispute cannot fully address
the case without first receiving information from the other party, there is no way to compel
disclosure of such information. The party seeking disclosure must rely instead on the other party’s
good faith, which may or may not be enough.
Confidentiality of mediation
When a mediator receives factual information concerning the dispute from any party, it shall be
confidential and the mediator shall not be compelled to divulge
information regarding those documents.
SETTLEMENT AGREEMENT
When it appears to the conciliator that there exist elements of a settlement, which may be
acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to
the parties for their observations.
After receiving the observations of the parties, the conciliator may reformulate the terms of a
possible settlement in the light of such observations.
If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written
settlement agreement.
When the parties sign the settlement agreement, it shall be final and binding on the parties and
persons claiming under them respectively.
FINALITY
The settlement agreement shall have the same status and effect as if it is an arbitral award on
agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.
• Termination of conciliation proceedings
• By the signing of the settlement agreement by the parties
• By a written declaration of the conciliator
• By a written declaration of the parties addressed to the conciliator
MEDIATION
Mediation is a process in which a third party facilitates and coordinates the negotiation of disputing
parties.
Mediation is trying to get two people to do that which they least want to do – talk to each other.
Mediation process is a flexible one. There is a structure to the mediation process, it is not rigid but
rather fluid in nature.
Mediation has been used since thousands of years as a primary means of conflict resolution. The
Indian history reflects this.
In China and Japan, Mediation and Conciliation is used as primary means of dispute resolution.
Successful mediation programmes in India
Bangalore Mediation Centre
Salem Advocate Bar Association case – Mediation Rules framed – unsuccessful
ISDLS training programme (referral Judges and mediators)
Workshops, booklets, documentaries, mediation week
Court Annexed mediation by trained advocate mediators – 84 persons trained
Jan 2007 to Jan 2008 – 3079 cases referred and 53% of those mediated got settled
Delhi Mediation Centre Judicial Mediation – grand success
1193 cases decided in first year
59% success in Tees Hazari courts
80% success rate in Karkardooma courts
Average time 63 to 113 minutes