NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

ASSIGNMENT

SUBJECT: Resolving Disputes through Mediation (207)

Submitted To: Ms. Nikita Barooah

Submitted By: Satyam Jain

UID: SM0121067
1st Year & 2nd semester

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INTRODUCTION
Mediation has gained a lot of traction in the recent couple of decades, and alternative dispute
resolution ("ADR") procedures have become the front runner in the conflict resolution arena.
This is true not just for interpersonal disagreements, but also for business issues. It's true. As a
result, a wide range of civil disputes, such as those emerging from contracts, have been seen,
employment, partnerships, tortious conflicts, and family or marital ties. Mediation can be used
to resolve consumer conflicts. There are five different kinds of ADR. Mediation, arbitration,
conciliation, negotiation, and transaction are the five options.
Mediation is a time-honored method of conflict resolution that has been practised since the
Vedic period. Mediation enables parties to actively and directly participate in conflict
resolution by clarifying the facts of their issue, laying forth choices or methods to resolving the
dispute, and reaching a final conclusion through settlement. The difference between taking an
issue to court and taking it to mediation is that in court, there is a blame game and the faults
must be demonstrated in the hopes that the Court will provide a solution; in mediation, the
issue is resolved through negotiation, where a solution is sought with the parties' consent after
taking into account both sides' demands.
In addition, I will examine mediation as a means of dispute resolution, the many types of
mediation, the mediation process, and a mediator's code of ethics in my project.
Any way of settling problems without resorting to litigation is referred to as alternative dispute
resolution ("ADR"). ADR encompasses all dispute resolution strategies and techniques that
take place outside of the purview of any governmental authority The most well-known ADR
techniques are the Mediation, arbitration, conciliation, negotiation, and transaction are the next
steps. As the economy grows, despite the fact that court lines, growing litigation expenses, and
time delays continue to be a problem for litigants, alternative dispute resolution (ADR) has
become more popular. Mediation drew a sizable number of plaintiffs. Many contracts now
include a clause like this, that in the case of a disagreement, they will first try to resolve it
amicably by mediation. They will only turn to a judicial mode of dispute resolution if ADR
fails.
Although all ADR processes have a lot in common in that they allow parties to find accepted
settlements to their problems outside of traditional legal / judicial proceedings, they are all
controlled by different criteria. In contrast to mediation and conciliation, where a third party
intervenes to help the parties achieve an agreement, there is no third party who intervenes to
help the parties reach an agreement in negotiation. The third party (an arbitrator or a panel of
arbitrators) will be critical in arbitration since it will issue a binding arbitration award to both
parties. The third party in conciliation and mediation, on the other hand, does not make any
binding judgments.
Mediation is a non-binding, voluntary procedure in which a neutral and unbiased mediator
assists conflicting parties in reaching an agreement. Mediation can be characterised in a variety
of ways, including:
• A systematic procedure in which a neutral individual utilises specialised communication and
negotiating strategies to resolve a conflict.
• A method that assists disputing parties in settling their differences.

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• A process through which conflicting parties reach a mutually acceptable agreement.
Mediation is a non-formal alternative to courtroom proceedings. Mediators are professional
negotiators who bring opposing parties together to try to reach an agreement or settlement that
both sides accept or reject. Mediation is not a legally enforceable agreement. There are several
forms of mediation depending on the mediator's methods or approaches and the sort of conflict
they are managing or dealing with. They are as follows:
• Evaluative Mediation: In terms of the mediator recommending or proposing practical
solutions and successfully seeking to bring the parties to a conclusion, Evaluative Mediation is
frequently seen to be more "engaged."
• Facilitative Mediation: In facilitative mediation, also known as classic mediation, an expert
or professional mediator tries to help the disputants reach an agreement via negotiation. Rather
of giving recommendations or forcing a conclusion, the mediator encourages and motivates
disputants to find their own free solutions by looking into each other's deeper interests. In
facilitative mediation, mediators tend to keep their personal conflict viewpoints disguised in
general.
• Court-Ordered Mediation: Despite the fact that mediation is sometimes described as a
completely deliberate process, it may be ordered by a court that is interested in achieving a
quick and cost-effective resolution. Under Section 89 of the Code of Civil Procedure, 1908, a
judge may send a pending matter to India for mediation. This type of mediation is frequently
employed in matrimonial situations, especially in divorce proceedings.
• Mediation that Changes Lives: In transformational mediation, mediators encourage disputants
to comprehend each other's needs and interests by engaging and enabling them to settle their
disagreement. At its most basic level, the method aspires to transform the parties and their
relationships by assisting them in acquiring the skills they need to implement effective
development.
• Med-Arb and Arb-Med Mediation: In Med-arb, a hybrid mediation-arbitration process, the
parties first agree on the procedure's terms. Unlike many other mediations, they usually agree
in writing that the procedure's outcome will be official. Then, with the support and assistance
of a mediator, they seek to negotiate a settlement to their conflict.
In Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.,
the Hon’ble Supreme Court of India established rules for which cases are appropriate for ADR
and which are not. Based on the decision, the following scenarios were deemed to be
inappropriate for ADR:
1. Representative actions brought under Order 1 Rule 8 CPC in the public interest or in the
benefit of a third party a large number of people who aren't involved in the case.
2. Disputes involving public office elections.
3. Cases involving the court granting authority following an investigation, such as applications
for probate or letters of administration.
4. Cases involving significant and detailed charges of fraud, document falsification, forgery,
impersonation, coercion, and other forms of compulsion.

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5. Cases needing judicial protection, such as claims against juveniles, deities, and the mentally
ill, as well as cases for declaration of title against the government.
6. Cases in which a person is being prosecuted for a criminal offence.
All other civil disputes and lawsuits were to be deemed ADR-eligible. Whenever a case is
brought up to be referred to a mediator, the following steps are followed:
There are several processes involved in convening the mediation. The referral to ADR by the
Court is the first step. The court instructs the parties to pick one of the five modes of alternative
dispute resolution and submit the matter to arbitration, conciliation, judicial settlement, Lok
Adalat, or mediation under Section 89 and Order X Rule 1A of the Code of Civil Procedure,
1908.
Step 1: Convening the mediation process
The Court must consider both the parties' choice of option and the case's suitability for that
option. In order to objectively assess the applicability of ADR, the judge who makes the
recommendation, known as the referral judge, must get familiar with the facts and nature of
the dispute. Then there's the mediation preparation. The referral judge then summons the parties
and urges them to settle their disputes through mediation. This includes figuring out why the
parties are hesitant to participate in mediation and explaining the concept, method, and
advantages of mediation. A referral order issued by the referral judge kicks off the mediation
procedure and the creation of a court-referred mediation.
Step 2: The Mediation Procedure Begins
The mediator must guarantee that all parties and their counsel are present at the commencement
of the mediation session. After then, the proceedings starts with an opening statement. The
purpose is to provide a suitable environment for debate and to urge the parties to achieve an
acceptable agreement. The mediator's opening statement is intended to explain to the parties
the concepts, procedures, and phases of mediation, as well as the mediator's, advocates', and
parties' roles.
Step 3: Setting the Agenda
Setting the agenda is a crucial task handed to the mediator in order to offer clarity and minimise
ambiguity to the mediation process. It requires deciding on the sequence in which
conversations will take place and giving participants a criterion by which they may assess the
negotiation's progress individually. The mediator may choose the time and place for the
negotiations, as well as the issues that the parties must resolve in order to proceed.
Step 4: Negotiation Facilitation and Option Generation
The mediator is in charge of the joint sessions. The goal of the combined session is to collect
data. The mediator makes it possible for the parties to hear and understand one other's points
of view, relationships, and feelings. The petitioner is given the chance to speak for themselves
about their cause, after which their attorney presents the case and explains the legal concerns.
Similarly, the defendant is given the opportunity to explain their case, followed by the
defendant's attorney presenting the case and expressing the legal problems. The mediator
encourages dialogue and gathers information through questions. After the joint session, the
mediator may suggest that each party meet with their lawyers separately.
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Step 5: Reaching a Consensus
The mediator helps parties recognise the truth of their situation and let go of dogmatic stances,
resulting in creative settlement options. The parties negotiate through the mediator until they
achieve a mutually acceptable arrangement. The mediator assists the parties in reaching an
agreement that he feels will satisfy their underlying interests. If the talks fail, the matter is sent
back to the reference court.
Step 6: Closing
There is no such thing as a one-size-fits-all solution. Once the details of the settlement have
been agreed upon, the parties are reunited. The mediator orally confirms the terms of the
settlement as a procedural requirement. The parties write down the specifics of the agreement
and sign it with the aid of the mediator. The agreement is enforceable in a court of law and has
the legal force of a contract. If the parties cannot agree, the case is sent back to the reference
court with the remark "failure to settle." The mediation processes are kept confidential, and the
court is not even given access to them.
Mediation became officially recognised as a form of conflict settlement in India in the
Industrial Disputes Act, 1947. In India, mediation first came to be legally recognised as a
method of dispute resolution in the Industrial Disputes Act, 1947. In 1999, the Code of Civil
Procedure Amendment Act was passed by the Parliament. It provided for Section 89 of the
Code of Civil Procedure, 1908 which allowed the courts to refer to alternative dispute
resolution (ADR) methods to settle pending disputes. Under this, consent of the parties was
made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement
through Lok Adalat, or mediation.
Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under
r. 5(f)(iii). These allow the court to refer cases for mediation even when the parties are not
In India, mediation first came to be legally recognised as a method of dispute resolution in
the\s. The Code of Civil Procedure Amendment Act was enacted by Parliament in 1999. It
established Section 89 of the Code of Civil Procedure, 1908, which permitted courts to submit
ongoing issues to alternative dispute resolution (ADR) procedures. The parties' consent was
made obligatory under this, and the court was given the power to submit matters to arbitration,
conciliation, judicial resolution through Lok Adalat, or mediation.
Furthermore, under r. 5(f) of the Civil Procedure- Mediation Rules, 2003, mandatory mediation
is provided (iii). These allow the court to submit cases to mediation even if the parties are not
ready for it if there is a possibility of a resolution.
The mediator is the process's watchdog. If the parties have put their confidence and trust in the
mediator and opted to try to resolve their issue through mediation, it is critical that the process'
sanctity be preserved, which is dependent on the mediator's ethical standards. Only then can
the mediation process be fruitful and satisfying for both the mediator and the parties concerned.
Indian courts have mediation centres that have established rules, qualifications,
responsibilities, and ethics guiding principles for its empanelled mediators. A mediator must
preserve neutrality, confidentiality, honesty, and impartiality, as well as assure both sides'
informed consent.

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CONCLUSION
While there is no denying that mediation is becoming a viable option, it is still in its infancy in
India. The entire potential of mediation has yet to be realised. Although mediation has been
used effectively as an alternate conflict resolution procedure, in both marital and corporate
matters In India, the mediation process is simple. It's adaptive since it operates in both
directions, assisting conflicting parties in cooperatively resolving their issues and decreasing
the court's workload by reducing the number of outstanding cases.
Mediation is a better and more profitable alternative to the court system because it gives the
parties control over the scope of the mediation in terms of the issues discussed, and its outcome
in terms of the terms of the settlement and whether or not to settle, it is based on voluntary
consent, it allows any party to opt out at any stage if they find mediation to be unhelpful, it
takes less time to resolve disputes than traditional legal channels, and it is strictly confidential.
However, in India, the entire potential of mediation has yet to be realised. The training has
taught me the value of ADR mechanisms in general and mediation in particular. I learned how
mediation works and what the mediator's obligations are via real-life case practise.

BIBLIOGRAPHY
• Types of mediation, VIA Mediation and Arbitration Centre (10 June, 2022 17:47 PM)
https://viamediationcentre.org/readnews/NDcw/Different-Types-of-Mediation.
• Delhi High Court’s Mediation and Conciliation Rules, 2004.
• Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution.
• Mediation Training Manual of India, Mediation and Conciliation project Committee,
Supreme Court of India, https://www.mediate.com/pdf/MT%20MANUAL%20ONDIA.pdf.