MEDIATION

Three main styles of Mediation:

1. Evaluative
2. Facilitative
3. Transformative
Techniques of Mediation:
1. introductory remarks
2. statement of the problem by the parties
3. Information gathering time
4. identification of the problems
5. bargaining and generating options
6. reaching an agreement
Seven elements of Mediation:
1. interests
2. legitimacy
3. relationships
4. alternatives
5. options
6. commitments, and
7. communication
These seven-elements approach can be particularly helpful during pre-
negotiation preparation.

Mediation Skills:

1. communication clearly

2. listening effectively
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3. facilitate communication among all participants

4. promoting exploration of mutually acceptable settlement options

5. conducting oneself in a neutral manner

Laws Governing Mediation 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.

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 ready for reference for
mediation if there is an element of settlement.

Types of Mediation
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 Statutory/Mandatory

There are some kinds of disputes that are required by law to be

subjected to the mediation process, such as disputes in labour and
family law. In India, r. 5(f)(iii) of the Civil Procedure- Mediation Rules,
2003 provide for mandatory mediation, though recourse to it is rare.

 Court Ordered

Some sort of alternative dispute resolution is required by most

jurisdictions in India before resolution through the judicial process. As
soon as a case is filed, the parties are provided with a number of ADR
options out of which they must select and pursue one unless exempted
by the court.  

1. Court-Annexed

Under Court-Annexed Mediation, the mediation services are

provided by the court as part of the judicial system.

The Court maintains a list of skilled and experienced mediators

who are available to the parties. The Court appoints a mediator
and sets a date by when the mediation must be completed. The
results of the mediation are confidential, and any agreement
reached is enforceable as a judgement of the court.

Since the case is referred to a court-annexed mediation service,

the overall supervision is kept on the process and there is no
feeling of abandonment by the system. The litigants, lawyers
and judges become participants in the system and it is felt that
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the settlement is achieved by all the actors in the justice delivery

system.

The same lawyers who appeared in the case represent their

clients before a mediator and the litigants are also allowed to
participate. The popular acceptance for mediation also improves
as it is the integral and impartial court-system which is seen as
extending an additional service. The dispensation of justice thus
becomes well-coordinated.

2. Court-Referred

Under Court-Referred Mediation, the court merely refers the matter to a

mediator.

 Private

In private mediation, mediation services are offered on a private,

monetary basis by qualified mediators to the Court, general public, and
the commercial and governmental sectors for dispute resolution through
mediation. Recourse may also be taken to private mediation in pending
cases or pre-litigation disputes.

Contractual

1. Parties to a contract may include a mediation clause to resolve

disputes as part of the terms of their agreement as it can
effectively resolve contractual disputes before they turn into a
protracted legal battle. The conditions of the mediation and the
selection of the mediator are mentioned in the contract. The
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results of the mediation may be enforced as judgements of a

court.

2. Voluntary Parties to a dispute may also decide to seek

mediation off their own accord, without being compelled by the
law, the court or a contract. This can be done at any time and is
controlled by the parties.

Cases Suited for ADR:

In Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction

Co. Pvt. Ltd. and Ors., the Supreme Court laid down guidelines
pertaining to the kind of cases that would be eligible for ADR and those
not. It ruled that the following nature of cases would be considered
unsuitable for ADR-

1. Representative suits under Order 1 Rule 8 CPC which involve

public interest or interest of numerous persons who are not
parties before the court.

2. Disputes relating to election to public offices.

3. Cases involving grant of authority by the court after enquiry, as

for example, suits for grant of probate or letters of
administration.

4. Cases involving serious and specific allegations of fraud,

fabrication of documents, forgery, impersonation, coercion etc.

5. Cases requiring protection of courts, as for example, claims

against minors, deities and mentally challenged and suits for
declaration of title against government.

6. Cases involving prosecution for criminal offences.

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Civil suits and cases to be considered suitable for ADR:

1. All cases relating to trade, commerce and contracts:
 Disputes arising out of contracts (including all money claims);

 Disputes relating to specific performance;

 Disputes between suppliers and customers;

 Disputes between bankers and customers;

 Disputes between developers/builders and customers;

 Disputes between landlords and tenants/licensor and licensees;

 Disputes between insurer and insured;

All cases arising from strained or soured relationships:
 Disputes relating to matrimonial causes, maintenance, custody
of children;

 Disputes relating to partition/division among family members/co-

parceners/co-owners;

 Disputes relating to partnership among partners.

All cases where there is a need for continuation of the pre-existing
relationship in spite of the disputes:
 Disputes between neighbours (relating to encroachments,

nuisance etc.);

 Disputes between employers and employees;

 Disputes among members of societies/associations/Apartment

owners Associations;
All cases relating to tortious liability:
 claims for compensation in motor accidents/other accidents;
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All consumer disputes:

 Disputes where a trader/supplier/manufacturer/service provider
is keen to maintain his business/professional reputation and
credibility or `product popularity.