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Fast... Legal... All India Reporter

Mediation
Know What Future Holds

ISSN 2349-6649 VOLUME 8 ISSUE 1 | www.flairtalk.com

COVER STORY
Mediation
Know What Future Holds
By VEENA RALLI, Advocate, Mediator and Trainer, SAMADHAN, Delhi High Court Mediation and Conciliation Centre
“The best way to predict the future is to
create it.”
~ Abraham Lincoln
M ediation, with all its unique
features, approach and benefits
has become the latest buzzword as a
mode of Alternative Dispute Resolution
(ADR) to the traditional adjudicatory
process and is marching ahead with
its fascinating features as one of the
most sought-after choice for conflict
resolution.
Conflict is inevitable and is bound
to occur as values, beliefs, priorities,
needs, interests, perspectives and
opinions can never be the same of
two different persons. Incomplete,
ambiguous or lack of communication
between family members, friends,
neighbours, business associates,
customers, employer-employees,
principal-agent or such like
relationships can lead to conflict.
Regardless of the nature of the reaction
to a conflict, the conflict has the
characteristics to put everything on
halt, multiply the agony and the pain.
It holds within itself the power of
destruction and therefore, it needs to
be addressed and resolved.
For a very long time, the only recourse,
believed and considered to be
available to resolve conflicts, has been
through adversarial system where
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a third party is put in-charge of the
situation to decide for the conflicting
parties by hearing the parties though
representatives and decide, based
on one’s own understanding of the
perspectives of the parties.
The adjudicatory process leads to
the third party upholding the case of
the one side and rejecting the case
of the other, win for one and lose for
the other. To prove oneself right, the
loser fights up to the highest court. In
the whole process of establishing the
right and the wrong, the parties lose
on money and time, and the truth
still does not emerge despite the long
driven legal battle involving exorbitant
litigation costs. In the whole gambit
of right and wrong, relationships get
shattered and unable to survive.
By amendment in Section 89 of the
Code of Civil Procedure, mediation
was introduced as an alternative to
the old age existing adversarial system
amongst other modes like arbitration,
conciliation, lok adalat and judicial
settlement.
What Is Mediation?
“Mediation is a method of dispute
resolution involving a neutral third-
party who tries to help the disputing
parties reach a mutually agreeable
solution.”
“Mediation is a voluntary, party-
centred, structured, negotiation
process, conducted by a neutral
third party, who possesses special
communication and negotiation
techniques, to assist the parties in
resolving their disputes.”
Mediation process is private and
confidential. Mediation promotes
active and direct participation of the
parties and the general public is not
allowed to participate or even watch
the proceedings. It is confidential, as
the statements made in the process
are not disclosed without the consent
of all concerned. Even the Mediator is
not allowed to disclose the information
shared with anyone, including the
parties, unless permitted to do so.
Mediation is less formal, people-
friendly, simple process which allows
the disputants to freely interact and
communicate with each other in a
positive environment. It does not allow
the parties to just dwell in the past. It
takes them to the process with the help
of the Mediator where they discuss
their past to create a better future. The
disputing parties themselves determine
the terms of resolution so they comply
with them and this way, the parties get
assured results.
Above all, the parties come out of
their personal realms of “I” and “You”
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to the arena of “We”, look at their
contribution to the cause of conflict
and work to contain the same for
mutual gains. It is creative as the
outcome is not limited merely to the
possibilities already available, it creates
more viable and favourable solutions to
the problem causing conflict. It is the
best method of dispute resolution as
the parties make all the endeavours to
make the process work and amicably
resolve their disputes.
The role of the third neutral person,
Mediator, is not to adjudicate and
find out who is right or wrong.
The Mediator’s role is to make the
parties to look at the root cause of
the conflict, identify the underlying
interests and enable them to focus
on finding solutions, thus leading to
amicable resolution. Getting room
to air emotions, makes this process
completely distinctive. It is important
to let someone have their say so they
can start moving away from their
emotional irrational response towards a
rational reasoned response. If a party is
genuinely upset by something the other
party has done or said and it is getting
in the way of moving forward, then it
is important to give them the required
space to express their emotion. If
someone is forced to suppress emotions
then it affects the ability to think
rationally. In mediation, the parties
get an opportunity to express, which
enables them to let go of their pent-up
emotions and it leads them to move
towards logical thinking. In the process
of mediation, the parties are made to
separate the people from the parties
and to focus only on the problem and
find out solution by thinking outside
the box.
The entire mediation process is very
comforting. There is no risk of losing.
All parties negotiate to gain and do not
agree to terms unless they find them
favourable. Even if the negotiations
do not result into an agreement, they
result into better understanding of
one’s own position and that of the
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opponent and creates a premise for
future negotiations.
Mediation, with its collaborative and
futuristic approach, encourages the
parties to build upon their relationship
and a ‘fight and win’ turns into ‘win-
win’ for all. The process is supported
by law. The outcome is mandated by
law and the disputing parties get tailor
made solutions based on cultural
nuances which find no place in the
traditional legal system. And all this
is possible even in most complexed
matters at a minimum cost, both in
terms of money and time.
Keeping in mind the benefits of
mediation, it can be used to help
remove conflicts, including but not
limited to, family and matrimonial
disputes, disputes of child rights and
child custody, commercial disputes
arising from business contracts,
transaction disputes, real estate and
construction disputes, consumer
disputes, employment and service
disputes, industrial disputes, banking
and insurance related disputes,
intellectual property rights disputes,
and many more disputes of diversified
nature in which a neutral third person
COVER STORY
can assist the conflicting parties to
find a mutually acceptable solution
to their problem and resolve their
disputes by using negotiation skills and
communication techniques. Mediation
is also possible to resolve landlord
tenant relationship without moving for
eviction. It works where parties want
control over the outcome or prompt
resolution or where the case is too
complicated and parties want quick
relief or want something outside the
prayers.
In a society, where people are
encouraged to take and support
opposing positions, mediation focuses
on real interests and needs instead.
Mediation provides a viable alternative
to resolve disputes. One can see
that the traditional adversarial and
positional negotiation about right/
wrong, win/lose, is now being replaced
with mediation as an appropriate
dispute resolution by the recognition
of the fact that there are usually several
sides/perspectives running at the same
time in a conflict, based on experience,
assumptions, motivations, aspirations
and objectives. In a family dispute,
where generations were fighting over
years to establish them to be right,
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COVER STORY
both in managing the affairs of the
business and those of the relationships,
only mediation could bring them to a
level playing field where one could see
the righteousness in the perspective of
the opponent only when mirror image
was created by controlling the strings
of fair process by an experienced
mediator. The warring parties agreed
to separate their business and ensured
to provide support to each other till the
establishment of their independent
business ventures and their wives,
who were not even the parties to the
litigation, played their important role
of gatekeepers and helped everyone to
maintain their relationship which was
integral to the family. This is the magic
of mediation.
The beauty of mediation lies in its
infinite flexibility as a means to help
explore the real underlying issues
in a dispute and look creatively and
generate options for the future,
without blocking one’s mind with
legal positions, notions of rights
and entitlement. This can well be
understood through a real example.
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A property which was sold by X to
Y through an agreement to sell, was
sold to Z by a separate document,
during the continuance and existence
of the previous agreement. Multiple
litigation continued for over a decade.
Both, Y and Z, having decrees in
their possession from the trial courts,
Y for possession and Z for money,
were struggling to get execution of
their respective decrees against the
legal heirs of X, who were in physical
possession of the suit property.
Keeping in mind the complexity of
the matter, mediation was opted.
Initially nobody wanted to give up one’s
position. Demands were high and the
legal heirs of X were not interested in
leaving possession of the suit property
as they were enjoying the tussle
between both the decree holders. The
question that was bothering everyone
was, which decree would be executed?
Both reached the court seeking
execution of the decree in their hands
and the other reached with illustrious
objections to the same. Helpless decree
holders participated in the process of
mediation with one zeal, “Let us see!”
The experienced mediator involved
all the stakeholders in the process
of mediation and made both the
decree holders to view the documents
executed in their favour from the
lens of the legal heirs of X. And it
revealed that documents executed by
their parents did not find mention
about the roof rights. This was the
turning point for all. Now legal heirs
of X were not viewed as unauthorised
occupants. A collaborative agreement
was executed. A builder was introduced
by the parties themselves who agreed
to reconstruct the building and gave
solution to everyone’s problem. Y was
given the ground and the first floors;
Z was paid as he was holding a money
decree. Legal heirs got the third floor
with terrace rights and the builder still
made profit after taking out the cost
of construction by keeping the second
floor.
Mediation is one recourse which is
people-friendly, effective, efficient,
less expensive, time saving, less
stressful, convenient, satisfying,
which promotes establishing future
relationship with mutual respect. The
focus in mediation is to bring closure
to the conflict and not relationships.
It aims at harmonizing the relation
of the parties at dispute. For courts,
mediation may only be a means to
managing its expanding dockets.
However, the benefits of mediation are
far wider. Mediation has dramatic effect
in defusing conflict before it escalates
and opens a window to prevent
unnecessary litigation. In matrimonial
discords, pre suit mediation brings
closure to multi-fold prospective
litigation between the couples relating
to their matrimonial relationship,
shared household, maintenance and
alimony, child custody or visitation
related concerns and puts checks on
inflated claims of domestic violence
and dowry demands. Rather parties,
while acknowledging irretrievable
breakdown of their marriage, agree for
divorce, though the same has yet to
form a part of grounds for divorce while
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 COVER STORY

agreeing to have a viable co-parenting under sub Section (4) of Section 30 of requiring speedy resolution. To
plan keeping in mind the welfare of the Arbitration and Conciliation Act, contain the curve of virus, the courts
the children. Even in court referred 1996. worked on minimal capacity on
disputes, mediation brings wonders. virtual mode. During these tough
In K Srinivas Rao v. DA Deepa, AIR Even internationally, an unprecedented times, a transformative change was
2013 SC 2176, the Supreme Court held, attention is being given to mediation envisaged in the dispute redressal
“In terms of Section 9 of the Family as an alternative resolution mechanism process driven by mediation. Though
Courts Act the family courts shall make for resolving conflicts. Currently, people have begun to receive vaccine,
all efforts to settle the matrimonial many countries and international experts say the pandemic still persists
disputes through mediation. Even if organizations have made mediation and we have a long road ahead and it
the counsellors submit a failure report, laws and established mediation will take time for the vaccine to have
the family court shall, with the consent service institutions and centres to pronounced effect. So, it is imperative
of the parties, refer the matter to the promote the use of mediation in to ensure to obtain requisite skills
mediation centre.” resolving disputes. After the signing of set to be able to meet the changing
Singapore Convention on Mediation demands. Time is now to achieve
In India, court annexed mediation on International Settlements on 7th excellence in the process of mediation
centres have been established in August 2019, the Supreme Court in and be prepared to achieve expertise
Supreme Court and in almost all the January 2020, has set up a panel to in holding the process of mediation
High Courts and District Courts of recommend and draft legislation, as a facilitator or work as an adviser
some of the States in the country. codifying mediation practice in India. representing any party and be a good
Judges are contributing by referring Once the Bill is passed, even the service provider in the dispensation
matters for mediation wherever they private mediated settlements will get of justice, as mediation is not just an
find elements of settlement and recognition. alternative to the adjudicatory process
lawyers are undergoing continuous but is the most appropriate dispute
trainings and refresher courses for The outbreak of COVID-19 brought redressal mechanism. Mediation,
facilitating resolution for disputing various changes in the lifestyle of being transformative, is the need of
parties by providing fair process of public and brought various restrictions. the hour. It makes you understand that
mediation. All human beings were fending for the solution to the problem lies within
themselves and are still making efforts the problem itself, the only thing one
A perfect codification of the concept to survive. The present scenario has needs to get is the vision and that
of mediation can be found in the brought a new spurge in litigation mystic power lies with mediation.
Commercial Courts Act, 2015,
amended in 2018. Section 12A was
inserted that made pre institution
mediation compulsory under the Act
before instituting any commercial
suit. The procedure for such pre-
institution mediation can be found in
the Commercial Courts (Pre-institution
Mediation and Settlement) Rules, 2018.
The Rules lay down that to initiate
mediation the plaintiff needs to move
an application with the State Legal
Services Authorities constituted under
the Legal Services Authority Act, 1987.
The beautiful part is that the inclusion
of provisions for mandatory mediation
under the Commercial Courts Act
has not taken away the voluntariness
of the parties to mediate and the
settlement agreement under the Act
is an executable Award in itself as per
Section 12A(5) of the Act and has got
the same status as an Arbitral Award

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