FIELD VISIT REPORT

ON MEDIATION
CENTRE
AT
TEES HAZARI DISTRICT COURT
MEDIATION CENTRE
 REPORT SUBMITTED TO
MR. BHANU P. SINGH

BY

NAME - HARSIMRAN SINGH

CLASS ROLL NO. - 202713

EXAMINATION ROLL NO.-
20311806178
SECTION - G
WHAT IS MEDIATION?

Mediation is negotiation between disputing parties, assisted by a neutral. While the mediator is not
empowered to impose a settlement, the mediator's presence alters the dynamics of the negotiation
and often helps shape the final settlement.

In the adversarial system, a litigant becomes insignificant, almost a non-entity. He is a mute

spectator to the legal battle fought on his or her behalf, sometimes on grounds that are too
technical. Mediation is a negotiation process in which a neutral third party assists the disputing
parties in resolving their disputes. A Mediator uses special negotiation and communication
techniques to help the parties to come to a settlement. The parties can appoint a Mediator with
their mutual consent or the Court, in a pending litigation, can appoint a Mediator. Mediation always
leaves the decision making power with the parties. The Mediator does not decide what is fair or
right, does not apportion blame, nor renders any opinion on the merits or chances of success if the
case is litigated. Rather the Mediator acts as a catalyst to bring the two disputing parties together by
defining issues and limiting obstacles to communication and settlement.

One of the most significant aspects of judicial mediation is that the service is provided at absolutely
no cost to any litigant. On the contrary, on the conclusion of a successful mediation, followed by a
decree, the plaintiff is entitled to (and is given) a refund of court fees in terms of Section 16 of the
Court Fees Act, 1870. In cases where the Mediator feels it appropriate, tea or coffee is even offered
to the litigants and their lawyers free of charge. All this has added to the uniqueness of the judicial
mediation programme conducted by the Delhi Mediation Centre.

Apart from case settlement, as a result of the effective management of the programme, the Delhi
Mediation Centre has been able to successfully train eleven judicial officers as mediators and has
even been invited by the Madhya Pradesh High Court (at Jabalpur) and the National Judicial
Academy at Bhopal to share its experiences and conduct training programmes in mediation-an
achievement to be proud of.

LEGAL STATUS OF MEDIATION IN INDIA

• The Industrial Disputes Act of 1947 made mediation the first technique of conflict settlement to be
legally recognized.

• Parliament approved the Code of Civil Procedure Amendment Act 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, and the court was given the authority to submit
matters to arbitration, conciliation, judicial resolution through Lok Adalat, or mediation.

• Mandated by law: Specific disputes, such as labour and family law disputes, are required by law to
be resolved through mediation. For example, the Civil Procedure- Mediation Rules, 2003 provide for
mandatory mediation under r. 5(f)(iii) even if the parties are not ready for mediation if there is an
element of the settlement.

STAGES OF MEDIATION

(i) Establish Neutrality: It is very important for the Mediator to exhibit his neutrality to the parties
and the dispute. This can be done by very carefully using appropriate words, body language and
making appropriate eye contact that shows equal treatment to the parties. A Mediator should sit
squarely and by his conduct should not show any preference to one or the other side of the table
undue eye contact to be avoided. A Mediator should avoid wishing the disputing parties or their
Advocates in the waiting area before the first meeting, even if either of the parties is known to him
or her because this may give a wrong signal to the opposite party. Of course, the Mediator must
disclose any previous contact with any particular party but that can be done while explaining the
process of mediation. A Mediator must always avoid calling a party by the first name because the
opposite party may misconstrue it. A Mediator should prefer to use neutral terms.

(ii) Describe the Role of a Mediator: A Mediator must tell the parties that his role is simply to assist
them to come to a settlement which may be acceptable to all of them. Thus, his role is only
facilitative and is not to decide the dispute between the parties. He should avoid early evaluation of
the dispute even if requested by either of the parties by telling them that he is yet to get the
complete information.

(iii) Address Confidentiality: A Mediator must explain to the parties/participants that the mediation
proceedings are confidential so that they may feel more comfortable in giving their options towards
resolution of dispute. A Mediator can draw the attention of the parties to the statute or the rules or
the agreement whereby the proceedings are confidential. A Mediator should also tell the parties
that they can disclose any confidential information during a caucus (private meeting) to be kept
secret by the Mediator from the opposite party for coming to a settlement which may be acceptable
to all the parties.

(iv) Establish a Conducive Environment and Control over the Process: A Mediator should be calm
and relaxed during the mediation. He should be in complete control of the proceedings and should
diplomatically handle any interruption without giving an indication to any party that he/she is not
being given adequate attention. While a Mediator is delivering the introduction or if one of the
parties is presenting his or her point of view and the other party interrupts, a Mediator can request
the said party to make a note of the point and that he (the Mediator) would be getting back to him
in just a short while.

(v) Generate a Momentum Towards an Agreement: A Mediator should develop a positive frame of
mind in the parties by expressing hope that if we work on the dispute, we may be able to come to a
settlement which we would normally come to through hard work.

(vi) Ground Rules: Take an assurance that each and every party has to respect each other during the
proceedings. One party shall not interrupt the other in the proceedings.

(vii) Determine whether the Mediation Process has been Understood: Enquire from the parties if
they have any question or any doubt about the mediation process.

MY OBSERVATIONS OF THE FIELD VISIT

Recently, I had the opportunity of interning at the TEES HAZARI Mediation Centre, which aims at
facilitating mediation as an Alternative Dispute Resolution (ADR) mechanism to resolve disputes
outside the premises of a Court.

Mediation, unlike Court cases, does not foray much into the legal technicalities of a case that is
generally difficult for the common person to comprehend. It is a voluntary process in which the
parties in dispute can informally discuss and negotiate a matter, before approaching the Court
directly, in simple terms, in the presence of a mediator.

A mediator is, generally, a lawyer appointed by the Courts with more than ten to fifteen years of
experience and practice in the field of law. The role of a mediator is to be neutral while attempting
to resolve the dispute between both the parties without favoring one party over the other. He or she
must only act as a precipitating factor while enabling the parties to come to a conclusion out of their
own free will. The parties in question have the freedom to discuss and decide what they want for
themselves instead of going through the mechanical and often, complex procedures of the Court.
Thus, mediation ends up saving a lot of time, energy and money.

There are two kinds of sessions which take place in mediation - Private and Joint sessions
respectively. Private sessions provide an opportunity for the parties to have one-on-one discussions
with the mediator. It gives them a chance to reveal their side of the problem and put forth any
demands that they might be hesitant or unwilling to voice out, otherwise, in the presence of the
other party. Joint sessions allow both the parties to put forth their suggestions and discuss freely the
terms under which they are willing to negotiate their conditions with the other party, in the
presence of the mediator.

Another, undeniably, important aspect of mediation is that it is completely confidential; Discussions

during mediation sessions cannot be used as evidence against the other party in Court. Also, the
mediator does not play the role of a judge and, most definitely, cannot be called as a witness to
confirm or deny the allegations made against either of the parties in Court.

Over the course of these two weeks, I witnessed that very few cases that were brought in for
mediation had been partition suits; A large majority of them were matrimonial matters which
primarily dealt with issues regarding the maintenance or alimony to be paid to a woman after the
termination of one's marriage, custody and visitation rights of the child and matters concerning the
well-being of children of divorce. The concerned petitions had been filed under sections 9, 13 and 13
(b) of the Hindu Marriage Act, 1955 accordingly.

Apart from being able to familiarize me with the procedural aspects of mediation, this internship
proved to be an eye-opening experience in many ways. I discovered that in most of the mediation
proceedings, the parties had reached a point of conflict in their lives not only because there was lack
of proper communication and compatibility between the concerned individuals but also because
they had unrealistic expectations from the institution of marriage and many of them were hence,
advised to go for marriage counselling.

It was observed that since marriage is considered to be a sacred institution in most parts of our
country, there existed a certain section of women and men, both, who had been quite apprehensive
and hesitant to break free from the shackles of their irretrievably, broken down marriages, owing to
societal pressures and traditional norms which continue to govern a major part of their lives.

However, it was noted that with factors like education and financial independence asserting their
importance in most urban households of the country, women are increasingly becoming self-
sufficient with strong, independent identities of their own and are determined to fight for their
rights amidst age-old regressive notions which exist in society. It was also evident that many women
were, gradually, but certainly, dismissing toxic ideas surrounding patriarchy and gender norms which
have existed for an incredibly long period of time. Their sheer refusal to accept the same by deciding
to end their stifling marriages reflected an attitudinal shift in the ideas and values revolving around
the institution of marriage in India which, alone, has gone through some significant changes in
recent times.

My overall experience interning at the TEES HAZARI Mediation Centre proved to be very enriching
and fruitful. Certainly, the TEES HAZARI Mediation Centre happens to be one of the best places to
resolve disputes in quick time and without any legal hassles. This internship has not only reinforced
in me the values of patience, perseverance, sensitivity, tolerance and, of course, respect, for another
individual's point of view but, more importantly, it has also taught me the value of being open to
experience while dealing with any situation in life.

CASE DISCUSSED

The case at hand was a matrimonial dispute whereby the wife was claiming settlement of
maintenance (alimony) to be given by husband after divorce. They were married for over 8 years.
Out of wedlock they had a 8 year old son. The wife claimed adultery on part of the husband and that
the person runs away from his responsibilities disappearing for long stretches of time without
informing her anything. The dispute was with regard to the amount of money to be given. The
husband did not deny the allegations charged upon him by the wife. After observing the entire
session I observed that in such disputes family members have a great bearing on the matter. It was
worth noting the role of mother-in-law of the lady who was adamant on not giving in any money to
the wife. She was putting in counter allegations as to why money should not be given, which in my
opinion were frivolous. The mother and father of the person would interfere everytime a question
would be asked to the husband by the mediator. The amount claimed by the wife was about 12
lakhs while what the in-laws were willing to give was somewhere around 2.5 lakhs. The mediation
process couldn’t be brought to a agreement that day due to the wide gap between demands of the
parties. However, the mediator later informed us of her personal experience that were high chances
of the parties coming to a solution. She informed that there has been a considerable shift in the
position of the parties since the process has started and that she was positive about reaching a
settlement in later sittings. Details of the case were not provided to us. The parties in the present
case have not appointed any legal counsels.

SUGGESTIONS AND CONCLUSION:

Mediation as a process has been part of our ancient culture also. It was used as a means historically
to settle disputes. Panchayats also showcased the system by and large. Though successful to a quite
large extent and the advantage of it not straining out the pockets of the parties, there are certain
flaws in the system which needed to be taken care of. Firstly, the casual outlook of the parties with
regard to the process on knowing that it has no binding value. They often come in late or there are
cases where one of the parties don’t appear making the process ineffective.

Mediation has no means of knowing or proving which party is saying the truth. Being based just on
verbal claims the settlement arrived at is often at the disadvantage of the suffering party on account
of the loss suffered and the desperation to be done away with the legal processes as soon as
possible.

Lastly, lack of management and infrastructure is another issue. There are cases where the parties are
not informed about the dates of their meetings letting them miss it. The mediation cells are too
small to provide a comfortable space to the parties to mediate.

There is a need of proper mechanism and specialized acts regulating the functioning of the means of
alternate dispute systems and granting them of certain powers in order to make it a more formal
and effective process.