MEDIATION IN INDIA: WHAT, HOW AND WHY?
Author: Salouni Choudhary, II year of B.Com LL.B. (Hons.) from University Institue of Legal Studies, Panjab University Chandigarh
"A method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution”
~ Black's Law Dictionary
Mediation is a very old process of resolving disputes which have been used since the ancient period. It is not an expensive mechanism and keeps the matter confidential between parties and the mediator. Moreover, the solution reached at the end is not obligatory on any party, it is a measure that both the parties consented to. It hence peacefully provides an effective measure.
What is Mediation?
In India, Mediation is not a forced process but a voluntary one, where the parties in dispute agree to find a solution together to their legal issues by forming a written contract for the appointment of a mediator. The powers to take decisions remain in the hands of disputing parties, and the mediator in the case acts as a buffer to bring them to a solution. The parties can also appoint ADR lawyers to represent them before the mediator in the mediation process and professionally describe the facts. The main distinction between arbitration and mediation is that arbitration is a more formal process in nature as compared to mediation. An arbitrator is required to be appointed formally either before or at the time of need. A mediator can be any person, of any designation, who is appointed formally or informally depending on the desire of the parties. The mediation law in India is friendly and flexible for users.
Mediation in India is of two types
1. Court referred Mediation
The court may refer to a case that is pending for mediation in India as per Section 89 of the Code of Civil Procedure, 1908. This type of mediation is mostly used in matters related to Matrimonial disputes, particularly divorce issues.
2. Private Mediation
In case of Private Mediation, qualified personnel are already working as a mediator on a fixed-payment basis. Any person who is from courts can hire mediators to find the solution for their dispute through the mechanism of mediation.
What is the process of Mediation in India?
In most matters, people with their consent opt for mediation to solve their legal issue together, making a neutral process. A third person that is a mediator is appointed who deals with the issue neutrally and directs both parties to solve their issues mutually. The person appointed can be any person whom the parties have selected, or any ADR lawyer consented by both the parties. The mediator then supports parties to find a measure based on their desire and conditions. Being a voluntary process, the parties, in this case, have all the rights and powers related to taking decisions.
Mediation inspires the parties to take an active part in resolving disputes. He encourages parties to directly explain the facts and circumstances of their dispute, to tell ways to resolve the dispute and make a final decision by settling. The mediation in India involves all the general rules and laws of proof and, examination and cross-examination of witnesses as all done in courts.
One of the main advantages of mediation in India is that it is a confidential method of dispute resolution of matters. In the Mediation process, only the parties in dispute and the mediator are involved, which makes the affairs of the parties personal and private. The mediator is an unbiased third party, who helps the parties in reaching their solution for the resolution of disputes. All the statements that are made during the process of mediation in India cannot be disclosed in any civil proceedings or any other place without the prior consent of all parties involved in writing.
In the case of Mediation in India, the mediator works with parties in resolving the dispute and the mediation process does not solve a dispute by imposing a decision upon the parties concerned. A mediator’s role is both facilitative and evaluative. A mediator provides, when he manages the communication between both the parties, encourages and promotes interaction between them and manages outbursts by them and motivates them to settle amicably.
Process of Mediation in India is all confidential as any information given by any party or a document prepared or submitted is not admissible. The mediator cannot be called to act as a witness to testify in any court cases and is also not allowed to disclose any information related to the proceedings.
Mediation as an alternative dispute resolution (ADR) process has been effectively used in disputes related to matrimonial and corporate affairs to find an instant solution that is not only time-saving and cost-effective but also keeps the entire dispute resolution process private. The process of mediation in India is flexible as it works in two ways by helping both the disputing parties to resolve their matters together and reducing the burden of pending cases on the courts.
Why choose Mediation?
There are times when even the court referred to mediation saying as it is an easy and quick procedure to get a solution. Especially in cases of divorce, mediation in India is a very common method of resolving disputes. The mediation process in cases of divorce, property, family matters, helps in keeping the matter secret to the parties only, and does not disclose it before people, and finds a solution with the maintenance of the peace. It is necessary to understand why mediation should be chosen as a means of resolving disputes in comparison to traditional ways of litigation.
The 10 main reasons given by the Dispute Resolution Centre of Thurston County to choose mediation are as follows:-
1. Mediation is affordable.
2. Mediation is fair and impartial.
3. Mediation saves time and money.
4. Mediation is confidential.
5. Mediation avoids litigation.
6. Mediation fosters cooperation.
7. Mediation improves communication.
8. Mediation identifies underlying issues.
9. Mediation allows personalized solutions.
10. Mediation works.
Mediation as an alternative dispute resolution process has been successful in cases of matrimonial disputes and corporate affairs. It has assisted people in locating a prompt solution that isn't only efficient and financially effective but it also additionally keeps the whole dispute process private. The process of mediation in India is acceptable as it works in two ways by helping disputing parties to mutually resolve their disputes and reduces the burden of pending cases on the courts.