5 months ago
An ounce of Mediation is worth a pound of Arbitration and a ton of litigation.
                                                                                                                           Joseph Grynbaum

What is Mediation?

Mediation is a process where the parties to a dispute to resolve their issue appoint Mediator(s) who 
is /are supposed to be the neutral party, i.e the one having no personal interest in the matter, to resolve the 
dispute amicably without the need to go into litigation. Mediator acts as a facilitator for the parties to the dispute 
in settling. Mediator provides a conducive environment for the parties to resolve their disputes 
and does not impose any solution on them.
 
Mediation is one of the alternative methods of Dispute Resolution along with Negotiation, Arbitration, 
Conciliation, Lok-Adalat, etc. These are some of the techniques that occur outside the purview of the Government 
entity.
 
The process of Mediation mainly focuses on the interests, needs and rights of the parties. The Mediator uses 
his specialized skills to make the parties comfortable so that they can put their needs and interest in front of 
the neutral party which can help him reach the appropriate settlement or stated goal of the parties more 
effectively.
 
Different Stages of Mediation-
 
1. Introduction 
The very first and foremost step of mediation starts with the introduction of the mediator. It involves the 
professional experience of the mediators concerned and the overall process of mediation, such as what is 
mediation, how it is to be conducted, what are the do’s and don't for the parties, what conduct is to be 
maintained by the parties and other material things that every party must know before entering into the process.
Thereafter, begins the introduction of the parties, where they briefly describe their grievances, the issues they 
are facing, why they have come for mediation and what all are their concerns and interests. Also, what the 
parties in dispute expect from the mediation proceedings and whether they want the dispute to be solved and 
settled before the mediator itself or not.
 
The mediator will try and establish and exhibit his neutrality to the parties, describe his role in the process, 
establish confidentiality, establish a conducive environment and control over the process, generate momentum 
towards an agreement, determine ground rules for the parties, and enquire whether the parties have understood 
the overall process or not.
 
2. Joint Session
 
This is the step where both the parties, generally with their counsels sit together with the mediators and provide 
all the relevant information relating to their case such as the facts, issues, grievances, concerns, etc.
 
In this very process, the role of the mediator is very crucial because it is where he uses his exceptional skill and 
specialization to - 
 gather all the relevant information from the parties, their underlying interest 
 manage the interaction between the parties
 Maintain an environment that is conducive to constructive negotiations
 Allow parties to give full information of facts 
 Elicit information by k each party if he/she has got any other point
 Ask questions that bring desired information
 
Along with all the above elements, a mediator must be a good listener, who carefully takes note of all the 
information without interrupting the parties in between and should not jump to conclusions to find a 
solution. To effectively settle the matter it is important to acknowledge every single fact that the parties 
entertain and be mindful of the demeanour of the speaker and how the parties represent 
themselves.
The session mainly focuses to enable both the parties to sit together and communicate their standpoints, 
concerns and what they want the other party to do or not to do. This would give both parties a clear 
the idea of the other’s view and enable the Mediator to proceed in the manner the situation demands, for instance, 
if the parties want a private session to be conducted.
 
3. Caucus or Separate Session
 
The session provides the parties with an opportunity to vent out their charged-up feelings and talk to the mediator 
without the interference of the other party. The mediator in this stage should primarily focus on eliciting the 
confidential information from the parties and then be mindful of all the ways out to settlement. But, it is 
important that the mediator should not share the confidential facts elicited from one party to the other without the 
permission of the former. There can be more than one separate session as the demand persists.
 
After a joint session if it is evident that the parties what the dispute to be resolved in a particular manner or the 
the method proposed by the Mediator, if any, then the same has to be confirmed orally by each party in that 
the session itself and also write down the terms of settlement of each party.
 
4. Settlement and Closing 
 
This is the final stage which primarily focuses on the dispute either being settled or not. If not then the same 
is referred for litigation with a failure report. And, if yes then the terms of the settlement are discussed and 
confirmed with the parties concerned in a joint session and other important things, such as who will draft the 
agreement, Mediators or Advocates. It is always advisable that the Mediators should draft the same so to 
keep the parties and their advocates away from putting an additional clause or modifying any term at a later 
stage. It is also necessary that the agreement so drafted must be clear, concise, complete, specific and 
preferably in an active voice. Thereafter, the same must be signed by the parties.
 
Legal Regulation or Status related to the Mediation
 
This process of Alternative Dispute Resolution is mainly dealt with in the Code of Civil Procedure,1908 and the 
Arbitration & Conciliation Act,1996.
 
Part III of the Arbitration & Conciliation Act,1996 deals with private mediation, while Section 89 of the CPC 
and the procedures enacted by several high courts under that section deal with court-annexed mediation. 
 
Part II of the Civil Procedure Alternate Dispute Resolution and Mediation Provisions (the Mediation Rules) 
also contains several mediation-related rules. 
 
With the emerging needs of the process of Mediation, it was thought needful to entertain the same in the 
Commercial Courts Act, 2015 also, requires parties to exhaust the Act's pre-institution mediation option 
before filing a suit. Under the Act, the government drafted the Commercial Courts (Pre-Institution Mediation 
and Settlement) Rules 2018 (the PIMS Rules). 
 
Also, Justice M. Jagannadha Rao Committee was appointed after the Supreme Court Judgement in Salem 
Advocate Bar Association v. Union of India (2003) to prepare draft rules for mediation under Section 89(2)(d) 
of the Code of Civil Procedure, 1908. Under the said judgment, the Rao Committee prepared the Draft 
Mediation Rules in 2003. 
 
As per the Draft Rules, the mediation process begins with the appointment of a mediator. All the parties may 
agree to the appointment of a sole mediator for mediating between them. If there are two sets of parties that 
are unable to agree on a sole mediator, each party shall nominate a mediator. 
 
The mediator shall determine a schedule, the days, and the time of each mediation session, in conjunction 
with the parties, where all parties must be present. The mediator may hold the mediation at any convenient 
the location that is satisfactory to both him and the parties.
 
At the meetings or sessions notified by the mediator, the parties must be present directly or through their 
counsel or power of attorney holders. If a party fails to appear for a session or a meeting called by the mediator, 
other parties or the mediator can ask the court where the suit was filed to issue appropriate directions to that 
party to appear before the mediator, and if the Court finds that a party is failing to appear before the mediator 
for no good reason, the Court may impose costs or take contempt action against that party.
 
Mediation as a Justice Delivery System 
 
In my opinion, an Alternative Dispute Resolution mechanism such as Mediation is a very ingenious and 
a righteous step towards the delivery of justice. In a country like India where there is a huge pile of cases with low 
rate of speedy resolution, it is necessary to adopt such measures so that the dispute could not only be resolved 
speedy but without hampering the relationship between the parties. Sometimes, the relationship between the two 
parties are of manifest importance to them but the same is spoilt when they go for litigation but it is not always 
important to destroy the very essence of any relation to satisfy the needs. If such needs are satisfied by the 
a procedure involving out-of-court settlements like mediation is highly recommended to at least give it
a sure shot without any delay. 
 
The process helps the parties to put their interests in front of the Mediator personally and also the process is 
informally set up unlike litigation where the courtrooms have to maintain a particular decorum and every 
a person so present has to ensure his/her conduct. This helps the parties to comfortably put their issues and 
demands before the mediator. But at the same time, the Mediator is at the peak of responsibility to control the 
aggressive and highly empowered emotions of the parties and provide a conducive environment by managing 
the communication between the parties. By this very process of Mediation and other Alternative Dispute 
Resolution Mechanisms the burden of the courts can be assuaged.
 
Suggestions for Improvement of the Mediation Eco-System in India 
 
In my opinion, the following are the measures to be adopted for improving the Mediation system and make 
the process is smooth- 
 The parties to the dispute are made friendlier to the overall process by their respective advocates. Similarly, 
the advocates should also take a keen interest in that proceedings as they take in litigation as it is also 
concerned with the welfare of the parties.
 Secondly, the Advocates, as well as the Mediators should be well-versed with the relevant provisions 
involved in the case. This will ensure the parties and build their confidence in the Mediator and Advocate. 
This was one thing which I surprisingly found missing in one very common case while visiting the 
Mediation centre.
 The subject of Mediation (ADR) has been made necessary to be included in the last year of the law pursuing 
students by the Bar Council Rules, so the same should be strictly complied with which is yet not given 
much importance and recognition in many law schools.
 The public at large is also unaware of the process so it is highly recommended to organize frequent events 
and workshops where a detailed discussion can be done on the said process.
 The process is very smooth and time and money-saving. The parties can refrain from rubbing 
their shoes on and on by visiting courtrooms. But, again many people don’t know about that so how can 
One expects them to enrol in the process they are unaware of. Therefore, awareness is the key 
step to make the technique helpful for a major section of society.
 Most importantly, the Advocates should take the Mediation proceeding seriously and take every step to 
help their client in the out-of-court settlement also as they do in litigation mainly by not being absent on the 
date so fixed by the Mediator.
 Moreover, the Government can set up institutes specifically meant for Alternative Dispute 
Resolution.
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