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Mediation As A Form Of Alternate Dispute Resolution And Its Advantages

The global population is rising every second and so are the number of people knocking the doors of courts of law. The pendency of suits cannot be dealt unless the common law system is reformed.

Alternate dispute resolution (ADR) is seen as the mechanism which can help to reduce the burden on the conventional adversarial mode of dispute solving. Any method in which dispute is resolved outside the court is considered as Alternate Dispute Resolution system. ADR is an umbrella term which includes all legally permitted processes of dispute resolution other than litigation[1].Alternate dispute resolution is not a new concept for India, It has witnessed it in the form of panchayats and family gatherings since time immemorial. Legal history indicates that down the ages man has been experimenting with procedure for making it easy, cheap, unfailing and convenient to obtain justice[2] .

There are four forms of ADR techniques namely, Arbitration, Negotiation Mediation and Conciliation.

Mediation in its plain and simple meaning is nothing but facilitated negotiation[3]. However, comprehensively, mediation may be defined as a voluntary process of dispute resolution where a neutral[4] third party (the mediator) with the use of effective and specialized communication and negotiation techniques[5]aids the parties in arriving at an amicable settlement.[6] It has been derived from the Latin word ‘mediare’ which means ‘to be in the middle.’[7] Therefore it can be said that it is a process which is aimed at searching the middle path between the disputes among the parties so that a mutually agreeable settlement may be worked out. It is a non-adversarial dispute settlement approach and a well-known ADR mechanism.

At the point when we talk about its international presence the first thing that comes to our mind is The United Nations Convention on International Settlement Agreements resulting from Mediation, also known as the Singapore Convention on Mediation (the Convention) certified in 2018, applies to international settlement agreements resulting from mediation (settlement agreement). The Convention establishes a legitimate system for the right to invoke settlement agreements as well as for their enforcement.

It acts as an instrument which promotes mediation and thus facilitates international trade and commerce. The Convention is open for signature by States and regional economic integration organizations (referred to as Parties).[8]

In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908[9] which states that the court can refer the parties to mediation or arbitration if there exist elements of a settlement which should be acceptable to the parties involved. Industrial Disputes Act, 1947 is the first legislation which gives legal recognition to the mediation. Section 4[10] of this Act talks about appointment of an independent and impartial mediator for the process of mediation.

In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India[11] Supreme Court held in reference to the matter of mediation that conciliation and arbitration are mandatory for Court matters. This judgement has granted legal and social recognition to mediation as a method of dispute resolution.

The purpose of ADR is primarily to reduce the pile of cases in Courts. It has become a challenge for the courts to deal with such arrears of cases. There are a lot of issues with our civil justice system these are delays, costs, rigidity of procedure and reduction of participatory role of parties. As we are already aware of the role of mediation as time saving and cost cutting measure let us understand the role of mediation in reducing procedural rigidity and facilitating participatory roles of parties in dispute resolution.

The conventional justice system lays great emphasis on inflexible rules and procedure so that all the litigants get justice in accordance to the same procedural formulation. But with changing times the procedural law has become very complicated that it sometimes leads to miscarriage of justice due to technical lacuna in the case.

On the other hand mediation law does not insist upon principles of evidence act and rigid procedures and of code in the settlement of disputes. A mediator acts in a flexible manner and can listen to the parties separately when he considers it vital. In adversarial system of dispute resolution the parties to the dispute have a very limited role to play in the judicial procedures. In this system the advocates have a considerable role to play and the parties present their submissions through their legal counsels.

However in Mediation the parties themselves are involved in the dispute solving process, they convey their problems to the mediator which then deals with them efficiently due to his expertise and experience. Mediation table provides the parties to express their emotions, interests’, perceptions and opinions which are often not allowed in the conventional court system. Hence, mediation has potential to solve an array of problems such as delay and expense, rigidity in procedure and provides participatory role to the parties and hence has potential to provide solutions which are beyond the conventional legal remedies.

Advantages of mediation.
Perks of the mediation process can be discussed under the following points:
  • Financially effective and quicker resolution:
    Mediation offers an ADR mechanism for cost effective and expeditious resolution of disputes.[12] The costs incurred in the mediation process is nominal in comparison to arbitration or judicial procedures. The parties are saved from the cost fee and the legal counsel’s fee. There are no legal traps or procedural loopholes and obligations. The dispute resolution process is faster due to minimal legal formalities and flexibility of procedures. When the mediation process reaches the settlement the dispute stands as resolved finally. Thus the hassles and expenditures of appeals are avoided.
     
  • Secrecy and confidentiality:
    This is the major advantage of this form of alternate dispute resolution process that there is utmost confidentiality between the mediator and the parties involved and the outside parties do not have access to the mediation proceedings. There is confidentiality even between one party and mediator i.e. if one party provides any information to the mediator; it is to be kept confidential even from the other party subject to a specific condition. Mediation is confidential whether or not it results in the settlement and resolution of the dispute.[13]Even when it is unsuccessful one cannot disclose what has been transpired in the proceedings. This is despite the fact that confidentiality in mediation has no statutory backing[14] because inherently the process is considered confidential. The courts have also emphasized upon the aspect of confidentiality in mediation proceedings.[15]
     
  • A Win-Win situation:
    Mediation is essentially non adversarial in nature and fundamentally parties are not opponents in mediation, but are collaborators striving towards a mutually acceptable resolution which results in a win-win situation[16] as the final outcome is arrived at with the consent of both the parties and leaves both the parties satisfied.[17] One of the major advantages of mediation is that here neither of the parties lose and the decision comes from the mutual agreement of both and interests of both the parties are conserved .Even where mediation does not result in a final settlement, and the dispute remains in trial, the joint communication established and the clarification of the nature of the dispute, if not an actual narrowing of the conflict, makes the trial proceed much more efficiently.[18]
     
  • Conservation of Relationships:
    In mediation the parties alone are responsible for their own decisions which come forth through the absence of formality of court procedures and through open discussion of issues and free interchange of ideas resulting into a greater likelihood of a lasting resolution.[19] This ADR mechanism encourages the parties to participate in the process without any legal barriers or involvement of law experts, communicate their problems and work together with the side opposite to reach a mutually agreeable settlement .It provides an atmosphere where disputes are resolved in cool, composed and amiable atmosphere. Hence, focuses on long-term interests and bonding, fosters amity and friendship.[20] As neither of the sides lose and as there is no disagreement between them, relations between the parties are preserved.
     
  • Innovative and unconventional solutions:
    It permits the sides to formulate customized and tailor- made solutions for their disputes with regards to the needs and interests of the parties which they could not have if they would have opted for litigation or arbitration. In this process parties themselves resolves the disputes among themselves and are free to formulate a suitable solution by themselves as per their requirement. The hallmark of mediation is therefore its capacity to help the parties expand traditional settlement discussions and broaden resolution options, often by going beyond the legal issues in controversy.[21] Hence, the mediation process provides novel broad-based solutions rather than straightforward legal adjudication.[22]
In conclusion it can be said that Mediation in India and all over is still in its premature stage. India still does not have a dedicated law enacted for Mediation and it is the need of the hour to do so. It has to be kept in mind that mediation is not meant to compete with the conventional court system but it has the job to reduce its burden and take up only the matters which can be settled outside the court. It has certain benefits which provides it an edge over litigation and Arbitration they are reduced costs, no further appeals and simple procedures etc. Alternate Dispute Resolution has a lot of scope and if exploited well, it can reduce the burden on the judiciary and promote international trade and commerce.

End-Notes:
  1. Bryan A. Garner ,Black’s Law Dictionary (9th edn.).
  2. Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India, Deep & Deep Publication, New Delhi, 1986.
  3. See Tom Arnold, Mediation Outline: A Practical How-to Guide for Mediators and Attorneys in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 210(Universal Law Publishing Company Pvt ltd., Delhi, 1997);See also Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution:
    Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.).
  4. Neutrality of the mediator is considered a necessary condition not only for conducting proper mediation but also for the very existence of the process called mediation. See Ronit Zamir, The Disempowering Relationship between Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic, 11 Pepperdine Disp. Res. L. J. 467(2011); Non-neutral mediator, therefore, is an oxymoron. See Christine E. Harrington & Sally Engle Merry, Ideological Production: The Making of Community Mediation, 22 Law and Soc’y Rev. 709 (1988).
  5. See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1) Alta. L. Rev. 1 (1995) (Can.).
  6. Black’s Law Dictionary defines Mediation as 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. See Bryan A. Garner (Ed.), Black’s Law Dictionary 1003 (West Publishing Company, St. Paul, Minnesota, 8th Edn., 2004); Mediation is therefore a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. See Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell, London, 2nd Edn., 1997).
  7. See Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation,
    LRC 98-2010, November 2010, available at: http://www.lawreform.ie (last visited on 10.04.2010);
  8. Available at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements (last accessed 6th Dec, 2019).
  9. Civil Procedure Code, 1908,§89
  10. Industrial Disputes Act,1947,§4
  11. Writ petition 496 of 2002.
  12. In fact, the driving force for participants in mediation is achievement of a fair result as quickly and inexpensively as possible. See James Melamed, A View of Mediation in the Future, 1(8) the Indian Arbitrator 6 (September2009).
  13. Ashwanie Kumar Bansal, Arbitration and ADR 19 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005
  14. There is no statutory provision like s. 75, Arbitration and Conciliation Act, 1996 which affords confidentiality in mediation as a statutory guarantee.
  15. In Moti Ram v. Ashok Kumar, (2011) 1 SCC 466, a case of Court referred mediation, the Supreme Court observed ...if the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that the 'Mediation has been unsuccessful'. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.....
  16. William Sheffield, Disputes among Business Partners should be Mediated or Arbitrated, not Litigated, in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 288 (Universal Law Publishing Company Pvt. Ltd., Delhi,1997)
  17. In fact party-acceptability of outcomes is, and should be, the defining feature of justice in mediation and in this context the process of mediation serves as an instrument for securing justice. See Joseph B. Stulberg, Mediation and Justice: What standards Govern? 6 Cardozo J. Conflict Resol. 213 (2005); Mediation presents the opportunity to express differences and improve relationships and mutual understanding, whether or not an agreement is reached. See Anil Xavier, Mediation is here to Stay, 2 (3) The Indian Arbitrator 2 (March 2010
  18. Kuljit Kaur, Mediation: As a Technique for Alternative Dispute Resolution System, Nyaya Kiran 19 (D.L.S.A., April–June, 2008)
  19. The Delhi Mediation Centre, Annual Report (2006-2007)
  20. R.V. Raveendran, Mediation - Its Importance and Relevance, (2010) PL October 10.
  21. Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers available at: http://www.fjc.gov (last visited on 01.04.2012).
  22. Ibid
Written By: Hrishikesh Jaiswal

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