"Discourage litigation. Persuade your neighbors to compromise whenever you
can. As a peacemaker, the lawyer has a superior opportunity of being a good man.
There will still be business enough." - Abraham Lincoln
In the times when courts are filled with an increasing number of pending cases,
there arises a crucial need for an Alternate Dispute Resolution technique
commonly known as ADR. Mediation, which is one of the prominent techniques under
ADR is being used more often these days. It involves solving disputes on mutual
consent of both the parties and hereby reaching a consensual decision generally
without the interference of the court.
In this blog, you will get an overview of what mediation is, how it is
processed, the benefits of mediation to a person in the legal profession, its
importance, and other essentials. Moreover, this article also covers the
progress of mediation in our country India and an overview of mediation bill
What is Mediation?
Mediation can be defined as a procedure that follows with the discussion of
disputes between the parties with the assistance of a third party namely a
mediator to reach a settlement or a decision. It is an informal meeting that
generally includes cases that are pending in court or which are to be filed in
court. Mediation is generally used where no such complex and rigid laws are
needed. It is one of the best methods of Alternative Dispute Resolution (ADR).
Mediation is really important in today's world and in the recent past, there has
been increasing in the popularity of mediation like the UNCITRAL Working group
discussion on coming up with an international treaty such as the New York
Convention for the administration of the mediated settlement agreements, and the
discussions on the use of mediation in resolving international investment
disputes (one should also not forget the consistently increasing popularity of
mediation competitions in India and globally). The mediation process is
generally inexpensive, involves less time and statutes, and is preferably a
Who is a Mediator?
A mediator is a person, who, acting unbiasedly, resolves the arguments and
generally holds for a settlement between the parties. He/She has an arsenal of
negotiation techniques, common sense, and a conclusion-based nature which helps
in convincing the parties lately. Unlike a litigation process, where the
decision or final result is declared by a Judge, Mediation has complete control
of the parties, to decide the kind of settlement they want and how it is to be
The role of the mediator is to relay information between the parties, frame
issues, and define the problems. He initiates the parties to work on their
common interests and reach a mutually agreed settlement.
➔ The Panel of mediators may include retired judges of the Supreme Court of
India/ High Court, retired district and session judges, or retired Officers of
Delhi Higher Judicial Service.
➔ Legal Practitioners with at least ten years standing at the bar at the
level of Supreme Court or High Court or District Courts or experts or other
professionals with at least fifteen years standing.
Usually, mediation is held at a common place decided by the parties or the
office of the mediator or any other private place where parties feel
comfortable. Initially, mediation can be started on phone calls, and then formal
meetups can be done depending on the circumstances.
It involves both the parties, their attorneys, if represented, the mediators,
and other persons agreed in advance. If it is being held publicly then all other
persons concerned may be involved.
The process involves:
Initially, the mediation will begin with an opening statement represented by the
mediator which will include general information about him including his
qualification, experience, and names of the parties and their counsels. Both the
parties share their part of statements without any interruption. This step
encourages the parties to end up in good faith and a mutually agreed settlement.
All material and information presented in this shall be confidential unless
otherwise discoverable in a court.
Each party will elaborate their facts and circumstances which resulted in
disputes and issues will be summarized from the said facts.
Finding options and alternatives
The mediators with the attorneys, if represented, and both the parties find
different alternatives for identifying a settlement. On analyzing various needs
and circumstances of the parties and marking their strengths and weaknesses, a
suitable decision is taken. Negotiation and decision-making continue until the
suitable decision is selected by the mediator ending the process or continuing
to the subsequent session.
Terms of settlement
The terms of the agreed settlement shall be written by the parties and reviewed
and signed by a legal counsel present there or by any other counsel which
parties may select at a later date.
Mediation in India
As of now in India, mediation is a voluntary process through which disputing
people can mutually resolve their legal problem by entering into a legal
contract and appointing a mediator. The decision-making power during the
mediation process remains in hands of disputing parties, with the mediator
acting as a buffer to bring them to a mutual understanding. The conflicting
parties can also appoint ADR lawyers to represent them before the mediator and
brief their matter in a professional way.
Mediation in India is divided into two categories which are commonly followed:
- Private mediation:
In private mediation, the well-qualified personnel works as mediators on a
fixed-fee basis. Anyone from courts, to the general public, to corporates as
well as the government sector, can hire mediators to settle their dispute
- Court referred mediation:
In India, the courts have the discretionary power to refer the pending cases for
mediation under Section 89 of the Code of Civil Procedure, 1908. This sort of
mediation is frequently used in cases of matrimonial disputes, particularly in
The Mediation bill, 2021
The high demand for separate and exclusive mediation law has led to the
origination of the Mediation Bill, 2021. The intention behind introducing this
bill is to provide sanctity to the procedure as well as provide a common
platform for its practice and remove inconsistencies between existing
legislation. The mediation bill embraces the viewpoint of the Hon'ble Supreme
Court's 2010 Afcons judgment that mediation
Salient features of the Bill:
- In the bill, it is clearly stated that the mediation resolution
agreement between the disputing parties will have equal status as of the
judgment or decree of a court, which will be binding and enforceable by law.
- Section 6(1) of the bill makes it compulsory for the conflicting parties
to approach for pre-litigation mediation before approaching any court or
tribunal. This will be an obligatory requirement and is an astonishing step.
- As per Section 20 of the Bill, the conflicting parties will be obliged
to attend the first two mediation sessions. Thereafter, it depends on the
discretion of the parties whether they want to continue or terminate the
mediation and follow the litigation path. Further, in case any urgent
interim order is required, parties can bypass mediation.
- Online mediation has been defined in Section 32(1) of Chapter VII of the
Bill. For utmost transparency, privacy, and security of the interest of the
parties, the chapter also provides detailed provisions for the
confidentiality of the matter during the online mediation.
- In Chapter X of the Bill, community mediation has been elucidated as an
empowerment tool for individuals and communities to take back control over
their affairs from the courts. This provision aims to create a parallel,
citizen-run, and community-centered dispute resolution system.
- According to Section 44 of the Bill, any dispute most likely to affect
peace, harmony, and tranquility among the residents or families of any area
or locality may be settled through community mediation with prior mutual
consent of the disputing parties.
The Significance of Mediation for law scholars
Reading, training, and getting engaged in mediation is beneficial for a law
student to acquire different kinds of skills which could not be learned by
participating in any other kind of extracurricular activities like moots,
debates, research, and client counseling. Mediation also helps to evolve
expertise like effective listening, bargaining, communication, finding
commercially viable solutions, teamwork, etc.
Engaging in this domain is also
one of the best ways to become a more commercially sound student who understands
the business aspects. Disputes in this field cannot be solved based on legal
contentions but could be solved with better commercial understanding (or can be
solved with other motivations depending on the kind of dispute) in which all the
parties work with each other to resolve the dispute in a cooperative manner (and
with the mediator) to get the commercially viable solution of there conflict. In
doing so, there is no need for bare Acts and case laws, and the only focus of
both parties is to get a mutually agreeable option that might be satisfying
their underlying interests and needs.
In the respective method of mediation, there is no hierarchy of power or
authority between the mediator and the parties. During the process of mediation,
all the parties sit at the same table; and the sitting arrangement would be in
such a way that it should not be deemed to show any superiority of one over the
other. And through this principled process, all the participants with the
support of each other achieve a common goal with a good understanding of
interests and cultural differences involved (if any).
- By participating in mediation one can also improve his/her personality
at an early stage of their career as an assertive, confident, and developed
- It also inspires law students to tilt some of their focus on human
psychology, commercial motivation, verbal and body language, and
communication as well.
- These qualities aren't just something that might only help in mediation
events rather these skills also leave a good and long-lasting first
impression on the people we meet in our day-to-day life.
- Thus, the skills acquired during these events are not only restricted to
the realm of dispute resolution but can also be very helpful in anyone's
personal or day-to-day life while understanding and resolving the problems
of communication failures and issues that arose with the family members or
- Nowadays, it's not hidden anymore that mediation or conciliation is one
of the effective methods to resolve matrimonial disputes and if these
mechanisms are proved to be effective in such serious disputes then there is
no doubt that the same methods could be used to resolve issues or
differences in professional and personal relationships as well.
Overall, mediation as an ADR has been emerging as a widely acceptable and used
method of solving disputes. It is flexible and helps courts reduce the number of
pending cases. Moreover, the solution is not imposed on any party but agreed by
both parties with mutual consent. Thus, it gives a solution peacefully.
It is also prominent to understand the future need of this process and make it
essential for law students to give this topic due concern because it will not
only enhance their dispute solving skills but will also teach them negotiating,
client dealing, balancing between two different ideas and more.
Consensual dispute resolution methods like mediation are gaining popularity day
by day and are now widely used around the globe to resolve different types of
disputes and thus it is of keen benefit for law students and those in the legal
profession to know the advantages and importance of this method.