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Mediation - Need of the Hour

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Mediation is a process of third-party involvement in a dispute. A mediator cannot impose an outcome but rather assists the disputing parties in reaching their own agreement.

Mediation can be used in a wide range of disputes, including labor disputes, public policy disputes, disagreements among nations, family disputes, and neighborhood and community quarrels.

According to research, about 80% of dispute mediations lead to resolution.

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Mediation - Need of the Hour

  3. 3. Mediation is a form of intervention involving process in which a third party i.e. the Mediator assists parties to a dispute to themselves resolve their differences. Mediation is a confidential, voluntary and participatory process in which an impartial and neutral third party assists disputants in finding a mutually acceptable solution. The parties to the dispute have an opportunity to ventilate their grievances and feelings through the process of Mediation and thereafter the solution to their unique circumstances and demands. The Mediator does not impose any solution but creates a favorable environment to enable the parties to resolve their dispute themselves amicably.
  4. 4. MEDIATION IS: A structured, informal negotiation process. A process where a neutral mediator utilizes specialized communication and negotiation techniques. A process which is voluntary, confidential, transparent and flexible for assisting parties in resolving their disputes.
  6. 6. All civil cases, comprising actions for Injunctions Declarations Damages Partition Specific Performance Money Rent Family Disputes Dispute related to intellectual property rights Dispute related to dishonour of cheques u/s 138 of the Negotiable Instrument Act Except those cases where there are serious allegations of fraud etc. Suitable criminal cases u/s 406/498-A of the I.P.C. and cases which are compoundable under law could also be referred to mediation.
  8. 8. Section 89 of C.P.C. enunciates that if there is any chance of a settlement of the dispute amicably in a matter, the Presiding Officer may refer the matter for alternate dispute resolution. Referral to Mediation is proper even when neither party has agreed to settle but they are honestly willing to explore the possibilities of settlement through mediation and if the Presiding Officer finds appropriate to do so, the mater would be referred for mediation to the Mediation Centre.
  9. 9. WHAT HAPPENS IN A MEDIATION ? The mediation process is an informal structured process involving several stages including the following:
  10. 10. Introduction Joint Session Individual / Separate Session Agreement
  11. 11. WHAT HAPPENS IN A MEDIATION ? 1. Introduction: o The mediator introduces himself/ herself to the parties, explains the mediation process, establishes neutrality and confidentiality. o He explains the ground rules and ultimately generates momentum towards open discussion for a settlement. 2. Joint Session o The mediator collects information about the factual background and interests of the parties, establishes interaction between them and creates a favorable environment for enabling an amicable settlement of their disputes.
  12. 12. WHAT HAPPENS IN A MEDIATION ? 3. Individual / Separate Session: oThe mediator allows parties to further explain their grievances, demands, expectations and continues to gather information, even whilst persuading parties to share confidential information, and helps them to choose options generated by the parties or the mediator for an amicable settlement. 4. Agreement: oThe mediator confirms and clarifies the term of settlement and records the settlement in clear, concise and concrete terms as acceptable to the parties.
  14. 14. oMany Cases are resolved in a couple of sessions. However, in some complex disputes, more sessions may be required for an effective solution to be arrived at. oIt is desirable to have a follow – up session within one week of the previous session. oHowever, the mediation process should ideally take a a maximum period of 60 days. There should not be postponements easily or casually agreed to by the mediator. oParties or their representatives empowered to settle the dispute amicably, can participate in the mediation process alongwith their counsel. oMediation is a process available / offered as an alternate to trials and referral of the cases to mediation does not automatically stay any court proceedings.
  16. 16. Rule (4) of the Civil Procedure Mediation Rules, 2006 prescribes that mediators shall be persons who are: a) ( i ) Retired Judges of the Supreme Court of India; ( ii ) Retired Judges of the High Court; ( iii ) Retired District and Sessions Judges or Retired Judges of the City Civil Court or Courts of equivalent status. b) Legal practitioners with at least 15 years standing at the Bar at the level of the Supreme Court or the High Court or the District Court or Courts of equivalent status. c) Experts or other professional, with at least 15 years standing or retired senior bureaucrats or retired senior executives. d) Institutions which are themselves experts in mediation and have been recognized as such by the High Court provided the names of its members are approved by the High Court initially or whenever there is change in membership
  18. 18. →Results in Psychologically an substantively more satisfactory results than litigation. →Narrows the issues in dispute by identifying areas of agreement and disagreements. →Allows parties to any dispute to personally ventilate their views directly, informally, confidentially and without any fear of retribution. Moreover, as no statement made in the Course of mediation, can be used against a party if no settlement is reached, there is frankness which is encouraged. →Helps to save time, money and energy as a dispute can be resolved any time by mediation before or during a trial or appeal prior to judgment. →Focuses on the future rather than the rights and wrongs of the parties. →Eliminates the risk of litigation. →Eases tension and restores peace of mind. →Reduces hostility between parties and offers an opportunity to them to preserve business and personal relationships. →Creates a win – win situation amongst disputants.
  19. 19. THANK YOU Source: • Mediation Centre High Court, Bombay • Maharashtra State Legal Services Authority