Mediation in India: Practical Indepth

Mediation, one of the settlement techniques under the alternate dispute resolution, is a party-centric process wherein a neutral third person, the mediator, exercising proper techniques aids in bringing the two or more disputing parties to an agreement on the matter concerning the parties. The mediators can’t impose an outcome or decision on the parties and therefore, a mediator, per se isn’t a decision-maker.[1]

The use of mediation as a method of dispute resolution in different cultures date back to more than three thousand years finding a mention in the Eastern civilizations which were known for peaceful persuasion rather than coercive conflict and the Roman Empire who called mediators by a number of names such as intercessor, conciliator and mediator.[2] According to Confucius, whose philosophy was centered on peace and mutual understanding, the best way to resolve a dispute was through moral persuasion and agreement, with litigation being the last resort.[3] Islam, having a strong tradition of mediation and conciliation, attempted to preserve social harmony by reaching an agreement in a dispute.[4] There has been a long tradition of mediation in the west as well where the clergymen acted as mediators between criminals and authorities, between two families and in diplomatic disputes.[5]

THE CONCEPT OF MEDIATION

“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men’s hearts. I realised that the true function of a lawyer was to unite parties riven asunder. A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.”[6]

–Mahatma Gandhi

What is Mediation?

Mediation is one of the methods of Alternative Dispute Resolution (ADR) under Section 89 of the Code of Civil Procedure enacted by the Parliament wherein a neutral third party, the mediator, assists the disputing parties[7] to resolve their disputes using proper techniques, thus assisting in the negotiation and discouraging litigation. The process of mediation helps in the resolution of disputes with the involvement and participation of the parties and their advocates. The role of a mediator is that of a facilitator in bridging the gap between the two disputing parties by defining issues and eliminating obstacles for communication and settlement.[8]

Important Aspects of Mediation

Confidentiality is one of the most important aspects of mediation.[9] That is, a mediator can’t disclose any portion of information to a third party who wasn’t a part of the mediation hearing. Furthermore, if one of the parties clearly state that a particular fact shouldn’t be disclosed to the opposite party, the mediator is bound by the principles governing confidentiality.

Another important aspect of the process of mediation is neutrality. That is, a mediator shouldn’t attach himself to the outcome or decision in the dispute in the sense that he or she shouldn’t have a vested interest in such outcome.[10] In this particular manner, neutrality is different from impartiality which is another important aspect of mediation.

Also, due care should be taken of the fact that mediation is not commenced before the arrival of both the parties. Parties should be given utmost importance since mediation is a party-centric process and therefore, the self-determination of the parties has an important role to play in the settlement of disputes. The willingness to settle the issue should flow from the parties and not the mediator.

STAGES OF MEDIATION

Stages in brief

1^st stage- Opening statement

2^nd stage- Joint session

3^rd stage- Private session/caucus

4^th stage- Sub-caucus

5^th stage- Closure/Agreement

Stages in detail

Opening statement- An important statement to be made by the mediator which explains the entire procedure of mediation to the parties.[11] If there is no opening statement, then the process can’t move ahead. A mediator, in his opening statement, explains the procedure that he/she would be going to adopt for mediating the matter in issue between the parties. In order to gain the confidence of the parties, the mediator is also required to state to the parties the benefits of mediation and that the outcome of the dispute lies in their hands. The mediator should also inquire the parties about whether the disputants have come for mediation for the first time so that an extra effort is made by such mediator to explain the procedure in detail.
Joint session- Joint session is a must in mediation for the parties as well as the mediator, in order to understand the parties’ perceptions and issues. As soon as one side has narrated their version of events, the mediator has to re-state the facts in order to confirm the series of events. Such re-statement by the mediator would take place only after the completion of narration of events by the parties.

Main goals of a joint session
Gathering information
Organization of information
Listening to the dispute in the word of the disputants
Mediator assuming control over the process
Techniques to be adopted by the mediator
Active listening– The mediator should take note of each and every point stated by the mediator in order to not miss out on a crucial information.
Body Language– includes silence as well
Questions– In a joint session, open-ended questions, that is, elaborate questions should be asked.[12] The answer of an open-ended question elaborates the issue and therefore, is important for gathering information from the parties.
Empathy with neutrality– An empathy with neutrality should be observed, especially in the joint sessions so that a particular party wouldn’t get an impression of the biasedness of the mediator.[13] Sympathy and empathy is typically seen in matrimonial cases and partition suits and to some extent, in declaration suits.
Main goals of a private session
Gathering further information.
Encouraging parties to vent out their emotion in a productive manner.
Identify the interests of the parties which leads to a shift in the focus from a ‘want’ to a ‘need’ where the want is not a basic requirement but something extra. Need, on the other hand, is a basic requirement.
Exposing unrealistic expectations.
Shifting from a discussion in the past to the problem-solving approach.
Encourage the parties to invent options for settlement.

Private session- It is the mediator’s choice to conduct a private session[14] in a mediation but at the same time, a mediator can’t force if the litigating parties resist to a private session. A mediator can have a private session without the consent of the parties in cases where the parties take over the matters in a mediation in their own hands.

Sub-caucus

The process of Sub-caucus is conducted by the mediator along with the advocates of the parties. This is a private session with the advocates to discuss the legal issues.

Closure/Settlement

There are two modes of closure of a dispute:-

Agreement
Dispute sent back to the court

Where an agreement is reached between the parties, it is the duty of the mediator to draft an agreement and make the parties understand the contents of such agreement with their advocates signing the agreement deed. Once the agreement is reached, there is a closing statement by the mediator wherein he/she congratulates the parties and gives them credit for their complete co-operation.

On the other hand, if an agreement is not reached and the dispute is referred back to the court, the mediator still has to give credit to the parties thanking them for their co-operation.

Advantages of Mediation
Disadvantages of Mediation

Saving money and time of the parties- No litigation costs in the future if the parties are able to reach a settlement in mediation. Mediation, therefore, is generally less expensive.

Mediation, as an alternate dispute resolution mechanism, provides a judicious manner of dispute resolution, leading to rapid settlement of the cases.
Identification of the areas of agreement and disagreement between the parties.
Furtherance of the interests of the parties.
Reduces hostility between the parties by offering an opportunity to restore and preserve business and personal relationships which could be dented by litigation.
The interests of the parties is protected by the principles of confidentiality, letting them communicate their views freely and directly without any fear.
Parties, who have reached upon an agreement on their own, are more likely to comply with the terms of such agreement as compared to the terms which has been imposed by a decision-maker such as an arbitrator or a judge.

Parties might spend their invaluable time and money, to find that their dispute is later referred to the court as mediation doesn’t always result in the settlement of dispute between the parties.
Legal precedents can’t be set in a mediation. Therefore, a mediated settlement has no broader social impact.

There is no formal discovery process in mediation. Therefore, the party seeking disclosure of a particular information has to rely on the other party’s good faith.

References:

[1] History of Mediation, Mediation matters, available at: http://www.mediationmatterssd.com/mediation matters/history.html.

[2] Mediation Training Manual of India, Mediation and Conciliation Project Committee Supreme Court of India, Delhi, available at: http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20 INDIA.pdf.

[3] Omid Safa, IN SEARCH OF HARMONY: THE ALTERNATIVE DISPUTE RESOLUTION TRADITIONS OF TALMUDIC, ISLAMIC, AND CHINESE LAW (December 2, 2008), available at: http://www.docin.com/p-433856410.html.

[4] id.

[5] Supra n. 1.

[6] Mahatma Gandhi, available at: http://www.mediate.com/sprowls/pg7.cfm.

[7] Section 89(1), Code of Civil Procedure 1908, available at: http://keralamediation.gov.in/sec89cpc.pdf

[8] What is Mediation, Civil Mediation Council, available at: http://www.civilmediation.org/about-mediation/29/what-is-mediation-.

[9] Forrest S. Mosten, CONFIDENTIALITY IN MEDIATION, California Lawyer (October 2011), available at: http://www.callawyer.com/Clstory.cfm?eid=918251.

[10] Rachael Field, NEUTRALITY AND POWER: MYTHS AND REALITY, Mediate.com (November 2002), available at: http://www.mediate.com/articles/fieldr.cfm.

[11] Arnold W. Zeman, OPENING STATEMENT BY THE MEDIATOR, Mediate.com (January 2014), available at: http://www.mediate.com/articles/ZemanAbl20140111.cfm.

[12] Dan Brookhart, THE PROMISE AND PERIL OF A JOINT SESSION IN MEDIATION, Brookhart Law and Mediation LLC (Fall 2012), available at: http://www.brookhartmediation.com/wp/the-promise-peril-joint-session-mediation/.

[13] Supra n. 11.

[14] Brandon, Mieke (2005), USE AND ABUSE OF PRIVATE SESSION AND SHUTTLE IN MEDIATION AND CONCILIATION, ADR Bulletin: Vol. 8: No. 3, Article 1, available at: http://epublications.bond.edu.au /adr/vol8/iss3/1.

By Mayank Samuel, NALSAR, Hyderabad.