Mediation under ADR

In a dispute, sometimes it happens that the parties don’t want to go through the process of litigation to solve their dispute. To solve this problem the law provides other remedies to solve their dispute by other methods. Alternative dispute resolution law provides many methods such as negotiation, mediation and arbitration to solve the dispute between two or more parties. These methods are used to solve the civil dispute or any other dispute arising between the two parties or partners in a partnership firm or any other relationship erosion from the contact between parties. In this article, we will discuss mediation and the process of mediation.

Mediation is a process which is ongoing since the Vedic Period. It comes under the Alternative dispute resolution process. Since the Vedic period, our ancient use to practice this process to resolve their minor conflicts between family or other matters. This is used as one of the best methods to solve the dispute because in this process the case will remain secret between three parties which are two different parties and conflicts arise and the third is the mediator.

The ADR is consisting the following types in India are: – Arbitration, mediation, negotiation and conciliation. But the mediation procedure is one of the best methods which are being used in India to resolve disputes related to family matters and property cases.

What is Mediation?

It is a process where disputing parties decide mutually to find the solution of their legal dispute where they enter into a written contract and appoint a third party (Mediator) to solve the dispute mutually. In this process, the mediator brings both the party to the end where both get satisfied with the decision. The parties may bring the ADR advocates to represent their case in front of the Mediator.

The difference between Mediation and Arbitration is that the arbitration process is a little bit formal than the Mediation process. It is party friendly and very flexible in nature.

Meaning of mediation

Mediation is an alternative dispute resolution process in which the neutral party who is known as the mediator, discuss with the parties in a lawsuit to solve their dispute before trial.

Mediation is a successful process to solve the dispute in many cases due to:

Fast processing

Mediation is a fast process and it took normally two or three weeks to solve any dispute whereas is the court may take extra time to solve the same dispute.

Flexible process

It is a very flexible process because it does not take any oral or documentary evidence. It is not necessary to appoint an advocate in this. There are no rules for the process, the parties are free to choose the place, date and procedure for the process.

Confidential process

It is a confidential process. The person who is a mediator is not allowed to tell any facts or details of the case to any other party which is not related to the case.

Who is a mediator?

A mediator is a person who is experienced in his field. He is a neutral party in the conflict between two other parties. He helped the parties in dispute to reach on mutually satisfactory settlement of their dispute. Any decision taken in the process of mediation is enforceable by law.

A mediator is an experienced person

The person who is a mediator in any dispute is normally the retired judge or experienced advocate in their fields. So it is very common in the process of [mediation] that the decision provided by the mediator is good and beneficial for both parties.

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Role of mediator in the process of mediation

The decision of mediation only depends upon the parties in the dispute. It is not the work of the mediator to decide what is fair or right. He does not even blame any of the party by giving his opinion. He just acts as a catalyst and encourages both parties to come to a decision that is suitable for both of them. He eliminates any hurdles in communication. After the process, the mediator gives the report to the court whether the dispute has been resolved or not.

Types of Mediation

There are two types of mediation in India

• Court referred [mediation]
• Private [mediation]

Court referred Mediation

Section 89 of the civil procedure code 1908, gives the power to the courts that the judge can refer the pending cases for the [mediation] process. This process is used to solve disputes like Matrimonial disputes or divorce cases.

Private Mediation

In this process, a mediator is a qualified person with a fixed fee basis. Any person, company or government sector can appoint a Mediator to solve the dispute.

Process of Mediation

The process of [mediation] is completely secret. The documents used in this process were submitted sealed. The mediator cannot disclose the information given by one party to another party unless the party allows him to do so. He cannot disclose the facts of the case to any other person who is not the party of the case.

Characteristics of mediation

There are many characteristics of the [mediation] process which helps the parties to solve their dispute on time. These characteristics are:

• It is a non-binding procedure

The [mediation] does not compel or force any of the parties to accept an outcome that is not liked by the party. Hindi process of arbitration is the decision of the arbitrator b both parties. But it is not the same in the case of mediation. The parties are free to accept or reject the decision of mediation. The mediator does not give the decision in the process of mediation but he just helps both the parties to come to a decision that is acceptable for both the parties in the dispute.

Even the parties who agreed to solve their dispute with the process of [mediation] can anytime abandon the process and can take their dispute into the court of law.

• It is a confidential process to solve the dispute

In this process, the parties are not compelled by the mediator to disclose any information related to their business or partnership. If any of the parties disclose their confidential information in front of a mediator, it becomes the duty of the mediator to make this information confidential and not to tell any buddy about this information.

Under the WIPO mediation rules, the process of mediation must be confidential.

The confidentiality in the process makes the party negotiate more really and without any hesitation. They are free to discuss their facts without any fear of publicity.

• It is not related to law

The decision of the court and arbitration is dependent upon the facts of the case. But in the process of mediation, the decision is based on the comfort of the parties in dispute.

• It is better to finish the dispute

The mediation process encourages the parties in the dispute to solve their dispute which occurred due to past problems and focus on the future.

• Avoid unnecessary court fees

The process of mediation does not cost much as the litigation in the court.

• It is not stressful

The process to solve the dispute with the help of mediation is not stressful as compared to the process of litigation. The parties remain free in the process of mediation. They have the full right that they can disclose the fact or not disclose the fact. It totally depends on them.

• It helps for the preservation of the relationship

It is normal that a breach of contract can between partners. The settlement done with the help of mediation saves the relationship between the partners. Mediation provides mutually satisfactory results which are acceptable for both parties and it is very helpful to build their relationship most wrong so that they can continue run their business together.

FAQ Related to Mediation?

Conclusion

[Mediation] is a fast and easy process to finish the dispute. It is specially used in divorce cases, family cases and property cases. This process helps the parties to keep the case limited to three parties only. The case can be solved at less cost without the loss of reputation and peace.

Due to the overburden in the courts of law or the parties should take a mediation process to solve their dispute.

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