Mediation: An Analysis Pros And Cons

Introduction

A trial in an Indian court may take months or years to resolve. This is not only highly time consuming but also very expensive. A quick solution to speedy and inexpensive resolution is mediation. In simple words mediation is the process where a neutral 3rd party called as the mediator comes to a conclusion by negotiating or communicating for a dispute resolution. generally, the mediator has no power or authority. he or she is a specialized technician for dispute negotiation or to plan a transaction. This process is highly confidential and transparent as it happens between the parties itself. parties voluntarily choose the process generally to save time and money. court decisions and procedure can often get ugly and may also be subject to media entertainment mediation can help reduce that to an extent. This process is effective in enhancing a communicative working relationship between the parties and help them see through the real issues and give them a chance for an improved resolution. Mediation can also bring out an attitude of adjustment and flexibility and can also help the parties to clear out any misunderstandings by stating the case clearly and patiently preparing for a midpoint. It is a powerful strategy used for justice. Exposure to these facilitated negotiation processes, though spreading rapidly, remains limited. Alternate dispute resolution is an informal yet structured means of resolution. Due to the constant court delays, ADR is becoming a popular means of resolution with increased time in India. Mediation has actually been there since the Vedic period. In fact such a method exists in the panchayat system too of seeking elderly experience and knowledge to find justice. There still is deep scepticism over the application of mediation to a wide variety of Indian legal resolution methods.

Types of mediation

• Court referred mediation

Mediation comes under Section 89 of the Civil Procedure Code, 1908. In cases where the court observes itself as an existing component that can be acceptable by both the parties, then the court can refer the parties to mediation whose procedure will be given by the court itself. Supreme Court held in reference to the matter of mediation that conciliation and arbitration are mandatory for court matters. The judgement in Tamil Nadu V UOI have rise to this dispute resolution in India. This type of mediation is used maximum in matrimonial and family disputes, particularly divorce cases.

• Private mediation

A private mediator is fixed by both the parties who is neutral, and the parties come together to solve it unanimously. The mediator could be of any designation and can be appointed by anyone for a bias free judgement. The best part is that the decision of the mediator is neither binding on the parties nor ultimate.

Advantages

• The parties have control over the mediation in terms of its scope and its outcome whereas in litigation the parties have no control over the proceedings.
• The process is voluntary, and any party can opt out of it at any stage if he feels that it is not helping him. The self-determining nature of mediation ensures compliance with the settlement reached. Litigation is non-voluntary process; a party cannot quit until the case ends.
• The procedure is simple and flexible. It can be modified to suit the demands of each case. Mediation helps to maintain, improve, restore relationships between the parties. Whereas litigation focus on the satisfaction of a single party.
• Cost efficient and time saving – The cost is quite minimal in comparison to judicial procedures. Since legal counsels are not required the fees charge is a massive save. The mediation is also quicker due to very little legal formalities. A mediator has the liberty to consider those issues she/he deems significant to bring parties to the agreement, time-consuming evidence is generally avoided, thereby saving time and resources.
• Flexible and creative solutions – Since there is no case sided to proving the correctness of one party, therefore creative outcomes are a consequence for both parties to have a resolution. Different mediators having different methods which are amended as per the case.
• Confidentiality and privacy - All the information and evidence presented during mediation is kept confidential thus outside parties do not have access to the mediation proceedings. Data given to the mediator cannot be used for any other purpose besides helping the mediator to reach an appropriate resolution. In fact, there is such secrecy that there is unique confidentiality between one party and the mediator i.e., if one party provides information to the mediator, it can be kept confidential from the other party subject to specific conditions. Another significant benefit of mediation in India is that it is completely private and helps to protect the public image of the parties. Only the disputing parties and the appointed mediator is present during the process making it personal and private.
• Restoration of relationship - In conventional court proceedings blame is put on one of the parties which is often detrimental to the relationship of the parties. The final decision of the court is imposed on both the parties and it can be undesirable because one party always loses. On the contrary in mediation parties alone are responsible for their own decision and can choose to not accept the final settlement brought about by this process. This helps parties to come to a solution peacefully and amicably. Even if the relationship between the parties was compromised due to existing issues it can be restored by the process of mediation as it upholds the interests of both parties.
• Control and dominion - The parties can choose the time, location, and the duration of the proceedings giving parties a lot of control. Courts have their own schedule that is to be adhered to by everyone hence it is not as convenient. Contrary to the judicial system parties in mediation are not opponents but are collaborators striving to find a resolution that is mutually acceptable. One of the major advantages of mediation is that neither of the parties loses and the interests of both the parties are conserved. The parties control the result of the mediation and either party has the advantage of terminating the mediation without giving any reason.

THE STAGES OF MEDIATION

The functional stages of the mediation process are:

1. Introduction and Opening Statement
2. Joint Session
3. Separate Session(s)
4. Closing

At the commencement of the mediation process, the mediator shall ensure that the parties and their counsel are present

Conclusion

Mediation is a good solution if judicial procedure is to be avoided. The above listed advantages clearly show that India is going to have an increased future in mediation justice. Laws are required to make this process more formal and spread awareness about the same. Under the guidance of a professional mediator people will also be able to restore their relationship that often gets lost in judicial arguments. The exhaustive lengthy process will be substituted by a convenient and flexible method.