Scope of Mediation In India- Benefits of Mediation
Author : Shraddha Easwaran
Introduction
Mediation is another form of alternative dispute resolution (ADR) that is available to parties. In mediation, the opposing parties collaborate with the mediator, an impartial third party, to settle their differences.
By monitoring the information exchange and the negotiation process, the mediator helps the parties resolve their disagreements. The mediator assists the parties in identifying areas of agreement and overcoming unreasonable expectations. He or she might also make original suggestions and help with the development of a settlement agreement.
The mediator's job is to interpret difficulties, communicate with
the parties, frame problems, and deliver information. In general, mediation is
a brief, organized, task-focused, and "hands-on" approach.
Scope of Mediation In India- Benefits of Mediation
Numerous situations are
referred to as mediation in court. Even so, they seek the parties' consent
before recommending a matter for mediation. However, the court does have the
authority to order parties to participate in mediation, if only to learn more
about the mediation process. Judges, prominent attorneys, and decision-makers
have genuinely nice things to say about mediation.
But mediation has not
really taken off in the private sector yet. Private business mediation is
currently receiving attention because of the success of court-adjoined mediation in India. Industrial leaders and pioneering corporate
organizations are participating for the same reason.
Given that traditional
court procedures take years to conclude a case and that there are thousands of
cases outstanding in Indian courts, mediation has an extremely high
potential in that country.
Laws & Acts in which Mediation is Recognized- Scope of Mediation In India- Benefits of Mediation
Court-recommended mediation and private mediation are the two types of mediation practiced In India. Court-referred mediation is a procedure whereby the court, Relevant statutes, or sections related to mediation are in accordance with Section 89 of the Code of Civil Procedure, 1908 recommends an issue to mediation.
It is most frequently used to settle matrimonial disputes, particularly divorces.
Private mediation entails the parties reaching an agreement to mediate their disagreement with the aid of a trained mediator. Anyone can decide to use private mediation to settle conflicts, including individuals, business partners, and government appointees.
The most enticing aspect of alternative dispute resolution (ADR) is that mediation allows parties to avoid the traditional litigation procedure, which is typically a drawn-out and expensive battle.
There are numerous statutory requirements that require mediation before filing a lawsuit in court because India's courts already have a significant backlog of cases. Some of these laws include:
- The IndustrialDisputes Act of 1947, Section 4, entrusts conciliators with the duty of mediating and resolving workplace disputes and lays out the process to be followed in great detail.
- Code of Civil Procedure, 1908 – The Code was revised in 2002 and now mandates that all ongoing court cases be sent to mediation. Due to their delicate nature, the amendment also mandates mediation for all family and personal issues.
- Section 442 of the Companies Act of 2013- The National Company Law Tribunal and the Appellate Tribunal may submit conflicts to mediation under Section 442 of the Companies Act of 2013.
- The Micro, Small, and Medium Enterprises Development Act of 2006 requires mediation and conciliation in the event of conflicts.​
- The provisions under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 are consistent with the courts' prior declaration that marriage and divorce-related problems are more likely to be referred to and resolved through mediation.
- Section 32(g) of the Real Estate (Regulation and Development) Act, 2016, allows for the peaceful resolution of disputes through a recognized dispute resolution forum.
- The Commercial Courts Act of 2015 was updated in 2018 to require mediation between the parties before filing a lawsuit. The change only permits litigation if the parties to the dispute meaningfully participate in mediation sessions but are unable to reach an agreement.
- The 2019 Consumer Protection Act- The newly revised Consumer Protection Act dedicates an entire Chapter to first trying mediation as a means of conflict settlement before turning to a consumer redressal body.
Benefits of Mediation
The followings are the benefits of Mediation :
Fast: Scope of Mediation In India- Benefits of Mediation
Dispute mediation can take place relatively early because it takes substantially less
time for the parties and, as a result, the Mediator, to prepare for the
mediation than it does for a trial or arbitration.
Additionally, once mediation starts, the mediator can focus on the areas they
believe will help the parties come to an agreement; time-consuming evidence is
frequently omitted, making the best use of the parties' time and resources.
Even if all the evidence has already been gathered, resolving a dispute through mediation always takes less time than doing it in court.
Flexible: Scope of Mediation In India- Benefits of Mediation
There is no predetermined procedure for mediation. Different
mediators use various techniques. Procedures are frequently changed to meet the
needs of a particular circumstance. Even during a trial or before any official
legal processes get started, mediation might take place.
Cost-effective: Scope of Mediation In India- Benefits of Mediation
Mediation is always less expensive than other forms of conflict
resolution since it typically involves less planning, is far less formal than
trial or arbitration, and can take place early in the disagreement.
Brings Parties Together: Scope of Mediation In India- Benefits of Mediation
During a family conflict or business dispute, parties may be able
to save or even repair their connection.
Convenient: Scope of Mediation In India- Benefits of Mediation
The parties have a great deal of discretion over the proceedings'
timing, venue, and length. The convenience of the courts does not affect
scheduling.
Creative:
Alternative resolutions that cannot be reached through arbitration
or judicial decision-making may also be reached. A skilled Mediator helps the
parties see options that may not be obvious or even available via the
standard dispute resolution procedure. The variety of
problems a Mediator could run with is essentially the sole constraint on
inventive solutions.
Confidential:
Information exchanged during mediation is frequently kept private.
Parties who want to keep their disagreements private and low-key can employ
mediation to do so. Statements presented to the mediator frequently have no
other utility except to aid the mediator in comprehending the dispute's
resolution. Sincerity is encouraged by confidentiality, and sincerity is more
likely to lead to resolution.
Control:
If any party feels that the mediation is not in their best
interest, they have the option of ending it. The parties control the
mediation's outcome.
Direct
Communication:
Direct communication between the parties occurs
during mediation. If one or both of the parties is being represented by an
advocate, at least the parties are aware that the Mediators will listen to
them.
The parties control
mediation process -
A mediator cannot force a participant to accept a decision
they disagree with. Unlike an arbitrator or a court, a mediator does not have
the authority to make decisions. Instead, the mediator’s role is to assist the
parties in coming to an agreement. In reality, even if the parties have agreed
to submit their dispute to mediation, they still have the right to terminate
the mediation process at any time after the
initial meeting if they determine that doing so will not advance their
interests. But once a mediation session gets underway, parties typically
participate actively. If the parties decide to proceed with mediation, they
will select how it will be conducted together with the mediator.
Win-Win
Outcome in mediation-
The circumstances of the disagreement and the
relevant law decide a case's outcome in court litigation or arbitration. The
parties' commercial interests may also serve as a guide during a mediation.
As a result, the parties are free to select a result that is focused equally on
the future of their professional relationship and on their previous behavior.
Mediation frequently leads to a settlement that adds more value than it would
have if the underlying disagreement hadn't occurred when the parties discuss
their interests and communicate.
Mediation is a private
process-
The parties cannot be forced to reveal information that they would
prefer to keep private during a mediation. Any secret information or admissions
made by a party to advance the resolution of the dispute may not be disclosed
to anyone else or used against them later in court proceedings or
arbitration. The confidentiality of mediation enables the parties to negotiate
more freely and effectively without worrying about being exposed.
