Facilitative Mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
Author: Bijendra shandilya
Mediation is a method used to resolve disputes since the Vedic era. It is inexpensive, keeping the matter, particularly family issues secret among three parties: two disputed parties and one mediator.
Additionally, neither party is being compelled to accept the solution both parties agreed to it amicably. In this sense, it offers a peaceful resolution.
The practice of using alternate dispute resolution to resolve disputes is trending in India nowadays. The mediation process in India has been in use since the Vedic period and is not a freshly developed method of dispute resolution.
The courts are somewhat less overloaded with cases as a result of ADR and the parties are able to resolve their dispute more quickly, smoothly, and with fewer issues.
The difference between bringing a dispute to court and bringing it up in mediation is that in court, there is a blame game and faults must be proven in the hopes that the judge will provide a resolution.
In mediation, however, the dispute is resolved through negotiation, where a settlement is sought with the parties' consent after taking into account each side's demands.
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Read the Article: What is Mediation?
Read the Article: What is Family Mediation? Mediation in Family Disputes in India
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What is Mediation? Facilitative Mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
Mediation is a process where a neutral third party, called a mediator, helps two or more parties in a dispute to reach a mutually acceptable resolution.
The mediator facilitates communication and negotiation between the parties but does not impose a solution. Mediation can be used in a wide range of conflicts, such as business disputes, family conflicts, and community disputes.
The goal of mediation is to help the parties resolve their differences in a cooperative and amicable manner, rather than relying on a judge or jury to decide the outcome.
Mediation is often considered a more cost-effective and efficient alternative to traditional litigation, as it can help the parties resolve their disputes more quickly and with less expense. Additionally, mediation can help to preserve relationships and maintain ongoing business or personal interactions.
Mediation is a voluntary process, and the parties must agree to participate and be bound by the outcome. The mediator's role is to facilitate communication, assist the parties in identifying their interests, and help them to generate options for resolving their dispute.
The process is confidential, and the mediator cannot disclose any information shared during the mediation without the parties consent. Mediation can be used in various areas like commercial disputes, employment disputes, family disputes, divorce and child custody cases, community disputes, and many more.
Categories In Mediation.
In India, mediation is divided into two categories that are typically used:-
Court referred mediation
In accordance with Section 89 of the Code of Civil Procedure, 1908, or some other Statues, the court may refer a case for mediation in India. In matrimonial issues, especially in divorce cases, this type of mediation is frequently used.
Private Mediation
In Private Mediation, disputed parties choose the Mediation proceeding by themselves. It is not referred to by the court. They choose a qualified individual to serve as a mediator on a fixed-expense premise. Anyone may choose to use mediation to settle their issue, including the general public, businesses, and the government sector.
Types of Mediation- Facilitative Mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
There are several types of Mediation, which include:
Facilitative Mediation:
This type of mediation focuses on helping the parties to communicate and reach a mutually acceptable agreement. The mediator's role is to encourage and assist the parties in identifying and understanding their interests and concerns and exploring potential solutions.
Evaluative mediation:
In this type of mediation, the mediator offers their own assessment of the case and makes recommendations to the parties. The mediator may also provide information to the parties about the likely outcome if the case were to go to court.
Transformative mediation:
This is a new concept of Mediation. This type of mediation focuses on empowering the parties to understand and address the underlying issues that led to the conflict. The mediator helps the parties to identify and change the patterns of communication and behaviour that are causing the conflict.
Restorative mediation:
This type of mediation focuses on repairing harm that has been done and restoring relationships. This type of mediation is often used in cases involving crime, and in the community.
Online mediation:
This type of mediation is done through online platforms, and it is becoming more popular due to the COVID-19 pandemic.
Hybrid Mediation:
This type of mediation is a combination of different mediation types, like facilitative, evaluative and transformative, depending on the needs of the parties.
The type of mediation that is used will depend on the specific dispute and the preferences of the parties involved.
Read the Article: What is Divorce Mediation? Benefits of Divorce Mediation over Divorce litigation-When and what is the right time for divorce Mediation
How Facilitative Mediation differs from other MediationFacilitative Mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
Facilitative mediation differs from other types of mediation in the way the mediator conducts the process and the goal of the process.
Role of the mediator:
In facilitative mediation, the mediator's role is to assist the parties in communicating and reaching a mutually acceptable agreement. Mediator will encourage the disputed parties to reach a voluntary resolution, however, in evaluative mediation, the mediator's role is a little different. He imposes decisions or makes recommendations to the parties.
Goal of the process:
The goal of facilitative mediation is to help the parties to reach a mutually acceptable solution that addresses their concerns and interests. This is done by facilitating the negotiation between the concerned parties.
Approach of the process:
Facilitative mediation is an informal and non-adversarial process. The mediator helps the parties to communicate and explore potential solutions. In evaluative mediation, the mediator may provide more information to the parties about the likely outcome if the case were to go to court. In transformative mediation, the focus is on empowering the parties to understand and address the underlying issues.
When is facilitative mediation useful?- What is Facilitative Mediation? How it is a favourable model for disputes?
Facilitative mediation is a type of mediation that is particularly useful when the parties are open to the idea of resolving their dispute through negotiation but may need help in identifying the issues and generating options for resolution.
Facilitative mediation is often used when the parties have a relationship that they wish to preserve, such as in family disputes, business disputes, or community disputes.
Facilitative mediation is also useful when the parties have a lot of emotions and feelings that are getting in the way of finding a resolution. In this type of mediation, the mediator helps the parties to understand and manage their emotions, so that they can focus on the issues at hand.
Facilitative mediation is also useful when the parties have limited knowledge of the law or the legal process, and need help in understanding their rights and options. The mediator can provide information and guidance but does not give legal advice.
Additionally, facilitative mediation is useful when the parties have cultural, linguistic, or other communication barriers that are impeding the resolution process. The mediator can help to bridge these barriers by facilitating communication and understanding between the parties.
In summary, facilitative mediation is useful when the parties are willing to resolve the dispute amicably and want to find a mutually acceptable solution. The mediator can help them to identify the issues, manage emotions, understand their rights and options, and communicate effectively.
Why facilitative mediation is the favourable model for disputes- What is Facilitative Mediation? How it is a favourable model for disputes?
Facilitative mediation is a model of mediation where the mediator helps the parties involved in a dispute to communicate effectively and find a solution that works for everyone.
This model is considered to be the most favourable because it allows the parties to have control over the outcome of the dispute and focuses on their needs and interests, rather than imposing a solution on them.
Additionally, facilitative mediation helps to build trust and understanding between the parties, which can lead to a more lasting and satisfactory resolution. It is also usually more efficient, faster and cost-effective than other forms of dispute resolution.
How facilitative mediation works- What is Facilitative Mediation? How it is a favourable model for disputes?
Facilitative mediation is a process in which a neutral third party, known as a mediator, helps two or more parties to communicate and work together to reach a mutually acceptable agreement. Here are the steps on how facilitative mediation works:
The parties agree to participate in mediation: The parties voluntarily agree to participate in the mediation process and to work towards resolving their dispute.
The mediator explains the process: The mediator explains the process of mediation to the parties, including the rules of confidentiality, the role of the mediator, and the expectations of the parties.
The parties share their perspectives: The parties have an opportunity to share their perspectives on the dispute and to express their concerns and interests. The mediator helps the parties to understand each other's perspectives.
The parties explore potential solutions: The mediator helps the parties to explore potential solutions to the dispute. The parties are encouraged to be creative and to think outside the box. The mediator may also help the parties to identify the underlying interests and concerns that are driving the dispute.
The parties reach a mutually acceptable agreement: If the parties are able to reach a mutually acceptable agreement, the mediator will help them to put the agreement in writing.
The parties follow up on the agreement: The parties follow up on the agreement and if needed the mediator will continue to help them.
Throughout the process, the mediator remains neutral and does not take sides or make decisions for the parties. The goal is to help the parties to communicate and to find a resolution that addresses their concerns and interests.
Advantages of Facilitative mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
There are several advantages to using facilitative mediation as a way to resolve disputes, including:
Parties Control:
In facilitative mediation, the parties have more control over the outcome of the dispute than they would in a court or arbitration setting. They are able to come up with their own solutions, rather than having a decision imposed on them.
Efficiency:
Facilitative Mediation can often be completed in a shorter amount of time than a court case, and it is less formal and less expensive than going to court.
Confidentiality:
Facilitative Mediation is a private process and discussions that take place during a mediation session are confidential.
Flexibility:
Facilitative mediation allows the parties to explore a wide range of options for resolving their dispute, which can lead to more creative and mutually acceptable solutions.
Empowerment:
It helps the parties to express themselves freely and understand the other's perspective which leads to increased understanding and a sense of empowerment.
Preservation of Relationship:
Facilitative mediation can help preserve relationships that may be damaged by a court case. It can be particularly useful in disputes between family members or business partners, where a continuing relationship is important.
Conclusion-Facilitative Mediation- What is Facilitative Mediation? How it is a favourable model for disputes?
In conclusion, facilitative mediation is a valuable method for resolving disputes as it offers several advantages over traditional legal processes.
It empowers the parties to take control of the outcome, and it is efficient, confidential, flexible, and can help preserve relationships.
It is a voluntary and non-binding process where a neutral third party helps the parties to communicate effectively, explore options for resolution, and make their own decisions. It is often used in disputes involving family, workplace, and community conflicts.
