Private Mediation vs. Court Annexed Mediation
Private Mediation Vs Court Annexed Mediation-Which mode of Mediation is more beneficial-Advantages of Private Mediation over Court-Annexed Mediation
AUTHOR: RINI RASTOGI
What is Mediation?- Private Mediation vs. Court Annexed Mediation
Mediation is a type of Alternate Dispute Resolution, wherein parties mutually appoint an independent and impartial third party, called the mediator who helps the disputed parties in reaching an agreement that is accepted by them.
Mediation is a systematic and interactive method that adopts negotiation techniques to assist the parties in finding the most effective answer to their problem. It is a flexible process in which parties get the chance to choose from a wide amount of options that are not available in litigation.
Modes of Mediation- Private Mediation vs. Court Annexed Mediation
There are two types of mediation which has been used by the parties in order to solve disputes. These are as mentioned below-
1. Private Mediation
2. Court Annexed Mediation
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What is Private Mediation?- Private Mediation vs. Court Annexed Mediation
In this type of mediation, both parties engage the mediator by themselves to mediate their dispute. The mediator is not referred by the court. Both parties are free to choose a mediator according to their own.
Several persons can be appointed or selected as mediators as per their skills and intelligence but selecting the right person as your mediator, it’s a tough choice.
By using this type of mediation, the right to choose the time and place depends upon the parties, unlike court-annexed mediation. The cost of the mediator should be bearable by both parties equally or shared between them. If parties want they can take their lawyers along with them to the mediation session.
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What is Court Annexed Mediation?- Private Mediation vs. Court Annexed Mediation
Here, parties are being referred to Mediation by the court. The mediator is somebody who has not been chosen by the parties but selected by the Court on their own.
The parties are bound to attend the mediation process when the Court orders and they are not allowed to control the process at their convenience.
The Court ordered or annexed mediation is done as per the process which is mentioned under Section 89 of the Code of Civil procedure, 1908 and various other statutes which mandate the mediation.
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Procedure Followed
Under the Industrial Disputes Act, 1947 mediation was first recognized as the method of dispute resolution. In 1999, The Code of Civil Procedure Amendment Act was passed and Section 89 allows the Courts to refer to ADR methods to solve pending disputes. In the utmost cases, the parties are willing to settle their disputes with the mediator as the third and neutral party.
The mediator helps them to reach a solution based on the agreed terms. The procedure followed by mediation is totally confidential in nature.
When an agreement is reached between the parties it shall be signed by either the parties or their lawyers. If a settlement between the parties could not be drawn then the matter will go to Court and it will be solved through the litigation process.
A. Procedure involved in Court annexed mediation
Whenever the court finds that the matter is suitable and expected to get resolved then the presiding judge will submit the case for Mediation. In India, during court annexed Mediation, either the judge or registrar, or registered lawyer can be the mediator. The court maintains the list of mediators for this purpose. As the mediation is referred the following process is followed:
Opening statement by the Mediator:
At this stage, the mediator tries to explain the procedure to the parties and informs them about everything that is to be discussed during the process. He tries to build confidence among the parties that the process will remain confidential.
Private Caucus/Separate Session:
During this stage, the mediator discusses the matter with the parties separately. Evaluates and point out the strengths and concerns of the case. He tries to get information that is sensitive in nature. Some pieces of information are shared with another party through express permission. Mediators encourage parties to come out with solutions/alternatives. Also, enable the party to reach a mutually agreeable solution.
Joint session:
The mediator encourages the parties to explain their side of the dispute along with several differences, claims and complaints. This, in turn, gives the mediator a chance to settle the case and also the opportunity for the parties to hear each other sides.
B. Steps involved in Private Mediation
In private mediation, parties generally appoint a mediator as per the terms quested in their contractual mediation clause or upon collective terms. First, the parties need to agree on a mediator for the dispute.
Parties may have a particular mediator in mind. Once the mediator has been agreed upon, the parties' legal representatives contact the mediator directly to make all arrangements e.g. to establish: the costs, the venue, who should attend, and what preparation is required.
The Court does not hold a list of private mediators and cannot provide information on any arrangements that have been made for private mediation.
The further procedure followed relating to the opening statement, private and joint sessions are the same in the Mediation proceedings. Once the dispute is resolved, parties enter into a binding settlement agreement.
C. Comparison between Private Mediation and Court Annexed Mediation
Which mode of Mediation is more beneficial?- Private Mediation vs. Court Annexed Mediation
Both processes of mediation are equally important and have their own value but if we talk about the solution then, private mediation is more likely to give better results than Court ordered mediation because the mediator himself is appointed by the parties and there is no interference by the court for anything which will help the parties to come up to a resolution according to their mindset.
Like, they can ask the mediator to draw a conclusion for their disputes by discussing them without any time fame. It is not the mediator who provides the solution but the parties who agree on the settlement. Cost-wise, some mediators will ask for an hourly fee, and others will charge fully for a session at a time.
The Court annexed mediation costs you nothing. It is easy to get the other party to agree to this because of its low cost or at no cost. In Court Annexed Mediation the mediator is chosen by the Court from the list maintained by them. It includes a lawyer, registrar or judge. This is a narrow option over private mediation.
So, these are some beneficial and important points regarding both types of mediation now we will learn about which process is more advantageous in the true sense. The Court referred to mediation as easy to proceed with because the parties can easily agree on the agreement due to its low cost or free of charge.
From all aspects, private mediation is far better than the Court annexed mediation. It has many advantages over the other one. In private mediation, the parties spend their money on the mediator but, that expenditure is totally worth it.
They select the mediator of their own choice after getting all the information about him and it will help them in their resolution of the fight because the mediator is that person whom they can trust wholly.
Some people form a long-term bond with their mediator. Being able to work with someone who may help the parties on any future disputes without having to go through a new mediator who is unfamiliar with the case is a real benefit.
In private mediation, the person who has been chosen as the mediator can charge money but at least it will be shared by the parties so it equally gets divided. They are more invested in your case and issues and because of their network and work history, they have better connections with the client.
Advantages of Private Mediation over Court-Annexed Mediation- Private Mediation vs. Court-Annexed Mediation
As it is already established that private mediation is far better than the Court annexed mediation but now we will see what the benefits of private mediation are over Court Annexed mediation by which it is more advantageous.
1. The parties surely have the upper hand in private mediation because they got time to do research about who can be their mediators, this cannot be done in the case of Court Annexed mediation.
2. The private mediators are actually interested in the case and try to bring the resolution of issues rather than court-appointed mediators where the court or litigation interest sometimes prevail in their nature.
3. The parties can meet the mediators at any time, any place even on Saturdays and Sundays.
4. Private mediation is more reliable as in the first case Mediator is not aware of court facts or other related facts unless told by parties in the Mediation process. He is likely to show utmost neutrality.
5. Private mediators are getting paid by the parties so they better focus on how to settle the dispute more efficiently and will tend to do everything they can do.
6. The private mediator also has better resources and accessibility and can accommodate the parties even better both in time and accessibility.
7. Private mediation is not mandatory to attend but the Court annexed mediation is compulsory for the parties to attend. In private mediation, both parties must agree to participate and agree to use the same mediator.
How do parties take benefit of two?- Private Mediation vs. Court Annexed Mediation
Both modes of Mediation are voluntary processes in which parties willingly come together to solve their disputes with the agreement and to make sure they will never need to go to Court for settlement. It is not formal in nature like the Court procedure but it is a party-centered process in which the main focuses are on the parties.
It is a win-win situation for both parties and their interests are protected through this process. Both mediation processes definitely try to maintain better and more effective communication between the parties. Along with many benefits like time efficiency, cost-effective mediation almost promotes creativity.
Parties can select creative ways to resolve their disputes. Like, in Court Annexed Mediation the parties save their money they need not pay the fees to mediators but unlike in the case of private mediation, it enables the parties to choose their own mediator. It depends on the parties to choose anyone for the settlement of their disputes. Parties can enjoy any type of mediation and the process will help them in the long run.
Mediation is one of the most important and easiest methods of Alternative Dispute Resolution. During the whole mediation process, the parties can communicate with each other and agree on each other points of view, which would enable them to make the settlement easily. It can be quick too, if the parties are not agreeing with each other then the mediator will cut short and end the meeting that’s why it is a time-efficient process.
Conclusion- Private Mediation vs. Court Annexed Mediation
In India, most people do not want to go to Court because of the long and time taking process of litigation and due to this they prefer Alternative Dispute Resolution methods. Mediation is one of the types which is more in news due to its simplicity and flexibility. One cannot always go to Court for the resolution of disputes that’s why they prefer mediation.
Both Private Mediation and Court Mediation are equally important in their own ways. Both have some similarities and disadvantages too but these methods are quite easy than the litigation process. Litigation is very expensive in India so mediation enables the parties to solve their disputes.
Thus, both modes should be used by the parties for favoring their disputes.
