Friday, 3 June 2022

MEDIATION

 MEDIATION 

BY NUPUR GARG

INTRODUCTION 

Mediation is an age-old procedure of dispute resolution rehearsed since vedic period. It is a low cost, keeping the issues, particularly family matters secret among three parties, two parties and the mediator. Also, the solution isn't forced on any party, it is a solution that both the parties consented to. It, in this manner gives an effective solution in a tranquil way.

Alternate Dispute Resolution method for settling the dispute is generally new pattern in India. The mediation procedure in India is not a recently created technique for dispute redressal, it is an age-old process since vedic period. It is useful for both the sides - the courts are being somewhat less burdened with cases, and the parties are getting their issue settled rapidly with less problems and in a smoother way. In this manner, there has been made a significant situation for mediation in Indian Law.

Mediation is a confidential process and whatever transpires in the mediation is not subject to disclosure without the written consent of all the disputant-parties. The mediator cannot be called to the court or be asked to testify any of the proceedings or reveal any discussion that took place during mediation. The statements made during mediation process cannot be leaked. In India, mediation is still primarily Court-annexed. If a settlement is reached in a Court-annexed mediation, then the mediator, or parties with the assistance of the mediator, frames the settlement agreement, which is duly signed by the parties and the mediator and then sent to the Court for passing of an appropriate order. In Salem Advocate Bar Association v. Union of India, (2005) 6 Supreme Court Cases 344, the Supreme Court construed Clause (d) of Section 89 (2) of Code of Civil Procedure to mean that when the mediation succeeds and the agreement is made on the consensus of both the parties, the mediator will send the report of settlement agreement to the Court for the Court, after giving notice and hearing the parties, to give effect to the compromise and pass a decree in accordance with the terms of settlement accepted by the parties.

ADVANTAGES OF MEDIATION

Mediation is a better and more lucrative alternative to the court system as-

  1. Control- It gives the parties control over the scope of the mediation in terms of the issues discussed, and its outcome, with regard to the terms of the settlement and to settle or not.

  2. Consent-based- Based on voluntary consent, it allows any party to opt out at any stage if they find mediation to be unhelpful.

  3. Participation- It allows the parties to directly participate in the negotiation and present the case in their own perspective.

  4. Economical- Mediation takes less time to resolve disputes than standard legal channels. While courts may take months or years to pronounce judgements in cases, mediations take mere hours.

  5. Confidentiality- Mediations remain strictly confidential, with the terms of the mediation being known only to the parties involved and the mediator. This aids in better and effective communication between the parties.

  6. Conducive to dispute resolution- By providing a procedure that is simple and flexible, mediation can be modified to the demands of each case and allows the parties to carry on with their day-to-day activities. It thus created an informal, cordial and conducive environment for dispute resolution.

  7. Mutuality- Since parties to a mediation are amenable to mutually working towards a solution, they are more receptive to the other party’s side. This aids in restoring the relationship between the parties and settles the dispute in a mutually beneficial manner.

DISADVANTAGES OF MEDIATION 

  1. Informality- In the informal setting of a mediation, there are no formal rules or procedures that have to be followed. Thus, mediators do not have access to a lot of tools to get people to testify or produce evidence to get to the truth of a matter.

  2. Unfairness- Moreover, the lack of formal rules means that there is no way to ensure a fair procedure for the parties involved. An aggressive party might be able to steamroll a timid one despite the best efforts of the mediator.

  3. Success not guaranteed- Mediation may also be unsuccessful and not lead to a settlement between the parties involved. The parties will then have to resort to the money and time intensive court system after already wasting a significant amount of them in the mediation.

  4. Non-binding- The agreement reached in a mediation is non-binding. Parties to a settlement may also attempt to dispute the settlement agreement in case the agreement is not made binding on them. They can file another suit in court challenging the legitimacy of the settlement, creating another dispute on top of the underlying one.

PROCESS OF MEDIATION IN INDIA

In most cases, parties willfully settle on mediation to commonly resolve their lawful issue, making mediation in India a party-centric and neutral procedure. A third party for example mediator is appointed who acts impartially in guiding the parties to mutually resolve their issues. mediation utilizes organized communication and negotiation where parties put their issues and solution for them before each other with the assistance of mediator. The person can be anyone the parties have chosen, or an ADR lawyer concurred on by the parties.

The mediator them helps them to arrive at a conclusion based on their agreed terms. As it is a voluntary procedure and the parties hold all the rights and powers, any parties can withdraw from the procedure of mediation at any stage without stating an explanation.


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