Advantages and Disadvantages of Mediation
This article discusses the advantages and disadvantages of mediation.
This article discusses the advantages and disadvantages of mediation. “Mediation” is also a well-known term, and it denotes a method of non-binding dispute resolution where the neutral third party tries to help the disputing parties to arrive at a negotiated settlement. It is synonymous with the term 'conciliation’. Mediation is a client-driven process. Here the parties appoint a neutral third party to mediate in a dispute that has arisen between the parties. Mediation is considered...
This article discusses the advantages and disadvantages of mediation. “Mediation” is also a well-known term, and it denotes a method of non-binding dispute resolution where the neutral third party tries to help the disputing parties to arrive at a negotiated settlement. It is synonymous with the term 'conciliation’.
Mediation is a client-driven process. Here the parties appoint a neutral third party to mediate in a dispute that has arisen between the parties. Mediation is considered to be one of the types of Alternative Dispute Resolution(ADR).[1]
A case can be referred to mediation in the pre-litigation stage or even during litigation if the judge thinks it is fit for the case to be referred to a mediator. Mediation is a completely private endeavour where the parties and their facts are kept confidential. The process of mediation is not based on any code or law. However, there are certain common principles which the mediators follow at the time of the mediation session.
Several organizations, like the Permanent Court of Arbitration, have previously drafted ground rules for the mediators to follow. Mediation was the process of amicable settlement in the past and the present, and the future.[2]
Lawyers should advise their clients to try for mediation for resolving their disputes, especially where relationships, like family relationships, business relationships are involved, otherwise, litigation drags on for years and decades often ruining both the parties. Hence the lawyers and the litigants should follow Mahatma Gandhi’s advice in matter and try for arbitration/mediation. This is also the purpose of Section 89 CPC. [3]
Mediation as a method of ADR has several advantages as well as disadvantages. This article aims to discuss the advantages and disadvantages of mediation
I. Advantages of Mediation
1. Confidential
One of the major advantages of mediation is that it ensures confidentiality. Confidentiality plays a crucial role in making the parties come to a settlement. “The International Chamber of Commerce (ICC)” mediation rules provide that “unless otherwise agreed by the parties or required by applicable law, the mediation is private and confidential”.
Article 15-18 of the WIPO mediation rules prevents the parties from indulging in any breach of private information disclosed at the time of the proceeding.
In some conventional as well as some contemporary cultures, visiting the aegis of the court is looked down upon. These are the people who would rather live in injustice than visit the court. To these kinds of people, mediation serves as a comfortable way to resolve their disputes.
2. Voluntary
Mediation is considered a voluntary process to reach a mutual settlement of issues in dispute. Voluntary generally refers to two important aspects 1. Something that is freely chosen, free participation and freely made agreements between the parties and 2. That there is no force or influence from anywhere regarding the settlement of disputes. This makes the process party-friendly and very adaptable.
Therefore, mediation is also considered an informal process, where the setting of the proceeding is in the form of discussion.
3. Non-Coercive
Since mediation is a voluntary process, it is non-coercive in nature, no person holding an influential position can coerce any party to agree to a settlement. Pressure can be created in a mediation process to reach an agreement, but until the parties are satisfied, no conclusive agreement can be reached.
4. Non-Aggressive
In a mediation procedure, the mediator ensures that the parties do not engage in abusive behaviour, whether verbally or otherwise. In litigation, the atmosphere in the courtroom is intense for the reason that the parties openly hurl abuses at each other. This not only strains their relationship permanently but patronizes the parties.
5. Sustains good relationship
Mediation can build and improve the relationships of the parties in a disputable cause after the completion of the process of process. The objective of mediation is to let the parties strike a settlement. Hence, the atmosphere of mediation is similar to a counselling session where the parties can freely discuss things with each other.
The cases where relationships have turned bitter, mediation has been successful in restoring peace and friendly relations between the parties. The very thought of amicable settlement of disputes means the extension of a hand of camaraderie and friendship, which implies the preservation of a cordial relationship tainted due to conflict. Negotiation coupled with mediation can be visualized similarly to how a teacher asks two students in conflict to shake their hands in friendship.
Preservation of certain relations is of prime importance for smooth functioning of an organization example- a relation of boss and worker, between co-workers even between two states
6. Informal
Mediation is an informal process whereby the parties participate in meaningful interaction with one another. The setting and the venue are chosen in a way to facilitates dialogue between the parties. The procedure is friendly without external impediments. The work of the mediator is to ensure an amicable discussion between the parties. There are no formal procedures to be followed. The process is deliberated upon and chosen by the parties themselves. A sense of comfort prevails, which is not possible in the court.
II. Disadvantages of Mediation
1. No Established Rules
Mediation lacks established rules of law to govern its procedural intricacies. There are certain guidelines in institutional mediation, but they are not strictly enforceable because the work of the mediation is that of a facilitator and not a decider/adjudicator. Since the rules are not present, therefore it becomes extremely difficult to frame the entire process of mediation, keeping in mind its legal aspect.
2. Linguistic Problem
Since language is a tool for communication, the difference in language and style of communication is the major impediment to cross-culture mediation. It is difficult to conduct a mediation in which the parties have no knowledge of the language of the opposite party. In addition, there is always a possibility of the fallibility of the interpreters. It takes time for such parties to build camaraderie with each other.
3. Cultural Problem
Culture is an abstract character that can be used to define a person’s actions in the past, the present and the future. Every human being identifies themselves with a particular culture. When parties in mediation have different cultural integrities, it is difficult for them to reach a common ground that would pave the way for an agreement. Cultural differences, thus, are a major impediment to the successful completion of the mediation process.
4. Impasse
A situation arises when two parties are adamant about their point of view. They do not shift their positions. The probability of reaching common ground dwindles when the parties, out of sheer adamancy, fail to agree. An impasse is a situation of stagnation reached during the process of mediation where no productive position can be achieved. It is similar to a session being adjourned sine die.
[1] Black’s Law Dictionary, 7th Edition, Pages 1377 and 996
[2] NOLAN, KENNETH P. “MEDIATION.” Litigation, vol. 39, no. 1, 2013, pp. 59–60. JSTOR, www.jstor.org/stable/24396789.
[3] B.S Krishna Murthy v. B. S Nagaraj,( 2011) 15 SCC (L&S) 613