Meaning and Scope of Mediation
Meaning and Scope of Mediation | Overview Meaning of Mediation Features of Mediation Confidentiality Voluntary Non-Coercive Non-Aggressive Sustains Good Relationship Information Scope of Mediation Mediation has transcended boundaries and has traversed various fields related to law.
Meaning and Scope of Mediation | Overview
- Meaning of Mediation
- Features of Mediation
- Confidentiality
- Voluntary
- Non-Coercive
- Non-Aggressive
- Sustains Good Relationship
- Information
- Scope of Mediation
Mediation has transcended boundaries and has traversed various fields related to law. This article deals with the Meaning and Scope of Mediation.
I. Meaning 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’. [1]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). 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 are followed by the mediators 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 is the present and future.[2]
Mediation is similar to a settlement conference between the parties, and their attorneys, who are facilitated by a neutral third party whose remuneration is given by the parties.
The process involves an exchange of positions through the statement of counsel in a group session with all in attendance, and then private “caucuses” are held at the mediator’s discretion through which the mediator explores positions, wants, and needs, and from this creates or solicits offers and counter-offers, and if a settlement is not reached after exhausting discussions and there is no plan and perceived benefit in continuing discussions, then an “impasse” is declared.[3]
The beauty of settlement through mediation is that it may bring about a solution which may not only be to the satisfaction of the parties and, therefore, creates a win-win situation, the outcome which cannot be achieved by means of judicial adjudication.[4]
Settlement by 'mediation’ means the process by which a mediator who is appointed by parties or by the Court mediates the dispute between the parties to the suit.
Settlement is reached by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties’ own responsibility for making decisions which affect them.[5]
II. Features of Mediation
1. 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”.
Section 75 of the “Arbitration and Conciliation Act, 1996” which is an adoption of the UNCITRAL Model Law requires the Conciliator and the confidentiality is to be maintained by all the parties relating to the process and the proceeding.
2. Voluntary
Mediation is considered to be a voluntary process to reach a mutual settlement of issues in dispute. Voluntary generally refers to two important aspects:
- Something that is freely chosen participation and freely made agreements between the parties and
- That there is no force or influence from anywhere regarding the settlement of disputes. This makes the process party-friendly and very adaptable.
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 regarding the process of mediation.
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, and 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.
6. Information
Mediation is an informal process whereby the parties participate in meaningful interaction with one another. The process of mediation is placed in informal surroundings so as to facilitate the process of interaction between the parties.
III. Scope of Mediation
Mediation has transcended boundaries and has traversed various fields related to law. Now, mediation is used to solve numerous disputes at the national and international level, which include marital, corporate, commercial, and insurance-related disputes related to maritime issues and issues of colleagues in a workplace.
Culture and language previously posed a problem in the process of mediation. Through research and the use of various contemporary technologies, the scope of mediation has widened to the extent that mediation is preferred as a means of resolution of disputes over any other method.
The scope of mediation has been further increased by the multi-faceted organizations providing mediation facilities at the national as well as the international level.
At the national level, the ADR cells in the respective district courts serve as an easily accessible source of mediation to the rural population. At the international level the organizations like PCA, WIPO, ICC provide cutting edge mediation services.
As rightfully said, mediation is the past, the present and absolutely the future of amicable dispute settlement.
[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] Henry, David W. “Mediation as a Dark Art: A Mediator’s Message to Parties Seeking to Settle the Difficult Case.” Business Law Today, 2014, pp. 1–4. JSTOR, www.jstor.org/stable/businesslawtoday.2014.03.02.
[4] Vikram Bakshi & Ors V. Sonia Khosla, (2014) 15 SCC 80.
[5]Afcons Infra. Ltd. & Anr V. M/S Cherian Varkey,(2010) 8 SCC 24
