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Mediation: A Demeanor Issue

This article was submitted by Shresth from Law School of Banaras Hindu University, Varanasi for National Legal Writing Competition,2016.

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, and expenses, and the waste of time.”

                                                               -Abraham Lincoln

INTRODUCTION

Mediation, one of the settlement techniques under the alternate dispute resolution, is a party-centric process wherein a neutral third person, the mediator (may be judge or advocate), exercising proper techniques aids in bringing the two or more disputing parties to an agreement on the matter concerning the parties. The mediators can’t impose an outcome or decision on the parties and therefore, a mediator, per se isn’t a decision-maker.

MODELS OF MEDIATION

There are basically three models of mediation all around the world and they are as follows-

(i) Facilitative Mediation– In this, the mediator does not give opinions    or advice. Rooted in  the arena of community-based disputes, facilitative mediation is also practiced by mediators trained in commercial and family mediation fields.

(ii) Evaluative Mediation– It requires the mediator to give the parties an informed view or opinion of, for example, the merits of the case or the strength of the parties’ respective legal positions.

(iii) Rights-based Mediation– In this, the mediator, personally or with other professionals or experts, helps the parties to evaluate their respective strengths and weaknesses with a view to their agreeing resolution broadly in line with, and which reflects their respective rights.

THE CONCEPT OF MEDIATION

“My joy was boundless. I had learned the true practice of law. I had learned to find out the better side of human nature and enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.”

 –Mahatma Gandhi

WHAT IS MEDIATION?

Mediation is one of the methods of Alternative Dispute Resolution (ADR) under Section 89 of the Code of Civil Procedure enacted by the Parliament wherein a neutral third party, the mediator, assists the disputing parties to resolve their disputes using proper techniques, thus assisting in the negotiation and discouraging litigation.

KEY PRINCIPLES OF MEDIATION

Although there are several models and approaches to mediation they all have the following principles in common:

  • Independence and impartiality of the mediator.
  • Voluntary participation by all parties.
  • Confidentiality of the process.
  • Need for authority to settle on the part of the participants Independence and impartiality.

STAGES OF MEDIATION

  1. Opening statement-A mediator, in his opening statement, explains the procedure that he/she would be going to adopt for mediating the matter in issue between the parties. In order to gain the confidence of the parties, the mediator is also required to state to the parties the benefits of mediation and that the outcome of the dispute lies in their hands.
  2. Joint Session- Joint session is a must in mediation for the parties as well as the mediator, in order to understand the parties’ perceptions and issues. As soon as one side has narrated their version of events, the mediator has to re-state the facts in order to confirm the series of events.

   Main goals of a Joint Session

  • Gathering information.
  • Organization of information.
  • Listening to the dispute in the word of the disputants.
  • Mediator assuming control over the process.

    TECHNIQUES TO BE ADOPTED BY THE MEDIATOR

  • Active listening
  • Body Language
  • Questions
  • Empathy with neutrality
  1. Private session/ caucus- It is the mediator’s choice to conduct a private session in a mediation but at the same time, a mediator can’t force if the litigating parties resist to a private session. A mediator can have a private session without the consent of the parties in cases where the parties take over the matters in a mediation in their own hands.
  2. Sub-caucus

The process of Sub-caucus is conducted by the mediator along with the advocates of the parties. This is a private session with the advocates to discuss the legal issues.

  1. Closure/Settlement

There are two modes of closure of a dispute:-

  • Agreement
  • Dispute sent back to the court

Where an agreement is reached between the parties, it is the duty of the mediator to draft an agreement and make the parties understand the contents of such agreement with their advocates signing the agreement deed. Once the agreement is reached, there is a closing statement by the mediator wherein he/she congratulates the parties and gives them credit for their complete co-operation.

On the other hand, if an agreement is not reached and the dispute is referred back to the court, the mediator still has to give credit to the parties thanking them for their co-operation.

                    The most important things in the whole process are that the mediator has to reflect on the precepts of BATNA, WATNA, and MLATNA-

  • BATNA stands for the ‘Best Alternative to a Negotiated Agreement”.
  • WATNA for the ‘Worst Alternative to a Negotiated Agreement’.
  • MLATNA for the ‘Most Likely Alternative to a Negotiated Agreement.

STRATEGIES FOR IMPLEMENTATION

 The development of mediation as a viable alternative to litigation is still in the incipient stages in India. Mediation centers have recently been set up by a few industry and trade associations. Similarly, professional lawyers have in certain isolated instances attempted to develop into full-fledged professionals with expertise in the mediation and also various mediation centers have been established by the legal service authorities. These instances are, however, sporadic and the overall potential of mediation still remains to be explored. In achieving a high level of acceptability for the mediation process, several issues need be focused upon and these include (i) Developing awareness; (ii) Advocacy; (iii) Building capacities; (iv) The creation of an institutional framework; and (v) Actual implementation. However, at the present stage, there can be no gainsaying the fact that the Bench and the Bar have to fulfill important responsibilities towards achieving the goal of creating a viable mediation strategy.

Present Scenario

  1. Statutes:

After the enactment of the Arbitration & Conciliation Act, 1996, even though conciliation was given statutory recognition for the first time in India, the awareness of such an option was very limited to lawyers and litigants. The concept of mediation and conciliation was made familiar or given official court recognition only in 1996 and by the amendment of the Civil Procedure Code (CPC) in 1999 by inserting Section 89. The statutory language of the Arbitration and Conciliation Act, 1996 and of Section 89of the Civil Procedure Code, demonstrates clearly the existence of differing definitions and meanings for “conciliation” and “mediation”. Generally, both mediation and conciliation are the assistance of disputants by an impartial third party in resolving disputes by mutual agreement. However, a conciliator can be a pro-active and interventionist, because of his statutory power “to make proposals for settlement of the dispute” and to formulate and reformulate the terms of the settlement agreement, and also Legal Service Authority Act,1994 had undergone drastic development in this regard.

  1. Courts

In 1994-95, the Indian Supreme Court initiated an Indo-US exchange of information between high-ranking members of the judiciary. This Indo-US study group suggested procedural reforms, including legislative changes that authorized the use of mediation. New procedural provisions eventually were enacted in 2002,  providing for case management and the mandatory reference of cases to alternative dispute resolution, including mediation (Code of Civil Procedure Section 89). Even though the Arbitration & Conciliation Act, 1996 was enacted to give impetus to conciliation and giving statutory recognition to conciliated settlements, giving the same status of a court decree for its execution, no real effort was taken by the courts or by the lawyers to utilize the provisions and encourage the litigants to choose the method. Even though some mediation training and familiarization programs were conducted it did not create the real effect.
The modalities to be formulated for effective implementation of Sec. 89 also came under scrutiny. For this purpose, a Committee headed by former Judge of the Supreme Court and Chairman of the Law Commission of India, Justice M. Jagannadha Rao, was constituted to ensure that the amendments become effective and result in the quick dispensation of justice. The Committee filed its report and it was accepted and the Hon’ble Supreme Court of India has pronounced a landmark decision “Salem Advocate Bar Association, Tamil Nadu v. The Union of India” (2005), where it held that reference to mediation, conciliation and arbitration are mandatory for court matters. This judgment of the Supreme Court of India will be the real turning point for the development of mediation in India. But the growth of mediation should be carefully molded so that the system gains the faith and recognition of the litigants.

CONCLUSION

Hence, by the way of mediation,  there is not only saving of time and money but also peace in the society can be established with the remedies to the grievances without facing the technicalities of legal procedure.

REFERENCES

  • History of Mediation, Mediation matters, available at:https://www.mediationmatterssd.com/mediation matters/history.html.
  • Mediation Training Manual of India, Mediation and Conciliation Project Committee Supreme Court of India, Delhi, available at:https://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20 INDIA.pdf.
  • https://www.mediate.com/sprowls/pg7.cfm.
  • Section 89(1), Code of Civil Procedure 1908, available at:https://keralamediation.gov.in/sec89cpc.pdf
  • What is Mediation, Civil Mediation Council, available at:https://www.civilmediation.org/about-mediation/29/what-is-mediation.
  • Mediation – The Path to Successful Dispute Resolution, F.S. Nariman.

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