Mediation Made Simple

Delving deeper, it dissects the core characteristics of mediation, emphasizing its voluntary nature, informality, and confidentiality and underscore the pivotal role of the mediator, whose neutrality and facilitation skills guide parties towards collaborative decision-making. By examining the advantages of mediation, such as its time and cost-saving benefits, as well as its focus on customized solutions, it emphasizes how well-suited mediation is for a wide range of issues, from complicated business disagreements to family conflicts.

Moving further, this article also acknowledges the challenges inherent in the mediation process, including the voluntary nature of participation and the absence of guaranteed outcomes. Despite these challenges, mediation offers parties greater control over the resolution process and fosters a conducive environment for open dialogue and creative problem-solving.

Moreover, this article provides an in-depth analysis of the legal framework surrounding mediation Act, 2023, covering aspects such as the role and responsibilities of a mediator, the place and language of mediation proceedings, and the types of cases eligible for mediation. By offering a step-by-step guide to the mediation process, from dispute initiation to settlement agreement, it equips readers with the knowledge and tools necessary to navigate conflicts effectively and harness the full potential of mediation as a means of dispute resolution.

Introduction

Mediation is the process where a dispute between two parties is settled in a friendly manner giving both the parties the satisfaction of achieving their goals and ultimately leading to a Win-Win situation.

To illustrate this concept, let's consider the case of a couple, Rahul and Ria, who met via mutual marriage broker named Mihir. Families of both Rahul & Ria were preparing for their upcoming wedding, the invitation cards were printed, dates were decided, hotels were paid advance money and what not, everything seemed to be going smoothly until disagreements arose over the financial responsibilities for the wedding festivities, specifically for the ring ceremony and the main wedding event.

As tensions escalated and a resolution seemed elusive, rumours spread that Ria's family was considering finding another match for their daughter. This threat of breaking off the relationship escalated the conflict, leading both parties towards a costly and emotionally draining breakup. Not only would they have to invest more resources in finding new matches, but all the preparations made for the wedding would go to waste.

Now here comes in Mihir, the marriage broker who was being asked by both the parties to find someone new for them since they had a truce with their previous match. Acting as a neutral third party, the broker brings both sides together for a facilitated discussion. Initially, ego and unresolved grievances hinder progress, and the impasse remains unchanged.

However, Mihir doesn't give up. Recognizing the need for separate conversations to uncover underlying concerns, one day Mihir meets with Rahul's family privately and a day after with Ria's family.

With a deeper understanding of each side's perspective, Mihir requests both the families to meet again and have a constructive dialogue. After hours of discussion, facilitated by Mihir's insights and interventions, a breakthrough occurs. Both families agree on a compromise: the bride's family will cover the expenses of the ring ceremony, while the groom's family will handle the main wedding function.

In this scenario, the marriage Broker plays a crucial role as a mediator in providing a platform to both the parties for resolution, preventing wastage of resources and preserving the relationship between Rahul and Ria and both the families. Through skillful mediation, the parties achieve a win-win outcome, avoiding costly research for a new person to marry their child as well as the preparations which were done earlier are not going to get wasted now and the best part here is that it preserves the valuable relationship between both the parties.

Here, if we observe this scenario, the entire process facilitated by the marriage broker to bring the parties together and resolve their disputes is akin to mediation. In this scenario, two families were in dispute, and the marriage broker functioned as a mediator, providing them with a platform and maintaining neutrality, allowing both parties to engage in conversation and ultimately resolve their differences.

What is Mediation

Mediation is an Alternate Dispute Resolution process in which a neutral third party, known as a mediator, assists parties in resolving disputes or conflicts amicably. The aim is to reach a resolution that serves the best interests of all parties involved, providing each party a platform to express their perspectives and concerns.

Characteristics of mediation

Voluntary process – In mediation the parties are free to decide if they are willing to resolve their dispute through this process and have a free will to participate in the mediation proceedings.

Less formal – The process of mediation is less formal if compared to the other methods of dispute resolution like Arbitration or Litigation and provides parties to open-up to keep their perspectives comfortably, this process promotes open communication and less tension among the parties.

Confidentiality – Confidentiality is a fundamental principle of mediation, where parties can openly voice their concerns without worrying about consequences, unlike in a courtroom where all proceedings are documented and put-up online on the court's website.

Neutral third party – The mediator is a person who is just there to facilitate the conversation between the parties, he remains impartial and does not takes sides of any party and not becomes biased towards the other.

Control over proceedings and decision making – Unlike litigation or arbitration, where outcomes are determined by a judge or arbitrator, mediation allows parties to maintain greater control over the process and outcome. They actively participate in decision-making, which can lead to more satisfying and sustainable resolutions.

Advantages of mediation

Voluntary Participation – The participants in a mediation process have the liberty to withdraw at their discretion and are free to leave at any point, as the mediation cannot proceed if any party involved is unwilling to participate.

Time saving – Unlike the traditional litigation method which takes months to years for resolving a dispute, mediation process helps parties to fix their differences within months or a few days or sometimes in just a few hour of the first mediation proceeding.

Cost saving – In litigation, dispute resolution costs often exceed budgetary limits for the parties. Conversely, in mediation, the cost of resolving disputes is typically lower compared to litigation. This is because mediation does not involve repetitive court hearings, eliminates court fees, and reduces the necessity for parties to have their attorneys present throughout the mediation process. Instead, parties primarily cover the mediator's fees.

Confidentiality – the information discussed in the mediation proceedings cannot be disclosed outside and remains with the people present within the mediation session, which also creates a safe and trusted environment for the parties.

Customised solutions – In mediation, the parties themselves determine the outcome, aiming to establish a mutually beneficial solution that serves the best interests of all involved, resulting in a win-win scenario and both the parties have to agree to the decision for it to be binding upon them.

Challenges mediation

Voluntary Participation – While it's noted as an advantage above, viewed from another angle, the freedom for parties to exit the proceedings at any time poses a risk. Any party may choose to leave due to personal pride/ego or an inability to find common ground with the opposing party.

Outcome not guaranteed – In mediation, as the parties themselves determine the course of action to address their dispute and reach a resolution, there is no guarantee of a specific outcome, unlike arbitration or court proceedings where a decision is mandated and legally binding on all parties involved.

Limited Legal Backing – the mediation process only becomes legally binding only when the mediated settlement agreement is made and signed by both the parties and getting them enforced can be more difficult than the Arbitrator's award or a court's decision.

Dependency over mediator – Although the involved parties have the liberty to choose the desired resolution and the manner in which the mediation unfolds, an ineffective mediator could exert some influence over the proceedings, potentially resulting in the mediation's failure.

The Role and Responsibilities of a Mediator

In any dispute resolution process, the mediator plays a pivotal role as a neutral third party. Their primary responsibility is to facilitate open communication and collaboration between the parties involved, aiming for a mutually acceptable resolution. Let's delve deeper into their duties and conduct as outlined in the Mediation act, 2023¹(Herein after referred as “act”)

Creating a Supportive Environment – A mediator establishes a safe and supportive atmosphere where all parties can freely express their concerns and work together towards finding solutions. Unlike in conciliation, where suggestions may be offered, a mediator refrains from imposing solutions, ensuring that decisions remain in the hands of the disputants.

Guiding Principles – section 15² of the act emphasizes the principles guiding mediator conduct. They must maintain independence, neutrality, and impartiality throughout the process. Upholding objectivity and fairness, they safeguard the voluntary participation, confidentiality, and self-determination of the parties.

Conducting the Mediation Process – Under subsection (4) of Section 15³, the mediator has the discretion to take appropriate measures to facilitate the orderly and timely conduct of mediation. This includes convening meetings with parties jointly or separately as deemed necessary, ensuring the integrity of the process.

Facilitating Resolution – Section 16⁴ of the act outlines the mediator's role in facilitating voluntary resolution. They assist parties in identifying issues, enhancing understanding, and exploring potential settlements. It's essential to clarify that while the mediator facilitates decision-making, they do not impose settlements or guarantee outcomes.

Furthermore, Subsection (2) of Section 16⁵ emphasizes that parties must understand their autonomy in decision-making. The mediator merely facilitates the resolution process, empowering parties to make informed choices regarding their claims and he will not impose any settlement on the parties, and the same has to be expressly conveyed to the parties by the mediator with stating that there is no assurance that mediation will lead to a settlement.

Place of mediation

Section 13⁶ of the act stipulates that mediation proceedings must occur within the territorial jurisdiction of the court or tribunal possessing competent jurisdiction over the subject matter in question.

However, a pertinent inquiry arises: given that mediation is a voluntary process empowering parties to navigate their dispute resolution, why are they not afforded the opportuinity to choose the location of their mediation proceedings?

Addressing this concern, the Proviso of Section 13 allows parties the flexibility to conduct mediation proceedings at a location other than the territorial jurisdiction of the competent court, provided that all involved parties consent to this arrangement.

To illustrate, consider a property dispute between siblings Sonu and Lucky concerning a property located in J Block Saket, falling under the jurisdiction of the Saket District court. Initially, mediation would be expected to occur within Saket court's territorial jurisdiction. However, considering Sonu's residence is in Shahdara and Lucky's in Karkadooma, both face logistical challenges attending mediation in Saket. Therefore, if both parties agree, they are entitled to conduct mediation at any place outside the jurisdiction of Saket court, and can even opt for online proceedings.

Language of the mediation proceedings

Mediation proceedings can be conducted in any language provided that all the parties involved must have given their consent for the same and mediator will have to determine the language or languages which are to be used in the proceedings, as stipulated in Section 15(6)⁷ of the act.

In how much time the mediation proceedings shall be completed

Generally, mediation proceedings are completed within a few days or months. However, there are occasions when disputes cannot be resolved swiftly. In such cases, Section 18⁸ of the act mandates that mediation proceedings must conclude within 120 days. Parties have the option to extend this period by up to 60 days, provided all parties agree.

Type of cases that can be referred for mediation

Mediation is a versatile alternative dispute resolution method suitable for a wide range of cases across various fields and industries. Typically, cases involving civil disputes such as family law, business conflicts, employment issues, landlord-tenant disagreements, and neighbourhood disputes can benefit from mediation. Additionally, personal injury claims, contract disputes, property matters, and many other types of cases can be referred to mediation. Essentially, any situation where parties seek a collaborative and confidential process to resolve conflicts outside of traditional litigation can be considered for mediation. This approach allows for customized solutions tailored to the specific needs and interests of the involved parties, fostering a more amicable resolution while often saving time and costs associated with courtroom proceedings.

Cases which cannot be referred for mediation

Under Section 6⁹ of the act, certain matters are deemed unfit for referral to mediation, as outlined in the first schedule of the Act. These include disputes falling within the purview of laws prohibiting mediation, such as those related to criminal prosecution, disputes involving minors, individuals with intellectual disabilities or mental illnesses, and suits against governmental bodies. Matters concerning professional misconduct before statutory authorities, taxation disputes, proceedings under specialized tribunals like the National Green Tribunal, and those governed by specific regulatory bodies such as the Competition Act, Electricity Act, and Securities and Exchange Board of India Act are also excluded from mediation. Additionally, issues pertaining to land acquisition and compensation determination under relevant laws, as well as any other disputes notified by the Central Government, are considered ineligible for mediation under this provision.

Mediation Proceedings, how it is actually done

To grasp the essence of mediation proceedings, here's a visual overview encapsulated in a picture.

Now let's delve into the mediation process step by step:-

Dispute Arises: A disagreement, conflict, or dispute emerges between two parties, which could be related to various issues such as contractual obligations, commercial transactions, workplace conflicts, family matters, or other areas of contention.

Agreement by parties to resolve dispute through mediation: For the mediation process to commence, both parties must consent to resolving their current dispute through mediation. This agreement can transpire in one of two ways; firstly, after the dispute has arisen, the parties may mutually decide to pursue mediation as a means of resolution. Alternatively, the parties may have previously stipulated their intention to mediate any potential conflicts by including a mediation clause within their contractual agreement. Such a clause would outline the commitment of parties to engage in mediation should any disputes emerge during the course of their contractual relationship. Regardless of whether the decision to mediate is made in the wake of a specific disagreement or was predetermined through prior contractual provisions, the willing participation of both parties is a prerequisite for the mediation process to be initiated.

Appointment of mediator: Appointment is done with respect to Section 8¹⁰ of the act, wherein there are two options given to the parties, either the parties can agree upon the name of the mediator themselves and give their consent accordingly, or the parties may submit an application to any mediation service provider authorised under the act to appoint a mediator for the dispute they have in hand, then the mediation service provider has to appoint a mediator for them within 7 days of receiving the application and the parties have to also give their consent for the appointed person to be their mediator(the aforementioned application is sent under Section 8(4)¹¹ of the act).

Mediator to communicate willingness: After the appointment of a mediator, in accordance with Section 8(5)¹² of the act, the mediator is obligated to express his willingness to facilitate dispute resolution process. Alternatively, he may decline to act as the mediator for the parties.

Now if there is a scenario where a mediator cannot be appointed due to reasons such as the mediator's unwillingness or the parties withholding consent, the mediation service provider may initiate the appointment process again. In such cases, they may select a new mediator from the panel maintained by them.

During this procedure, wherein a mediator is selected from the panel maintained by the mediation service provider, Section 9¹³ of the act mandates that the service provider appoints an individual as a mediator who is deemed suitable and whose selection aligns with the preferences of the disputing parties for resolving the dispute.

Disclosers to be made by mediator: Section 10¹⁴ of the Act outlines the disclosure obligations imposed on a mediator. Firstly, prior to commencing the mediation process, the appointed mediator is required to provide written disclosure to the involved parties concerning any potential conflicts of interest, whether personal, professional, financial, or otherwise, that could compromise their impartiality or independence. Furthermore, during the course of the mediation if there any conflict of interest arises, the mediator must promptly disclose in writing any newly arising conflicts of interest that have come to their attention. Subsequently, upon such disclosure, the parties are afforded the opportunity to waive any objections by providing written consent collectively. However, if either party opts to replace the mediator following such disclosure, the process varies depending on whether it is institutional mediation or not. In institutional mediation, the concerned party must request the mediation service provider to terminate the mediator's mandate, whereas in non-institutional mediation, the party can directly terminate the mediator's mandate.

Commencement of mediation: The commencement of mediation proceedings, as outlined in Section 14¹⁵ of the Act, Happens under two circumstances.

If there exists a prior agreement between the disputing parties to resolve their dispute through mediation, the initiation of mediation is deemed to have transpired upon one party's receipt of notification from the party initiating the mediation, signalling their intention to refer the matter to mediation. In cases where no prior agreement exists, mediation commences when the parties have mutually agreed to resolve their dispute through mediation and the chosen mediator has provided consent.

And in a situation where mediator is appointed by the assistance of mediation service provider the mediation is deemed to have been commenced on the date when the mediator was appointed.

Proceedings after commencement: Once the mediation process begins, the parties attempt to resolve their dispute/disputes through conversation in the presence of a mediator and also Section 15(4)¹⁶ of the act empowers the mediator to meet with the parties or participants jointly or separately as frequently as deemed fit. This process may continue until the mediation proceedings reach a resolution

Completion of mediation: Section 18 of the act mandates the completion within 120+60 days after the date of first appearance before the mediator, Mediation may lead to one of two outcomes, either the dispute persists unresolved or it reaches resolution.

In the first scenario where the dispute still persists reason for the same might be the section 18 mandate or the mediator is of the view that no settlement is possible, either the case be as per the section 21¹⁷ of the act, the mediator is obligated to prepare a non-settlement report and provide a signed copy to all the parties and in case of f institutional mediation he shall submit a non-settlement report to the mediation service provider in writing.

When we talk about the settlement of dispute through mediation, a settlement agreement has to be prepared with respect to section 19¹⁸ of the act and has to be crafted, and once it is signed by both the parties, and it becomes binding upon all the parties if it is also authenticated by the mediator as specified in section 27(1)²⁰ of the act, moving further sub section (2) of section 27²¹ states that the settlement agreement will be treated as if it's an official court order or decree. Parties involved or person claiming through the settlement agreement can get it enforced by a court and have it enforced according to the rules in the Civil Procedure Code of 1908²².

Registration of mediation settlement agreement: Section 20²³ of the act provides an option to the parties to get their settlement agreement registered with the Authority constituted under this act or any other body (as may be notified by central government) situated within the territorial jurisdiction of the court or tribunal to decide the subject matter of the dispute. Provided that if the parties are willing to get the agreement registered, the registration must be made within 180 days from the date of receipt of authenticated copy of mediated settlement agreement and if the parties fail to do so within the specified time period, they shall pay a fee which may be specified by the aforementioned authority or the body.

Challenging of the Mediation settlement agreement: A mediation settlement agreement cannot be challenged in any circumstances, exception to which is given under section 28(2)²⁴ of the act stating that agreement can only be challenged on grounds specified under , either all or any:-

Fraud – Where the settlement reached by the parties has been obtained through fraudulent means, or fraudulent activities of any of the parties.

Corruption – Corruption of any kind is observed.

Impersonation – where any party has impersonated themselves with any other person.

Section 6 of the mediation act, 2023²⁵ – if the dispute was not fit to be referred to mediation is settled, it can be challenged. Provided that such application for challenge can only be made within 90 days from the date on which the party making that application has received the copy of mediated settlement agreement.