As per provision of Order X Rules 1-A of the CPC after recording admission or denial of documents, the Court is under an obligation to direct the parties to opt for any of the four modes of alternative dispute resolution including mediation. The request for reference of a dispute to mediation can be made by both the parties.
A wide nature of disputes, including Matrimonial, Labour, Motor Accident Claims, eviction matters between landlord and tenants, Complaints under Section 138 of Negotiable Instrument Act, Petitions under Section 125 Cr. P.C. or any compoundable offence can be referred for mediation.
If only one of the parties makes a request and the other party is not averse to the idea of mediation, the dispute can still be referred. Any court can otherwise make a reference of a dispute as provided under Section 89 of Code of Civil Procedure.
Lawyers can assist the parties in the mediation proceedings. Rather, it has been found that wherever the parties are assisted by their advocates, a settlement is arrived at a bit early, for the lawyers can explain the weakness and strength of their respective cases and the time factor which might be taken in litigation.
Since the proceedings before a mediator are informal the parties can even bring any of their relations to assist them.
In India, mediation as an alternative dispute resolution mechanism is primarily governed by the Arbitration and Conciliation Act, 1996. The Act was amended in 2015 to introduce provisions specifically related to mediation. Here are some references to mediation in India:
Arbitration and Conciliation Act, 1996: The Act provides a legal framework for arbitration, conciliation, and mediation in India. Section 89 of the Act empowers the courts to refer disputes to alternative dispute resolution methods, including mediation.
Mediation and Conciliation Project Committee (MCPC): The MCPC was established by the Supreme Court of India in 2005 to promote and facilitate mediation as a means of dispute resolution. The MCPC provides guidelines and rules for conducting mediation proceedings and also maintains a panel of trained mediators.
Mediation Rules: Several High Courts in India have framed their own mediation rules to govern the mediation process within their jurisdiction. These rules outline the procedures and guidelines to be followed during mediation, including the selection and qualification of mediators.
Mediation and Conciliation Rules, 2004: The Mediation and Conciliation Rules, 2004 were formulated by the Central Government under the Arbitration and Conciliation Act, 1996. These rules provide a comprehensive framework for conducting mediation proceedings, including the qualifications, code of conduct, and appointment of mediators.
Accreditation and Training Institutions: Various institutions and organizations in India offer mediation training programs and accreditation courses. For example, the Indian Institute of Arbitration and Mediation (IIAM), the Mediation and Conciliation Project Committee (MCPC), and the Indian Institute of Corporate Affairs (IICA) provide training and certification for mediators.
These references demonstrate the growing recognition and promotion of mediation as an effective method for resolving disputes in India. It is important to consult the specific rules and regulations of the relevant jurisdiction and institution for detailed information on mediation in India.
What is Mediation ?
Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A Mediator uses special negotiation and communication techniques to help the parties to come to a settlement.
The parties can appoint a Mediator with their mutual consent or a mediator can be appointed by the Court in a pending litigation. Mediation always leaves the decision making power with the parties.
A Mediator does not decide what is fair or right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.
Mediation is a voluntary and confidential process of resolving disputes or conflicts between two or more parties with the help of a neutral third party, known as a mediator. It is a form of alternative dispute resolution (ADR) that aims to facilitate open communication, promote understanding, and assist the parties in reaching a mutually acceptable resolution.
Here are some key characteristics of mediation:
Voluntary: Mediation is a voluntary process, meaning that the parties involved choose to participate and have control over the decision to enter into or withdraw from mediation at any time.
Neutral Third Party: The mediator is an impartial and neutral third party who does not take sides or make decisions for the parties. The mediator’s role is to assist and guide the parties in identifying issues, exploring options, and finding common ground.
Confidentiality: Confidentiality is a fundamental aspect of mediation. The discussions, information, and documents shared during the mediation process are typically kept confidential, unless the parties agree otherwise or if there are legal obligations to disclose certain information.
Informal and Flexible: Mediation is generally conducted in an informal setting, such as a private meeting room, and the process can be tailored to the specific needs and preferences of the parties. The mediator may employ various techniques and strategies to facilitate communication and encourage productive dialogue.
Empowerment and Self-Determination: Mediation focuses on empowering the parties to actively participate in the resolution of their dispute. It provides an opportunity for the parties to express their perspectives, interests, and concerns, and allows them to have a direct role in shaping the outcome of the process.
Win-Win Solutions: Mediation aims to find mutually beneficial solutions that meet the interests and needs of all parties involved. The goal is to reach a resolution that is acceptable to everyone, rather than a winner-takes-all approach often associated with adversarial processes.
Cost and Time-Efficient: Mediation is generally considered a cost-effective and time-efficient method of dispute resolution compared to litigation or arbitration. It can help parties save time and expenses associated with lengthy court proceedings.
Mediation is commonly used in a wide range of disputes, including family matters, workplace conflicts, commercial disputes, community disputes, and more. It offers a collaborative and non-adversarial approach to resolving conflicts, focusing on preserving relationships and fostering mutually satisfactory outcomes.