Which of the following happens in the meditation stage of an alternative dispute resolution?
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In this article, Akanksha Mathur of National Law University, Delhi discusses the procedure to go for mediation and the issues one should be aware of before going for it. With changing times, an increasing number of people are resorting to alternative methods of dispute resolution such as mediation in order to resolve their issues. What is Mediation?Mediation is an alternative method of resolving disputes without resorting to the courts. It is a structured, voluntary and interactive negotiation process where a neutral third-party uses specialized communication and negotiation techniques to help the parties in fulfilling their stated objectives. As a party-centred process, it focuses on the interests, needs and rights of the parties. Laws Governing Mediation in IndiaMediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947. In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to alternative dispute resolution (ADR) methods to settle pending disputes. Under this, consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through Lok Adalat, or mediation. Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r. 5(f)(iii). These allow the court to refer cases for mediation even when the parties are not ready for reference for mediation if there is an element of settlement. Types of MediationMediation is of many kinds-
There are some kinds of disputes that are required by law to be subjected to the mediation process, such as disputes in labour and family law. In India, r. 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare.
Some sort of alternative dispute resolution is required by most jurisdictions in India before resolution through the judicial process. As soon as a case is filed, the parties are provided with a number of ADR options out of which they must select and pursue one unless exempted by the court.
Under Court-Referred Mediation, the court merely refers the matter to a mediator.
In private mediation, mediation services are offered on a private, monetary basis by qualified mediators to the Court, general public, and the commercial and governmental sectors for dispute resolution through mediation. Recourse may also be taken to private mediation in pending cases or pre-litigation disputes. Contractual
Cases Suited for ADRIn Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors., the Supreme Court laid down guidelines pertaining to the kind of cases that would be eligible for ADR and those not. It ruled that the following nature of cases would be considered unsuitable for ADR-
All other civil suits and cases were to be considered suitable for ADR, such as-
All cases arising from strained or soured relationships, including-
All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including-
All cases relating to tortious liability including
All consumer disputes including
Whenever any case is to be sent to mediation, the following steps are followed- Step 1: Convening the Mediation ProcessThe convening of the mediation is often the most difficult and challenging part of the mediation process. It involves a varied range of procedures-
The court is required to direct the parties to opt for any of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation under Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908. The Court must consider the option exercised by the parties and the suitability of the particular case for the option chosen. The judge making the reference, known as the referral judge, is required to acquaint himself with the facts and the nature of the dispute, and objectively assess the suitability of ADR. This appropriate stage for making the reference in civil cases is after the completion of pleadings and before framing the issues, while in cases pertaining to family law, the appropriate time for making the reference would be immediately after service of notice on the respondent and before the filing of objections/written statements by the respondent. Even if the court did not refer the cases to ADR at these times, nothing prevents it from referring to it at a later stage.
The referral judge then has the crucial job of bringing the parties together and motivating them to resolve their disputes through mediation. This involves finding the reasons for any disinclination on behalf of the parties to enter into mediation, along with explaining the concept, process and advantages of mediation. While the consent of parties is required for mediation, the court can also apply external pressure to induce the parties to enter the mediation, to the extent of ordering or forcing them to do so.
A referral order issued by the referral judge initiates the process of mediation and s the foundation of a court-referred mediation. An ideal referral order contains details like name of the referral judge, case number, name of the parties, date and year of institution of the case, stage of trial, nature of the dispute, the statutory provision under which the reference is made, next date of hearing before the referral court, whether the parties have consented for mediation, name of the institution/mediator to whom the case is referred for mediation, the date and time for the parties to report before the institution/ mediator, the time limit for completing the mediation, quantum of fee/remuneration if payable and contact address and telephone numbers of the parties and their advocates. Step 2: Initiation of the Mediation ProcessThe mediator has to ensure that the parties and their counsels are present at the commencement of the mediation process. Introduction and Opening StatementIntroduction
Opening Statements
Step 3: Setting the Agenda
Step 4: Facilitation of Negotiation and Generation of OptionsJoint SessionThe purpose of the joint session is to gather information.
Separate Sessions
Step 5: Reaching a Settlement
Step 6: Closing
In case no settlement is reached between the parties, the case is returned to the referral court stating failure to settle. The proceedings of the mediation are kept confidential and cannot be revealed even to the court. Advantages of MediationMediation is a better and more lucrative alternative to the court system as-
Control is vested not with a judge or jury, but the parties themselves and helps them in reaching a mutually agreeable solution. By giving control to the parties, it may also result in the settling of related and connected issues and disputes. It also allows the parties to satisfy their long-term and underlying interests at each stage. This is immensely beneficial as it allows the parties creativity in examining alternatives, evaluating options and reaching a settlement. When the parties themselves agree to the terms of the settlement, there is compliance with the terms.
If a settlement is reached, the parties also save money on their hourly costs and no further litigation. Court fees are also refunded. Since it takes less time, it is speedy, economical and efficient.
Disadvantages of Mediation
The imbalances of power that exist in a family may thus also lead to unfairness in the mediation.
The only solution to this is to agree to make the settlement agreement binding on both parties before signing it. What To Consider When Going for MediationTime and Cost of the Mediation Process
Mediation can take any amount of time, ranging from several hours to days. This depends on the complexity of the issues to be discussed, the number of parties, and their preparation, flexibility, and desire to resolve disputes. According to figures presented by the Bangalore Mediation Centre, however, the average mediation in India takes only two hours. Moreover, the parties are given a maximum of 60 days to resolve their disputes before reverting to the court.
The cost of mediation is extremely economical as compared to the courts. A single motion filed by an attorney often costs more than the mediation. Mediation fees currently range between Rs. 15,000 to Rs. 70,000. A mediation is also less emotionally stressful than a trial might be. What to Discuss With Your Lawyer Before Going to Mediation
Alternative methods to litigation and trial for dispute resolution that can be referred to by the court include arbitration, conciliation, judicial settlement through Lok Adalat, and mediation. It is a good idea to discuss with your lawyer exactly which method to take up as an alternative to trial.
There are many different forms of mediation, with the most popular being traditional mediation. A traditional mediation has many distinct phases, such as openings, joint sessions etc. Other forms of mediation include-
You can read more about them here.
The success of a mediation depends highly on the parties present at the table. This, too, varies according to the kind of mediation. Any mediation requires a person who can make a binding decision to be present. Parties may also want their technical experts to be present as it allows them the opportunity to learn more in a short amount of time. In emotionally charged mediation, it may be prudent for a party to ensure the presence of their psychologist.
Mediation statements are issued by the parties days before the mediation begins. These contain the factual claims and legal arguments according to a party. The parties and their counsels then need to discuss the risk factors, i.e. the opposition’s strengths and their weaknesses. This also allows them to start considering solutions.
Timing is crucial in a mediation. A person should discuss the timing of the mediation with their lawyer. The ideal time is as early in the dispute as possible after the parties and counsels have a good knowledge of the factual and legal issues. It should take place before expensive phases in the trial, such as depositions. Challenging a Mediation AgreementA successful mediation results in a negotiated agreement that takes the place of a contract between the parties. The parties cannot pursue any litigation for the underlying dispute if they are dissatisfied with the settlement reached as it would amount to a breach of the contract. However, if the parties wish to dispute the agreement, they can bring an action in court challenging the validity of the agreement based on principles of contract law, and not on the basis of the underlying dispute. LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content References
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