Meaning of Mediation

By | August 24, 2019
meaning of mediation

What is Mediation?

“Mediation” is also a well-known term and it denotes to 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 to 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 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 principals 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 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, but also create 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 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]

FEATURES OF MEDIATION

  1. CONFIDENTIAL: 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 1. Something that is freely chosen participation and freely made agreements between the parties and 2. 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 from 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 the 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. INFORMAL: The mediation is an informal process whereby the parties participate in meaningful interaction with one another. The process of mediation is placed in informal surrounding so as to facilitate the process of interaction between the parties.

SCOPE OF MEDIATION

Mediation has transcended boundaries and has traversed various fields related to law. Now, mediation is used to solve numerous disputes in the national and international level which include marital, corporate, commercial, insurance-related, disputes related to maritime issues, 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 the 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,

Suggested reading:

  1. Ethical Standards in Mediation(Opens in a new browser tab)
  2. International Cases of Successful Mediation(Opens in a new browser tab)

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