About Mediation
Mediation is a voluntary, non-binding dispute resolution process in which a neutral third party, the mediator, facilitates communication between disputing parties to help them reach a mutually acceptable agreement. Unlike litigation or arbitration, mediation is not adversarial; it focuses on finding a collaborative solution that meets the interests of both parties rather than determining right or wrong.
Key Aspects of Mediation
- Voluntary Process: Mediation only proceeds if all parties consent, and any agreements reached are by mutual choice.
- Neutral Mediator: The mediator does not impose decisions but helps the parties communicate effectively to find their own solutions.
- Confidentiality: Mediation is generally private, and discussions are often kept confidential to encourage open dialogue.
- Flexible Outcomes: Since the mediator does not impose decisions, the process allows for creative solutions that might not be possible in a courtroom.
Mediation Models
Mediation has evolved to include several models, each with a unique approach to dispute resolution. The primary models are:
- Facilitative Mediation: In this model, the mediator helps the parties communicate more effectively, identify issues, and explore options without giving any opinions or advice. The focus is on process rather than the outcome, and the mediator does not make recommendations. This model is typically used when the mediator wants to maintain strict neutrality and empower parties to reach their own conclusions.
- Evaluative Mediation: The mediator provides guidance, suggestions, and sometimes assessments of the strengths and weaknesses of each party’s case. Evaluative mediation is more directive and is common when the mediator has subject matter expertise that can help parties better understand the potential outcomes of their dispute in a legal context.
- Transformative Mediation: This approach focuses on changing the relationship dynamics between the parties rather than resolving specific issues. The goal is to empower the parties and encourage mutual recognition of each other’s needs, which can improve the relationship and potentially resolve conflicts more holistically.
- Narrative Mediation: Based on narrative theory, this model encourages parties to reframe their “story” or “narrative” of the conflict, which can help them view the situation differently and find a solution outside the adversarial mindset. This model is often used in more complex or emotional disputes.
Mediation Laws
Mediation laws vary widely across jurisdictions, but generally, they are designed to establish the mediator’s role, confidentiality p arameters, enforceability of mediated agreements, and mediation procedures. Key legal frameworks influencing mediation globally include:
- United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation): This treaty, effective since 2020, aims to facilitate the enforcement of international mediated settlements across member countries, making it easier for businesses to resolve cross-border disputes.
- UNCITRAL Model Law on International Commercial Mediation: The United Nations Commission on International Trade Law (UNCITRAL) has established model laws that many countries use as a basis for their own legislation. This law defines the mediation process, mediator roles, confidentiality, and enforceability in the context of international commercial disputes.
- Mediation Directives in the European Union: The EU has specific directives for mediation, particularly Directive 2008/52/EC, which encourages mediation as an alternative dispute resolution (ADR) method in civil and commercial matters and establishes a framework for cross-border mediation within the EU.
Mediation in India
In India, mediation has gained traction in both commercial and non-commercial disputes, with its use formalized in several legislative acts and Supreme Court rulings. Some essential aspects of mediation in India include:
- 1. Statutory Basis:
- Civil Procedure Code (CPC), 1908 (Section 89): Section 89 of the CPC provides the legal foundation for mediation in India, allowing courts to refer disputes to ADR methods like mediation.
- Legal Services Authorities Act, 1987: This act authorizes Lok Adalats (People’s Courts), which often use mediation to resolve disputes in a speedy, cost-effective manner.
- Commercial Courts Act, 2015: This act introduced mandatory pre-institution mediation for commercial disputes to reduce the burden on courts.
- Arbitration and Conciliation Act, 1996 (Part III): This act provides a structure for conciliation, which is similar to mediation and emphasizes a collaborative, voluntary dispute resolution process.
- 2. Types of Mediation in India:
- Court-Referred Mediation: Courts may refer certain cases to mediation if they believe it could help resolve the issue. This is common in family disputes, civil matters, and sometimes commercial cases.
- Private Mediation: In this form, disputing parties voluntarily choose a private mediator, often a trained professional, to help resolve their dispute.
- Community Mediation: This type is aimed at resolving disputes at the community level, particularly for social, neighborhood, or minor disputes, and is often less formal.
- 3. Judicial Support and Initiatives:
- Supreme Court of India and Mediation Centers: In landmark cases, the Supreme Court has promoted mediation for conflict resolution, including in family law cases. High courts in India have also set up mediation centers in their jurisdiction to encourage this practice.
- Mediation and Conciliation Project Committee (MCPC): The MCPC, formed by the Supreme Court, promotes mediation across India by developing training programs, standards, and policies.
- 4. The Mediation Bill, 2021:
This bill, yet to be passed into law, aims to establish a comprehensive legal framework for mediation in India. It covers pre-litigation mediation, mandatory timeframes for dispute resolution, and enforceability of mediated settlements. Once enacted, it will help standardize mediation practices and enhance the efficiency of ADR mechanisms in India.