Essential Elements of Mediation
Introduction:
Mediation, a form of Alternative Dispute Resolution (ADR), offers an effective means of resolving disputes
outside the courtroom.
It is a longstanding practice in India, dating back to the Vedic period. With its focus on achieving peaceful
resolutions efficiently, mediation aligns with India's constitutional directive of providing speedy and effective
justice to its citizens.
Meaning and Definition of Mediation:
Mediation is a voluntary process where disputing parties work towards a mutually acceptable resolution
with the assistance of a neutral third party, the mediator.
Unlike arbitration, where a decision is imposed, mediation allows parties to retain control over the outcome.
Types of Mediation:
1. Court Referred Mediation:
Initiated under Section 89 of the Code of Civil Procedure, 1908.
Commonly used in matrimonial disputes like divorce cases.
2. Private Mediation:
Conducted by qualified mediators on a fee-for-service basis.
Used in various sectors including commercial, governmental, and pre-litigation disputes.
Elements of Mediation:
1. Voluntary Participation:
Mediation relies on the free consent of parties. It cannot be forced.
Final agreements are reached based on the parties' needs and free will.
2. Impartiality:
Mediators must remain neutral and ensure fair treatment of all parties.
They create a safe environment free from manipulation or intimidation.
3. Neutrality:
Mediators must remain neutral regarding the dispute's subject matter.
They refrain from imposing solutions and allow parties to decide the outcome.
4. Acceptability:
All elements of mediation, including the mediator, must be accepted by the parties.
Final outcomes must also be acceptable to all parties involved.
5. Confidentiality:
Mediation proceedings are confidential, and information obtained cannot be disclosed outside the
process.
Confidentiality fosters trust and encourages open communication.
Process and Stages of Mediation
Mediation, facilitated by The Mediation and Conciliation Project Committee (MCPC) of the Supreme Court, is
structured into several stages, each aimed at guiding parties towards a resolution in a less formal manner
than traditional litigation or arbitration.
Convening the Mediation Process:
The initial stage of mediation, though challenging, involves various procedural steps:
1. Reference to ADR by the Court:
The court directs parties to consider Alternative Dispute Resolution (ADR) options, including mediation,
under Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908.
The court assesses the suitability of ADR methods based on the case's particulars, with the referral judge
objectively evaluating the dispute's nature and facts.
2. Preparation for Mediation:
The referral judge plays a pivotal role in convening parties and motivating them to engage in mediation.
While mediation requires parties' consent, the court may exert external pressure, even mandating mediation
if necessary.
3. Referral Order:
Initiated by the referral judge, the referral order serves as the foundation for court-referred mediation.
An ideal referral order includes comprehensive details such as the judge's name, case particulars, nature of
the dispute, consent status of parties, mediator's details, time limit for mediation, and contact information.
STAGE 1: INITIATION OF THE MEDIATION PROCESS
INTRODUCTION AND OPENING STATEMENT
Introduction
The mediator gives an introduction with his qualifications, establishes his neutrality and reposes faith in the
mediation process.
The mediator requests the parties to introduce themselves, attempts to develop a rapport with them and
gain their confidence and trust.
The mediator establishes control over the mediation process.
There is no standard set of rules that have to be followed, making the mediation procedure flexible.
Opening Statement
After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of
the mediation, and encourages each side to work cooperatively toward a settlement.
STAGE 2:DISPUTANTS’ OPENING STATEMENTS.
Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has
been affected by it, and to present some general ideas about resolving it.
While one person is speaking, the other is not allowed to interrupt.
STAGE 3:JOINT SESSION
The purpose of the joint session is to gather information.
The mediator provides an opportunity for the parties to hear and understand each other’s perspectives,
relationships and feelings.
The petitioner is allowed to explain their case in their own words, followed by the presentation of the case
by their counsel and the statement of the legal issues.
Similarly, the defendant is allowed to explain their case, followed by the presentation of the case and
statement of the legal issues involved by the defendant’s counsel.
At the completion of the joint session, the mediator may also suggest meeting each party with their counsel
separately.
STAGE 4: SEPARATE SESSIONS
The separate sessions are meant for the mediator to understand the dispute at a deeper level.
It provides the parties with a forum to further share their feelings and disclose confidential information they
do not wish to share with the other parties.
If the parties are reaching an interest-based resolution with relative ease, a BATNA/WATNA/MLATNA
analysis need not be resorted to.
However if parties are in difficulty at negotiation and the mediator anticipates hard bargaining, BATNA/
WATNA/ MLATNA analysis may be introduced.
By using the above techniques, the mediator assists the parties to understand the reality of their case, give
up their rigid positions, identify their genuine interests and needs, and shift their focus to problem-solving.
The parties are then encouraged to explore several creative options for settlement.
BATNA -Best Alternative to Negotiated Agreement
WATNA -Worst Alternative to Negotiated Agreement
MLATNA -Most Likely Alternative to Negotiated Agreement
STEP 5: REACHING A STATEMENT / GINAL NEGOTIATION
The mediator can conduct as many as separate sessions as necessary and may even conduct the sub session
with the counsels , if required.
The parties negotiated through the mediation for a mutually settlement .The mediator directs the parties to
an option which he feels serves the best interest of both the parties.
However , if the negotiation fails and settlement cannot be reached the case is returned to referral court
STAGE 6 :CLOSING
Where there is a settlement:-
The parties are reassembled. The mediator orally confirms the terms and reduces them to writing.
The agreement is signed by the parties , also, the mediator may affix his signature on the signed agreement.
In the closing statement , the mediator thanks the parties for their participation and help in reaching the
solution.
When there is no settlement:-
The case would be returned to the 'referral court' merely mentioning 'Not Settled'.
The statements made during the mediation will be kept confidential and should not be disclosed by any
party or advocate or the mediator to the court or outside the court.
CONCLUSION
These stages in the process of the mediation are there for carrying out the mediation in the smooth manner . If the
stages aren't followed properly then it become difficult for the mediator and parties to come up with a successful
settlement.
