CENTRAL UNIVERSITY OF SOUTH BIHAR

ALTERNATIVE DISPUTE RESOLUTION ASSIGNMENT

TOPIC: MEDIATION: AN ALTERNATIVE TO RESOLVE

DISPUTE

SUBMITTED TO:

DR. D.N SINGH

ASSISTANT PROFESSOR
SCHOOL OF LAW AND GOVERNANCE

SUBMITTED BY:

JYOTSNA

CUSB2013125055

SECTION-‘A’

B.A.LL.B. (8th Sem)

[1]
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Alternative Dispute

Resolution course instructor Dr. D. N Singh, who gave me the golden opportunity
to do this project on the topic “MEDIATION: AN ALTERNATIVE TO RESOLVE
DISPUTE”, which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.

And also, I would also like to thank my classmates who helped me a lot in
finalizing this project within the time frame.

- Jyotsna

[2]
 TABLE OF CONTENT

S. No. CONTENT Pg. No.

1. INTRODUCTION 4

2. HISTORICAL DEVELOPMENT 5-6

3. TYPES OF MEDIATION 7-8

4. PROCESS OF MEDIATION 8-9

5. ROLE OF MEDIATOR 9-10

6. MEDIATION VIS-À- VIS ADVERSARIAL 10-12

PROCEEDINGS

7. MEDIATION IN U.S.A 13

8. CONCLUSION 14

[3]
 INTRODUCTION

“An ounce of mediation is worth a pound of arbitration and a ton of litigation”1

Mediation is a popular alternative dispute resolution method that has gained significant traction
in recent years. Rather than relying on traditional litigation, mediation offers a non-adversarial
approach to resolving disputes. In mediation, an impartial third-party mediator facilitates
negotiations between the parties involved in the dispute, with the goal of reaching a mutually
acceptable resolution. Mediation can be used to address a wide range of disputes, including
those related to business, family, community, and even international matters. The process is
typically confidential, flexible, and cost-effective compared to traditional court proceedings.
Mediation also offers the potential for preserving relationships between parties, which can be
particularly valuable in cases where ongoing interactions are necessary.
Simply said, mediation is nothing more than facilitated negotiation. However, mediation may be
broadly characterised as a voluntary method of conflict resolution in which a neutral third party
(the mediator) facilitates the parties’ use of efficient and skilled communication and negotiating
skills to reach a mutually agreeable result. 2 The Latin word “mediare,” which means “to be in
the middle,” is the root of the English word mediation. 3 Therefore, mediation is a procedure
designed to identify a middle ground between the parties' differences so that a mutually
agreeable resolution may be reached.

In actuality, mediation is an effective management technique for settling complicated issues.

The purpose of the process is to lessen hostility, it helps parties to realize and comprehend their
objectives and interests, and guide them toward a self-determined and mutually agreeable
agreement. The mediator strives to break the deadlock, encourages and assists the parties in
having a constructive conversation, and empowers them to envision their own alternatives
realistically. The goal is to help individuals speak logically and problem-solving, to make issues
clear, and to facilitate discussions by bringing objectivity and realism to a conflict. Therefore,
mediation in a way gives the parties the ability to think independently. In short it is a
professionally and scientifically managed negotiation process.

1
Joseph Grynbaum
2
What is Mediation, available at: https://mediation.judiciary.hk/en/doc/What_is_Mediation-Eng.pdf (Last Visited
on April 22, 2024)
3
Mediation, available at:https://www.dictionary.com/browse/mediation#:~:text=The%20first%20records%20of
%20the,intermediary%20 and%20medium%20are%20related. (Last Visited on April22, 2024)
[4]
HISTORICAL DEVELOPMENT

Years before the British arrived in India, mediation was used as an Alternative Dispute
Resolution (ADR) method.4 In those days, informal panchayats were employed to settle
conflicts between the parties, and the Mahajans or other respected village elders served as
mediators. Some tribes in India still utilise Panchas or Pancha Parmeshwars as neutral third
parties to legally resolve conflicts between the at-fault parties or groups. But as British
colonialism spread, mediation started to gain acceptance as a formal and authorised ADR
technique. It was with the re-introduction of Lok Adalats in Indian Judicial System that
mediation gained popularity as an ADR mechanism.5

Over time, mediation evolved and adapted to the changing needs of Indian society. In the 20th
century, the Indian legal system began to incorporate mediation into its framework, recognizing
the benefits of this approach for resolving disputes quickly, efficiently, and cost-effectively.
The first formal mediation law in India was the Industrial Disputes Act, passed in 1947 6. This
act provided for conciliation and mediation in cases of industrial disputes, with the aim of
promoting peaceful settlement between employers and employees. Over time, the use of
mediation in industrial disputes became widespread, and it played an important role in
preventing strikes and lockouts.

In the 1980s, the use of mediation in India expanded beyond industrial disputes and into civil
disputes, such as family disputes and commercial disputes. This was driven by the growing
awareness of the limitations of the traditional court system, which was often slow, costly, and
adversarial. Mediation offered an alternative approach, one that focused on cooperation and
collaboration rather than conflict and competition.
In 1996, the Indian government passed the Legal Services Authorities Act7, which provided for
the establishment of legal services authorities at the national, state, and district levels. These
authorities were tasked with providing legal aid and assistance to the poor and marginalized,
including through the use of alternative dispute resolution methods such as mediation.

4
The Origin and Growth of Mediation in India, available at: https://www.legalserviceindia.com/legal/article- 2440-
the-origin-and-growth-of-mediation-in-india.html (Last Visited on April 22, 2024)
5
Development of Mediation in India: A brief history, available at:
https://viamediationcentre.org/readnews/ODc=/DEVELOPMENT-OF-MEDIATION-IN-INDIA-A-BRIEF-
HISTORY (Last Visited on April 22, 2024)
6
Industrial Dispute Act,1947 ( Act no 14 of 1947).
7
The Legal Services Authority Act,1987( Act no. 39 of 1987).
[5]
Furthermore, Section 89 of the Civil Procedure Code (CPC), 1908 8, which was added by the
CPC (Amendment) Act, 1999, is also responsible for the development of mediation as an ADR
tool. The Hon'ble Mr. Justice A M Ahmadi's efforts were responsible for this specific
development. The Institute for the Study and Development of Legal Systems (ISDLS) had been
invited to India by Ahmadi, the country's then-chief justice, as part of a nationwide legal
exchange project with the United States.9 New changes were adopted in 2002 as a result of the
ISDLS's examination of the issues with institutional backlogs in the Indian court system and
recommendations for ADR procedures, legislative implementation, and structural reforms of the
laws pertaining to these processes.

The introduction of the court-annexed mediation system in India in 2005 marked a significant
milestone in the evolution of mediation in the country. 10 Under this system, mediation is
integrated into the court process, and judges can refer cases to mediation at any stage of the
litigation process. This has helped to promote the use of mediation in a wider range of cases and
has helped to reduce the burden on the court system.
Today, mediation is widely recognized as an effective and efficient method of resolving
disputes in India. The country has a well-established network of mediation centres, and
mediation is used in a variety of contexts, including family disputes, commercial disputes,
labour disputes, and environmental disputes.11 The use of mediation is also growing in areas
such as community mediation and peer mediation in schools.
Thus, the evolution of mediation in India has been a long and fascinating journey, reflecting the
changing needs of Indian society and the growing recognition of the benefits of this approach to
dispute resolution. Today, mediation is an integral part of the legal system in India, and it
continues to play a vital role in promoting peaceful and collaborative solutions to disputes.

8
The code of civil procedure, 1908 ( Act no 4 of 1908).
9
History of Mediation, available at: https://delhicourts.nic.in/dmc/history.htm (last accessed on: April 24, 2024).
10
The History of Mediation and Why It Is Still In Use Today, available at: https://mediate.com/the-history-of-
mediation-and-why-it-is-still-in-use- today/%20that%20mediation,it%20appeared%20before%20the%20court.
(Last Visited on April 22, 2024)
11
Supra note 4.
[6]
TYPES OF MEDIATION

The trend in Indian Courts is that mediation is divided into two categories12:

Court referred Mediation: The court may refer a pending case for mediation in India under
Section 89 of the Code of Civil Procedure, 190813. This kind of mediation is often used in
Matrimonial disputes, particularly divorce cases.
Private Mediation: In Private Mediation, qualified personnel work as mediators on a fixed-
expense premise. Anyone from courts, to the general population, to corporates as well as the
government sector, can appoint mediators to resolve their dispute through mediation.
Though there are several types of mediation, each with its own unique approach and purpose.
Most mediators conduct their mediations in one of four styles14:
Facilitative Mediation: Facilitative mediation is the most common type of mediation. It involves
a neutral third party, the mediator, who helps parties in conflict reach a mutually agreeable
solution by facilitating communication and negotiation between the parties. In facilitative
mediation, the mediator does not make decisions for the parties, but rather helps them explore
their interests and needs to find a solution that works for both parties.
Evaluative Mediation: Evaluative mediation is another common type of mediation. In this type
of mediation, the mediator takes a more active role in the process by evaluating the strengths and
weaknesses of each party’s position and providing feedback. The mediator may also suggest
potential outcomes based on their evaluation of the case. Evaluative mediation is often used in
complex cases where there are legal or financial issues that need to be resolved.

Transformative Mediation: Transformative mediation is a type of mediation that focuses on

empowering parties in conflict to communicate effectively and understand each other’s
perspective. In transformative mediation, the mediator’s role is to help

12
The Process of Mediation in India, available at: https://www.myadvo.in/blog/the-process-of-mediation-in- india/
(Last Visited on April 24, 2024)
13
The code of civil procedure, 1908 ( Act no 4 of 1908),sec.89.
14
What type of Mediation is right for you? , available at: https://njapm.org/news/599837/WHAT-TYPE-OF-
htm#:~:text=Most%20mediators%20conduct%20their%20mediations,to%20help%20resolve%20a%20dis
pute. (Last Visited on April 24, 2024)
[7]
parties build rapport and trust, which can lead to a deeper understanding of the issues and a
more meaningful resolution. Transformative mediation is often used in cases where there are
emotional or personal issues that need to be addressed.
Narrative Mediation: Narrative mediation is a type of mediation that focuses on the stories that
people talk about their conflicts. In narrative mediation, the mediator helps parties in conflict
identify the underlying narratives that shape their perspectives and beliefs. The mediator then
works with the parties to develop new narratives that allow them to move forward and find a
resolution. Narrative mediation is often used in cases where there are cultural or historical issues
that need to be addressed.
Thus, mediation is a flexible and effective form of dispute resolution that can be tailored to meet
the specific needs of parties in conflict. Whether it’s facilitative, evaluative, transformative, or
narrative, there is a type of mediation that can help people find a mutually agreeable solution
and move forward.

PROCESS OF MEDIATION IN INDIA

Mediation in India is governed by the Indian Mediation and Conciliation Rules, 2016 15, which
were introduced by the Ministry of Law and Justice. The rules provide a framework for
conducting mediations in India and set out the procedure that mediators and parties must
follow16.
The first step in the mediation process is for the parties to agree to mediate. This can be done
voluntarily by the parties themselves or can be ordered by the court. Once the parties agree to
mediate, they must appoint a mediator or request the court to appoint a mediator. The mediator
must be a neutral third party who is trained and accredited to conduct mediations 17. In India,
there are several institutions that provide mediation training and accreditation, such as the
Indian Institute of Arbitration and Mediation, the Delhi Dispute Resolution Society, and the
Bangalore Mediation Centre.18
Once the mediator is appointed, the parties will meet with the mediator to discuss the issues in
dispute. The mediator will explain the mediation process to the parties and ensure that they
15
Indian Mediation and Conciliation Rules, 2016
16
Mediation in India, available at: https://www.legalserviceindia.com/legal/article-2762-mediation-in- india.html
(Last Visited on April 24, 2024)
17
Mediation, available at: https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf (Last Visited on
April 24, 2024)
18
Is Mediation Gaining Popularity in India, available at: https://blog.ipleaders.in/mediation-popularity-india/ (Last
Visited on April 24, 2024)
[8]
understand the confidentiality and voluntary nature of the process. The mediator will then ask to
help each party to explain their position and the issues that they wish to discuss during the
mediation. The mediator will then facilitate the negotiation between the parties. The mediator
will help the parties to identify their interests and needs and explore possible solutions to the
dispute. The mediator will use various techniques, such as active listening, reframing, and
summarizing, to help the parties to communicate effectively and to build trust and rapport. The
mediator will also help the parties to evaluate the strengths and weaknesses of their case and to
assess the risks and benefits of different settlement options. The mediator will encourage the
parties to think creatively and to explore solutions that meet the interests of both parties.
If the parties reach a settlement, the mediator will help them to draft a settlement agreement.
The settlement agreement will set out the terms of the agreement and will be signed by the
parties and the mediator. The settlement agreement will be legally binding and enforceable. If
the parties do not reach a settlement, the mediator will declare an impasse and the mediation
will end. The parties may then choose to pursue other methods of dispute resolution, such as
litigation or arbitration.

[9]
ROLE OF MEDIATOR

Mediation is a process of resolving disputes and conflicts between two or more parties with the
help of a neutral third party, known as a mediator. The role of a mediator is to facilitate
communication between the parties, encourage them to reach a mutually acceptable solution,
and help them to maintain a constructive dialogue.
The role of a mediator is essential in any conflict resolution process. The mediator is a neutral
party who does not have a vested interest in the outcome of the dispute. The mediator’s role is
to help the parties to find a solution that works for everyone involved. This may involve
exploring the parties’ underlying interests, identifying common ground, and helping the parties
to generate options that meet everyone’s needs.19
One of the key benefits of mediation is that it is a collaborative process. The mediator works
with the parties to develop a mutually acceptable solution, rather than imposing a decision on
them. This approach helps to build trust and fosters a sense of ownership over the outcome. The
parties are more likely to comply with the agreement that they have helped to create, as
they have had a say in the process. The mediator’s role is also to ensure that the parties
communicate effectively. This may involve helping the parties to clarify their positions and
interests, as well as encouraging active listening and empathy. The mediator may also help to
reframe issues and questions, and to defuse any emotions that may be hindering progress.15
Another important role of the mediator is to manage the process of the mediation itself. This
includes setting ground rules, establishing the agenda, and ensuring that the parties stay on
track. The mediator may also suggest breaks, private meetings, or other interventions to help the
parties to move forward. Mediators can be helpful in a wide range of contexts, from workplace
disputes to family conflicts to community issues. Mediation can be particularly effective in
cases where the parties have a continuing relationship, such as co-workers, neighbours, or
family members. The mediator’s role is to help the parties to maintain a constructive dialogue,
even after the mediation has ended.
A skilled mediator can help parties to communicate effectively, build trust, and work together to
find a mutually acceptable solution. The mediator’s role is to remain neutral, manage the
process of the mediation, and help the parties to stay focused on the issues at hand. Mediation is
a collaborative process that can be effective in a wide range of contexts, and the mediator plays
a vital role in ensuring its success.

19
Mediation Defined: what is Mediaion? , available at: https://www.jamsadr.com/mediation-defined/ (Last Visited
on April 24, 2024)
[10]
MEDIATION VIS-À- VIS ADVERSARIAL PROCEEDINGS

To fully understand the benefits of mediation (or any other non-adjudicatory technique of
conflict resolution), it is necessary to compare it to the conventional or adversarial process.
Nevertheless, this does not indicate that the lawsuit procedure has no merit at all. Which
procedure is preferable depends on the context, and when the issue is interpreted in the context
of conflict resolution, mediation shines out. The following are some of the advantages of
mediation20:
Cost-effective: One of the primary advantages of mediation is that it is much more cost-
effective than other forms of dispute resolution. In a traditional legal proceeding, both parties
may incur significant expenses related to legal fees, court costs, and other expenses. In contrast,
mediation is typically much less expensive, as it involves a single mediator who charges a
fraction of what attorneys typically charge.
Confidentiality: Another advantage of mediation is that it is a confidential process. Unlike court
proceedings, which are generally open to the public, mediation is a private process that takes
place behind closed doors. This can be particularly beneficial for parties who are concerned
about protecting their privacy or reputation.
Voluntary: Mediation is a voluntary process, which means that both parties must agree to
participate in the process. This can be beneficial because it means that both parties are more
likely to be invested in finding a mutually acceptable solution. In addition, because mediation is
voluntary, both parties have more control over the outcome of the process.
Time-efficient: Mediation is typically a much quicker process than traditional legal proceedings.
Whereas a court case can take months or even years to resolve, a mediation session can be
scheduled and completed in a matter of hours or days. This can be particularly beneficial for
parties who want to resolve their dispute quickly and move on.
Flexible: Mediation is a flexible process that can be tailored to the specific needs of the parties
involved. Unlike court proceedings, which are bound by strict rules and procedures, mediation
can be adapted to accommodate the unique circumstances of each case. This can make it easier
to find a mutually acceptable solution that works for everyone involved.

20
Advantages of Mediation, available at: https://districts.ecourts.gov.in/sites/default/files/ADVANTAGES%20OF
%20MEDIATION%20.pdf (Last Visited on April 24, 2024)
[11]
Preserves Relationships: Finally, mediation is often seen as a more collaborative process than
traditional legal proceedings. Because both parties are working together to find a solution, rather
than fighting against each other, mediation can help preserve relationships and reduce the
likelihood of ongoing conflict. This can be particularly beneficial for parties who may need to
continue working together or coexisting in the future.
Thus, mediation offers a number of advantages over traditional forms of conflict resolution. It is
a cost-effective, confidential, voluntary, time-efficient, flexible, and collaborative process that
can help parties find a mutually acceptable solution to their dispute. As such, it is an
increasingly popular alternative to traditional legal proceedings21.

Thus, mediation offers a number of advantages over traditional forms of conflict resolution. It is
a cost-effective, confidential, voluntary, time-efficient, flexible, and collaborative process that
can help parties find a mutually acceptable solution to their dispute. As such, it is an
increasingly popular alternative to traditional legal proceedings.

21
Ibid.
[12]
CASES ON MEDIATION MEDIATION IN THE UNITED STATES OF AMERICA

Forms of mediation can be found in the earliest records of the United States, extending back to
Native American dispute resolution practices. The early settlers from England brought the idea
of court-sponsored mediation. In due of the disruption caused by labour disputes, mediation
became more popular in the early 20th century. The early 1980s and late 1970s saw the first
attempts at mediation-related legislation. And today, it is frequently used in civil and
administrative agency cases.22 Here, there exists a strong public policy that supports ADR
techniques, including mediation. Despite being well-known for its propensity for litigation, the
United States has one of the most sophisticated and effective systems in the world for resolving
conflicts through procedures such as mediation and arbitration. The public policy of reducing
the burden of the courts and the significant costs associated with the expansion of the court
system are two very important factors in the adoption of such mediation programs.

By the mid-1980s, lawyers and State Bar Associations had professionalized mediation in the
US, by developing mediator training standards, providing lawyer training in mediation and
prescribing ethical standards for lawyers when acting as mediators and when acting as advocates
in mediation. Accordingly, prepared lawyer mediators made mediation a generous piece of their
law practice. By reacting decidedly and determinedly to consolidate mediation as a greeting and
helpful ADR apparatus in the American lawful framework, lawyers have not lost business to
mediation, however, have rather become tucked away as mediators and as the guards for
mediation in the US lawful frameworks. Currently, mediation has gradually become the primary
ADR model used by the courts. Many US federal agencies have expanded ADR use, appointed
dispute resolution specialists, and settled government contract disputes as well as workplace and
labour management disputes. These include the US Postal Service, the Air Force, the United
States Information Agency, and the Department of Veteran Affairs23.

22
Polsinelli PC, Mediation in USA, available at: https://www.lexology.com/library/detail.aspx?g=1afc5951-1db6-
4f91-8e3b-500022484dbd. (last accessed on april 24,2024)
23
Riyanka Roy, Mediation Tradition in Asia and Legal Framework in India, china and other Asian countries in
comparison with US and EU Legal regulations.
[13]
CONCLUSION

In conclusion, we can say that mediation in India has gained significant momentum in recent
years as a more effective and cost-efficient method of dispute resolution. The Indian
government has recognized the importance of mediation and has taken steps to promote it by
enacting the Commercial Courts, Commercial Division, and Commercial Appellate Division of
High Courts (Amendment) Act, 201824, which makes mediation mandatory in certain
commercial disputes. Additionally, the Supreme Court of India has established a Mediation and
Conciliation Project Committee to encourage the use of mediation in court proceedings.
Mediation provides several benefits, such as quicker resolution of disputes, cost-effectiveness,
and more flexibility in terms of finding a mutually acceptable solution. It also allows the parties
involved to maintain their relationship and avoid the acrimony associated with litigation.
Furthermore, mediation is particularly effective in resolving disputes involving complex legal or
technical issues, as it allows the parties to rely on the expertise of a neutral mediator to help
them understand the issues and reach a resolution25.
However, mediation in India still faces some challenges, including a lack of awareness and
understanding of the mediation process, insufficient training for mediators, and inadequate
institutional support. These challenges need to be addressed to fully realize the potential benefits
of mediation in India.
Overall, mediation has the potential to revolutionize the dispute resolution landscape in India,
and the efforts made by the government and the legal community to promote its use are
encouraging. With continued efforts to raise awareness, improve training, and provide
institutional support, mediation can become a more widely accepted and effective method of
resolving disputes in India.

24
Commercial Appellate Division of High Courts (Amendment) Act, 2018.
25
Supra note 3.
[14]
REFERENCES:

BOOKS:

a) Madhusudan Saharay, Arbitration and Conciliation with ADR (Lexis Nexis, 4th Edn. 2017)
b) Dr. S. C. Tripathi, Alternative Dispute Resolution ( Central Law Publication, 6 th Edn.,
2019)

ARTICLES:

a) Neha & Pradeep Kumar Jain, “An Assessment of the Functioning Of Legal Services
Authorities in India: A Theoretical Perspective”, 7 International Journal of Human Resource
Management and Research, 2017.
b) Polsinelli PC, Mediation in USA.
c) Riyanka Roy, Mediation Tradition in Asia and Legal Framework in India, china and other
Asian countries in comparison with US and EU Legal regulations.

ACTS AND STATUTES:

a) The Legal Services Authorities Act, 1987 (Act no. 39 Of 1987)

b) Code of Civil Procedure, 1908 (5 of 1908)
c) Indian Mediation and Conciliation Rules, 2016
d) The Mediation Act, 2023( no. 23 of 2023)

[15]