MEDIATION

DR. ANU SOLANKI KAMBLE

  In 1996, the Government brought an amendment to
Section 89 of the Civil Procedure Code, 1908 which gave
scope to the court to formulate settlements, if it appears
to the court that there is a possibility of settlement
between the parties and after receiving the referral from
the parties to make amendments in such settlement and
refer the same to arbitration, Lok Adalat, conciliation or
mediation.

Introduction
 These proceedings are more informal in nature as
compared to arbitration and conciliation. The role of the
mediator is more of a person who provides guidance and
clears any misunderstanding that arises between the
parties. The parties reach settlement on their own.
Mediator regulates the settlement process. At the end of
the process, a settlement is arrived between the parties
rather than a decision.
 Mediation in India is governed by the Alternative dispute
Resolution and Mediation Rules of 2003.
  If negotiations fail and parties are not able to reach an agreement
on their own, they can turn to mediation.
 Mediation is a process in which “a third party works with parties
in conflict to help them change the quality of their conflict interac
tion from negative and destructive to positive and constructive,
as they explore and discuss issues and possibilities
for resolution.”
 Mediation is the intervention into negotiations or a conflict of an
acceptable third party who has no authoritative decision-making

Meaning power but who assists the parties involuntarily reaching a

mutually acceptable settlement of the issues in dispute.
 It is a simple, voluntary, party centered and structured
negotiation process, where a neutral third party assists the
parties in amicably resolving their disputes by using specified
communication and negotiation techniques. Mediation is a
process where it is controlled by the parties themselves. The
mediator only acts as a facilitator in helping the parties to reach
a negotiated settlement of their dispute. The mediator makes no
decisions and does not impose his view of what a fair settlement
should be
  Rather than accepting something imposed by a third
party, the parties define the terms of any settlements
made. States, organisations, communities, people, or
other representatives having a vested stake in the result
may be parties to the conflicts.
 Mediation can be used in a range of situations, including
Need of economic, legal, diplomatic, workplace, community, and
familial disputes. Contracts and mediation between (say)
Mediation unions and corporations may be negotiated and mediated
by a third-party representative. When a workers’ union
goes on strike, a dispute arises, and the company
appoints a third party to mediate in an attempt to reach an
agreement between the union and the company.
  In the mediation process, each side meets with a
experienced neutral mediator.
 The session begins with each side describing the
problem and the resolution they desire – from their
point of view.

Mediation  Once each sides’ respective positions are aired,

the mediator then separates them into private
process rooms, beginning a process of “Caucus Meeting”
and thereafter “joint meetings with the parties”.
 This leads to agreement of both the sides. The
mediator has no power to dictate his decision
over the party. There is a win – win situation in the
mediation.
  It is a process wherein the parties themselves determine the
terms of the agreement and that will help them resolve the
disputes.
 A Mediator only oversees the process and helps communicate
among the conflicting parties and is deemed to be impartial.
 There are private sessions where the mediator discusses the
issue with either of the parties in the absence of the other so
that the parties do not hesitate in sharing any information.

Features of Following this, there are joint sessions where there is an attempt
made towards settling the dispute.

Mediation  It is especially helpful in matrimonial and property disputes

where there is a need to understand the stage at which the
dispute triggered and the ways in which each party wants it to
be resolved.
 Mediation is a voluntary and non-binding process, however, is
regulated by the Code of Civil Procedure, 1908.
 In Mediation proceedings, the ultimate decision to agree on the
settlement remains with the parties.
 • Parties have complete control over the settlement.
• Less stress as compared to litigation and
arbitration.
• The relationship between the parties isn't overly
Advantages damaged and can be preserved.
• Relatively quick.
• Mediation proceedings are confidential.
• The process resolves the dispute quickly.
 • Since the decision is at the discretion of the
parties, there is the possibility that a settlement
between the parties may not arise.
• It lacks the support of any judicial authority in its

Disadvantag conduct.
• The absence of formality- Mediation proceedings
es are lacking in any procedural formality since they
are not based on any legal principle.
• The truth of an issue may not be revealed.
  Able to maintain confidentiality
 Be a good listener
Characteristi  Legal and procedural knowledge
cs of an  Solution oriented
ideal  Promptness and timeliness

mediator  Professionalism
  In 2018, the present day Government, in alignment of its
policy of improving the ease of doing business, came up
with an amendment to the Commercial Courts Act, 2015.
 The President, in May 2018, promulgated an Ordinance
which amended the Commercial Courts Act, 2015. As per
this amendment, the Government introduced pre-litigation
mediation for all the commercial disputes in section 12A of

Mediation in
Commercial Courts Act, 2015.
 The provision concerned is Section 12-A(1) which states

Law that in cases where no interim relief is required, the matter

would be referred to compulsory mediation. Section 12-
A(2) empowers the Central Government, through
notification, to authorise the authorities under the Legal
Services Authorities Act, 1987 for pre-institution
mediation.
 The Wedding Crashers (2005)
 featuring the antics of two divorce mediators,
Jeremy Grey and John Beckwith, played by actors
Vince Vaughn and Owen Wilson respectively, who
attend weddings they are not invited to in order to
meet women. There are very few depictions of
mediation in film and television, but uniquely,
Wedding Crashers opens with a divorce mediation.
Jeremy and John are mediating the divorce
agreement between a husband and wife, who
attend the mediation with their lawyers,
  The Office (2005)
 In the first few minutes of an episode entitled
“Conflict Resolution” (S2, E21), the clueless boss,
adeptly played by Steve Carrell, tries to mediate a
workplace conflict about an office poster. He tries
to elicit the disputants’ interests but cannot resist
telling them what to do.

The Office
  it was contended that marriage between a couple
was solemnized after the commutation of their
marriage. The couple had a girl child. Later dispute
arose between husband and wife and the marriage
between them was irretrievably broken down, which
led to the filing of the divorce petition by wife
Mohd. Mushtaq alongside an FIR against the husband under Section
Ahmad v. State (20 498A of IPC.
15) 3 AIR Kant R  The Karnataka High Court directed the parties to
363 mediation under Section 89 CPC. The matter was
settled amicably through mediation after which the
wife decided to quash the FIR. The Court allowed
this stating, “The court in the exercise of its
inherent powers can quash the criminal
proceedings or FIR or complaint in appropriate
cases in order to meet the ends of justice.”
  The facts are identical to the previous case.
 Here the court stated, “Even if the offences are non-
compoundable if they relate to matrimonial disputes
and the Court is satisfied that the parties have
settled the same amicably … Section 320 CrPC would
Gurudath not be a bar to the exercise of the power of quashing
K. v. State of of FIR or criminal complaint in respect of such
Karnataka (Crimina offences.”
l Petition No. 7258  Thus, the court allowed for the offences to be
of 2014, Decided compounded on coming to the conclusion that the
on 20-11-2014) wife was under no threat or coercion for the same.
 The court’s intention to settle matters as amicably as
possible is clear. The intention of the court matches
the ideology of the advocates of mediation, which is
to safeguard family relationships and provide speedy
justice.