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<xTITLE>Mediation in India</xTITLE>

Mediation in India

by Mehka Sharma
December 2018

Originally published at MyADVO.in

The Process of Mediation in India
Mediation is an age old process of dispute resolution practiced since Vedic period. It is a low cost, keeping the matters, especially family matters secret among three parties, two parties and the mediator. Moreover the solution is not imposed on any party, it is a solution that both the parties agreed to. It, thus gives an effective solution in a peaceful manner.

Alternate Dispute Resolution method of resolving the disputes is relatively new trend in India. The mediation process in India is not a newly invented procedure for dispute redressal, it is an age old process since Vedic period. It is beneficial for both the sides - the courts are being a bit less burdened with cases, and the parties are getting their issue resolved quickly with less hassles and in a smoother way. Thus, there has been made an important position for mediation in Indian Law.

The difference between taking a matter to litigation and taking it for mediation process, is that in litigation, there is a blame game and the blames are to be proved, depending that the Court shall give a solution; and in Indian mediation, the matter gets resolved through negotiation, where the solution is sought with the consent of the parties after considering the demands of both the sides.

The alternate dispute resolution India consist of following types of adr in India - arbitration, conciliation, negotiation and mediation. Mediation in India is the most popular method among all the three processes.

What is Mediation?

Mediation in India is a voluntary process where the disputing people decide to mutually find a solution to their legal problem by entering into a written contract and appointing a mediator. The decision-making powers remain with the disputing parties, with the mediator acting as a buffer to bring them to an understanding. The parties can hire ADR lawyers to represent them before the mediator and explain the situation in a professional way. The difference between arbitration and mediation are that arbitration is a more formal process than mediation. An arbitrator needs to be formally appointed either beforehand or at the time of need. A mediator can be anyone, of any designation, can be appointed formally or casually depends on the wish of the parties. The mediation law in India has been made user friendly and pretty flexible.

Mediation India are divided into two categories which are commonly followed:

1. Court referred Mediation:
The court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This type of mediation is frequently used in Matrimonial disputes, particularly divorce cases.

2. Private Mediation:
In Private Mediation, qualified personnel works as mediators on a fixed-fee basis. Anyone from courts, to the general public, to corporates as well as the government sector, can appoint mediators to resolve their dispute through mediation.

Process of Mediation in India

In most cases, people voluntarily opt for mediation to mutually resolve their legal issue, making mediation in India a party-centric and neutral process. A third party i.e. a mediator is appointed who acts unbiasedly in directing the parties to amicably resolve their issues. Mediation employs structured communication and negotiation where people put their issues and solutions for them in front of each other with the help of a mediator. The person can be anyone the parties have chosen, or an ADR lawyer agreed on by the parties.

The mediator then helps them to reach a conclusion based on their agreed upon terms. As it is a voluntary process and the parties retain all the rights and powers, any party can withdraw from the process of mediation at any phase without stating a reason.

Mediation encourages the parties to participate in dispute resolution actively and directly whereby they explain the facts of their dispute, lay down options or ways to resolve the dispute and make a final decision by coming to a settlement. The mediation process in India follows all the general rules of evidence and, examination and cross-examination of witnesses. To know all the legal rights you have over the issue, you can discuss with your ADR lawyer how you can put up your demands and negotiate it with the other party.

One of the primary benefits of mediation in India is that it is a completely private method of dispute resolution. Only the disputing parties and the mediator are involved, making the affairs of the parties personal and private. The mediator is an impartial and independent third party, who helps the parties in finding their own solution. All statements made during the process of mediation in India cannot be disclosed in civil proceedings or any other place without the prior consent of all parties in writing.

In Mediation in India, the mediator works together with parties to facilitate the dispute resolution mediation process and does not adjudicate a dispute by imposing a decision upon the parties. A mediator’s role is both facilitative and evaluative. A mediator facilitates when he manages the interaction between the parties, encourages and promotes communication between them and manages interruptions and outbursts by them and motivates them to arrive at an amicable settlement.

Process of Mediation in India is completely confidential as any information furnished by any party and a document prepared or submitted is inadmissible and sealed. Any admission made during mediation cannot be used in any other court case and any information provided to the mediator cannot be disclosed to the other party unless the other party specifically permits the mediator to do so. The mediator cannot be called as a witness to testify in any court case and cannot disclose any information related to the proceedings.

Mediation as an alternative dispute resolution process has been effectively used in matrimonial disputes and corporate affairs to find a prompt solution which is not only time-saving and cost-effective but also keeps the entire dispute resolution process private. The process of mediation in India is flexible as it works two-ways by helping disputing parties to mutually resolve their issue and reducing the burden of pending cases on the courts.

Effectiveness of Mediation:

At times, even the court referred mediation, as it is an easier and quicker process to get a resolution. Specially the divorce mediation in India is most common method of mediation. The mediation in divorce cases, property cases, family matters, help to keep the matter limited to the parties only, and does not bring it before public, and reach to a solution maintaining the peace.