Originally posted at the iPleaders blog.
What can you do if you think your case cannot be resolved by mediation?
What can you do if you feel the mediator is being coercive or imposing his or her personal views on your case?
Mediation is of two types – court-annexed mediation and privately arranged mediation. Certain types of cases such as family matters and motor vehicle accident cases are, as a matter of default, referred by Courts to mediation first (court-annexed mediation). This reduces the workload of courts and also gives opportunity to parties to arrive at an amicable settlement. The Code of Civil Procedure gives courts the power to explore mediation in all civil cases. In different states, high courts have attached mediation centres which handle these matters.
In commercial transactions, parties may also incorporate mediation as one of the dispute resolution mechanisms, whereby they will first try to resolve a dispute by mediation before going to court. They could use the support of institutions such as London Court of International Arbitration or LCIA (arbitration institutions also provide mediation services).
In either situation, the role of a mediator is very different from that of a judge or an arbitrator – his or her role is to facilitate, but he or she cannot issue a binding order or force parties to arrive at a binding conclusion. In this post we will explore these issues from the perspective of the Delhi High Court’s Mediation and Conciliation Rules, 2004.
Can a mediator impose a settlement?
A mediator is expected to “facilitate voluntary resolution of the dispute(s) by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute(s), emphasizing that it is the responsibility of the parties to take decision which effect them; he shall not impose any terms of settlement on the parties.” However, he or she should also make parties understand his or her role as a facilitator and must explain that not settlement can be imposed and no assurance can be given that the mediation will result in a settlement. This is also an ethical responsibility of the mediator.
(Refer Rules 16, 17 and 27)
However, to what extent a mediator can keep put aside communicating the impression that he or she is imposing a settlement (or forcefully stating his or her personal opinions is debatable). For example, consider family-related matters, in which everyone is likely to have an opinion, whether in favour of marriage or against it, in favour of a woman or against her, etc. I know several individuals who feel that the mediator is opinionated, coercive or trying to impose his or her personal views on the parties.
What can you do if you land up in a situation where the mediator is imposing a settlement?
Unlike in arbitration or in a judicial proceeding where you will need to challenge the arbitrator, in mediation since it is a consensual process you have the additional option to disagree with the mediator and let the mediation fail.
You got it right – there is no personal responsibility on any of the parties to have a successful mediation. Mediation can fail. Parties only have a duty to act in good faith, with the intention to settle the dispute (Rule 19). This does not mean that they are bound to take responsibility for a consensual outcome. If it doesn’t work, parties have an option to walk out. Further, a mediation lasts 90 days, and can be extended further by 30 days, but it is not necessary for parties or mediator to necessary play the full 3 or 4-month duration out before concluding that it has failed.
It may not, however, be a prudent idea to not attend mediation proceedings at all – the other party or the mediator can apply to the Court for suitable directions in that situation. That can lead to unpredictable outcomes. (Rule 13)
Consequences of a failed mediation and does your behavior during the mediation impact your court case?
What are the consequences of a failed mediation? Nothing – a failed mediation just goes to court. I have seen that there is a fear about what can happen if mediation fails, since the dispute will go back to court. Note that mediation proceedings are confidential, cannot be recorded and absolutely nothing that occurred there can be used in other proceedings (including when the matter goes to court). What does this mean?
The court proceeding will not begin from where the mediation left off, but from scratch. Any statement admitted by a party in a mediation will not hold good in a court proceeding – the other other side will be asked to prove it independently. Any confidential documents supplied in the mediation cannot be used in the court proceeding.
Whether a party had accepted or not accepted a proposal in the mediation is irrelevant and any further suggestions will have to be freshly stated. Even during the mediation, there are strict rules to regulate the communication between a mediator and the court. The mediator can only communicate any information to which the parties have consented to send the court, failure of a party to attend proceedings, or about failure or success of the mediation proceedings. For example, where the proceeding fails, the mediator will simply make a note that the mediation has failed and send it to the court. (See Rules 20 and 23)
Have you participated in mediation before? What has been your experience?
Are there other issues pertaining to mediation you would like us to discuss?
The Moral Imagination: The Art and Soul of Building Peace.John Paul Lederach Oxford University Press, 200 pp. 2005. Even before reading this book, I admit to flinching at first sight...By Robert Benjamin