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Understanding the Mediator's Role

Mediation is a voluntary process in which a neutral third party (mediator) facilitates communication between disputing parties to help them reach a mutually agreeable settlement. It has proven successful in resolving disputes across several Indian cities. To become a mediator, one must undergo 40 hours of training and participate in at least 10 settled and 20 total mediations. The mediator's role is to remain impartial and help the parties communicate, identify barriers, and develop a settlement agreement. Mediation offers quick, economical, and confidential dispute resolution where the parties control the process and create their own solutions. However, mediation in India faces challenges like a lack of standardization and legislation as well as low awareness among legal professionals.

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Vanshika Sharma
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33 views4 pages

Understanding the Mediator's Role

Mediation is a voluntary process in which a neutral third party (mediator) facilitates communication between disputing parties to help them reach a mutually agreeable settlement. It has proven successful in resolving disputes across several Indian cities. To become a mediator, one must undergo 40 hours of training and participate in at least 10 settled and 20 total mediations. The mediator's role is to remain impartial and help the parties communicate, identify barriers, and develop a settlement agreement. Mediation offers quick, economical, and confidential dispute resolution where the parties control the process and create their own solutions. However, mediation in India faces challenges like a lack of standardization and legislation as well as low awareness among legal professionals.

Uploaded by

Vanshika Sharma
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

What is Mediation?

 Mediation is a voluntary, binding process in which an impartial and


neutral mediator facilitates disputing parties in reaching a settlement.
 A mediator does not impose a solution but creates a conducive
environment in which disputing parties can resolve all their disputes.
 Mediation is a tried and tested alternative method of dispute
resolution. It has proved to be a great success in the cities of Delhi,
Ranchi, Jamshedpur, Nagpur, Chandigarh and Aurangabad.
 Mediation is a structured process where a neutral person uses
specialised communication and negotiation techniques. Litigants
participating in the mediation process have unequivocally endorsed it.
 It is a settlement process whereby disputing parties arrive at mutually
acceptable agreements.
 Other than mediation there are some other dispute resolution methods such
as Arbitration, Negotiation and Conciliation.
Who can be a Mediator?
 Any person who undergoes the required 40 hours training stipulated by
the Mediation and Conciliation Project Committee of the Supreme
Court (SC) can be a mediator.
 He also needs to have at least ten mediations resulting in a settlement
and at least 20 mediations in all to be eligible to be accredited as a
qualified mediator.
What is the Role of a Mediator?
 To be Impartial And Neutral.
 Manage interaction between the parties
 Facilitate communication between the parties.
 Identify barriers to an agreement.
 Identify interests of the parties.
 Develop terms of agreement.
What is the Significance of Mediation?
 Quick And Responsive.
 Economical.
 There is no extra cost.
 Harmonious settlement.
 Creating solutions and remedies.
 Confidential and informal.
 Parties controlling the proceedings.
What are some Challenges to the Process of Mediation?
 Lack of Codification: In January 2020, the SC in MR Krishna Murthi v.
New India Assurance Co. Ltd pointed out the urgent need for enacting a
uniform legislation for mediation in India.
 Apprehension towards mediation & Lack of Awareness – Mediation has
never garnered sufficient reception among the legal fraternity.
o In order to popularise mediation as a dispute resolution mechanism,
training sessions and seminars should be conducted to familiarise
judges with the benefits of mediation.
 Infrastructural Concerns and Quality Control– Improved emphasis on
mediation will directly increase the workload on mediation centres which
lack administrative strength.
o This can lead to the languishing of cases that go against the basic tenet
of mediation i.e. fast resolution of disputes.
o To tackle this, the practice of mediation should be professionalised
in India.
 Inconsistency between existing laws on Mediation– The Supreme Court
in a case stated that the terms ‘mediation’ and ‘conciliation’ are
synonymous with each other.
o Contrastingly, the language of Section 89 of Code of Civil Procedure
(CPC), 1908 shows that the legislative intent behind the section was to
differentiate between mediation and conciliation.
o Thus, the existing ambiguity has created a lot of vagueness in the
process of mediation.
What are the Legal Provisions Related to Mediation?
 Mediation in India is primarily governed by two legislative acts viz.
the CPC 1908 and the Arbitration and Conciliation Act, 1996 (ACA).
 There are many other statutory provisions that make mediation a
compulsory prerequisite to filing a suit in court. Some of these statutes are:
o Industrial Disputes Act, 1947
o Companies Act, 2013
o Micro, Small and Medium Enterprises Development Act, 2006
o Hindu Marriage Act, 1955
o Special Marriage Act, 1954
o Real Estate (Regulation and Development) Act, 2016
o Commercial Courts Act, 2015
o Consumer Protection Act, 2019
Way Forward
 The Covid-19 pandemic has increased the prominence of mediation as a
means for dispute resolution. The plethora of cases initiated by the
pandemic warrants a swift and effective redressal and mediation can
be the perfect solution.
 However, there are a lot of challenges that restrict the effectiveness of
mediation. The existing framework of having different mediation rules
for different High Courts has further contributed to the element of
uncertainty in the mediation process.
 Thus, the most important step towards recognizing mediation as an
effective tool for resolution would be to enact a statute solely for
mediation.
o Mediation Bill, 2021 should be passed with all necessary inputs from
all the stakeholders as soon as possible.
 The statute should strive towards addressing the concerns of enforcement
and quality control.
 However, care and precaution should be taken to ensure that the legislation
does not intrude into the autonomy of the parties engaging in
mediation.
 The enactment should supplement the flexible nature of mediation and
should help in standardising the procedures involved in mediation.
 Further, attempts should be made to promote mediation by making it
a mandatory step before litigation.

Common questions

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Mediation faces challenges like lack of codification, poor reception among the legal fraternity, infrastructural concerns, and legal inconsistencies. To address these, it is crucial to pass uniform legislation like the Mediation Bill, 2021, promote professionalisation of mediation, standardize procedures, improve infrastructure, and enhance public and judicial awareness through training sessions and seminars to align mediation practice with its principles .

Different mediation rules across various High Courts introduce disparities in procedures, causing confusion and inconsistency in outcomes. This lack of standardization undermines the efficacy of mediation by creating uncertainty and may deter parties from opting for mediation due to unpredictability in procedures and results. A uniform mediation statute can resolve these issues by providing standard guidelines and increasing mediation's reliability .

Mediators in India are tasked with remaining impartial and neutral, managing interactions, facilitating communication, identifying barriers to agreement, and developing terms of agreement among disputing parties. A person must undergo 40 hours of training and participate in at least 20 mediations, with a minimum of 10 resulting in a settlement, to qualify as a mediator .

Legal provisions under the Industrial Disputes Act, 1947, Companies Act, 2013, Micro, Small and Medium Enterprises Development Act, 2006, Hindu Marriage Act, 1955, Special Marriage Act, 1954, Real Estate (Regulation and Development) Act, 2016, Commercial Courts Act, 2015, and Consumer Protection Act, 2019 make mediation a mandatory step before court litigation. These provisions aim to reduce court caseloads, encourage amicable resolutions, and provide a faster and less adversarial process to benefit the judicial system .

Mediation provides a swift and effective means of dispute resolution, which is crucial during the COVID-19 pandemic due to the backlog of cases it caused. The process is economical, responsive, and allows parties control, making it suitable when facing numerous pandemic-induced conflicts. To enhance its effectiveness, it is recommended to enact a specific statute for mediation, like the Mediation Bill, 2021, to address enforcement and quality control while preserving the autonomy of parties involved .

A dedicated mediation statute could standardize practices, reduce legal ambiguities, and provide a cohesive framework for mediation, addressing current challenges such as inconsistent rules, lack of quality control, and infrastructural inadequacies. It could enhance the legitimacy of mediation, improve public confidence, and encourage broader adoption by clearly defining roles, procedures, and expectations in the mediation process .

The lack of awareness and apprehension towards mediation within the legal fraternity creates resistance to utilising mediation, reducing its uptake and effectiveness. Legal professionals may prefer traditional litigation due to familiarity, resulting in insufficient endorsement and advocacy for mediation. This cultural inertia can be countered through targeted training and information dissemination to highlight mediation’s benefits, fostering acceptance and integration into legal processes .

The Supreme Court noted that the terms 'mediation' and 'conciliation' are often used synonymously in India. However, the legislative intent under Section 89 of the Code of Civil Procedure (CPC), 1908 was to differentiate between the two processes. This legal interpretation implies different roles and procedures, yet in practice, ambiguity persists due to overlapping terminologies, causing vagueness in their application and understanding .

Enhancing quality control at mediation centers can ensure consistent and high-standard services, preventing delays and maintaining fast dispute resolution as promised by mediation's principles. This can increase public trust and uptake, streamline processes, manage workload more effectively, and ultimately uphold mediation's reputation for efficiency and effectiveness .

Mediation has been notably successful in cities such as Delhi, Ranchi, Jamshedpur, Nagpur, Chandigarh, and Aurangabad, indicating its effectiveness and acceptance as an alternative dispute resolution method. This success demonstrates potential for its wider application across India due to its structured yet flexible process, responsiveness, cost-effectiveness, and the control it offers to parties in negotiations .

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