Mediation

Law Notes

Mediation is a type of assisted negotiation. During mediation, parties

obtain the help of a neutral third party (the mediator) to help them
resolve the dispute. Importantly, mediation requires a lot of
involvement from both sides.

Mediation can be informal, where the mediator is a friend, family

member, or trusted advisor. In the case of an informal mediation, it is
key to select a person who both parties can agree on and who brings
some form of expertise to bear on the situation.

The process can also be formal, where the parties hire a

professional, neutral third party. Formal mediators are trained in
negotiations and help parties solve the issue to satisfy both sides. In
either case, the purpose of a mediator is not to decide whether a
party is wrong or right—the goal is to help the parties find a mutually
acceptable resolution

Who are the mediators?

A mediator is a third person who serves as a neutral facilitator for
reaching a resolution between the parties. The mediator calls the
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 meeting to order, then the parties talk about the issue at hand and
the mediator offers suggestions for potential solutions. A mediator
ought to be impartial and objective. A solution is not offered by the
mediator. Certain terms are accepted by both parties. The role of a
mediator is limited to assisting the parties in outlining their
viewpoints, listening to their disagreements, and seeking a resolution
that meets the needs of all parties and leads to a just and practical
agreement. The decision-makers are the parties themselves.

Role of Mediator:
The primary responsibility of a mediator is to promote
communication between the parties.

[Link] a meeting between the parties: After the mediator has

been appointed, it is vital for the mediator to arrange a time that
works for both parties.

2. Review the mediation process. During the initial meeting, the

mediator asks the parties to sign a document outlining the
procedures and guidelines. He continues by outlining the course of
the mediation sessions after that.

3. He also asks the parties to briefly summarize the facts from each
side’s point of view.

[Link] then talks about the situation and tries to come up with a
workable solution for both parties.

Duties of a Mediator:
[Link] – An unbiased mediator is essential. He cannot support
a specific side. The mediator will be replaced by another if it is
determined that they are biased toward one party. The mediator
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 must also let the parties know that they are not in a conflict of
interest.

2. Confidentiality – According to the statute, all information gleaned

from the mediation processes must be kept private. If all parties have
consented in writing and in writing, the mediator has the power to
provide information about the proceedings to the court.

3. Code of Conduct: The mediator is required to abide by the law.

He shouldn’t engage in any activities that are outside the scope of
the litigation.1

BENEFITS OF THE MEDIATION PROCESS

No formal court procedures or legal precedents are followed during
mediation. The parties are not forced to agree to a decision by the
mediator. The mediator helps to retain a businesslike approach to
dispute resolution in contrast to confrontational forums. In mediation,
there are no predetermined answers. The decision to resolve a
dispute belongs with the parties themselves, and they can seek to
coming up with innovative solutions.

1. Confidentiality and privacy – The mediation conference is held in a

private location, like a conference room of one of the Arbitration
Associations. There is no public record of mediation. The secrecy of
it is upheld.

2. Time and money are saved because mediation often lasts a day.
Due to highly technical issues or the involvement of several parties,
complex problems may take longer. Mediation typically leads in
significant cost savings because it lacks the formality associated
with litigation.

[Link] – The parties are in charge of their involvement in the

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 mediation. Any time throughout the mediation, a party may elect to
end their involvement. The parties’ control over the negotiation
process is assisted by mediators.

DIS ADVANTAGES OF THE MEDIATION

PROCESS
1. Unfairness – In addition, the absence of legal norms makes it
impossible to guarantee that the parties involved will receive a
fair trial. Despite the mediator’s best efforts, a combative party
may be able to overwhelm a timid one.1. Power disparities within
a family may therefore result in unfairness in the mediation.
2. .Success is not guaranteed – Mediation may not be successful
and the parties may not reach an agreement. After squandering
a large amount of time and money in the mediation, the parties
will next have to turn to the time- and money-consuming court
system.
3. Non-binding: The settlement reached during mediation is not
legally enforceable. In the event that the settlement agreement
is invalid, the parties may potentially try to contest it.
4. Parties to a settlement may also make an effort to challenge the
terms of the settlement agreement in the event that it is not
made legally binding. They might add a new legal conflict on top
of the preexisting one by bringing a new lawsuit challenging the
validity of the settlement.

Types of Mediation:
1. Facilitative Mediation

A trained mediator tries to help the parties in disagreement negotiate

during facilitative mediation or traditional mediation. The mediator
helps parties to a dispute to achieve their own free resolution by
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 looking into each other’s core interests rather than offering
suggestions or enforcing a conclusion. In facilitative mediation, the
mediators frequently conceal their own opinions on the
disagreement.

2. Court-Mandated Mediation

Although mediation is normally seen as an entirely voluntary process,

a court that wants to encourage a quick and inexpensive settlement
may decide to impose a mandate on it. The chances of settling
through court-ordered mediation are low when parties and their
attorneys are unwilling to participate, as they might just be going
through the motions. However, settlement rates are substantially
greater when parties on both sides see the advantages of
participating in the process.

[Link] Mediation

Evaluative mediation, a style of mediation where mediators are more

likely to offer suggestions and recommendations as well as their
opinions, stands in stark contrast to facilitative mediation. Evaluative
mediators may be more likely to assist parties in evaluating the legal
merits of their arguments and making judgements of fairness rather
than concentrating largely on the underlying interests of the parties
concerned. Court-ordered mediation is where evaluative mediation is
most frequently employed, and evaluative mediators are frequently
lawyers with knowledge of the subject matter of the dispute.

4. Transformative Mediation

In transformational mediation, mediators emphasize giving

disputants the tools they need to overcome their differences and
helping them see each other’s needs and interests. Transformative
mediation has its roots in the facilitative mediation tradition and was
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 first introduced by Robert A. Baruch Bush and Joseph P. Folger in
their 1994 book The Promise of Mediation. At its most ambitious, the
process seeks to change the parties and their relationship by helping
them develop the abilities necessary to effect positive change.

5. Med-Arb

In med-arb, a hybrid mediation-arbitration process, parties first

agree on the parameters of the procedure. They typically concur in
writing that the resolution will be binding, unlike in most mediations.
Then, with the assistance of a mediator, they try to negotiate a
settlement to their conflict.

6. E-mediation

According to Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in

a chapter of the book Advancing Workplace Mediation Through
Integration of Theory and Practice, e-mediation is where parties who
are geographically separated from one another or whose conflict is
so intense they can’t stand to be in the same room receive mediation
services from a mediator.

Qualities of a Good Mediator

1) Trust: This is the most crucial quality. Success is unlikely if the
parties do not appreciate the mediator. In private conversations
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 between a side and the mediator during mediation, it’s common.
There is minimal probability of success if the party does not believe
that the Mediator will keep any information shared during such a
session confidential. Similar to that, if the parties lack confidence in
the Mediator’s ability to fairly assess their viewpoints, the mediation
will fail.

2) Patience: Parties usually enter mediation with predetermined

views that are difficult to change. A mediator needs to be patient
enough to engage with the parties to get them to an amenable place.

3) Knowledge: If the Mediator has some experience or knowledge in

the subject matter of the disagreement, the chances of success are
increased. Knowing the subject matter is not as important in
mediation as it is in arbitration because mediation does not result in a
decision by the neutral. In contrast, the parties in a complex
disagreement over software, for instance, will have more faith in a
mediator who is knowledgeable in software technology than they
would in one who is not. Additionally, the Mediator will be better able
to help the parties find unconventional solutions to their conflict
because to this skill.

4) Intelligence: A mediator must be creative and perceptive to

comprehend both the nature of the disagreement and the parties’
reasons. The Mediator can rapidly reach an agreement with the
parties by having a thorough understanding of what is significant to
each of them. Therefore, the criteria include not just knowledge of
the subject topic but also knowledge of people and their motives.

5) Impartiality: This quality and trust are strongly related. An

impartial mediator is required. Some mediators will voice their
opinions regarding a party’s viewpoint or utilize their persuasive skills
to persuade the parties to come to an agreement. Other Mediators
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 will encourage the parties to recognize the opportunity for a
settlement on their own rather than analyzing or evaluating the
merits of a dispute. The parties must be convinced that the Mediator
is impartial in both scenarios. If the Mediator is not perceived as
impartial in the first scenario, any opinions will not be taken seriously;
in the second scenario, the parties will not follow a biased leader.

6) Effective Communication: An arbitrator only needs to listen to

the evidence and make a conclusion using their legal knowledge and
good judgment. An arbitrator does not necessarily need to be able to
converse with the parties, despite the fact that these skills are quite
valuable. In order to examine and comprehend the motivations of the
parties, anticipate alternative solutions, and then bring the parties to
an agreement, a mediator needs sound judgment and effective
communication skills. This mission cannot be completed without
effective communication.

STAGES OF MEDIATION
The mediator’s opening statement is stage one. The mediator
welcomes everyone, outlines the mediation’s objectives and ground
rules, and exhorts all parties to cooperate with one another in order
to reach a resolution when the parties are seated at a table.

Second stage: the opening arguments. Each party is asked to outline

the conflict and any financial or non-financial repercussions. The
other person may not talk during the other person’s speech.

Third stage: a group discussion. Depending on how receptive the

participants are, the mediator may encourage the parties to speak
immediately to the opening statements in an effort to clarify the
issues.

Fourth stage: closed caucuses. Each side has the opportunity to

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 speak alone with the mediator at the private caucus. There will be
separate rooms for each side. The mediator will move between the
two rooms to talk about each position’s advantages and
disadvantages and to swap offers. During the allotted period, the
mediator continues the conversation as necessary. The mediation
process is built around these confidential meetings.

Fifth stage: joint bargaining. The mediator may bring the parties back
together to actively negotiate after caucuses, but this is unusual. The
parties are typically not brought back together by the mediator until
a settlement has been achieved or the mediation’s allowed time has
passed.

Stage 6 is completion. If the parties are able to come to an

agreement, the mediator will usually put its principal terms in paper
and request that both parties sign the written agreement. If the
parties are unable to come to an agreement, the mediator will assist
them in deciding whether it would be beneficial to meet again later or
conduct further phone conversations.

Conclusion:
Medication is a structured process in which the mediator assists the
disputants to reach a negotiated settlement of their differences. It is
usually a voluntary process that results in a signed agreement which
defines the future behavior of the parties. The mediator uses a
variety of skills and techniques to help the parties reach the
settlement, but is not empowered to render a decision.

Initially Mediation was confined in the areas of disputes relating to

labour, and consumer disputes and in negotiations relating to
international affairs, but it has now evolved as a formal alternative to
the traditional procedure of courtroom litigation. It is now wing
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 extensively used in matters relating to family relations like divorce,
disputes arising out of commercial proceeding and even in disputes
relating to the public disputes. Thus mediation is a growing and an
ever evolving legal mechanism. One of the most accepted reasons
for this growing popularity of mediation is the fact and a mindset of
people that the process of mediation provides a conclusion to a
dispute that is effective, satisfactory and friendly, and that the
process of mediation is less expensive than the tradition court
litigation
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