What is Mediation?
Mediation, one form of alternative dispute resolution (ADR), can be an effective way of resolving a dispute out of court. It is typically limited to civil cases, although some non-violent criminal acts (such as harassment) may be resolved through mediation. Mediation differs from arbitration but they are both alternatives to litigation. This section contains articles providing an overview of mediation, the types of cases that may be mediated, how it works with small claims, and some of its key advantages. Additionally, you can find some answers to common questions about mediation.
TYPES OF MEDIATION
- Court – Referred Mediation– It applies to cases pending in Court and which the Court would refer for mediation under Section. 89 of the Code of Civil Procedure, 1908.
- Private Mediation – In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector and also to the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.
ADVANTAGES OF MEDIATION
- The parties have control over the mediation in terms of 1) its scope (i.e., the terms of reference or issues can be limited or expanded during the course of the proceedings) and 2) its outcome (i.e., the right to decide whether to settle or not and the terms of the settlement.)
- Mediation is participative. parties get an opportunity to present their case in their own words and to directly participate in the negotiation.
- The process is voluntary and any party can opt out of it at any stage if he feels that it is not helping him. the self-determining nature of mediation ensures compliance with the settlement reached.
- The procedure is speedy, efficient and economical.
- The procedure is simple and flexible. It can be modified to suit the demands of each case. Flexible scheduling allows parties to carry on with their day-to-day activities.
- The process is conducted in an informal, cordial and conducive environment.
- Mediation is a fair process. the mediator is impartial, neutral and independent. the mediator ensures that pre-existing unequal relationships, if any, between the parties, do not affect the negotiation.
- The process is confidential.
The process facilitates better and effective communication between the parties which is crucial for a creative and meaningful negotiation.
- Mediation helps to maintain/ improve/ restore relationships between the parties.
- Mediation always takes into account the long-term and underlying interests of the parties at each stage of the dispute resolution process – in examining alternatives, in generating and evaluating options and finally, in settling the dispute with focus on the present and the future and not on the past. this provides an opportunity to the parties to comprehensively resolve all their differences.
- In mediation, the focus is on resolving the dispute in a mutually beneficial settlement.
- A mediation settlement often leads to the settling of related/connected cases between the parties.
- Mediation allows creativity in dispute resolution. parties can accept creative and non-conventional remedies which satisfy their underlying and long-term interests, even ignoring their legal entitlements or liabilities.
When the parties themselves sign the terms of the settlement, satisfying their underlying needs and interests, there will be compliance.
- Mediation promotes finality. the disputes are put to rest fully and finally, as there is no scope for any appeal or revision and further litigation.
- Refund of court fees is permitted as per rules in the case of settlement in a court-referred mediation.
TYPES OF DISPUTES FOR MEDIATION
Judges who refer the cases for settlement through any of the ADR methods are known as referral judges. The role of a Referral Judge is of great significance in court-referred mediation. All cases are not suitable for mediation. Only appropriate cases which are suitable for mediation should be referred for mediation. Success of mediation will depend on the proper selection and reference of only suitable cases by referral judges.
When do you need mediation?
Mediation can be used as an alternative to a court trial in almost all civil cases, regardless of the topic of the dispute or the details of the case. There are, however, a number of factors that make mediation more appropriate for a particular dispute. These factors include:
- A willingness of both parties to participate in mediation
- The need for the parties to find a way to to preserve their relationship
- The potential for a negotiated outcome that satisfies the needs and interests of both parties better than a judge’s decision.
What are the outcomes of mediation?
If the parties can come to an agreement on how to resolve their dispute, the mediator will record the details of the agreement and it will be signed by all parties. At this point, the case is closed and will not proceed to a court trial.
If an agreement cannot be reached, the case will then be prepared for a trial. Mediation may not have completely failed even if the case is not settled, the issues at the heart of the dispute are often clarified which may enable faster proceeding of the court trial.
There are many ways that litigation lawyer can help you resolve your dispute through mediation. A litigation lawyer will represent you during the mediation session as well as help you with a number of things that you need to consider. To get the most out of mediation, you should consider:
- Identifying the core issues and facts that are the source of the conflict
- What is important to you in the resolution of the dispute
- How best to communicate this information to the other party and the mediator
- The possible costs and benefits of a trial if mediation is unsuccessful
At Rose Lawyers, we often encourage our clients to seek mediation rather than a court trial. This is because we have your interests in mind and we know that mediation can save you the time and expense of going to court while still receiving a favourable outcome.