Mediation: A Boon to Disputants

Author: Tushti Pande, 4th Year, B.Com LL.B (H), School of Law, Jagran Lakecity University Bhopal.

Introduction

Dispute resolution is not a new term. It is familiar to each and every individual and they might have experienced the same either at a small level or at a bigger level. Dispute might arise between individuals or individual and company or company and state or between states etc. Some of them can be avoided at a smaller level and for some of the disputes we need help from third parties. It can be either court or someone else. The most used method of solving bigger issues is litigation although it is the most popular method but not the most efficient and effective method.

There are various problems associated with litigation on account of which it appears that Alternative Dispute Resolution is better option, some of them are:

  1. Lengthy and time consuming:

It is very lengthy and time consuming due to procedural steps such as sending of notices then scheduling of dates etc. In some of the cases the delay is being caused intentionally by the lawyers on demand of parties.

  • Expensive process:

Another problem and one of the major issues are that of expenses. Litigation is an expensive process as it involves court fees, lawyers’ fees which are extremely high for most of the lawyers, travelling expenses, additional charges etc. also, some extraordinary court expenses or trivial expenses.

  • Right based and not interest based approach:

Another issue with the litigation is the right based approach of the court instead of interest based approach. This approach of the court causes inconvenience sometimes. For example, there is dispute regarding alovera farm which is ancestral property and which needs to be divided between coparceners. So as per right based approach court will distribute the farm equally and as per interest-based approach one coparcener needs its pulp for making food product and other needs its peel for cosmetics so one will get pulp and other will get peel both of their interest will be secured.

  • Amount of cases:

One important problem with regard to courtroom litigation specifically in India is the huge number of cases. Out of which maximum number of cases are of such kind which can be resolved without opting the expensive and time-consuming litigation procedure.

ADR processes are neither lengthy nor expensive, it works on interest as well as right based approach and also it can come up as a helping hand to the traditional courtroom methods in this phase of increasing litigation.

Mediation

Mediation is a kind of dispute resolution process in which a neutral person who is a third party to the dispute tries to resolve the dispute and take the parties towards an amicable solution. Even the parties can represent themselves through lawyers.

But the process of mediation is still obscure, to many of the individuals in India and all over the world, due to which where they can easily, inexpensively and amicably resolve the dispute through mediation they prefer litigation, because that is the only solution which comes Infront of them and are therefore deprived of one of the important right which they can get out of mediation that is decision making, whether the party accepts the solution or not is exclusively their right.

Mediation in India is of two types:

  • Court referred mediation:

In India court refer dispute to mediation as per section 89 of Civil Procedure Code, 1908 and is often used in matrimonial cases[1].

  • Private mediation

Under this mediator is appointed by any party to help them resolve the issue and come towards an amicable solution. Mediation also helps in concealing the confidential information and therefore it is best suited for the highly sensitive disputes.

Global trends in mediation

Mediation is not only obscure in India but it is obscure in most of the countries of the world. It is obscure as people are not aware about any other alternative other than litigation to solve their dispute and this lack of awareness is one of the major reasons for mediation being an obscure process. There are many difficulties which mediation is facing such as jurisdictional issues, how to enforce it, how to implement it etc. Many global forums are coming forward to provide assistance and that to specifically for international commercial mediation. Some of the global forums include:

  • International mediation institute
  • The international chamber of commerce
  • Indian institute of arbitration and mediation

Due to this awareness regarding mediation has been increased among individuals as per WIPO (world intellectual property organization) report.

Mediators code of conduct

There are many codes of conduct which mediators follow themselves as their conduct but there are organization which are providing mediation service, they wish to have a proper and detailed code of conduct for the mediators and the objective behind the same is:

  1. Provide guiding principle for conduct of mediators.
  2. Promote confidence in mediation as a process of resolving dispute.
  3. Provide protection for members of the public who use mediators who are members of institute.[2]

Some of the important conduct of mediator are:

  1. Principle of self-determination:

Mediator shall inform the parties about the role of mediation and also inform that the decision or outcome of mediation is voluntary and non-coerced. It is completely their decision whether they wish to follow the same or not. The principles of mediation should be supported by each mediator.

  • Independence and impartiality:

A mediator shall act as a mediator during the whole mediation process and not as an advocate by being towards any party. Mediator should be independent and impartial towards his work.

  • Confidentiality:

Mediator shall inform the parties and any other person involved in the mediation process about the confidentiality of mediation and nothing shall be disclosed to a non-party except

  1. With written consent of parties
  2. Where it is required by law
  3. Where there is threat to human life
  4. Where data about mediation is for research purposes.
  5. Quality process:

Mediator should ensure the quality of the process that the entire process moves smoothly and in a good manner where confidentiality of each party is maintained by the other. Also, the mediator should behave in a professional manner throughout the mediation process and should ensure to maintain the dignity of the mediator or institute to which he belongs.

  • Advertising:

Mediator should ensure that the advertisement which he/ she is making is not a fake one and should also mention the education qualification, experience etc. clearly in the advertisement.

  • Fee and agreement:

The fee structure should be decided or should be given to parties beforehand and should not be depended on the result of the mediation.

There should be a proper agreement with regard to mediation and parties are abide by the terms and conditions of that agreement.

  • Termination or suspension of mediation:

The mediator should end the proceedings as and when he receives a written letter from either party to end the mediation

Stages in mediation process

Mediation is a third-party process where the neutral party tries to solve the dispute.  It all starts when the mediator begins the proceeding by informing the parties about the mediation process then moves on to the process of solving the dispute and finally ends where both parties agree to sign the document. The process of mediation is as follows:

  1. Mediators opening statement:

Mediator enters in any dispute through two ways that are either by the court’s referral or party’s choice. The first stage is the introductory stage where the mediator informs the parties about how the process of mediation will move. In this first stage mediator tries to gain the trust of the parties and shows them the advantages of mediation so that he can receive the cooperation of parties at further stages. The six-basic component of an opening statement are:

  1. Introduction of all the parties who are present there for mediation.
  2. Establishing trustworthiness and fair-mindedness.
  3. Explaining process of mediation and role of mediator in that process.
  4. Explaining the procedure which will govern the process.
  5. Explaining style and approach and mediation.
  6. Explaining the confidentiality of the process.
  7. Disputant’s opening statement:

After mediators’ statement the parties to the dispute will address and speak about the dispute both the parties will be given equal time and the choice of first speaking is left to the parties whoever wishes can speak first. The role of the mediator at this stage is to ensure that none of the parties lose the tamper otherwise it can lead to another issue. The mediator ensures that there is an extended cooperation between the parties. Once the party ends his address the mediator will not ask any question instead the parties will tell the main issue once this step is over for each party to the dispute and then the mediator will summarize the issues put forth by the parties to the dispute.

Mediator will then arrange the information in a systematic manner and will also take note of the same which is only for his reference and cannot be used in any formal proceedings everywhere. A mediator’s note will serve three important purpose:

  1. Identification of issues
  2. Clarification of issues for the mediator
  3. Record of movement with regard to offers and solutions
  4. Joint session:

After all the parties have presented their view the mediator will ensure that the parties to the mediation communicate with each other directly in his presence. This is the toughest phase because there are continuous accusations and counter-accusations at this stage. The primary objectives of this sessions are:

  1. To collect all information.
  2. To provide opportunity to the parties to be heard.
  3. To understand facts and issues.
  4. To understand the perspective of each party.
  5. To find out the obstacles present and possible solutions which can be arrived at.

One of the major reasons for the dispute between parties is that they fail to identify their interest and this is where the mediator’s role comes. He tries to find out the interest of each of the parties so that he can resolve the dispute as per interest-based approach.

Another important task at this stage is agenda development where:

  • issues, interest and concern of parties are listed.
  • the issues are broken into parts so that agreement can be reached upon each issue. The process of agenda development is done in neutral language.
  •  identifying common grounds to settle issues if previous framed issues are not in a direction to resolve the dispute. There can be any common ground one of that can be parties trying to keep the issue out of court.
  • identifying options for early agreement, the mediator encourages parties to generate options. Mediator will do brainstorming and reality testing of the options will be done with a view to satisfy the identified interest of the parties.
  • mediator tactics where the mediator uses his expertise and his techniques to break the deadlock and find the solution to the dispute.
  • Mediator has to face a lot of problems and has to make a lot of efforts to make parties reach the solution stage.
  • Separate sessions:

Every party prefers to talk to the mediator separately so that they can explain their situation in a better way and the mediator also gets the chance to clarify the issues where he thinks that there is some problem. Another important aspect of this separate session is to find out the best or worst alternative to a negotiated settlement. This process is actually an optional one because if the parties are comfortable to keep their point in the presence of another party then there is no need to break the session for separate communication.

  • Final talk and deal making:

This is the final communication between parties where the mediator tries to clear all the confusions and misunderstandings and give parties the expected solutions which can be there and temporary solutions too in case parties don’t agree to the main solution. If the parties are satisfied with the solution, they accept the same in case not then they move for any other conflict resolution method.

  • Closure:

This is the final stage which can end in variety of ways as follows:

  1. Parties accept the solution.
  2. Parties agree to part of the solution and for the other part they prefer any other conflict resolution method.
  3. Parties do not agree to the solution at all.
  4. Mediator finds that the issue is unethical.

If in case what was settled was not done by the party in that case the other party has the right to move to the court to make that thing being done.

Singapore declaration: its impact worldwide

The Singapore declaration also known as the United Nation Declaration on International Settlement Agreement Resulting from Mediation, this is a new treaty developed by U.N. Commission on International Trade Law. The declaration provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial dispute as per the framework of 1958 New York declaration provides for arbitral awards. The text of the declaration was finalized in June 2018 and on 7 August 2019, 46 countries signed the convention. The primary motive of the declaration is to promote mediation in cross border disputes related to commerce.[3]

  • Purpose and feature of declaration

Mediation is preferred over any other method of dispute resolution such as litigation and arbitration because it is easier, cost effective, time effective. Before the convention there was no proper framework which can ensure proper implementation of settlement agreed upon in cross border issues. It led to the development of Singapore’s declaration.

The primary goal of declaration is:

  1. Facilitate international trade
  2. Promoting mediation for cross border disputes

The declaration applies to settlement agreements resulting from mediation and not to settlement agreed upon as judgement or result of any arbitration. This is also not made applicable to personal issues, family issues or household purpose.[4]

  • Scope of declaration

The application of the Singapore Convention is limited to commercial disputes which are international and applies only where the parties to settlement are from different countries and in no case where parties are from the same country as the main objective with which the treaty was formed was to make international settlements enforceable.[5] A settlement agreement is considered as international where:

  1. At least two parties to the settlement agreement should have their place of business in different countries.
  2. The country where parties to the settlement have place of business is different from either:
  3. The country in which substantial part of settlement is performed.
  4. The country in which the subject matter of settlement is closely connected.
  5. Enforcing settlement under declaration

The Singapore Convention provides various option through which parties can make their settlement agreement enforceable:

  1. Parties can make their settlement agreement as ordered by the High court so that it can be made enforceable.
  2. To inform that this procedure is similar to enforcement of awards under International Arbitration Act.
  3. Parties having any other legal rights and remedies outside the settlement will also be preserved.
  4. Refusal to grant relief

There are various circumstances in which court can refuse to grant relief that is enforcement of settlement agreement for parties:

  1. Parties are under some incapacities.
  2. The settlement agreement is inoperative under the law to which it is subjected.
  3. The settlement agreement is the result of breach of standards by the mediator.
  4. Failure on part of the mediator to justify his impartiality and due to that there is an undue influence which lead to settlement agreement.
  5. Granting relief would be against the Singapore declaration on mediation.[6]

Conclusion

To sum up the entire essay it is a boon to the disputants which the title of the essay suggests because it focuses on the advantages which parties to dispute gets over any other medium of dispute resolution not only at individual or national level but at international level also. The recent Singapore declaration is one of the best examples of boon to disputants at international platforms. Mediation which was earlier only taken as a pre step to move towards litigation is now being adopted as the only and effective step for dispute resolution and in this way, mediation is becoming popular and also an effective step.


[1] Section 89) Settlement of Dispute Outside the Court, The Code of Civil Procedure, 1908, Act No. 5 of 1908.

[2] ADR Code of Conduct for Mediator, ADR Forum <https://adrforumlaw.com/mediation/code-of-conduct-for-mediators/> viewed at July 24, 2020, 9:50 am

[3] United Nations Convention on International Settlement Agreements Resulting from Mediation, uncitral, <https://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf> viewed at July24, 2020 10: 45 am

[4] United nation commission on international trade law, uncitral <https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements> , viewed at April 13, 2020, 11:49am

[5] Doing for Mediation What The New York Convention Has Done for Arbitration? Ashurst, <https://www.ashurst.com/en/news-and-insights/legal-updates/the-singapore-convention-on-mediation/> viewed at July 24, 2020, 11:06 am

[6] Singapore Convention on Mediation Bill Passed in the Parliament, Allenandgled Hill <https://www.allenandgledhill.com/perspectives/articles/14228/sgkh-convention-on-mediation-bill-passed-in-parliament-on-4-february-2020?agreed=cookiepolicy> viewed at April 14, 2020, 10:50 am

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