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CHAPTER-5
MEDIATION AND ITS VARIOUS PROCESSES
A method of non-binding dispute resolution
involving a neutral third party who tries to held
the disputing parties reach a mutually agreeable
solution.147”
5.1 Introduction :
The Adversary system of justice which we have in
India, time is also to a great extent consumed over
procedural wrangles, technicalities of law and inability on
the part of a large number of litigants to engage lawyers
who are well versed in law. The time has come to devise
new ways and strategies to find out methods for quick
disposal of cases. In that situation jurists so began urging
the need to explore the possibility of creating dispute
resolution machinery other than the court. In the situation
the need of the day is to explore the possibility of creating
a dispute resolving machinery otherwise than the court and
arbitration. Emphasis must be laid to the need of
establishing a culture of amicable solution of disputes
whether at a post-litigation or pre-litigation stage. It is
really an alternate resolution system to supplement or
supplant the present judicial system.
Of the several ADR techniques, 'mediation' seems to
be the most widely used one, it is the same dispute
resolution process as conciliation, except that in the case
147 Black‘s Law Dictionary, Edn. 7th at p. 96
136
of former the neutral third party plays a more effective role
in putting forward its own suggestions for the settlement of
the disputes Mediation as a method of dispute resolution is
no new phenomenon, rather one that has for long existed
in our traditions. In most of the cases the disputants desire
for an amicable solution. Mediation has been employed by
various tribes of our country by way of a village council,
usually consisting of certain village elders Mediation is
perhaps the fastest growing form of alternative dispute
resolution in business today. Lawyers and clients seeking
rapid, economical, and private dispute resolutions are
using medication in court-annexed and private, for fee
settings. Unlike litigation and arbitration, which consists of
a formal evidentiary hearing, mediation is a semiformal
negotiation between the parties without the use of evidence
or witnesses. While litigation and arbitration are presided
over by .a judge who renders a decision in the cases,
mediation is a facilitated by a specially trained neutral
advisor who is not empowered to decide the case, only to
assist the parties in negotiating effectively. Mediation is
also unlike litigation in that it is non-adversarial. Indeed,
the most effective mediators build a process in which
parties understand their role as active participants and
collaborate to resolve the dispute. Unlike it trial or
arbitration, mediation often results in a mutually agreeable
outcome. The essence of the mediation is its flexibility,
which enables the participants to select a process suitable
to their needs.
137
Parliament the institution of mediation has been
statutorily recognized by the when Section 89 of the Code
of Civil Procedure was amended by the amendment act of
1908, providing for resolution of disputes. In the cases
where it appears to the court that there exists an element
of settlement, which may be acceptable to the parties.
The Supreme Court in Salem Advocate Bar Association
(1) v. Union of India148 not only upheld the constitutionality
of the statute but also directed framing of appropriate
rules. The rules so framed by the Chairman, Law
Commission, Justice M. Jagannadha Rao has been
accepted by this Court in Salem Advocate Bar Association,
T.N. v. Union of India149 laying down that "The intention of
the legislature behind enacting section 89 is that. where it
appears to the Court that there exists an element of a
settlement which may be acceptable to the parties, they, at
the instance of the court, shall be made to apply their mind
so as to opt for one or the other of the four ADR methods
mentioned in the Section 89 and if the parties do not agree,
the court shall refer them to one or other of the said
modes.
Non-binding procedure in which an impartial third
party, the conciliator or mediator, assists the parties to a
dispute in reaching a mutually satisfactory and agreed
settlement of the dispute. Mediation is a process by which
disputing parties engage the assistance of a neutral third
party to act as a mediator. He is a facilitating intermediary
148 (2003) ISCC 49. 149 (2005) 6 SCC 344.
138
who has no authority to make any binding decisions, but
who uses various procedures, techniques and skills to help
the parties to resolve their dispute by negotiated agreement
without adjudication. The mediator is a facilitator who may
in some models of mediation also provide a non-binding
evaluation of the merits of the dispute if required, but who
cannot make any binding adjudicatory decisions.150
Mediation is first and foremost a process that
transcends the content of the conflict it is intended to
resolve151.The traces of mediation can be seen from very
ancient period onwards. The practice developed in Ancient
Greece which knew the non-marital mediator as a
proxenetas. In Roman civilization, Roman law, starting
from Justinian's Digest recognized mediation. The Romans
called mediators by a variety of names, including
internuncius, medium, intercessor, philantropus,
interpolator, conciliator, interlocutor, interpres, and finally
mediator. Some cultures regarded the mediator as a sacred
figure, worthy of particular respect; and the role partly
overlapped with that of traditional wise men or tribal
chief152.
Predominate traditional forms of dispute resolution
involved village sages or scholars, who were expected to
use their own knowledge of all the circumstances of the
disputes in assisting the parties to find a solution. In this
informal mediation/arbitration process, the village sage
150 Singh Awtar: Arbitration and Conciliation act, 1996 (7th Ed) 2005, p.
414.
151 Dr.Julie Macfarlane ,Rethinking disputes: the Mediation alternative, ,
Cavendish Publishing Ltd., London ,1997,p.58 152 mediation, www.wikipedia.com,
139
ideally sought to divine a satisfactory and truly moral
outcome. Most human societies have always relied upon
mediation rather than litigation as the primary means for
peacefully resolving conflict.
The traditional dispute resolution process in many
small scale village and nomadic societies is a form of
mediation, where persons in dispute are expected to sit
down with the elders and talk out the matter. Such
mediators tend to uphold community values by employing a
range of tactics ranging from persuasion to ridicule to
witchcraft to threats of ostracism. He can act as a peace-
making go-between. His only power is in his art of
persuasion, his tact and his skillful playing of human
emotions and motives.‘
Traces of mediation can be found in Indian history
also. In ancient India disputes between members of clan
were often resolved in an assembly of the members of the
clan, occupational or commercial disputes were likewise
resolved by guilds while neighboring disputes were resolved
by neighborhood assemblies or Panchayats. These
traditional forms of disputes resolution methods existed in
parallel with formal justice delivery system established
through courts.
In the Indian epic, Mahabharata, when Kaurava and
Pandava parties had determined to resolve the conflict in
battle-fields, mediation efforts were made by Lord Krishna
to resolve the conflict.
140
Marten, C.J., observed in Chanbasappa
Gurushantappa v. Baslinagayya Gokurnaya Hiremath153:
―Alternative Dispute Resolution is indeed a striking feature
of ordinary Indian life. And I would go further and say that
it prevails in all ranks of life to a much greater extent than
is the case of England. To refer matters to a ‗Panch‘ is one
of the natural ways of deciding many a disputes in India‖
The standing and the moral authority of elders is
conducive to settlement of the dispute. Panchayat system
in the village is amicable settlement of disputes by
mediation and arbitration. The moral power of the
mediation is greater than of a judge. Mediation is a friendly
settlement of disputes in Indian culture and mentality. So
mediation as an ADR mechanism is by no means a recent
phenomenon of our country.
5.2 Mediation - Meaning of :
Mediation is an informal process in which a neutral
third party without the power to decide or usually to
impose a solution helps the parties resolve a dispute or
plan a transaction. Mediation is voluntary and non-
binding, although the parties may enter into a binding
agreement as a result of mediation. It is not an
adjudicative process. It is not as if one party wins and the
other parties loses. Both the parties arrive at an equitable
solution that is why mediation is said to be a win situation.
The use of the term "mediation" is well known in
International Law. "It is the technical term in International
Law which signifies the interposition by a neutral and
153 29 Bom. L.R. p.1254
141
friendly state between two States at war or on the eve of
war with each other, of' its good offices to restore or to
preserve peace. The term is sometimes as a synonym for
intervention. But mediation differs from it in being purely a
friendly act.154 The process may have to pass through
several stages like preparation, Joint sessions, Private
meetings and final result. Practitioners in this field adopt
their own perfected styles. They differ in their basic steps.
A lot depends upon the nature of the dispute. The more
complicated a matter the more private meetings would be
necessary to pave the ground for a joint meeting.
Mediation may take the shape of a mini-trial. This is a
more formal type of mediation practice. It is generally
associated with an evaluation type of approach. Where the
dispute does not find its solution by the process of
mediation, the parties may agree that the mediator may
convert himself into an arbitrator and deliver his award.
The process is then known as mediation-cum arbitration.
5.3 Definition :
Mediation is a process in which an impartial third
party-a mediator- facilitates the resolution of a dispute by
promoting amicable agreement by the parties to the
dispute.
A mediator :- facilitates communication, promotes
understanding, assists parties to identify interests, uses
creative problem solving techniques enables parties to
reach their own agreement.
154 See P. Ramanatha Aiyar, Law Lexicon (1997 Edn), citing ENCYLOPEDIA OF ENGLAND.
142
Mediation IS
1. A structured negotiation process
2. Neutral mediator
3. Facilitate communication and negotiation
4. Assist the parties in resolving their dispute.
5 Flexible and informal process.
6 Allows creative remedies.
7 Process is economical and confidential.
5.4 Components of Mediation :
5.4.1 Impartiality
Mediator must act impartially and even-handed.
Neutrality, impartiality and independence are assets of a
mediator.
5.4.2 Mediator must avoid
a. Partiality or prejudice; and
b. Conduct that gives appearance of partiality or
prejudice.
5.4.3 Competence
Mediator should have necessary competence to do
mediation and to satisfy the reasonable expectations of the
parties.
5.4.4 Confidentiality
Confidentiality is the essence of mediation process. It
must be maintained during the mediation proceedings.
5.4.5 Quality of Process
The conduct of mediator should not be influenced by
a desire to achieve a high settlement rate.
143
A mediator must conduct the mediation proceedings
diligently and with understanding that outcome should be
due to free will of the parties.
5.4.6 Settlement
If the mediation results in a settlement between the
parties, the mediator should encourage the parties to
record the exact terms of settlement in writing.
5.4.7 Self-determination
Mediation is based on principle of self- determination
by the parties. Parties be allowed to reach a voluntary and
uncoerced agreement. Any party may withdraw from
mediation at any time.
5.5 Objectives of Mediation :
Mediation is about disputing parties appointing a
skillful third party – the mediator – to assist them in
finding a mutually acceptable solution to their differences.
Bernard S. Mayer opines that the essence of mediation lies
in four characteristics; they are impartiality, process
orientation, problem solving and client focused155. The
principal characteristics of this mediation are that it is
accessible, voluntary, confidential and facilitative156.
Objectives of mediation depend on the goals established for
mediation they are primary and secondary.
Primary objectives of mediation can be analyzed from
the definition of mediation. Definition of mediation given by
Folberg and Taylor, who explain mediation as: ‗A process
155 Bernard S Mayer, ‗Beyond Neutrality- confronting the crisis in conflict
resolution‘, Jossey – Bass publishers, Sanfransisco, 2004, P.85
156 Supra n.15,p.7( Michael Noone, Mediation essential legal skills, Cavendish Publishing Ltd., London ,1996,)
144
by which the participants, together with the assistance of a
neutral person or persons, systematically isolate disputed
issues in order to develop options, consider alternatives,
and reach a consensual settlement that will accommodate
their needs‘157.
They are
it is a decision-making process;
in which the parties are assisted by a third person,
the mediator;
who attempts to improve the process of decision-
making; and
to assist the parties to reach an outcome to which
each of them can assent.
Secondary Objectives of mediation are:- Secondary
Objectives of mediation are:-
bring clarity to the situation by identifying and
defining which matters do or do not require decisions
to be made;
overcome or reduce communication problems between
the parties so that they can more clearly perceive and
understand what each other means and feels;
Parties have autonomy and control over the outcome.
The process strengthens the parties‘ capacity to
resolve their own or developing their own agreements
without dependency on external institutions or
professionals.
157 Folberg.J and Taylor.A, ‗Mediation: A Compressive Guide to Resolving Conflicts without Litigation‘, Jossy Bass, SanFransisco 1984, p. 7 -8.
145
The process satisfies party needs, cost and time
efficiency, and the stability of business or other
interests;
It contribute to social justice by fairer apportionment
of material wealth or power, or prevention or
reparation of harms;
identify and acknowledge the various parties needs
and interests, whether substantive, procedural or
psychological;
promote constructive and efficient negotiations which
focus predominantly on the parties needs and
interests, and which broaden the search for options
and settlement alternatives;
reduce anxiety and other negative effects of the
problem situation and to be empowering for the
parties so that informed and rational decision-making
can take place;
encourage the parties to take charge of their own
decisions and to accept responsibility for the
consequences of those decisions;
Social order is enhanced through the development of
increased consensus or resolution of underlying
conflicts, rather than mere settlements of manifest
disputes;
Particular groups or communities are strengthened in
the use of mediation processes to resolve problems
themselves
146
reduce tension and improve, or at least not lead to a
deterioration in, relationships between the parties;
and
provide the parties with a model, and some skills and
techniques, for future decision-making without third
party assistance.
Mediation processes provide disputants and groups
with opportunities for personal change and growth in
social responsible ways158.
By now mediation has been recognized as a useful
tool for resolution of conflicts in general and for reduction
of pendency in courts in particular. Mediation is a process
by which the parties themselves evolve a lasting settlement
which ends their dispute once and for all. The simplest
definition of mediation is "assisted negotiation". If the
parties can be objective and wise they can negotiate among
themselves without a mediator. However, for various
reasons the process of negotiation does not always yield
result. Sometimes the parties are so torn apart that they
are unable to enter into a dialogue. Even such disputes can
be resolved by an efficient mediator. The parties with the
help of a mediator may be able to approach the same
dispute from a different stand point and may look at
different solutions. A trained mediator can help find a
solution "out of the box" in which both parties may get
much more than what could be achieved through the usual
legal process of litigation or arbitration.
158 Supra n 6 pp.6-8
147
A mediator cannot really perform hishe/her job unless
he/she trains for it and is imbibed with the qualities of a
good mediator. One has to remember that the mediator
does not hand down solutions. The solutions are evolved by
the parties. The mediator is not a Judge. He/she cannot
say "take this solution as this is in your best interest". The
mediator certainly can help the parties in soul searching so
that they really are able to see which way their interest
lies. The mediator must possess the skill to bring to the
fore the hidden agendas of the parties, their future
interests, the implication of every possible solution etc. so
that each party is able to enlarge the horizon of its vision
and take a realistic view. Although some people may have
natural traits of a mediator, it will be wrong to presume
that one can act as a mediator without proper training.
He/she needs to be skilled first to bring the parties to a
settlement mode, and then to lead the parties to see the
various possibilities of a solution.
Mediation is the process which is distinct from
litigation. The role of a mediator contrasts sharply with the
role of a lawyer or a judge. These differences require a
mediator to get special training in skills and processes
used in mediation. Not every good judge who listens for
hours is a good mediator. Not every good lawyer who
speaks for hours is a good listener. We are told of the story
how an erudite advocate declined to take the offer of
judgeship as he could speak nonsense for hours but could
not hear nonsense for five minutes! The mediator needs to
listen to the parties and although is not supposed to hand
148
down a solution himself/herself, has to ensure that the
parties do evolve a solution. Judges and advocates are
mostly using their legal learning and are quick to see their
solutions, particularly legal solutions. They can quickly
identify the points and counter points favouring or harming
the two parties. But the mediator needs another kind of
skill: the ability to work towards a win-win solution for
both parties. Every Judge in a matrimonial case is required
to attempt a reconciliation between the parties. Some
Judges, while making such efforts, find themselves
scolding one party or the other or simply advising them to
forgive and forget. If the Judge of mediation, he/she would
handle things in a manner which can diagnose the true
ailment and offer appropriate remedies.
In Court the lawyer tries to argue hishe/her points
over and over again waiting for a nod from the Judge
indicating acceptance of the arguments. The Judge, on the
other hand, tries to cut the lawyer short and arrives at a
decision as soon as possible. The mediator is specially
trained to not only allow the parties to speak but to extract
as much information as possible from each party.
The mediator does not have the authority of a Judge.
Nor should he/she be perceived to be a person in that
authority. Yet the mediator has to have control over the
process. He/she has to develop the skill to handle
acrimonious situations and see that the parties maintain
the ground rules, the discipline, so to say, of allowing the
process without being aggressive, insulting or dominating.
He/she has to know how to bring back order if one of the
149
two parties, wittingly or unwittingly, threatens to disrupt
the process. Although the outcome rests with the parties,
the mediator is in control over the process.
The Mediator has to know how to handle emotional
outbursts including anger and grief. This does not mean
he/she can snub the man who is angry or the one who is
crying. He/she has to be trained to deal with such parties
with full empathy respecting their emotions and yet helping
them to compose themselves. In fact, emotions like anger
and grief are at times important factors constituting the
grievance and offering solutions. One dispute between two
brothers over ancestral property hinged on one brother
offering apologies to the other for in the core of the dispute
was the injured feelings of the other brother. In the court
the partition suit appears simple for the suit property may
be immediately divided by metes and bounds but
permanent peace lies in uniting the hearts.
A mediator has hishe/her own rules of ethics,
neutrality and confidentiality being two very important
ones. The training in mediation includes a complete
discussion on the various ethical issues which arise during
and after the mediation process.
The best mediator is endowed with experience of life.
He/she should have experience of different cultures and
the life styles of people in different strata of socio-economic
classes. The values and customs followed by one
community may be different from the value and customs of
another community. Even in trade and commerce the
practices differ from market to market. There are unwritten
150
rules which are adhered to more strictly than the laws in
the books. A mediator will do well to apprise
himself/herself of such cultural backgrounds which
influences the behaviour as well as expectation of people in
different cultural groups.
The mediator has to know the law relevant to the
dispute which he/she is handling. It is true that the
solution in a mediation has to evolve from the parties. But
the mediator is duty bound to see that a solution evolved is
legal as well as moral. The settlement has to be reduced to
writing. The terms of the settlement should be enforceable
in law. Drafting of a settlement needs acumen of another
kind. Therefore, training in mediation has also to include
training in drafting of settlements.
Is it very easy to be a mediator? The answer cannot
immediately be "yes". It is said knowledge can be imparted
but wisdom cannot be. A mediator has to imbibe all the
good qualities of a wise old man as well as the romanticism
of a youthful dreamer. Is it very difficult to be a good
mediator? The answer certainly is "no". Experience is the
best teacher. If a sincere endeavour is added to the
experience and training there is no reason why any good
lawyer cannot transform into a good mediator.
5.6 Participants in Mediation Process :
The philosophy underlying mediation requires it to be
a broadly participatory and informal process that is not
governed by arbitrary rules imposing privity of involvement.
The central characters in any mediation are
the disputing parties,
151
their legal representatives and
the mediator.
5.6.1 The disputing parties
For mediation to succeed the parties must negotiate.
Therefore, the primary role of the parties is to attend the
mediation session with a willingness to negotiate with each
other in good faith. In this respect, a positive attitude
towards cooperation and problem solving are much more
important than the actual communication and negotiation
skills possessed by each party. The mediator can always
assist parties who do not have skills and expertise in
negotiation, but a genuine motivation to enter the
collaborative problem-solving task of mediation, and a
commitment to stay with it to the end, can only come from
the parties themselves159.
5.6.2 Legal representatives of parties
The lawyers are present only to advise their clients.
Where mediation takes place in disputes which are already
in litigation, or in cases involving large sums of money,
substantial property damage, or other vital interests
affecting them, then the parties will quite reasonably wish
to have their solicitor and sometimes also a barrister by
their side throughout the mediation. Such cases as these
are obviously mediated in the shadow of the law. Parties
should be encouraged to make their own opening rather
than leave this task to their legal representatives. If legal
representatives do make the opening statement, then the
159 Supra n.15,p.33( Michael Noone, Mediation essential legal skills, Cavendish Publishing Ltd., London ,1996,)
152
party should always be asked to supplement it in their own
words.
It is always seen that the mediation succeeds only
when parties personally present instead of their legal
representatives. Where a party has communication or
language problems, the legal representative fulfils the
traditional lawyer‘s role of being the party‘s mouthpiece. At
the outset, the legal representatives must be made aware
by the mediator of their helping and consultative role in
mediation.
5.6.3 The Mediator
Mediator is a person who has been permitted by the
parties to intervene in the dispute arena solely for the
purpose of assisting and empowering them to achieve their
own lasting settlements. The mediator establishes a
framework, or favourable climate, for co-operation between
the parties.
The selection of mediator is done by parties or by the
relevant authority. The first and foremost condition is that
the parties must have confidence in the mediator in order
to place trust in the mediator. The selection of the mediator
can be based on both objective and subjective matters.
Among the objective factors are
a) Mediation training
b) Mediation experience
c) expertise in the subject matter of the dispute
d) membership of the professional organization
e) accountability to mediation standards and ethics
Among the subjective criteria are
153
a) standing in the community
b) reputation as a mediator or professional
c) personal style and
d) Credibility of parties and
e) their legal representatives
A mediator is employed by the disputing parties not to
judge the rights and wrongs of the disputes but to act as a
catalyst for better communication and problem solving.
Some of the desirable natural qualities for becoming a
successful mediator are
To have a quick mind capable of picking up on clues
about the real dynamics between disputants and for
teasing out hidden agendas;
Mediators to posses some intuition. They should be
aware of the feelings of parties and the success of
mediation
To possess much patience and real interests in the
problems of the others; and commitment to the
mediation;
A mediator must know when to be self- effacing and
quietly draw back from the centre stage.160
Analyze and assess conflict situations in order to
develop the most appropriate forms of intervention.
By diagnosing the central causes of the conflict,
mediators can determine their choices of tactics and assist
the parties to take appropriate action. They are in a unique
position to impose pressure on the parties with the object
of pushing them into a settlement.
160 Ibid p.37
154
5.7 Functions of the Participants :
5.7.1 Functions of parties
The functions of the parties will vary according to the
voluntariness of the process, parties‘ motivations and
skills, the role of legal advisers, the model of mediation, the
style of mediator and the culture in which the mediation
takes place. Legal requirements may also affect their roles.
In New South Wales the Law Society has published a guide
to the rights and responsibilities of participants to give a
format regarding the functions of the parties161.
Parties should prepare for a meditation in the same
way in which they would prepare for a negotiation. This
will involve consideration of matters of process, substance
and organization: time, venue, gathering of information,
legal research, reading and preparation of documents,
identifying and prioritizing of interests, instructing of
professional advisers, determination of bottom lines and
existence of authority to settle, and assessment of
alternatives to negotiated agreements. Whether parties
enter mediation of their own volition or because legislation
obligates them to do so, they prepare for mediation in
much the same way they would for negotiations, save that
the mediator may supervise and facilitate their
preparation.
The parties are required to consent to an agreement to
mediate before preparatory activities commence.
Consenting to the agreement implies a good faith
commitment to the mediation process, acceptance of the
161 Mediation, www.wikipedia.com
155
mediator‘s role and functions, and ordinarily also an
intention to settle the dispute through mediation.
The objectives of mediation, and its emphasis on
consensual outcomes, imply a direct input from the parties
themselves. There is ordinarily an expectation that the
parties will themselves be present at and participate in the
mediation meeting and some mediation rules require a
party, if a natural person, to attend in person.
Participation in good faith entails making an honest
attempt at resolving the dispute and abiding by the
mediation guidelines. The process assesses party
participation in overall terms, so a party failing to
participate in the initial stages may make up for this later
in the process.
Most agreements to mediate, mediation rules, and
court-based referral orders oblige the parties to make full
disclosure of relevant information and documentation to
each other. Mediators may have express or implied powers
to direct them to produce documents, reports and other
material. Mediators also require parties to provide position
statements, valuation reports and risk assessment
analysis. In court referred mediations parties usually
exchange with each other all materials which would be
available through discovery or disclosure rules were the
matter to proceed to hearing. This would include witness
statements, valuations and statement accounts.
156
5.7.2 Functions of legal representatives
The lawyer explain the fundamental characteristics of
mediation to his clients, for instance, its without prejudice
nature, whilst warning that each party will know more
about other‘s interests, aims and motivations as a result of
the mediation. Lawyers have to advise clients on whether
and how to initiate or accept proposals for mediation.
Once the parties have agreed to attempt mediation,
the lawyer‘s initial role will be to agree on the appointment
of the mediator and the costs, together with the range of
administrative issues, such as agreeing a date and venue
for the mediation. The lawyer will then consider the terms
of the mediation agreement, and ensure that those terms
are appropriate.
Lawyers who attend mediation meetings act
throughout as advisers and consultants. They may have a
direct role in the negotiation stages of the mediation, to the
extent that they are surrogate negotiators. An important
function for lawyers is to provide legal advice. Lawyers can
be present but have the limited role of only speaking with
their client when advice is sought;
The involvement of a lawyer in mediation is
particularly important during the latter stages of the
mediation, in order to consider whether, and to what
extent, any legal constraints pertain to any settlement
proposed ; Whether the agreement is legally and
commercially viable; Whether the agreement will otherwise
be durable; and whether the proposed settlement will
reduce the likelihood of future disputes etc.
157
Lawyers may be involved even after the mediation is
concluded. This is to convert heads of agreement into a
detailed contract or make use of a cooling-off period to
advice clients before the agreement becomes operative.162
5.7.3 Functions of mediator
There are at least 3 aspects to this function: they are
physical, emotional and procedural.
a) Physical: The mediator takes the initiative in
conceiving a physical meeting of the parties and
provides an appropriate physical environment. This is
through selection of neutral venues, appropriate
seating arrangements, visual aids and security.
b) Procedural: The second dimension of the framework for
co-operation is a structural and procedural one.
Mediator provides a procedural framework. This is
through conduct of the various stages of mediation
process. They can establish basic ground rules,
provide order, sequence and continuity. The mediator‘s
opening statement provides an opportunity to establish
a structural framework, including the mediation
guidelines on which the process will be based.
c) Emotional: The mediator also creates an emotional
climate which is conducive to co-operative decision-
making. This is a more subtle function and varies
among mediations and mediators. They can improve
the emotional environment through restricting
pressure, aggression and intimidation in the
162 Supra n.6,pp.177-184
158
conference room by providing a sense of neutrality and
by reducing anxiety among parties.
Mediators must supervise the gathering of information
and subject to requirements of confidentiality, manage the
exchange of information between the parties. One of the
functions of mediators is to go beyond the parties
presenting problems and assist them to articulate their
underlying needs. He has to assist the parties to achieve
clarity on what is and what is not in dispute, and thereby
define the conflict.
Mediators have the function of opening up the
channels of communication and assisting the parties to
hear and understand each other. People in conflict tend not
to communicate effectively and poor communication can
cause disputes to occur or escalate. For mediators to
encourage communication efficiently, they themselves must
be good communicators and practice good speaking and
listening skills, pay attention to non-verbal messages and
other signals emanating from the context of the mediation.
The parties may adopt different approaches to
negotiation between them and in all cases mediators can
contribute towards making it more constructive and
efficient. Mediators educate the parties about the
procedures which will be followed at the mediation
meeting, and inspect them specifically on unusual features
such as the separate meeting, and other objectives,
logistics and duration. He assist the parties to understand
their situations, to communicate effectively, to negotiate
159
assertively, to make decisions confidently, and to fell
satisfied with the mediation process and its outcome.
Mediators facilitates the parties' negotiations.
Mediators can contribute expertise and experience in all
models and styles of negotiation so that the parties are
able to negotiate more constructively, efficiently and
productively. This function is prominent after the problem-
defining stages of mediation and involves mediators
bringing direction and finesse to the negotiation efforts of
the parties. Mediators can also act as catalysts for creative
problem solving, for example by brainstorming or referring
to settlement options generated in analogous mediation
experiences. Mediator doesn‘t determine the outcome of
dispute, he just settle the dispute on terms which both
parties are prepared to adopt163
Where parties in disputes are distrustful of each other,
they still are prepared to take risks with a third party on
whom they feel they can rely. This trust can be used by the
mediator in carrying out other functions.
Trust must be first developed in the preparatory stages
and must be preserved throughout the mediation process.
It can be acquired and enhanced in a variety of ways:
through showing concern and respect;
through affirming the mediator‘s experience and
credentials;
by explaining and validating the mediation process;
163 Russel Caller, ‗ADR and commercial disputes‘, Sweet & Maxwell Publishing Co., London, 2002,P.192
160
through good listening skills and understanding of the
parties;
through sound interpersonal skills, impartiality and
even-handed conduct of the process; and
through empathy and bonding during the separate
meetings.
Where the mediation has produced a settlement,
mediators formally terminate the process. There are
also situations in which the mediation is terminated
before it has run its course. one or both parties are in
persistent breach of mediation guidelines or refused
to co-operate in the process;
it is apparent that one or both parties are no longer
committed to mediation and are only using it for
ulterior purposes;
a hidden agenda surfaces which has negative
ramifications for any agreement, for example where
one party discloses that they will leave the country in
the near future;
one or both parties are incapable of negotiating or
communicating effectively or are otherwise inhibited
from making decisions;
there is extreme antagonism towards, and a loss of
trust in, the mediator;
there is evidence of danger to life or property or that a
child is suffering or is likely to suffer harm or the
agreement which the parties want to conclude in
some respects;
161
the threat of physical violence or some other form of
power imbalance precludes free consent to a
settlement arrangement;
the relationship between the parties is so destructive
that no meaningful negotiation can take place; and
it is clearly apparent that the agreement is impossible on of
the issues in dispute.
In the performance of their overall roles, mediators can
undertake the functions of:
developing trust and confidence;
establishing a framework for co-operative decision-
making;
analyzing the conflict and designing appropriate
interventions;
promoting constructive communication;
facilitating negotiation and problem-solving;
educating the parties;
empowering the parties;
imposing pressure to settle;
promoting reality;
advising and evaluating;
terminating the mediation.
5.8 Kinds of Mediation :
There are 4 kinds of Mediation:
5.8.1 The Settlement Mediation
The settlement mediation is also known as
compromise mediation. Here mediator assists the parties to
settle the problem and here he takes a nominal role only
because parties themselves know their actual problem and
162
mediator only solves the selected problem. Main objective
of this is to encourage incremental bargaining towards
compromise, at a ‗central‘ point between the parties
positional demand. Types of mediators include high status
mediators for instance lawyer, manager etc. No necessary
expertise in the process is needed for mediator but skills
and techniques of mediation are needed. In the compromise
mediation model, the mediator actively seeks to establish
each side‘s ‗bottom line‘ at the beginning of the session and
then encourages incremental bargaining towards a
mutually acceptable compromise figure.164 Strengths of this
mediation are parties can understand their position clearly.
This type is culturally accepted which is not difficult to do;
only little preparation is needed for mediator and the
parties‘. It overlooks parties needs and interests. This
process can be manipulated through initial exaggerated
claims. Other characteristics of this mediation model are
limited procedural intervention by mediator and positional
bargaining done by the parties. This model is usually found
in the context of large commercial and industrial conflicts
and personal injury disputes. Unlike the facilitative model,
which seeks to avoid the parties taking up positions
underlying too early and concentrates on their underlying
needs and interests, this model bases itself squarely upon
each party‘s apparent legal entitlements and prev iously
defined positional demands.
164 Supra n.15,p.8,9
163
5.8.2 The Facilitative Mediation
It is also called interest-based, problem solving
mediation. Here mediator‘s role is higher compared to
settlement mediation. In this type of mediation even the
parties may not know their actual problems but only know
that there exists underlying difference of opinions. Here
mediator has to identify the problems, conflict of interest
among the parties and tries to solve them.
This model is to avoid positions and negotiate in
terms of parties underlying needs and interests instead of
their strict legal entitlements. Mediator‘s main role is in
terms of parties‘ underlying interests substantive,
procedural and psychological. Characteristics of this model
lie in the expertise in mediation process and techniques; no
necessary knowledge of the subject matter of dispute is
needed. Strengths of conduct of this process include
maintaining a constructive dialogue between the parties
and enhance negotiation process. Shortcomings consists of
low intervention role for mediator, parties are encouraged
fashioning creative outcomes around mutual interests.
Process is controlled by the parties and may not reach an
outcome. Areas of Application include in the field of
community, family, environmental, partnership disputes
5.8.3 The Therapeutic Mediation
Therapeutic mediation is also named as
reconciliation, transformative mediation. Mediator
psychologically approaches the parties. Parties may not be
willing to reveal their problems. So mediator approaches as
164
a psychologist and tries to identify the issues from the
facts.
In exploring the transformative potential of mediation,
the authors contrast their perspectives on the practice of
mediation with the more traditional problem-solving
approach. They believe empowerment and recognition
among participants should be the primary goals of the
mediation process. It is argued that these effects are more
valuable in the long-term than the immediate settlement of
a dispute165
Main objectives of this model are to deal with
underlying causes of the parties problem, with a view to
improving their relationship as a basis for the resolution of
the dispute. In this model, dispute can be defined in terms
of behavioral, emotional and relationship factors. Mediators
are experts in counseling or social work with
understanding of psychological causes of conflict.
Mediator‘s main role is to use professional therapeutic
techniques before or during mediation and to diagnose and
treat relationship problems.
Other characteristic of this type of mediation is that
the decision making is postponed until relationship issues
have been dealt with. Shortcomings of this mediation are
that the process could be prolonged and terminated
without any agreement. It tends also confuse the proper
role of the mediator with that of the social worker and
counsellor. This model is most often applied to domestic
165 Bush, Robert A. Baruch and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. San Francisco: Jossey-Bass, September 1, 1994
165
disputes whether between spouses or between parents and
their children and in continuing relationship disputes. It is
usually offered by psychologists and counseling services
and tends to define disputes mainly in terms of behavioral
and motional factors, and relationship issues. The
underlying objective of the therapeutic model of mediation
is to improve the relationships of parties ideally to the
point of a complete reconciliation. This form of mediation
relies upon the use of therapeutic, psychological and
counseling techniques tan orthodox mediation skills and
strategies.
5.8.4 The Evaluative Mediation
Evaluative mediation can also be titled as advisory,
managerial mediation. Here parties themselves have
identified their problems and tried to solve it. Mediator is
only looking into the different solutions that have been
reached by the parties or advice the parties. Since this
mediation focuses on rights rather than interests, this
model is also sometimes described as ‗non-binding
arbitration‘. Main objectives are to reach a settlement
according to the legal rights and entitlements of the parties
within the anticipated range of court outcomes. In terms of
legal rights and duties, industrial standards or community
norms disputes can be defined. Mediators are experts in
substantive areas of dispute. There are no necessary
qualifications in mediation techniques. The mediator
usually offers explicit expert advice in courts of the
mediation and often actively participates in the
negotiations. He also provides additional information,
166
advice and persuades the parties to reach at a settlement
and bring professional expertise to bear on content of
negotiations. Other characteristics of this model are high
intervention by mediator and less party control over
outcome. Strengths of this mediation are that the
mediator‘s substantive expertise is used to settle the
dispute. Areas of application include commercial, personal
injury, trade practices, anti discrimination and
matrimonial property disputes. It is mostly requested by
business and financial disputant. It is characteristically a
highly interventionist process in which a ‗mediator‘ is
employed who is a respected high profile expert in the field,
such as a specialist commercial lawyer or manager.
So different styles of mediation exist: evaluative,
facilitative, therapeutic and settlement. Evaluative
mediation has somewhat of an advisory role in that its
practitioners evaluate the strengths and weaknesses of
each side's argument should they go to court; whereas
facilitative mediators and transformative mediators do not
do this. Furthermore, the definitions of mediation used by
the different styles of mediation differ in that evaluative
mediation has the main drive and goal of settlement, while
transformative mediation, in contrast, looks at conflict as a
crisis in communication and seeks to help resolve the
conflict, thereby allowing people to feel empowered in
themselves and better about each other. The agreement
that arises from this type of mediation occurs as a natural
outcome of the resolution of conflict.
167
5.9 Stages in Which Mediation can be Preferred :
Mediation is essentially principled negotiation with
the third party, the mediator. The impartial mediator work
with the parties to identify their underlying interests and
the issues in dispute, in order that the parties may develop
options and hopefully resolve their differences in a
mutually satisfying way166.There are different stages at
which the parties can decide to have mediation. Now we
can deal with the different stages in which mediation can
be preferred to litigation.
The pre-action stage. This is when a dispute initially
arises. Here the parties only recognized chances of
disputes. In this stage parties can resort to mediation.
Secondly mediation can occur at initial proceedings.
Here parties met a lawyer, discussed the dispute and
issuing a notice to the other party concerning the
dispute. But the parties have not yet come before any
court of law.
Mediation at interlocutory proceeding. This act as an
adjunct procedure to pending litigation. That is, as
soon as the parties file a law suit, they can use
mediation in effort to resolve the dispute at the
inception of litigation or at any time thereafter but
prior to a trial being held.
Mediation at the trial stage. Here mediation can occur
during or immediately after a trial but before a
decision is pronounced by the court.
166 Ross Hyams, Susan Camphell, Adrain Evans, ‗Practical Legal Skills, Oxford University Press‘, Australia, 1998, p. 120
168
Fifthly mediation can occur after a judgement has
been rendered in litigation.
Sixthly mediation at appeal stage. There might be a
disagreement over the meaning or manner of carrying
out a judgement or concern about the possibility of
lengthy court appeals. The parties can seek the
assistance of a mediator to help them resolve these
problems. Here one party will always be in an
advantageous position than the other.
Seventhly mediation can be preferred at the
enforcement stage also.
These are the different stages in which mediation can
be preferred to litigation.
5.10 Mediation and Other ADRs :
The development of mediation in many societies of the
late twentieth century is part of a broader trend affecting
law and order disciplines. This trend is reflected in the
ADR movement which has involved an investigation and
evaluation of alternative methods of dispute resolution to
those provided by the courts. Developments in ADR have
been influenced by reactions against litigations and the
demand for additional process which are quicker, cheaper
and otherwise more appropriate. They have been inspired
by social philosophies which purpose dispute management
processes which are participatory, responsive and
concerned with preserving relationship among those
involved. Mediation is not the only outcome of this recent
phenomenon and its appropriateness must be evaluated in
relation to that of other dispute resolution system
169
The movement and concern for alternatives to the
court‘s as well as alternatives in the courts are related to a
desire to move the justice closer to the people and their
problems, needs, perceptions and understandings.167
Mediation is the one process in a range of other available
alternative dispute resolution processes. It is therefore
appropriate to briefly compare the other main
contemporary paths to settlement- negotiation,
conciliation, arbitration and adjudication- with mediation.
5.10.1 Mediation and Negotiation
Mediation itself can be described as a facilitated
negotiation, where the disputing parties agree to appoint a
neutral, third party mediator to assist them in seeking and
they hope achieving a mutually acceptable solution to their
dispute.
The nature of the conflict and the relationship
between the parties, whether domestic, neighborhood,
commercial, industrial or whatever usually determines the
nature of the initial negotiations. In most instances, the
parties themselves first try to resolve the matter through
their own private informal discussions. If this fails, then
each side may engage legal advisers or other professionals
and the style of negotiation often then quickly shifts
towards the more position-based adversarial end of the
negotiation spectrum.
Where negotiation takes place between the parties
alone it can be referred to as unassisted negotiation. In
some situation experts, lawyers, or specialist negotiators
167 Ibid, P.30
170
also participate in the process as partisan advices and
resource persons for the respective parties; this can be
termed supported negotiation. In other situations outsiders
are involved, not in a partisan capacity but so as to
facilitate the negotiations, which can be referred to as
assisted negotiation. Mediation is the main form of assisted
negotiation.
The difference between mediation and unassisted
negotiation is found in the involvement of an additional
person, the mediator, who is not an immediate party to the
dispute. Whether the mediator has been invited by the
parties to intervene or has been appointed by an authority,
his or her role is essentially to assist, as opposed to
support, the disputants in their negotiations. Critics of
mediation query the extent to which the involvement of a
3rd party without decision making powers makes mediation
any different to unassisted negotiations.
Negotiation has no standard structure; all forms of
mediation provide some kind of structural framework for
the negotiation process. Meditation adds formality to
negotiation in the form of some degree of process and
control provided by the mediator.
Although negotiations, whether assisted or
unassisted, resolve most disputes, the settlements
achieved may not be fair to all the parties. This adversarial
style of negotiation has been aptly described as ‗zero sum‘,
that is, if the negotiations do achieve settlement, they
result in the total winnings for one party minus the total
losses of the other party equaling the figure zero. In
171
contrast, mediation stresses the avoidance of a ‗winner
takes all‘ mentality, and promotes the advantage to both
sides of abandoning adversarial positions in the search for
creative, collaborative solutions.
One of the main advantages of mediation over
negotiation is that the presence of a neutral mediator helps
redress inequalities and offers a degree of protection to the
weaker party. The mediator is in a position to control and
moderate the negotiations and reduce the opportunity and
temptation on the part to indulge in opportunistic
behaviour to the detriment of the weaker party. Unassisted,
confrontational negotiations often run into deadlock when
defensive positions on each side are not breached by the
other side‘s bluffs or intimidatory tactics. Both sides reach
the end of the line.168
In the facilitative model of mediation there are a
number of qualitative changes which mediators can bring
to negotiations. The mediator can assist in the
establishment and maintenance of negotiation guidelines,
in providing structure and momentum, in improving the
communication process, in imparting problem solving
techniques to parties and in confronting the parties with
the consequences of non-settlement. The mediation process
and mediator techniques tend to moderate extreme
behaviour, to facilitate creative option generation and to
promote more efficient and productive problem solving than
168 Michael Noone , Mediation essential legal skills, Cavendish Publishing Ltd.,London ,1996, p.12
172
is the case in unassisted negotiation. In these ways
mediation differs qualitative from other negotiations.
Lawyers in a negotiation may fulfill some of the
function of a mediator or a conciliator in that they bring a
more objective view to what a possible. In both negotiation
within the litigation context and in mediation the parties
are seeking an agreement which is acceptable to both
parties and may do so by using objective criteria or a
fairness standard. The real differences between the two are
the control by the parties over the standard used to gauge
the settlement and how the lawyer uses the court‘s
assessment of the merit of the case.169
In the facilitative model of mediation there are a
number of qualitative changes which mediators can bring
to negotiations. The mediator can assist in the
establishment and maintenance of negotiation guidelines,
in providing structure and momentum, in improving the
communication process, in imparting problem solving
techniques to parties and in confronting the parties with
the consequences of non-settlement. The mediation process
and mediator techniques tend to moderate extreme
behaviour, to facilitate creative option generation and to
promote more efficient and productive problem solving than
is the case in unassisted negotiation. In these ways
mediation differs qualitative from other negotiations.
169 Inns of Court School of Law, Negotiation , Blackstone Press Limited,London,1996, p. 150
173
5.10.2 Mediation and Conciliation
The Black‘s Law Dictionary defines, ―Conciliation as
the adjustment and settlement of a dispute in a friendly,
unantagonistic manner. The definition of ‗Conciliation‘
formulated by the International Labour Organization in
1983, has been followed by Advisory, Conciliation and
Arbitration Service (ACAS), in the following words:
‗… the practice by which the services of a
neutral 3rd party are used in a dispute as a
means of helping the disputing parties to
reduce the extent of their differences and to
arrive at an amicable settlement of agreed
solution. It is a process of orderly or
rational discussion under the guidance of
the conciliator.
The term ‗conciliation‘ was used more widely, while of
late the term ‗mediation‘ has become more fashionable.
Both the terms are by and large used interchangeably,
based on the degree of initiative taken by the third neutral
party.
The term mediation is tended to be used
interchangeably with the term conciliation, but there are
some differences between the two. Conciliation is a wider
concept compared to mediation. In conciliation, conciliator
has a wider role to look in to the merits of the case,
investigate the problem, suggest the parties to settle their
disputes in different ways etc. Mediation is used where the
neutral is more facilitative whereas in conciliation
conciliator is more proactive. In the next place, conciliation
174
is governed by Act or Statutes (The Arbitration and
Conciliation Act, 1996) but this is not the case with
mediation.
Apart from these differences, the purpose of mediation
and conciliation are almost alike. Common lawyers tend to
speak of mediation while civil lawyers speak of
conciliation170. Conciliation is a form of assisted
negotiation between two or more parties in which an
additional person, the conciliator, intervenes in various
ways with the object of facilitating a settlement between
the parties. Conciliation is provided by public agencies and
does not often take place in private domain. It is therefore
an institutionalized dispute resolution system, and doesn‘t
have mediation‘s alternative character.
Conciliation takes places in a statutory context which
provides legal rules and standards. Conciliators are obliged
to advocate these rules and standards, and therefore they
are. Less neutral than mediator‘s in some form of
mediation. As the shadow of law is strong in conciliation,
there are limitations on the kinds of settlement to which
the parties can agree.
Conciliation is some times obligatory for both the
parties and there are sanctions for non - participation in
the process; it is less voluntary than mediation.
Conciliators have more interventionist roles than
mediators. They can intervene more actively on matters of
content by referring to possible options, recommending
170 Alen Red Fern and Martin Hinter, ‗Law and Practice of International Commercial Arbitration‘, 3rd ed., P.33
175
various solutions, otherwise influencing the parties and
affecting the outcome. Conciliation is often used as a
synonym for mediation. "Conciliation" sometimes serves as
an umbrella-term that covers all mediation and facilitative
and advisory dispute-resolution processes. Neither process
determines an outcome, and both share many similarities.
For example, both processes involve a neutral third-party
who has no enforcing powers.
One significant difference between conciliation and
mediation lies in the fact that conciliators possess expert
knowledge of the domain in which they conciliate. The
conciliator can make suggestions for settlement terms and
can give advice on the subject-matter. Conciliators may
also use their role to actively encourage the parties to come
to a resolution. In certain types of dispute the conciliator
has a duty to provide legal information. This helps any
agreement reached to comply with any relevant statutory
framework pertaining to the dispute. Therefore conciliation
may include an advisory aspect.
Unlike Conciliation where there are usually no
suggestions of specific terms of settlement the mediator
usually puts forward recommendations to settle the
dispute.171
Mediation works purely facilitatively: the practitioner
has no advisory role. Instead, a mediator seeks to help
parties to develop a shared understanding of the conflict
171 Franscisco Orrego Vicuna, International Dispute Settlement in an
Evolving Global Society, Cambridge University Press, U.K., 1st edn., 2001 P. 98-124(mediation)at p.107
176
and to work toward building a practical and lasting
resolutions.
Both mediation and conciliation serve to identify the
disputed issues and to generate options that help
disputants reach a mutually-satisfactory resolution. They
both offer relatively flexible processes; and any settlement
reached should have the agreement of all parties. This
contrasts with litigation, which normally settles the dispute
in favour of the party with the strongest legal argument.
In-between the two operates collaborative law, which uses
a facilitative process where each party has counsel.
5.10.3 Mediation and Arbitration
Mediation has sometimes been utilized to good effect
when coupled with arbitration, particularly binding
arbitration, in a process called 'mediation/arbitration'.
Med-Arab is an abbreviation of mediation and arbitration, a
process for resolving typically a commercial dispute by
mediation, but in the case of failure of mediation to achieve
a resolution, the process proceeds to arbitration172 In this
process, if parties are unable to reach resolution through
mediation, the mediator becomes an arbitrator, shifting the
mediation process into an arbitral one, seeking additional
evidence as needed (particularly from witnesses, if any,
since witnesses are normally not called upon by a
mediator), and finally rendering an arbitral decision.
Mediation differs from arbitration in that the role of
the neutral 3rd party in arbitration is to consider the issues
172 Laurence Bouelle and Miryana Nesic, Mediation principles process and practice, Butterworths, London, 2001,p.90
177
and then to make a decision which determines the issues
and is binding on the parties. The neutral 3 rd party in
mediation does not have any authority to make any
decision for the parties173
Mediation/arbitration hybrids can pose significant
ethical and process problems for mediators. Many of the
options and successes of mediation relate to the mediator's
unique role as someone who wields coercive power over
neither the parties nor the outcome. If parties in a
mediation are aware the mediator might later need to act in
the role of judge, the process could be dramatically
distorted.
The parties may at any time select an independent
arbitrator to decide their dispute. An arbitrator, after
reviewing evidence and hearing argument from both sides,
makes a decision on the merits of the case. A mediator can
only help the parties work out their own solution, but an
arbitrator decides what the solution will be. The chief
advantages of arbitration over mediation is that by giving
the arbitrator the authority to bind them, the parties can
be quite certain of a determination of their dispute, but, of
course, this involves surrendering control over the final
outcome to a third party.
5.11 Various Processes in Mediation :
A definition of mediation is a useful starting point,
but to really appreciate the character of mediation,
everyone needs to be familiar with the steps involved in its
173 Henry Brown and Arthur Marriott, ADR PRINCIPLES AND PRACTICE, Sweet & Maxwell, London, 2nd edn., 1999,P.12
178
conduct. For an easy understanding we can divide the
stages into three. They are
I. PRE-MEDIATION PHASE
II. DURING MEDIATION
III. POST MRDIATION PHASE
5.11.1 Pre-Mediation Phase
The process of mediation will be convened when a
party makes a request for mediation either to another party
or to a dispute resolution provider or there may be an
agreement by both parties that they will use mediation to
attempt to resolve their dispute174.
The parties are expected to resolve a number of issues
which may be done, either by themselves, or with the
mediator‘s help during the early stages of the process.
These issues may include, as to who will serve as mediator,
how will mediator be paid, will mediation be confidential,
what is the scope of the issues to be addressed, who will
attend the mediation, will there be any discovery, will there
be any pre-mediation briefs, how will the parties present
their cases, where will the mediation be held etc. Here
introducing the mediator and process to the parties.
Mediators understand the general nature of the
dispute and may decide to have personal contact with each
party before the mediation. Parties can be educated about
the mediation generally and about the specific procedures
which will be followed at the mediation meeting, without
any embarrassment or loss of face. The mediator can
establish a close working relationship with the parties and
174 Supra n.37 P.149
179
develop trust and acceptability. The mediator is to
accomplish a number of tasks to initiate the process of
mediation namely, contacting the parties, building
credibility, establishing rapport with the disputants,
explaining the nature of the mediation process to the
parties, obtaining basic information about the disputes
from both side, arranging mutually acceptable mediation
venue, date and time, deciding on who should be present at
the mediation and instructing the parties about what they
must do before the mediation. In the beginning stage of the
mediation, the mediator also confirms that the parties are
willing to mediate, and gets them to sign a mediation
agreement that sets out the respective obligations of the
parties and the mediator in relation to issues such as
confidentiality and fee arrangements
5.11.2 During Mediation
There is no set procedure for the conduct of the
mediation. Different organizations have developed thereon
procedures which may vary depending on the type of
dispute. Guidelines to mediation can be determined unless
otherwise specified by parties.175 While there are variations
between the processes followed by mediators, the mediation
will generally have following steps in the mediation process
which can be divided into three phases
A. OPENING PHASE
B. MIDDLE PHASE
C. END PHASE
175 Peter L.D‘ Ambruminil ,What is Dispute Resolution?, L.L.P., London,1st edn. 1998, p. 40
180
Opening Phase
This phase can be subdivided into four stages they are
1. mediators opening statement
2. parties‘ opening statement
3. summarize parties‘ statement
4. issue identification
5.11.2.1 Mediators opening statement
How the mediator opens the session has tremendous
significance. The way in which the mediators enter into
disputes is important in securing the parties commitment
to mediation. It also provides an opportunity for the
mediators to develop the trust and acceptability which can
provide a solid foundation for their later facilitation of the
parties‘ negotiations176 ‗formal‘ opening statement from the
mediator referred to here as the ‗mediators opening‘. It is
frequently the disputant‘s first impression of the mediator‘s
competency and style. These relate subtle but important
considerations which are the way in which the parties are
expected to communicate with each other in mediation and
includes the first greeting, the location and the resulting
atmosphere, the seating arrangements, which party will
speak first etc. The mediator emphasizes the cooperative
nature of mediation negotiations. These serve to break the
eyes with the parties and settle them in, to reassure the
parties and establish a good rapport with them.
It allows the mediator to explain both the nature of
mediation in generally and what will happen in the
mediation meeting specifically. Mediator will explain the
176 Supra n.41,p.129
181
nature and objectives of mediation, in terms of making
decision to resolve the parties‘ problem, and also in terms
of the need to define the issues, to seek common ground
and to engage in collaborative problem solving.
The mediator will explain to the parties that the
mediator‘s role is to facilitate the parties‘ negotiations. He
may distinguish his role from that of other third-party
interveners, such as judges or arbitrators, by stating that
mediators do not decide disputes or make
recommendations for settlement177.
The opening statement of the mediator put the parties
at ease and to emphasize that the mediator is there to help
and guide but not to force anyone or anything.
5.11.2.2 Parties’ opening statement
Mediation is a communication process and that the
solving of legal problems is a mere by product. During this
stage of the mediation meeting each party is invited to
make a short presentation. Each party would then be
invited to discuss what they want out of a settlement: what
their interests and needs are in relation to the issues in
dispute. While some parties may simply present their
‗position‘, a good mediator will probe for their underlying
interests, and shift the focus on positions back towards
interests.178
Normally no interaction between the parties is allowed
at this stage. The speaker presents an uninterrupted
narrative, and the presentation is directed to the mediator.
177 Marian Liebmann,Community and Neighbour Mediation
Cavendish Publishing Ltd, Sydney, 1st edn.,1998, P.52 178 Supra n.33 p.125
182
Where the parties are legally represented, the parties make
their presentation after which the mediator invites the
lawyers to add anything which they regard as appropriate.
The parties ‗opening statement are important as they
reveal the flavor of the case and the parties
personalities and indicate the priority of issues
Force the parties to address the issues before a
neutral and hear the opposing parties
Contrast the opposing view and points and identify
the points of agreement
Disclose the basis of claims, allegations and
conclusions made in pre mediation statements and
submissions
Reveal the strength of the case
Mool mantra of mediation is empowerment179.
Empowerment means the increase in the parties ability to
meet their own decisions and the corresponding reduction
of their dependence on 3rd parties including professional
advisors. This arises in mediation because the parties are
directly involved in the process and retrain control over
whether they wish to settle and on what terms180.
5.11.2.3 Summarize parties’ statement
In this stage mediator summarize the presentations of
parties. While each party presents their story, mediator
listens and takes notes of them. If the party used any
harsh words the mediator replaces it with mild and soft
words. For example if penalty is the word used by the party
179 Kerala Legal Services Authority ,Concept of ADR, ,Kochi,p.3 180 Supra n2 P.130
183
then mediator replace it with the word compensation. Here
though the meaning is the same the mediator uses an
alternative tone by summarizing the parties‘ interests and
needs. The gathering, exchange and analysis of information
are the important parts of the preparatory stages of
mediation. Information gathering and exchange can also
assist the parties to narrow the areas in dispute, and help
to educate them about each others cases.
5.11.2.4 Issue identification
With the initial formalities concluded, the mediator
would then invite each party in turn (or their lawyers) to
identify the issues. The stage of defining issues is an
important step in the mediation process, as it may be the
first time that the parties have articulated, face to face,
why they are in dispute.
From the information provided in the party
presentations and from other materials at their disposal,
mediators attempt to identify existing areas of agreement
between the parties. The areas of agreement can be visually
presented on a board or paper and can be used
subsequently to provide a sense of achievement and to
maintain the momentum.
After identifying areas of agreement, mediators
develop, in consultation with the parties, a list of those
issues which are in dispute and require decisions. The
issues are preferably defined in terms of interests and not
in terms of positions, facts or legal rights.
Once a prioritized list of issues is available the
mediation moves into the negotiation field. This initial
184
stage is complete when the mediator has a clear picture of
the manifest and underlying issues and the parties have a
clear understanding of mediation and can determine if they
wish to proceed.
By summarizing the opening phase it can be said that
as communication is the most important skill in the
process of mediation it involves not only the mediator
directly communicating with each of the parties, but also
facilitates communication of the parties. The very purpose
of the communicating process is for the parties‘
understanding and each other‘s perspective and mediator
understands the issues and interests. In the opening
session with the mediator and both the parties the
mediator will set out the purpose of the mediation and his
he/her role, emphasizing that it is for the parties to reach
at an agreement, not for them to impose. Each party may
then be given an opportunity to explain how they see the
case. This enables the parties and the mediator to get some
idea of the extent of the dispute and the position of each
party. Full disclosure may be required by the agreement to
mediate and the mediator or mediations may, in the
preparatory stages, be able to assist in identifying data
which needs to be obtained and disclosed and to encourage
and to supervise the exchange. This is followed by the
mediator asking each party to provide such materials as
each party may deem necessary for the purpose of
familiarizing the mediator with the facts and issues in
dispute. After having gained certain knowledge or facts a
mediator can selectively use the information derived from
185
each side to identify each of the parties‘ issues. Finally
prepare to set an agenda for negotiation and seek
agreement on a starting point and obtain from each party
his whole hearted consent to go to the next stage.
5.11.3 Middle Phase
This phase can also be subdivided into four stages they are
i. Setting an agenda
ii. First joint session
iii. First private session
iv. Second joint session
5.11.3.1 Setting an agenda
Once the parties have identified their issues, all the
issues identified in the previous stage are discussed. The
mediator will usually draw up an agenda (a list of mutual
issues for resolution in mediation).
The parties themselves are generally asked to
determine the order in which they want to discuss those
agenda items that they would like to discuss in the
mediation. A good mediator will select the less
controversial issue at first. If the discussion began to
collapse the mediator offers intervals between each session.
The time period of the interval depends upon the
complexity of the issues. If the problem is less serious only
a tea break is needed. While these issues are being
discussed, if the mediation collapses at this stage then it is
the mediator who decides whether to continue mediation or
not.
The mediator will generally tell the parties what
format the sessions will take. Most mediators adhere to a
186
structured approach to the mediation process, although
this needs to be balanced with a degree of flexibility to
accommodate the unique characteristics and experiences of
each case181.
5.11.3.2 First joint session
Here parties interact with each other. Mediation being
facilitated negotiation, the mediator‘s primary goal during
the negotiation process is to keep the negotiation going.
The mediator ought to concentrate the parties‘ attention on
settling rather than wining .The mediator can remind the
parties that even where the goal of resolving the disputes is
not achievable, mediation can also serve the purpose of
narrowing the gap between the parties. The mediator
remains impartial in relation to the parties and the
substantive issues in dispute.
Once the parties are in contact a mediator can be
useful in loosening the tension which may have developed
in the course of the dispute, and creating an atmosphere
conductive to negotiation182.
Mediator may permit the parties to express their
emotions. Expressing emotions to a limited extent improve
mediation which can be allowed. Here mediator‘s
interference is high. Sometimes it may be used by the
parties as a trick, and then the mediator should identify
that and try to prevent such a trick. The mediator‘s
primary duty is to ensure that the mediation process is
fair.
181 Ibid p.66
182 J.G. Merrils, International Dispute Settlement, Cambridge University Press; 1998, 3rd Edn, p.35.
187
Mediator isolate and explore issues, needs, interests
and solutions, weigh up and separate needs which are
crucial from peripheral needs, allow a free exchange of
ideas about any new information which emerges ,facilitate
negotiations for settlement between the parties.
5.11.3.3 First private session
Once parties have made their initial presentation or if
joint communication no longer seems productive, private
sessions with each of the parties may be useful.
Mediator meets separately with the individual parties.
The mediator will normally remain in the joint meeting
room with one party and direct the other party to another
venue. Where there are legal representative or other
advisers present, they will normally attend the separate
meetings with their clients but the mediator meet
separately with each party alone.
The parties are then located in separate rooms and
the mediator sees them separately to discus the dispute
from their individual point of view. Having discussed the
case with the individual parties, the mediator can take
information, which each party permits the mediator to
take, to the other side. The mediator shuttles back and
forth between the parties trying to get them to reach
agreement. This is always known as shuttle diplomacy. The
mediator must ensure that things told in confidence remain
confidential.
Mediator at this stage tries to find out the bottom line
of the parties. He should not reveal the bottom line to the
other party. He must ensure that each party has the
188
chance to present their views. The mediator, who is doing
the job of a facilitator, must be careful not to act in a
manner that may suggest a judgement on the merits of the
case.
In the sessions with the individual parties, the
mediator will be doing 2 things principally:
1. Giving information that mediator is permitted to give to
the other side
2. Getting the party with whom mediator is discussing the
case to really think about realistic possibilities for
settlement. The mediator may also be making
suggestions of ways in which settlements may be
reached.
5.11.3.4 Second joint session
Where the separate meetings have served their
purpose, mediators reconvene a joint session of all
participants.
The purposes of this stage are to conduct further
discussions, to engage in final bargaining, and to settle the
finer details of the agreement.
To make this stage productive, mediators often insist
that the parties focus only on present and future issues,
and not reopen the past. The mediators function is to
ensure that all issues in dispute have been dealt with, that
no points of agreement have been overlooked.
In the second joint session the mediator‘s role is less.
He only supervises the role. Here parties themselves
interact like negotiation. With the mediator‘s assistance,
the parties should then be able to explore different options
189
for settlement. The mediator might ask the parties for
objective standards that will assist them in choosing
between preferred options. He should assist the parties to
determine how well the options generated satisfy the
respective interest of the parties. Mediator encourage free
exchange of new ideas and options for settlement, make
objective evaluation or settlement options and facilitate
final bargaining The mediator should assess the pros and
cons of each option. While the mediator may suggest
modification to the parties‘ options to better meet their
stated interests, a good mediator will not purpose their own
settlement options.
Both parties are more inclined to accept the outcome
as fair and reasonable.
5.11.4 End Phase
The final step in the mediation process is for the
mediator to identify the agreements reached in mediation
and record them in the presence of all parties. Once the
mediator recognize a particular settlement may be possible,
a final push may be given by the mediator with the case at
that the mediator will not reveal where the other side found
the proposal acceptable unless both the sides agree. A
concluding session will be held jointly, to confirm what has
been agreed between the parties that there is no
agreement. If agreement is reached, it can be treated as a
contract. It is preferably to have both the parties together
in joint session to write the agreement. The drafting
process can begin before there is agreement on all issues
as a technique to focus the parties on the issues and to
190
encourage them that progress is being made. The most
critical element is to get all necessary signatures before the
parties leave. The mediator should also record any
implement issues: who does what and when, what happens
if they don‘t perform their obligation by the set date and so
on.
Mediator formally terminates the mediation process
when their responsibilities are complete and when the
confidentiality principle comes to an end. If the parties
reaches a settlement on four issues among five then the
mediator try to create an agreement regarding the four
issues. Where no agreement has been reached, the
mediator encourages the parties to agree to have a cooling
off period before they decide to pursue other dispute
resolution process such as litigation. In most mediation the
final agreement is reduced to writing, and the agreement to
mediate may make this a condition of the process.
5.11.5 Post Mediation Phase
Some mediated agreements require ratification by an
external body to which a negotiating party must account —
such as a board, council or cabinet. In other situations it
may be decided or understood that agreements will be
reviewed by lawyers, accountants or other professional
advisers after the mediation meeting. Ratification and
review provide safeguards for mediating parties. They also
provide an opportunity for persons not privy to the
dynamics of a mediation and the efforts of the negotiating
parties to undermine significant decisions they have made.
191
Some mediators assume their responsibilities of
monitoring the mediated agreement and supervising its
implementations. This is intended to maintain the
momentum achieved by the parties and to prevent the non
compliance, whether through neglect or subsequent doubts
or hesitancies.
Where mediation has been incorporated in the
procedure of the court or the tribunal the mediated
agreement may have to be placed before the court or
tribunal for an order to be made in those terms .Parties to
private mediation may wish to apply to the court for an
order giving effect to their mediated agreement. This is
especially common when the case has already been
commenced in court.
In short, the stages involved in mediation can be
summarized as follows:
1) beginning the mediation or initiating the mediation
2) preparatory matters
3) Mediators opening
4) defining the issues and setting an agenda
5) Party presentation
6) Identifying areas of agreement
7) Defining and ordering issues
8) Negotiation and decision making
9) Separate meetings
10) final bargaining
11) generating options for settlement
12) assessing settlement options
13) Final decisions
192
14) formalizing settlement and recording decisions
15) Closing statement
16) Termination
17) Post mediation activities
18) Implementation and reviewing agreements
5.12 Understanding Conflict :
The term ‗conflict‘ means a serious disagreement or
the clashing or variance of opposed principles, beliefs,
interests, etc., per Oxford English Dictionary.
5.12.1 Nature of Conflict :
Conflict starts with differences.
Unresolved, these lead to disagreements.
Unresolved, these become disputes. The conflict
has begun.
Unresolved disputes can become wider areas of
conflict.
Unresolved, these conflicts can lead to violence and
even war.
193
This can be called the continuum of tension and is
illustrated by the following chart:
War
------
Violence
----------
Escalation Conflict
---------
Dispute
--------
Problem
----------
Disagreement
----------------
Differences
---------------
5.12.2 Continuum of tension
Conflict can exist anywhere – in the home, workplace,
organization, community, within and between nations.
Conflict can be short or prolonged, lifelong and even
multi-generational.
Conflict can tough people in deep and painful ways;
it can make them feel threatened and lead them to
act it in a hostile and defensive manner.
194
Conflict is not static, it is a dynamic process. Its
nature changes as it proceeds from latent to patently
visible and manifested disturbance.
Different causes are possible for conflict; sometimes
more than one may operate simultaneously.
A triggering event sets off the conflict. The event may
be significant or trivial, meant or misunderstood,
evident or latent, spelt out or misperceived.
Conflict is usually reactive : an action from one
evokes a response in kind from the other, spawning a
chain of negative behavior, and, thus, the level of
conflict escalates. Cause and consequence move in
sequential pairs.
One negative event or behavior can set off a vicious
circle of conflict. On the other hand, a positive act of
intervention can trigger off a chain of corresponding
remedial improvements.
That is why it is important to handle conflict, to
handle it at the earliest, and to handle it well.
5.12.3 The Conflict Triangle183 :
There are three elements in a conflict:
1) PEOPLE : Conflict involves relationships, ego and
personalities.
2) PROBLEM : The content of the conflict, issues and
interests.
3) PROCESS : People may fight in different ways; every
conflict has its own pattern of interaction, the way it
intensifies, eases or spreads.
183 Ibid.
195
For a conflict to be effectively resolved, the people, problem
and process have to be recognized and effectively dealt
with.
Past history; How people communicate
Values, meanings; issues and feelings;
Relationships; Structures, systems,
Emotions; procedures;
Behavior; Norms about how to
Abilities; behave in a conflict;
Personalities. PEOPLE PROCESS Decision-making; &
Roles, jobs.
PROBLEM
Facts; Positions; Issues; Consequences of events;
Perceptions; Interests / Needs; Solutions; & Consequences
of possible outcomes.
5.12.4 Types of Conflict :
There are many types of conflicts – personal, family,
matrimonial, commercial, contractual, workplace conflict,
economic conflict, community conflict, environmental
resources conflict, group conflict, inter-state conflict,
military conflict, ideological conflict, religion based conflict
and racial conflict.
An interesting phenomenon is that of ―nested conflict‖
where conflicts sometimes appear to be ―nested‖ within
other conflict. For example, a racial conflict may be nested
within an inter-state conflict. Conflict can exist at several
levels and conflicts which are nested can contribute
towards the spread of larger conflicts at a higher level.
196
5.12.5 Causes of Conflict :
The diagram shown below gives us a useful analysis of
the causes of conflict:
The following chart encapsulates the sources and
characteristics and the resolution strategies and actions
for each type of conflict184:
184 Ravindra, Geetha and Michael, David, Mediation Skills Training, The
Tamil Nadu Mediation and Conciliation Centre cited in Sriram Panchu, Sr. Adv. ―Mediation, Practice & Law, The Path to successful dispute resolution‖ Edn. 2011, Pg. -----------------------------------------
Value conflicts Relationship conflicts
Causes : Causes :
Different criteria for evaluating Strong emotions;
ideas or behavior; Stereotyping;
Different ways of life, Miscommunication;
culture, ideology, religion, etc. Negative behaviour.
Structural conflicts Data conflicts
Causes : Causes :
Destructive behavior patterns; Lack of information
Unequal power and authority; Misinformation
Geographical, physical or Different interpretations
environmental factors that of data.
hinder co-operation; Different views on
Unequal control, ownership Interest conflicts what is relevant.
or distribution of resources; Causes :
Time constraints. Competition (perceived or
actual) over content interests.
Procedural interests.
Psychological interests.
197
Sources, Characteristics and Strategies
for Resolution of Conflicts
Type of
Conflict
Sources and
Characteristics
Strategies for
Resolution
Relationship Poor
communication
Repetitive, negative
behavior
Misperceptions,
stereotypes
Distrust
Clarify perceptions
Improve
communication
Learn from the past
and think of what
you want in the
future
Value Different criteria
for evaluating ideas
Different ways of
life or ideology
Allow parties to
agree to disagree
Build common
loyalty
Build mutual
respect
Structural Resources
Power
Time constraints
Reallocate
ownership and
control
Establish fair,
mutually acceptable
decision making
process
Clearly define roles
Data Lack of information
Misinformation
Varying
interpretations of
information
Agree on the
process to collect
data
Agree on what data
is important
198
Positions, Interests and Needs – Understanding the
Difference :
For good resolution, one needs to make the parties
understand and appreciate the difference between positions
on the one hand and interests and needs on the other.
When one examines a conflict, the first layer which is
apparent is the positions. Positions are the stands that
people take in the conflict; in other words, their demands,
what they say that they want. Examples : each parent
demanding custody of their child, workers demanding a
higher bonus than what the management is willing to pay.
Underlying these positions are interests and needs –
basically, why they want the things they do. Interests and
needs lie at the heart of the conflict and must be identified
and satisfied if the conflict is to be effectively resolved.
Solutions based on meeting interests and needs tend to be
lasting ones which bring an end to the conflict. For both
the parents, the interest and need is to safeguard the
welfare of their child and to give him or her emotional and
financial security. For the workers, the interest and need is
to obtain adequate compensation for work and security of
employment; for the management it is uninterrupted
productive work and profits.
Needs lie at the heart of what we really want. Our
needs dictate our interests. Interests are long term in
nature. Positions are the immediate demands being made.
Interests demonstrate convergence and, thus, there exists
the possibility of satisfying both the parties sufficiently.
199
Positions are conflicting; both parties‘ positions and
demands cannot be satisfied.
If one were to draw a triangular diagram, our needs
would be the base giving rise to interests, and what is first
visible are the positions that are taken.
Positions
Interests
Needs
Layers of Conflict
To arrive at a settlement, contestants should move
away from their positions and be oriented towards their
needs and interests. And from this viewpoint, they should
be encouraged to invent and expand options for settlement,
from which a pool of acceptable solutions can emerge.
200
Responses to Conflict185 :
The responses to conflict can be best understood with
the help of the following Responses Chart :
Y
High
Accommodation Collaboration
Concern
for Compromising
Others
Low Avoiding Competition
X
(Low) Concern for oneself (High)
The Responses Chart
If one plots a chart with an X (horizontal) and Y
(vertical) axis, the X being concern for oneself and the Y
being concern for others, then these traits will emerge on
the scale as follows :
Avoidance will be a low X and a low Y; evasion reflects
no concern for self or other.
Accommodation or yielding is a low X and a high Y,
being more respectful of the other‘s needs and
neglecting one‘s own.
Compromising stands equal on the X and Y planes, in
the middle, splitting the difference, neither too bad for
self and other, nor too good for either.
185 Ibid.
201
Competition is high on the X line; and low on the Y
line; here the focus is only on oneself, and the effort
is to diminish the other.
Collaboration ranks high on both the X and Y axis,
seeking the best possible answer for all parties.
5.13 Types of Bargaining used in Mediation :
(1) Rights-based Bargaining : It is a customary and
traditional form of bargaining in which the parties‘ primary
focus is on right and wrong (e.g., who violated the statute,
who breached the contract, who was negligent). It is blame-
oriented analysis.
(2) Positional Bargaining : It is also a customary and
traditional form of bargaining, in which the parties focus
on their legal positions and offer to settle. It is often
combined with rights-based bargaining (e.g., my client‘s
claim is worth Rs.1 lakh as your client was 100% at fault
for injuries).
(3) Distributive Bargaining : This type of bargaining
focuses on the allocation of fixed or limited resources
between the parties. It is often referred to as ―dividing the
pie‖ where the ―pie‖ represents a fixed amount of money,
property, assets, etc. (e.g., the assets of an estate).
Distributive bargaining is also referred to as ―zero sum
bargaining‖ because for each amount of resources received
by one party, the other party loses the same amount. (Suit
for partition, petition for grant of probate of Will, suit for
dissolution of partnership and rendition of accounts, etc.
would come under distributive bargaining).
202
(4) Integrative Bargaining : In this type of bargaining, a
mediator expands the resources that are the subject of
negotiations by introducing the possibility of traditional
additional resources that are outside the framework of
initial negotiations (e.g., 18 th camel, i.e., 1/2nd, 1/3rd and
1/9th of the camels).
(5) Interest-based Bargaining : In interest-based
bargaining, the focus shifts from law to the facts and
underlying interests of the parties to develop terms of
settlement that produce mutual gains (e.g., division of
oranges).
It is a three-step process in which a mediator:
(a) identifies the underlying interests of the parties;
(b) prioritizes their interests (using information generated
from the parties); and
(c) develops the settlement terms that promote the most
important interests of the parties.
Characteristics of Negotiation, Mediation and Litigation
Negotiation Mediation Litigation
Voluntary Voluntary Involuntary
If agreement, enforceable as contract
If agreement, enforceable as
contract
Binding, subject to appeal
No third party No third party Imposed facilitator
Informal Informal Formal, rigid rules
Unbounded presentation of
evidence and interests focused on past.
Unbounded presentation of
evidence and interests focused on past.
Opportunity for each party proofs, focused
on past events
Outcome: mutually acceptable agreement
sought
Outcome mutually acceptable agreement
sought
Outcome: imposed decision
Private Private Public
203
Mediation and Conciliation
Mediation as seen in the western world and
conciliation recognized in India are the same. In order to
understand that mediation and conciliation are synonyms,
the following meanings attached thereto in Black's Law
Dictionary are reproduced below:-
A method of non-binding dispute resolution involving
a neutral third party who tries to help the disputing parties
reach a mutually agreeable solution-Also termed
conciliation.
Conciliation
a. A settlement of a dispute in an agreeable manner.
b. A process in which a neutral person meets with
the parties to a dispute (often labor) and explores
how, the dispute might be resolved186.
The distinction between mediation and conciliation is
widely debated among those interested in ADR, arbitration
and international diplomacy, some suggest that
conciliation is a 'non binding arbitration', whereas
mediation is merely 'assisted negotiation'. Others put it
this way: conciliation involves a third party's trying to
bring together disputing parties to help them reconcile
their difference, whereas mediation goes further by
allowing the third party to suggest terms on which dispute
might be resolved. Still other reject these attempts at
differentiation and contend that there is no consensus
about what the two words mean - that they are generally
inter changeable. Though a distinction would be
186 Black's Law Dictionary Seventh Edition P.284
204
convenient, those who argue that usage indicates a broad
synonymity are most accurate187.
Dimensions of A Dispute
i. Facts
ii. Positions
iii. Claims/ Defenses
iv. Arguments
v. Law (Traditional rights and remedies).
Stages at which the Cases may be Referred for
Mediation
Every stage of the trial is fit for mediation.
Cases which are fixed at framing of issues,
miscellaneous proceedings, evidence, arguments are being
settled through mediation.
Cases which are pending before the appellate court,
writ petitions, transfer petitions can also be settled
through Mediation.
Disputes where Mediation is Not Appropriate
Mediation may not be appropriate in following
conditions:-
i) Parties refuses to negotiate or not ready for useful
negotiation
ii) Parties want a judicial determination.
iii) Public airing of a dispute or dispute deserves public
attention.
iv) Power imbalance which makes fair agreement unlikely
v) Parties want a legal precedent.
187 Bryan A. Garner. A dictionary of Modern Legal Usage. P.5554 (2nd Edn.1995)
205
vi) Delay in resolution benefits party.
vii) Parties do not have sufficient information.
viii) Complicated and complex cases involving public policy,
constitutional matter.
ix) One party suspect that other party intends to use the
mediation to escalate the dispute.
Disputes where Mediation is Appropriate
Mediation may be effective in following conditions:—
i) Parties desire a negotiated outcome
ii) Parties want to maintain future relationship
iii) Avoid unfavourable judgment
iv) Litigant does not want to appear as a witness or want
to avoid formal litigation
v) Cost of trial exceeds projected value
vi) Parties want prompt resolution
vii) Parties want control over outcome
viii) Complicated case
ix) Confidentiality desired by parties
x) Opportunity to develop creative non-traditional
remedies
Qualities of a Good Mediator
Speed Flexible Non-Judgmental
Active, Alert Options Generator Optimistic
Analyst Communicator Patience
Accommodative Facilitator Positive Approach
Catalyst Listener Polite
Communicator Guide Persuasive
Convincing Honest Reality Tester
Co-operative Humble Reasonable
Compassionate Humorous Time Manager
Experienced Impartial Unbiased
Fair Integrity Vigilant
Faithful Neutral
Fearless Non-Egoistic
206
Why Mediate
Relationships are strained but must continue.
Miscommunication is apparent and a skilled neutral
would facilitate communications.
The presence of a third party would change dynamics.
The parties may be willing to settle or re-evaluate
their positions.
Confidentiality is important.
Parties are interested in retaining control of outcome.
Time factors may be a consideration.
5.14 Benefits of Mediation :
Private, prompt and affordable.
Provides an opportunity to the parties to talk about
their case in their own words and to directly participate in
negotiation of their claims.
A forum for parties to develop creative, non-
traditional remedies that promote their underlying
business and personal interests.
i) Free
No cost.
Less expensive than litigation.
ii) Fair and Neutral
Parties decide settlement terms.
No determination of guilt or innocence.
iii) Saves Time
May complete in one meeting.
Legal or other representation optional.
Fast resolution of disputes.
207
iv) Confidential
Information disclosed not revealed to anyone.
v) Avoids Litigation
Lengthy litigation avoided. Resolution of disputes.
vi) Improves Communication
Parties openly discuss underlying dispute.
Enhanced communication lead to mutually
satisfactory resolutions.
Parties share information leading to a better
understanding of issues.
vii) Win-Win position
Win-win situation in contrast to judicial decision.
viii) Parties control outcome
Outcome always within control of the parties. Parties
avoid the uncertainty and dissatisfaction experienced in
court.
ix) Voluntary
Any party may withdraw at anytime.
x) No Appeal/Revision.
xi) Refund of Court Fee
xii) Convenient
Arranged at a convenience of parties. May be held at
any place at any time. Not limited to ordinary working days
or hours.
xiii) Preserves relationship.
Preserves relationship which may be destroyed by
court litigation.
208
Mediation is Not.
a) Mediation is not a bar to litigation or arbitration
i) Do not preclude use of other methods of dispute
resolution.
ii) Right to litigate or arbitrate not lost merely by
participating in mediation.
b) Mediation is not toothless
i) Parties control settlement
ii) Settlement can be enforced.
c) Mediation is not mere Compromise
i) Not splitting the difference down the middle.
ii) Creative options developed.
d) Mediation is not what lawyers, managers or judges
do all the time.
i) A party or lawyer cannot play the role of a neutral
even they are reasonable or friendly.
ii) A neutral is detached from the problem, emotion and
the commercial pressures.
iii) Unlike a judge, a mediator derives authority only from
the parties.
e) Mediation is not a waste of time and money if it
fails
i) Helps to narrow down the gap, tempers aspirations
with realism.
f) Mediation is not yet another cost to the
unfortunate parties.
i) Mediation is always with no cost or minimum cost,
ii) Less expensive than the fee of the lawyers, experts.
209
g) Mediation is not a sign of weakness
i) A route to client satisfaction.
ii) No soft option.
iii) Tough, demanding and rewarding process.
iv) Involves intense negotiation that requires quickness
of mind, flexibility and imagination.
h) Mediation need not be risky
i) Greatest risk perceived is that the other party would
learn more about their case.
ii) Release of information and terms of settlement within
the control of parties.
j) Mediation is not Counselling.
Mediation Counselling
Neutral Relationship
preserved with parties.
Intense relationship develops
with individual clients.
Facilitate negotiation for
a specific disputes.
Free ranging discussion
on any topic.
Problems solving
techniques used
Psychological analysis.
It sets a positive tone, develop confidence for
agreement and create relaxed atmosphere. It should be
completed within 2-3 minutes.
A. Mediator's Tasks
i) Welcome the parties.
Escorts the parties into the room and to their seats.
Make proper seating arrangement.
Assign specific seats to the parties,
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ii) Introduce himself; parties/ counsels and other
participants.
Give brief introduction of self e.g. your expertise,
experience etc.
Ask parties/counsels/ other participants to introduce
themselves.
Make parties to agree to use their first names,
iii). Describe Mediation Process.
Explain purpose of Mediation to the parties.
Explain & describe the different stages of the process
i.e. "road map".
Non-adjudicatory process.
Mediation is voluntary & based on the consent of the
parties.
Use plain language,
iv). Describe Role of Mediator
Neutral intervener & does not represent either party.
Non-judgmental; helps the parties to find their own
resolution of dispute.
Do not propose solution.
Merely assists parties in evolving options for settlement.
Carries proposals back and forth.
Do not offer legal advice but ensures legality of the
agreement.
A manager of process.
A 'sponge' to absorb parties feelings and frustration.
A catalyst for problem solving.
Information gatherer.
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Types of Role of Mediator
a) Facilitator
Manage interaction.
Facilitate communication.
Identify barriers to agreement.
Develop terms of settlement based upon interest of parties.
Techniques
Gathering of information about dispute. Control Direction
of communication. Identify underlying interests of
disputes.
Evaluator
Real Testing both on law and facts
Evaluation should be done at appropriate time and in
appropriate manner.
Analyse or evaluate positions adopted by parties.
Role reversal
Questioning
Identify risks and costs of legal proceedings.
v) Confidentiality
Mediator should address the confidentiality to the
parties. Essence of mediation.
Parties feel more comfortable to disclose ideas and
positions if information will not be used against them
subsequently. Anything disclosed during mediation shall
remain confidential. Explain whether confidentiality is
requirement of law or agreement of the parties.
vi) Explain Ground Rules
A mediation should explain following potential ground
rules to the parties.
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Parties/counsel shall address to the Mediator.
No interruption; direct confrontation.
Observe courtesy.
No use of foul/ unparliamentary/ abusive/ vulgar
language.
Complainant may speak first, then respondent.
Parties may call for breaks when needed.
Note-taking by mediator.
No use of mobile phone/ be switched off.
Only parties or their authorised representatives to attend
mediation.
If settlement is not reached then case be sent back to
referral court.
vii) Address Administrative issues
Estimated length. Breaks. Place.
Order of presentation, time limitation, use of note pads.
No-smoking,
viii) A mediator should confirm from parties about their
doubts, questions about process, confidentiality, mediator
credentials and impartiality.
5.15 Mediator's Objectives :
i) Establish Neutrality
Neutrality provides stable platform for resolution of
conflict. Convey impartiality and lack of bias.
To be accomplished by careful selection of words, use of
neutral language, appropriate body language and eye
contact. Neutral location and environment.
Use of words of mutuality to all participants. eg:"everyone
shall have an opportunity to talk."
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No option or suggestions about possible solutions. No
deference to any individual.
Mediator should sit squarely without exhibiting any
preference to anyone.
ii) Establish control over the process
It is achieved by calm, clear, neutral introduction.
No conversation between parties and lawyers across table.
Manage interruptions or outbursts.
No side tracking of Mediation process.
iii) Establish conducive environment
Display of calm but business like approach.
Relaxed but focused.
Adopt business like approach.
No anxiety, frustration and anger.
Generate momentum towards agreement.
Joint Session
The basic object of the joint session is to gather
information and to know backgrounds of a dispute. The
parties or their respective counsels be allowed to speak.
Ordinarily the party who files the case should be offered to
speak first but with brevity. The events should be asked to
present in chronological order. The main goals of a joint
session can be enlisted as under:—
Gathering of information.
Organization of information.
Assumes control over the process
To listen dispute in the words of disputants.
Disputants hear what other party has to say.
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i) Do's for a Mediator in Joint Session
Begin with broad open-ended questions.
Encourage the participation of the parties.
Listen. Ask very Few questions.
Do not alienate the other party.
Manage outbursts and interruptions.
Jot down various issues.
Take mental notes on what mediator is hearing, seeing and
sensing.
Identify underlying interests of the parties.
Maintain neutrality.
Maintain environment conducive to agreement.
Allow some exchange of communication between the
parties.
Parties who talk non-stop should be asked to summarize.
ii) Techniques Active/ Effective Listening. Body
language. Questions.
Empathy with neutrality.
Single Session (CAUCUS)
A mediator spend much time during mediation talking
with the parties ' together. It can be helpful to speak with
each party separately. The conversation of a mediator with
single party is known as single session or caucus. It is
optional and is arranged after conclusion of joint session.
In single session, mediator meets with each of the parties
with Counsels separately. During single session, the
parties interact with Mediator in confidence. The parties
speak more freely in absence of other party. The broad
goals of individual session are as under:—
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Purpose
Allow parties to ventilate to minimize hostility.
People feel relieved after private expression of grief, anger,
frustration, sadness or fear.
Reduces tension.
It is useful when impasse is reached. It allows the parties
explore
alternatives for resolution
Build trust. Avoid deadlock.
Explore possible solutions which parties are unwilling to
discuss in joint sessions.
To explore hidden agenda.
To allow the disputants to save face.
To probe areas of flexibility.
Mediator continues to gather information.
Parties discuss confidential information.
Offers and counter offers are conveyed.
Promotes negotiating equality.
Strategies
Assure confidentiality both at the beginning and at the end
of individual session.
Reinforce rapport with each party.
Explore possible solutions.
Help parties explore consequences of not arriving at an
agreed upon solution (real testing).
Precautions
Keep individual session short or fix time limit.
Do not appear to favour one side.
Decide when caucus is necessary.
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Decide what you want to accomplish.
Formulate agenda.
One party is asked/ requested to leave the mediation room
with assurance of grant of sufficient time.
Sub-Caucus
Mediator may meet either with parties or attorneys
separately to facilitate negotiations. It is helpful in
matrimonial disputes.
Agreement
Agreement is last phase of Mediation.
Agreement should be reduced in writing.
Statement about parties future relationship.
Parties are responsible for substance of agreement.
Describe responsibility of each party in resolution of
disputes.
i) Purposes
Specify solutions of each identified issues.
Specify future relationship of disputants.
Test whether agreement is working.
ii) Guidelines for a Mediator
a) Specific
Avoid ambiguous words such as "reasonable", "soon",
"frequent", "Co-operative", "practicable" etc.
State clearly WHO will do WHAT, WHEN, WHERE,
HOW, HOW MUCH and HOW LONG.
Avoid legal jargon. Use plain and simple language
preferably disputants language.
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b) Realistic
Deal with all issues in dispute. Minimize possibility of
future dispute.
Workable and satisfies parties.
Parties should have control over agreement.
c). Positive
No blame assessment.
Use non-judgmental words.
Use positive language.
d) Balanced
Agreement should reflect each party gaining
something.
One party should not do all of compromising.
e) Procedural
Oral recital of terms of agreement.
Clarify terms of settlement.
Confirm settlement.
Decide who should write agreement.
Refer the parties by names as well as status.
Use active voice.
Make a copy of agreement for each party.
Make closing remarks.
Agreement should be signed by each party.
If no settlement is reached, keep the door open
and end on a positive note.
f) Characteristics
Clear
Concise
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Complete
Concrete
During a typical mediation the steps outlined below
may not be distinguishable, instead the mediation will
naturally flow from one step to the next. One of the keys to
a successful mediation session is its degree of flexibility
and creativity.
Stage I - Introduction
o Greet the parties and assign them specific seats.
o Introduce yourself and clarify the parties names.
o Establish an informal relaxed atmosphere.
o Explain the purpose of mediation and discuss
confidentiality.
o Clarify any ground rules such as only one party
speaking at a time.
Stage II - Gathering information
o Request one party to begin, usually the complainant.
o Ask for a brief summary of their perception of the
situation.
o Actively listen to the parties.
o Take notes.
o Restate information and provide non-verbal
responses.
o Pay close attention to the behavior and body language
of both parties.
o If necessary, stop the party's narration to calm both
parties or to assure the other party equal opportunity
to speak.
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o Ask questions in a neutral fashion. Use frequent
open-ended questions.
o Summarize the first party's story. In summarizing, the
mediator defuses tensions by eliminating disparaging
comments.
o Thank the first party for hishe/her contribution.
o Repeat the process with the second party.
Stage III - Problem identification/
o Ask each party to identify the prevailing issues.
o Inquire (probe) into underlying issues which may be
at the root of the complaint.
o Assist parties in prioritizing issues and demands.
o Conduct individual sessions with each party if
necessary.
o Summarize areas of agreement and disagreement.
Stage IV - Generation and evaluation of options
o Conduct a "brain-storming" session to generate
multiple options..
o Summarize each option.
o Do not evaluate options one at a time. Instead,
develop trade-offs.
o Check with the parties regarding the workability of
each option.
o Suggest other possible options.
o Encourage parties of the probability of agreement by
listing areas of consensus.
o Conduct individual sessions with each party if
necessary.
o Suggest a break or a second mediation if necessary.
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o Ask parties to "try-out" interim or temporary
agreements.
Stage V - Selection of Options
o Encourage parties to select the options which appear
workable for both sides.
o Assist parties in planning a course of action to
implement the agreement.
o Check workability.
o Note progress that the parties have made.
o Rephrase options selected to increase understanding.
Stage VI - Agreement (resolution)
o Summarize terms of the agreement.
o Check viability with each party.
o Ask each party if there are any other issues which
need to be discussed.
o Assist parties in specifying terms of the resolution -
where, when, how, and who?
Congratulate the parties on their success.
5.16 Disputes Where Mediation is Appropriate :
(1) Parties desire a negotiated outcome.
(2) Parties want to maintain future relationship.
(3) Avoid unfavourable judgment.
(4) Litigant does not want to appear as a witness or want
to avoid formal litigation.
(5) Cost of trial exceeds projected value.
(6) Parties want prompt resolution.
(7) Parties want control over outcome.
(8) Complicated case.
(9) Confidentiality desired by parties.
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(10) Opportunity to develop create non-traditional
remedies
Cases which can be RESO LVED through Mediation
The appropriate cases for mediation are those where
1. Parties want to control the outcome
2. Communication problem exist between parties or their
lawyers
3. Personal or emotional barriers prevent settlement
4. Resolution is more important than vindicating legal or
moral principles
5. Creative possibilities for settlement exist
6. Parties have an ongoing or significant past
relationship
7. Parties disagree abut the facts or interpretation
8. Parties have incentive to settle because of time, cost
of litigation, drain on productivity, etc
A formidable obstacle to resolution appears to be the
reluctance of the lawyers, not the parties.
Stages at which the Cases may be Referred for
Mediation:
(1) Every stage of the trial is fit for mediation.
(2) Cases, which are fixed at framing of issues,
miscellaneous proceedings, evidence, arguments, are
being settled through mediation.
(3) Cases, which are pending before the appellate court,
writ petitions, transfer petitions, can also be settled
through mediation.
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5.17 Types of Disputes which can be Referred for
Mediation :
(1) Matrimonial Disputes (divorce, custody, child support,
visitation rights, etc.).
(2) Family Disputes (partition suits, dissolution of
partnership firms, etc.)
(3) Commercial Disputes (business disputes, legal
disputes, insurance disputes, etc.).
(4) Dispute between neighbours (boundary disputes,
noise problem, animal control, etc.)
(5) Insurance Claims Disputes (MACT cases).
(6) Intellectual Property Rights Disputes (Copyright,
Trademark, etc.)
(7) Billing Disputes with Public Sector Enterprises /
Companies.
(8) Eviction Disputes (matters between landlord and
tenants).
(9) Complaints under Section 138 of the Negotiable
Instruments Act, 1881.
(10) Petitions under Section 125 of the Criminal Procedure
Code, 1973 or any compoundable offence.
(11) Labour Disputes under the Industrial Disputes Act,
1947.
A wide nature of disputes including Matrimonial,
Labour, Motor Accident Claims, eviction matters between
landlord and tenants, Complaints under Section 138 of
Negotiable Instrument Act, Petitions under Section 125 Cr.
P.C. or any compoundable offence can be referred for
mediation.
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If only one of the parties makes a request and the
other party is not averse to the idea of mediation, the
dispute can still be referred. Any court can otherwise make
a reference of a dispute as provided under Section 89 of
The Code of Civil Procedure, 1908. Lawyers can assist the
parties in mediation proceedings. Rather, it has been found
that wherever the parties are assisted by their Advocates, a
settlement is arrived at a bit early as the lawyers can
explain the weaknesses and strengths of their respective
cases and the time-factor which might be taken in
litigation. Since the proceedings before a mediator are
informal, the parties can even bring any of their relations
to assist them.
5.18 Disputes where Mediation is not Appropriate :
(1) Parties refuse to negotiate or not ready for useful
negotiation.
(2) Parties want a judicial determination.
(3) Public airing of a dispute or dispute deserves public
attention.
(4) Power imbalance which makes fair agreement
unlikely.
(5) Parties want a legal precedent.
(6) Delay in resolution benefits party.
(7) Parties do not have sufficient information.
(8) Complicated and complex cases involving public
policy, constitutional matter.
(9) One party suspects that other party intends to use
the mediation to escalate the dispute.
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5.19 Advantages of Mediation:
Time and Cost Savings:
Mediation generally lasts a day. It is less costly than
evidentiary process. Mediation is normally completed in a
matter of hours through a series of one to three
conferences. It may occur much earlier and with much less
preparation in a dispute than in a trial or arbitration.
Furthermore, mediation is - not a formal evidentiary
process requiring extensive use of expert witness or
demonstrative proof. Indeed, the process is most effectively
accomplished without introduction of evidence or
witnesses, relying instead on the parties to negotiate in
good faith.
Efficiency:
The process is more efficient than most evidentiary
processes; one of the principle attractions of mediation is
the speed with which parties can resolve their disputes.
Because, cdiators are present to manage negotiation, not to
represent a party or render a legal decision, they need not
prepare extensively to conduct the conference.
More settlement Options:
The process offers a range of settlement options
limited only by the creativity of the parties and the
mediator. Parties can create outcomes custom designed for
their particular situation.
Informality:
No court rules or legal precedents are involved in
mediation. The mediator does not impose a decision upon
the parties. As opposed to adversarial forums, the mediator
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helps maintain a business-like approach to resolving a
dispute.
Privacy and Confidentiality:
The mediation conference takes place in a private
settling such as a conference room at any of the Arbitration
Associations. Mediation is not a matter of public record. Its
confidentiality is maintained.
Control:
Parties have control over their participation in
mediation. A party can decide to terminate their
participation at any point in mediation. Mediators help
parties maintain control over the negotiation that takes
place.
Disadvantages of Mediation:
Mediation is not without its disadvantages. Principal
among them is the absence of due process protection for
the participants. The formalized procedural and evidentiary
rules of due process designed to protect parties and
associated with the trial or arbitration of a lawsuit are
lacking in mediation. This lack of formality is a
disadvantage in the eyes of those who believe it may permit
mediator bias, coercion, or party bad faith, For others, it
affirms the need for a well-trained mediator or an attorney
to assist in preparation and to participate during the
process to ensure that the important legal rights not being
waived without informed consent.
A second concern for some parties and attorneys is
the absence of an appeal process in the event that the
privately negotiated agreement is later determined by one
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of the parties to be flawed in some way, because it is a
highly confidential process; it is never performed on the
record or recorded by a court reporter.
5.20 Basic Rules of mediation :
It is for the parties to prescribe their own rules and
other terms subject to which their dispute is to be
mediated. It may be difficult for parties to settle such terms
in advance. It may have to be done at the first meeting with
the mediator. But even so it may be difficult to for see all
the eventualities and provide for them. ADR institutions
and organizations carry with them model rules and
regulations to which the parties can consent with or
without modification.
Selection of a mediator:
There are ADR organizations and institutions which
help the parties to find out a mediator who is most suitable
to the nature of, their dispute. The parties can also select a
person on the basis of their mutual confidence. The person
concerned should have necessary knowledge for handling
the dispute in question. He should also have some skill
essential for pushing through the process of mediation.
The Process of Mediation188
A mediator must follow the following process:
Stage One: Mediator lets lawyers and clients know what to
expect and how to prepare; arranges logistics; and
addresses authority issues, and ensures the attendance of
decision-makers.
188 NYAYA DEEP: The Official Journal of NALSA Vol – vii, Issue 4, October, 2006. P. 39.
227
Stage Two: The mediator's introduction
Mediator explains the process; establishes procedural
guidelines; sets tone of neutrality and optimism.
The mediator should model (i.e. demonstrate) a calm,
but-businesslike, demeanor when mediating a
dispute. The mediator should be relaxed, but focused.
The atmosphere can be described as similar to a
business meeting. Anxiety, frustration, and the anger
are highly contagious emotions. The mediator should
not display any of these emotions. When a mediator
adopts a moderate tone, the parties are likely to
follow.
Explain that statements made in mediation are
confidential. This means that parties should feel more
comfortable to talk about their ideas and positions
knowing that their words cannot he used against
them at a later date.
Stage Three: Identifying the problem:
Parties and /or counsel state their view of the dispute and
identify issues that remain in dispute.
What would you like the other party and me to
understand about your perspective on this dispute?
Discuss any aspects of the dispute you would like the
other party and me to understand: the factual
background, what is important to you about the
dispute, what you need to conclude it the law.
Stage Four: Exploring the problem
Mediator assists parties in recognizing their underlying
values, needs, and interests.
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What about is important to you?
What needs to be taken into consideration for you to
resolve this disputes?
What interests of yours does... meet?
What if you don't get?
What goals/interests/needs of yours could be
furthered by an agreement?
What considerations/concerns/needs/interests of
yours must be met by any agreement?
If the other party were to agree to -
1. What would that mean?
2. What problems would that solve? What needs would be
met?
3. What interests would be served?
4. IF other party were not to agree to
5. What problems would that create?
6. What needs would go unmet?
7. Why it is important to you to have?
8. Why do you want?
Stage Five: Developing options for resolution
Mediator and parties identify and evaluate options for
resolving the dispute; parties choose mutually agreeable
options.
What ideas do you have for addressing the problem
you identified?
What solutions will meet as many of your needs as
possible?
Brainstorming options.
Evaluating options
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Stage Six: Concluding the mediation
Mediator and/ or counsel document the terms of
agreement; mediator confirms the parties understanding
and acceptance of the agreement; define future
responsibilities of the parties; acknowledge conclusion of
mediation
Social Communication Techniques used in Mediations
Summarizing:
It is a technique used by a mediator to briefly, clearly
and accurately restates the essence of a statement by a
party or attorney regarding issues, positions, or proposed
terms of agreement.
In summarizing, a mediator must be careful to:
a. Be accurate
b. Be brief
c. Re-state the issues, positions or terms in words
that are neutral
d. Be complete.
Acknowledgment:
It is a communication technique used by a mediator to:
1. Reflect back a person's statement or position.
2. In a manner that recognizes the perspective of the party
regarding the statement or position.
One purpose of acknowledgement is to convey that the
mediator has accurately heard and understood the
statement/ position. Another purpose of acknowledgement
is to convey that the mediator understands the importance
of the statement/ position to the party.
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Re-directing:
It is a communication technique in which the mediator
shifts the focus of a party from one subject to another. Re-
directing may be used to:
1. Focus on the details
2. Re-focus on general issues
3. Respond to a hostile or highly adversarial statement
by a party.
Deferring:
It is a communication technique in which the
mediator postpones a response to a question or statement
by a party. It may be used:
Where a party or attorney requests a premature
evaluation
To follow an agenda established by the mediator
To gather additional information
To de-fuse hostile or highly adversarial statement.
Setting an agenda:
It is a communication technique used by mediators to
establish the order in which issues, positions, claims, or
proposed settlement terms will be addressed.
Special Communication Skills
Dealing with Emotions:
1. Accept some venting
2. Utilize active listening to verify the sincerity of the
emotions
3. Utilize private sessions (caucuses)
4. Insist that some order be maintained
5. Move to an easier issue on the agenda
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6. Utilize paraphrasing
7. Deal with one issue at a time
8. Invite parties to disclose the emotional impact of the
situation.
9. Invite parties to express their feelings to one another
10. Suggest a recess.
Using the Private session (Caucus)
Probably the most over used tool possessed by the
facilitator or mediator is the private session. It is so over
used that some facilitators/mediators always break the
parties into private sessions at the conclusion of the
opening statements. Over use of the private session can be
counterproductive because communication is insulted.
When should you consider asking for a private session?
a) To explore share private matters and information you so
not desire to share in general sessions.
b) To regain control when a party is getting out of hand.
c) When you believe you need to "float" risky trial balloons.
d) When you believe the parties are near impasse.
When should you consider asking for a general session?
vi. When a party can be directly persuaded.
vii. When a party can communicate a compelling
position.
Using body language: non-verbal communication
gestures, use of space, and manipulation of objects-may
be intentional or unintentional, but it still.
232
Reactive Devaluation
Reactive devaluation is a psychological phenomenon
that occurs when a person reacts negatively to information
based upon the source of the information.
Parties in a dispute may react negatively to offers or
counteroffers if they are suggested by the opposing party or
attorney. A mediator may handle this of situation by:
Taking ownership of the information, with the
consent of the party.
Suggesting a possible offer or counter-offer without
attributing it to any particular person.
Prissily mediator must have the following-qualities namely
Patience
Optimism
Detachment
Perseverance
Flexibility
Sense of humor
Therefore a person having all these qualities and who
are well versed in the ADR mechanism can better facilitate
the ADR process in the country and secure access to
justice in time.
Negotiations
Negotiation is the process by which a group of agents
communicate with one another to try and come to a
mutually acceptable agreement the parties to a dispute
can, on their own motion, start a process of negotiations
through correspondence or through one or two mediators
with a view to finding a mutually acceptable solution of the
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problem. Law has been encouraging this process all along.
There are provisions in the Civil Procedure Code under
which the courts have to give to the parties all the facilities
of bringing about a compromise settlement. A compromise
agreement is submitted for the approval of the court. If the
court approves the compromise, a consent decree would be
passed. The decree has-a binding effect, it constitutes res
judicata. The counsels of the parties play in the process of
compromise the role of mediators
Need and Scope of Negotiations:189
It encourages attempts to compromise:
For the purpose of encouraging attempts at
compromise, Section.23 of the Evidence Act. 1872 provides
protection against disclosure of information submitted by
parties to each other. Such communications therefore
become confidential. They cannot be used by way of
evidence anywhere. Any disclosure made without the
consent of the party making the communication would be a
breach, of confidence and would be actionable as such for
any consequential loss.
This protection or privilege against disclosure is
intended to encourage parties to settle their differences
amicably and to avoid litigation if possible. Explaining, the
policy of the provision an Australian Judge says:
The law relating to communications without prejudice
is of course familiar. As a matter of policy the law has long
excluded from evidence admissions by words or conduct
made by parties in the course of negotiations to settle
189 Singh Awtar: Arbitration and Conciliation Act, 1996, p. 410-13.
234
litigation. The purpose is to enable parties in an attempt to
compromise litigation to communicate with one another
freely and without the embarrassment which the liability of
their communications to be put in evidence subsequently
might impose upon them. The law relieves them of this
embarrassment so that their negotiations to avoid litigation
or to settle it may go unhampered the privilege covers
admissions by words or conduct. For example, neither
party can use the readiness of the other to negotiate as an
implied admission.190
The party proposing compromise may expressly make
his negotiation or letter to be ―without prejudice‖. The
significance of these words was explained by LINDEY, LJ in
Walker v Wilsher.191
“What is meant by the words without prejudice? I think
they mean without prejudice to the position of the writer of
the letter if the terms. He purpose are not accepted. If the
terms proposed in the letter are accepted, a complete
contract is established, and the letter, although written
without prejudice, operates to alter the old state of things
and to establish a new one. A contract is constituted in
respect of which relief by way of damages or specific
performance would be given ".
When a correspondence relating to a dispute is
initiated by a letter marked "without prejudice" the
protection against disclosure will apply to the whole
190 Dison, CJ in Field v. Commissioner for Railways, (1957) 99 CLR 385,
cited, EDWARDS‘S CASES ON EVIDENCE IN AUSTRALIA, 519 at p. 520
(1968). 191 (1889) 23 QBD 335 LJOB 501 : 5 TLR 649 (CA).
235
correspondence even if the letter in reply is not so marked.
In Paddoch v Forrester192 a letter was written by one p'y
"without prejudice". This reply to the letter was not so
marked. Even so the court held it to be inadmissible.
T1NDAL, CJ observed:
"It is of great consequence that parties
should be unfettered by correspondence
entered into upon the express
understanding that it is to be without
prejudice. And it would be hard indeed to
hold that a letter which is stated to be
written without prejudice is admissible in
evidence because the same terms are not
adopted in the reply. When used in the
letter containing the offer, the words
"without prejudice" must cover the whole
correspondence.
It is not, however, necessary for this privilege to arise
that the words "without prejudice" should be expressly
inserted, or that it should be an express condition that
admissions shall not be used in evidence. An implied
agreement to that effect can also be inferred from the
circumstances of' the negotiations. Oral statement made in
connection with written correspondence would also be
protected.
There are authorities to the effect that
communications made in the course of negotiations for
reconciliation are privileged and cannot be admitted in
192 (1842) 3 SCOTT NR 715: 133 ER 1404.
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evidence without the parties consent.193 "The rule applies to
exclude all negotiations genuinely aimed at settlement
whether oral or, in writing from being given in evidence. A
competent solicitor will always head any negotiating
correspondence without prejudice to make clear beyond
doubt that in the event of the negotiations being
unsuccessful they are not to be referred to at the
subsequent trial. However, the application of the tide is not
dependent upon the use of the phrase 'without prejudice'
and if it is clears from the surrounding circumstances that
the parties were seeking to compromise the action.
Evidence of the content of those negotiations will, as a
general rule, not be admissible at the trial and cannot be
used to establish an admission or partial admission.‖194
Where without prejudice negotiations led to an agreed
settlement between two parties engaged in litigation, the
content of those negotiations was held to be not liable to be
disclosed to any other party in the litigation, nor to be
admissible in evidence. Similarly, where a compromise was
entered into but was not acted upon, an attempt by a party
to the compromise to call a witness to testify to the terms
could not succeed.195
The Contract Act, 1872 also contains provisions for
encouraging mutual settlements through the process
described as accord and satisfaction. Section 62 and 63
enable parties to arrive at any alternative solution in
193 Me Taggari v. Mc Taggari, [1948] 2 All ER 754 CA. Henley v. Henley,
(1955) 1 All, ER 590.
194 Rush and Tompkins Ltd v. Greater London Council, (1989) AC 1280,
per GRIFFITHS at p. 1299. 195 Bauribandhu Mohanty v. Suresh Chandra Mohanty, AIR 1992 Ori 136.
237
respect of the bargain that they have made. Under the
doctrine of consideration, decisions have been delivered by
the courts 'to the effect' that compromise of a pending suit
is a good consideration for the compromise so as to make it
binding on the parties. Such compromises have been
recognized as consideration irrespective of the merits of the
claim or defense on either side or when there is some doubt
in the minds of the parties as to their respective rights. In
a case before the Supreme Court, two brothers were
quarreling over the division of their late father's property.
Their mother persuaded the junior to give up the struggle
on her promise that if the elder one did not provide him a
sum of money she would subsidies him. The promise was
held to be enforceable.196
A compromise about a court decree was that if the
tenant would pay all the money found due against him by a
certain date, the landlord would not enforce the decree of
dispossession, this was held to be enforceable.
Settlement of disputes through negotiations
The Arbitration, and Conciliation Act, 1996 also
contains in S. 30 a full provision for arriving at an agreed
settlement.
It is not incompatible an arbitration agreement for an
arbitral tribunal to encourage settlement of the
dispute and, with the agreement of the parties, the
arbitral tribunal may use mediation, conciliation or
196 Commissioner of Wealth Tax v. Vijayaba, (1979) 2 SCC 213: AIR 1979 SC 982.
238
other procedures at any time during the arbitral
proceedings to encourage settlement.
If, during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the
settlement in the form of an arbitral award on agreed
terms.
An arbitral award on agreed terms shall be made in
accordance with Section 31 and shall state that it is
an arbitral award.
An arbitral award on agreed terms shall have the
same status and effect as any other arbitral award on
the substance of the dispute.
5.21 Mediation – A win-win Situation :
Mediation is a process in which the mediator, an
external person, neutral to the dispute, works with the
parties to find a solution which is acceptable to all of them .
The most important aspect of mediation is that the
mediator can‘t impose a decision on the parties. The
mediator controls the process, but the outcome is always in
the hands of the parties. Mediation is completely voluntary,
both in the decision to try it as well as to continue with it.
This is best illustrated by saying that a party is free to
terminate the mediation, without the need to give reasons,
at any time if it feels that it is not being served well by the
process. In its focus on non-coercive and consensual
processes, mediation is radically different from the
adversarial system. Mediation creates an atmosphere of
239
confidentiality and enables the participation of parties,
with their legal counsel or just by themselves. While
attention is paid to the law insofar as it impacts the
matter, the objective is to arrive at a solution acceptable to
the parties which will end the dispute. Agreements reached
in mediation are readily enforced by the legal process. The
courts rarely interfere with them197.
To assist parties, the mediator uses special
negotiation and communication techniques to help the
parties to come to a mutually acceptable settlement. The
mediation process is structured and informal. The parties
control the outcome of the dispute(s) which is in the form of
an agreement / settlement. The mediator controls the
process through which parties arrive at their settlement.
The entire process is confidential198.
The parties can appoint a mediator with their mutual
consent or a mediator can be appointed by the Court in a
pending litigation. Mediation always leaves the decision
making power with the parties. A mediator does not decide
what is fair or right, does not apportion blame, nor renders
any opinion on the merits or chances of success, if the case
is litigated. Rather, a mediator acts as a catalyst to bring
the two disputing parties together by defining issues and
limiting obstacles to communication and settlement199.
197 Sriram Panchu, Sr. Adv. ―Mediation, Practice & Law, The Path to successful dispute resolution‖ Edn. 2011, Pg. 9
198 http://delhimediationcentre.gov.in visited on 21st March, 2012
199 http://delhimediationcentre.gov.in/reference.htm visited on 21st March, 2012
240
Why Mediate :
(1) Relations are strained, but must continue.
(2) Mis-communication is apparent and a skilled neutral
would facilitate communications.
(3) The presence of a third party would change dynamics.
(4) The parties may be willing to settle or re-evaluate
their positions.
(5) Confidentiality is important.
(6) Parties are interested to retain control of outcome.
(7) Time factor may be a consideration.
5.22 Benefits of Mediation :
(1) Mediation is private, prompt and affordable.
(2) It is not only informal and non-binding, but also
voluntary. Any party may withdraw at any time.
(3) It provides an opportunity to the parties to talk about
their case in their own words and to directly
participate in negotiation of their claims.
(4) It is a forum for parties to develop creative, non-
traditional remedies that promotes their underlying
business and personal interests.
(5) It is free. No cost, court fee, etc. is required. Only the
expenses of travelling to come to the Mediation Centre
are to be borne by the parties. In some cases, even the
same are reimbursed, if required. Thus, less
expensive than litigation.
(6) It is neutral. Parties decide settlement terms. No
determination of guilt or innocence. The amicable
settlement is arrived at by the parties themselves.
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(7) It saves time. Mediation may complete in one meeting.
Legal or other representation optional. It is a time-
based procedure and usually the same is taking of
nearly 15 days to 3 months maximum. Thus, it
provides fast resolution of disputes.
(8) It is confidential. Information disclosed by the parties
to the mediation is not revealed to anyone. Also, the
material and he settlement agreement arrived at
between the parties in a dispute can‘t be used in some
other suit.
(9) No due process of law is to be followed.
(10) The procedure is controlled by the parties themselves.
In this procedure, important roles are played by the
parties only.
(11) One can avoid litigation, which sometimes may prove
to be too lengthy. The disputes are resolved, not
decided.
(12) It improves communication between the parties as the
parties openly discuss the underlying disputes. It
enhances communication leading to mutually
satisfactory resolutions. Sharing of information by the
parties lead to better understanding of issues.
(13) It is a win-win situation, in contrast to judicial
decision. The result of mediation is amicable
resolution to a problem accommodated willingly by
both the parties.
(14) The parties control the outcome, which in turn avoids
the uncertainty and dissatisfaction experienced in
court.
242
(15) No appeal / revision lies. Since the agreement /
settlement has been arrived by the parties of their
own, the question of deviation from complying with
the agreement / settlement may not arise and as per
the data available, there is 100% compliance of such
agreement / settlement.
(16) Refund of court fee.
(17) It is a very convenient process as arranged at a
convenience of the parties. Maybe, held at any place
and / or at any time; not limited to ordinary working
days and / or hours.
(18) It preserves relationship, which may be destroyed by
court litigation. Thus, it looks to future. Sometimes,
by way of mediation, relationships take a new look
and it blossoms.
(19) It takes into consideration sentimental and emotional
feeling and on-going relationships.
(20) Results in custom made solution where custom and
privilege prevailing in the society is taken care of so
that psychological state of mind of either party is not
disturbed.
Other Benefits of Mediation
There are numerous advantages for choosing
mediation over other channels of dispute resolution .
In mediation, disputes can be dealt with promptly and
provides an opportunity to address the situation
before the problem accelerate. Mediation offers
multiple and flexible possibilities for resolving a
dispute.
243
Parties to a dispute may choose mediation as a less
expensive route to follow for dispute resolution. While
a mediator may charge a fee comparable to that of an
attorney, the mediation process generally takes much
less time than moving a case through standard legal
channels. While a case in the hands of a lawyer or
filed in court may take months or even years to
resolve, a case in mediation usually achieves a
resolution in a matter of hours. Taking less time
means expending less money on hourly fees and
costs.
Mediation offers a confidential process. While court
hearings of cases happen in public, whatever happens
in mediation remains strictly confidential. No one but
the parties to the dispute and the mediator(s) know
what has gone on in the mediation forum. In fact,
confidentiality in mediation has such importance that
in most cases the legal system cannot force a
mediator to testify in court as to the content or
progress of a mediation. Many mediators actually
destroy their notes taken during a mediation once
that mediation has finished. The only exceptions to
such strict confidentiality usually involve child abuse
or actual or threatened criminal acts.
Parties can control the outcome of the dispute in
mediation. It provides a win-win situation for both the
parties as they play an important role in formulating
the terms of the settlement. In a case filed in court,
the parties will obtain a resolution, but a resolution
244
thrust upon the parties by the judge or jury. The
result probably will leave neither party to the dispute
totally happy. In mediation, on the other hand, the
parties have control over the resolution, and the
resolution can be unique to the dispute. Often,
solutions developed by the parties are ones that a
judge or jury could not provide. Thus, mediation is
more likely to produce a result that is mutually
agreeable, or win/win, for the parties. And because
the result is attained by the parties working together
and is mutually agreeable, the compliance with the
mediated agreement is usually high. This also results
in less costs, because the parties do not have to seek
out the aid of an attorney to force compliance with the
agreement. The mediated agreement is, however, fully
enforceable in a court of law.
The mediation process consist of a mutual endeavor.
Unlike in negotiations where parties are often
entrenched in their positions, parties to a mediation
usually seek out mediation because they are ready to
work toward a resolution to their dispute. mediation
involves parties using the mediation process to define
the issues, develop options and achieve a mutually-
agreed resolution. The mere fact that parties are
willing to mediate in most circumstances means that
they are ready to "move" their position. Since both
parties are willing to work toward resolving the case,
they are more likely to work with one another than
against one another. The parties are amenable to
245
understanding the other party's side and work on
underlying issues to the dispute. This has the added
benefit of often preserving the relationship the parties
had before the dispute.
Mediation creates a forum where disputes and issues
can be heard and addressed by the parties with the
help of a neutral third party. A good mediator is
trained in conflict resolution and in working with
difficult situations. The good mediator is likely to
work as much with the emotional aspects and
relationship aspects of a case as he or she is to work
on the "topical" issues of the matter. The mediator, as
a neutral, gives no legal advice, but guides the parties
through the problem solving process. The mediator
may or may not suggest alternative solutions to the
dispute. Whether he or she offers advice or not, the
trained mediator helps the parties think "outside of
the box" for possible solutions to the dispute, thus
enabling the parties to find the avenue to dispute
resolution that suits them best200.
Mediation is Not … :
(1) Mediation is not a bar to litigation or arbitration : It
does not preclude the use of other methods of dispute
resolution. The right to litigate or arbitrate not lost
merely by participating in mediation.
200 Moore, Christopher W. The Mediation Process: Practical Strategies
for Resolving Conflict, 2nd Edition. San Francisco: Jossey-Bass Publishers, 1996.
246
(2) Mediation is not toothless : The parties control the
settlement / agreement and, thus, the settlement /
agreement can be enforced.
(3) Mediation is not mere compromise : It does not split
the difference down the middle, while creative options
are developed to arrive at a mutually acceptable
solution.
(4) Mediation is not what lawyers, managers or judges do
all the time : A party or lawyer cannot play the role of
a neutral even they are reasonable or friendly. A
neutral is detached from the problem, emotion and
the commercial pressures. Unlike a judge, a mediator
derives authority only from the parties.
(5) Mediation is not a waste of time and money if it fails :
It helps to narrow down the gap, tempers, aspirations
with realism to a large extent.
(6) Mediation is not yet another cost to the unfortunate
parties : Mediation is always with no cost or minimum
cost. In any case, it is less expensive than the fee of
the lawyers, experts, etc.
(7) Mediation is not a sign of weakness : It is a route to
client satisfaction. There is no soft option. Rather, it
is a tough, demanding & rewarding process. It
involves intense negotiation that requires quickness of
mind, flexibility and imagination.
(8) Mediation need not be risky : The greatest risk
perceived is that the other party would learn more
about their case. The release of information and the
terms of settlement is within the control of parties.
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(9) Mediation is not counseling : In mediation, neutral
relationship is preserved with the parties; while in
counseling, intense relationship develops with
individual clients. Mediation facilitates negotiation for
specific disputes; while counseling is a free ranging
discussion on any topic. In mediation, problems
solving techniques are used; while counseling is
psychological analysis.
Mediation Process :
The process can be summarized by saying that the
mediator opens up communication, encourages parties to
participate, identifies facts and issues, focuses them on
their long-term interests, gets them to be realistic about
their case and its prospects, encourages them to come up
with options for settlement, and helps them to refine those
options to yield an agreement that both parties see as a fair
and proper end to their dispute. The mediator moves
parties from the extreme ends of the disputing spectrum to
the common ground of settlement201.
To sum up, mediation process means :
(1) Mediator‘s Opening Statement;
(2) Parties‘ Opening Statement;
(3) Summarizing and limiting the topics, i.e., identifying
the issues.
(4) Redefining the issues, if necessary, reframing the
same to generate possible solutions or options;
(5) Private meetings between mediator and each party;
(6) Further private and joint sessions, if necessary;
201 Supra 177 at p. 10
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(7) Agreement signed by both the parties and the
mediator.
In other words, the mediation process works as under:
Identifying the issues for resolution.
Focusing party on their long-term interest.
Getting parties to be realistic about their case
especially its weakness.
Making them examine their alternatives to
settlements.
Giving them freedom to create options for settlement.
Refining their suggestions and reaching agreement.
It is our tradition to forgive and forget as also to give
and take. Taking this norm as substratum of the mediation
process, a mediator is a conduit pipe for both the parties to
settle their misunderstanding and disputes by way of forget
& forgiveness and give & take to arrive at ‗win-win
situation‘.
All the communication between the parties will have
to pass through the mediator, but a stage comes, with the
efforts of the mediator, the metal blocks between the
parties are broken and parties during the process of
mediation starts communicating with each other. Main aim
of a mediator‘s efforts is to break the ice between the
parties because thereafter only there could be amicable
settlement.
Mediator must, prior to initiation of the process, think
over the different alternatives, if negotiation fails. They are:
(1) Best Alternative to Negotiated Agreement (BATNA);
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(2) Worst Alternative to Negotiated Agreement (WATNA);
and
(3) Most-likely Alternative to Negotiated Agreement
(MALATNA).
Any agreement and in a method of negotiation, three
criteria must be considered :
(1) it should produce a wise agreement if it is possible;
(2) it should be efficient; and
(3) it should improve or at least not damage the
relationship between the parties.
Mediator should consider during the process that
arguing over positions produces un-wise agreement and at
the same time, it is inefficient, which may damage even the
ongoing relationship of the parties. However, mediator
should take care that when a stage of bargaining comes
during the process, he should monitor the process, which
may develop into a co-operative bargaining, or principled
bargaining, which is also known as collaborative
bargaining.
There are many impediments to settlement despite of
the fact that a mediator is a trained and qualified person
having integrity, which may be due to failure of
communication, poor negotiation skills, lack of sufficient
information, inability to control emotions, differing legal
perspective, unrealistic expectation and most rigid
impediment to settlement is there are wrong people on the
table.
To summarize, the mediation process in a nutshell is
as under:
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(a) informed consent as to process;
(b) sharing perspective;
(c) remember the common ground;
(d) establish a problem solving agenda;
(e) identify desire information and documentation;
(f) clarify desired outcomes, interest and positive
intention;
(g) develop options;
(h) select from options (as discussed above BATNA,
WATNA and MALATNA); and
(i) integration and finalization.202
Qualities of a Good Mediator :
(1) Trust : This is the most important characteristic. If
the parties do not respect the mediator, the chances
of success are small. Mediation often involves private
discussions between a party and the mediator. If the
parties cannot trust the mediator to evaluate their
positions impartially, the mediation is doomed.
(2) Patience : Parties frequently come to the mediation
with set positions. A mediation must have the
patience to work with the parties to bring them to the
point where agreement is possible.
(3) Knowledge : The chances of success are greater if the
mediator has some knowledge or expertise in the area
of dispute. For example, the parties will have more
confidence in a mediator, who knows something about
202 Shruti A. Desai, Adv., Mumbai High Court in ―Mediation, Practice & Procedure & Related Laws in India‖, First Edition, August 2005
251
software technology than they would in a mediator
who knew nothing about the subject.
(4) Intelligence : A mediator must be resourceful and
attentive to understand not only the nature of the
dispute, but also the motivations of the parties. The
requirement is, thus, not only an ability to
understand the subject matter, but also an ability to
understand people and their motivations as well.
(5) Impartiality : This characteristic is closely related to
trust. A mediator must be impartial. Some mediators
will express their opinions about the position of a
party or will use their powers of persuasion in order
to bring the parties to agreement. If the mediator is
not viewed as neutral, any opinions will carry no
weight and the parties will refuse to follow a biased
leader.
(6) Good Communication Skills : A mediator needs good
judgment and good communication skills. The
mediator‘s job is to evaluate and understand the
motivations of the parties, forsee potential solutions
and then bring the parties to an agreement. Without
good communication skills, this task seems to be
impossible.
Mediator’s Techniques :
(1) Asks questions that bring out desired information
(open-ended, clarifying closed questions that bring
out underlying interests, fact-based questions, etc.).
(2) Manage outburst and interruptions with
acknowledgment. Acknowledge the point of feelings.
252
(3) Don‘t jump to a conclusion.
(4) Don‘t rush to find a solution.
(5) Understand that, for most people, their perceptions
equal their reality. To them, their perception is a fact.
(6) Understand that two people can perceive a situation
differently and they can both be right.
(7) Let go of your desire to talk.
(8) Be careful in note taking.
(9) Be mindful of the body language – own as well as the
speaker‘s.
(10) Minimize interruptions.
Effective Mediator :
(1) Listens and responds courteously with understanding.
(2) Acknowledges points made and the significance to the
parties to problems and issues.
(3) Encourages the parties to make their own decisions.
(4) Subtly analyses the parties‘ presentations.
(5) Asks relevant and insightful questions.
(6) Probes for clarification.
(7) Keeps track of new information and changing
positions.
(8) Appears relaxed, alert and engaged with the process.
(9) Demonstrates skill and confidence in verbal
communication.
(10) Presents information, analysis and explanations in
ways that influence the parties positively.
Ineffective Mediator :
(1) Allows interruption.
(2) Gives attention to the person who interrupts.
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(3) Fails to handle interruption appropriately.
(4) Allows the parties to cross talk.
(5) Fails to hold caucus at appropriate time.
(6) Cut off the parties‘ advocates / friends.
(7) Rushes the process.
(8) Fails to follow four stages of mediation – Introduction,
Joint Session, Caucus and Agreement.
(9) Reconvene joint session at wrong time.
(10) Fixes problem(s) for the parties.
Alternative Dispute Resolution And Its Relevance
In recent times, the communities world over have
become more and more aware about their human and legal
rights and seek redressal frequently through litigation in
courts in case of infringement. The resources at the
disposal of judicial system are inadequate to meet the
growing litigation resulted in backlog of cases and delay in
the administration of justice. It was reported in the
Hindustan Times (24th June, 2008) that about 3 crore
cases are pending in various courts across the country and
India is facing unprecedented "litigation explosion". It was
further reported that around ___ crore Indians are awaiting
justice with each case involving an average of three
litigants. As per the latest figure released by the Supreme
Court of India, over 31985259 crore cases are pending in
hundred of subordinate courts, 24 High Courts and the
Supreme Court. This figure does not include the cases
pending in various tribunals and quasi judicial bodies. Out
254
of total 31985259 cases, over 27286642 cases are pending
in subordinate courts.203
It has become necessary to resort to rapid and
effective methods of dispute settlement between litigants
other than traditional judicial methods i.e. Courts through
Alternative Dispute Resolution (ADR) which is not a
substitute for courts but a complementary mechanism to
shed off the work load of the courts. The need of the ADR is
real and urgent. It is a mechanism to mitigate the existing
deficiency in the judicial system. The Chief Justice Tan
Hun Hoe in his article, "Alternative Methods of Dispute
Settlement in Malaysia" has declared that the judiciary has
to device new methods, new tools and new stratagem for
the purpose of providing social justice to the common man
which can respond to the urges of the large masses of
people for social justice by adopting creative and activist
approach.
Chief Justice William H Rehnquists has commented
that our Government should be expected to provide a
system of dispute adjudication that is tailored to the needs
of most potential litigants and who can make use of the
system.
The alternative mechanism are not intended to
supplant court adjudication but rather to supplement it. It
provides an opportunity to resolve the differences, conflicts
or the disputes creatively, efficiently, effectively and
amicably. The Supreme Court in Salem Advocate Bar
203. Hindustan Times, 24 June, 2008.
255
Association, TN v. Union of India204 has observed that in
certain countries of the world over 90 per cent of the cases,
have been settled out of the court.
Mediation is one of the accepted mode of alternative
dispute resolution globally. It is a relatively recent arrival
on the legal scene and having its origin in the United
States in the later half of 20th century. In United States,
there are various reasons for resolving disputes without
recourse to litigation. It has been enthusiastically
embraced by a number of States, often making it a
mandatory stage of the court process. The Centre for
Effective Dispute Resolution (CEDR) published definition of
mediation as "A flexible process conducted confidentially in
which a neutral person assist the parties in working
towards a negotiating agreement of dispute or differences,
with the parties in ultimate control of the decision to settle
all the terms of the resolution". In language of a layman,
"mediation is a process of amicable/ synergistic solution to
a dispute/ conflict arrived by optimization leading to a win
situation". It is a boon to the social framework leading to
higher returns and is satisfying.
In India, Section 89 of Code of Civil Procedure Courts,
1908 provides mediation as one of the method of
alternative dispute resolution. It is necessary to infuse
"Indianness" in the concept of mediation particularly when
it is originated in western countries.
204 (2003) 1 SCC 499
256
Mediation and Its Governance
It is claimed that the mediation is in practice in India
since long time. India has a long history of resolving
disputes without formal trials. A vast diversity of ancient
dispute resolution processes is used, informally, in various
regions and sub-culture throughout India such as
settlement of dispute with the involvement of Sarparch in
petty disputes. These settlement processes were having
elements of direct participation, prompt resolution and
affordability. However, such resolution processes lacked
standard, systematic approach to dispute resolution.
Mediation and Other forms Of ADR
Alternative dispute resolution (ADR) is gaining
popularity throughout the world. The reason being that
ADR is private, affordable and prompt. By contrast, the
adversarial process is public, expensive and time-
consuming. Studies show that in United States, less than
5% of the cases actually go to trial and 95% of the cases
are resolved through some form of ADR.
Although in Western countries, the prelitigative
negotiations are also prevalent. But in India by virtue of
Section 89 Code of Civil Procedure, the focus is mainly on
Court annexed mediation as a form of ADR. In third-party
ADR processes, a neutral person is engaged for resolving a
dispute between the parties.
Mediation. Mediation is a non-binding negotiation
process, in which a neutral third person facilitates the
disputants in arriving at a mutually acceptable settlement.
To assist the parties, the Mediator uses specialized
257
negotiation and communication techniques to arrive at
dispute resolution. The mediation process is structured
and informal. Parties control the outcome of the dispute
which is in the form of an agreement/ settlement. The
mediator controls the process through which parties arrive
at their settlement. The entire process is confidential.
Models of Mediation
Mainly three types of mediation models are being
followed in India :-
1. Commercial Mediation (business disputes, legal
disputes, insurance disputes);
2. Community Mediation (community disputes, neighbor
/neighbor disputes, relationship disputes);
3. Family Mediation (family disputes, divorce, custody,
child support, visitation);
Types of Mediation
Private Mediation Private mediation services are
available from a broad range of private mediation
providers, including :
Professional, private, independent mediators
(attorneys and non attorneys)
Retired Judges
Non-profit agencies
For profit organizations
In private mediations, independent mediators may
that be advocates, Retd. Judges, professionals.
Court-Annexed Mediation : By virtue of Section 89 Code
of Civil Procedure, the model of Court annexed mediation is
being followed, The Courts have mediation centres in which
258
the cases are referred by different Courts. After a
preliminary inquiry, these are marked to experienced &
trained mediators from the panel of mediators which is
available with mediation centres.
Forms of ADR Prevalent in Western Countries
Other forms of ADR which are prevalent in Western
Countries are :
Arbitration: Arbitration is an adjudication process, in
which the parties present their disputes to a neutral
arbitrator for a decision. Arbitration can be binding or non
binding. The arbitration process is akin to the litigation
process in its procedure. Arbitration is used in commercial
disputes.
Med-Arb. Med-Arb is a hybrid ADR process. Initially, the
parties begin with mediation and when they are unable to
reach to a negotiated settlement then it is converted to
arbitration. Med-Arb is used in disputes where the parties
need a guarantee of finality, but they wish to attempt to
negotiate an agreement.
Judicial Settlement Conferences : The referral courts
designate one or more judges to preside over settlement
conferences with parties and their advocates. Judicial
Settlement is generally brief process wherein a judge
discusses the prospects for settlement in a meeting with
the parties and their advocates. Section 89 CPC also
provides for judicial settlements. It can be voluntary or
mandatory.
Settlement Panels. Courts will often use settlement panels
consisting of a judge and two Advocates, One plaintiff
259
advocate and the other defense advocate to resolve
disputes. It is utilizing the volunteer services of
experienced advocates along with judges. It is basically a
negotiation process and is used in pending Court cases.
Early Neutral Evaluation: Neutral evaluation is an
evaluation process conducted in early stages of a case. In
this process, the neutral evaluator provides the parties
with an evaluation and determination about a case's value
in order to facilitate settlement. The parties exchange
information and make oral representations and statements
to the evaluator. Neutral evaluation can be binding or non-
binding. It is usually done in cases involving technical and
scientific issues.
Special Master: It is an adjudicative process, in which
usually an advocate or a retired judge designated by a
court acts as a special master. He presides over pre-trial
and/or trial issues. It is used in cases of intellectual
property, environment, construction defects which require
a high degree of expertise or where there are numerous
parties. The special master in some cases preside as the
trial judge.
Neutral Fact Finding : Neutral fact-finding is an
investigation process. It can be used to investigate
employment disputes such as harassment, discrimination,
or wrongful termination. The process can be advisory. This
ADR process is used by companies, government agencies,
and other organizations when an internal investigation of a
complaint is not feasible.
260
Litigants have a range of ADR methods to select an
appropriate mode for redressal of their disputes. The
disputants reserve their right to adhere to litigation while
choosing the ADR method which is non-binding. People are
to be extensively educated about ADR mechanism so that
they may benefit and choose appropriate method for
resolution of their trained in the technique
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