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PROCEDURAL FORMAT OF MEDIATION
The steps involved in a formal mediation procedure are as follows :
1. SUMMONING OF THE MEDIATION PROCESS : The summoning of the mediation is one of the vital steps involoved in the mediation procedure as it covers a number of steps under it. Under section 89 of the Civil Procedure Code, 1908 the court is required to refer a case for ADR allowing the parties to opt for any of th five modes of settlement - arbitration, conciliation, judicial settlement, Lok Adalats or mediation. The judge making the order of themediation is known as the referral judgeand he should acquaint himself with the facts of the case and the circumstances leading to the case as well as its nature, before making a referral order to formally initiate the case through ADR. A referral order, typically, consists of details like name of the referral judge, case number, name of the parties, date and year of institution of the case, stage of trial, nature of the dispute, statutory provisions under which the reference is made, next date of hearing before the referral court, etc. In a civil suit, the court may issue a referral order for mediation at three stages :
a. before the completion of the pleadings of the case : the advocates representing the parties can act as a mediator to settle the disputes informally outside the court, as in this stage, the case is not particularly before the court.
b. after the pleadings of the case and before framing of the issues : in the case of Alfons Infrastructure vs. Cherian Varkey Construction, the Hon'ble Supreme Court has held that the most appropriate stage to refer a case for ADR would be after the pleadings of the case and before framing of the issues.
c. after framng of the issues : according to section 89 of the CPC,1908 the case can be referred to for ADR at anytime in the course of the proceedings of the case.
2. OPENING STATEMENTS BY THE MEDIATOR AND THE DISPUTANTS : the mediator introduces himself stating his qualifications, estalishes his neutral stand on the issues involved and his faith in the procedure of mediation. The mediator also states the order in which the entire process shall be conducted, giving the parties a chance to clarify their doubts, if any. The mediator also establishes his control over the process. The negotiators, in their opening statement, state their positions on the case and their claims from the other party. The mediator then re-instates the points of the negotiators, trying to comprehensively incorporate the points of both the parties.
3. SETTING THE AGENDA : A clear-cut agenda is required to be set as to allow for clarity in the proceedings of the mediation. This would also allow for a set clarity in the parties and an understanding of the progress and benefit of the negotiations.
4. CAUCUSES WITH THE PARTIES : In a joint session, the petitioner and the defendant are provided with an opportunity of presenting their case before the mediator and the other party. In a separate session, the parties are allowed to express their feelings and underlying motives in a confidential manner, in the presence of the mediator alone. The mediator also ensures confidentiality from his end. Further, in both these kinds of sessions, the mediator might ask some questions in order to dive deeper into the case, enabling him/her to frame the issues of the case, at hand.
5. REACHING A SETTLEMENT : The mediator helps the parties to reach a common ground of understanding and settlement. The mediator might conduct separate/ joint sessions in any number as he/she wants, to let the parties find a mutually acceptable solution. If no settlement is reached, the case is sent back to the referral court.
6. CLOSING OF THE MEDIATION : There is no fixed procedure for the closing of the mediation. Generally, once a settlement is reached, the terms and conditions agreed to in the case are written down and signed by the parties.
- How many steps are there in an official mediation procedure ?
- What are these steps and what is being done in these steps ?
- At what time during the court proceedings can a judge refer the case for ADR ?
