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The Making of a Failed Mediation Procedure: What happens?
While opting for mediation as a means of dispute resolution is a great decision, much like the other means of alternative dispute resolution, there is no guarantee that the procedure is bound to be successful while simultaneously providing satisfactory conclusions. Many factors can contribute to such an undesired occurrence. This article will be exploring the same.
What Accounts for a Failed Mediation?
- The role of a mediator is usually the most significant contributing factor for a failed mediation session.
- The responsibility of being a neutral, unbiased deciding factor in a dispute resolution situation holds the most value among the other qualities and roles of a mediator.
- Under the Mediation & Conciliation Rules, 2018, Rule 16 & 17 prohibit the Mediator from coercing or imposing his or her decision on the parties to a mediation session, flouting which would automatically impede the proceedings.
- While the lack of a guaranteed satisfaction from a mediation session is inherently evident at the beginning of the same, the parties and the mediator ought to try their best to resolve their issues via the mechanism.
- Rule 19 of the Mediation & Conciliation Rules, 2018, encourages the parties to engage in a manner that coincides with their intention of settling the issues they face, without which a failed mediation is inevitable.
The aftermath of a Failed Mediation
Since Mediation is a procedure that comes into the picture only after both the parties have consented to opt for the same, it is an unwise decision to sit out the mediation sessions, in the pursuit of which the appointed Mediator will have the power to approach the Court to seek instructions for further procedure as per Rule 13 of the Mediation & Conciliation Rules, 2018. In such an event, the Court takes up the responsibility of settling the issues between the concerned parties, and the case eventually ends up being filed as a suit. This procedure in itself is time-consuming and becomes more tiresome since the concerned court has to begin the resolution procedure from scratch due to the confidential nature of mediation proceedings because no discussed matters can be revealed before the court.
Starting the procedure from scratch includes an extended period of dispute resolution and adds to costs that have to be incurred by the individuals involved in the case. Before the parties worry about costs to the Court, they have to complete their incomplete payments to the Mediator of the failed Mediation case, if any.
The cost of mediation has to be borne by both parties per Rule 26 of the Mediation & Conciliation Rules, 2018 regardless of the success or failure of the mediation, in an unlikely event where the parties fail to make the payment, the Court may be approached by the mediator to instruct them for the same.
Conclusion
A failed mediation cannot be pinned on just one component of a mediation session since there is a possibility that the reasons for failure can root from either the parties or the mediator, the consequences of the same end up being burdensome on the Court and often end up being more expensive for the parties as well.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.
- What Accounts for a Failed Mediation?
- Aftermath of a Failed Mediation
- Conclusion
