WHAT IS MEDIATION?
In the adversarial system, a litigant himself has less value and becomes almost a non-entity. He’s a mute audience to the legal battle fought on his or her behalf, sometimes on issues that are too technical to be understood by common men.
Mediation can be defined as a negotiation procedure where a third party assists the parties in dispute to come to a resolution. A Mediator uses special negotiation and communication skills to assist the parties to conclude to a settlement. The parties can appoint a Mediator with their consent or the Court, during a pending litigation, can appoint a Mediator. Mediation always leaves the settlement making power with the parties. The Mediator doesn't makes decision as to what's fair or right, doesn't apportion blame, nor provide opinion as on the merits or chances of success if the case is litigated in a Court of law. Rather the Mediator acts as a catalyst to bring the disputing parties together by identifying issues and limiting hurdles to communication and settlement with an eventual aim of coming to a conclusion.
The concept of mediation possesses antiquity and has a long history in our country. In olden days, disputes were to be resolved under a panchayat of a village or a group of villages. The members of the panchayat were known as Panch Parmeshwar. Now we've grown into nation of 125 crore people. With liberalization, globalization and enormous economic process there's an explosion of courtroom litigation in our country. Though our judiciary is one of the finest in the world and is much respected, but there's still a great deal of criticism on account of long delays in the resolution of disputes within the courts of law. A time has now been reached when even an honest litigant is wary of approaching the court for a decision of his dispute. Hence, we've turned to alternative sorts of dispute resolution.
IS MEDIATION USED?
(a) Mediation is widely used abroad especially in the United States of America, Australia, Singapore England, amongst other countries.
(b) it's applied for a variety of disputes from petty causes and community disputes to business and matters of contract, from matters of family disputes to commercial disputes.
(c) The rate of success of mediation is high –(a resolution rate of 50 to 80 %) Keeping in mind the fact that a successful mediation is one where both parties are satisfied with the result that's surely a high figure.
(d) it's now becoming customary process for a mediation clause to be inserted in the dispute resolution section of agreements as a primary try method before other methods like litigation.
We need mediation because it's a good method of resolving disputes and particularly those involving relationships. Relationships are often personal, business, contractual or social. These disputes are sometimes tiresome and difficult to be solved in a litigation process. Litigation is costly, has delays, increases the tension between parties, practical solutions are many times not reached and therefore the dispute doesn't end with a decision.