Mediation in India
Alternate Dispute Resolution (ADR), mainly denotes a wide range of dispute resolution processes that act as a means of disagreeing parties to come to an agreement without using the means of litigation. It is a collective term which refers to the ways in which the parties can settle disputes, with the help of a third party. It is also known as external dispute resolution (EDR). ADR has gained widespread acceptance among both the general public and the legal profession in the recent years and is also being adopted as the means to help settle disputes alongside court system itself. Arbitration is one of the most popular forms of ADR. One of the popular forms of ADR is Mediation.
Mediation is a form of Alternate Dispute Resolution in which a third neutral party attempts to assist the disputing parties in reaching an amicable settlement and a mutually acceptable agreement. It is the most uncomplicated method of dispute resolution where the third party acts as a mediator to resolve the dispute between the parties by using the means of communication and negotiation. The process of mediation is completely controlled by the parties since the mediator is only a medium to facilitate the process of reaching an amicable settlement. A mediator’s suggestions are not binding on either of the parties. Mediation as a form of Alternate Dispute Resolution has attained a statutory status under various Indian laws and has also been recognised by the courts while pronouncing judgments.
Mediation in India is divided into two categories:
1.Court referred Mediation: The court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This type of mediation is frequently used in Matrimonial disputes, especially divorce cases.
2. Private Mediation: In Private Mediation, qualified people work as mediators on a fixed-fee basis. Anyone from courts or the common (general) public or corporates as well as the government sector, can appoint mediators to resolve their dispute through mediation. This basically means that the mediators can be appointed by anyone irrespective of the sector they may belong to.
In the process of mediation in India, the mediator works along with the parties to ease the dispute resolution mediation process. However, it must be mentioned that the mediator does not adjudicate the dispute resolution process by imposing the decision on both the parties. A mediator’s role is both facilitative and evaluative. A mediator helps at easing when he manages all the interaction between the parties, promotes and also improves communication between them and manages intersperses and outbreaks by them and encourages them to arrive at an amicable and a mutually acceptable settlement. The main advantage of the process of mediation in India is that it provides confidentiality, for any information provided by any party and a document prepared or submitted as well as the record of all the communications are sealed and are hence not admissible.
There are times when even the courts refer mediation, since it is an easier and quicker process to resolve disputes. The divorce mediation in India most commonly used to resolve the disputes between the husband and wife. Mediation is a good resolution tool since it is an easier and quicker method of dispute resolution and is able to minimise time invested, cost, and resources. Even, if it is unsuccessful, the parties can always go to the courts and get their dispute resolved. Mediation as an alternative dispute resolution is on a rise in India.