Mediation is an alternative form of dispute settlement without requiring access to the courts. It is a formal, voluntary, and collaborative negotiating mechanism in which a neutral third party uses advanced communication and negotiation strategies to help the parties achieve their specified goals.
How does the mediation works is been described below:
Stage 1: The Mediation Process
The most complex and demanding part of the mediation process is always the convening of mediation. It includes a variety of procedures-
Court reference to ADR
The court is expected to guide the parties to opt for one of the five alternative dispute resolution approaches and to refer the arbitration, conciliation case pursuant to Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908, judicial settlement, loc Adalat or mediation.
The Court shall consider the option exercised by the parties and the appropriateness of the case for the option chosen. The judge who makes the reference, known as the referral judge, is obliged to know the facts and the nature of the dispute, And the appropriateness of ADR is assessed objectively.
This correct stage for making the reference in civil cases is after the pleadings have been concluded and before the questions have been dealt with, while in family law cases it would be reasonable to make the reference immediately after the respondent has been informed and before the respondent has submitted the objections / written statements.
Even though the court at this time did not refer the cases to ADR, nothing prevents the court from referring to it at a later stage.
Ready for Mediation
The referral judge then has the important job of getting the parties together and encouraging them to mediate in settling their disputes. This implies finding the reasons for any disinclination to mediate on behalf of the parties, as well as describing the meaning, mechanism and benefits of mediation.
While the consent of the parties is required for mediation, the court may also exert external pressure to induce the parties to enter the mediation, to the extent that they are ordered or forced to.
Order of reference
A referral order issued by the referral judge initiates the mediation process, and creates a tribunal agreed to by the court. An ideal referral order contains details such as the name of the referral judge, case number, name of the parties, date and year of the case, stage of proceedings, nature of the dispute, the legislative reference clause, the next date of the hearing before the appeal court, if the parties have consented to mediation, the name of the institution / mediator to which the case is referred, the date and time for the parties to report to the institution / mediator, deadline for completion of mediation, fee / remuneration amount if payable and contact address and telephone number of the parties and their advocates.
Step 2: Mediation Process begun
The mediator must ensure the parties and their counsel are present when the mediation process begins.
Statement of introduction and of opening
- The mediator introduces his credentials, maintains his neutrality and rests faith in the process of mediation.
- The mediator asks the parties to introduce themselves, attempts to establish a relationship with them and gain their trust and confidence.
- The aim is to build a positive atmosphere conducive to negotiation, and to encourage the parties to resolve conflicts amicably.
- The mediator sets in charge of the mediation process.
- There is no specific set of guidelines to obey, so that the mediation process is flexible.
- The opening statement by the mediator is intended to explain to the parties-
- Concepts, systems and intermediate stages,
- The mediator position, the advocates and the parties
- The benefits of mediation and ground law.
- The mediator ensures the parties have grasped the procedure and gives them the opportunity to explain any questions.
- The negotiators are also finding comments. The parties express their views so that the other side can understand what it wants.
- This is followed by a restatement by the mediator of the problem, in which attempts are made to incorporate the different perspectives.
Step 3: Creating an Agenda
- Setting the agenda is an important duty given to the mediator to shed clarity on the mediation proceedings and eliminate vagueness.
- This includes setting the order in which negotiations are to be held and giving the parties a framework by which they can measure the success of the negotiations individually.
- The mediator may determine the time and places for the negotiation sessions to be addressed sequentially, along with the issues before the parties.
Step 4: Negotiation facilitation and Option Generation
Joint session aims to collect information.
- The mediator gives the parties a opportunity to hear and consider each other's viewpoints, emotions and relationships.
- The applicant is entitled to clarify their case in their own terms, accompanied by their lawyer arguing the case and explaining the legal matters. Similarly, the defendant is required to clarify their argument, preceded by the defendant's attorney explaining the argument and outlining the legal matters involved.
- The mediator tries to explain the reality, challenges, barriers and possibilities and ensures that each individual feels listened to.
- The mediator promotes contact and asks questions for information to be found.
- Once the joint session is ended, the mediator will also recommend that each party meet individually with their counsel.
- The separate sessions are intended for the mediator to get a better understanding of the conflict.
- It provides a forum for the parties to further disseminate their feelings and disclose confidential information which they do not wish to share with other parties.
- It helps the mediator to understand the parties' underlying interests, their positions and the reasons for those positions, identify areas of dispute, differential priorities, and shift the parties to a mood of finding mutually acceptable solutions.
- The mediator is expected to reaffirm confidentiality, collect relevant information and question and check the parties' expectations and assumptions to open their eyes to various possibilities. This is done by posing specific questions and helping the parties consider their case strengths and weaknesses.
- The mediator offers options which he feels best will satisfy the parties' underlying interests.
Step 5: Achieve a Settlement
- The mediator provides innovative negotiation opportunities by helping people grasp the reality of their situation and abandon predetermined positions.
- The mediator can hold as many separate sessions as necessary, and may even hold sessions with diverging interests with groups on the same side.
- The parties are negotiating through the mediator until a mutually acceptable solution is reached for all involved parties. The mediator directs the parties to a solution which he thinks will satisfy the parties' underlying interests.
- The case is sent back to the arbitration court in case the talks fail.
Phase 6: Shutdown
- There is no fixed procedure which should be followed.
- If the settlement terms have been agreed, the parties are reunited again.
- The mediator outlines the terms of the settlement as a procedural condition, orally.
- The parties, with the mediator’s aid, write down the terms of the settlement and sign the agreement.
- The settlement has the binding nature of a contract and is enforceable in a court of law.
- In his closing comment, the mediator thanks the parties for their help and participation in the mediation process.
If no settlement between the parties is made, the case is returned to the appeal court claiming failure to settle. The mediation hearings are kept private, and can not even be reported to the court.