MEDIATION : Mediation, as an Alternative Dispute Redrassal mechanism, can be defined as a voluntary, informal and legalized process in which a neutral third party or an intermediary settles the bilateral disputes in a mutually benefitting way. An enforceable contract shall contain the settlement reached between the parties.
PRINCIPAL CHARACTERISTICS OF MEDIATION ARE :
- A NON-BINDING PROCEDURE - Unlike arbitration or court proceedings, the decison of the mediator is not binding on the parties. The parties are under no obligation to comply with the decisions of the mediator. Rather, they can leave the mediation proceedings at any point of time if they find that its continuation doesnot meet their interests. However, once iniatiated the parties generally take an active part in the proceedings. Thus, it can be concluded that the mediation procedure is an assisstance extended to the parties in reaching a settlement of their dispute. Also, it is the parties who decide on the course of the proceedings,i.e., how the affairs are to be taken up with the mediator.
- A CONFIDENTIAL PROCEDURE - The proceedings of the mediation are to be kept confidential, according to the WIPO (World Intellectual Propery Organization) meadiation guidelines and no party can be compelled to disclose any information before or after such proceedings. This is a significant deviation from the conventional court proceedings where the proceedings are conducted mostly on-camera and is sometimes attended to by the general public. If, in the course of the proceedings some information is required to be disclosed or some admissions are required to be made,then that information cannot be divulged to anyone else subsequently.
- AN INTEREST BASED PROCEDURE - Unlike arbitration or litigation where the eveidences and the facts of the case are of primary importance and the relevant laws, statutes and previous cases are strictly adhered to while delivering the judgement, in mediation the interests of the parties are taken as the main guiding principle while arriving at any settlement. The final outcome is generally future-oriented keeping in mind the past conduct of the parties.
CLASSIFICATION OF MEDIATION IN INDIA :
- COURT-REFERRED MEDIATION - Under section 89 of the Civil Procedure Code, 1908 the court can refer a case to be resolved by mediation. A report needs to be sent back to the court if the case is resolved by mediation, following which the court shall pass a decree in terms of the settlement. This type of mediation is frequently used in matrimonail disputes, particularly divorce cases.Criminal cases of non-compoundable nature, however, cannot be resolved by mediation. Compoundable offences are those where the complainant (i.e., the victim) enters into a bona fide compromise and agrees to drop the charges against the accused. According to section 320 of the Criminal Procedure Code, compoundable offences are of two types - a. court permission is not required before compounding, where offences like adultery, defamation, criminal trespass are included, and b. court permission is required before compounding, where offences like theft, criminal breach of trust, assault on a woman, etc. are included. Non-compoundable offences are those which are of a grave and odious nature and the offender, therefore, cannot be let free, unpunished. All offences that are not listed under section 320 of the CrPC are non-compoundable offences.
- PRIVATE MEDIATION - Here, anyone from the legal fraterityt to the general public, whom the parties mutually decide upon, can act as a mediator. Generally, qualified individulas with some previous knowledge of the procedure are appointed as mediators.