“Mediation is a process to resolve disputes of the parties, by the parties, which is facilitated for the parties by a mediator. In mediation, the parties retain the right to self-determination in resolving a dispute and the terms of any settlement. Even though the mediator facilitates their communications and negotiations, the parties always retain control over the outcome of the dispute. It is a process that respects, the privacy of and nurtures the relationship between the parties by allowing them to determine their differences in a manner that does not disrupt the balance or harmonized functioning of the industry, economy and the society at large.”
The principle of mediation is that it
- centers around the parties’ common needs and interests,
- provides for a full disclosure of competing interests and positions
- empowers the parties to themselves determine a mutually acceptable resolution to the dispute without stretching the relationship of the parties to a break point,
- allows for procedural flexibility and
- maintains privacy and confidentiality and endeavors to build trust between the parties.
Mediation is flexible enough to be successfully applied to an array of commercial disputes which require solutions that are practical. In a typical situation disputes arise from an ongoing relationship between the parties, as in cases relating to trade, commerce and contracts, where there is a need for continuation of the pre-existing relationship in spite of the disputes for example;
Contractual relations between:
suppliers and customers;
bankers and customers;
developers/builders and investors / customers;
licensor and licensees (including technology and IPR licenses);
insurer and insured
Start -ups, Partnerships, Joint Ventures, Mergers.
employers and employees
landlords and tenants;
Business relationships where a rader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity; and Consumer disputes.
This relationship between the parties is respected and protected in the process of mediation. Dispute resolution through mediation enables parties to maintain as well as attempt to strengthen the relationship for the future.
Mediation may be of two types :
Private Mediation : is when mediation is initiated by the parties themselves and is facilitated by institutions which are neutral bodies providing the right environment and impetus for the
parties to settle the dispute. These institutions have a varied panel of mediators which include indusrty experts having a deep understanding and experience in dealing with commercial and
technical issues, thereby assisting the parties to understand eachothers position and arrive at a mutual consensus while resolving the dispute.
Court annexed, referred mediation : Court-Annexed Mediation and Conciliation Centres are now established at several courts in India and the courts have started referring cases to such centres. In Court-Annexed Mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely directs the parties to mediate and settle the matter under the surveillance of a professional mediator of their choice.
Role of Mediator
A successful mediation requires an effective mediator who facilitates the process and nudges the parties to a win-win situation. The mediator, is the guardian of the process and it is the mediator who has to ensure that parties maintain complete confidence in the proceedings. The remedies, which the parties conceive under the guidance of the mediator, are significant not only to the dispute between them but also apply to the existing and prospective relationship between the parties. The role of the mediator is that of a facilitator. The mediator is not an adjudicator. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator, the mediator is neither a trier of fact nor an arbitrator of disputes. He is free to devise at his command a procedure which is flexible enough to accommodate the needs of both parties and is under no obligation of law to implement the strict rules of evidence or other technical procedures which are mandatory for the conventional arms of judiciary to follow.
As a facilitator, the mediator has to understand the underlying issues between the parties. In order to do so, the mediator has to channelize communication between the parties themselves and between himself and the parties. The mediator has to enable the parties to understand their own interests along with the interests of the other party. The mediator must enable parties to distinguish between their positions and interests. In enabling parties to move towards a settlement, the mediator has to reflect on and elucidate to the parties the ideologies of BATNA, WATNA and MLATNA (BATNA stands for the ‘Best Alternative to a Negotiated Agreement”; WATNA for the ‘Worst Alternative to a Negotiated Agreement’ and MLATNA for the ‘Most Likely Alternative to a Negotiated Agreement.’). Thus the mediator helps the parties to reach a consensus to resolution of the dispute.
Why choose Mediation ?
Significantly, the outcome to mediation proceedings are not limited to judicial remedies. For instance, the best interests of parties may lie in supporting a previous relationship by smoothening pending issues. Mediation encourages parties to think beyond the formal confines of a legal dispute by allowing them to engage in arrangements and implement solutions which are viable and mutually beneficial. These settlements are efficaciously and willfully implemented by the parties because all the parties concerned have perceived them to be in their best interest.
The growth of mediation as a better alternative to litigation is still in its nascent stages. Mediation centers have recently been set up by a few industry and trade associations. The legal fraternity including the judiciary looks upon mediation as an effective means of reducing backlog of cases by facilitating and prompting the parties to a symbiotic solution. The success of mediation will depend upon the initial application of the process on strategic basis to small pilot projects of selected cases. The experience and the lessons learnt can then be extended to a diverse range of issues.
Mediation must be imbibed as a fundamental element of the prevailing legal ethos so that it is selected as the first or the most preferred option by disputing parties.
Mediation must be supported by framework that is facilitated by professional Mediation Centers and institutions like chambers of commerce and not necessarily dependent upon Courts or the judicial edifice.
Strategies for successful implementation of mediation must, be carefully assessed and a conscious effort has to be made towards the development of a dispute resolution process that will be respect and nurture the relationship between the parties while resolving their differences in a manner that is acceptable to the industry, economy and the society at large.
Law commission of India ADR conference: topic: M E D I A T I O N – realizing the potential and designing implementation strategies by Dr. Justice Dhananjaya Y. Chandrachud Judge High Court at Bombay.
The author is a permanent member of the Bar Association of the High Court of Bombay and a certified Mediator. She can be reached at firstname.lastname@example.org