Verbal understandings and agreements are easily forgotten and violated We at Seek Mediation therefore strongly advise that you should culminate the mediation process with a written agreement.In India, Outcomes/ Agreements arrived at during the mediation process in consonance with the provisions of Article 73 of the Arbitration and Conciliation Act 1996 have a legal validity akin to an Arbitral award. The mediator will help you in drawing up the written agreement.
We strictly follow the Indian Institute of Arbitration and Mediation ethical guidelines and Code of Professional Conduct. (www.arbitrationindia.org/pdf/rules_mediation.pdf)
The mediation process is fully confidential from the mediator’s side. The opposing parties are expected to maintain confidentiality on their part to respect the mediation process. Violations are unacceptable in this regard.
Yes, they can progress in parallel. If an agreement has been reached during mediation, the parties can make appropriate representations(s) to the court regarding withdrawal of charges through their lawyers. For example, mediation can help convert a contentious divorce case into a divorce with mutual consent.
In India, Outcomes/ Agreements arrived at during the mediation process in consonance with the provisions of Article 73 of the Arbitration and Conciliation Act 1996 have a legal validity akin to an Arbitral award.
The mediation costs including the administrative charges have to be shared between the parties. An exception can be made if one party agrees to bear the mediation cost of the opposing party due to exceptional circumstances.
Mediation certainly costs a fraction of the costs that you would expect for dispute resolution through litigation. Mediation costs are laid out by the hour or by the session. The hourly rate of the consultancy fees is decided on the basis of the complexity of the case and is agreed upon with the mediator before commencement of the mediation process. The fees for the session has to be paid before commencement of the session. Administrative charges as applicable, are also conveyed before hand. The idea is that you should not have any surprises regarding the cost involved.
No, any evidence presented during the mediation process cannot be used during litigation. This is a fundamental principle which is followed during mediation. In fact, you will be required to sign an undertaking to this effect before commencement of the mediation.
Formalization of the mediation method in the Indian context took place with the introduction of the Arbitration and Conciliation Act 1996. This is considered a watershed moment in this field as it introduced the basic framework within which formal mediation could be conducted within the country. Outcomes/ Agreements arrived at during the mediation process in consonance with the provisions of Article 73 of the Act have a legal validity akin to an Arbitral award.
The answer is No. Litigation is a must for:
- Criminal cases, public safety matters and civil rights issues where the principle of law needs to be established.
- Cases where there is a clear breach of obligation.
- Cases involving violence, drugs, child abuse etc where the mediator himself may become culpable for not revealing information gained through the mediation process to the authorities.
- Cases where the disputing parties are not serious about the process or genuine intent and commitment is lacking.
Mediation should always be conducted at a place where both the parties are comfortable especially with regard to privacy and security concerns. We offer to conduct mediation at our listed address in total privacy and in a secure environment. Besides that, any other place which is mutually acceptable to the parties and the mediator and having acceptable levels of administrative facilities can be considered for mediation. Do keep in mind that administrative charges apply on no profit- no loss basis depending on your choice of venue.
Mediation practically can be used at any stage of a dispute prior to judgment given in a court of law. However we advise that mediation is likely to be more successful if we engage in it early enough in the dispute.
It is commonly understood that mediation is a non-binding procedure in which a neutral or impartial third party (mediator/ conciliator) assists the disputing parties in mutually reaching an agreed settlement of the dispute. In practice, the conciliator is able to achieve this end- game by creating a situation which is different from one of direct confrontation and by gently coaxing the disputants to re-examine their earlier held strong positions. He is able to induce the disputants to explore other amicable options/solutions besides those they have themselves considered and rejected so far by bringing reason, flexibility, objectivity and trustworthiness in the entire discussion. At the end of it, he tries to achieve a mutually acceptable resolution if not an absolute win-win solution, by redirecting energies towards constructive outcomes. What is probably most appealing is the fact that decisions are essentially recommendatory and agreements are mutual. There is never a feeling of something being forced or imposed as what you would feel in the case of adjudicatory methods like litigation or arbitration.
The mediation process can be applied to settlement of almost all kinds of contractual and non-contractual disputes. It has found special application for resolving family disputes, business disagreements, consumer disputes and industrial fights. Speed, economy, confidentiality, convenience and ‘freedom to withdraw’ at any time are leading more and more people to adopt this as a preferred mode of conflict resolution. It however should not be even wildly construed that mediation can totally replace the legal system. Criminal cases, public safety matters and civil rights issues where the principle of law needs to be established or where there is a clear breach of obligation are ideally suited to be dealt by the courts and not appropriate for mediation. Also, where the disputing parties are not serious about the process or genuine intent and commitment is lacking, mediation is definitely not going to work.
In arbitration and so also in court litigation, the proceedings are essentially adversarial in nature. One party winning invariably means someone losing like in a zero-sum game. Promotion of goodwill is almost a rare possibility in such an effort. There is no room for concessions and compromises and sometimes positions have to be taken much against the will of the disputants. At the end of the deliberations, control shifts to a third party viz the judge or the arbitrator which makes the disputing parties helpless in a way. Also, in these methods, the concern is seldom on the individual or his interests but more on the legal position of the case. Even cultural factors and context are largely ignored. The focus also is on past actions and deeds rather than on the future and newer possibilities. Finally, an arbitral or judicial award almost forecloses further options except review petitions in higher courts which once again are time and cost intensive.
On the other hand, mediation ensures that disputing parties are able to take decisions without feeling intimidated or threatened by cost and time constraints. It becomes a very appropriate platform where mutual concerns, underlying issues and anxieties can be dealt with. Further, parties can express and vent out natural feelings and even negative emotions such as anger, distress and frustration without damaging the process. At the end of it, more often than not, communication opens, irrationality reduces and ill-will diminishes. During the process, even failure to reach a final solution is not considered a total loss and is helpful in the long run. Most importantly, mediation helps people to resolve issues and get on with their businesses and lives without feeling trapped in judicial wrangling.
Mediation by its very nature is a mutual and non-coercive process. The responsibility of the mediator toward getting parties to the mediation table is sending the Notice to Mediate to the opposing party. An agreement to seek resolution through mediation is the starting point of the mediation process.
Universally and so also in India, the courts acknowledge the important role being played by mediation. In fact, in many complex commercial cases and domestic cases like divorce, custody etc, court-ordered mediation has become the norm. Most developed nations have turned to mediation as the first-step dispute resolution method. Many trial courts abroad have established parallel mediation programs to try to resolve civil disputes. In fact, in some countries, mediation is mandatory in many cases and a judge may order parties to mediate wherein they are required to appear in at least one session or risk being held in contempt. The results are very encouraging because there is great deal of mutuality in such cases and amicability is a precursor to long term implementation. The workload of the courts has also reduced drastically because of such an approach.
The success rate of the mediation process is universally acknowledged to be very high. In some countries, it is even in excess of 80-85%. There may however be times when agreement may not be reached. In such cases, the mediator helps the parties to establish any partial agreements, if possible. The parties can mutually decide to return and address the left over issues at a later date. In the rare case of a total non-agreement between the parties, the mediator cannot impose himself on the parties to resolve the issue. Mutuality is after all the driving basis of the mediation process.
Sure, you can definitely have a lawyer or a family member/ friend to be present with you to assist you. Mutual consent of parties is however required for the same. Also, please notify the mediator well in advance about the likely presence of additional people and their identities to make relevant administrative arrangements. All people present would be bound by the confidentiality agreement of the mediation process.
Typically speaking, in the first session, the mediator begins by introducing himself. He will also emphasize on the fact that he has no conflict of interest in the case. The mediator shall thereafter request the parties and their lawyers/family members/friend (if present) to introduce themselves.
After introduction, the mediator will ask the parties to confirm that the parties/ representatives have the necessary authority to negotiate and make final settlements. An affirmative answer to this question is vital for the mediation process to commence and continue.
The mediator will now inquire if the parties have ever been through the mediation process? Depending on the level of earlier experience, the mediator will briefly explain the mediation concept and the process to be followed. Issues like the role of the mediator, use of caucus (separate meetings), good faith and confidentiality will also be stressed upon.
The mediator will also clarify that the parties are free to approach their counsel for independent legal advice and they can get the settlement agreement vetted by their lawyer or any other stakeholder, if they wish before signing the agreement.
The mediator will also set the following ground rules of mediation for the parties:
- Mobile phones are to be switched off and presented for safe keeping.
- The parties should address all matters to the mediator and totally avoid cross-talk.
- While one person is talking, others are to refrain from interrupting.
- Adequate opportunity will be given to all parties to convey their point of view.
- Mutual respect and dignity is to be maintained at all times. There is no question of unparliamentary language or physical touch being used.
- All matters discussed during mediation are to remain confidential.
The mediator will continue to engage the parties in joint sessions or separate meetings called caucuses to resolve the issue. The mediation process is finally wound up with a verbal or written agreement depending on the mutual choice of the parties.
Mediation should always be conducted at a place where both the parties are comfortable especially with regard to privacy and security concerns. We offer to conduct mediation at our listed address in total privacy in a secure environment. Besides that, any other place which is mutually acceptable to the parties and the mediator and having acceptable levels of administrative facilities can be considered for mediation. Do keep in mind that administrative charges apply on no profit- no loss basis depending on your choice of venue.
This is one of the most common myths floating around and often propagated by friends, relatives and attorneys advising the clients. Sometimes vested interests also cannot be ruled out in such cases. In fact, to the contrary, an offer to mediate is an indication of maturity and willingness to improve the conflict environment. It is also a signal that the party values the relationship in spite of the current ongoing disagreement or conflict. It could also make good business sense since both parties may just be waiting for the other to blink. Just because someone has taken the initiative does not mean that he has to settle for anything which is not acceptable. Moreover, it also provides an excellent opportunity to hear the other side.
We should not be guided or rather let ourselves be misguided by the assurances that it is an “open and shut” case and the opposition will be crushed and defeated. The attorney on the other side may surprisingly be giving the same assurances to his client. Once the parties are on the mediation table and the discussions have commenced, it is generally forgotten as to who was instrumental in initiating the mediation. The thing to remember is that this myth has often been the source of endless and time-consuming litigation till we reach the stage where it is too late and too much has been lost. So cut your losses and reach out through a mediator. At the end of the day, it may just prove to be the right and timely decision.
In case the mediation has been initiated by one of the parties, the mediator shall issue an ‘Invitation to Mediate’ to the opposing party. Once agreed upon, the initial scheduling of the mediation will be done. Ideally, the mediator should meet both the parties together the first time in the initial joint session. At this point, the mediator covers the basic mediation process and protocols to be followed. In case, one of the parties has met the mediator before the mediation due to some reason, then this fact should be brought out at the very beginning of the first session to convey absence of bias and potential conflict of interest.
Mediation brings to the table a wonderful opportunity to settle the dispute and also maintain the relationship at the same time. The entire process is after all about sharing perspectives, reducing differences and fostering amicability. Contrary to litigation, the entire process invokes understanding, mutuality and positivity. Many a times in personal life and so also in business/ professional life, winning or losing is not the only consideration in an interaction.
Conflicts are inevitable but alternative means of conflict-resolution like mediation which help all the parties to move on, maintain respect and keep the relationship alive are always welcome. The non-adjudicative, non-binding, consensual and voluntary aspects of the mediation process are probably the most attractive attributes of this option which provide empowerment and freedom to the disputants. Further, the relative ‘speediness’ of this process draws people towards this option.
A process in which two or more people involved in a dispute come together to find an acceptable and workable solution to their problem with the help of an impartial third party/neutral called the mediator. The neutral facilitates communication and negotiation while promoting voluntary decision-making by the parties to the dispute.
A detailed explanation of the mediation concept is available at our ‘What is Mediation?’ page on our website.