Topic: Role of Mediator, & what are its Advantages and Disadvanatges

of Mediation.?
Author: Devki Nandan
LLM (Corporate Laws)
Galgotias University, Greater Noida

Electronic copy available at: https://ssrn.com/abstract=3625710

Abstract:-

“Discourage Litigation, persuade your neighbors to compromise, whoever you can. Point
out; the normal winner is often a real loser in fees, expenses and waste of time.”

------Abraham Lincon

Conflicts of interests are part of human life. Human conflicts are inexorable because society is
multifarious web of social relations. In human affairs disputes are likely to arise, we cannot
avoid disputes but an attempt must be made to resolve them. The dominant forum where parties
take their dispute for resolution is the court, but the mounting arrears in the courts, inordinate
delays, inordinate delays, has made dispute resolution in India a tiring process.

Litigation involves a lot of delay given the appeals /revision/review including the constitutional
remedies i.e. writs .Like soap-operas it goes on and on .Loitering and wasting time in the
corridors of courts has become a way of life for a majority of Indians .In short ,delay has become
synonymous with dispute resolution in India.

It is of common knowledge that existing justice system is not able to cope up with the ever
increasing burden of civil litigation. The problem is not of load alone. The deficiencies lie in the
adversarial natural of judicial process which is time consuming and more often procedure
oriented. In this system, judicial process is set in motion by action of an aggrieved part.

Each party’s case is presented before the judge by advocates, according to the rules of procedural
and substantive law. The judge perceives the dispute (or the issues involved)in the backdrop of
known legal concepts, hears, arguments to determine as to how ,logically, the parties stand in
terms of the applicable legal concepts and pronounces his verdict accordingly . The parties are
bound by the verdict, at peril of legal sanctions, if disobeyed. 1

The end result is a win-lose situation. Thus, if the dispute is liquidated and justice is done, but
the differences between the parties continue to subsist, the competing interest of the parties
remain unresolved; interpersonal relationship of the parties becomes more hardened. Thus, it can
be said that the adversial procedure of courts doe not aimed at resolution of competing claims of
the members of the society. It aims at upholding the one and rejecting the other, leaving the
conflict between the parties unremedied. 2

Keywords: Conflicts, court, verdict, resolution, society

1
Notes for a law lecture-Home Book Of American Quotation (by Dodd. Near), New York, 1967, p 226).
2
Sarvesh Chandra, “ADR:Is conciliation the best choice?’’, in PC Rao & William Sheffield (ed.).Alternative Dispute
Resolution :What it is and How it works,pp.82-92.

Electronic copy available at: https://ssrn.com/abstract=3625710

MEDIATION:-

The term “Mediation” in simple tern can be defines as a process to resolve a dispute between two
or more parties in presence of a mutually accepted third party who through confidential
discussions attempts to help the parties in reaching a commonly agreed solution to their
problems. Thus, Mediation is a private, voluntary, informal, non-binding, and cost effective
process.

According to Black’s Law Dictionary, 8th Edn.:

“Mediation is a method of non-binding dispute resolution involving a neutral third party who
tries to bring the disputing parties reach a mutually agreeable solution.”

Mediation, as a method of dispute resolution is no new phenomenon rather one that has for long
existed in our traditions. In most of the cases the disputants desire for an amicable solution.
Mediation has been employed by various tribes of our country by way of a village council,
usually consisting of certain village elders. Mediation is perhaps the fastest growing form of
alternative dispute resolution in business today. Unlike litigation and arbitration, which consists
of a formal evidentiary hearing, mediation is a semiformal negotiation between the parties
without the use of evidence or witness. While litigation and arbitration are presided over by a
judge who renders a decision in the cases, mediation is facilitated by a specially trained neutral
advisor who is not empowered to decide the case, but only to assist the parties in negotiating
effectively. Mediation is also unlike litigation in that it is non-adversial. Indeed , the most
effective mediators build a process in which parties understand their role as active participants
and collaborate to resolve the dispute. Unlike a trail or arbitration, mediation often results in a
mutually agreeable outcome. The essence of mediation is its flexibility, which enables the
participants to select a process suitable to their needs. 3

The institution of mediation has been statutorily recognized by the parliament when section 89
of the code of civil procedure, 1908 was amended providing for resolution of disputes in the
cases where it appears acceptable to the parties. Section 89 of the Code of Civil Procedure, 1908
and Conciliation Act, 1996 lays down the statutory framework for Mediation Rules, 2003.
Further, provision of Order X, Rule 1A of the Code of Civil Procedure, 1908 provides that after
recording admission or denial of documents, the Court is under obligation to direct the parties to
opt for any of the four modes of alternative dispute resolution including mediation. Both the
parties can make the request for reference of dispute of mediation.

Electronic copy available at: https://ssrn.com/abstract=3625710

The five dispute resolutions mechanisms that are available in our administration of justice are
litigation, mediation, arbitration, conciliation and Lok Adalat, Mediation is the only process
which requires an approach that is completely collaborative.

One of the aims of mediation is to find early resolutions of the dispute. The sooner dispute is
resolved the better for all the parties concerned, in particular, and the society, in general. For
parties, dispute not only strains the relationship but also destroy it. And, so far as society is
concerned it affects its peace. So what is required is resolutions of dispute at the earliest possible
opportunity and via such a mechanism where the relationship between: individual goes on in a
healthy manner. Warren Burger once said:

“The obligation of the legal profession is to serve as healers of human conflict we should provide
mechanisms that can produce an acceptable result in shortest possible time, with the least
possible expense and with a minimum of stress on the participants. That’s what justice is all
about.”

Mediation is one such mechanism which has been statutorily brought into place in our justice
system. It is one of the methods of Alternative Dispute Resolution and resolves the dispute in a
way that is private, fast and economical. It is a process in which a neutral intervener assists two
or more negotiating parties to identify matters of concern, develop a better understanding of their
situation, and based upon that improved understanding, develop mutually acceptable proposals to
resolve those concerns. It embraces the philosophy of democratic decision-making Alfin, et al.,
Mediation Theory & Practice, (2nd Ed 2006) Lexis Nexis.

The beauty of settlement through mediation is that it may bring about a solution which may not
only be to the satisfaction of the parties but also solves the problem of delay in our system and
further contributes towards economic, commercial and financial growth and development of the
country.

Mediation ensures a just solution acceptable to all the parties to dispute thereby achieving ‘win-
win’ situation. It is only mediation that puts the parties in control of both their disputes and its
resolution. It is mediation through which the parties can communicate in real sense with each
other, which they have not been able to do since the dispute started .It is mediation which makes
the process voluntary and does not bind the parties against their wish .It is mediation that saves
precious time, energy as well as cost which can result in lesser burden on exchequer when poor
litigants are to be provided legal aid.

Electronic copy available at: https://ssrn.com/abstract=3625710

ROLE OF THE MEDIATOR:-

Mediator’s role is pivotal in the sense that not only he should have skills of mediation but he
must also have thorough knowledge about the case he is going to mediate as well as a fair idea
about possible solutions from the best to the worst. An ability to read the psychology of the
parties is also necessary. Mediator owes a duty to explain all the facets of the case to the parties
and then give them an option to choose the mutually agreeable and best suited solution. A
mediator assists the parties to develop a solution themselves. Although mediators sometimes
provide ideas , suggestions, or even formal proposals for settlements , the mediator is primarily a
“process person” , helping the parties define the agenda , identify and reframe the issues ,
communicate more effectively , find areas of common ground, negotiate fairly , and hopefully ,
reach an agreement . A successful mediation effort has an outcome that is accepted and owned
by the parties themselves.

Although a mediator cannot force an outcome, the effectiveness of the process lies in the ability
of the mediator to create a more productive discussion than the parties could have had by
themselves. To do this, mediators help the parties determine facts, they show empathy and
impartiality with the parties; and they help the parties to generate new ideas. Thus, it is clear that
the role of the mediator is that of facilitator. Therefore, a mediator should have the skills of
negotiation, communication, bargaining and settlement. Though, not having authority to impose
his own decision, he can let the parties know various available options and their respective merits
and demerits. Throughout the process, a mediator has to act as a guide without involving himself
exclusively in favour of or against a party.

Advantages of Mediation:-

 It is less costly than evidentiary process. Mediation is normally completed in a matter of

hours through a series of one to three conferences.
 This process is more efficient than most evidentiary processes one of the principle
attractions of mediation is the speed with which parties can resolve their disputes.
Because mediators are present to manage negotiation, not to represent a party or render a
legal decision, they need not prepare extensively to conduct the conference.
 This process offers a range of settlement options limited only by the creativity of the
parties and the mediator. Parties can create outcomes custom designed for their particular
situation.
 This process does not preclude the use of further, more formal dispute resolution
mechanisms such as arbitration or litigation. Parties are therefore free to strive for a
settlement without jeopardizing their chances for or in a trail if mediation is unsuccessful.
 The parties control the outcome of the case. It does not create the risk of outright loss
associated with trail, because the parties do not transfer the power to decide the cases to
someone else.

Electronic copy available at: https://ssrn.com/abstract=3625710

Disadvantages of Mediation:-

Mediation is not without its disadvantages. Principal among them is the absence of due process
protection for the participants. The formalized procedural and evidentiary rules of due process
designed to protect parties and associated with the trial or arbitration of a lawsuit are lacking in
mediation. This lack of formality is a disadvantage in the eyes of those who believe it may
permit mediator bias, coercion, or party bad faith. For other, it affirms the need for a well-trained
mediator or an attorney to assist in preparations and to participate during the process to ensure
that the important legal rights not being waived without informed consent.

A second concern for some parties and attorneys is the absence of an appeal process in the event
that the privately negotiated agreement is later determined by one of the parties to be flawed in
some way. Because it is a highly confidential process, it is never performed on the record or
recorded by a court reporter.

Conclusion:-

The ordinance act and now the amendment act mark a change in legal thinking and legal
practice. Such changes are significant steps towards optimizing arbitration procedure and
arbitration jurisprudence as legal amendments gave many lacunas of the principal 1996 act away
nullifying judicial decisions that impeded proper application of arbitration rules in India.
however, a note of caution is attached to these developments, i.e., the amendments require too
short time frame for application of various rules in the arbitration process which are difficult to
comply with in practice and running the risk of ending in unavoidable judicial dispute resolution.
at the same time, clear-cut provisions encouraging institutional arbitration in India are still
lacking while the said amendments repeat the details which are otherwise practiced by the parties
or institutions. Moreover, the experience of few other legislation in India (on other subjects)
having time-line have not succeed in the past. It is doubtful that the time limits as prescribed by
the 2015 amendment act would be followed by the courts of law in India which are already
overburdened with pending cases and lacking adequate infrastructure as well as the necessary
amount of judges. Yet apparently, much still depends on the approach of the courts of law
dealing with matters subjected to arbitration in meeting the objectives of the 2015 amendment
act. a next round of amendments can possibly consider this concern after analyzing the effects of
the recent changes.

Electronic copy available at: https://ssrn.com/abstract=3625710