About Mediation

Mediation is a process in which the mediator, an external neutral to the dispute, works with the parties to find a solution which is acceptable to all of them. The most important aspect of mediation is that the mediator cannot impose a decision on the parties. The mediator controls the process, but the outcome is always in the hands of the parties. Mediation is completely voluntary, both in the decision to try it as well as to continue with it. This is best illustrated by saying that a party is free to terminate the mediation, without needing to give reasons, at any time if it feels that it is not being served well by the process. In its focus on non-coercive and consensual processes, mediation is radically different from the adversarial system. Confidentiality in mediation is assured by law and the agreement to mediate. This creates an atmosphere that enables parties to participate freely. While attention is paid to the law in so far as it impact on the matter, the objective is to arrive at a solution acceptable to the parties which will end the dispute. Agreements reached in mediation are binding, cannot be challenged in courts and are capable of being enforced through the legal process.

The process can be summarised by saying that the mediator opens up communication, encourages parties to participate, identifies facts and issues, focuses them on their long-term interests, gets them to be realistic about their case and its prospects, encourages them to come up with options for settlement, and helps them to refine those options to yield an agreement that both parties see as a fair and proper end to the dispute. The mediator moves parties from the extreme ends of the disputing spectrum to the common ground of settlement.

Mediation can be used in virtually the entire range of commercial, contractual, business, corporate, employment, and intellectual property disputes. It is also useful in transnational disputes that are bedevilled by issues of choice of jurisdiction and law, and enforcement.

There are two principal enactments that deal with mediation in India. The Rules framed by the Supreme Court and the High Courts under Section 89 of the Code of Civil Procedure deal with court-annexed mediation. Part III of the Arbitration and Conciliation Act, 1996, modelled on the UNCITRAL Model Rules on Conciliation, deals with conciliation. (In India the terms ‘mediation’ and ‘conciliation’ are used synonymously; this has been clarified by the Supreme Court in Afcons v. Varkey (2010); Since conciliation under the 1996 Act is an out of court process, it can also be usefully referred to as ‘private mediation’).