Mediation
Mediation may be defined as a non-binding procedure in which an impartial third party, the conciliator or mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed settlement of the dispute. Mediation is a process by which disputing parties engaged the assistance of a neutral third party to act as a mediator. He is a facilitating intermediary who has no authority to make any binding decisions, but who uses various procedures, techniques, and skills to help the parties to resolve their disputes by negotiated agreement without adjudication. The mediator is a facilitator who may in some models of mediation also provide a non-binding evaluation of the merits of the dispute. If required, but who cannot make any binding adjudicatory decisions.
Mediation is the most frequently adopted ADR Technique. It contemplates the appointment and intervention of a neutral third person who helps the parties to reach a negotiated settlement. He does not have the power to adjudicate or impose an award. It is conducted on a confidential basis and without prejudice to the legal rights and remedies of the parties. The process may have to pass through several stages like preparation, joint sessions, private meetings, and the final result.
Practitioners in this field adopt their own perfected styles. They differ in their basic steps. A lot depends upon the nature of the dispute. The more complicated a matter, the more private meetings would be necessary to pave the ground for a joint meeting.
A mediator may adopt either a FACILITATIVE or EVALUATIVE approach. Mediators try to avoid opinions and judgments. They rather facilitate and encourage parties to open up their communications and disclose their interests and priorities. In this process, the mediator gets the opportunity of locating the points of difference and the area of controversy or dispute. He may then help the parties to bridge the gap between them.
In some cases, a further step may become necessary. The mediator may have to take a value of parties’ respective claims and prepare an appraisal for the party’s consumption so that they may understand their respective position. By this process, he may reconcile the conflict of interests. The endpoint will then be that of the conciliation.
Mediation may take the shape of a mini-trial. This is a more formal type of mediation practice. It is generally associated with an evaluation type of approach. The legal position is presented by each party to a panel of senior directors from each disputant company. The meeting is presided over by a neutral chairman who manages the proceedings. After the presentation, the executives adjourn and try to formulate a settlement based on the overview of the case as they have heard. The neutral advisor remains available for taking care of anything that may still be significant. He may do this by bringing about further negotiations or undertaking further mediation. He may then, to facilitate settlement, tell the parties what would be the possible result of litigation or arbitration.
Still another method of mediation is CONSENSUS BUILDING. There are certain matters of general public interest, e.g. road building, canal digging, or the location of a factory. They affect the public in general and not just only one or two individuals. Pollution problems may have to be taken care of. A public consensus may become necessary. Mediators have to play their role for this purpose.
It is for the parties to prescribe their own Rules and other terms subedit to which their dispute is to be mediated. It may be difficult for the parties to settle such terms in advance. It may have to be done at the first meeting with the mediator. But even so, it may be difficult to see all the eventualities and provide for them. ADR Institutions and organizations carry with them model rules and regulations to which the parties can consent with or without modification.
Mediation and hybrids processes generally provide a framework of informal procedures in which a neutral person provides help and assistance to the parties to the dispute. He collects information from both sides under circumstances of confidentiality about the information. He tries to clarify things to the parties. He tries to sort out issues and to narrow them in that process to the extent possible. He facilitates dialogue. He may successfully bring the parties to the negotiation table or start a process of negotiations like correspondence or telephonic exchanges or other modes and means of communication. He may bring down the level of personal conflicts. When the parties are so dispassionate, he may open up before them their options. The variety of options may help the parties to pick up an option which they find is most suited to the solution of their problem.
A practice of this kind is an art. It has very little display of law in it. There is no need for any legal content. If the compromise based on the solution is not against law, it will be enforceable by law as any other compromise agreement.
Mediation has become perhaps the most popular procedure in the ADR area. By the late 1980s and particularly beginning and continuing through the 1990s, mediation has become an increasingly popular procedure in all types of civil cases. It is now probably the most popular form of ADR used by litigants in civil cases in the United States of America. Moreover, because of its flexibility, it is increasingly used not only in civil disputes but also in criminal cases and in cases that are on appeal.
Mediation is a structured negotiation presided over by a facilitator with the skill, training, and experience necessary to help the parties resolve their dispute. It is a process that is confidential, non-binding, and geared to assisting the parties in structuring a mutually acceptable resolution to whatever dispute has prompted the mediation because the process leaves control of the settlement in the hands of the disputants, and because it is oriented to producing solutions that accommodate the fundamental needs of each side, mediation is a dispute resolution technique particularly appropriate for circumstances where the parties to the dispute have had or expect to have, a continuing relationship. It is also, however, well suited to disputes that do not involve such relationships.
Mediation as a technique for resolving disputes first began in the area of family law, probably because the nature of the emotions involved often led to serious problems with positional bargaining and because the parties were often forced to have a continuing relationship because of children. Mediation in family law disputes was quickly recognized as a valuable tool, and courts and litigants soon realized that using mediation was not limited to family disputes but could be extended to other civil disputes as well.
The reasons for mediation’s growing popularity in all areas of civil litigation are abundantly clear:
- Mediation is non-threatening. This is because it is non-binding and thus permits client control of the outcome.
- Mediation is relatively inexpensive, as most sessions last no more than one
or two days. - Mediation has a high percentage of success. Most mediators report 80 to 90 percent success rates.
One of the basic advantages of mediation is its flexibility. A mediation session can be designed in any way that the parties believe would be most useful to the resolution of their dispute. Before the mediation begins, each side will submit a brief or statement to the mediator, which consists of a summary of the party’s position and includes any critical written material.
The mediation begins with a joint session attended by the mediator and all of the parties and their lawyers. The mediator hears a presentation by each party outlining its particular view of the case and why it believes it is entitled to prevail in the dispute. After the mediator has heard presentations from each side, the joint session is ended.
The purposes of the joint session are several. First, it allows the mediator to hear firsthand each party’s statement of its position. Second, by accurately reciting back the positions to each of the parties, the mediator can build credibility with both sides by demonstrating that he has truly understood any contentions. Finally and importantly, the joint session allows each side to hear the other side’s arguments directly, without the ‘filtering’ that typically occurs when cases are reported only through the lawyers.
Following the joint session, the mediation breaks into individual meetings where the mediator meets with each side privately in an attempt to bridge the gaps that exist. It is in these private sessions where the mediator spends substantial time candidly identifying with the parties what their true interests are and developing options that might satisfy those interests. At the same time, the mediator is looking for common ground between the parties.
In conclusion, most cases are resolved. Because mediation is so effective, it offers tremendous cost savings and other benefits to the parties involved. By resolving cases and getting them out of the court system, mediation also reduces the burden on that system and promotes speed and efficiency in the processing of cases. The mediator has a diverse role to play. He will act as a link between the two contesting parties. He will ascertain the nature of the real dispute and narrow down the areas of controversy. He will guide the parties in which direction they can arrive at a compromise or settlement.
After going through the above modes of conciliation and mediation, in the minds of a layman, there is no difference between the two modes, quite often they are used as interchangeable terms. Mediation is aimed at conciliation and conciliation has the elements of mediation. In the dictionary of Modern Legal Usage by Bryan A. Garner, it is stated thus: – “The distinction between mediation and conciliation is widely debated among those interested in ADR… Some suggest that conciliation is ‘a nonbinding arbitration’, whereas mediation is merely ‘assisted negotiation’. Others put it nearly the opposite way: conciliation involves a third party’s trying to bring together disputing parties to help them reconcile their differences, whereas mediation goes further by allowing the third party to suggest terms on which the dispute might be resolved. Still, others reject these attempts at DIFFERENTIATION and contend that there is no consensus about what the two words mean- that they are generally interchangeable. Though a distinction would be convenient, those who argue that usage indicates a broad synonymy is most accurate”.
Judicial Settlement through Lok Adalat
The other means of ADR which exists in India and which has so far proved successful is the system of Lok Adalats (courts of the people). Originally recommended in 1980 by the Committee for Implementing Legal Aid Schemes (CILAS) constituted by the Government of India, Lok Adalats have been functioning in various parts of India for over 15 years with the active support of some Chief Justices of High Courts, and some judges of the Supreme Court of India. This system has attracted a lot of attention and proved quite successful so far. The holding of Lok Adalats for the settlement of disputes-including pending court cases has proved quite effective.
The movement of Lok Adalats has gained momentum throughout the country and has produced effective results. These ‘courts of people’ started initially as a voluntary organization for informal resolution of disputes and is mostly manned by retired members of the judicial fraternity associated with others. They have now received statutory recognition in the Legal Services Authorities Act, 1987. The Law Commission has found that simple disputes where an approach of ‘give and take’, which is likely to result in a settlement, may be resolved in the said forum and that its utility in resolving disputes between Government and citizen, Public Undertakings inter se and between local authorities and other instrumentalities of the State is limited. Despite the limitation, Lok Adalats, on the whole, has been successful in settling many disputes in the field of motor accident claims and disputes relating to family and matrimonial matters. Once the Lok Adalats are institutionalized through the machinery of law, they may produce better and more effective results.
Lok Adalats were given statutory status by the Legal Services Authorities Act, 1987 which came into force in November 1995. Under its provisions, states, and district legal services authorities constituted under the Act are empowered to organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as they think fit. These consist of judicial officers possessing such qualifications and experience as prescribed by the state government. A Lok Adalat has the jurisdiction to determine and arrive at a compromise or settlement between parties to a dispute in respect of any matter falling within the jurisdiction of any civil, criminal, or revenue court or of any tribunal constituted under any law for the time being in force for the area for which the Lok Adalat is organized.
The introduction of Lok Adalats has added a new chapter to the disputes disposition system in India and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. Once a compromise or settlement is arrived at before a Lok Adalat, the award based thereon acquires the force of a decree of a civil court. It attains finality and binds the parties to the dispute. Recently, the Legal Services Authorities Act 1987 was amended to include a new chapter to provide for compulsory pre-litigation conciliation and settlement, by setting up permanent Lok Adalats. Permanent Lok Adalats, under the new scheme, they have jurisdiction over cases relating to public utility services such as transport, post, power and water supply, conservation, sanitation, hospitals, insurance, etc.
The procedural provisions in respect of disputes referred to Lok Adalats are contained in sections 19 to 22 of the Legal Services Authority Act, 1987.
The word Lok Adalat, if freely translated means a “people’s Court”. “Lok Adalat” is defined “as a forum where voluntary effort aimed at bringing about settlement of disputes between the parties is made through conciliatory and pervasive efforts”. Resolving disputes through Lok Adalat not only minimizes litigation expenditure, it saves valuable time of the Lok Adalat not only minimizes litigation expenditure, it saves valuable time of the parties and their witnesses, and also facilities inexpensive and prompt remedy appropriately to the satisfaction of both the parties.
The conciliator is the name given by Statute to members of Lok Adalat who are drawn from retired judicial officers, social workers, and advocates.
A compromise deed is drawn up after settlement and signatures of parties are obtained. Then, a decree is passed in cases of motor vehicle accidents, compensation is ensured on the spot.
The types of cases dealt with generally are:
- Mutation of land case;
- Compoundable criminal offences;
- Encroachment on forest lands;
- Family disputes;
- Land acquisition disputes;
- Motor accident claims; and
- Cases that are not sub judice.
Lok Adalats are known as “People’s festivals of justice” because settlements are not always necessarily according to legal principles. Settlements have an eye mainly on:
- Social goals like ending quarrels;
- Restoring family peace;
- Providing succour for the destitute.
Experience has been that indifferences to Lok Adalats waned off and the efficacy of this novel and the informal system becomes sprouted. Hence these are now being demanded no “Permanent Basis” in the manner of regular law – courts. With a view to making them function more effectively and permanently, the need was felt to clothe Lok Adalats with more powers hence Legal Services Authorities Act, 1987 was enacted.
An award of a Lok Adalat is deemed to be a decree of a civil court or an order of any other court.
Where the case was pending before the court so that the court fee had already been paid and then it was resolved through the Lok Adalat, the court fee would be refunded to the party in the manner provided under the Court Fees Act, 1870. An award made by a Lok Adalat is final and binding on all the parties to the dispute. No appeal lies against any such award in any court. However, there the Lok Adalat fails in its efforts to bring about a compromise or settlement; it has to return the matter to the court form that it came by reference so that the court may dispose of it in accordance with the law. Where the matter came on a reference of an Authority organizing the Lok Adalat and there is a failure is arriving at a compromise or settlement, the Lok Adalat has to advise the parties to seek a remedy in a court.
The court, to which the matter goes back, has to dispose of it taking it from the stage which it had reached at the time when it was referred to the Lok Adalat.
Negotiation
It is a non-binding procedure involving direct interaction of the disputing parties wherein a party approaches the other with the offer of a negotiated settlement based on an objective assessment of each other’s position.
The parties to a dispute can, on their motion staff a process of negotiations through correspondence or through on or two mediators with a view to finding a mutually accepted solution of the problem. Law has been encouraging this process all along. There are provisions in the Civil Procedure Code under which the courts have to give to the parties all the facilities of bringing about a compromise settlement. A compromise agreement is submitted for the approval of the court. If the court approves the compromise, a consent decree would be passed. The decree has a binding effect. If constitutes res judicata. The counsels of the parties play in the process of compromise the role of mediators.
For the purpose of encouraging attempts at compromise, Section 23 of the Evidence Act, 1872 protects against disclosure of information submitted by parties to each other. Such communications, therefore, become confidential. They cannot be used by way of evidence anywhere. Any disclosure made without the consent of the party making the communication would be a breach of confidence and would be actionable as such for any consequential loss.
This protection or privilege against disclosure is intended to encourage parties to settle their differences amicably and to avoid litigation if possible. Explaining the policy of the provision, an Australian Judge says:
“The law relating to communications without prejudice is of course familiar. As a matter of policy, the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties in an attempt to compromise litigation to communication with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go unhampered. .. the privilege covers admission by words or conduct. For example, neither party can use the readiness of the other to negotiation as an implied admission.”
The Indian Contract Act, 1872 also contains provisions for encouraging mutual settlements through the process described as accord and satisfaction. Section 62 and 63 enable parties to arrive at an alternative solution in respect of the bargain that they have made. Under the doctrine of consideration, decisions have been delivered by the courts to the effect that the compromise of a pending suit is a good consideration for the compromise to make it binding on the parties. Such compromises have been recognized as consideration irrespective of the merits of the claim or defence on either side and when there is some doubt in the minds of the parties as to their respective rights.
The main problem being faced in the field of ADR is that there are not many trained mediators and conciliators. Also, there is very few trained personnel to impart training to prospective mediators and conciliators including Judicial Officers and members of the Bar, about ADR methods and pre-trial settlement of cases. Judicial Officers are already overburdened and find no time to adopt these modes of ADR. Senior Judicial Officers having an aptitude for ADR methods should be trained in mediation, conciliation, etc. and made in-charge of mediation and conciliation centres. They can also be asked to provide training to prospective mediators and conciliators who can then undertake the task of the settlement of disputes by way of ADR. However, ultimately the responsibility of mediation has to be on the shoulders of members of the Bar.
CPC has recently been amended by incorporating Section 89 to bring alternative systems into the mainstream. However, we are yet to develop a cadre of persons who will be able to use these ADR methods in dispensing justice. Lawyers by and large still believe that litigation is the way of resolving disputes. Litigants are also advised accordingly. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity.
The Authors of this article, Sanjeev Kumar is a Partner and Anshul Sehgal is a Managing Associate in the Litigation & Dispute Resolution Team at L&L Partners Law Offices, New Delhi. They can be reached out at sanjeevk@luthra.com and asehgal@luthra.com. The views expressed are personal.
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