Mediation is the flagship of the ADR (Alternative Dispute Resolution) movement. Mediation is a different paradigm and path from litigation. In litigation the focus is on the past, on establishing blame and liability and a win-lose result.
In mediation the emphasis is on the future, on cooperation and communication, on sustainable solutions, which are a win-win for all parties. Mediation focuses on long-term interests, shows parties the weaknesses, not just the strengths of their case, and makes them examine their alternatives to a negotiated agreement. It gives the parties the freedom to suggest options for settlement.
Mediation is a voluntary process where the parties retain decision-making rights all through and are only bound when they enter into a written agreement concluding the mediation. Mediation is an extremely flexible process. It can work in disputes before they are taken to Court, to disputes pending in Courts and even after a Court verdict has been given.
Types of Mediation
- Statutory There are some types of cases that are required by law to go through the mediation process. Labor disputes and domestic (family law) disputes are two prime examples. In India, however, this type of mandatory mediation is rare.
- Court Ordered
Most jurisdictions in India require some form of alternative dispute resolution before a case may be resolved through the traditional judicial process. As soon as a case is filed, the parties are provided a number of ADR options. They must, unless exempted by the Court, select and pursue one of these options. Included, as an option is mediation. The Court maintains a list of mediators—skilled and experienced attorneys selected by the Court—who are available to the parties. For parties who elect this option, the Court will appoint a mediator and designate a date by which the mediation must be completed. The results of the mediation are confidential—the Court will not know what occurred at the mediation, unless of course, an agreement (or partial agreement) is reached. If an agreement is reached, that agreement is enforceable as a judgment of the Court.
The parties to a contract, as part of the terms of their agreement, may include a mediation clause as a mechanism to resolve disputes. Although binding arbitration is a much more common contractual term since it will always result in a resolution, mediation can be an effective tool to resolve contractual disputes before they blossom into a protracted battle. The selections of the mediator, as well as the conditions of the mediation, are usually stated in the contract. If the mediation is successful, the results can be enforced as a judgment of a court.
The parties to a dispute may decide to seek mediation without being compelled by law, court order, or contract. They may choose to mediate their dispute at any time: as the dispute is developing, before initiating legal action, or even while legal action is pending. The conditions of the mediation—e.g., who will be the mediator, when the mediation will occur, the rules of the mediation—are controlled by the parties.