36
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
(..4..)
Mediation
Question Bank
Q.1. Explain the Code of Conduct for the mediator enshrined in the Civil Procedure
Mediation Rule, 2005.
Q.2. Define mediation and explain different styles of Mediation.
Short Notes
1. Explain fully-“Mediation”
Table of Content
I. Meaning of ‘Mediation’:- ---------------------------------------------------------------------- 38
3. As per Wikipedia:- --------------------------------------------------------------------------- 38
1. Voluntary participation:- -------------------------------------------------------------------- 38
5. Binding settlement:- ------------------------------------------------------------------------- 39
37
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
2. Facilitative mediation------------------------------------------------------------------------ 40
4. Role played:----------------------------------------------------------------------------------- 43
Notes------------------------------------------------------------------------------------------------- 43
38
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
I. Meaning of ‘Mediation’:-
Mediation is yet another important mode of alternate dispute resolution. It is very
important mode of resolving dispute at international level. In a mediation procedure, a
neutral mediator helps the parties to reach a mutually satisfactory settlement.
1. According to Black’s Law Dictionary:-
‘Mediation’ is “a method of non-bias dispute resolution, involving a neutral third
party, who tries to help the disputing parties reach a neutrally agreeable solution”
2. As per Oxford Dictionary:-
‘Mediation’ is “an intervention in a dispute in order to resolve it”.
3. As per Wikipedia:-
‘Mediation’ is “a structured, interactive process where an impartial third party
assists disputing parties in resolving conflict through the use of specialized
communication and negotiation techniques”.
Mediation is a way of resolving dispute, where two or more parties decide to
reach an agreement with a support of a third neutral party called as ‘mediator’, who
guides them through the process.
Mediator is a facilitator, who helps the parties to communicate and find common
grounds of their dispute resolution. A mediator is a neutral, independent person, who
assist parties to the dispute to arrive at a settlement.
He plays very important role in mediation process. Great responsibility lies on
him to conduct mediation successfully, to resolve the dispute between the parties.
The parties through this process come to the final agreement. Such final agreement is
binding upon both or all the parties to the mediation. It is enforceable as the judgment
of a court.
II. Characteristics / Essentials of mediation: -
Mediation is an informal process of dispute settlement; however, it has the
following principles: -
1. Voluntary participation: -
Mediation is voluntary and non-binding process of dispute resolution. There is
total absence of force in mediation. The outcome of the mediation is not judgment or
award but rather settlement between the parties to a dispute. The mediator is a person
who mediates between the disputing parties to bring them at settlement. The settlement
39
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
takes place with the free will of the parties.
2. Impartiality:-
Mediator acts as an impartial person to the parties, so that the mediation be
conducted in a fair and equal way. Only the person having no any interest in the matter
can act as a mediator. Any sort of interest in disputing subject or parties, disentitles him
from being mediator.
3. Private and Confidential:-
The Discussion during mediation remains private and confidential. Unless
otherwise agreed, the business of mediation is confidential and private. No information
is shared with any person of the business of the proceeding unless parties agrees to it.
4. Parties determine the outcome:-
In a mediation, parties determine the outcome of the proceeding willfully,
without any force. Parties arrive at settlement with free will. Settlement of the parties is
not award of a mediator.
5. Binding settlement:-
Once the parties come to a settlement, it becomes binding. Thus, once the
settlement is signed by the parties, it becomes binding upon the parties.
III. Advantages of Mediation:-
Mediation has the following advantages over the judiciary-
1. Informality:-
The mediation proceedings are informal. Not so many rules and procedures are
involved in the process of mediation.
2. Privacy and confidentiality are mediated: - (discussed above)
3. Time and Cost saving:-
Compared to the traditional judiciary, mediation is time and cost saving
procedure. Traditional judiciary takes too much time and parties have to incur so much
cost for the proceeding.
4. Parties Control:-
Mediation is under the control of the parties. Participation of the parties is also
voluntary. Therefore, mediation proceeds under the control of parties.
5. Binding form of settlement:-
Once parties come to the settlement, it becomes binding. Thus, even though the
procedure is liberal and participation is voluntary but once settlement is entered into, it
becomes binding as if the judgment of court.
IV. Different types of mediations:-
There are the following types or styles of mediation-
40
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
1. Evaluative mediation:-
In this type of mediation the parties are encouraged to reach settlement according
to their rights and entitlements within the anticipated range of remedies. The mediator
plays important role in this type of mediation.
2. Facilitative mediation-
In this type of mediation the parties are encouraged to negotiate based upon their
needs and interests instead of their strict legal rights.
3. Transformative mediation-
In this type of mediation the parties are encouraged to deal with underlying
causes of their problems with a view to repairing their relationship as the basis for
settlement.
4. Settlement mediation-
In this type of mediation the parties are encouraged to compromise in order to
settle the disputes between them. Thus, the settlement is given more importance. This is
more object oriented mediation.
V. Alternate dispute resolution under CPC:-
1. History:-
Mediation first time came to be legally recognised as a method of dispute
resolution in the Industrial Dispute Act, 1947.
In 1999, the amendment in S. 89 of the Civil Procedure Code is carried on to
enable courts to refer the dispute pending before it to any of the suitable method of
alternate dispute resolution. The procedure of it is mentioned in Order X rules 1-A, 1-B,
and 1-C.
Recently, Indian Institution of Arbitration and Mediation has revised existing
rules in 2021.
The Supreme Court committee has also prepared “The Mediation Training
Manual”, to guide judges on mediation. The Legal services Authorities Act, 1987, has
constituted the National Legal Services Authority at Central level to carry on and
supervise the functions of alternate dispute resolution.
2. Settlement of dispute outside of Court (S. 89):-
We will discuss the provision under S. 89 of the C.P.C permitting judges to refer
the dispute to alternate dispute resolution as follows-
(1) Where it appears to the court that there exist elements of a settlement which may
be acceptable to the parties, the court shall formulate the terms of settlement and give
them to the parties for their observations and after receiving the observation of the
parties, the court may reformulate the terms of a possible settlement and refer the
41
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
same for-
(a) arbitration, (b) conciliation, (c) judicial settlement including settlement through Lok-
Adalat; or (d) mediation.
(2) Where a dispute had been referred-
(a) for arbitration or conciliation, the provisions of the Arbitration and
Conciliation Act, 1996 shall apply (as if the proceedings for arbitration or conciliation
were referred for settlement under the provisions of that Act).
(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance
with the provisions of sub-section (1) of S. 20 of the Legal Services Authority Act,
1987 (and all other provisions of that Act shall apply in respect of the dispute so
referred to the Lok Adalat).
(c) for judicial settlement, the court shall refer the same to a suitable institution
or person and such institution or person shall be deemed to be a Lok Adalat and all the
provisions of the Legal Services Authority Act, 1987 shall apply (as if the dispute were
referred to a Lok Adalat under the provisions of that Act),
(d) for mediation, the court shall effect a compromise between the parties and
shall follow such procedure as may be prescribed.
3. Rules applicable for alternate dispute resolution:-
Order X of CPC lays down the rules/steps that are applicable for alternate
dispute resolution as follows-
(i) Direction of the court to opt for any one mode of alternate dispute resolution
(Rule 1A.):-
After recording admissions and denials, the court shall direct the parties to the
suit to opt either mode of the settlement outside the court as specified in Sub-Section (1)
of S. 89. On the option of the parties, the court shall fix the date of appearance before
such forum or authority as may be opted by the parties.
(ii) Appearance before the conciliatory forum or authority (Rule 1B):-
Where a suit is referred under rule 1A, the parties shall appear before such forum
or authority for conciliation of the suit.
(iii) Appearance before the Court consequent to the failure of the efforts of
conciliation (Rule 1C):-
Where a suit is referred under rule 1A and the presiding officer of a court, forum
or authority is satisfied that it would not be proper in the interest of justice to proceed
with the matter further, then, it shall refer the matter again to the court and direct the
parties to appear before the court on the date fixed by it.
Generally, the steps followed in mediation process are that, the mediator helds
42
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
preliminary meeting with the parties, then he takes statements of the problem from the
parties, he then gather information about the problem, and after identifying problem he
starts bargaining to resolve the problem.
The Delhi High Court observed that “no absolute right is vested in a litigant to get his
dispute referred to mediation. Moreover, it is not every case which qualifies for
reference to mediation. The cases are not to be referred to mediation in a perfunctory
manner because it would encourage the scrupulous litigants to misuse this laudatory
process and cause more delay in disposal of the case”.
Moreover, in Afcons Infrastructure Limited v. Cherian Varkey Constructions
mediation is normally not permissible and those where the same is permissible. The
Court has laid down the following cases in which alternate dispute resolution process is
not suitable due to the nature of dispute viz.
(i) Representative suits under O. 1 R. 8 of C.P.C.
(ii) Disputes relating to election to public offices.
(iii) Cases involving grant of authority by the court, such as suits for grant of probate,
letters of administration etc.
(iv) Cases involving serious allegations of fraud, fabrication of documents, etc.
(v) Cases requiring protection of courts e.g. claims against minors, deities etc.
(vi) cases involving prosecution for criminal offences etc.
All other suits and cases of civil nature are suitable for alternate dispute
resolution process.
According to the Supreme Court, in civil suits the appropriate stage of referring,
the matter for mediation is after pleading. However, it doesn’t mean that the matter
cannot be referred to mediation thereafter or after framing issues.
VI. Difference between Conciliation and mediation:-
Both these concepts by and large are the same. In India more stress is given on
mediation than conciliation. Lok-Adalat and mediation centers are poplar in India. In-
spits of similarities, there are the following difference between these two concepts, we
will discuss them as follows-
1. As to definition:- (Refer the definitions from both the topics)
2. As to the role played:-
The role of a conciliator is more proactive, whereas it is not so in mediation.
3. Powers:-
1 2017 SCC Online Del 11032
43
“Law Master’s” Publication
The powers of conciliator are larger than the powers of mediator.
4. Role played:-
“Mediation”
Prof. S.D. Bhosale
The conciliator can make proposals for settlement, he can formulate or
reformulate the terms of possible settlement, however, mediator can only facilitate a
settlement between the parties.
Notes
1. Mediator:-
a) Who is mediator:-
A mediator is a neutral, independent party, who assist parties to the dispute to
arrive at a settlement.
He plays very important role in mediation process. Great responsibility lies on
him to conduct mediation successfully, to resolve the dispute between the parties.
b). Role of mediator:-
The mediator plays an important role in the mediation process as follows-
(i). Facilitate communication between both parties to the dispute.
(ii). Setting Meeting between parties:-
After appointment, the mediator sets a date for the meeting of the parties. He
decides the steps of proceedings etc.
(iii). Reviews the mediation proceeding:-
He reviews the mediation proceeding. He should lead the parties to come at final
settlement.
c. Duties of mediation:-
The meditator has the following duties and Code to follow:-
i). Impartiality:-
A mediator is to be impartial. Impartiality implies freedom from favouritism,
bias or prejudice against or for any party to the mediation process. He should withdraw
if he is unable to maintain his impartiality or if any reasonable objection is raised by the
party.
ii). To follow standards of conduct:-
Mediator has to follow the standards of the Code of Conduct.
iii). Confidentiality:-
Fall information received by the mediation should be kept confidential. The
information can only be provided to others if consent is given by the parties.
2 (2010) 8 SCC 24
44
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
iv). To assist and guide parties to arrive at resolution:-
The mediator assists and guide parties to arrive at resolution or settlement on
their own. He therefore can help the parties to understand and focus on the important
issues needed to reach a resolution. He should have a creative approach and innovative
solution to the problem between the parties.
v). Not to decide outcome:-
Even though it is a duty of a mediator to assist and guide parties to arrive at
settlement, he is not supposed to decide outcome of mediation. He is required to keep
his neutrality.
2. Consumer Dispute:-
a) History:-
Consumer Protection Act, 1986, is enacted to protect interest of a consumer. To
provide them cheap and speedy justice. For that purpose, the Act has established forums
at three levels i.e. District Forum, State Commission and the National Commission.
There are consumer activists, voluntary consumer organisations and other social action
groups to support consumer.
The Arbitration and Conciliation Act, 1996 has helped in resolving the disputes
in the field of consumer protection. Number of cases are settled through Lok-Adalats.
b) Consumer Protection Act, 2019:-
The new Consumer Protection Act, 2019 has come into existence by replacing
earlier Act, of 1986. The new Act, makes elaborate provisions for mediation as an
alternative Dispute Resolution for consumer matters. The Act, in its preamble provides
for refereeing dispute to the alternate dispute resolution methods to provide speedy
justice to consumers. Now alternative dispute resolution has become regular practice in
consumer field. The provisions suggest to refer the matter for mediation after admission
of complaint or at any later stage.
Chapter V from Ss. 74 to 81 made exhaustive provisions for mediation. It
provides for-
(i) Establishment of consumer mediation cells at all levels i.e. national, state and district
level (S. 74)
(ii) Empanelment of mediators (S. 75),
(iii) Nomination of mediators from panes (S. 76),
(iv) Duties of mediators to disclose certain facts (S. 77).
(v) Replacement of mediator in certain cases (S. 78).
(vi) Procedure for mediation (S. 79).
45
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
(vii) Settlement through mediation (S. 80).
(viii) Recording settlement and passing of orders (S. 81).
The Act, is supplemented by the Consumer Protection (Mediation) Rules, 2020.
They came into force from 20th July 2020. The rules prescribe details as to-
(1). Mediation Cell:-
(a) Every Mediation Cell set up in a Commission, shall have a panel of mediators
on the recommendation of a selection committee consisting of the President and a
member of that Commission. (b) The Mediation Cell shall have such support staff as
may be decided by the President of that Commission in consultation with the concerned
Government and that Government shall provide all administrative assistance and
infrastructure facilities required by the Commission (Rule. 3.)
(2). Matters not to be referred to mediation (Rule. 4):-
The following matters shall not be referred to mediation, namely:—
(a) the matters relating to proceedings in respect of medical negligence resulting in
grievous injury or death;
(b) matters which relate to defaults or offences for which applications for
compounding of offences have been made by one or more parties;
(c) cases involving serious and specific allegations of fraud, fabrication of documents,
forgery, impersonation, coercion;
(d) cases relating to prosecution for criminal and non-compoundable offences;
(e) cases which involve public interest or the interest of numerous persons who are
not parties before the Commission:
Provided that, in any case other than those mentioned in this rule, the
Commission before which the case is pending may choose not to refer it to mediation if
it appears to the Commission that no elements of a settlement exist which may be
acceptable to the parties or that mediation is otherwise not appropriate having regard to
the circumstances of the case and the respective positions of the parties.
(3). Refund of fee (Rule. 5):-
Where the Commission refers the parties to mediation, the complainant shall be
entitled to receive full amount of application fee paid in respect of such complaint, if a
settlement is reached between such parties.
(4). Resort to arbitral or judicial proceedings (Rule. 6):-
The parties shall not initiate any arbitral or judicial proceedings in respect of a
matter which is the subject-matter of the mediation and also when such parties have
expressly undertaken not to initiate any such proceeding.
46
“Law Master’s” Publication
“Mediation”
Prof. S.D. Bhosale
(5). Settlement agreement not to be discharged by death of party thereto (Rule. 7):-
(1) A settlement agreement shall not be discharged by the death of any party thereto and
shall be enforceable by or against the legal representative of the deceased party.
(2) Nothing in this rule shall affect the operation of any law by virtue of which any right
of action is extinguished by the death of a person.
*****