What is Mediation?
Mediation is a form of Alternate Dispute Resolution (ADR), recognized in India under section 89 of Civil Procedure Code, 1908. It is a voluntary and confidential out-of-court process. The mediator acts as a neutral facilitator to help the parties reach an agreement on a variety of issues ranging from family disputes to commercial matters. Mediation takes place in the mediator’s office or a location preferred by parties and minimizes the time and cost to resolve a dispute.
In mediation, the parties informally exchange the information. This avoids the need for costly “discovery” in a court setting. The mediator listens to each party’s position and provide options and alternatives for settlement to assist the parties in reaching a compromise. Although every case is different, most mediated cases are resolved in 4 to 6 sessions of two hours each.
Once the issues are resolved, the mediator drafts a settlement agreement summarizing the issues. Parties are strongly encouraged to have the settlement agreement reviewed by independent lawyers before they sign it as the mediator cannot provide legal advice or represent either party in the court. After the Settlement Agreement is finalized and signed, the matter gets resolved and parties can go back to home in peace.
Finally, agreements reached through mediation are more likely to be carried out than those imposed by a judge. When folks go to court, the losing party is almost always angry and often prone to look for ways to violate the letter or spirit of any judgment by appealing in a higher forum. In contrast, a number of studies show that people who have freely arrived at their own solutions through mediation are significantly more likely to follow through on them.
Is the process really peaceful?
Voluntary: Participation in mediation is strictly voluntary and may be terminated at any time by either party. Each party has as much time as he or she may need to consider the issues and neither party is forced to accept a decision made by a third party, such as a judge or arbitrator. The agreement is not binding until it has been reviewed by each individual’s lawyer and signed by both parties.
Choice: The parties select a mediator of their choice according to the required expertise. With the mediator’s assistance, they can then mutually decide on their settlement terms instead of allowing a judge to make that decision for them.
Private and Confidential: Mediation discussions cannot be used in court if the mediation process breaks down. The mediator cannot be compelled to testify at a deposition or in court. What happens in mediation, stays in mediation.
Creative: The resolution of each issue is determined by the parties jointly with the assistance of the mediator. The mediator will suggest options to fit your needs and will help you to design solutions that are not limited by what a court can do.
Client-Centered: The focus of mediation is on finding the best outcome for you. The schedule and length of meetings is determined by the parties with the assistance of the mediator. The clients “own” the process.
Cost Effective: You pay only for the time the mediator works on your case. No costs are incurred for having your lawyer wait in the court for a judge to hear your case. There are no costly depositions, conferences or hearings. The cost of the mediator is usually shared with the other party and the total cost of the mediator and the two lawyers is far less than the cost of paying two lawyers to litigate.
Convenient: Meetings are scheduled by the parties and the mediator at mutually convenient times and comfortable locations. There is no need to wait for the court to set a hearing and there is no pressure to comply with court deadlines. No more taareekh par taareekh!