This blog is written by Hriteek Kumar Singh, a First-year law student of Delhi Metropolitan Education

Introduction:

Mediation is one of the important ADR methods that have gained considerable momentum in the resolution of disputes outside the courts. It offers a speedy, inexpensive, and friendly way out for any dispute settlement and thus is welcomed by all those parties who seek quick and less adversarial settlements. Mediation is unlike litigation, wherein justice is entirely at the discretion of the presiding judge, where a neutral third-party mediator discusses issues with disputing parties to arrive at a mutually acceptable solution. In recent years, mediation has become standard practice in an array of cases ranging from commercial, family, and workplace disputes to international conflicts.

The Basics of Mediation:

Mediation is a process that is both voluntary and confidential. Unlike in litigation, where the judge or jury makes the decision, the parties remain in full control of the resolution. The mediator is a neutral, specially trained third party who does not force a solution upon the parties but leads both parties through structured discussions. The mediator's responsibility is to facilitate the identification of key issues within the dispute, delve into underlying interests, and improve communication. This approach ideally culminates in an agreement that satisfies both parties.

Types of Mediation:

The mediation may also take different forms, depending on the type of dispute. There are two major types of mediation described in most texts:

Facilitative Mediation:

This is that kind of mediation where the mediator helps the parties have the conversation themselves but does not offer an opinion or view of what the outcome should be. He assists the parties in identifying their interests and works toward a solution that the parties can live with.

Transformative Mediation:

This model focuses on the change in the relationship of the parties, rather than on the solution of the immediate problem. It is often used in situations where, along with the resolution of the dispute, continuance or restoration of a relationship is equally important.

Merits of Mediation:

1. Cost-Effective:

The major benefit availed from mediation is that its cost implications are minimal compared to conventional litigation. Fees charged by lawyers, court charges, expert witness charges, and administrative costs all combine to make the process of court action very high-priced. In mediation, many of these above charges are eliminated; hence, it is quite an attractive option for individuals and small businesses.

2. Time-Efficient:

The litigation process might take a few years before the case reaches its conclusion. In contrast, though, mediation can be wrapped up in as short a period as a few days or weeks, depending on the nature of the case. This will be attractive for those who seek speed without the long delay characteristic of courts.

3. Confidentiality:

Mediation is a private process. Where court proceedings are part of the public record, whatever is discussed within mediation remains privileged. This especially applies to businesses or individuals where discretion must be followed and does not need sensitive information reported to the public. Confidentiality will protect open dialogue.

4. Voluntary and Collaborative:

It is a voluntary process in which mediation takes place upon mutual agreement of the parties involved. Any party, at any given time, can pull out if they feel the mediation is not taking them to the preferred conclusions. Hence, the collaborative nature of mediation encourages both parties to work together toward a solution since it promotes goodwill and therefore preserves relationships.

5. Creative and Flexible Solutions:

Contrary to the inflexible nature of court judgments, mediation allows for more creative types of solutions that better serve the needs and interests of the parties. The mediator can facilitate options that are generally not explored or permitted in the courtroom setting. For example, in business disputes, parties may bargain for continued business dealings, a payment plan, or adjustment in service issues that are impossible for a court of law to decree.

6. Protects Relationships:

Family, work, or business conflicts should, at all costs, not lead to the loss of a relationship. As mediation is less adversarial, parties can air their issues without affecting long-term relationships. It provides a platform for clear communication and understanding, helping mend relationships even after a conflict has arisen.

7. Control Over the Outcome:

During litigation, the decision is made by a judge, and one of the parties - or both- may leave the courtroom discontented with the result. In mediation, it is the right of the parties to participate directly in designing the solution. This control over the resolution increases the possibility of both parties adhering to an agreement since they were active participants in its formulation.

8. Less Stressful:

The adversarial nature of litigation is emotionally draining. Mediation, by nature, is more relaxed and seeks to dissipate tension between parties. As the process is mutually cooperative, it can be less stressful for conflict resolution.

Mediation in Specific Contexts:

1. Commercial Disputes:

Mediation is widely taken into consideration in business and commercial disputes. Companies, partners, or suppliers use mediation to discuss business-sensitive issues at a platform that shall not disclose their names or issues. Business firms like to go for mediation instead of taking the legal way, which could delay their operations or harm their goodwill.

2. Family Disputes:

The success rates of mediation have been very high in family law disputes, such as divorces, child custody, and property division. For such highly sensitive areas, courts favor mediation to ensure a resolution that protects the best interest of the parties, particularly children.

3. Conflicts in the Workplace:

Conflicts at work may range between their own or with the employers. These disputes, if not addressed appropriately, might swell up into a serious disturbance in business. Meditation will provide a non-confrontational way to address such issues and may help in understanding and creating a positive work environment.

4. Cross-Border Disputes:

In international commercial disputes, mediation has come to the fore because it allows parties from different legal backgrounds to make common cause. International mediation also steers clear of the intricacy and cost associated with traversing foreign legal systems.

Challenges and Limitations of Mediation:

1. Not Guaranteed to Work:

Mediation depends on the will of the parties to accommodate and compromise. When one or both parties just refuse to engage in good faith, or when they are not entrenched, mediation fails to work.

2. Not Legally Binding:

Mediation agreements, if not written into a formal agreement, are not legally binding. In those cases where one party refuses to comply with an agreement, it could imply additional legal headaches.

3. Power Imbalances:

Where one party is much more powerful than another-as in employer-employee disputes, or cases of domestic abuse-the weaker party may be coerced into accepting terms that are not in their interest. A good mediator may mitigate this problem to some extent, but it is a potential weakness nonetheless.

Conclusion:

Mediation plays an important role in the contemporary machinery of dispute resolution. It is highly cost-effective, confidential, and preserves relationships. Yet, it is not a panacea that would work for each conflict. It offers a collaborative approach to contrast the adversariness of litigation in those cases where relationships are to be maintained and innovative solutions must be found. Mediation often results in more satisfying and longer-lasting results, since it gives parties control of the process and its outcome; hence, it is a growing trend in both legal and business circles.

References:

1. AllianceUniversity -https://www.alliance.edu.in/committees/ACADR/assets/publication/ACADR-Newsletter-Vol01-Issue02.pdf

2. ipleaders - https://blog.ipleaders.in/role-of-mediation-in-international-disputes/

3. Moore christoff - https://moorechristoff.com/insight/the-role-of-mediation-in-resolving-legal-disputes/

4. Enhelions blogs - https://enhelion.com/blogs/2020/11/22/role-of-mediation-in-resolving-international-disputes/

5. ExciseCourtwrkshopiv- https://districts.ecourts.gov.in/sites/default/files/Excise%20Courtwrkshopiv.pdf