AdvocateCIVIL

What is Mediation and what are the steps to settle a case?

MEDIATION

Mediation is a process in which an impartial or neutral third party assists disputants in finding a mutually acceptable solution. It is both confidential and voluntary.It is a good method of resolving disputes, especially those involving relationships which are not easily resolved through litigation process, to the mutual satisfaction of both sides. These relationships can be personal, commercial, contractual or social.

ADVANTAGES OF MEDIATION

  1. It immediately puts disputants in control of both the dispute and its resolution.
    The law mandates it and the courts encourage and endorse it.
  2. The process is voluntary and parties can opt out of it at any time if they feel it does not help them.
  3. The process is confidential, the procedure is simple and the atmosphere is informal.
    It shows parties the strengths and weakness of their respective cases which helps to find realistic solutions.
  4. It focuses on long-term interests, examines alternatives, and helps create options for settlement. It gives an opportunity to parties to fully resolve all their differences.
  5. The process improves communication between the parties which is crucial to resolving any dispute.
  6. Disputants save precious time and energy.
  7. Disputants save costs on what invariably becomes a prolonged litigation.
  8. Mediation helps restore broken relationships and focuses on improving the future, not on dissecting the past.
  9. Parties opt for more by signing a settlement that works to benefit both.
    At the end of Mediation, disputants can actually shake hands with their opponents.
    With every case that is settled, other related cases between the parties also get settled.
  10. There is no further appeal. It saves judicial cost and time.

HOW IS THE MEDIATOR APPOINTED

Parties can select their Mediator/s by consent. Where Mediation is directed by a Court, the Mediator/s is/are appointed by the Court itself. Alternatively, upon reference by the court, Court mediation and Conciliation center appoints the Mediator/s from its panel of trained and experienced Mediators, who are the members of Court Bar Association.

STEPS IN MEDIATION PROCESS

  • Mediation services can be used by parties directly or through reference by the Court.
  • Parties fill in a consent form made available to them by the Court Mediation and Conciliation Centre for referring their case to Mediation.
  • If the Mediator has or may be perceived to have any partiality or bias in the dispute referred to, he/she declines to act as Mediator.
  • The Mediator is at liberty to meet the parties and their lawyers jointly or separately. Parties are encouraged to appear before the Mediator with their lawyers.
  • The Mediator is in charge of the process and as long as it lasts, parties must abide by the Mediator’s decision on the process to be followed.
  • In the first session, the Mediator and each party makes an opening statement. The process works by the Mediator helping parties to establish the basic facts, identify the underlying issues for resolution and focus parties on their long-term interests.
    Parties can give a brief summary of their respective cases to the Mediator and produce such documents as they may like. Copies thereof can be given to the other side.
  • The Mediator engages in improving communication between the parties. This can be done in further joint sessions with all parties and their lawyers or in separate sessions with each party and its lawyer at a time, or a combination of both.
  • The Mediator then helps parties examine their best and worst alternatives to settlement. Once consensus is reached, it is reflected in the settlement agreement which is signed by the parties, their lawyers and the Mediator.
  • If the matter has been referred by the Court,this settlement agreement will be filed in the Court for appropriate directions.
  • If for any reason a final settlement cannot be reached by the parties or if any party decides not to proceed with Mediation process, the proceedings are terminated.

DOES THE LAW RECOGNISE MEDIATION?

Yes it does. Section 89 Orders X 1A, 1C, 1D and XXXII-A of Civil Procedure Code 1908 make it obligatory for the Court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. The Arbitration and Conciliation Act 1996 makes provisions for enabling settlements. At the highest level, Indian Judiciary has decided that Mediation will be increasingly used in the legal system.

HOW TO CONTACT THE MEDIATION CENTRE TO AVAIL ITS SERVICES

To avail the pre-litigation services of the centre, contact the centre directly by registering with the co-ordinator of the centre. If referred by an order of the Court, the party first need to fill in the application for Mediation which will be provided by the Centre. Then avail of the services of the Centre by marking the presence with the co-ordinator.


SOURCE: DISTRICT OF COURT THODUPUZHA WEB

Categories: CIVIL

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