Category Archives: Mediation

Advocate in Mediation and Mediator

Why mediation?

There could be various scenario for considering mediation to resolve existing or probable conflict.

One of the important reasons to opt mediation is that it allows you to resolve disputes on principles rather on as per feelings or intuition of parties. It helps you prevents hasty decisions and avoid pressure – even when it is necessary to conclude dispute at the earliest.

Also, the common sense approach is to resolve disputes through mediation because it saves time and cost involved in arbitration or litigation in court. There is no certainty about the final outcome in arbitration or court litigation as the third party (arbitrator or judge) imposes (by adjudication) what she/he considers as fair and hence it is quite often neither parties are happy with the result/decision. And that leads to further litigation and bitterness in relationships.

Many a times, after initially launching litigation (which might have been launched in anger, to teach lesson or just to delay the matter), parties soon realise that it is not what they wanted. First thing most people face in litigation is the sheer delay in outcome and the cost, besides efforts that goes into it. It also affects reputation, relationships (may be of several years old and/or possible future relationships) and value erosion (particularly for entities whose shares/stocks are listed). Sometimes, focus of business shifts from doing business to seeking ‘fairness’ from third party (arbitrator or Judge).

And where one goes through the roller coaster of loosing, winning, loosing, winning in litigation (remember roller coaster of emotions too), the final winner faces the harsh reality that final decree/award may not be honoured by the opposite party. And to make a final decree/award ‘the final’, one need to apply for execution proceedings in court! And execution proceedings itself can take several years. Just look at number of pending cases and for how many years from here. At the end, litigants may wonder and tend to agree that ‘justice is an illusion‘ and it was mistake to litigate (though rarely openly admitted).

As a contrast, in mediation, parties to a dispute resolve their differences themselves with the help of a third neutral party (mediator). Mediator creates environment for communication, understanding underlying interests and available options. Instead of doing reality check at end (as in litigation), mediator facilitates reality check early on in mediation. No wonder most disputes are resolved by parties themselves, on a mutually agreed terms, that meets their respective underlying interests.

Mediation is a voluntary process – agreed by all disputing parties to attempt in good faith to resolve their differences. It maintains confidentiality (names of parties, their dispute and settlement terms etc. are not made public) and thus reputation and brand images are preserved. And more importantly and often, relations amongst parties are restored /improved or where parties so decides, consciously, to end relations without bitterness.

Mediation based on principles (as opposed to positions) can perhaps be used to establish long lasting peace without sacrificing concerns of justice, fair play and equity.

To the contrary of strong belief, mediation can work even when one of the disputing parties is strong (an elephant in the room) and other party is comparatively weaker or even miniscule.

Since mediation is not adversarial, it presents a possibility of looking at disputes not as “either or” approach or zero-sum games. In mediation, parties creates several possible options/possible solutions, and after evaluating them on mutually agreed objective criteria, finally they may agree to settle the dispute on a mutually agreed terms.

The best part is nothing is binding until final settlement is reached, written and signed. This allows party to work in good faith to resolve and openly discuss their respective concerns and interests. Advocate in mediation can represent parties in mediation and has a crucial role in making parties open, cautiously and gradually. Disputing parties too need to understand and pay their counsels (Advocate in mediation) in such a way that they are incentivised for mutually agreed terms of settlement than they might get over a period of prolonged litigation.

Out come in such a mediation provides an opportunity to reformulate relationships in the interests of all stakeholders, as it takes into consideration the future interests of parties, rather than past deeds (saying / actions) of parties.

Where mediation fails, parties still have options to come back to mediation or opt for conciliation, arbitration and court litigation.

Even cases pending before arbitrator or court may be referred to mediation.

There could be other scenario calling for mediation.

  • Say, businesses / corporates do negotiations. And when negotiations have reached an impasse, but both sides agree that they need help resolving the differences – particularly when both sides see 1+1 (i.e. their joining/working together) can make 11. In this scenario a neutral mediator is engaged to facilitate resolve the differences.
  • Also, when talks between negotiators turns into a dispute, they often develop negative opinions about each other. A negotiator might think, if only the other side was bargaining in good faith, we would have resolved this issue, probably long ago. Such views of parties sows seeds of skepticism and every proposal of other party gets biased with skepticism, which prevents them from reaching settlement. A mediator can help you overcome this barrier. 
  • In case of parties are in litigation for long and are looking for ‘face saving’ exit, mediation helps.

Still disputing parties are considering to litigate, before proceeding – consider what the Chief Justice of India, N. V. Ramana has to say about mediation:

  • “Reasons for conflicts are many. Misunderstandings, ego issues, trust and greed can lead to conflicts. Ultimately, small differences of opinion can lead to a major conflict. And even major conflicts can be resolved with some effort in understanding one other,” the CJI said. “My advice, after remaining in the legal profession for over 40 years, is that you must keep the option of knocking on the doors of a court as a last resort. Use this last resort only after exploring the option of ADR- arbitration, mediation and conciliation. Arbitration and mediation are efforts at restoring a relationship,” Justice Ramana said. See here.
  • Mahabharata teaches us significance of mediation, conciliation: CJI Ramana to business community Read here and here.

We assist you resolve dispute / impasse – by acting as Mediator as well as Advocate in Mediation.

Mediation in India

In India, mediation can be a statutory requirement, generally before institution of a suit (majority of cases), or a court referred (rare) or a contractual i.e. requirement of private contract between parties (gaining momentum).

There is no specific law of mediation in India. However, the mediation is recognised in India under different statutes. The same is summarised below:

  • Civil and Commercial Matters
    • The Civil Procedure Code, 1908 – Court annexed mediation u/s.89 r/w Order 10 and rules framed by High Courts and Sec.16 of the Court Fees Act, 1870; Compromise of Suit per Order 23 r/w Rules 3, 3A, 3B; Order 27 Rule 5B; Family matters per Order 32A Rule 3

Court annexed mediation status:

The Supreme Court, all the High Courts, and District Courts now have full-fledged mediation centres.

  • Mandatory pre-institution mediation under the Commercial Courts Act, 2005 – Sections 2(c), 12A r/w the Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018
    • SARFAESI Act – Section Section 11 – conciliation or arbitration
    • Mandatory conciliation (before arbitration) under the Micro Small and Medium Enterprises Development Act, 2006 – section 18 – Facilitation Council and eSamaadhan Scheme of Government
    • Mediation and Conciliation Panels under
      • the Companies Act, 2013 – Section 442 r/w the Companies (Mediation and Conciliation) Rules, 2016
      • Real Estate (Regulation and Development) Act, 2016
    • The Legal Services Authorities Act, 1987 – Lok Adalats – Chapter VIA and Sections 22A to 22E
    • Conciliation under Part III of the Arbitration and Conciliation Act, 1996
  • Consumers related matters
    • Mediation cells under the Consumer Protection Act, 2019 – the Consumer Protection (Mediation) Rules and Regulations 2020 – click here to know more.
    • Ombudsperson is empowered to act as mediator in complaints from consumers in electricity – Section 42 of the Electricity Act 2003
    • For telecom disputes – the TRAI Act 1997. However individual consumers cannot avail it. It is only for group of consumers. Individual consumers may compliant under the Consumer Protection Act 2019.
    • Insurance Ombudsman Rules 2017 for consumer disputes with insurance companies .
    • RBI ombudsman for complaint against banks and NBFCs
  • SEBI Act 1992 – Section 15JB(3) – Ombudsman to promote settlement of complaint by agreement or mediation.
  • Labour laws
    • the Industrial Disputes Act, 1947 – Conciliation u/Sections 2(p), 4, 5, 12(3) and (4), and 18(3)
    • Provisions of Industrial Disputes Act is made applicable to newspaper employees, sales promotion employees and bead and cigar workers and thus have conciliation procedure is applied for resolving their disputes
    • the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act 1981 – Ss.4 and 5 r/w Chapter VI of the Rules of 1984
    • Some State Laws on labour also provides for conciliation – Kerala Agricultural Workers Act 1974, Kerala Headland Workers Act 1978, Madhya Pradesh Industrial Relations Act 1960, Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971, etc.
  • Personal and matrimonial matters
    • The Hindu Marriage Act, 1955 and the Special Marriages Act, 1954 -Section 23(2) – court in the first instance to attempt mediation between parties – r/w the Family Courts Act1984 and rules framed thereunder by States in India
    • The Protection of Women from Domestic Violence Act, 2005 – requires appointment of counsellor
    • Conciliation under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – Section 10
    • Conciliation under the Maintenance and Welfare of Parents and Senior Citizens Act, 2017
    • The Gram Nyayalayas Act, 2008

Since there is no single statute on mediation, contractual and private mediations are based on mutually agreed terms of mediation, including confidentiality clause, without prejudice clause and implementation and enforceability clause on settlement agreement that may be arrived at.

The role of advocate in mediation is gaining momentum with cautious approach. Still, majority of lawyers are apprehensive of loss of their remuneration which they would earn in traditional court litigation.

Online mediation / Online Dispute Resolution (ODR) is also gaining momentum in India. Though, appropriate safeguards are applied by mutual agreement on confidentiality, not recording online sessions and restricting participants / access to room from where online participation is made and records are shared through mutually acceptable secured means.

Still offline or online mediation has a base of willingness of parties to settle dispute through mediation and acceptance of independence of mediator / organisation providing mediation services.

The draft Mediation Bill 2021

While India is signatory of United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the “Singapore Convention on Mediation”), but has not ratified it yet. Department of Legal Affairs of the Ministry of Law and Justice has recently placed on its website the Draft Mediation Bill 2021 for public comments.

The said Bill of 2021 proposes to ratify the Singapore Convention on Mediation and mandates pre-litigation mediation in civil and commercial litigation. Mediation is a voluntary process and the draft Bill requires that parties make a good faith attempt to settle their dispute amicably. Mediator explains the mediation process in a substantive session. However, for urgent interim reliefs parties may approach courts without first attempting mediation. It also provides for community mediation. It proposes to exclude limitation period for time taken in mediation and also recognises confidentiality, settlement agreement and its enforceability as of decree of court. It proposes to create the Council of Mediation with which Mediator, Mediation Institution and Mediation Service Provider needs to register. The Council will frame regulations for them including for qualification, experience and accreditation requirement of mediator. It proposes to recognise foreign mediators and settlement agreement reached outside India.

About Mediator:

The mediator is understood to be a catalyst (as an agent in chemistry) or a facilitator (being a neutral person) to arrive at mutually agreeable settlement by and between disputing parties. He is someone in whom confidence is posed in by parties as an independent, neutral person with skill to facilitate an attempt of parties to settle their disputes outside the arbitration and litigation process.

Mediator does not intervene in the process of arriving at settlement by parties. He is not an adjudicator or arbitrator who imposes his decision. He does not express opinion on right and wrong, ethical or otherwise or take sides. He does not validate or condemn act of parties.

Mediator is an independent professional with skills of mediation. His independence and role as mediator is accepted voluntarily by parties. Mediator is someone before whom parties, in private sessions, can openly express their feelings about the problem. He helps parties see the core issue and surrounding emotions (like separating a needle from a haystack), and invite parties to see the future for themselves – on the issue and/or relation with other parties. He facilitates parties to arrive at settlement and often brings to their attention any deviation from the goal of arriving at solution/settlement.