Mar 11, 2022

Mediation: Another Way to Resolve Disputes

The recent Ukraine-Russia crisis has had many world leaders, including the Indian Prime Minister, trying to mediate between the two countries to bring an end to the hostilities. In the past too, neutral countries have mediated international conflicts between nations. For instance, Sweden played a crucial role in the talks during the Vietnam War and the Iran-Iraq war. 


However, mediation is not limited to international disputes. Rather, it is an excellent forum for the resolution of interpersonal disputes, such as matrimonial, property or commercial disputes.


What is Mediation?


Mediation is a form of dispute resolution which requires negotiation between parties. There are no judges or arbitrators involved. Instead, the parties arrive at a mutually acceptable settlement to resolve their disputes with the help of a neutral party.


There are two kinds of mediation: 


  • “Court-Annexed Mediation”—This is where the dispute is already before the court and the court sends the parties for mediation. In this form, once the parties have settled, the written settlement is sent to the court to be recorded as a part of the court’s order. Once the settlement is a part of the court’s order, it has the same enforceability as any other order. Most Indian courts have a mediation centre/facility to which they send such mediations.


  • “Conciliation”—This is where the dispute has not gone to court yet and the disputing parties voluntarily decide to approach the mediator/conciliator for settlement of their disputes. The Arbitration and Conciliation Act, 1996 governs this process. The settlement arrived at by the parties in a conciliation has the same status and effect as an arbitral award under the Act. 


What is the advantage of mediation over other forms of dispute resolution, such as litigation or arbitration?


Mediation  is a much cheaper and less time-consuming process. Unlike litigation, where parties are required to pay vast sums as court fees or in arbitration, where the fees of the arbitrators are very high, the costs involved in mediation are nominal. 


In “Court-Annexed Mediation”, the Mediation Centre attached to the Court charges a nominal fee for the processing of the case. In conciliation proceedings, the parties can fix the fees of the conciliator after discussion during the conciliation process. 


Mediation also takes lesser time to resolve disputes than court litigation. Courts have a long list of pending cases and cannot hear disputes swiftly. Mediation sessions can move faster, even taking place on a day-to-day basis, depending on the convenience of the parties and the mediator. This allows the dispute to be resolved within weeks, as opposed to months or years.


What happens if you cannot resolve your dispute in mediation?


If you cannot settle in a “court-annexed mediation“, then the case returns to the court with a ‘report of non-settlement’. Then, the court can resume hearing your case from the same stage where it was sent for mediation. As such, mediation is truly an alternative and does not affect the parties’ legal rights in case it doesn’t work out. The other methods of dispute resolution always remain open. 


In a conciliation process, if there is no settlement, the parties can pursue other forms of dispute resolution, such as arbitration or litigation. Attempting a round of conciliation does not affect the legal rights of any party.