Showing posts with label Mediation. Show all posts
Showing posts with label Mediation. Show all posts

MEDIATION

With India's population being 135 crore, with more than 3.5 crore cases pending from more than 10 years, there should be a more systematic legal system. Many people in India can't approach the court for justice as it is really costly legal structure. Mediation is a procedure that provide timely and cost effective access to justice for all the people disregarding the monetary condition of the respective citizens. 

They are many alternative dispute resolutions, which help the parties to solve the dispute but most of the citizen are unaware about them. the dispute resolution reduces the burden of the court. Some of them are negotiation, mediation, arbitration, and conciliation. It is a process of dispute resolution by an independent mediator that facilitates the communication and discussion to resolve the matter. In mediation both the parties mutually agree on the solution, provided by the consent of both the parties. Therefore, the process of mediation is focused forward and not backward.
In mediation process, the role of mediator is to discuss, provide concern and take out the best option out of the rest for both the parties. Mediation in Indian parties will ordinarily sign the mediation agreement with mediator which consist of some basic rules.

TYPES OF MEDIATION PROCESSES IN INDIA

In India, the mediation is done in three ways.

Mandatory Mediation- It is given in civil procedure mediation rules, 2003 in that the cases are referred from the court even if the party is not up for it.

Private Mediation- private mediation is the process where both the parties mutually select the mediator of their choice, time, place, fees and decide by their mutual consent.

Mediation Referred by Court- It always involve the disputes and conflicts whose cases are particularly selected by the court to bring the decision peacefully and beneficially for interpersonal relations in the long terms of the parties involved in case.
Mostly the mediation process is used in non-criminal and domestic disputes . It involves child custody, disagreements with neighbours, dispute between landlords, business partners and family members. It is a tool for justice, the unbiased approach of the mediator benefits both the parties and brings ‘Win-Win situation’ for both the parties with the mutual consent by negotiating and communicating.

STAGES OF MEDIATION PROCESS

1. Opening statement of mediator
2. Opening statement of parties.
3. Joint session- both the parties put their views across
4. Agenda
5. Private caucus- private session of one parties(if party want)
6. Closing (argument) offer/counter offer
7. Negotiating

7 ELEMENTS OF MEDIATION

1. Interest and Position- Interest is why you are actually negotiating, the reason behind it. Position is what the parties actually wants from the negotiation.
2. Options–Option plays a very important role in determining, the outcome of the mediation process. It is a combination of the best possible conclusion, if the party cannot reach an agreement it helps to explore what can be done further.
3. Legitimacy- There should be fairness for the allegations made and not just something that you come for negotiating. The main problem of legitimacy in mediation raises the question that why the mediation is fair as a means of settling the disputes.
4. Communication- communication is the most important element and ofcourse the obvious elements during the negotiating process. It is much like open ended questions and answers together, from both the parties for gathering information for the decision-making process.
5. Commitment -First you have to ensure that the outcome ,that parties have accepted and agreed, it should be realistic and something parties will not have to negotiate their deals again like on what is the parties level authority ,how authorised is the other party to take and to sign the commitment responsibilities. Commitment in the relation should develop strong culture to enhance party’s performance.
6. Relationship- The communication and the commitment between the parties should lead to the formation of a relationship which might be beneficial for both the parties in the future.
7. Best Alternative to a Negotiated Agreement (BATNA)-It is a common sense idea, by which you can solve the case, by taking out the odds and finding out the best alternative.

THE MAIN ADVANTAGES OF THE MEDIATION ARE 

1. Time efficient: Both the parties have win -win situation.; Mediation is time-efficient and can be completed in a couple of sessions. The majority of the disputes in private mediation can be resolved in one day or two. In the process like litigation or arbitration, it takes time. The final outcome is determined by the consent of both the parties who are negotiating.
2. Flexibility in the procedure. The flexibility inherent in the mediation process is a cynical element, in establishing the efficient path to reach settlement in the particular case. Unlike, court rules of procedure, takes a lot of time in the whole method. And mediation focuses on ending the conflict amongst all disputants.
3. Cost settlement- Mediation proceedings are settled fastly and therefore, minimizing the cost exposure normally associated with dispute resolution of the parties. The cases include some patent, information technology disputes etc.
4. Communication specialization- Communication is a necessary skill for establishing interpersonal interaction between the two parties. It is an important factor for establishing various forms of mutual relationships and consents. Effective communication is a the primary goal for mediation's positive response and reaction from the participants in the conversation. Communication is the prevention of misunderstandings as well as the easy way to overcome the barriers we face in different forms in our daily lives.
5. The process is confidential of the mediation- By law, all the communications which are conducted under the mediation umbrella are protected from disclosure in any other civil meeting, that includes pre-mediation consultations and advises and post-mediation follow-up.
6. Voluntary process- Voluntary mediation generally refers to, both parties freely chosen participation and freely made agreements and decisions by both the parties. Parties are free to decide the conclusion.
7. Feelings and interest are kept forward then evidence- Mediation process is less formal, where everyone involved must work towards the mutual goal of a peaceful resolution to an unworkable relationship. Thus, mediation works by means of mutual respect, open communication, and clear feelings regarding the case.
8. Mediation: a non-binding- It is generally conducted with a single mediator who does not judge the case but advises and provides discussion and step by step resolution of the dispute. If parties don’t like the conclusion, they can leave the mediation process at any time they want.

CONCLUSION

Mediation is the process which provides justice to citizens in of India in mild manner. In a country with moving population of more than thousand crores, it is important to provide justice to the justice seekers in an efficient and effective way. It is the an informal and flexible process. In this process there is physical and mental autonomy. It guides parties for decision process, negotiating and communication specialization. It is good to resolve the matter in friendly process without any major loss and both the parties have a win-win situation. By all these advantages, mediation as the part of Alternative Dispute Resolution, is the chief tool of justice.

REFERENCES

1. https://ametros.com/blog/the-language-of-mediation/#:~:text=Mediation%20is%20time-efficient%2C%20cost-efficient%2C%20and%20usually%20less%20stressful,person%20and%20still%20have%20control%20of%20the%20outcome
2. isbinsight.isb.edu/when-negotiations-fail-the-mediation-solution/
3. https://environmentaladr.com/environmental-mediation-vs-litigation/flexibility-key-success-mediation
4. https://www.wipo.int/wipo_magazine/en/2010/01/article_0008.html
5. www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation
6. www.bing.com
7. www.applieddivorcesolutions.com/how-mediation-works/
8. https://worldmediation.org/effective-communication-in-mediation
9. https://lawlex.org/lex-pedia/mediation-a-tool-for-access-to-justice/2386
10. blog.ipleaders.in 
                                                                                                                        -Mohan Parthasarathy

                                                
    


INTRODUCTION

Family is an Institution which plays a crucial role in the society or community. The number of people applying for divorce has increased like never before, this is mainly because of imbalances in their relationship which may be of physical, psychological and also economical conditions. The system of serving justice in India has been under huge scrutiny over the years because of it’s huge pendency of cases, this eventually marked the need of Alternative Dispute Resolution methods in India. Section 89 of The Code of Civil Procedure Code provides an option to settle disputes outside the court. The alternate dispute resolution in India has been broadly classified into four types: arbitration, conciliation, mediation and negotiation. Mediation is the most common method of alternative dispute resolution which is being followed in India

WHAT IS MEDIATION

Mediation in any way is not new to India, it is something which has been prevailing in our society for ages. In ancient India people had panchayat system, wherein elderly people of a Village who were highly respected indulged in resolving the disputes this system of mediation is still being used in many parts of our country. Mediation is an Informal way of settling disputes which is being done by a third party. The person who mediates is called a mediator and He/she will be unpartial and neutral towards both the parties. The process of mediation is generally flexible and also a long one because it takes time for the mediator to analyse the dispute and to find a solution which should be amicable for both parties, It is also an flexible way because both the parties decide time and place which may be suitable for both. Mediation can be used for divorce, real estate, bargaining and other disputes which can be solved outside the court. Mediation in family dispute resolution can be found in Civil Procedure Code, Family courts act, 1984, Legal services authorities act,1987 and also in Hindu marriage act. Lokadalat have been set in our country to effectively settle family and matrimonial disputes.

TYPES OF MEDIATION

There are two types of Mediation which is commonly followed in India

1. Mediation through Court

2. Private mediation centres


1. Mediation through court 

In certain cases the court itself may recommend mediation in accordance to Section 89 of the CPC to resolve disputes in divorce cases

2. Private mediation centres
rivate mediation centres are being run by qualified mediators which is used to solve pre litigation cases which are pending in the court of law.

ROLE OF MEDIATION IN DIVORCE 

Family is the most important Institution in our country, In order to protect a sacred institution it is better to solve disputes using mediation than using litigation, because in litigation relationships can be simply cut off. But in case of mediation the whole process or method is different because it helps in obtaining the desired results which are being putforth by both the parties and moreover family disputes are not like other disputes but also involves emotions and feelings which is the main reason why mediation is considered to be an effective way of solving family disputesAnother significant feature of mediation is that it maintains utmost secrecy thus aiming to reach a favourable decision for both the parties. Mediators are generally appointed by the courts

ROLE OF MEDIATOR IN DIVORCE 

The most important role of a mediator is to facilitate communication between the parties in reaching a resolution which should be fair, cost effective and also the one which saves time. Though the mediator is the one who is in charge for proceedings he doesn’t have any right to impose a decision or solution. In short a mediator can only suggest parties to have more options than one. Initially any person would be hesitant to share matters regarding their private life to someone who is unknown or a third party, so it is necessary that mediator should possess a very strong communication skill and also able enough to make both the parties open up about their problems. Both the parties will be having their own perspective about the problem or dispute so if needed the mediator has to arrange for a conversation with either of the parties without any privacy concern which is why mediator should start the process by asking basic questions like hen and why. Once both the parties feel comfortable in sharing their problems that’s when role the main role of mediator starts, firstly he has to explain the parties about how the process of mediation will take place and then to obtain consent of both the parties to have a separate meetings with mediator. He should also question each of the parties to give a brief account of the facts and disputes prevailing between them. Some of the cases may last for 30 days and some may take months to settle the dispute which basically depends on the nature of case.

ADVANTAGES OF MEDIATION IN DIVORCE

1. COST EFFECTIVE THAN LITIGATION
The biggest advantage of seeking mediation is that it is cost effective and also it is better to go for a mediation than hiring a solicitor to handle a case through litigation for the purpose of divorce. 


2. LESS TIME CONSUMING 
The process of litigation is generally long and a very complex one, however in mediation parties can resolve the dispute with few months and sessions since it is flexible.


3. MEDIATION IS CONFIDENTIAL
Family as known is considered traditional and sacred, It also includes emotions and feelings therefore when a person seeks divorce he/she would like to have it confidential so that to avoid embarrassment from other people which is also the main reason why many parties approach mediation centres for divorce. In mediation each and everything shared with mediator is kept confidential.


4. AMICABLE RESOLUTIONS
The most important advantage of mediation is it ends in providing amicable resolutions, unlike litigation in this both of the parties agree to a resolution which is favourable to both.

DISADVANTAGES OF MEDIATION IN DIVORCE 

When it comes to mediation the discretion of cooperating to resolve the dispute doesn’t really rely on mediator as he is not entitled to force or compel either of the parties to cooperate, which indeed is a main drawback for mediation in divorce proceedings as it may affect the process.

WHAT ROLE DOES COURT PLAY

According to Section 9 of the Family Court Act, 1984 it is necessary for the court to solve disputes relating to maintenance, alimony, custody of the child through mediation process. It is also said that if there is any chance of solving an issue through mediation then the court is said to direct the case to mediation centres so that unnecessary time delay in the dispute maybe solved amicably.

CONCLUSION 

Alternative Dispute Resolution is becoming one of the most preferred method to resolve disputes than litigation. The main reason behind this is large pendency of cases and also the long process of litigation. Marital disputes should be considered only for mediation because it is very confidential and less time consuming. Mediation being a very flexible process proves it to be a vital concept to resolve issues between married couples. Hence the author suggests that mediation should be used widely as it also gives another chance for all divorcing couples to give it a thought