Comparative study of Mediation as a system dispute resolution around the world

Updated: Mar 14

Introduction:

Mediation is one of the kinds of alternative dispute resolution whereby an independent person outside the court is mutually appointed by the parties of the dispute known as mediator with a view to bring the disputant to amicable solution through facilitated discussion.[1] In mediation process, parties are under no obligation to agree upon the settlement, they have complete control over the settlement, they have less stress as compared to the litigation, mediation is also less expensive than litigation and here mediator only acts as a facilitator and does not interfere in the decision of the disputes, mediation resolves the dispute quickly and it is confidential in nature.[2] Mediation deals with the matter such as commercial, legal, diplomatic, workplace, community and family matters.

There are two main ways in which mediator assists the disputant parties in reaching the solutions: facilitative mediation and evaluative mediation.

1. In facilitative mediation, the mediator helps through the communication between the parties and helps the disputant parties to understand the perspective, position and interest of the other parties in relation to the dispute.

2. In evaluative mediation, the mediator provides a non-binding assessment which means disputant parties are not under the obligation to accept the settlement agreement, the disputant parties are free to reject the settlement agreement of the dispute.

How is mediation different from other alternative dispute resolution?

Other alternative dispute resolutions that are widely accepted: arbitration, conciliation, negotiation.

Mediation:

Neutral third party is known as a mediator.

Neutral third party acts as facilitator.

Mediation proceedings are not legally binding.

Mediation proceedings are informal.

Confidentiality of mediation proceeding is based on trust.

Arbitration:

Neutral third party is known as an arbitrator.

Neutral third party acts as adjudicator.

Arbitration proceedings are legally binding.

Arbitration proceedings are formal.

Confidentiality of arbitration proceedings is determined by law.

Conciliation:

Neutral third party is known as a conciliator.

Neutral third party acts as facilitator and evaluator also.

Conciliation proceedings are not legally binding.

Conciliation proceedings are informal.

Confidentiality of conciliation proceeding is determined by law.

Negotiation:

Neutral third party is known as a negotiator.

Neutral third party acts as facilitator.

Conciliation proceedings are not legally binding.

Conciliation proceedings are informal.

Confidentiality of negotiation proceeding is based on trust.

Mediation mechanism in India:

Section 89 of the Civil Procedure Code, 1908 deals with the settlement of disputes outside the court. Courts have power to refer parties for mediation when it deems fit.[3] There are two stages of mediation:

1. Pre-litigation Mediation

2. Post-litigation Mediation

1. Pre-litigation Mediation:

Pre-litigation Mediation is also known as Private Mediation, where the parties undertake mediation voluntarily, independent of court proceedings. In K. Srinivas Rao v. D.A. Deepa[4], the idea of pre-litigation was discussed by the Supreme Court in the context of family disputes. Court held that this method of dispute resolution will be helpful in solving matrimonial disputes in an amicable manner so that the parties of the disputes will get satisfied.

Settlement agreement of pre-litigation mediation may be enforceable in three different ways:

a) To give effect to pre-litigation mediation, after reaching the settlement agreement, disputant parties may choose to file suit and under order XXIII rule 3 subsequently make an application to the court to effect a compromise.

b) In the absence of any other legislation, pre-litigation mediation settlement agreement is enforceable on the basis of contract law.[5]

c) Parties have sought to enforce mediation settlements as arbitral awards or conciliator settlements.[6]

2. Post-litigation Mediation:

Post-litigation Mediation is also known as Court-referred Mediation. Section 89 of the Civil Procedure Code, 1908 only deals with the post-litigation mediation, so, the rule of procedures given under section 89 of the Civil Procedure Code, 1908 are applicable only to post-litigation mediation. In Salem Advocate Bar Association v. Union of India (Salem I)[7]The Honourable Supreme Court acknowledged the need for regulating mediation proceedings and the Honourable Court was also in opinion that modalities need to be formulated for the manner in which section 89 of the Civil Procedure Code, 1908. In Moti Ram v. Ashok Kumar[8]The Honourable Supreme Court held that mediation proceedings are confidential in nature and if the mediation proceedings resultant in a settlement, the mediator simply provide the the copy of settlement agreement before the court without disclosing anything about what transpired during the mediation proceedings. In Afcons Infrastructure and Ors. V. Cherian Verkay Constructions and Ors[9], the Honourable Supreme Court held that settlement agreement that arise out of the post-litigation mediation are enforceable only if the settlement agreement produced before the court for recording the settlement and disposal.

Apart from section 89 of the Civil Procedure Code, 1908, there are also several statutes that refer to mediation in India such as Industrial Dispute Act, 1947, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013.

Mediation mechanism in European Union:

Mediation is based on the voluntary participation of the parties and it offers a flexible self determined approach. Three types of mediation are to be distinguished with respect to court proceedings: private mediation, court annexed mediation and judicial mediation.[10]

1. Private Mediation: It is completely independent from judicial proceedings, it often takes place without any subsequent court proceedings.

2. Court annexed Mediation: It is initiated by the court, but then takes place without any further involvement of the court.

3. Judicial Mediation: It is more intensely connected with the court as an institution in terms of venue but it is not performed by a judge with adjudicatory competence in the specific case.

Mediation mechanism in China:

There are four types of mediation in China:[11]

1. Civil Mediation: Mediation Committee conducted the mediation outside the court.

2. Judicial Mediation: It takes place in a court of law and it deals with the matters which are related to civil and minor criminal disputes.

3. Administrative Mediation: It is conducted by the government outside the court and it deals with the matters such as labour disputes.

4. Arbitration Mediation: It is conducted by the arbitration bodies in arbitration cases.

Mediation mechanism in Sri Lanka:

Mediation is broadly defined as ‘any lawful means to endeavour to bring the disputants to bring the disputants to amicable settlement and to remove, with their consent and wherever practicable, the real cause of grievance between them so as to prevent a recurrence of the dispute or offence’.[12]

Under the Mediation Boards Act, 1988, a matter can come to mediation in one of four ways: voluntary referral, mandatory referral (civil matter), mandatory referral (criminal matter), court referral.[13]

Conclusion:

In today’s world, people refer Alternative Dispute Resolution methods to settle their disputes because in litigation, there are requirements of vast resources and in Alternative Dispute Resolution methods, there is no such requirement. Mediation is one of the consensual forms of dispute resolution mechanism which falls outside the purview of the court. Although the process of mediation varies from state to state, the purpose of mediation in all states is the same. The main purpose behind the formation of mediation is to settle the disputes in less time and especially give justice to the people who are not economically strong as in the mediation process very less amount of money is required as compare to litigation and reduce the burden of the court as there are lots of cases pending in the court. Mediation is an extremely flexible tool and it becomes a more peaceful and internationally accepted solution in order to end conflict and to get justice.


References

[1] STA Law Firm, Comparative Analysis Of ADR Methods With Focus On Their Advantages And Disadvantages, MONDAQ (Feb. 5, 2019), https://www.mondaq.com/arbitration-dispute-resolution/777618/comparative-analysis-of-adr-methods-with-focus-on-their-advantages-and-disadvantages. [2] Ibid. [3] The Code of Civil Procedure, 1908 Section 89(d). [4] (2013) 5 SCC 226. [5] Rashika Narain & Abhinav Sankaranarayanan, Formulating a model Legislative Framework for Mediation in India, 11 NUJS L. Rev. 1 (2018). [6] The Arbitration and Conciliation Act, 1996 Sections 30 and 73. [7] (2003) 1 SCC 49 (Salem I). [8] (2011) 1 SCC 466. [9] 2010 (8) SCC 24. [10] Dr Felix Steffek, Mediation in the European Union: An Introduction, EUROPEAN COMMISSION (June 2012), https://e-justice.europa.eu/fileDownload.do?id=b3e6a432-440d-4105-b9d5-29a8be95408f. [11] Riyanka Roy Choudhary and Naman Kamdar, Mediation Tradition in Asia and Legal Framework in India, China, and other Asian countries in comparison with us and EU Legal Regulations, RESEARCH GATE (June, 2013), https://www.researchgate.net/publication/311900251. [12] Mediation Boards Act (No. 72 of 1988) Section 10. [13] Nadja Alexander, From Communities To Corporations: The Growth of Mediation In Sri Lanka, MEDIATE INDIA (August, 2002), https://www.mediate.com/articles/alexander.cfm..

Bibliography:

● STA Law Firm, Comparative Analysis Of ADR Methods With Focus On Their Advantages And Disadvantages, MONDAQ (Feb. 5, 2019), https://www.mondaq.com/arbitration-dispute-resolution/777618/comparative-analysis-of-adr-methods-with-focus-on-their-advantages-and-disadvantages.

● C.K. Takwani, Civil Procedure Code with Limitation Act, 1963, Eighth Edition, Eastern Book Publication.

● Rashika Narain & Abhinav Sankaranarayanan, Formulating a model Legislative Framework for Mediation in India, 11 NUJS L. Rev. 1 (2018).

● Dr Felix Steffek, Mediation in the European Union: An Introduction, EUROPEAN COMMISSION (June 2012), https://e-justice.europa.eu/fileDownload.do?id=b3e6a432-440d-4105-b9d5-29a8be95408f.

● Riyanka Roy Choudhary and Naman Kamdar, Mediation Tradition in Asia and Legal Framework in India, China, and other Asian countries in comparison with us and EU Legal Regulations, RESEARCH GATE (June, 2013), https://www.researchgate.net/publication/311900251.


Authors -

Kajal Kumari

Student at Galgotias University.

Abhishek Yadav

Student at Galgotias University.

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