Mediation as an Alternative Dispute Resolution in India by Ishita Jaiswal @lexcliq

Mediation is a method of resolving conflicts. Our adversarial court system is frequently criticised for being overly slow and costly. People involved in disputes may feel compelled to reclaim control over the decision-making process rather than trust a legal system that can produce unpredictable and undesired consequences.

In India, mediation is a voluntary process in which opposing parties agree to work together to resolve their legal dispute by signing a written contract and choosing a mediator. The parties can retain ADR attorneys to represent them in front of the mediator and provide a professional explanation of the situation.

Unless there are exceptional circumstances, such as setting a precedent, no party to a disagreement wants to go to court.

Mediation is a non-binding, ‘without prejudice’ process in which a properly trained third party intervenes in a dispute and attempts to bring the parties together to work out a solution to their differences.

The fact that all of the talks are ‘without prejudice’ implies that nothing stated can be utilised in any future legal proceedings.

If any party (or the mediator) is dissatisfied with the mediation process, the mediation may be terminated at any time. The claimant is then free to pursue his or her claim through the courts.

In comparison to arbitration or litigation, one of the key advantages of mediation is that sessions may be scheduled quickly. In commercial disputes, for example, it is critical that a disagreement be resolved promptly so that normal business can resume at the lowest possible cost and with the least amount of time wasted.

The mediator is not a judge, and he or she does not rule in favour of one party or the other. The mediator’s job is to assist the parties in reaching an agreement that is agreeable to both sides.

When a settlement is established at the end of the mediation process, the terms of the settlement are usually written down in a legally binding document that is signed by both parties in the presence of their legal counsel.

Mediation has been successfully employed in divorce disputes and corporate matters to find a quick solution that is not only time-saving and cost-effective, but also keeps the entire dispute resolution process confidential. In India, the mediation procedure is flexible since it works both ways, assisting disputing parties in peacefully resolving their issues.

There is a widespread belief that mediation is a good concept that should always be considered before either party resorts to filing legal action. Our courts typically urge parties to try to resolve their differences through mediation, and have directed parties to participate in mediation rather than a full public hearing in several situations.

Mediation is becoming more common in practise since the implementation of case progression/case management in family law circuit court procedures.

Mediation has the advantage of having no explicit rules or procedures, allowing the mediator to tailor the process to the specific circumstances of the conflict.

He or she can do open sessions with all of the parties present, then adjourn to one-on-one meetings with each party to try to identify the major stumbling blocks or grievances.

It is critical for mediation to succeed that both parties come to the table with a sincere desire to resolve the issue. If one party refuses to budge from its current stance, the mediation will eventually fail, and the matter will be resolved in court.

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