As a result of the rapid pace at which the world is advancing, an ever-increasing number of individuals are turning to non-conventional forms of conflict resolution, such as mediation, in order to address their problems. Rhino Mediation Derby
What exactly is the process of mediation?
Alternative to going to court to settle a disagreement is mediation, which is a form of alternative dispute resolution. It is an organised, voluntary, and participatory negotiating process in which a neutral third party utilises specialised communication and negotiation strategies to assist the parties in attaining their stated objectives. The process is called mediation. The interests, requirements, and rights of the parties are the primary focal points of this procedure, which is party-centered.
The Indian Legislation That Governs Mediation
The Industrial Disputes Act of 1947 was the first piece of legislation to officially recognise mediation as a legitimate means of conflict settlement.
The Code of Civil Procedure Amendment Act was ultimately approved by the Parliament in the year 1999. It made provisions for Section 89 of the Code of Civil Procedure, 1908, which gave the courts the authority to settle ongoing issues by referring to alternative dispute resolution (ADR) procedures.
Under this provision, the consent of the parties was made obligatory, and the court had the ability to send matters for mediation, arbitration, conciliation, or judicial resolution through the Lok Adalat.
In addition, Rule 5(f) of the Civil Procedure Mediation Rules, which came into effect in 2003, mandates the parties participate in mediation (iii). Because of this, the court is able to send matters for mediation even if the parties involved are not yet prepared to do so, provided that there is a possibility of reaching a resolution.
Various Forms of Mediation
There are several different types of mediation:
Disputes involving employment law and family law are two examples of the types of legal matters that are mandated by statute to be resolved via the use of the mediation method. Although the use of mediation is uncommon, it is required by law in India according to rule 5(f)(iii) of the Civil Procedure- Mediation Rules, which was enacted in 2003.
Before resorting to the legal system for conflict resolution, the majority of Indian jurisdictions demand that parties first engage in some form of alternative dispute settlement. As soon as a case is filed, the parties are given a variety of choices for alternative dispute resolution (ADR), from which they are required to choose and pursue one unless the court exempts them from the requirement. https://rhinomediation.co.uk/blog/parent-mediation-peterborough/
Court-Annexed Mediation is a kind of alternative dispute resolution in which the mediation services are carried out by the court as an integral part of the legal process.
The court keeps a list of qualified and experienced mediators who are accessible to the parties, and that list is made available to them. A mediator is selected by the court, and a deadline for concluding the mediation is also established by the court. Any agreement that is made during the mediation is enforceable as a decision issued by the court, and the results of the mediation are kept strictly secret.
As a result of the fact that the case has been sent to a mediation agency that is attached to the court, the overall monitoring that is being kept on the process, and there is no sense of being abandoned by the system. The parties to the dispute, their attorneys, and the judges all become players in the system, and it is believed that the resolution was reached thanks to the efforts of all of the actors involved in the justice delivery system.
The parties to the dispute are permitted to take part in the mediation process, during which the same lawyers who participated in the case will represent their clients in front of the mediator. The integrated and unbiased judicial system is considered as providing an extra service, which contributes to the growing public acceptance of mediation as a viable dispute resolution method. The administration of justice is brought into better coordination as a result of this.
In the process known as “Court-Referred Mediation,” the court just sends the dispute to a mediator for resolution.
In private mediation, certified mediators provide dispute resolution services to the court, the general public, as well as the business and governmental sectors on a private, fee-for-service basis. The goal of private mediation is to resolve conflicts via the use of mediation. In pending lawsuits or pre-litigation conflicts, private mediation is another avenue that can be pursued as a resolution option.
Because mediation can effectively resolve contractual disputes before they turn into drawn-out legal battles, the parties to a contract may include a mediation clause to resolve disputes as part of the terms of their agreement. This is because mediation can resolve contractual disputes before they turn into drawn-out legal battles. The contract includes stipulations about both the terms of the mediation and the process for selecting the mediator. The outcomes of the mediation might be legally binding in the same way that court verdicts are.
Parties to a dispute may also opt to seek mediation of their own will, without being required to do so by the law, the court, or a contract. This is known as voluntary participation in the mediation process. This may be done at any moment, and it is entirely at the control of the persons involved.
Cases that are Suitable for ADR
The Supreme Court of India, in the case of Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. and Ors., established rules for the types of cases that are suitable for alternative dispute resolution and those that are not acceptable for ADR. It determined that instances of the following sort would not be considered acceptable for alternative dispute resolution:
Cases brought under Order 1 Rule 8 of the CPC that concern the public interest or the interests of a large number of individuals who are not parties before the court are referred to as representative suits.
controversies surrounding the process of electing officials to public positions.
Cases in which the court grants authority after conducting an investigation, such as proceedings for the award of probate or letters of administration, are examples of such cases.
Cases that involve significant and precise claims of fraud, fabrication of papers, forgery, impersonation, coercion, and other similar offences etc.
cases that need the protection of the courts, such as lawsuits filed against juveniles, deities, or those who are mentally impaired, as well as lawsuits filed against governments seeking a declaration of title.
situations that call for the filing of criminal charges and subsequent prosecution.
ADR was supposed to be regarded appropriate for any and all additional civil lawsuits and disputes, including but not limited to the following:
Disputes arising out of contracts (including all money claims); Disputes pertaining to particular performance; Cases that pertain to trade, commerce, and contracts in general.
Disputes between different consumers and different providers;
Disputes between customers and lenders; Disputes between developers and builders and customers; Disputes between customers and other businesses.
Disputes between landlords and renters or licensors and licensees; Disputes involving insurers and insured parties;
All instances that result from relationships becoming stressed or strained, include the following:
Disputes pertaining to marriage causes, maintenance, and custody of children; Disputes relating to partitioning/division among family members/co-parceners/co-owners; Disputes relating to matrimonial causes, maintenance, and custody of children.
Disputes between partners that are related to the partnership.
In all situations where it is necessary to maintain the pre-existing connection in spite of the conflicts, including the following:
Disputes between neighbours (relating to encroachments, nuisance, etc.); Disputes between employers and employees; Disputes among members of societies/associations/Apartment owners Associations; Disputes between employers and employees; Disputes between employers and employees; Disputes between employers and employees.
Cases involving tortious responsibility, including but not limited to
demands for compensation in automobile accidents and other accidents; all consumer disputes include claims for compensation in motor accidents and other incidents
Disputes that arise when a trader, supplier, manufacturer, or service provider is concerned with upholding his or her professional image and credibility or the popularity of their product.
The Mediation Process Consists of the Following Steps
When deciding which cases should be brought to mediation, the following procedures are always carried out:
The first step is to start the mediation process.
It is common for the process of convening the mediation to be the most complex and arduous component of the overall mediation procedure. It involves a wide variety of different processes, including:
According to Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908, the court is obligated to instruct the parties to select for any of the five modes of alternative conflict resolution and to send the matter for arbitration, conciliation, judicial settlement, Lok Adalat, or mediation.
The court is obligated to take into consideration both the choice that was selected by the parties and whether or not it is appropriate for the circumstances of this particular case. The judge who makes the recommendation, also known as the referral judge, is obligated to familiarise himself with the facts and the nature of the dispute, as well as make an impartial assessment of whether or not alternative dispute resolution is appropriate.
This appropriate stage for making the reference in civil cases is after the completion of pleadings and before framing the issues. On the other hand, the appropriate time for making the reference in cases pertaining to family law would be immediately after notice was served on the respondent and before the respondent filed any objections or written statements.
Nothing prohibits the court from referring to alternative dispute resolution at a later point, even though it did not refer the cases to it at the dates in question when it had the opportunity to do so.
Initiation into the Mediation Process
The judge who made the recommendation will then be responsible for the essential task of getting the parties together and encouraging them to settle their differences through mediation. This entails determining the reasons for any reluctance on the side of the parties to participate in mediation, as well as describing the concept, procedure, and benefits of mediation.
Even though the parties’ agreement is necessary for mediation to take place, the judge presiding over the case has the authority to use coercive tactics, such as ordering or compelling the parties to participate in the mediation process, in order to persuade them to do so.
The mediation process is kicked off by a referral order that is handed out by the judge who is in charge of the referral, and this order serves as the basis for a court-referred mediation. An ideal referral order includes information such as the name of the referral judge, the case number, the names of the parties, the date and year the case was initially instituted, the stage of the trial, the nature of the dispute, the statutory provision under which the reference is made, the next date of hearing before the referral court, whether or not the parties have consented for mediation, the name of the institution or mediator to whom the case is referred for mediation, and the date and time that the parties are required to report before the mediator