Mediation-An Appropriate Adrs Method-Future Hope In Resolving Litigations In India

Paper Details 

Paper Code: RP-VBCL-33-2025

Category: Research Paper

Date of Publication: April 20, 2025

Citation: Ms. Vinutha Arun & Dr. G.M Mamatha, “A Study on the Contrast of Evolution of Contract Laws Inside and Outside India", 2, AIJVBCL, 479, 479-488 (2025).

Author Details: Ms. Vinutha Arun, Advocate & Part Time Lecturer, Dr. RML College of Law, Gottigere, Bengaluru

Dr. G.M Mamatha, Guide and Associate Professor, Presidency University, Itgalpura, Rajankunte Post

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ABSTRACT

Mediation is the need of the hour.Mediation is a contemporary method used for resolving the disputes between the litigating parties. It involves the amicable settlement of conflicts and has shown high rates of success in achieving satisfactory resolutions.A key feature of mediation is that parties decide the outcome themselves.A mutually acceptable result ends further litigation on the decided dispute. Mediation is an informal process in which a trained, neutral third party–the mediator–acts as a facilitator in making negotiations between disputing parties. In mediation, there will be a structured negotiation. With the assistance of legal counsel, the parties can communicate with one another through a trained mediator. Mediation is a process that is not bound by formal procedures or the rules of evidence.Usually, the parties enter mediation voluntarily and are not compelled to reach agreement. With the aid of an effective mediator, binding settlement agreements are reached approximately 80% of the time.Effective communication, confidentiality, mutual benefits, cost efficiency, and time savings make mediation appealing for resolving commercial, family, and property disputes.Specifically, mediation under The Mediation Act 2023 aims to alleviate the judiciary's workload by decreasing the number of excess cases. Prepare for Mediation and forget Litigation.

Keywords: Informal Process, settlement agreement, neutral third party, voluntarily, confidentiality.    

INTRODUCTION

 "Conflict is a fact of life. It is not good or bad. However, what is important is how we manage or handle it” ADR[1]refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails.

The judicial system has a vital role to play in ensuring better public governance there may be plethora of rules, regulations and procedures but when disputes arise, they must be settled in the court of law. Indian has been proactive and has scrupulously and over jealously guarded the rights fundamental for human existence. The scope of Right of life has been enlarged by the judiciary through expansive interpretation in number of cases.

An alternative to the Formal Legal System is ADR. It is an alternative to litigation. The said system emanates from dissatisfaction of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a sense of alienation from the whole legal system- thus, the need for Alternative Dispute Resolution. With the spread of ADR programs in the developed and developing world, creative uses for and designs for ADR systems are proliferating.

The ADR works through various methods like Arbitration,Conciliation,Mediation and Negotiation, also Judicial settlement through Lok Adalath etc.

Among various methods of ADRS the mediation presents a promising path for resolving disputes more efficiently and amicably in India. As awareness grows and the legal framework continues to support ADR methods, it could indeed become a cornerstone of dispute resolution in the country. Mediation is a method of Alternative Dispute Resolution (ADR).A mediator assists disputing parties in communicating and finding a mutually satisfactory solution. Mediation, as a form of Alternative Dispute Resolution (ADR), indeed holds significant potential for resolving disputes in India. As a voluntary process, it allows the parties involved to negotiate and reach a mutually acceptable agreement, rather than undergoing a prolonged and often adversarial litigation process[2]. This is a process in which a neutral third party works with and assist the disputants to negotiate a settlement by helping them communicate, identify their substantive interest, create options for settlement and focus on achieving a practical and workable solution that amicably ends the dispute[3]. The parties in dispute, themselves determine the conditions of any settlements reached— rather than accepting something else that is imposed by a third party. The disputes that may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome.

The rise in commercial disputes has significantly boosted interest in mediation.The increased interest towards Mediation is directly attributable to dissatisfaction with the cost, timeconsumed, and lengthy & complicated procedures adopted in the traditional system.

Mediation is an amicable method for resolving disputes. The use of mediation to settle disputes has yielded a high success rate.A key feature of mediation is that the parties involved determine the outcome of the dispute. An achieved result acceptable to both the partyto the dispute gives no scope for the further litigation on the decided litigation.[4]

SCOPE OF THE STUDY

The scope of the study is limited to study and analyze the High Court Rules and Supreme Court Rules on Mediation Rules and ADRS Rules and Arbitration and Conciliation Act[5] and Mediation Act 2023 in India. The Various techniques used for resolving the dispute in the present Scenario arising in India.

OBJECTIVE

1. To understand the working mechanism /process adopted in mediation for modern India and other ADRS usage under Law.

2. To understand the scope of Mediation Rules,techniques ADR Rules and High Rules for Mediation in India.

4. To know the advantages of mediation and success rates and enforcement.

MEDIATION AS THE FUTURE HOPE OF LITIGATION RESOLVING IN INDIA:

1. Efficiency and Timeline: Court cases in India can be notoriously slow, sometimes taking years or even decades to resolve, wherein the generations together inherit the cases like any property of the family. Mediation can quickly resolve disputes, often within months which is more adaptable alternative to the modern India,

2. Cost-Effective: The costs associated with litigation can be substantial, including court fees, legal fees, and other related expenses. Mediation tends to be less expensive, making it an attractive option for many. Court Annexed mediation is completely free that is no extra mediation charges is beared by the Parties to the dispute.

3.Confidentiality: Unlike court cases, which are public, mediation allows the parties to resolve their disputes privately. This can be particularly beneficial in cases involving sensitive information. Where Parties share their secrets or any sensitive information with the Mediator during the process of Mediation, such information are kept Confidential even from the opposite party, where the other party request to keep it secret from the opposite party to the mediator. The records whatever maintained by the mediator during mediation process is destroyed immediately after closer of mediation and same can’t be summoned or produced before court of Law and mediator is immune from appearance before court of Law. This is one of the beautiful characters of Mediation[6].

4.Preservation of Relationships: In Mediation both the party’s proper cooperation and communication is taken which helps to preserve or even improve relationships between the parties. Even the Relatives and friends of the both the parties can also participate This is especially important in family disputes, business conflicts, and other situations where ongoing relationships are involved.

5. Flexibility and Control: Mediation is party Centric. Party is the King. Parties can decide solution for their case/ issue on hand. The parties in mediation have more control over the process and the outcome. They can tailor the process to their specific needs and come up with creative solutions that might not be available through the courts[7].

6.Win-Win: Courts are required to adjudicate cases based on the documents and evidence presented, within the bounds of procedural and substantive laws. The result is often that one party loses while the other wins, following an extensive period of trial and argumentation. But in mediation as it is participation by the parties themselves coming to an amicable settlement it is always win-win situation to both participants[8]

7. Expert Mediators: Mediators are empanelled experts, experienced lawyers having more than 15 years in Legal field, experts from respective field relevant to the dispute, providing valuable insights and facilitating a more informed resolution.

8. Legal Recognition: The Indian legal system has increasingly recognized and promoted mediation. The Mediation Act 2023 have laid the groundwork for a more robust ADR framework[9].

PRE-LITIGATION MEDIATION

Pre-litigation mediation (PLM) means a process where prospective litigants to a commercial or civil dispute attempt to resolve their dispute using mediation before they approach any court in India for filing a suit or proceeding. As per Section 5 of the Act, irrespective of the existence or non-existence of a mediation agreement, the parties may voluntarily and with mutual consent opt to settle their dispute (before filing any civil or commercial suit or proceedings) through mediation under the provisions of the Act.

THE MEDIATION PROCESS

Mediation is a voluntary process both parties must voluntarily agree to mediate, which often leads to a more cooperative and less adversarial process.The mediation process begins with the mediator introducing themselves to both parties.The mediator outlines the rules and objectives of the mediation.Then the listening to the Statements whereineach party presents their perspective on the dispute.The mediator discusses with both parties in private and joint sessions, facilitating open communication.During later negotiations, the mediator assists the parties in finding solutions. If they reach a resolution, it is formalized in a written agreement. Mediation has a high success rate, with many disputes being resolved to the satisfaction of both parties. The informal and cooperative nature of mediation can reduce the emotional stress often associated with litigation.

When the mediation session begins, the mediator explains the process, establishes ground rules, defines goals and sets the tone for a successful mediation. The role of the mediator is to control the process, to manage the interaction of the parties and to assist the parties in identifying their own interests, as well as those of the other party. Another key role of the mediator, particularly in domestic relations cases, is to diffuse hostility when appropriate and to balance the power between the parties.

Each side signs an agreement to mediate which binds them to strict confidentiality and forbids the use of any statements or materials generated in connection with the mediation.

Each side is then asked to present a summary of its view of the dispute, the issues involved, and the resolution sought. This presentation is usually a joint effort between counsel and client. After this presentation, the mediator and opposing parties may ask questions to clarify their understanding of the issues. There is no formal evidentiary presentation, oath, expert examination, or cross-examination.

Each party, in turn, presents its view until all are satisfied that the issues–legal, financial and personal–are all on the table.

During this stage, the mediator focuses on the needs of the parties rather than on assessing blame or assigning fault. The mediator also acts as a catalyst testing ideas, positions and solutions. The mediator does not impose a solution on the parties, give legal advice or advocate any party’s position. Above all, the mediator remains neutral.

Throughout this process, options are generated through brainstorming and then scrutinized. As common ground is found, it is reality tested before being reduced, by agreement of the parties, to a written settlement agreement. Reality-testing might address the tax consequences of spousal support, dependency deductions for children, the ability to pay for college education, future changes in circumstances of child custody, earning capacity, enforcement by contempt of court and the like. Once signed by all parties, the agreement is as binding as any contract. If the agreement is consistent with law and public policy, it can be entered into the terms of the final decree disposing of the case.

The mediator should establish the guidelines for the mediation process.Basic communication and confidentiality guidelines are usually essential, but other important considerations may also apply. For example, you may want to set out that only one individual talks at a time, and while a person is talking, the others listen in silence, that there's to be no verbal abuse at any time, and that all that takes place, stays private unless both parties accept discuss it outside mediation.

THE MEDIATION - SUCCESSFULLY ADDRESSED AREAS IN INDIA.

1. Family Disputes: Mediation has been particularly effective in resolving family disputes, such as divorce and child custody cases. For instance, the Bangalore mediation center has successfully resolved numerous family disputes, helping parties reach amicable settlements and avoid prolonged litigation.

2.Commercial Disputes: The Commercial Courts Act, 2015, Section 12 of the Act, mandates pre-institutional mediation for certain commercial disputes. A contract dispute between two companies is resolved through mediation, saving time and money. Mediation is effective in resolving conflicts over contract terms, breaches, and interpretations, allowing businesses to find mutually agreeable solutions without damaging their relationships.

3. Industrial Disputes: The Industrial Disputes Act, 1947, provides for conciliation and mediation to resolve industrial disputes. where the statutory conciliator/ mediator helps the parties to reach a settlement that is acceptable to both the management and the workers, unions and labors.

4. Real Estate Disputes: Mediation has also been used successfully to resolve real estate disputes, such as boundary disputes between neighbors. In one case, mediation helped the parties agree on a boundary line, avoiding the need for a lengthy court battle.

5. Community Disputes: Traditional mediation methods, such as Panchayat systems, have been revived and used to resolve community disputes in rural areas. These systems have helped resolve conflicts over land, water, and other resources, promoting harmony within the community.

Mediation can help neighbors resolve conflicts over property boundaries, easements, and shared resources, fostering a more harmonious community environment.[10]

6. Medical Malpractice: In the modern scenario mediation can help patients and healthcare providers resolve disputes over medical malpractice claims, offering a less adversarial and more confidential process.

7. Healthcare Facility Conflicts: Because tremendous development in Health care like Life term insurance,providing health insurance when the client claims for his insurance definitely there arise conflict between the insurance company and client on day to day basis, and huge money is involved ,under such circumstances mediation can address conflicts within healthcare facilities, such as disputes between staff members or between patients and providers, insurers and company.

8. International and Cross-Border Disputes- As India is a signatory to lot of conventions, treaties.Mediation is an effective method for resolving disputes between parties from different countries, offering a neutral platform for negotiation and agreement.

Cross-Border Family Disputes: Mediation can help resolve cross-border family disputes, such as international child custody and relocation issues, by facilitating communication and understanding between parties.

PRIVATE MEDIATION IN INDIA

The parties look up to the best mediators. The selection of themediators is therefore necessary. Qualified mediators provide voluntary, fee-based mediation services to the public, workplaces, and government sectors to resolve disputes.

Private mediation is used in connection with disputes pending in Courts and pre-litigation disputes. The Mediation Act, 2023, allows private mediation in India. The Act encourages and supports mediation, both private and institutional, for dispute resolution. It emphasizes the importance of voluntary participation, confidentiality, and enforceability of mediated settlement agreements.The Act also introduces provisions for pre-litigation mediation, online mediation, and the establishment of the Mediation Council of India to regulate and promote mediation practices. Private mediation remains a key component, enabling parties to resolve disputes amicably with the help of a neutral mediator.

The Act also introduces provisions for pre-litigation mediation, online mediation, and the establishment of the Mediation Council of India to regulate and promote mediation practices. Private mediation remains a key component, enabling parties to resolve disputes amicably with the help of a neutral mediator.The Act emphasizes confidentiality, autonomy, and enforceability of mediated settlement agreements. It allows parties to appoint mediators of their choice, including foreign nationals, provided they meet the qualifications specified under the Act.

ONLINE MEDIATION

Acknowledging the role of technology in modern dispute resolution, the Act embraces online mediation. Parties can consent to online mediation at any stage of the process, utilizing electronic forms, computernetworks, secure chat rooms, or video and audio conferencing. The Act emphasizes the importance of maintaining the confidentiality and integrity of online mediation proceedings.

COMMUNITY MEDIATION

Recognizing the need for localized conflict resolution, the Act introduces community mediation. It allows residents or families in an area or locality to settle disputes that may affect peace, harmony, and tranquillity. Parties can request the referral of their dispute to community mediation through relevant authorities. A panel of community mediators, including respected community members and mediation experts, facilitates the resolution process.

CONCLUSION

Mediation stands out for its collaborative and non-adversarial approach, emphasizing voluntary agreements and the preservation of relationships. Unlike arbitration, where the arbitrator makes a binding decision, or conciliation, where the conciliator suggests solutions, mediation allows parties to craft their own resolutions with the mediator’s guidance. This gives mediation a unique position among ADR methods, offering flexibility, control, and the potential for creative solutions.

Mediation offers many benefits, such as efficiency, cost-effectiveness, and flexibility, but it also has some limitations. Unless formalized in a written agreement, the outcome of mediation is non-binding. If parties cannot reach an agreement, they may still need to go to court. Mediation requires the willingness of both parties to participate and negotiate in good faith. If one party is uncooperative, the process may be ineffective.

The agreement is enforceable as per the provisions of the Code of Civil Procedure, 1908, in the same manner as a judgment or decree passed by a court. Mediation does not establish legal precedent, which can be important in cases where a legal principle needs to be clarified or established. In some cases, one party may have more power or influence, which can affect the fairness of the mediation process.

* Advocate & Part Time Lecturer, Dr. RML College of Law, Gottigere, Bengaluru.               

** Guide and Associate Professor, Presidency University, Itgalpura, Rajankunte Post

[1]Alternative Dispute Resolution

[2]Mrs Astha Tripath, Justice Dispensation through Mediation in India (Published by Sweet &Soft Publications 2024)

[3]Sriram Panchu,Mediation Practice And Law,The Path Of Successful Dispute Resolution Author, Third edition, (Lexis Nexis publication  2022)

[4]Mrs Astha Tripath ,Justice Dispensation Through Mediation In India,published by sweet &soft publications (2024)

[5] The Arbitration and Conciliation Act 1996 (amendment 2021)

[6] Justice Dilip B Bhosale, “ An Assessment of ADR in India” Nyaya Deep(2021)

[7] National Judicial Academy  “ HOW are educated towards ADRS” Nyaya Deep (2022)

[8] R.D.Rajan, A primer on Alternative Dispute Resolution A primer on Alternative Dispute Resolution (Bharathi Law Publication 2005)

[10]Harvard Law ReviewArticle,“ Developments – The Paths of Civil Litigation”

May(2000)