ASSIGNMENT
TOPIC NAME :– Alternative Dispute Resolution
. System - II
SUBJECT :– Procedure of Mediation and Role of
Mediator
ASSIGNMENT SUBMITTED TO
FACULTY OF LAW, UNIVERSITY OF LUCKNOW
For the Partial Fulfilment of the Requirement in
LL.B. – VIth SEM (SECTION-C)
Under Guidance Of:- Submitted by:-
DR. MAHENDRA KUMAR SIR BHUPENDRA SINGH
UNIVERSITY OF LUCKNOW Roll No. 2110013115151
ACKNOWLEDGEMENT
I would like to express my gratitude to my teacher DR.
MAHENDRA KUMAR SIR, who gave me this opportunity to work on this
wonderful Assignment of ADR, on the topic Procedure of Mediation and Role
of Mediator. I came to learn many important facts and issues related to the
topic while preparing the assignment.
Secondly, I would also like to thank my friends who helped me a lot in
preparing the assignment.
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TABLE OF CONTENT
➢ Introduction
➢ Appointment of Mediator
➢ Steps in Mediation Process
➢ Role of Mediator
➢ Conclusion
➢ Bibliography
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INTRODUCTION
In 2002, Section 89 of the Indian Code of Civil Procedures was amended and
has given way to alternative dispute resolution methods such as arbitration,
mediation, conciliation, and pre-trial settlement methodologies. Mediation is
usually defined as “A voluntary process by which parties involved in a conflict,
in the presence of a neutral third-party, negotiates to arrive at a settlement
satisfactory to both parties.”
The above definition very clearly states that the process of mediation is
voluntary. This means that no party can be threatened into participating in the
process. Remembering this, if we inspect the idea of alluding cases for
necessary intervention, it appears to be repetitive and damages the very
premise of the intercession procedure.
APPOINTMENT OF MEDIATOR
Rule 2 of The Mediation and Conciliation Rules, 2004 specifies that parties to a
suit or other proceedings may agree on the sole mediator or group of
mediators for mediation between them. The parties may either appoint the
mediators by their own or may appoint the mediator from the panel of
mediators prepared by the High Court or the Session/District Courts under Rule
3 of the Mediation and Conciliation Rules, 2004. Therefore, autonomy to
appoint the mediator is given to the parties.
The persons who may be impaneled as mediator under Rule 3 of Mediation
and Conciliation Rules, 2004 by the High Court, Session/District Courts must
have the following qualifications given under Rule 4 of the 2004 rules.
The following persons may be enlisted:
• Retired Judge of the Supreme Court of India
• Retired Judge of High Court
• Retired District and Session Judge
• Retired Officers of Delhi Higher Judicial Services
• District and Sessions Judge
• Officers of Delhi Higher Judicial Services
• Legal practitioner with at least 10 years standing at the bar at the level
of the Supreme Court, High Court, and District Court
• Expert or other professionals with at least fifteen years’ standing.
• Persons who are themselves expert in the mediation
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STEPS IN THE MEDIATION PROCESS
Whenever any case is to be sent to mediation, the following steps are
followed-
Step 1: Convening the Mediation Process
The convening of the mediation is often the most difficult and challenging part
of the mediation process. It involves a varied range of procedures-
Reference to ADR by the Court
The court is required to direct the parties to opt for any of the five modes of
alternative dispute resolution and to refer the case for Arbitration,
Conciliation, Judicial Settlement, Lok Adalat or mediation under Section 89 and
Order X Rule 1A of Code of Civil Procedure, 1908.
The Court must consider the option exercised by the parties and the suitability
of the case for the option chosen. The judge making the reference, known as
the referral judge, is required to acquaint himself with the nature of the
dispute, and objectively assess the suitability of facts and the ADR.
This appropriate stage for making the reference in civil cases is after the
completion of pleadings and before framing the issues, while in cases
pertaining to family law, the appropriate time for making the reference would
be immediately after service of notice on the respondent and before the filing
of objections/written statements by the respondent.
Even if the court did not refer the cases to ADR at these times, nothing
prevents it from referring to it at a later stage.
Preparation for Mediation
The referral judge then has the crucial job of bringing the parties together and
motivating them to resolve their disputes through mediation. This involves
finding the reasons for any disinclination on behalf of the parties to enter into
mediation, along with explaining the concept, process and advantages of
mediation.
While the consent of parties is required for mediation, the court can also apply
external pressure to induce the parties to enter the mediation, to the extent of
ordering or forcing them to do so.
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Referral Order
A referral order issued by the referral judge initiates the process of mediation
and is the foundation of a court-referred mediation. An ideal referral order
contains details like name of the referral judge, case number, name of the
parties, date and year of institution of the case, stage of trial, nature of the
dispute, the statutory provision under which the reference is made, next date
of hearing before the referral court, whether the parties have consented for
mediation, name of the institution/mediator to whom the case is referred for
mediation, the date and time for the parties to report before the institution/
mediator, the time limit for completing the mediation, quantum of
fee/remuneration if payable and contact address and telephone numbers of
the parties and their advocates.
Step 2: Initiation of the Mediation Process
The mediator must ensure that the parties and their counsels are present at
the commencement of the mediation process.
Introduction and Opening Statement;
Introduction
• The mediator gives an introduction with his qualifications,
establishes his neutrality and reposes faith in the mediation process.
• The mediator requests the parties to introduce themselves, attempts
to develop a rapport with them and gain their confidence and trust.
• The motive is to create a constructive environment conducive to
negotiations and motivate the parties for an amicable resolution of
disputes.
• The mediator establishes control over the mediation process.
• There is no standard set of rules that must be followed, making
the mediation procedure flexible.
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Opening Statements
• The mediator’s opening statement is intended to explain to the
parties-
o the concepts, processes, and stages of mediation,
o the role of the mediator, advocates, and parties and
o the advantages and ground rules of mediation.
• The mediator confirms that the parties have understood the process
and gives them the opportunity to get any doubts clarified.
• Statements are also sought from the negotiators. The parties
articulate their positions, enabling the other party to understand
what they want.
• This is followed by a restatement of the problem by the mediator
where an attempt is made to incorporate the differing perspectives.
Step 3: Setting the Agenda
• Setting the agenda is an important duty imparted on the mediator to
shed clarity on the mediation proceedings and remove vagueness.
• It involves setting down the order in which negotiation is to proceed
and gives the parties a standard using which they can individually
evaluate the progress of the negotiations.
• The mediator may mention the time and venues for the negotiation
sessions, along with the issues before the parties, to be discussed
sequentially.
Step 4: Facilitation of Negotiation and Generation of Options
Joint Session
The purpose of the joint session is to gather information. The mediator
provides an opportunity for the parties to hear and understand each other’s
perspectives, relationships, and feelings. The petitioner is allowed to explain
their case in their own words, followed by the presentation of the case by their
counsel and the statement of the legal issues. Similarly, the defendant is
allowed to explain their case, followed by the presentation of the case and
statement of the legal issues involved by the defendant’s counsel. The
mediator attempts to understand the facts, issues, obstacles, and
possibilities.
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and ensures that each participant feels heard. The mediator encourages
communication and asks questions to elicit information. At the completion of
the joint session, the mediator may also suggest meeting each party with their
counsel separately.
Separate Sessions
• Separate sessions are meant for the mediator to understand the
dispute at a deeper level.
• It provides the parties with a forum to further vent their feelings and
disclose confidential information they do not wish to share with the
other parties.
• It helps the mediator to understand the underlying interests of the
parties, the positions taken by them and the reasons for these
positions, identify areas of dispute, differential priorities, and
common interests, and to shift the parties to a mood of finding
mutually acceptable solutions.
• The mediator is supposed to reaffirm confidentiality, gather further
information, and challenge and test the perceptions and conclusions
of the parties to open their minds to different possibilities. This is to
be done by asking effective questions and helping the parties
understand the strengths and weaknesses of their cases.
• The mediator offers options which he feels best satisfy the
underlying interests of the parties.
Step 5: Reaching a Settlement
• By helping parties to understand the reality of their situation and
give up rigid positions, the mediator creates creative options for
settlement.
• The mediator can conduct as many separate sessions as necessary
and may even conduct sessions with groups on the same side with
diverging interests.
• The parties negotiate through the mediator until a solution mutually
acceptable to all the parties involved. The mediator directs the
parties to a solution which he believes will satisfy the underlying
interests of the parties.
• In case negotiations fail, the case is sent back to the referral court.
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Step 6: Closing
• There is no fixed procedure that must be followed.
• Once the terms of the settlement have been agreed to, the parties
are reassembled.
• The mediator orally confirms the terms the terms of the settlement
as a procedural requirement.
• The parties, with the mediator’s aid, write down the terms of the
settlement and sign the agreement.
• The settlement has the binding nature of a contract and is
enforceable in a court of law.
• In his closing comment, the mediator thanks the parties for their
help and participation in the mediation process.
In the event no settlement is reached between the parties, the case is returned
to the referral court stating failure to settle. The proceedings of the mediation
arekept confidential and cannot be revealed even to the court.
ROLE OF MEDIATOR
The mediator is a neutral and unbiased third party who assists the feuding
parties in their quest for a settlement. Even though the last decision must be
taken by the disputing parties, it is the mediator who first initiates a meeting,
discusses the problem and then assists the conflicting parties in finding
possible solutions.
The main points that are kept in mind by a mediator are impartiality and
neutrality. He must be completely unbiased all the time while he is resolving a
case. He doesn’t have to take any party’s side. His most important task is to act
as a catalyst between the conflicting parties. He must take necessary steps to
organize the talks between the disputing parties and act as a guiding force
while assisting them to reach a solution. He is not allowed to give his personal
opinions on the case. But he can assess the case; give the disputing parties a
fair idea of what the consequences might be if the said case is taken to court.
He can give the parties a few ideas or possible solutions that could help in
resolving the dispute.
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CONCLUSION
Mediation is a safe, informal, and confidential method to resolve issues
involving simple and complex contract disputes, payment disputes, cases
based on miscommunication, matter pertaining to product satisfaction as well
as safety issues, matters relating to service satisfaction issues, employment
disputes, insurance disputes, debt disputes, disputes relating to Personal
injury, civil rights, and small claim matters.
So, we can see that mediation is a very efficient and reliable system through
which disputes can be resolved. Through this process, the disputing parties can
reach an amicable end. The most important element is the mediator in this
process. He makes sure that no party suffers any undue loss. It is his
responsibility to ensure that the case reaches its end and does not have to be
transferred back to the traditional form of litigation. So, we can see that there
is a huge responsibility on the shoulders of a mediator.
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BIBLIOGRAPHY
BOOKS
➢ Bare Act, Arbitration and Conciliation Act,1996
➢ Alternative dispute resolution by Dr. S.C Tripathi
➢ Arbitration and Conciliation by Avtar Singh
WEBSITES
➢ www.indiankanoon.com
➢ www.scconline.com
➢ www.ipleader.com
➢ https://main.sci.gov.in
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