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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Mediation Is The Tool Of Justice

MEDIATION

With India’s population being 135 crore, with more than 3.5 crore cases pending from more than 10 years, there should be a more systematic legal system. Many people in India can’t approach the court for justice as it is really costly legal structure. Mediation is a procedure that provide timely and cost effective access to justice for all the people disregarding the monetary condition of the respective citizens. 

They are many alternative dispute resolutions, which help the parties to solve the dispute but most of the citizen are unaware about them. the dispute resolution reduces the burden of the court. Some of them are negotiation, mediation, arbitration, and conciliation. It is a process of dispute resolution by an independent mediator that facilitates the communication and discussion to resolve the matter. In mediation both the parties mutually agree on the solution, provided by the consent of both the parties. Therefore, the process of mediation is focused forward and not backward.
In mediation process, the role of mediator is to discuss, provide concern and take out the best option out of the rest for both the parties. Mediation in Indian parties will ordinarily sign the mediation agreement with mediator which consist of some basic rules.

TYPES OF MEDIATION PROCESSES IN INDIA

In India, the mediation is done in three ways.

Mandatory Mediation- It is given in civil procedure mediation rules, 2003 in that the cases are referred from the court even if the party is not up for it.

Private Mediation- private mediation is the process where both the parties mutually select the mediator of their choice, time, place, fees and decide by their mutual consent.

Mediation Referred by Court- It always involve the disputes and conflicts whose cases are particularly selected by the court to bring the decision peacefully and beneficially for interpersonal relations in the long terms of the parties involved in case.
Mostly the mediation process is used in non-criminal and domestic disputes . It involves child custody, disagreements with neighbours, dispute between landlords, business partners and family members. It is a tool for justice, the unbiased approach of the mediator benefits both the parties and brings ‘Win-Win situation’ for both the parties with the mutual consent by negotiating and communicating.

STAGES OF MEDIATION PROCESS

1. Opening statement of mediator
2. Opening statement of parties.
3. Joint session- both the parties put their views across
4. Agenda
5. Private caucus- private session of one parties(if party want)
6. Closing (argument) offer/counter offer
7. Negotiating

7 ELEMENTS OF MEDIATION

1. Interest and Position- Interest is why you are actually negotiating, the reason behind it. Position is what the parties actually wants from the negotiation.
2. Options–Option plays a very important role in determining, the outcome of the mediation process. It is a combination of the best possible conclusion, if the party cannot reach an agreement it helps to explore what can be done further.
3. Legitimacy- There should be fairness for the allegations made and not just something that you come for negotiating. The main problem of legitimacy in mediation raises the question that why the mediation is fair as a means of settling the disputes.
4. Communication- communication is the most important element and ofcourse the obvious elements during the negotiating process. It is much like open ended questions and answers together, from both the parties for gathering information for the decision-making process.
5. Commitment -First you have to ensure that the outcome ,that parties have accepted and agreed, it should be realistic and something parties will not have to negotiate their deals again like on what is the parties level authority ,how authorised is the other party to take and to sign the commitment responsibilities. Commitment in the relation should develop strong culture to enhance party’s performance.
6. Relationship- The communication and the commitment between the parties should lead to the formation of a relationship which might be beneficial for both the parties in the future.
7. Best Alternative to a Negotiated Agreement (BATNA)-It is a common sense idea, by which you can solve the case, by taking out the odds and finding out the best alternative.

THE MAIN ADVANTAGES OF THE MEDIATION ARE 

1. Time efficient: Both the parties have win -win situation.; Mediation is time-efficient and can be completed in a couple of sessions. The majority of the disputes in private mediation can be resolved in one day or two. In the process like litigation or arbitration, it takes time. The final outcome is determined by the consent of both the parties who are negotiating.
2. Flexibility in the procedure. The flexibility inherent in the mediation process is a cynical element, in establishing the efficient path to reach settlement in the particular case. Unlike, court rules of procedure, takes a lot of time in the whole method. And mediation focuses on ending the conflict amongst all disputants.
3. Cost settlement- Mediation proceedings are settled fastly and therefore, minimizing the cost exposure normally associated with dispute resolution of the parties. The cases include some patent, information technology disputes etc.
4. Communication specialization- Communication is a necessary skill for establishing interpersonal interaction between the two parties. It is an important factor for establishing various forms of mutual relationships and consents. Effective communication is a the primary goal for mediation’s positive response and reaction from the participants in the conversation. Communication is the prevention of misunderstandings as well as the easy way to overcome the barriers we face in different forms in our daily lives.
5. The process is confidential of the mediation- By law, all the communications which are conducted under the mediation umbrella are protected from disclosure in any other civil meeting, that includes pre-mediation consultations and advises and post-mediation follow-up.
6. Voluntary process- Voluntary mediation generally refers to, both parties freely chosen participation and freely made agreements and decisions by both the parties. Parties are free to decide the conclusion.
7. Feelings and interest are kept forward then evidence- Mediation process is less formal, where everyone involved must work towards the mutual goal of a peaceful resolution to an unworkable relationship. Thus, mediation works by means of mutual respect, open communication, and clear feelings regarding the case.
8. Mediation: a non-binding- It is generally conducted with a single mediator who does not judge the case but advises and provides discussion and step by step resolution of the dispute. If parties don’t like the conclusion, they can leave the mediation process at any time they want.

CONCLUSION

Mediation is the process which provides justice to citizens in of India in mild manner. In a country with moving population of more than thousand crores, it is important to provide justice to the justice seekers in an efficient and effective way. It is the an informal and flexible process. In this process there is physical and mental autonomy. It guides parties for decision process, negotiating and communication specialization. It is good to resolve the matter in friendly process without any major loss and both the parties have a win-win situation. By all these advantages, mediation as the part of Alternative Dispute Resolution, is the chief tool of justice.

REFERENCES

1. https://ametros.com/blog/the-language-of-mediation/#:~:text=Mediation%20is%20time-efficient%2C%20cost-efficient%2C%20and%20usually%20less%20stressful,person%20and%20still%20have%20control%20of%20the%20outcome
2. isbinsight.isb.edu/when-negotiations-fail-the-mediation-solution/
3. https://environmentaladr.com/environmental-mediation-vs-litigation/flexibility-key-success-mediation
4. https://www.wipo.int/wipo_magazine/en/2010/01/article_0008.html
5. www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation
6. www.bing.com
7. www.applieddivorcesolutions.com/how-mediation-works/
8. https://worldmediation.org/effective-communication-in-mediation
9. https://lawlex.org/lex-pedia/mediation-a-tool-for-access-to-justice/2386
10. blog.ipleaders.in 

Image Credits

This blog is authored by Aditi Gupta, a 2nd year student, at Indore Institute of Law. 

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