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ALTERNATIVE DISPUTE
RESOLUTION PROJECT

MEDIATION

SUBMITTED BY AJITABH
ROLL NO -906
SUBMITTED TO Mr. HRISHIKESH MANU SIR
FACULTY FOR ADR
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

RESEARCH METHODOLOGY
Aims and Objectives:
This research paper looks at the concept of mediation, its various advantages and
scopes.

Scope and Limitations:


Due to space constraints, the paper is limited to a brief discussion of the points set
above.

Research Questions:
What is the MEDIATION?
How it is differ from the other form of dispute settlement?
What are the advantages and characteristics of MEDIATION?

HYPOTHESIS
The researcher hypotheses that the MEDIATION is the best form of ADR.

Method of Writing:
An archival method of writing has been followed in the paper.

Sources of Data:
Secondary sources of data have been used while researching for the paper.

Style of Citation:
A uniform style of citation has been followed throughout the paper.

CHAPTERISATION
1. INTRODUCTION
2. HISTORICAL BACKGROUND OF MEDIATION AND ITS
TYPES
3. CHARACTERISTICS OF MEDIATION
4. ADVANTAGES AND DISADVANTAGES OF MEDIATION
5. CRITICAL ANALYSIS
6. CONCLUSION
BIBLIOGRAPHY

INTRODUCTION
Mediation is a most advanced and civilized form of dispute resolution mechanism. Now, it is
accepted by all that mediation facilitates conflicting sides to open and improve dialogue between
themselves and gives an opportunity of self-analysis of their claims. The mediation is being
accepted as a mode of dispute resolution. Now, it is resulting in a quicker disposal of cases and is
being to bring amicable solutions of disputes through a dialogue between the parties to a dispute
with assistance of neutral Mediator, who creates a soothing atmosphere for the disputant parties
to work towards a positive solution of their choice. Mediation is a tool for personal
empowerment for self-determination.1
The greatest need of the hour given the overburdened court system is alternative modes of
disputes resolution. Mediation is a timely and necessary solution to the same. The power of
mediation is that it creates a new dynamic for future interaction. The control that the parties have
over their situation, which allows them to craft unique solutions for their problems, with the
advantage of privacy which encourage a conflict free and non- adversarial atmosphere,
reduction coats, timely solutions to conflicts and a peaceful resolution of the same are built few
of the advantages of mediation. The aim of every judicial administration is to be just, honest and
make available speedy remedy to the aggrieved persons who as a last resort seek the assistance
of the courts.
Mediation is conducted on a confidential basis and without prejudice to the legal rights and
remedies of the parties. Mediation process passes through several stages, with all these qualities,
mediation process. Implement the values underlying in our constitution. It is a part of a
programme of empowerment of the poor which again is part of the plenary legal aid ideology. It
is the poor who need the services of the mediator the most. They lack the resources to vindicate
their rights in court or with public authorities. Mediation has its own advantages. It saves
precious time, energy and money of parties apart from saving then from the harassment and
hassles of a prolonged litigation. Informality: No court rules or legal precedents are involved in
1 Key note address by Honble Mr. Justice Altamas Kabir, The Chief Justice, Supreme
Court of India and Executive Chairman, NALSA report of the Third National
Conference on Mediation held at Vigyan Bhanvan, New Delhi, page 2

mediation. There are not fixed solution in mediation. Parties can look for developing creative
solutions to resolve matters and the solutions rest with the parties themselves. The mediator does
not impose a decision upon the parties.
The term mediate is derived from the Latin word mediare which means to be in the middle.
However, as mediation continues to develop in this jurisdiction there ... is less consensus on
what constitutes mediation. This may be due in part to the expansion of mediation into new
dispute arenas and to the increasing involvement of individuals from other professions.70 the
practice of mediation is subject to interpretation and debate, there does appear to be elements
common to most mediation models and a number of assumptions which underlie most mediation
approaches. These include: mediators assist negotiation, they do not hold decision-making
power; it is a consensual processes; mediators help disputing parties understand each other
through effective communication; parties need to go beyond positions to uncover interests;
parties should be empowered to resolve their own disputes; parties are best able to generate
options for settlement; parties will be more compliant with an agreement they have themselves
constructed; and mediation is future, more so than past, oriented. Mediation is based on the belief
that, with the assistance of a neutral and independent third party, people can work through and
resolve their own disputes. The mediator takes an active role in controlling the process. The
mediator asks questions to identify the interests of the parties and the real issues in the
disagreement. The mediator helps the parties explore solutions that benefit both parties but does
not suggest solutions. Mediation is -a structured process, however named or referred to,
whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an
agreement on the settlement of their dispute with the assistance of a mediator.
Mediation as per Blacks Law Dictionary2 - A method of nonbinding dispute resolution involving
a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.
Mediation as a process is distinct from litigation. Mediation is a process to resolve conflict from
society which in turn reduced the burden on the Court. The essence of mediation lies in the
parties themselves finding a lasting solution to resolve and end their conflict rather than
determining who is at fault. As Gandhiji said It is a great service to join the hearts of those
riven asunder.3 Experience the world over tells us that adversarial litigation is not the only
means of resolving disputes. The inevitable result of channeling all disputes through the
2 Seventh Edition Page 96

adversarial system is to accumulate huge arrears. The search for a simple, quick, flexible and
accessible disputes resolution system has resulted in question of Alternative Dispute Resolution
mechanism especially the mediation. Today the mediation is seen as most promising mechanism
for the resolution of both simple and complex disputes. 4 Mediation is not mere settlement
simpliciter. In common parlance, a settlement process is understood as encouraging disputants to
agree to a midpoint between their positions and to move them towards a compromise. To ensure
satisfaction of the end user, the settlement should include unravelling the real conflict,
understanding the needs of disputants and the reasons for their positions, relationship of the
parties and connection to the issue in disagreement. Mediation is more than pure negotiation and
involves a keen understanding of the psychodynamics of conflict resolution and nudging the
disputants towards a resolution by bringing a change in the thought process.5

3 Massage of Just. Manmohan Sarin, Former Chief Justice J & K High Court
Lokayukta, NCT of Delhi), SAMADHAN Reflections 2006 2010.
4 Message by Judge Ajit Prakash Shah, Former Chief Justice High Court of Delhi, as
quote In SAMADHAN Reflections 2006 2010.
5 Paper Need for Enhancement of Standard in Mediation Practice presented at 3rd
National Conference on Mediation, New Delhi, 8th July, 2012 by Uma Ramanathan.

HISTORICAL BACKGROUND OF MEDIATION


Mediation is not something new to India. Centuries before the British arrived, India had utilized
a system called the Panchayat system, whereby respected village elders assisted in resolving
community disputes. Such traditional mediation continues to be utilized even today in villages.
Also, in pre-British India, mediation was popular among businessmen. Impartial and respected
businessmen called Mahajans were requested by business association members to resolve
disputes using an informal procedure, which combined mediation and arbitration.
Another form of early dispute resolution, used by one tribe to this day, is the use of panchas, or
wise persons to resolve tribal disputes. Here, disputing members of a tribe meet with a pancha to
present their grievances and to attempt to work out a settlement. If that is unsuccessful, the
dispute is submitted to a public forum attended by all interested members of the tribe. After
considering the claims, defenses, and interests of the tribe in great detail, the pancha again
attempts to settle the dispute. If settlement is not possible, the pancha renders a decision that is
binding upon the parties. The pancha's decision is made in accordance with the tribal law as well
as the long-range interests of the tribe in maintaining harmony and prosperity. All proceedings
are oral; no record is made of the proceedings or the outcome. Despite the lack of legal authority
or sanctions, such mediation processes were regularly used and commonly accepted by Indian
disputants.
Mediation bears a striking resemblance, in some respects, to the ancient dispute resolution
processes. In mediation the parties are encouraged to participate directly in the process. The
expanded framework of discussion in mediation consists of both the applicable law and the
underlying interests of the parties. The mediator, an expert in the process of dispute resolution,
controls the proceedings, much like a tribal chief serving in the role of peacemaker. But under
the ancient methods if mediation failed, the same person was authorized to render a binding
decision.
After the British adversarial system of litigation was followed in India, arbitration was accepted
as the legalized ADR method and is still the most often utilized ADR method. Mediation (as is
now understood globally and unlike the ancient methods, which is by definition non-binding, and

encourages the parties to voluntarily reach an agreement that meets all the parties' needs) has
only in the past few years begun to become familiar to lawyers and judges generally, except in
traditional community settings and except where mediation has been court-directed or
statutorily-prescribed, such as in the intra-governmental disputes between government agencies
and undertakings, in labor disputes and in public utility services disputes. So when we compare
the US and Indian system, over the last twenty (20) years, American lawyers and judges have
warmly embraced mediation as a primary tool for resolving conflicts in court and out of court,
while Indian lawyers and judges are still warily examining mediation, discussing whether and in
which types of cases mediation should be used similar to what was happening in the US in the
1980's.
Mediation is no panacea, no magic solution to overcome the institutional challenges of national
court systems. Similar to other alternative dispute resolution techniques, however, it does offer a
cluster of features that differ from the formal judicial systems of Europe that have had global
influence over the primary ways in which legal conflicts are resolved. In this regard, mediation
both builds and diversifies the capacity for resolving conflicts in society. With many
qualifications and exceptions, European-style courts are state institutions, conducting public,
formal proceedings, that presuppose literacy, posture the parties in a conflictual, legal positionbased, backward-looking fact finding processes that result in binary, win-lose remedies,
subsequently enforced through social control over the losing party. In contrast, mediation and
other clusters of consensual dispute resolution techniques, except for arbitration are private,
informal, oral, more collaborative, facilitative, future-looking, interest-based processes that bring
parties to a calibrated, multi-dimensional, win-win remedy that is more durable because of the
parties consent in the outcome.
Because of these basic contrasting features, for many non-European legal cultures, mediation
bears a comforting alternative and similarity to traditional forms of dispute resolution that
predate colonial influence. Reformers have grown increasingly interested in reviving or
extending traditional forms of dispute resolution (such as the methods used by the traditional
panchayats in India) and integrating them into the formal litigation system.
The development of mediation in India holds enormous promise. In particular, the neutralizing
communication skills and powerful bargaining strategies of facilitated negotiation can strengthen

the system's capacity to bring justice to the society. Despite the demonstrable value of these
techniques, however, several large obstacles block the path to mediation in India. Exposure to
these facilitated negotiation processes, though spreading rapidly, remains limited.