• Mediation saved my costs and helped to avoid an expensive and prolonged litigation.
  • Mediation focused on my long term interests and created options for settlements.
  • Through mediation I opted for more by signing a settlement.
  • At the end of the mediation I actually shook hands with my opponents.
  • Mediation immediately put me in control of both my dispute and its resolution.
  • The law mandates mediation and the courts encourage and endorse it.
  • The mediation process is confidential, simple and the atmosphere is informal.
  • Mediation saved my precious time and energy.
  • Through mediation I could communicate in the real sence with the other side.
  • Mediation showed me the strengths and weaknesses of my case.
  • The mediation process was voluntary and I could even opt out of it any time.
  • Mediaton restored my broken relationship with my opponents
  • Mediation focused on improving my future not on dissecting the past

Introduction

Modern litigant is conscious of the fact that, he is a consumer of Justice Delivery System and not a mere recipient of the Court verdicts. He looks for options when he goes to buy television sets or cars. He demands a choice of movies and, therefore, prefers to go to a multiplex. There he even has a choice of stairs, elevators and escalators. This litigant is, therefore, highly dissatisfied when he goes to a Court and finds that he has to stand in a queue and wait not only for years but for decades. He finds that, the system is not only too complex and technical but also expensive. He finds that judges and lawyers still consider the adversary system as the only way of redressal of dispute. This consumer of Justice Delivery System also demands choice amongst the ADR Mechanisms, but not as Alternative Dispute Resolution Mechanisms. That is why Prof. Frank Sander of Harvard Law School suggested as far back as in 1976 that there should be a Court System with multi door approach:

“Please re-imagine the Civil Courts as a Collection of Dispute Resolution Procedures tailored to fit the variety of disputes that parties bring to the Justice System”

The modern litigant asks for a dispute resolution system, where he has privacy. When the matrimonial dispute with his wife or property dispute with his brothers or even his business disputes are being discussed, he does not want fifty people to hover around this. The litigant says that, he does not want to stop at giving vent to his feelings before the other side, but he also wants to confide some vital information into the ears of the neutral third party who can help him to assess the strengths and weaknesses of his case, if at all he has to go to trial. He is seeking assurance that such confidential information will not be disclosed to the other side without his consent.

The modern litigant wants to become a part of the entire process of finding out the solution, where the third neutral party only plays the role of a catalyst. The modern litigant is not looking for a typical 50:50 compromise. He wants a neutral party to understand his needs and underlying interests. Therefore concept of mediation was then rooted in the Indian soil.

Mediation is one of the modes of Alternative Dispute Resolution (ADR) recognized by the Code of Civil Procedure (Amendment) Act, 1999 by the enactment of Sec. 89. Mediation is a non binding negotiation process in which a neutral third person facilitates the disputants in arriving at a mutually acceptable settlement.

The philosophy of mediation is well-stated by Abraham Lincoln as:

“Discourage litigation; persuade your neighbour to compromise whenever you can. Point out them how the normal winner is often a loser in fees, expenses, cost and time.”

Litigation does not always lead to a satisfactory result. It is expensive in terms of money and time. A case won or lost in a court of law does not change the mind set of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Mediation works as alternative dispute resolution system to change mental approach of the parties.

Mediation Process creates a positive environment for the parties helping them to evolve solutions to their problems which are unique to their peculiar fact situations.

In mediation, the settlement is voluntary. But wherever confidential information is conveyed by a party to a mediator, it has to be kept confidential. Even if mediation fails and the case goes back to the Court, the mediator is not to tell anyone why mediation failed, not even to the Judge who referred the case to Mediation Centre nor to the Judge who will conduct the case after the case goes back to the Court. The Judge is not even supposed to ask the mediator why the mediation failed.