About Mediation & ADR

About ADR

ADR or Alternate Dispute Resolution is a term that includes various mechanisms used for resolving disputes or conflicts outside of court. The different methods include Arbitration, Mediation, Expert Determination and Conciliation.

Litigation tends to be extremely time consuming and thus expensive, thereby making the process frustrating. More and more disputants are thus turning to ADR for resolving disputes due to the advantages that various forms of ADR offer. The table below shows the key features of litigation and two methods of ADR, arbitration and mediation.

Arbitration

Arbitration utilizes a neutral third party to hear a dispute between parties. The hearing is informal and the parties mutually select the arbitrator. The arbitrator is retained to decide how to settle the dispute and the decision is final and binding on the parties. Arbitrator reviews the evidence in the case and imposes a decision that is legally binding on both sides and enforceable in the courts. Arbitration is more cost efficient and quicker than litigation but it is the arbitrator, not the parties, who renders the terms and conditions of the dispute resolution.

Mediation

A Mediator, a neutral person appointed by the Parties, actively assists the Parties in working towards a negotiated agreement to resolve the dispute. The function of the Mediator is to facilitate settlement and not to make a decision and the Parties remain in ultimate control of the decision to settle and the terms of settlement. The key to mediation is that parties make their own decisions, often with the help of their lawyers. They are in complete control of the outcome and do not run the risk of having an unfavourable decision imposed upon them by ajudge or arbitrator. Leveraged properly, mediation is an effective approach to managing a wide-array of disagreements and conflicts.

Parties can mediate at any stage before or during court or arbitration proceedings. Mediation may be included in a contractual dispute resolution clause as a precursor to litigation or arbitration. Alternately, it may be proposed by one of the parties once a dispute has arisen.

The Mediation Process

The Parties appoint a mediator and enter into a mediation agreement which sets out the dispute to be mediated, the name of the mediator and the individuals who will attend from each party. The representatives from each party should have decision making power. The success of the mediation depends on the presence of decision makers at the mediation hearing. The mediation agreement should also make provision for the allocation of costs, for confidentiality and confirm the date and venue. Parties will exchange brief summaries of their cases and key documents prior to the hearing. Sometimes parties will send a brief document to the mediator which will not be disclosed to the other side.

Mediations are usually conducted in sessions of three hours each. Resolutions can be reached in one session or may take slightly longer depending on the nature and intensity of dispute. Parties may agree to a deadline by which the mediation process should be completed.

The mediator will finally conduct a mediation hearing. During a hearing, both parties may be brought together in order to work on an agreement. Normally, a mediation hearing starts with a joint session during which both parties set out their position followed by private sessions between the mediator and the parties. The mediator may have several private sessions and use a variety of techniques such as shuttle diplomacy to persuade the parties towards a settlement. Shuttle diplomacy is a technique used by a mediator where s/he goes back and forth between parties with proposals in order to reach an agreement.

If the Parties reach an agreement in this process, it will be recorded in the form of a legally binding settlement agreement. The terms of agreement are listed in a settlement agreement and the written agreement is signed by the parties in dispute. Typically, the mediator facilitates the agreement.

Who is a Mediator

A mediator is a neutral third party who is selected by parties in dispute to help settle a dispute. Both parties mutually select the mediator. A mediator may be a lawyer or an expert in the field in which the parties are claiming a dispute or maybe an accredited mediator from a reputed mediation institute.

All mediators empanelled with MEDIATORSPOST are accredited commercial mediators by the Indian Institute of Arbitration and Mediation (IIAM). Each of them holds substantial professional experience, excellent mediation skills and maintains a high level of ethical standard.

Advantages of mediation

Mediation generally enjoys an 80-85% success rate.
All Mediators at MEDIATORSPOST follow the schedule of fees that are prescribed by the Indian Institute of Mediation. The process is costs effective and it generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. Even if mediation fails, the process may have narrowed the issues, which will ultimately reduce costs.
While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened in the mediation. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation is completed. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.
Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge. Often, a judge cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
As the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to "move" their position. The parties thus are more amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.
A negotiated settlement can include creative solutions that can go beyond monetary payments. For example, provisions for future work between the parties can be incorporated into the agreement.
Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think "outside of the box" for possible solutions to the dispute, broadening the range of possible solutions.

Limitation of mediation

The only limiting factor to mediation is where there is no genuine intention to settle on the part of one or more parties and the mediation is a delaying tactic or an attempt to get an early understanding of the opponent’s case, tactics and approach.

Mediation, as an ADR mechanism is being widely used and is encouraged by courts in various jurisdictions including India. It is being actively utilized in almost every conceivable type of dispute. With an 80-85% success rate it is wise to try mediation. The only error may be not to try.