Mediators Post

Mediation- Alternative Dispute Resolution

Author´s name: Pankaj Kumar

Profile: Accredited Mediator, Master Mariner, Faculty

Location: Kolkata


Mobile No: 86975 34548

Mediation means any process in which a mediator facilitatescommunication and negotiation between parties to assist them in reaching a voluntary agreement

Mediation is often referred to as " ADR " Alternative Dispute Resolution.

It is a process in which a neutral third party, i.e., the Mediator encourages and facilitates the resolution of a dispute between two or more parties.

It is an informal and non adversarial process which has objective of helping the disputing parties to reach a mutually accepted and voluntary agreement.

It is a voluntary and confidential dispute resolution process in which a neutral mediator assists parties in finding a lasting win-win solution to their conflict. Mediation lets people speak for them and party - not the mediator - control the decisions and the outcome.

Mediation is an alternative to non-resolution or costly legal measures. By participating in mediation, the parties do not give up their legal rights. If an agreement is not reached, people can still take their case to court if they wish.

Why Mediation is important

Throughout the world, and especially in common law jurisdictions, there is a recognition that properly conducted facilitative mediations are generally the most effective means by which parties in civil and commercial disputes can resolve the matters that divide them without the delays, costs and uncertainties implicit in litigation.

Conflict is timeless. Our increasing interconnectedness is new. Organizations of all sizes - corporations, agencies, employers - from diverse national and cultural backgrounds are forced by mix trends to work together to resolve a host of complex issues.

Reliance on adversarial domestic forums for dispute intervention no longer adequately serves consumers facing problems that are increasingly transnational in character.

Some of the proclaimed advantages of mediation are:

Speed- days to weeks rather than months to years to commence the proceedings.

Short hearings- one day is often sufficient - witnesses and experts are rarely called.

Private- no press reports or adverse publicity - proceedings are privileged / not admissible in subsequent court proceedings and not recorded : all records and evidence are destroyed or returned to the parties apart from the written settlement agreement.

Cost- relatively inexpensive - due to short hearings and absence of discovery processes and cross questioning.

Convenient location- two rooms in a hotel or offices are all that is needed - in the country of choice of the parties and the mediator.

Informal- no judges, robes, official recorders or court procedure.

Lawyers are optional- though expert advice is very desirable. Self representation is permitted.

The parties remain in control- there is no judge and no enforceable judicial award - so there is little to lose from taking part but potentially everything to gain.

Works domestically and internationally- ideal for family dispute, international trade and maritime disputes etc - and more sympathetic to multi-cultural issues.

Linguistically flexible- can be conducted in the language of choice of the mediator and the parties.

Not restricted to legal solutions and thus more flexible than going to law.

Not restricted to the law of one country - so truly international solutions possible

Enables the parties to retain “face” and where possible to continue trading after ending the dispute

Mediators are experts drawn from the industry and understand the issues and the business - whereas few judges have worked in commerce of in the maritime industry.

Multi-party mediations are possible and can include interested parties such as banks, financiers and insurers and

  • Most mediation provider bodies that have conducted research on the success rate of mediation quotes 80% chances of success. The reason for this is that when parties are in a situation where they all feel empowered to negotiate effectively and achieve their needs.
  • The key advantage is the gateway provided to interest based negation by the presence of a neutral person in the negotiating frame, one who can handle the process and enable the parties to negotiate based more on their needs than on the position that they have taken.
  • More amenable to the preservation of business relations - less likely to result in outright winners and losers - What do I have to lose?
  • Nothing, with the exception of a little time and a modest shared cost.
  • As per the Arbitration & Conciliation Act, 1996, a settlement agreement (Section 73) executed by the parties at the end of a successful mediation / conciliation has got the same status of a civil court decree.

The Difference between The Lawsuit & the Mediation

ADR is no longer a specialty process. Indeed ADR has become one of the premier methods of resolving disputes, whether they arise in the workplace or at home. It is the means for resolving a substantial amount of civil litigation in a wide variety of areas. Today the Indian Courts have the power to refer matters to ADR, even against the will of the parties.

It is now manifestly clear to both practitioners and legal educators that a comprehensive professional exposure to ADR is necessary to engage in cutting edge and high quality law practice. Effective conflict resolution skills help supervisors and managers to prevent destructive conflict in their organization, enable lawyers and consultants to better assist their clients in business disputes, support the work of social workers and health professionals and provide life skills to reach better decisions.

Business Deal Mediation

Deal mediation works extremely well for a broad range of business transactions, including financings, mergers, acquisitions, business sales, asset transfers, corporate alliances, joint venture formation and technology licensing, to name a few. From the most basic contract formation to the most complex M&A deal, the mediator can add tremendous value, help prevent deal failure and guide all parties to their most efficient outcome.

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