INTRODUCTION
Mediation is a type of alternative dispute resolution (ADR) in which parties try to resolve their conflicts outside of the court proceedings with the aid of an impartial third party known as a mediator. It is, above all, a non-binding mechanism. This means that although both sides consent to submit a disagreement to mediation, they are not obligated to follow this mechanism after the initial meeting. In this approach, the parties are in charge of the mediation whatsoever circumstances. This framework’s continuance is contingent upon the consistent approval of the sides. Since settlement is non-binding, the sides cannot be forced to make a choice then and there itself[1]. Throughout the settlement, both sides must agree to accept it freely. The mediator, as in a court or an arbitrator, does not jump to conclusions or pass a judgement. The mediator’s function is just to assist the sides involved in reaching their respective mutually-agreed conclusions for a settlement. Mediation, also known as conciliation, has an ancient legacy in the bilateral and multilateral arena. This procedure has a great deal of potential in finding a result that is satisfactory to both sides of a conflict when it is implemented[2]. Several people are hesitant to benefit from it since it is a relatively irregular technique, and they are afraid of just not knowing what to anticipate next.
MEDIATION – A BETTER CHOICE
- Highly Confidential – Mediation is a strictly anonymized process with the utmost confidentiality. Secrecy encourages brutal honesty and transparency in the procedure by ensuring the sides that any confessions, recommendations, or compromise promises made during the conciliation process would have no lasting implications. In general practice, it cannot be used in later litigation and arbitration proceedings. Court proceedings are open to the general public. Documentation and affidavits are involved. Whereas, mediation is a private process. Each conversation is unbiased and will not be exploited or leaked thereafter[3]. It thus means that your matters will be kept no less than a secret, and you can freely share details without any worry of it being leaked to the press media/ the public.
- Time-Saving – Mediation is a very time-saving method of resolving disagreements, especially when compared to other alternatives such as litigation. Even the initial court appearance can take months to set-up and the court proceedings can take years to get sorted. In contrast to the scenario in which courts are concerned, mediation is only focused on finding a negotiated settlement. The sides are open to a meeting whenever they want and have their valuable time spent directly negotiating with each other only with a singular objective of reaching a deal, instead of seeking to forge assert who did what to whom. Via mediation, you do not have to wait to get notified for the next hearing/meeting, unlike courts which take a highly considerate amount of time to get a new hearing date.
- Economical – Litigation is more costly than going to mediation. Employing a mediation facilitator is much less expensive, and the fee is usually split within the sides at definite proportions. When you add the cheaper settlement charge to the notion that perhaps the procedure takes substantially less time, you end up saving a lot of money. It is the cheapest option available for tackling issues that individuals cannot resolve on their own. Due to its ambiguous mechanism, it mostly saves the sides finances a lot more times if and when differentiated with litigation in terms of saving money.
- Availability of Alternatives – The sides involved in mediation are offered more alternatives that aren’t present in a standard confrontational lawsuit, such as choosing the location, day, timing, basic norms, and also the mediator. If somehow the sides aren’t pleased well with the conciliation process, they may depart at any moment and return at a subsequent date later. Lastly, parties can devise cures or concessions which would not be viable in a courtroom.
- Degree of Authority – Since there are so many alternatives available in mediation, the sides have so much more authority over the procedure and its consequence. Most importantly, the sides involved have the option of settling or otherwise. Unlike the jury or an arbitrator, a mediator does not have the right to enact a resolution on a side independently. The mediation facilitator cannot compel anyone to make a tough choice. This is an entirely discretionary activity. Well with the advice and supervision of the mediator, the sides eventually strike a deal.
- Less Ceremonial – Mediation, unlike litigation or arbitration, is a far more relaxed approach. It permits all the sides to indulge in more direct communication and participation. Particularly when the mediator can keep all the sides focused on their wants and demands rather than becoming dragged down in protocols and proclaimed opinions[4]. That allows for more open communication and much more proactive problem-solving. For all the aforementioned reasons stated previously, all the sides generally agree that mediation produces a better response than a litigation suit. Sides are often more pleased with mediation since it progresses with the fewest hassles. There is no clear victor, no acknowledgment of wrongdoing or blame, and the resolution is unanimously discussed and agreed upon.
- Cessation – Whenever the sides to a disagreement consent to settle their disputes through mediation, they get cessation. They understand that they will just proceed through without the expense, interruption, or diversion that can accompany a litigation lawsuit. The optimal settlement outcome leaves both sides dissatisfied to some extent[5], but they firmly believe that they got a much better bargain than they’d have gotten in an unfavorable court decision where they are compelled to accept the judgement whatsoever till further claims.
CONCLUSION
Everybody there benefits from the mediation. Sides communicate directly, which could also lead to a greater comprehension of organizational difficulties. An impartial third party supports the sides in establishing a mutually satisfactory, deal. Not just certain fundamental legal conflicts, but all matters significant to the sides can be resolved through mediation. According to an impartial poll, 96% of all responses and 91% of all chargeable sides who employed mediation would do so again.
Author(s) Name: Surjit Raiguru (Symbiosis International University, Pune)
References:
[1] World Intellectual Property Organization [WIPO] <https://www.wipo.int/amc/en/mediation/guide/> accessed on February 14, 2022.
[2] Relias Media (February 1, 2019) <https://www.reliasmedia.com/articles/143903-mediation-can-resolve-disputes-faster-at-less-cost-than-litigation> accessed on February 14, 2022.
[3] Fisher Phillips <https://www.fisherphillips.com/news-insights/why-mediation-is-a-preferred-method-of-resolving-disputes.html> accessed on February 14, 2022.
[4] Find Law (12 November, 2019) <https://www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation-whats-the-difference.html> accessed on February 14, 2022.
[5] Kelly D. Jordan Family Law <https://kellyjordanfamilylaw.com/2018/04/why-mediation/> accessed on February 14, 2022.
