The Civil Procedure Code recognises mediation as one of the Alternative Dispute Resolution (ADR) formulations under section 89 of the Civil Procedure Code. The court before which a case is presented will weigh in the options depending on the nature of the case and after a brief counseling refer the parties to mediation.
Although the Criminal Procedure Code does not employ the word mediation anywhere, to the extent that parties can agree to compound offences, it is possible for parties to resort to mediation in respect of compoundable offences. In respect of matrimonial discord, where even grave allegations are made, Courts encourage parties to bury the hatchet and settle and higher courts record the changed circumstances through settlement and quash the cases registered.
In terms of content, there is hardly any difference. As a process, the Arbitration and Conciliation Act details distinct method of bringing accord between parties through a Conciliator who has also powers to offer suggestions and adopt a proactive approach to put an end to dispute. The voluntary nature of the ultimate settlement is never compromised. The settlement could be enforced as if it were a decree of court.
Any person, not necessarily a person trained in law could be a mediator. However, to the extent to which court annexed mediation is the norm, a mediator is expected to be trained up to a minimum period of 40 hours of training through accredited trainers, approved by the Supreme Court appointed Mediation and Conciliation Project Committee.
There is no geographical limitation for making mediation work for parties living in any part of the world. By the very nature of things of mediation being a voluntary process, the person who is sought to be brought to the table for talks cannot be compelled to appear by any coercive process.
It could be a matter of agreement between the parties. Rules of private international or Conflict of laws, as they are called, have sufficient guidance for regulating the application of law on this subject. Treaties between countries for maintaining friendly relations determine beforehand the applicability of judgments and orders passed in foreign countries in domestic courts. The predominant consideration shall be that the settlement that is put to execution does not offend public policy or contrary to Indian laws.
It is also mediation and may be resorted when parties reside in different countries or regions where the parties may opt to use the neutral through the medium of video/audio conference and or through emails. Many online stores offer online mediation as a method of resolution of disputes for their customers who may have problems with articles purchased from a distant land.
The advantage about mediation itself is the autonomy that you enjoy in choosing the process, including your decision to have a lawyer or not. Sans courtroom formalism, it is not necessary to know the law or have prowess of argument. That said, it is common practise for lawyers to play decisive roles in mediation settings.
Mediation advocacy itself comes with different skills sets. Here in mediation, negotiating for results holds the key and not adversarial posturing. A good lawyer can easily become a skilful negotiator for the party she represents.
All States provide for full or some part of the Court fees paid to be refunded, if the settlement takes place.
Mediation, being a voluntary process, gives the right to the party to quit at any time without assigning any reason.
All the communications in Mediation or concession made to the other side are privileged even if the talks do not materialise to settlement. Neither the parties nor even the mediator can be compelled to reveal any confidential information passed at the mediation session and nothing of what is admitted could be used against if the matter gets back to court. Matters otherwise admissible could always be used in evidence in court, no matter if it was relied upon in mediation as well.
The Civil Procedure Code expressly empowers the court to refer parties to mediation. The Companies Act, 2013 provides expressly that the NCLT has powers to refer the parties to a mediator drawn from its panel. The Commercial Courts, Commercial Division and Appellate Division of High Courts Act 2015 mandates that parties resort to mediation before approaching the court, the exception being when the party has need for urgent interim reliefs in which case, a direct approach to the Court is possible.
As of now, there is no exclusion of the period of limitation for the time lost in mediation. Only a special law on the subject can bring this relief of exclusion of the period spent in failed mediation.
Already, in the US nearly 80% of the cases are settled through mediation. The European Union member countries have all recognised mediation as an important tool of dispute resolution and in some countries, like Italy, mediation is mandatory before a person could file a case. Many States in India have ADR centres with specific resource allocation for propagation and practice of mediation at all levels from the grass roots to the apex court. India has signed Singapore Convention (UN Convention on International Settlement Agreements Resulting from Mediation) in 2019 and before long, it is expected that the Parliament enacts a stand alone legislation on mediation.