Categories
Knowledge Centre

Mediation as a form of ADR

Somya Yadav

3rd Year, National Law Institute University Bhopal

Alternative Dispute Resolution, as the name suggests, is an alternative way to get the disputes solved, that is when litigation can’t work because of its many infirmities, Alternative Dispute Resolution is chosen by the parties in a dispute.

Mediation is one of the most effective and highly preferred alternative dispute resolution mechanisms.
Mediation is a structured procedure involving the role of third parties, who are trained professionals, in mediating a dispute between two parties and coming to an agreement or reconciliation. These third parties are called ‘mediators’ who are completely unbiased, independent and neutral of the conflict and help in coming to a consensus between the disputants.

One of the attractive features of mediation is the confidentiality of information that the parties provide to the mediators. These mediators meet with each disputant privately to discuss their side and position, and what do they desire from the outcome of the settlement. These private meetings are known as caucus. The information which is given out by the parties in a mediation in such caucuses is strictly confidential, and cannot be exposed by the mediators to the other party, unless the party giving out such information wants to.

Once the caucus is over between the individual parties and the mediator where the parties would’ve expressed their wants and interests, the mediator would then come to the mediation room and try to ascertain and establish areas of common ground. The mediator yields the floor to the disputants to propose possible solutions so that the whole activity of mediation is fruitful and the parties come to a mutually acceptable settlement.

If and when an agreement has consensus ad idem between the opposite parties, the mediators would draft the terms of settlement making sure that the disputants involved are satisfied with the agreement, and proceed to ask the parties sign on the settled agreement. This final session of the mediation is called the closing session.

In simple words, the following points are the steps involved in a mediation session-

  1. Parties in a dispute agree to opt for a mediation.
  2. Preliminary meeting between the mediators and the parties.
  3. Separate meeting between the mediator and the parties and their counsel known as a caucus.
  4. Exploring the interested and needs of both the parties after caucus is over.
  5. Coming to an agreement.

In most mediation sessions, the clients are accompanied by their lawyers. The role of these lawyers is to look into the technical aspect of the law, and provide for a proposal involving legal points. They don’t cross question or rebut the proposal given by the other counsels like in a litigation, but offer support, suggestions, and guidance to their clients. Counsels, that are the lawyers of the parties involved more or less provide an environment of cooperation and show commitment to the mediation session by their behaviour or words.

While the clients talk about the facts in the dispute, their counsels provide legal expertise to the other party.

Apart from the parties in the dispute, the third party known as the mediator is also a very essential role in a mediation procedure. The main purpose of mediators is to facilitate communication between the parties and help them arrive at a conclusive agreement. The mediators ensure that the whole process is fair, quick and cost effective.

An important part to note in this alternative dispute resolution is that it’s a non-binding process and the parties can revoke the decision as and when they like.

Over the course of years, several variations and forms of mediation have emerged.

Variations include examples such as-

  1. “Shuttle mediation” where the mediator goes between the parties and assists them in reaching an agreement without meeting “face to face”.[1]
  2. Transformative mediation does not seek resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties involved.[2]
  3. Therapeutic mediation is an assessment and treatment approach that assists families in dealing with emotional issues in high conflict separation and divorce. The focus is on the parties themselves as opposed to the dispute.[3]

Since the facts of every dispute are different, and so is the outlook of the parties and what they desire from the mediation process, the mediator follows different mediation forms for every case.

  1. Facilitative Mediation

The general perception of facilitative mediation is that the mediator is focused on facilitating the disputing parties in coming to a resolution on their own. However, the fact that someone calls themselves a facilitative mediator doesn’t automatically mean that they are helping someone. Mediation must avoid becoming counselling through over-zealous facilitation. When a mediator perceives a need or desire for counselling as an alternative he or she should immediately discuss and recommend it to the parties and bring the mediation to a conclusion. Mediation is not counselling.

  1. Institutionalised Mediation

Institutional mediation is designed to work with recognized groups within an institution. It is most often seen in modern hospital or educational settings. The process is most often noticed or reported when a large issue is resolved in such an institution.

However, the same techniques and mediators can be used to help resolve one-on-one problems and small group issues. As with larger issues, staff mediators help defuse tension, focus on solutions that last, aid in avoiding the legal system, and bring parties towards acceptance of issues they have failed to appreciate.

  1. Court-Mandated Mediation

As the name suggests, such mediation is mandated by the court promoting a speedy and cost-effective settlement between the parties, when it’s urgently needed and litigation cannot prove to be quick and efficient.

  1. Evaluative Mediation

The essence of evaluative mediation is opposite to that of facilitative mediation. In this type, the mediators aren’t mere facilitators of the process but actively participate in the mediation session, recommending and suggesting possible solutions.

This is the most often used form of mediation in court-mandated mediation.

  1. Med-Arb

This is a hybrid of mediation and arbitration where the parties form a written agreement that the decision of such a process will be binding. If the mediation comes to a standstill and no agreement can be reached upon, then the mediator assumes the role of an arbitrator (if he or she is qualified to do so) and renders a decision based on their observations.

  1. Arb-Med

This is again a hybrid of two alternative dispute mechanisms, arbitration and mediation. Arbitration is followed by mediation. In such a process, a non-binding arbitral award is issues and when the parties are not satisfied with the decision, then a mediation session is conducted between them.

  1. Arb-Med-Arb

This is a mix and match procedure introduced by the Singapore Singapore International Arbitration and Mediation Center in 2014. The parties begin with arbitration and if they’re not content with the proceedings, mediation is initiated while arbitration remains suspended. If the mediation is successful the mediated agreement is submitted to the standing arbitration panel for a consent award, or if unsuccessful, the arbitration proceedings are continued.[5]

The problems associated with litigation are well documented. Court costs and escalating legal fees make litigation a very expensive endeavour. The expense is compounded by the long delays caused by overcrowded court dockets and, sometimes, by dilatory procedural and legal tactics.[6]

Litigation and court trials are expensive, time consuming and cumbersome. There is no certainty that a trial will bring a fair or just ruling for a case. Nor is there a certainty that once the trial is over, that the case will be over. Cases sometimes stretch long into the future as appeals are filed and motions heard. However, there is a certainty that any trial will be expensive, as they do require at least one attorney and an attorney team, working full-time at attorney rates for the length of the trial.

Such shortcomings in litigation make mediation an attractive option because parties are able to control the outcome of this process unlike in litigation where judges or jury control the outcome; it’s speedy and no party loses in mediation. It’s a win-win situation because both the parties reach a settlement where the effort is to meet most demands of all parties involved. However, if the parties don’t like the conclusion of the settled agreement, they can revoke it because mediation is non-binding, which is another alluring feature of this ADR mechanism.

Pros of mediation-

  1. A win-win situation since all the parties involved gain whatever they want at the end. No party loses or wins.
  2. Confidentiality of all the information given by the parties is maintained, unlike in litigation where facts and legal merits are discussed and argued upon in a public court.
  3. It is non-binding and informal. In mediation, parties are free to chose their own set of procedures and aren’t guided by predetermined rules of evidence and etc. If the parties don’t like the process, they can choose to opt out of it after the first meeting since mediation is not mandatory to be completed. And even after the whole session, the parties are dissatisfied, they can choose to unfollow the settlement, and hence the risk factor involved is minimised.
  4. The process attempts to reserve the relationship between the mediating parties since nobody wins or loses the case. It’s a peaceful and cooperative environment where points of common ground are discussed and deliberated upon until an agreement is reached.
  5. It is cost effective and speedy. The disputants don’t have to expend exorbitant resources to reach a decision. Mediation procedures get over much quicker than litigation, which can extend to several months and even years.

Like every process, mediation also entails with it some infirmities.

Cons of mediation-

  1. Since it is non-binding, if one party decides to walk away after reaching a settlement then weeks or months of the mediation process proves to be futile. There is no guarantee that the exercise will be fruitful at the end of the session.
  2. Mediation requires cooperation from all the parties and often, while deliberating and discussing disputes, the parties’ tempers can flare making the whole process turn ugly.
  3. Inexperienced mediators can risk the interests and needs of the parties involved, and might dictate or tell them how to go about it instead of helping facilitate communication and exploring common grounds of needs and interests of the parties.

[1] Liebmann, Community and Neighbourhood Mediation (Cavendish Publishing Ltd. 1998) at 59.

[2] Bush & Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Jossey-Bass 1994).

[3] Irving and Benjamin, Therapeutic Family Mediation: Helping Families Resolve Conflict (Sage Publications, 2002).

[4] https://www.mediateireland.com/what-is-mediation-styles-part1.htm

[5] Robert N. Dobbins, The Layered Dispute Resolution Clause: From Boilerplate to Business Opportunity, 1 Hastings Business Law Journal (2005).

[6] Kenneth R. Feinberg, Mediation – A Preferred Method of Dispute Resolution, Volume 6, Pepperdine Law Review.

One reply on “Mediation as a form of ADR”

Leave a Reply

Your email address will not be published. Required fields are marked *