Frustrated with Business Disputes and with Courts? Mediation India can help. Read Now!

You do not have to go to court, Mediation is here to Help!

Author: Mr Atul Sobti 

No person or entity involved in a dispute - whether an individual, a family member, a partner, a company, or even the govt. - would willingly like to go to a court for the resolution of their dispute. Each party (person or entity) would believe that it is in the right, in some way or the other. Some would even have tried threats of some sort. Lawyers would have been brought in to start the process of 'teaching the other party a lesson' or to protect oneself. And after a given time, if the dispute has persisted, one party would approach the court - or, in the case of companies, often an arbitrator.

Both courts and arbitration offer an adversarial system, whereby a party has to be pronounced 'right' (and consequently the other 'wrong'), on the basis of the facts and circumstances of the case and the interpretation of the law by a judge or an arbitrator - after lengthy production of evidence in multiple forms, and arguments of respective Advocates. The process is arduous - long, costly and frustrating - with the affected parties themselves mere bystanders. 

Often even the 'winner' is not satisfied with the verdict or award, and the 'loser' often appeals (leading to further time, cost and frustration).

Even if there is no appeal, often, for the 'winner', executing a decree or an order or an award can be most challenging. It may mean a trip back to the court to get these executed!

There is finally an effective alternative - Mediation. An independent Mediation Act, passed in September 2023, has given Mediation greater sanctity. Mediation is a facilitated negotiation between parties to a dispute, aiming to achieve an amicable settlement of the dispute. The facilitator is called the Mediator. A Mediator is a neutral, trained professional. The role of a Mediator is to support the parties, control the process, and help resolve the dispute. The Mediator facilitates the interaction with and between the parties, by enabling a trusting space that offers privacy and confidentiality. The Mediator helps the parties move towards a collaborative resolution of their dispute. It is the parties finally who are in control of the outcome, the result, of their dispute (the lawyers of parties may accompany them, whenever so required).

The objective of Mediation is not to prove any party right or wrong. The focus is not on the past, but on the future - the focus is not on who did what, but who will now do what. 

Mediation can be availed by any party wishing to resolve a dispute.

A Mediation can be initiated by either party contacting a Mediator, even when there is no such written clause or agreement between them. 

The Mediator would explain the process and benefits of Mediation to the party, and then contact the other party to do the same. Mediation can be availed at any stage of a dispute - when the dispute has just occurred, or while a party is thinking of legal action of some type, or even while parties are in court or arbitration (if both are agreeable). Mediation is ideal for any civil, commercial dispute that has arisen over some breach of an agreement or contract in any form between parties. It can even help resolve simmering differences among various parties.  

Mediation is voluntary, conducted in private, confidential and flexible. 

Confidentiality is covered extensively, for and between the parties and the Mediator, for whatever is discussed or shared during the entire Mediation process. The parties are not bound by any statement or admission or offer made during the Mediation; it is only the final signed Settlement Agreement that binds the parties. 

Mediation offers substantial time and cost savings over other dispute resolution systems, like courts or arbitration. It mainly takes between a few weeks to a few months, depending on the case.There is no legally mandated process, procedure or code. There are recognised Mediation rules, now also encompassed in various parts of the Mediation Act. There is no requirement of providing evidence in any form. A Mediation can help retain the relationships between parties, if so desired. 

Bottom line, a settlement during the course of a Mediation is the most satisfying outcome for the parties. It results in the resolution of the dispute to the mutual acceptance and satisfaction of the parties, and a true finality and closure of the dispute.