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

Take control of your dispute

You are having regular and serious differences with your family business member, or partner. You are locked in a prolonged dispute with your debtor or creditor. Another party, you believe, has been in breach of a written agreement or contract between you, and has not made amends. You have finally taken a disputed matter to court or Arbitration, and are now frustrated with the progress and your inability to do anything, let alone the high costs. As a person managing business or commerce, you could be in one or more of such scenarios. And this is perhaps not the first time.

There is a clear and beneficial alternative today, to help substantially reduce your time, cost and frustration - and with you being in control of the outcome.

Welcome to Mediation, which is not only an integral part of the out-of-court Alternative Dispute Resolution (ADR) process, but the most apt for helping resolve and bringing a finality and closure to your business and commercial disputes.

So what do you have to do?

First, try to read a little about Mediation. Mediation is a facilitated negotiation of a dispute, whereby a Meduator helps the parties move towards a settlement of their dispute. Based on my business/commercial experience and Mediation trainings, I have tried to provide simple answers to many of the queries that anyone in such situations may have. You can view this at the website mediationindia.in

Then reach out for a Mediator. Apart from us there are good Mediation organisations like DResolute and KD Lex Chambers. The Mediator would discuss with you and then call the other party on your behalf (or you can jointly look for and agree on a Mediator). Since Mediation is voluntary, both parties need to agree to try out Mediation for the resolution of their dispute. Of course the Mediator would help with this.



At this stage it is important to bring in the scope for your lawyer, as well as what is referred to as court-annexed Mediation. A lawyer/advocate is, by education, skills and experience, an integral part of the court adversarial system, whereby a judgement is given for or against a party (one proven 'right', the other 'wrong'), based on evidence advanced, advocacy skills, and the interpretation of law. An experienced lawyer is not by nature, training or skill a 'neutral'. The lawyer's role is to find every evidence or interpretation or loophole that would benefit one party, his/her client.

So the appointment of a court advocate as a Mediator, by a judge, despite the advocate's having undertaken some training in Mediation, is not the best choice for a party looking for Mediation (of course there are worthy exceptions). The fees paid to a Mediator in court-annexed Mediation is paltry. And so only the real dedicated advocates cum mediators would take it up seriously as a profession. The result is often lacklustre. The results are better in the matrimonial or small value commercial matters, where cases and successes are higher.

Therefore it is the party that has to decide to undertake Mediation, since anyway it is the party (not his/her lawyer or a judge or arbitrator) that would participate and also decide the outcome. Of course, since lawyers are often trusted associates, I would recommend that before finalising the Settlement, you must ask your lawyer whether the outcome in court would decidedly be better. If the Settlement is considered appropriate, the lawyer would help in framing the terms of the Settlement. For these services, the lawyer should be suitably compensated (there is little precedent, so it is discretionary).

The better alternative for a party in a case that is of some importance, is to appoint a private Mediator. Even if the case is in court, the judge would allow, as long as both parties agree. The Mediators offering private Mediation are less in number, but are skilled, dedicated Mediators.

Last, for the future, please put a clause as an add-on within your dispute resolution sections, in all your agreements and contracts, as follows:

'In case of a dispute arising out of any or all the terms of this Agreement/Contract, the Parties agree to first undertake Mediation (for a period of upto 90 days) before proceeding with any other form of resolution of their dispute. The Mediator would be jointly agreed upon by the Parties.'

End your frustration. Take control of your dispute.

Move ahead positively for Mediation - towards a mediated Settlement.