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COMPARATIVE STUDY OF MEDIATION AS A SYSTEM DISPUTE RESOLUTION AROUND THE WORLD

Written by: Ms. Shalini Gupta, Student, Galgotias University, Greater Noida


INTRODUCTION

Dispute resolution means a number of processes used to resolve the dispute or conflict between two or more people. Dispute resolution process is of two types i.e. traditional methods and modern methods. Traditional method includes resolving the disputes in the Courts. It is the most common form of dispute resolution system. This process is generally a time taken process as courts are overloaded with lots of cases and the judges did not give time for every case as number of cases towards the number of judges is very high. Modern methods include alternate dispute resolution i.e. mediation, arbitration, conciliation, negotiation and Lok Adalat. In this article, we will study about mediation of three different countries.

MEDIATION

Mediation is one of the alternate dispute resolution system where a mediator is appointed either by the Court on the consent of the parties itself to settle the dispute by way of compromise or negotiation of their differences. As a rule, judges are deeply convinced that their mission is not only to resolve disputes, but also to push the parties to take on greater responsibility for solving their problems.[1] The person who is acting as a mediator is mutually selected impartial and neutral person who aid the parties to arrive at a conclusion. Mediation leaves the power of decision totally on the parties. The mediator does not decide what is ‘fair’ or ‘right’, does not assess blame nor render an opinion on the merits or chances of success if the case were litigated.[2] This process is generally inexpensive as cost of the mediation is divided among both the parties and it is procedurally simple than the formal litigation. Mediation allows for flexible solutions and settlements. In mediation, the meeting of both the parties with the mediator is held at a mutually agreeable place. Parties to a mediator may or may not be represented by their counsel.

MEDIATION IN INDIA

Mediation process has been prevalent in India since the 17th Century.[3] In older times, India followed the adversarial system in courts. Due to the over burden of the cases, mediation has been started so that there will be expedient disposal of the cases. In last few years, it has begun familiar to the lawyers. Commercial mediation has given identity in 1996 when the Parliament of India amended the Civil Procedure Code and introduced Section 89 which empowered courts to direct settlement of disputes by mediation among other means.[4] In mediation, the agreement may or may not be there. If there is agreement, the result of the mediation is binding upon the parties otherwise it is not binding. There are no complex procedure or rules which should be followed. There are two enactments which deal with mediation in India i.e. Civil Procedure Code and Arbitration and Conciliation Act. As per rule 4 of the Mediation and Conciliation rules, 2004, the mediators should be:

i) Retired judge of Supreme Court of India;

ii) Retired judge of high Court;

iii) Retired District and Session judges;

iv) Legal practitioners of Supreme court, High Court or District Courts with at least ten years of experience.

v) Experts or other professionals with at least fifteen years of experience.

vi) Persons who are themselves experts in mediation / conciliation.

Stages of the mediation:


1. Introduction: Firstly, the mediator will start with his opening statement in which he will introduce himself to the parties. Then the parties will introduce themselves to the mediator. Then the administrative related matters will be discussed such as the mediators fee; signing the Agreement to Mediate if not done in the initial contact phase; confidentiality of the proceedings; and the opportunity for subsequent review by counsel of any agreement.[5] Then the schedule for the meeting will be discussed. While giving the introduction of the mediator, he will also encourage the parties towards the effort of settlement and full disclosure of the facts to the mediator so that the mediator can try to resolve the dispute.

2. Determination of dispute: During this stage, both the parties will narrate the facts and circumstances which lead to the dispute.

3. Identification of settlement, options or alternatives: During this stage, the parties either jointly or separately think and discuss about the areas of the settlement with the mediator. Then the mediator will encourage the options if there is any after summarizing the conclusion from the meeting. Negotiations and decisions will continue till the final decision of the case.

4. Agreement: The terms of the settlement if there is any will be in written by the parties itself. If the mediator and the parties fails to arrive at a conclusion then the parties may start with the dispute in the court.

MEDIATION IN UNITED STATES OF AMERICA

The formal use of mediation in the US is linked to the labor unrest that occurred during the 1800s and early 1900s.[6] At that time, workers were demanding higher wages and proper working conditions but the companies resisted for this. Then for resolving this matter, mediation process was used primarily. In USA, mediation is common in civil and administrative agency matters. Mediation is widely relied upon to ease the burden on the courts and as a means to more cost-effectively resolve disputes between the parties than litigation. Therefore, in USA also, the mediation process is used so that the burden on the Courts shall be reduced. Dates for mediation proceedings is limited, therefore, in most of the cases there is no outcome of the mediation. The Office of Dispute Resolution of The United States Department of Justice on the Use and Benefits of Alternative Dispute Resolution in its Fiscal Year 2016 Report found a 75 per cent and 52 per cent resolution rate in voluntary ADR proceedings and court-ordered proceedings, respectively.[7] There are several bodies for mediators in the United States such as the American Arbitration Association, the Federal Mediation and Conciliation Service, the Nation Mediation Board, the Civil Mediation Council, the Chartered Institute of Arbitrators, the US Institute of Peace, the United Nations Department of Political Affairs and the Judicial Arbitration and Mediation Services. In USA, states have created their own qualifications for appointing mediators.

MEDIATION IN CHINA

There are no proper rules on mediation in China. Article 35 of the law of Civil Procedure of People’s republic of China states that ‘when handling civil cases, courts of law should based on the consent of the litigants, mediate the case on merits.[8]There are four types of mediation in China. They are:

1. Court-connected mediation: In this type of mediation, mediation is conducted in between the lawsuit by the judge in civil proceedings. The mediation is the part of the lawsuit only. The outcome of the mediation proceeding can be enforced by the court.

2. People’s mediation: It is the mediation of community residents. The people’s mediation law enacted in 2010 is the only law in China that specifically targets mediation. People’s mediation mainly refers to mediation by the people’s mediation committees set up in community self-governing organizations which does not charge fees.[9] It is for public welfare and does not include commercial mediation.

3. Profession/industry mediation: This mediation is provided to a specific field of profession.

4. Lawyer mediation: It is initiated by the group of lawyers.

5. Administrative mediation: It is conducted by an administrative organ.

PROBLEMS IN IMPLEMENTING MEDIATION PROCEEDINGS

In the modern times, the process of mediation is growing rapidly with the increased number of cases. It resolves the dispute very quickly. It brings amicable solutions to the dispute as its solution is not an outcome of legal proceeding. Still there are challenges which are found in the mediation proceedings. It is necessary that parties must have a commitment to resolve the dispute. Firstly, the parties do not know about the advantages of mediation, so they do not opt for mediation proceeding. People living in rural areas does not know about the mediation proceedings. There is lack of awareness among the people of rural areas. The concept of neutrality and impartiality are essential elements of the mediation process and these terms are often used interchangeably in mediation agreements. The conventional ideology about mediation is that the Mediators are expected to be completely neutral despite of the human nature being inherently judgmental.[10] Sometimes the mediator do not act as a neutral person due to the lack of skill, using judgemental language, mediator’s bad behaviour, promoting only one party and taking his side and unequal opportunities which gives rise to biasness among the parties.

CONCLUSION

Mediation as a dispute resolving mechanism is practiced in various countries across the world. There are different process of mediation in different countries but the purpose is same that is to resolve the dispute without approaching to the Courts. It is necessary for every country to provide for mediation trainers and if, necessary, deny for the certification of training if the candidate is not capable of taking the counselling sessions properly.

REFERENCES


[1] Vasily Ivanovich Vlasov, comparative analysis of judicial procedures & the judicial settlement of conflicts, EDIRC, https://www.ersj.eu/dmdocuments/2017-xx-3-b-34.pdf. [2] JAMS Mediation services, Mediation defined: what is mediation, https://www.jamsadr.com/mediation-defined/. [3] Riyanka Roy, Mediation tradition in Asia and legal framework in India & other countries, RESEARCH GATE (June, 2013), https://www.researchgate.net/publication/311900251_MEDIATION_TRADITION_IN_ASIA_AND_LEGAL_FRAMEWORK_IN_INDIA_CHINA_AND_OTHER_ASIAN_COUNTRIES_IN_COMPARISON_WITH_US_AND_EU_LEGAL_REGULATIONS_RIYANKA_ROY_CHOUDHURY_NAMAN_KAMDAR. [4] The Mediation Chambers, Mediation in India, LEXOLOGY (Sept 9, 2019), https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76. [5] What is mediation & how does it works, FINDLAW ATTORNEY WRITERS (May 24, 2016), https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html. [6] Judith A. Saul, THE LEGAL AND CULTURAL ROOTS OF MEDIATION IN THE UNITED STATES, https://poseidon01.ssrn.com/delivery.php?ID=636105110097095068001017116115074108005045006058036003100115029070126074024096101089061030040044008109118026104003108025077070020059035013080126076117026065007092096039050008025122117067120074103064099018006114117066080096068100097002008068065126123094&EXT=pdf. [7] The Mediation Chambers, Mediation in India, LEXOLOGY (Sept 9, 2019), https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76. [8] Riyanka Roy, Mediation tradition in Asia and legal framework in India & other countries, RESEARCH GATE (June, 2013), https://www.researchgate.net/publication/311900251_MEDIATION_TRADITION_IN_ASIA_AND_LEGAL_FRAMEWORK_IN_INDIA_CHINA_AND_OTHER_ASIAN_COUNTRIES_IN_COMPARISON_WITH_US_AND_EU_LEGAL_REGULATIONS_RIYANKA_ROY_CHOUDHURY_NAMAN_KAMDAR. [9] Huang Yanling, Mediation in China: Past & present, China Justice Observer (Aug 11, 2019), https://www.chinajusticeobserver.com/a/mediation-in-china-past-and-present. [10] Obstacles in mediation implementation, SHODHGANGA, https://shodhganga.inflibnet.ac.in/bitstream/10603/44117/11/11_chapter%205.pdf.

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