Authored by - Mr. Aditya Mathur
Designation - Founding Partner, MediateGuru
MEDIATION
In this form of ADR, there exists a neutral third party known as the mediator who ensures that an amicable flow of conversation takes place between the parties and the mediator focuses on understanding the dispute on a deeper level in order to present the parties with solutions. This is a voluntary form of dispute resolution and the parties can opt out of it in case they feel that they are unable to reach at a decision. This form of dispute resolution is completely controlled by the parties. In case the parties are not satisfied with the solution presented to them then they can choose not to adhere to the final decision of the mediator. But in case they do adhere to the decision, they must sign an agreement to ensure compliance with the decision; giving it the affect of an arbitral award.
ADVANTAGES OF MEDIATION:
· The mediator allows for the parties to come up with a settlement on their own and hence greater party autonomy exists.
· The parties have to adhere to the settlement only if they agree to it and the agreement becomes binding once an agreement is signed consenting to such settlement.
· Mediation entails private meeting known as private caucus which allows parties to maintain confidentiality while allowing the mediator to know complete information in order to suggest a suitable solution.
· Maintains amicable relations between the parties
· Mediation resolves the dispute quickly.
DISADVANTAGES OF MEDIATION:
· There is no assurance that the mediation process will resolve the dispute since it is up to the parties to agree to a settlement.
· There is a lack of formal procedure in mediation which can become a hurdle for disputed parties to reach a consensus.
· The outcome of dispute resolution is dependent upon the will of the parties and not the legality of issues.
· Not all issues of dispute will surface into discussion during mediation.
· Since it involves the parties talking and negotiating amongst each other to resolve the dispute, it is not suitable when the relations between the parties are in a condition where they are unable to have a conversation.
As we can conclude from the difference above their exist certain similarities between the judicial process and Arbitration, however the Mediation technique is quite different from the conventional method, now let us learn how mediation differs from other mechanisms of Alternative dispute redressal techniques.