What is Mediation And Its Role ?

Written by: Ms. Saniya Jaisinghani

Mediation is an increasingly important part of legal practice with the institution of alternative dispute resolution in our legal systems. Lawyers need to adjust their practice to serve their clients according to changing environment. However, Alternate Dispute Resolution includes no of processes; Arbitration, Negotiation, Conciliation, Mediation.

The lawyers approached mediation to achieve resolution to a dispute. Lawyers influences the process and success of mediation. Lawyers participation in ADR and mediation is increasing part of legal practice. Infact Government at all levels aim tonshift legal culture from one of the alternative dispute resolution to conciliation utilising the full benefits of ADR process. Lawyers have to advice and assist the clients with the filing of genuine steps and failure to do so may cause lawyers personally to cost orders. As we know that there are a no of ethical requirements in the legal conduct rules that affect lawyer’s conduct in mediation. It must be done with honesty, courtesy, competence, loyalty and confidence. Lawyers should conduct themselves in mediation rather misleading them. They must consider that how best they represent a client in the process and continuing professional education may assist them to do so.

Lawyers must consider whether their presence at mediation is necessary to safeguard the interest of client. Timing is an important factor in establishing a framework to settlement and the mindset of the parties. Lawyers are encouraged to participate in the widest problem solving tasks of facilitating mediation. The main objective of mediation is to protect the legal rights and entitlement of the parties, to reduce the chance of ‘settling for less’ in mediation. Mediation is a procedure in which the parties discuss the dispute with the assistance of a impartial third persons which assist them in settlement. Mediator is a person with patience and commonsense.

Benefits of Mediation :

· The cost of mediation is less than average cost in time and money for litigation.

· The mediator’s hourly rate is lower than the hourly rate for an advocate.

· Mediators offer their services in the evenings, weekends and regular weekdays.

· The parties are empowered to resolve their dispute in workable terms to achieve win-win situation.

· Mediation offers a great opportunity to improve case resolution and client satisfaction.

· Mediation offers the opportunity to improve the bottom line by adding a service to the practice.

A facilitative Mediation will progress through different stages :

  1. Initially the mediator will give an opening statement which may or may not be memorized but which will include information. Beginning with his /her training and experience. The mediator fee, signing the agreement to mediate

  2. Problem Determination : During this stage, each party will give an account the facts which lead to dispute.

  3. Generation of options and alternatives : The disputants will identify the areas of settlement.

  4. Clarification and Agreement Writing : The terms of settlement will be written by parties. If legal consultant not present, the parties may elect to have signed and viewed at the later stage.

There is no penalties while failing in settling the dispute in mediation.

If the parties fail to settle then the case will be filed in the administration agency or court of competent jurisdiction or set aside.

Qualifications :

Administrative agencies and Dispute resolution companies require mediators to have a minimum 20-40 hours of general mediation training, a designated amount of mediation experience.

Applicants must submit proof of completion of training, education, experience and letters of reference from persons who have to use the services evaluated them as a co-mediator or can attest to their character.

But most forums prefer to train their mediators or to certify various companies or college programs for training. Mediation training received from a non-certified or approved entity is held to be in high scrutiny.

In most of the states, a law degree is not required to be a mediator. But those states which allows Non-lawyers to be mediator have more experience. Four to six hours of training in understanding the system of judicial is requirement for the Non-lawyer.

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