Acknowledgement This report would not have been completed successfully without the able guidance of incharge of mediation center Mr. Vijay Kumar Singh who helped and guided me throughout this report and also supported me in all the falls I came across in making this report of internship at mediation center. I am very thankful to Vijay Sir for his help and allowing me to do intern in mediation center . I would also like to thank my parents and staff of mediation center who gave me their valuable support in all the ups and downs in the making of my report and research for the same . Thanking you,
Your’s faithfully, PRASHANT KUMAR UPES, DEHRADUN
Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A Mediator uses special negotiation and communication techniques to help the parties to come to a settlement. The parties can appoint a Mediator with their mutual consent or a mediator can be appointed by the Court in a pending litigation. Mediation always leaves the decision making power with the parties. A Mediator does not decide what is fair o r right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.
Mediation is a non-adversarial process for resolving disputes. The mediators assist participants to focus on the real issues of the dispute, clarify misunderstandings, explore solutions, and negotiate a settlement. Almost any sort of dispute can be mediated, if both parties agree to discuss the issues. A good example is parents who are divorcing and who want to discuss a parenting plan for their children .
The concept of mediation is ancient and deep rooted in our country. In olden days disputes used to be resolved in a panchayat at the community level. Panches used to be called Panch Parmeshwar. Now we have grown into a country of 125 crore people and with liberalization and globalization, there is tremendous economic growth. All this has led to explosion of litigation in our country. Though our judicial system is one of the best in the world and is highly respected, but there is lot of criticism on account of long delays in the resolution of disputes in a court of law. Now an honest litigant is wary of approaching the court for a decision of his dispute. Hence, we have turned to Alternative Dispute Resolution mechanisms.
Mainly mediation was firstly seen in U.S.A.
In India the legislature by the Code of Civil Procedure (Amendment) Act, 1999, amended section 89 of the CPC with effect from 1.7.2002 whereby mediation was envisaged as one of the modes of settlement of disputes. The amendment in section 8 9 was made on the recommendation of the Law Commission of India and the Justice Malimath Committee. It was recommended by the Law Commission that the court may require attendance of parties to the suit or proceeding to appear in person with a view to arrive at an amicable settlement of the dispute between them and make an attempt to settle the dispute amicably. Justice Malimath Committee recommended making it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation o r judicial settlement through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternative dispute resolution methods that the suit could proceed further. Thus section 89 has been introduced to promote alternative methods of dispute resolution.
Mediation is first and foremost a non-binding procedure. This means that, even though parties have agreed to submit a dispute to mediation, they are not obliged to continue with the mediation process after the first meeting. In this sense, the parties remain always in control of a mediation. The continuation of the process depends on their continuing acceptance of it. The non-binding nature of mediation means also that a decision cannot be imposed on the parties. In order for any settlement to be concluded, the parties must voluntarily agree to accept it. Unlike a judge or an arbitrator, therefore, the mediator is not a decision-maker. The role of the mediator is rather to assist the parties in reaching their own decision on a settlement of the dispute.
The mediator endeavors to facilitate communication between the parties and to help each side to understand the other's perspective, position and interests in relation to the dispute.
The mediator provides a non-binding assessment or evaluation of the dispute, which the parties are then free to accept or reject as the settlement of the dispute.
It is up to the parties to decide which of these two models of mediation they wish to follow.
Mediation is a confidential procedure. Confidentiality serves to encourage frankness and openness in the process by assuring the parties that any admissions, proposals or offers for settlement will not have any consequences beyond the mediation process. They cannot, as a general rule, be used in subsequent litigation or arbitration.
The working of the mediation centres has revealed that Suits for Injunction, Specific Performance, Suit for Recovery, Labour Mana gement disputes, Motor Accident Claims cases and Matrimonial Disputes have met with a positive result during mediation.
As far as criminal cases are concerned, cases of harassment on account of dowry and cruelty under section 406/498-A IPC and under section 138 of Negotiable Instruments Act are suitable for mediation.
The mediation process itself is structured so that persons unfamiliar with the process will quickly become comfortable. At the mediation session each person has the opportunity to share their side of the story and their thoughts about the situation. The parties then begin to work through the issues they want resolved. The mediator will meet with ev eryone together and may also meet individually with each side. This offers participants the opportunity to com municate to the mediator their real interests in the dispute as well as to vent anger or frustrations outside the presence of the opposing side. The mediator will work with each person until an agreement is reached that is acceptable to everyone. The agreement is put in writing and signed by the people involved, with the advice of their attorneys.
The differences between mediation and arbitration all stem from the fact that, in a mediation, the parties retain responsibility for and control over the dispute and do not transfer decision-making power to the mediator. In concrete terms, this means two things principally:
In an arbitration, the outcome is determined in a ccordance with an objective standard, the applicable law. In a mediation, any outcome is determined by the will of the parties. Thus, in deciding upon an outcome, the parties can take into account a broader range of standards, most notably their respective business interests. Thus, it is often said that
mediation is an interest-based procedure, whereas arbitration is a rights-based procedure. Taking into account business interests also means that the parties can decide the outcome by reference to their future relationship, rather than the result being determined only by reference to their past conduct.
In an arbitration, a party's task is to convince the arbitral tribunal of its case. It addresses its arguments to the tribunal and not to the other side. In a mediation, since the outcome must be accepted by both parties and is not decided by the mediator, a party's task is to convince, or to negotiate with, the other side. It addresses the other side and not the mediator, even though the mediator may be the conduit for communications from one side to the other.
Naturally, in view of these differences, mediation is a more informal procedure than arbitration.
1.
Increased Satisfaction. In post-mediation surveys, parties indicate a very high level of satisfaction with both the process and the results of the process. You can reach an
agreement that is of your own free will, not imposed by a judge or jury. Mediation has a success rate of 85 percent to 95 percent.
2.
Reduced future legal actions. Save time and money. Agreements created by the parties
are more satisfying to the participants and save additional cou rt costs and legal fees.
3.
Your feelings are heard. In a courtroom setting, judges do not hear the emotional
aspects of a case, because the y are concerned with the legal facts. Mediation co nsiders all aspects of the case.
4.
Informal. You may ask or answer questions without "objections".
5.
Avoids time constraints . When in court or negotiating “on the courthouse steps,” the
rush to settle may force parties into agreements they later regret.
6.
Reduced stress and fear. In mediation you are not “cross-examined." You do not have to
get up on the stand and testify. Mediation is conducted in a relaxed atmosphere that enhances the settlement process.
7.
Liability may or may not be acknowledged. Does not set a precedent.
8.
Increased Privacy and Confidentiality . The only record of the process is the agreement
(if one is reached). The mediation session takes place in a private location, unlike court proceedings which are open to the public. The details of your case are not exposed, and there is no public record of the process.
The Agreement to Mediate
Commencement: Request for Mediation
Appointment of the Mediator
Initial Contacts Between the Mediator and the Parties
setting up the first meeting
agreeing any preliminary exchange of documents
First and Subsequent Meetings
agreeing the ground rules of the process
gathering information and identifying issues
exploring the interests of the parties
developing options for settlement
evaluating options
Concluding.
CHARACTERISTIC OF MEDIATION
Mediation is a non-binding procedure controlled b y the parties.
A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.
Mediation is a confidential procedure
In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, und er the Mediation Rules, be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
Mediation is an interest-based procedure
In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In a mediation, the parties can also be guided by their
business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their p ast conduct.
Disputes can be dealt with promptly. It provides an opportunity to address the situation before the problem accelerate. Parties control the outcome of the dispute. It provides a win win situation for both the parties as they play an important role in formulating the terms of the settlement. Improves relationship between disputing parties. Creates a forum where disputes and issues can be heard and addressed by the parties with the help of a neutral third party. It saves money as the disputes are promptly settled or if not settled are referred back to the court immediately.
1. MEDIATION CASE NO. – XXXX/2012 A vs. B CIRCUMSTANCES/MEDIATION – It was a matrimonial case where wife don’t want to live with her husband . Hence, mediators asked them to decide how they want to get divorce and what would be the alimony to be given by husband to her wife. Thus, parties agreed that husband will give her wife 1.25 lakhs rupees as alimony in two installment ,one of Rs 60000 at the time of filing divorce petition in the court with their mutual consent and other of Rs 65000 at the time of final decree. And mediator also told both the parties that after this settlement all the cases between both the parties filed against each other will be cancelled. Hence , this cases was finalized .
2. MEDIATION CASE NO. – XXXX/2012 C vs. D CIRCUMSTANCES/MEDIATION It was a matrimonial case in which wife and husband want to be separated by each other . Both were married on 13-2-2002 and after three month of their marriage they were living separately .Mediator suggested them to live together and then tell what to do after seeing the behavior of each other . But both parties wanted to be separated , thus , mediator asked what they want further and also asked from girl what amount she want as alimony and asked from boy how much he can give . After all these talks both the party agreed to settle the dispute in 5 lakhs rupees which was to be given to wife in two installment one of Rs2.50 lakhs at the time of final settlement and other of`Rs 2.50 lakhs at the time of filing divorce petition before the concerned court . Mediator also told them that they have to file divorce petition with mutual consent after which all the cases filed by either of them will be cancelled and hence they would be separated from each .
Hence, the case was finalized.
3. MEDIATION CASE NO. – XXXX/2012 E vs. F CIRCUMSTANCES/MEDIATIONIt was a matrimonial cases in which wife don’t want to live with her husband because of his bad behavior .Both were married on 5-5-2005 and were separated from 2008. But husband want her to take back. Mediator asked wife is she willing to go with him or not , wife said that she will go but if her husband agree not to do anything wrong with her . Hence mediator suggested both the party to live with each other for few days and come back in mediation center after experiencing each other behavior and then to decide what they want to do further. Hence , parties agreed .Hence , they were given date of 18-5-2012 to come back . Hence , when th they came back on 18 may 2012 every thing was normal and both were very happy with each other . Thus, both want to live together with each other . Hence , the cases was finalized.
4. MEDIATION CASE NO.-0465/2012 G vs. H CIRCUMSTANCES/MEDIATIONIt was a matrimonial case of a muslim husband and wife .Both were married on 273-2011 .Wife don’t want to live with her husband because he is torture her and is not caring about her . Hence, in previous interim settlement it was decided that husband will give her wife 5 lakhs 50 thousand rupees till this date but husband failed to bring DD of full amount due to bad financial condition , instead of agreed amount he bought 4 lakh rupees DD. Mediator asked wife is she ready to accept it or not. Wife’s father and chacha was not ready to take this amount . Mediator asked husband to give remaining amount as wife side was not ready and they want
mediation to be failed . Husband said that he will give further remaing amount but he needs 6 month time. Hence, mediator suggested wife’s side to give 3 month time to husband to pay remaining amount and also asked them to file mutual divorce petition in this time period. Hence parties agreed . Hence,final settlement was made that the husband has given 4 lakh rupees DD on 19-5-12 with a post dated check of 1.5 lakhs rupees . And was agreed to give 1.5lakhs DD on 18 -7-12 when both the parties will file mutual divorce petition in family court,meerut. And the check which is given today was to be returned to husband by wife when he give her DD of remaining amount was agreed by wife. Thus , the case was finalized and all other cases were cancelled against each other filed by either of the parties.
5.MEDIATION CASE NO .-XXXX/2012
I vs. J CIRCUMSTANCES/MEDIATIONIt was a matrimonial case in which husband beats her wife and send her out of his house . So,wife leaved her and came to her father’s house . And wanted to leave her husband . But husband wants to take her back. Mediators suggested both the parties to go together and live together for some day and observe each other and see if there is possibility to continue living with each other then come in mediation center in next date and tell otherwise then give any other way with they want .Both the parties agreed and the date was given i.e. 8-7-2012 at 11 a.m. .
6.MEDIATION CASE NO. – 1040/2012 K vs. L
CIRCUMSTANCES /MEDIATIONIt was a matrimonial case in which husband was not coming from two dates . Hence, Mediator called the counsel of husband for inquiry . He informed that his client is not present because of the illness of his father and wants one more date to be present in Mediation. Mediator asked the other party they agreed to give one rd more date hence the date was given i.e. 3 June ,2012.
7. MEDIATION CASE NO.- 1369/212
M vs. N CIRCUMSTANCES/MEDIATIONIt was a matrimonial case in which wife don’t want to live with her husband because he beats him and doesn’t believe her. They were married on 27-09-2009 and were separated on 7-05-2011. Husband was a captain in Indian Army and the wife was Asst. professor in a college at Ghaziabad. The matter was started when husband filed a suit of restitution of conjugal right against her wife. Mediator talked both husband and wife separately and asked what they want , husband said that he want to settle dispute and live with her happily and wife said that she also want to settle dispute but with some condition so that she may feel secure living with her husband . the condition were as she wanted that her name to be written in nd her husband’s property as 2 party and other condition was that she wanted that her husband shall open a joint account in which he save his 50% salary for his wife so that she may feel secure . Firstly husband was not ready but after long discussion with her wife separately and with mediator both the parties agreed to live together with each other for one month and during this time period husband will fulfill all the condition of her wife . Thus, the next date was given i.e. 15 -072012.
8 . MEDIATION CASE NO.-1403/2012
O vs.P CIRCUMSTANCES/MEDIATIONIt was a matrimonial case in which wife wanted to leave her husband because he beats her and leave her out of his house and also doesn’t give any amount to her for her use . They were married in 2008 and were separated from each other since 2 years . they had a child of 1.5 years .Mediation held separate session and asked husband what he wants he told that he want to take her back and also told that wife’s parents always say negative thing about him . So, he want that they do not come to his house . Husband agreed that he beats her wife and he also told that wife was having a child of six month after her marriage of 3 month which is not possible then also he accepted her . On asking to wife she said that she will go back only if husband will give her money and stop beating her . Mediator suggested wife to go with her husband and live for him till one month and she his behavior and come back in next date and tell how she spent her time. Both the parties agreed to live together and observe each other behavior. Further husband kept two condition that when he goes for vidai of her wife on 27-05-2012 , no one should comment on him and no one should fight with him. Hence it was agreed by wife and the date was given i.e.17-07-2012.
9.MEDIATION CASE NO. -3361/2011 Q vs. R CIRCUMSTANCES/MEDIATION – It was a matrimonial case in which husband and wife were living together since 7 month which was decided in previous interim . In this date husband was present but wife doesn’t came . Husband told that his wife is happy and not willing to
come here . So, he requested next date to be given for final settlement . Mediator accepted and given date i.e. 4-07-2012.
10.MEDIATION CASE NO. – 1214/2012 S vs. T CIRCUMSTANCES/MEDIATIONIt was a matrimonial case in which wife doesn’t wanted to live with her husband. Hence, further date was given to decide and to be present today i.e.23-05-2012. Wife’s father was present .But the husband was not present , his counsel was their who said that husband was not present due to some departmental training in Dehradun . Thus, he wants one more date . But wife’s father said that husband tried to break the settlement of her younger daughter and also always give them damki etc. Hence, wife’s father doesn’t want further mediation . Thus, mediator failed the medition and sent case back to the concerned court.
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The mediation process of AHCMCC is beneficial as it is a court annexed mediation . In court annexed mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against court referred mediation, wherein the court merely refers the matter to the mediator. When a judge refers a case to the court annexed mediation service , keeping overall supervision on the process, no one feels that the system parts with the case. The same lawyers who appears in a case retain their briefs and continue to represent their clients before the mediators within appear in a case retain their briefs and continue to represent their clients before the mediators within same set-up. The litigant feels that they are given an opportunity to play their own participatory role in the resolution of disputes . This also give a larger public acceptance for the process as the sane time tested court system , which has acquired public confidence because of integrity an impartiality, retains its control and provides an additional service . It ensures the feeling that mediation of the case between the court and the mediator faster and purposeful. Again , it facilitates reference of some issuses to the mediation leaving others for trail in appropriate cases. Court annexed mediation gives feeling that court’s own interest in reducing its case load to manageable level is furthered by the mediation. Court annexed mediation thus provides additional tool by the same system providing continuity to the process, and above all, court remains a central institution for the system. This also establishes a public private partnership between the court and the community . A popular feeling that court works hand in hand with mediation facility produces satisfactory and faster settlements.
1.
Mediators should not be rude as I saw that in some cases mediators get annoyed and become rude.
2.
Counsel should be kept away from the mediation as they sometime stop parties to think freely and decide their own benefits just because if the parties will compromise they will lose their cases and that will stop their earning.
