The justice delivery system in India is known for the huge pendency of cases resulting in undue delay. And ‘justice delayed is justice denied’. The way forward to reduce the burden may be taking recourse to ADR mechanism – commonly understood to be Alternative Dispute Resolution, but more recently as Appropriate Dispute Resolution. These mechanisms could be adversarial like arbitration or non-adversarial like mediation and conciliation. The Code of Civil Procedure (Amendment) Act of 1999 inserted Section 89 in the Code of Civil procedure 1908, providing for reference of cases pending in the courts to the various ADR mechanisms specified therein. 

Non-adversarial ADR mechanisms like mediation are less formal, people-friendly, less complicated and allow the disputant parties to freely interact and communicate with each other to understand the root cause of their conflict, identifying their underlying interests, and helps them focus on finding out the solution themselves. Such an approach rebuilds relationships as also saves the time and money of both the parties would spend in litigation. While there is no stand-alone statute on mediation, the Supreme Court has examined in Salem Advocate Bar Association v. Union of India the meaning and scope of mediation, and has formulated the Model Civil Procedure Mediation Rules to be framed by the High Court.

Brief Concept Of Mediation: 

According to Black’s Law Dictionary, “Mediation is a method of non-binding dispute resolution involving a neutral third-party who tries to help the disputing parties reach a neutrally agreeable solution.” 

Mediation is a voluntary, party-centered, non-binding, confidential, and structured process, where a rational and neutral third party, who possesses special communication, negotiation, social and interactive skills to facilitate a mutual settlement between the disputant parties. In mediation, the parties settle their disputes themselves on mutually agreed terms, leading to a win-win situation. The approach in mediation is not to see the guilt or innocence of the disputant parties, but to help the parties to focus on their interests and priorities. Mediation promotes active and direct participation of the parties. The function of the mediator is mainly that of a facilitator. Mediation is a confidential process and whatever transpires in the mediation is not subject to disclosure without the written consent of all the disputant-parties. Mediation is a people-friendly, effective, efficient, less expensive, time saving, less stressful and convenient process to resolve disputes with mutual discussion.

Fundamental Rules Of Mediation Are As Follows: 

1.  A neutral mediator to conduct the mediation: 

A mediator should always be neutral, having no personal or monetary interest in the dispute, or in either party. 

2.  Self-determination of the parties: 

Mediation is a process that is based on the self-determination of disputant parties that is to say that the parties can make free choices keeping their interest in mind. The mediator is thus responsible to conduct the process whereas the parties determine the outcome of the settlement.

3.  Confidentiality:

The very essence of mediation is its confidentiality. The mediator should take note:

• That she/he and the parties shall maintain confidentiality in all the matters relating to the mediation proceedings. The confidentiality shall extend to the settlement agreement, unless there is a necessity for the disclosure in order to implement and enforce it. 
• That it is not legally permissible for him/her, unless otherwise agreed to by the parties, to act as an arbitrator or witness in any arbitral or judicial proceeding with respect to the dispute which is the subject matter of mediation proceedings and the parties are also not allowed to introduce such evidence.

4.  Fairness of process: 

The mediation process should be a fair one. The parties should be treated fairly and not arbitrarily and that their concerns should be addressed properly.

5.  Voluntary process: 

The mediation process is impossible without the consent of the parties involved. The parties are bound once they sign the settlement arrived at during mediation.

Approach Of The Mediator:

• The mediator is an essential ingredient of a successful mediation. Mediator must be neutral, and must be able to understand the underlying issues arising in conflict between the parties to assist them in arriving at a mutual and voluntary agreement. A mediator should endeavour to establish a channel between the disputant parties and facilitate the communication process between the parties and during this process the mediator should use language that is mutually applicable. The mediator should use simple words so that both the parties can easily comprehend. As the mediator controls the process, he/she should insist on decorum and order should the parties develop any heated argument or starts losing their temper.
• Unlike litigation or arbitration, it is permissible for a mediator to speak to either party in a private session. The mediator can choose to conduct the various stages of mediation listed above in private sessions as well as in joint sessions as per requirement.
• It may also be emphasized that every kind of case is not suitable or appropriate for mediation Cases involving, for instance, questions of Constitutional Law and heinous crimes which cannot be mediated. Mediation is more appropriate for cases relating to matrimonial disputes, custody and maintenance disputes, contractual breach, real estate disputes etc. Also, a case must be ‘ripe’ for the parties to have a consensual mindset to reach a settlement. Certain cases can therefore be more appropriately resolved through litigation or arbitration and certain kinds through mediation.
• In order to take mediation ahead and use it in the best possible manner, it is imperative to spread its awareness amongst the public. More crucially, those engaged in mediation must acquire mediation skills in a scientific and structures manner. Law students must be exposed to mediation skills training at the University level itself. Lawyers or other professionals who wish to mediate must undergo continuing professional development courses to improve their mediation skills. It is only if those from a legal background have a crystal clear knowledge about mediation that they can inform and guide their client to avail of the benefits of mediation. Many relationships can be saved through mediation and also the burden of cases upon the Courts will reduce. Encouraging, mediation as an Appropriate Dispute Resolution mechanism may be the way forward for ensuring speedy delivery of justice.