Mediation: Meaning, Definitions, Types, Process and Stages of Mediation in ADR
Mediation in Alternative Dispute Resolution ( ADR )
This Article Includes
- Mediation in Alternative Dispute Resolution ( ADR )
- Types of Mediations / Kinds of Mediations
- Process of Mediation / Steps in Mediation
- Characteristics of Mediation
- Disadvantages of Mediation
Literally, the expression “Mediation” means the act of a third party relating to the settling of a dispute between to contending parties.
In other words, Mediation is an informal process under which the contending parties elaborate, deliberate and discuss their disputed matter in the presence of an impartial person, who is supposed to be a neutral person, who assists the disputing parties in resolving the matter.
Mediation is a purely voluntary mechanism and any resolution must be acceptable and agreed upon by all the disputant parties to the mediation.
According to Folberg & Taylor, Mediation is a process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.
Mediation is typically limited to civil cases, although some non-violent criminal acts may be resolved through mediation.
Mediations are commonly ordered in the context of family, small claims, housing and sometimes in criminal courts.
Types of Mediations / Kinds of Mediations
1. Private Mediation
In private mediation, both parties agree to participate and the parties must agree on mediation.
Picking the right mediator is a key decision and can affect whether the mediation will be successful or not. While using private mediation, it can be scheduled at the convenience of the parties, but there is a cost for the mediator.
When using private mediation, each party shall pay half of the cost of mediation to ensure that the parties are financially involved in the process and want to work towards a resolution.
2. Court-Ordered Mediation (Section 89 of Civil Procedure Code, 1908)
The court may order mediation when the parties are appearing without attorneys or cannot afford private mediation.
Similar to private mediation, the court-ordered mediation is still with a neutral third party mediator and the goal is still that both the parties will come to an agreement. However, in court-ordered mediation, the parties will be given a date and time to go and the mediator is not someone that you choose but rather someone that is randomly drawn from the court’s own list.
Court-ordered mediation is free of charge for parties.
Process of Mediation / Steps in Mediation
There are six stages in the process of mediation.
1. Mediator’s Opening Statement
Whether by private mediation or court referred mediation commencement is typically marked by an opening statement of the mediator. It is important for establishing a relationship that will facilitate the rest of the mediation process.
A mediator must provide initial structuring, gain the participant’s trust and cooperation by highlighting the advantages of mediation.
Even if the parties have participated in mediations before, it is not advisable to skip the opening statement to educate parties about the mediation because it helps in inviting trust and comfort with the process and the mediator.
The mediator’s opening statement should be clear and concise. A mediator should try to avoid using jargons and legal terms. Even if the parties are represented through advocates, it is always good to directly talk to the parties.
2. Disputant’s Opening Statement
It is the time for the parties to begin. Each party will be provided with equal time to talk and the choice of who speaks first is left to the parties, although normally the person who initiates the dispute will speak first.
This stage is also called “ventilation” as the parties locked in bitter dispute, is likely to furiously air his/her grievances. The mediator should calm things down and request the parties to not to lose their temper while making an opening statement.
The opening stage provides a time for parties to fully express and explain to the mediator, and more importantly to each other, how they view disputes in their own words. They should be given enough time to explain their problems properly.
The mediator then identifies and summarize the issues as the parties have put them forth.
3. Joint Session
After all the participants or their representatives have presented their views through the opening statement. At this point, the mediator may try to lead the disputants to joint discussion and get them talking in his presence.
This phase may come before or after the separate meeting between a party and mediator.
Generally, the mediator has a tough time during this phase as the parties are likely to engage in bitter conversations and counter accusations. He has to ensure that parties engage in constructive talks.
4. Caucus or Separate Session
The need for the caucus or separate meeting between the mediator and party may arise in certain situations. It involves private discussions about issues, interests, and options for resolution.
The call for caucus has to come from the mediator in a scenario when parties have reached an impasse. Speaking privately to the parties will allow the mediator to discuss issues that the parties may be uncomfortable talking in front of each other.
The mediator shall never disclose such private conversations to the other party unless the disclosing party has authorized the mediator to do so.
BATNA: Best Alternative to a negotiated agreement.
WATNA: Worst Alternative to a negotiated agreement.
The mediator is able to discover BATNA and WATNA of the parties, and therefore have to act accordingly.
5. Final Negotiation and Deal Making
Mediator tries to reduce the scope of substantive and procedural differences between the parties, so as to move towards a formal agreement leading to the termination of conflict.
Final and last joint meeting between the parties in the presence of the mediator.
If the dispute isn’t resolved or parties did not come to an agreement, they may take realistic decision to discontinue mediation and settle in their dispute in another forum like a court.
A process that initiated finally comes to an end. Mediation terminates in a number of circumstances. It terminates when the parties have resolved all their issues, or when they have resolved some of their issues and decided to take rest in the court, etc. It may come to an end when a party simply walks out saying that he/she does not want to continue. Hence, closure envisages both successful and unsuccessful outcomes.
The process finally comes to an end on a positive note with the mediator concluding address in which he thanks the party for their time and effort at the mediation.
Characteristics of Mediation
- Flexible and Speedy
- No Records: No record is maintained other than the copy of the resolution agreement
- Private process
- Exclusion of Liability
Disadvantages of Mediation
- Mediation does not always result in a settled agreement.
- Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts.
- Legal precedent cannot be sent in mediation.
- Mediation has no formal discovery process.
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