What is Mediation

‘Mediation’ means the process by which a Mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by facilitating discussion between parties directly or by communicating with each other through the Mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties own responsibility for making decisions which affect them.

Mediation has been defined in the Cambridge Dictionary as "the process of talking to two separate people or groups involved in a disagreement to try to help them to agree or find a solution to their problems."

Black's Law Dictionary has defined Mediation as "A method of non- binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution."

It has been rightly said by Joseph Grynbaum "An ounce of mediation is worth a pound of arbitration and a ton of litigation."

It has been rightly quoted by Abraham Lincoln, "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."

Commercial mediation in India was given life in 1996 when the Indian parliament amended the Civil Procedure Code (CPC) and introduced Section 89, which empowered courts to direct settlement of disputes by mediation amongst other means. This provision governs mediation in the court system in India. The year 1996 also saw the introduction of the Arbitration and Conciliation Act, 1996. The provisions of the Act govern private Mediation (Conciliation) in India.

In India ADR and Mediation Rules, 2003 were drafted after the judgment of the Supreme Court of India in Salem Bar Association vs. Union of India, in which the Supreme Court has requested this committee to prepare draft model rules for Alternative Disputes Resolution (ADR) and also draft rules for mediation under Section 89(2)(d) of the Civil Procedure Code, 1908. Pursuant to the said judgment, we have prepared the following set of draft rules. They are in two parts – the first part consisting of the procedure to be followed by the parties and the Court in the matter of choosing the particular method of ADR. The second part consists of draft rules of mediation under section 89(2)(d) of the Code of Civil Procedure, 1908.

Other legislation that covers mediation is the Commercial Courts Act, 2015, whereby it is mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 (the PIMS Rules) have been framed by the government under the Act.

Rule 2 (f): "Mediation" means a process undertaken by a Mediator to resolve, reconcile and settle a commercial dispute between the parties thereto.