Frequently Asked Questions.
What is Mediation?
Mediation, in simple words, can be understood as assisted negotiation. It is a flexible and confidential process used to resolve disputes between two or more people, businesses, or other organisations. usually facilitated by a professionally trained neutral person called the Mediator. Mediation is recognised under various laws of India including the Civil Procedure Code, the Consumer Protection Act, the Commercial Courts Act and the Companies Act , amongst others . Mediation offers great benefits in resolving conflicts as compared to any other form of dispute resolution. Mediation today is at least 90% less expensive than litigation in courts. In many cases, it provides resolution within a day and in complex cases in 3 to 6 months, subject to the availability of the parties, Mediation boasts a high resolution rate globally and over 80% resolution rate at CAMP .
Mediation offers several advantages as compared to any other form of dispute resolution. It is significantly less expensive and faster than any other type of dispute resolution. With pendency in courts exceeding 500 lakh cases, Mediation provides resolution in general within 3 to 6 months. Mediation provides a safe environment to engage in a constructive, interest based negotiation where parties are in control of designing solutions that are best suited to them. Mediation offers strict confidentiality allowing parties to share confidential information that greatly adds in the negotiation.
In what type of disputes can Mediation be used?
Mediation can be used to resolve almost all types of civil and commercial disputes, including:
- professional negligence
- breach of contract
- loan / debt recovery or credit card related
- all types of consumer disputes
- all types family conflicts relating to marriage, guardianship probate, distribution of assets
- family business related disputes
- neighbor disputes
- landlord, tenant, construction and related
- real Estate disputes
- joint venture
- founder disputes
- sexual harassments
- Workplace, Employment & Labor disputes
- And even cases of cheating or fraud where monetary compensation is possible and sought for.
How does Mediation work?
Mediation is a structured process that is customized by the Mediator keeping in mind the needs of the parties. The Mediator could design sessions individually with the parties, their lawyers or have joint sessions or adopt a combination of both. Some of the key steps in the process include –
- Reaching out for Mediation – More often than not, one of the parties, called the Initiating Party, reaches out for mediation and suggests mediation to the other party. If the Initiating Party so desires, CAMP would reach out to the other party to suggest mediation
- Mediation Orientation Session to Both Parties – This will involve a brief orientation to both parties and their lawyers (if parties have counsels) to provide information on mediation and the process and get their buy-in.
- Agreement to Mediate – The signing of Agreement to Mediate is the formal step to commence Mediation.
- Pre-Mediation Convening – At this stage the Mediator engages with the parties and lawyers to design a process that will ensure a constructive negotiation. This includes obtaining mediation briefs as well as hosting conference calls to understand who all are required to participate in the mediation. the documentations that must be gathered, the valuations that must be done etc.
- Commencement of Mediation -Perspective Sharing by the parties – Each Party shares their understanding of the situation from their own perspective. This helps the parties understand issues better especially where communication has broken down.
- Issues Identification and exploration of interests – From each party’s perspective issues emerge for deeper understanding and exploration. The legal realities are also understood at this stage.
- Option Generation or Approaches to Problem Solving through Assisted Negotiation – The Mediator facilitates option generation, prioritization of options and negotiation of the options keeping in mind the real needs and interests of the parties as well the alternative of the legal process..
- Conclusion – Finalized options are recorded in writing in the form of a settlement agreement. Once signed by the parties, the settlement agreement is binding and enforceable.
When is the best time to mediate?
Mediation can take place at any of the following stages-
- Before filing a court case. This is termed as pre-litigation mediation.
- Mediation can also be taken up during court proceedings by informing the court that a mediated settlement will be explored or by requesting the judge to refer the matter to mediation.
- Mediation can be taken up post a judgement before any appeal process.
- In case of arbitration proceedings, parties can seek mediation in the midst of arbitration and the arrived settlement can be converted into an Arbitral Award. This is called Arb-Med and widely used in many commercial disputes across borders to speed up resolution.
In general, it is best to try mediation as soon as you can. This will help reduce the amount of time and money spent on the dispute and open a dialogue with the other party before they become too fixed in their position.
If you have already started a court claim and wish to mediate, the court can pause your case to enable you to do so. The judge will not be told what is discussed or offered at mediation.
Is offering to mediate a sign of weakness?
No. Mediation offers you the opportunity to explore speedy, flexible options for resolutions at much lower costs without damaging your relationships and jeopardising your recourse to court. As the parties are always in control at mediation- . You choose what information can be discussed with the other side, and whether and how to settle and on what terms to settle.
Recent research from the UK shows that Mediation saves business around £5.9 billion a year in wasted management time, legal fees, lost productivity and damaged relationships. Its clearly a strong option to pursue!
How much does mediation cost?
Mediation costs at CAMP depend upon the complexity of the dispute and the hours it takes to arrive at a resolution. You will be explained the costs with full transparency by our case manager when you contact CAMP for mediation.
Who pays for mediation?
Typically, both parties to a mediation share the costs equally. However, one party may elect to pay the full costs.
How long does mediation take?
This depends predominantly on the parties to the dispute. In some cases, both sides may come to an agreement in just a couple of hours or in complex cases it may take more sessions. At CAMP, the most complex cases have taken an average of about 40 to 60 hours spread over 3 to 4 months to successfully reach a settlement.
Can the mediator provide advice and decide on a dispute?
No, a mediator can neither provide advice nor make a decision on the issue in mediation. The mediator will help you understand your interest and needs better, the other sides perspectives, interests and needs, the reality that you face (including the alternative of going to court) and consider different options to resolve the dispute. The mediators role is to facilitate a a constructive conversation aimed at understanding and resolution between you and the other side..
Can I bring other people to the mediation?
The mediator works with the parties to identify the necessary people who must be present in the mediation to provide the necessary perspectives as well as support the parties in reaching a resolution. Therefore, in addition to parties and lawyers, experts and other participants may be brought into the mediation.
What is the role of lawyers in Mediation?
Lawyers play a critical role in Mediation helping both sides to understand the reality of law in respect to their case. Lawyers in mediation play a role that is collaborative and supportive of a resolution while protecting the interests of their client. They also help in drafting the Mediation Settlement Agreement so that is it sustainable, and if need be, enforceable. CAMP encourages and values the role of lawyers in mediation.
How is mediation confidential?
Confidentiality in mediation is protected by law, case law as well as legal agreement for all parties, lawyers, and participants engaged in the process.
At CAMP, everyone participating in Mediation signs a Confidentiality agreement stating that all the issues, concerns, offers and concessions discussed in Mediation are bound by confidentiality and cannot be discussed outside of the Mediation process in any other proceeding or with anyone else.
How does a mediation end and is it enforceable?
A mediation is concluded when both parties either reach a settlement or feel they have no solution that they can work out. When parties reach a settlement, the terms are converted into a ‘settlement agreement’.
Yes, mediation is enforceable. For civil disputes the signed agreement serves as a legally binding contract. The settlement terms may also be converted into a Conciliation Settlement Agreement which, under section 74 of the Arbitration and Conciliation Act 1996, gives the same effect and status as an arbitral award.
If court proceedings have already commenced, settlement terms are converted into an order of the court which is final and non-appealable.
What happens if there isn’t an agreement?
You might have made good progress but not be quite at the position of settlement yet. It can often be helpful to take a break to think things through and then resume mediation. Many parties report a settlement in the weeks/months following an unsuccessful mediation. There is a lot of anecdotal evidence, from mediators and others, that even a mediation which does not achieve a settlement nevertheless may add value in terms of clarifying the issues and, potentially, reducing costs and stress later on if litigation continues 1