Mediation: meaning, the mediator and essential characteristics

1. Definition

Section 3(h) of the Mediation Act, 2023 (in force from 9 October 2023) defines mediation to include a process, whether referred to as mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties. A mediator is a person appointed by the parties or by a mediation service provider to undertake mediation, including a person registered with the Mediation Council (section 3(i)).

Mediation is thus assisted negotiation. It differs from arbitration because the mediator decides nothing, and from conciliation, in the Indian usage, because the mediator ordinarily does not propose terms on the merits.

2. Advantages of mediation

• Party control over the result; nothing is imposed.
• Speed and economy: a few sessions instead of years of trial, and mediation under the Act is to be completed within 120 days, extendable by 60 (section 18).
• Confidentiality: what is said cannot be used later.
• Preservation of relationships, especially in family, neighbourhood, partnership and employment disputes.
• Creative solutions beyond the legal remedy: an apology, a future contract, a visitation schedule.
• Higher compliance, because parties keep agreements they made themselves.
• Settles the whole dispute, including related matters not before the court; the proviso to section 19(1) of the Mediation Act allows terms beyond the disputes referred.
• No loss if it fails: the case returns to court, and the time spent is excluded from limitation once section 29 of the Mediation Act is in force.

3. Qualities of a mediator

• Neutrality and impartiality, and the duty to disclose any conflict of interest before and during the mediation (section 10 of the Mediation Act).
• Active listening, patience and empathy.
• Communication skills: reframing hostile statements into neutral ones, asking open questions, summarising.
• Problem-solving and creativity.
• Trustworthiness and discretion with confidences.
• Knowledge of the law and subject matter, enough to test reality without giving legal advice.
• Training: court-annexed mediators in India are trained under the programme of the Supreme Court's Mediation and Conciliation Project Committee.

4. Role of the mediator

Section 16 of the Mediation Act states the role: the mediator shall attempt to facilitate voluntary resolution of the dispute by the parties, communicate the view of each party to the other to the extent agreed, assist them in identifying issues, advancing better understanding, clarifying priorities and exploring areas of compromise, and make clear that the responsibility for decision is theirs. He must tell the parties expressly that he only facilitates, that he shall not impose any settlement and that he gives no assurance that the mediation will succeed (section 16(2)). Section 15 requires him to assist in an independent, neutral and impartial manner, guided by objectivity and fairness, protecting voluntariness, confidentiality and self-determination.

In practice the roles are:

• convener: bringing the parties to the table and explaining the process;
• facilitator of communication: managing emotions and getting each side to hear the other;
• agent of reality: testing each side's expectations in private sessions;
• explorer of options: helping the parties generate and evaluate alternatives;
• scribe: helping record the settlement in clear terms.

What he must not do: act as arbitrator, representative or counsel in proceedings on the same dispute, or be presented as a witness (section 17); disclose mediation communications (sections 22 and 23).

5. Essential characteristics of the mediation process

• Voluntary. The parties may choose mediation, decline to settle and opt out at any time (section 24(c)); even on a court reference they are under no obligation to settle (section 7(3)).
• Collaborative. The parties work together on a shared problem instead of against each other; the aim is a solution acceptable to both.
• Controlled. The parties control the outcome; the mediator controls the process, including joint and separate sessions (section 15(4)). Neither can be forced to accept terms.
• Confidential. Admissions, proposals, apologies and documents prepared for the mediation are confidential and inadmissible in later proceedings (section 22); the mediator cannot be compelled to testify (section 23), subject to exceptions such as threats to commit an offence or information about domestic violence or child abuse.
• Informal. The mediator is not bound by the CPC or the Evidence Act (section 15(5)); there are no pleadings or examination of witnesses.
• Impartial and neutral. The mediator has no stake in the outcome and treats both sides even-handedly (sections 10 and 15(2)).
• Self-responsible. The parties are responsible for the decision and for its performance. Because they made the agreement, they own it; the mediator does not guarantee fairness or success.

How this is examined

“What is mediation?”, “Definition of mediation” and “Advantages of mediation” (December 2019, November 2021) are short notes or nine-mark questions; “Narrate the essential characteristics of a mediation process” (June 2019) and “Success of mediation depends upon the role of the mediator. Discuss” (December 2018) are full questions. Start with section 3(h), then take each characteristic in the syllabus order with the section that gives it legal shape.