1. What is mediation? How it is different from litigation and what is the advantage?

Mediation is a settlement effort, which utilizes the services of an impartial, third party mediator in an effort to reach a mutually acceptable agreement. Mediation provides an efficient, effective, speedy, convenient and less expensive process to resolve disputes with dignity, mutuality, respect and civility where parties participate in arriving at a negotiated settlement rather than being confronted with a third party adjudication of their disputes. In mediation, ultimately the resolution is made by the parties and no decision is imposed on them. But in courts and other systems, the decision is taken by the Judge or Arbitrator and the decision is imposed on the parties, whether they like it or not. In mediation, since the decision is taken by both the parties, it is a “Win-Win” situation for both and they would happily comply with the decision rather than wasting time on appeals against an imposed decision. It helps to maintain ongoing relationships and resolve the dispute amicably. The very fact that it enables the parties to sit across the table and negotiate, participating in the process itself creates an atmosphere of harmony and peace.

2. Is mediation legally approved? Does the final outcome or settlement have any legal validity? If so, can it be enforced?

Yes, Mediation is approved not only in India, but across the whole world. In India resolution of disputes through mediation is encouraged by both the Parliament and by the Supreme Court. In courts, pending matters are given an option for settlement through court-annexed mediation centres.

Mediation movement as a reliable mechanism, has gained both acceptability and popularity in India. Parties can resort to mediation even before going to court. Under the Arbitration & Conciliation Act, 1996 (A&C Act), parties can opt for resolving disputes through mediation and a settlement agreement made by the mediator after the resolution of a dispute is equivalent to an arbitral award or a decree of a civil court, according to Section 74 of the A&C Act. If a party subsequent to the settlement fails to comply with it, the other party could get the settlement agreement executed through a court in the same manner as a court decree. Mediation and Conciliation are terms often used interchangeably and in all practical aspects, the procedure is the same.

3. What is IIAM Community Mediation?

IIAM Community Mediation Service (IIAM CMS) with the motto; “Resolving conflicts; promoting harmony” was launched by the Indian Institute of Arbitration & Mediation (IIAM) and was officially inaugurated by the Chief Justice of India on 17 th January 2009. It is endorsed by the International Mediation Institute (IMI) at the Hague, Netherlands.

The mission of IIAM CMS is to bring justice to the doorsteps of the people. It is meant to provide an opportunity for citizens to participate in the prevention and early intervention of conflicts as an alternative to institutional mechanisms. It promotes social harmony and access to justice for the ordinary citizen in a consensual and humanistic way against the background of adversarial system of judging who is right and who is wrong. The intention is to create a culture of resolving conflicts in collaborative method founded on traditions of dialogue, interests and needs. This will promote peace and harmony in the society and empower the people to deal with conflicts. The Mediation Centres also help to save significant court time by addressing situations more appropriate for mediation, allowing the Courts to deal with more serious cases. It also saves disputants time and money, but most importantly the Mediation Centres seek a win-win scenario for both parties.

In Community mediation, mediation is provided by trained community mediators who represent the community. IIAM CMS is provided through People’s Mediation Centres, established by IIAM partnering with People’s Mediation Society, which is a peoples’ movement. The mediation done in PMC’s is governed by the IIAM Mediation Rules and the fee schedule is as per the IIAM CMS Fee Schedule.

Further details about IIAM Community Mediation Service can be obtained from www.arbitrationindia.com/cms.html

4. What is a PMC? How is it established?

IIAM partners with People’s Mediation Society (PMS) – a charitable society formed for the purpose of promoting mediation and empowering people towards sustainable development and creating a harmonious society – for establishing People’s Mediation Centres (PMC) in all parts of the country.

People in the local community who believe in the concept of amicable dispute resolution and who would like to empower the community in resolving disputes and creating a peaceful society, can become members of the PMS and in association with IIAM, form the PMC in their locality, where the people own, manage and administer the Centres, giving them a strong foundation for empowerment, self-sufficiency and independence. The members of the Society also volunteers to sign a “Pledge to Mediate”, by which they would consider mediation as the first option to resolve their disputes with other persons, recognizing that the empowerment to resolve disputes amicably and voluntarily is an expression of civil maturity. They can also opt to resolve their commercial disputes by way of arbitration through PMC, if resolution through mediation fails. This makes the “People’s Mediation Centre” a genuine people movement!.

PMC would conduct mediation under the IIAM Mediation Rules, which provides a confidential, voluntary and private dispute resolution process in which a trained and accredited mediator helps the parties to reach a negotiated settlement. PMC will assist the parties by making necessary arrangements for mediation, including appointing the Mediator; organizing the meeting and providing general administrative support.

Further details about PMC, log on to www.pmcindia.org

5. Is IIAM or PMC recognised?

IIAM is one of the pioneer institutions in India, providing institutional Alternative Dispute Resolution (ADR) services, which includes international and domestic commercial arbitration, mediation and negotiation and conducting training programs in ADR. IIAM is a non-profit organization registered in India and commenced activities in the year 2001. The legal and ethical aspects are guided and controlled by the IIAM Advisory Board, comprising of distinguished and eminent persons from various fields, chaired by Mr. Justice M.N. Venkatachaliah, former Chief Justice of India. The IIAM Community Mediation Service is guided by the CMS Committee, chaired by Mr. Justice K.T. Thomas, former Judge, Supreme Court of India. Administration of IIAM is by the Governing Council.

IIAM is enlisted by the Department of Justice, Government of India for helping various ministries and government departments to resolve disputes out-of- court through mediation and arbitration. IIAM is the only institution in India approved by the International Mediation Institute (IMI) at the Hague, Netherlands for qualifying mediators for IMI certification. IIAM is a member of the Asian Mediation Association (AMA) and the Asia Pacific Regional Arbitration Group (APRAG). IIAM is the country representative – India for Mediation World. IMI has also endorsed the IIAM Community Mediation Service and the former Chairman of IMI is deputed as Member of the Advisory Board of IIAM. The IIAM Arbitration Rules are endorsed by the United Nations Commission on International Trade Law (UNCITRAL).

PMC’s would be implementing the IIAM Community Mediation Service through its centres.

6. Should I become a member of PMS to bring a dispute to PMC for mediation?

No, you need not become a member of PMS to resolve a dispute by mediation through the PMC. Any person having a dispute or a potential dispute can utilize the IIAM Community Mediation Service by approaching any of the PMC’s and resolve the same.

Becoming member of the PMS is an option. By becoming a member, you become part of the society, which owns, manages and administers the Mediation Centres and you declare your commitment to promote the use of mediation and thereby promote peaceful co-existence and harmony in the community. You will also support the activities of the People’s Mediation Centre in the above Constituency and you will be entitled to certain benefits and privileges.

7. What is the benefit of becoming a member of PMS? What is the relevance of Pledge to Mediate?

See the answer to question No.6.

The object of PMS is to promote the concept of mediation on the firm belief that a mediation culture could lay the foundation to a long term process of positive social transition by making the society just, equal and fair an option. So by signing the Pledge to Mediate, you declare your belief and commitment to use and promote mediation and encourage others to use mediation.

8. Who can approach a mediator? What type of cases does mediation handle? Can a case involving govt. or public sector or service cases be handled through mediation? Can criminal cases be mediated?

Any person who has a dispute can approach a mediator. Unlike arbitration, you don’t require an agreement to mediate to approach a mediator. Since mediation is a voluntary process, the opposite party can accept the invitation to mediate or deny the invitation..

Any civil, commercial, contractual, business or family disputes can generally be resolved through mediation. As per general practice, matters involving moral questions or questions of public law cannot be resolved by mediation.

The fundamental requirement of mediation is that the parties before the mediator should have the authority to finally resolve the dispute. In govt. or public sector undertakings, normally no officer will take up the responsibility for settlement and as such mediation may not be effective.

Generally it is accepted that criminal cases, that relate to offences compoundable by law can be settled by mediation. But the Supreme Court of India has held that criminal cases, having overwhelmingly and predominatingly civil flavor, like offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature, can be settled by mediation. Once the parties have resolved their entire dispute, the High Court can quash the criminal proceedings, even if it emanates from non-compoundable offences. But heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society.

9. Is there any jurisdictional or monetary limit for filing cases in the PMC? Can pending cases in courts be brought before the PMC?

There is no jurisdictional or monetary limit for referring disputes for mediation in a PMC. Ideally matters can be referred to the nearest PMC, as it would be more convenient for the parties and the mediator to schedule meetings and resolve the disputes quickly.

Mediation can be initiated at any stage. It can be initiated at the beginning of a dispute or when the matter is before a court. But it is always be better to initiate mediation at the beginning, as the parties would be less hostile. In fact the Supreme Court of India has said in a decision that mediation should be taken at the earliest opportunity to stop the negative factor from growing and widening its fangs which may not be conducive to any of the litigants.

10. Can any proceedings or steps affecting the dispute or any pending case be stayed, if the matter is brought before the PMC?

No. Since it is not a court-annexed mediation by a court, where the case is pending, legally the mediator or the mediation process cannot interfere with the litigation process. But if both parties are seriously participating in the mediation process, they can inform the court that the parties are attempting a resolution through mediation and normally, the court would adjourn the matter and await the result of mediation.

11. Is mediation a compromise and if I initiate mediation, will it not be considered as my weakness?

There is a general misconception that in mediation you have to compromise. In fact mediation is another dispute resolution process, just like any other one. The major difference being, it is an interest-based process, where the process focuses on needs and relationships and seeks not only to resolve the underlying problem, but also to add value.

Now it is considered as a mature decision to settle the matter directly through mediation. Being a signatory to the pledge to mediate, it can also be said as a matter of policy to mediate and not a sign of weakness.

12. If a party approaches PMC with a case and the other side does not appear, what can be done?

Mediation is a voluntary and non-binding process and the parties are free not to attend or leave the process at any stage, if that party is not happy with the process or outcome. But as per our experience, every invitation to attend a mediation process is normally accepted by the other party.

But even if the other party does not turn up, it is an advantage to initiate mediation first, as after the completion of mediation and on receipt of the Mediator’s Completion Report, IIAM/PMC will prepare the Mediation Status Report and this is given to the Parties. This is given even if the dispute is not resolved or the mediation could not be held due to the absence of the opposite Party. This is a valuable document when the initiating party approaches the court, as this will create an adverse impression against the party who refused to participate in mediation.

13. Can the proceedings in a case filed in PMC be brought under the purview of the RTI Act?

As per the Arbitration & Conciliation Act, all matters relating to the mediation proceedings are confidential. This will also extend to the settlement agreement. The parties are also barred from relying or introducing any statements, views or suggestions made in the mediation proceedings as evidence in arbitral or judicial proceedings or making the mediator as a witness.

RTI Act is applicable to information relating to any private body which can be accessed by a public authority. Since mediation is a confidential proceeding, it is not accessible to any public authority. Since the details of mediation process relates to personal information of parties which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, it not amenable to the RTI Act and such it does not come under the purview of RTI Act.

14. How long does the entire mediation proceedings take? Can we bring lawyers to represent our case in mediation?

Even though as per the IIAM Mediation Rules, the mediator shall use his best endeavors to conclude the mediation within 60 days of his appointment, normally a commercial or family mediation gets over within 4 to 8 sessions.

Even though mediation is a party-oriented process and ultimately the decision making power is with the parties, the parties are free to bring lawyers to a mediation proceeding. In fact mediation would become more successful and credible, if the parties’ advocates or advisors are knowledgeable and skilled in the mediation process. Trained mediation advocates can bring value addition to the process and outcome.

15. How much it cost to go for mediation? What is the fee of the mediator?

Mediation is very cost-effective, especially considering the time-bound manner in which the dispute is resolved. The costs and expenses of IIAM Mediation is governed by the IIAM Mediation Fee Schedule.

In Community Mediation, the mediation service and mediators fee is subsidised by IIAM and PMS. There is a registration fee of just Rs. 100/- and the mediation fee for a family dispute is Rs. 300/- per session and for a commercial dispute Rs. 600/- per session. People above 70 years are entitled to 50% discount. Details of CMS Fee Schedule can be seen at www.arbitrationindia.com/pdf/cms_fee.pdf

16. How do I submit a dispute for mediation in a PMC? Should both parties remit the registration fee and mediation fee?

A party or both parties to the dispute can initiate mediation by submitting a Dispute Submission Form (www.arbitrationindia.org/pdf/form_102.pdf) in the People’s Mediation Centre, so as to commence the process.

Along with the Dispute Submission Form, the Party initiating the process shall make the registration fee of Rs. 100/-

The registration fee has to be paid by the party initiating mediation. Normally, the mediation fee is shared by the both the parties. But if the opposite party does not agree to share, the entire fee has to be paid by the initiating party.

17. What is the qualification of a mediator, how are they selected? Is there any fixed tenure for them?

There is no specific qualification for a mediator. But they have to be persons who have a good repute in the local area with integrity and sense of fairness. Mediators are professionals trained to help disagreeing parties identify and address issues and resolve disputes. IIAM offers training to potential participants and prepare them to become a Grade-C Community mediator. IIAM Accreditation is given as per the IIAM Qualifying Assessment Programs (QAP). As per the IIAM QAP, a Grade C mediator, after completing 15 hours of mediation is eligible to be accredited as a Certified Community Mediator. All PMC mediators are governed under the IIAM Mediators’ Code of Professional Conduct.

There is no fixed tenure for a mediator. They will be empanelled in a PMC till they are removed by IIAM on account of any misconduct as per the Mediators’ Code of Professional Conduct.

18. How can I believe a mediator and if I have any complaint, can I change the mediator?

Trust underpins the mediation process. If the parties do not trust a mediator’s integrity in terms of competence diligence, neutrality, independence, impartiality, fairness and the ability to respect confidences, mediation is unlikely to succeed. The IIAM Mediators’ Code of Professional Conduct provides users of mediation services with a concise statement of the ethical standards they can expect from Mediators who choose to adopt its terms and sets standards that they can be expected to meet.

Users who believe the standards established in this Code have not been met may prefer a complaint to IIAM on the Mediators’ conduct Assessment or can request for a change of mediator. The Rules have been made as per the guidelines of the International Mediation Institute, The Hague (IMI). Details can be seen in the IIAM Mediation Rules.

19. If mediation of a dispute does not bring out a settlement, can I take the party for arbitration?

Yes, if you have an arbitration agreement. But members of PMS have by signing the pledge agreed to resolve their commercial disputes through arbitration, if the mediation process fails. Thus the Pledge acts as an arbitration agreement.

20. What type of disputes can be resolved by arbitration under the IIAM Arbitration Rules?

Any civil, commercial, contractual or business disputes can generally be resolved through arbitration. As per general practice, matters involving moral questions or questions of public law cannot be resolved by arbitration. For instance, the following matters cannot be referred to arbitration:

  • Matrimonial matters, like divorce or maintenance;
  • Insolvency matters, like declaring a person as an insolvent;
  • Criminal offences;
  • Dissolution or winding up of a company.

21. Are arbitration proceedings confidential in nature?

Yes. Arbitration under the IIAM Arbitration Rules is private and confidential. As per Rule 20, the arbitral tribunal, the parties and the IIAM shall keep confidential all matters relating to the arbitral proceedings. Article 28 of the IIAM Arbitration Rules specifies that hearings shall be held in camera unless the parties agree otherwise.

22. How long does the entire arbitration proceedings take?

A regular arbitration under the IIAM Rules would be completed within 9 months from the date of appointment of the arbitral tribunal. The award would be rendered within 45 days. Under the fast-track procedure, the entire arbitration gets over within 6 months.