A process undertaken by parties (in dispute) to find solutions to their problems suitably aided by a neutral called, the Mediator is in summary, the Mediation Process. This process is totally flexible, voluntary, and confidential.
Mediation in its essence is a total departure from the adjudication model adopted in other mechanisms and it shifts the focus to a client empowered and controlled collaborative process to explore amicable solutions. As a team effort, it explores settlement based on the needs and interests of the parties involved suiting the situation / context. The process does not focus on proving either side right or wrong. To some, winning a dispute is winning a war and it is especially important for them to understand that ‘the war never determines who is right, it only tells you who is left’. Similarly, you might win a dispute by proving yourself right, but you might lose your relationship for ever and that is what Mediation attempts to save. Mediation enables creative solutions which may not be visible initially when the parties have taken strong positions, as that often widens the gap breaking the communication channels.
Mediation process involves setting up a communication platform and a fresh perspective to view and review the situation (disputes and the probable causes). Mediator works closely with the parties to enable them to have an open mindset and a receptive mind to see and appreciate the perspective of the other side and also to put forth their own views for the benefit of the other side. The ‘intent to resolve’ and ‘an open mindset’ is the key pre-requisite to resolve the problem or the dispute. Mediation as a concept, being mindful of the interests and needs, explores what might be relevant as a deserving remedy for respective parties, even if that remedy does not find a mention in the original wish list of either of the party. It’s a departure from ‘winner takes all’ or ‘all or nothing’ approach and would always endeavour to ensure a ‘win-win’ situation - depending on who deserves what, believing in the concept of Joint Gains..
Based on our experience, majority of solutions are a combination of ‘give and take’ (of both tangible and intangibles) and rightly so as they are mutually decided by the parties and for their own best interests. The process only acts as a catalyst for settlements by opening /strengthening a communication channel through a neutral. Parties at times, do not know whether and how much are they near or far from a solution unless they sit down and explore settlement duly aided, professionally.
After their successful experience, party(s) have described Mediation - a branch of ADR (Alternate Dispute Resolution), as not only the Alternate, but Appropriate, Amicable, Accelerated or the Actual Dispute Resolution Process.
Highlights of Mediation – Its Features and Benefits
- Voluntary exercise throughout the process with an option of any time termination
- Full flexibility in respect of speed, language, process, procedure, law
- Mediation process being a Confidential process, Mediator cannot be brought in as a witness or be compelled to provide evidence. Similarly, all the discussions during the Mediation proceedings are confidential. Any exception would require specific permission of the parties concerned.
- Time and Cost Effective: The Parties have complete control on how long they would want to continue and try for settlement and this gives them full control on the process timelines and cost.
- Party autonomy is ensured and assured throughout the mediation process
- Settlement agreement is only possible when both sides agree. Neutral / Mediator does not impose his views or influences the process in any manner. Parties identify the solution and don’t have to depend on the third party for the same
- Enforcement of the Settlement Agreement - The settlement agreement, if required so, can take the shape of an award under section 73 of Arbitration and Conciliation Act 1996. (further section 74 defines the status and effect of settlement agreement stating that “the settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30”)
- Mediation being a voluntary exercise, helps in savings Relationships. Nobody has to lose to make the other win. It believes in a win-win situation for both the sides.
- Other legal options to protect the respective rights stay and are not lost/exhausted in case parties find themselves not reaching or agreeing to any amicable solutions.
Areas of Mediation
- Commercial Contracts and related disputes between parties to the contracts or disputes between corporates on related/other issues.
- Workplace: Disputes with regards to employment, termination, etc.
- Family: Disputes in family, family succession, division, and related issues.
- Community – Cases wherever Groups/Society at large, get involved (including RWA’s, builders, etc).
We @ Missing Bridge attempt to assist you and help you overcome these differences in a professional manner.
Our USP @ Missing Bridge is to help you discover ‘the other side’, and bring you closer to the solution. We want you also, to walk out smiling 😉