A Mediator at CAMP is a trained and skilled neutral third party who is a qualified and experienced legal professional.
A Mediator facilitates communications between parties and helps them reach their own conclusive settlement to the dispute.
(Adapted from Frank Sanders, Stephen B. Goldberg, Nancy H. Rogers and Sarah Cole, in their book, ‘Dispute Resolution: Negotiation, Mediation and Other Process’.)
The biggest advantage of mediation is that the parties themselves find their mutually acceptable solution to resolve their dispute. Solutions are therefore customised and creative. Mediation is a process that is quicker, cheaper and less stressful than adjudication.
The length of a mediation depends on:
If issues are not complicated and the process goes smoothly, it may only take one mediation session lasting for a day or may be even less. Most mediations can be settled within a few sessions. However it is not possible to predict how long the mediation can take.
No. The Mediator is neutral and does not act as a Judge. The Mediator does not give an award or an order. The Mediator facilitates the parties to find a mutually acceptable solution using communication and negotiation techniques. The parties are the ones who decide the outcome of any dispute in mediation and they retain full control of all decisions that affect their interests.
Mediation is a completely voluntary process. Either party can chose at any time to discontinue the mediation and proceed with another form of dispute resolution.
Arbitration is a private court. The Arbitrator conducts the hearing between the parties and then, like a Judge, renders a legally binding decision. Though confidential and private, arbitration resembles a Court proceeding. Each side calls witnesses, presents evidence, and makes arguments. In mediation, a Mediator does not render a decision. The parties with the help of the Mediator work towards their own mutually acceptable agreement. Parties may also bring experts or well wishers if they so desire, who may assist the parties to explain perspectives, bring clarity and create suitable options for settlement.
In India, the terms mediation and conciliation are often used synonymously. The difference lies in the way the process is used to reach the settlement terms. In conciliation, the settlement terms are proposed by the conciliator who then works with the parties to reach an agreement. In mediation, the Mediator does not propose the settlement terms. The parties find their own settlement terms with the help of the Mediator.
Even if you are right, mediation still has value. In determining right and wrong, one party is left the loser resulting in continuing acrimony and further litigation. If the third party who decides the case is a Judge or an Arbitrator, he/she may not be able to mould the relief in a way most suitable to the parties. When parties craft their own settlement, they can create value and forge relationships.
Mediation is a great tool for you to enhance and add another dimension to your practice.
If no settlement is reached, other options for dispute resolution, including litigation and arbitration may be pursued.
When the parties reach a settlement in mediation, the terms of the settlement are written and signed by both parties. It then becomes a binding contract. If the case is pending in Court, the settlement terms are filed in Court for approval and a decree is passed, which is final and non-appealable. In case of pre-litigation mediation, several options are available to obtain enforceability and the parties with their lawyers may choose the most suitable option.
Yes. It is always advisable to have each parties’ lawyer participate in the mediation proceedings.
If you are interested in mediation CAMP will advise you on how to make contact with the opposite party. CAMP will also assist in trying to get parties to the negotiating table.
Mediation is a strictly confidential process. A confidentiality agreement is signed by the parties before mediation commences. Any confidential information shared with a Mediator cannot be disclosed by the Mediator to the other party unless the Mediator has been given explicit permission by the information giving party.
No information shared or document produced during a mediation session, including an offer or concession made, can be used against a party if the dispute goes to Court unless the information/document is discoverable or the other side already has access to such information.
The Mediator cannot be summoned to testify in Court.