Key Features of the Pre Litigation Mediation
Advantages and Modes of Mediation
Mediation is preferred mainly for the following five reasons:-
Voluntary: It is a voluntary process for both parties. Pre-litigation mediation in some issues has been made mandatory in recent years, but the process remains voluntary i.e. although the parties may be directed by the courts to attempt resolution of the disputes through Mediation, no one can force any of the party to mediate or settle the matter to one's disadvantage. It is imperative that opposing parties agree to the resolve the dispute without the influence of the mediator. Mediators can only help the parties in dispute to arrive at the right and just settlement that is beneficial for both. Since it is voluntary, any of the parties can leave and withdraw from the mediation at any time without any cost sanctions at any stage.
Communication: The relative informal nature of this process allows parties and/or their representatives to communicate their issues in their preferred method of communication. This could also potentially involve both sides attempting to mediate by way of electronic written submission to a mediator. Communication is usually kept informal, as it is particularly useful for mediators to break deadlocks.
Negotiation: Unlike court litigation and arbitration, parties are free to negotiate the extent of damage, mitigation, ultimate pay out sums and determine their obligations moving forward. In more formal procedures in courts and arbitration, only the rights and liabilities of the parties are determined and acknowledged and an award or a judgment is delivered whereas in Mediation parties can write their own settlement and make the settlement binding by way of contract.
Confidentiality: Confidentiality is paramount. Discussions that transpire in the course of Mediation are not recorded and protected from the court process. Any offer made in the negotiation during Mediation has no bearing on the future record or conduct of both parties. Likewise, the Mediator has no right to disclose the same or appear as witness in future or current court proceedings.
Economic: Mediation is the most economic alternate mode of settlement of disputes. There is no statutory stamp duty that must be paid either on the claim or on the counter claim and also no exorbitant fee to be paid to the mediator, unlike arbitration and counsel costs. That is the reason the mediation has become an alternate dispute resolution forum and is fiercely competing with Arbitration.
Binding: A successful Mediation results into a 'Settlement'. Section 73 of the ACA provides for the drawing up and signing of a written settlement agreement. When the parties sign the settlement agreement, it shall be final and binding on the parties claiming under them respectively. The mediator is required to authenticate the settlement agreement and furnish a copy of the same to each of the parties. In the case of a settlement arrived at in a court-annexed mediation or judicial settlement, the same should be reduced to writing and presented to the court, which will pass an order or decree on the terms thereof.
