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DLSA / Mediation

Page Type

DISTRICT LEGAL SERVICES AUTHORITY / MEDIATION

 

Secretary

SRI RAJ MANI

 

Names and contact numbers of the mediators in Ballia mediation centre approved by Hon'ble High Court of Judicature at Allahabad.

Sl. No. Names of Mediators Contact No. Day
1 Sri Rajeshwer Pandey 9450773942 Monday
2 Sri Anand Kumar Singh 9454171598
3 Anshuman Pandey 9532201075 Tuesday
4 Mohd. Ishlam Arif 9918469458
5 Smt Sushila Parwat 9415658288 Wednesday
6 Sri Ajit Kumar Singh 9415337365
7 Sri Sharad Kumar Gupta 9305625135 Thursday
8 Sri Subhash Chandra Srivastava 9415385530
9 Sri Triloki Nath Yadav 9450782801 Friday
10 Any of above -- Saturday

 

Timing:    11:30 AM onward

 

1. What is Mediation:

The mediation is a structured process of dispute resolution in which a mediator, a neutral person, works with the parties to a dispute, to bring them to an agreement that they can all accept. The mediator does not decide the dispute or give an award. He is only a facilitator and incharge of the process at the mediation table.

The mediation is a purely voluntary process. The parties continue the process out of their free will. They can opt out any time they decide that their interests are not served in the mediation. Once an agreement is reached and signed, it is enforceable by a Court.

There are various advantages of mediation. It saves time as mediation may be resolved in a few sessions. Some times it takes more sessions. On an average three or four meetings are sufficient for a good mediator to settle the dispute. The costs of the proceedings are minimal. Since the mediation is a non-adversial mode, brining quick resolution to the issues, the legal costs are cut down substantially.

The mediation avoids adversial approach and instead adopts cooperative methods. The parties focus on mutual agreement with long term gains and improve their relationships. Even if mediation is not successful, the parties have a chance to talk to each other and explore acceptable solutions. Many a times parties come back after unsuccessful mediation, and have again made an effort and succeeded.

The litigation invariably offers win-loose situation, whereas in mediation parties try to achieve a win-win situation, which puts an end to the dispute.

The litigation looks back to the date, when the plaint was filed or a case was instituted in the Court, whereas mediation looks forward and offers long term acceptable solutions to the parties.

 

2. The law's recognition to mediation:

The mediation is not new to the Indian legal system. Section 89 of the Code of Civil Procedure, 1908 provides for special proceedings for resolving disputes. The amendments by Act No.46 of 1999 w.e.f. 1.7.2002 have accepted 'mediation' as one of the process of alternate dispute resolution along with arbitration, conciliation and judicial settlement including settlement through Lok Adalats. The Salem Bar Association's case1 has laid down the fundamentals and provided model rules for mediation. The Court may refer the case for mediation under Order X Rules 1-A and 1-B after recording admissions and denials, and at any stage in Section 89 CPC. In case of mediation under Section 89 (2) (d) the Court shall effect a compromise between parties and shall follow such procedure as may be prescribed. In compoundable offences, and also in non-compoundable offences, where the parties settle the issue, specially in matrimonial matters, the Supreme Court has held in B.S. Joshi's case 2 that the Court may quash the complaint or the first information report on such settlement, after which there may be no evidence to proceed with the trial.

 

3. Conciliation:-

The Arbitration & Conciliation Act, 1996 has recognised conciliation as a method of settlement of disputes. The process of mediation and arbitration is almost similar except that in conciliation the conciliator may give advise to the parties and that under Section 74 of the Act of 1996 a settlement agreement has 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. In case of mediation the settlement agreement needs acceptance of the Court as a compromise and is enforceable as a Civil Court decree. In both the cases the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 is not applicable, and that both the processes help parties to arrive at a settlement to be accepted by the Court.

 

4. The nature of disputes, which can be mediated:

Mediation mostly succeeds in personal matters such as family disputes relating to relations and properties; partition; divorce; commercial and business matters relating to disputes between companies and firms, suppliers, contractors, consumers; banking and insurance matters; employer employee matters, consumer disputes, real estate, constructions, intellectual property, doctor and patient, landlord and tenant.

Mediation is also successful in petty criminal cases and matrimonial issues such as Section 125 CrPC and Section 498A IPC. In such cases the parties can agree to drop the proceedings and not to lead evidence against each other. In B.S. Joshi Vs. State of Haryana, AIR 2003 SC 1386 the Supreme Court held that in such case no evidence may be led and thus the High Court can quash the first information report or the proceedings.

Mediation is not recommended in all kinds of disputes, specially in those, where interim orders are required from the Court or where an important question of law is to be settled.

The mediation is not recommended, when there is serious imbalance between position of the parties in which fair negotiation is not possible.

 

5. The Court referred mediation:

In America and European countries almost 80% litigation does not go to the Court as there are provisions for pre-litigation mediations, which are mandatory and that the parties in order to avoid heavy costs involved in litigation, settle the matters with the help of their lawyers, who realise the advantages of mediation.

In India, so far, we have only court annexed and court referred mediations in the High Courts. The Courts have to identify the cases, and to persuade the parties to attempt a mediated settlement. The role by Hon'ble judges in referring the matters is very important for the success of court annexed Mediation Centre. The lawyer-mediators can, however, offer their services, if the parties to a dispute, which is not pending in Courts, need their services.

 

6. Process of Mediation:

A mediator after his appointment receives a brief summary of the case from the parties. Ordinarily he does not require the Court records but if he needs to peruse the papers, he can call for the Court records through the Centre incharge of the Mediation Centre with the approval of the Organising Secretary.

In the first session the lawyer-mediator makes an opening statement to the parties giving the entire structure of mediation. He commits the parties to good behaviour. The parties are required to sign a form that they would abide by the terms of the mediation process. They are, however, at liberty to leave the mediation at any stage that they like, and even upto the time than that they sign the settlement. In the first session the lawyer-mediator actively listens without showing any sympathy towards any party. He takes down notes and identifies the issues of conflict. He may then hold private sessions to understand the issues, which he thinks are confidential and should not be disclosed in front of the disputants such as bargaining terms or any private or confidential information, which they want to hold back from the other party.

The mediator then identifies the issues and discusses the strengths and weaknesses of the cases with the parties and sets up the agenda. He then allows the parties to communicate with each other in joint sessions. Some times these sessions go up to hours, in which there is brain storming for the options, which the parties generate amongst themselves. The mediator controls the process. He does not allow the party to deviate and helps them in focusing on their long term interest as distinct from their position that they have taken in the dispute. The mediator helps parties to focus on their disputes, as against the persons and brings out the underlying issues. The long term interest almost always helps in adopting harmonious methods of resolving disputes.

The mediator discusses with the parties the best alternative to negotiated agreement (BATNA) and worst alternative to negotiated settlement (WATNA).

Many a times parties resolve a few issues and are unable to reach to any solution on other issues. In such case the matter may be referred for conciliation by an expert or an advisor or one of the issue may be sent to an arbitrator. This process is called med-conciliation or med-arbitration. The parties with the consent of mediator may also take help of counselors or experts like Chartered Accountants, Doctors, Engineers, as the matter may require.

 

7. The settlement:

The parties, if they agree then sit down for writing settlement, which should resolve the dispute in full and should be effective. The mediator helps the parties to draft a realistic, legal, valid and effective settlement, which resolves all the issues between them and does not leave anything for any further dispute in future.

The agreement then comes to the Court and may be accepted with or without modification, which the Court may suggest. Almost invariably the Court accepts the settlement and resolves the disputes under Order 23 Rule 1 CPC. In criminal cases, which are compoundable and also those, which concern the relations between the parties and are non-compoundable, the Court may quash the first information report or a complaint on such settlements.

The mediator is not required to appear in Court as a witness to the proceedings and the parties are not allowed by the Court to discuss the procedure or the options generated by them in mediation sessions. The mediator has limited option to report to the Court. He may report that the parties did not turn up or withdrew from the mediation. He may also report whether the mediation was unsuccessful and if it was successful, he would report that an agreement has been reached, which has been drawn up and signed by the mediator and the parties.

 

8. Confidentiality and Ethics:

The credibility of a lawyer-mediator, their reputation, confidentiality of the mediation process and the information shared with the parties is most important for the Mediation Centre. The ethics of mediation prohibit the lawyer-mediator to disclose the confidential information gathered by them through mediation process. They are not permitted to disclose this information, even to their best friends. Only that much of information, which is relevant for a settlement, is to be disclosed. The Court referring the matter to the mediation is also not entitled to know the process and the position adopted by the parties in the process, as the Court in such case is likely to be prejudiced, by the reaction of the parties in the process of mediation.

The lawyer-mediators' notes are destroyed after the mediation process is complete. The inspections are not permitted to the parties unless such inspections are permitted by the mediator.

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