The biggest advantage of resolving disputes through mediation is bringing harmony among the litigants by providing them a holistic and creative solution, and thus putting a stop to any possibility of future disputes by resolving their conflicts, says advocate Laila Ollapally, a coordinator and mediator of Bangalore Mediation Centre.
She points out that a large number of cases pending in the civil courts can be resolved through mediation as this method protects the interests of both the parties without having adverse effect on each other's interests.
Emphasising that the judges of these courts have a crucial role to play in informing the litigants about the mediation process, she wondered if in 98 per cent of the cases in the U.S. disputes could be resolved through mediation, why it cannot happen in India?
“Critical disputes on intellectual property rights between software firms, bankruptcy issue of a leading bank, cross-border issue such as injury caused on a ship outside the country, employment issue, are all resolved through mediation in the U.S.,” Ms. Ollapally says.
“Mediators do not decide what is right or fair but make parties to talk uninterruptedly, understand their interests, and create an environment in which litigants agree to mutually agreeable solutions,” she says.
However, mediation fails to break the ice when an individual has too much emotion, determination to fight, irrespective of time and cost factor, and other physiological factors.
T.S. Mahantesh, an advocate and mediator, points out that he gets more satisfaction in his role as a mediator than winning a case as an advocate for his client in court.
“We, mediators, being a neutral third party for the dispute, will help both disputing parties (along with their respective advocates), to bridge their differences using our communication and negotiation skills. We always leave the decision-making to the litigants so that they are satisfied with the resolution arrived at,” he says.
“Training a mediator, whether it is lawyers with 15 years of experience or judges, involves ‘unlearning' everything. They have to undergo a sea change in temperament — firm without judging, empathetic and not sympathetic, enterprising, tolerant. They have to learn not to give legal advice, as the mediator is only a facilitator and not a decision-maker,” says Prasad Subbanna, a coordinator and mediator, involved in training mediators.
Terming the 64 per cent of success achieved through mediation as “excellent”, Mr. Subbanna points out that one of the major advantages of mediation is that it addresses the conflict and not just the dispute.
Mediation also tries to remove the element of heartburn. A short span of time within which a long-standing family dispute or divorce case can be resolved is another advantage.
Having seen the awareness surrounding the concept of mediation grow during past five years, Mr. Subbanna feels mediation will become an apt tool in reducing burden on courts with mediation being given importance by the 13th Finance Commission.
Some advocates conduct “private mediation” in their offices in Bangalore, said Srinivas, a lawyer.
These private mediators take up cases pending in courts on being approached by the advocates of the litigants to arrive at a settlement. Private mediators offer mediation to resolve dispute at the pre-litigation stage (before either of the parties approach court).
However, private mediations is expensive as fee is charged depending upon the number of hours spent for mediation.