RIGHTS AND DUTIES OF THE PARTIES IN THE MEDIATION PROCESS

The very essence of mediation as a dispute resolution process is that it puts the needs and
interests of the parties above anything else. It gives a chance to the parties to determine what
kind of solution they want while the mediator only facilitates the process. While the
mediation process is not binding, it still has certain rights and limitations for the parties and
the mediator to keep the process in check and make sure that no one party is left feeling the
process was unjust.

The role of the parties is to have an open and honest discussion upon the matter that brought
them in for mediation and the role of the mediator is to facilitate the said discussions by
helping the parties if they are in a deadlock situation during the discussion and to elucidate
the points of both the parties so that there is no misunderstanding during the process. These
are the basic functions of the mediator and the parties. As discussed earlier, attached with
these roles are certain rights and limitations for governing the mediation process. We shall be
discussing the rights and limitations that the parties have to keep in mind during the
mediation.

Rights of the Parties

The parties to the mediation essentially have five types of rights under the mediation process.
These rights are in place to help the parties feel in a position of power during the resolution
process.

1. Selecting Mediation as a Resolution process

Neither of the parties is bound to comply with mediation as their dispute resolution process as
they are free to choose the method in which they seek to resolve the subject matter of the
dispute. In the case where one party sends a proposal for the matter to be resolved through
mediation, the other party is not bound to accept such proposal. In addition to that, there are
no legal sanctions or repercussions on the party ignoring the proposal, refusing the mediation
process or frustrating the mediation process.
While no reason has to be provided for refusing to the aforementioned proposal, refusing a
court-mandated mediation has a few requisites. A party who refuses an offer of mediation
must file a witness statement at court giving their reasons for refusing.1
2. Withdrawing from the Mediation Process at any time
1
Tom Williams, What are the risks of refusing mediation?, Harrison Clark Rickerby’s Solicitors
https://www.hcrlaw.com/blog/what-are-the-risks-of-refusing-mediation/
There is no restriction over when a party can and cannot withdraw from the process. As when
of the most basic features of mediation is that it is completely voluntary, to deny a party from
withdrawing is to go against that very principle. Even in this case, the parties need not state
any reason for their withdrawal. But, this might have negative consequences on the party that
has pulled out from the process.
A UK court decided in a case that the party that withdrew from the mediation process was
liable to pay the claimant the wasted costs that they sought for post the withdrawal.2 Even
though the costs awarded in this case were on a standard, proportionate and reasonable basis
rather than that of indemnity, one should not withdraw from the mediation at the very last
moment or at a point of time which might seem morally incorrect.
3. Appointment of an Impartial and Neutral Mediator
Appointing an impartial mediator is one of the most crucial components of the mediation
process. No party would want to have the mediator to be partial towards the other party as
that would hinder the chances of them getting a fair settlement. The parties rely on the
mediator and share sensitive information which is to be kept confidential at any cost. The
mediators hold private caucuses for understanding the stance of each party in a better manner
and further facilitate the smooth functioning of the joint session. While the parties might want
the mediator to share certain details of what they shared, there are also some facts which the
party might disclose so that the mediator can keep that in mind while steering the other party
into any direction. This includes financial conditions, details regarding one’s family, any
medical condition, etc.
With a partial and biased mediator, the whole process of mediation could go to waste,
causing losses in terms of time and money. Therefore, the parties are the ones who appoint
the mediator that will be facilitating the process as this ensures maximum transparency and
ensures that no party gains an undue advantage through the mediator.

2
Roundstone Nurseries Ltd v Stephenson Holdings Ltd, EWHC 1431 TCC, [2009] 5 Costs LR 787
4. Confidentiality
Confidentiality is a key to the mediation proceedings and has thus been spelled out in the
Arbitration and Conciliation Act, 1996 and the parties are bound to keep all information
shared during the proceedings, confidential except where its disclosure is necessary for
purposes of implementation and enforcement.3 In order for parties to be able to open up and
talk about the subject matter freely, it is critical that they be assured of the fact that what they
are going to share is going to stay between the people present. Confidentiality acts as a
relaxation for the fear of sharing personal details and further facilitates full disclosure and
guarantee a fair outcome. If discussions with the mediator are not confidential and
privileged, the mediation process, the mediator’s role and the potential for resolution are
significantly diminished.
Signing an agreement before the commencement of the mediation process which outlines
confidentiality and other key features goes a long way in ensuring a spirit of full disclosure
which will further lead to a successful mediation proceeding.

This concludes the basic rights that parties have during the mediation proceedings. It is vital
for the mediation process to be governed by the aforementioned in order for it to be
successful. But with these rights also come the duties that are to be fulfilled by the parties
during the mediation proceedings. They ensure that the parties understand their
responsibilities and while the mediator facilitates the proceeding, the parties can also further
the agenda by complying with the duties and make the process a success.
Duties of the Parties
There are three basic duties or responsibilities of the parties in mediation. Essentially, these
responsibilities are for the benefit for the parties itself even though they are called duties. The
parties, by acting in accordance with the duties, would be gaining profits as they will be
saving their time and money during the process.
1. Signing of the Agreement to Mediate
This agreement is the summation of the rights and duties of all the members taking part in the
mediation process. It essentially covers what the mediator has already mentioned in his or her
opening statement and explains the same in a detailed manner. While there is no legal
mandate, it is customary to have such written agreement. This will include provisions
regarding confidentiality and the process to be followed. For example, by signing the
agreement, the parties that sigh the same become bound by the confidentiality clause which a
3
The Arbitration and Conciliation Act, 1996, §75
part of all the agreements to mediate. Following are the clauses which are generally
incorporated into a mediation agreement:
 Nature of Mediation
 Scope of Mediation
 Voluntary nature of mediation
 Confidentiality
 Full Disclosure
 Mediator Impartiality
 Litigation
 Mediation Fees

By signing this agreement, the parties can commence their mediation proceedings and the
clauses of the agreement of the agreement can be invoked as and when required. For
example, by including the clause for Full Disclosure, the mediator makes sure that the parties
do not leave out details which are vital in order to arrive at a resolution and that the mediation
process is fruitful for both the parties. The confidentiality clause, as explained earlier helps
with the spirit of full disclosure. The agreement being the amalgamation of all the vital
clauses of mediation becomes an important document to sign further making this a duty.

2. Sharing relevant and authentic information with the other parties and the mediator
In order for mediation to be speedy, as it should be, it is the parties’ responsibility that they
stick to information relevant to the subject matter. It is also their duty to furnish information
that is true and not fabricated in any sense. While it might be lucrative to lie during a
mediation proceeding to tip the scales in you favour, it is morally incorrect and unjust to the
other party. Usually, the matters that are mediated are quite sensitive in nature and lying in
that case can lead to harm for not just the people present in the mediation, but outside of it
too. For example, if the mediation is for the custody of a child, a party lying about their
ability to take care of the said child would hamper with the very future that the child
deserves.
In case a party lies and the same is discovered, firstly, the whole mediation process goes to
waste. Secondly, the other party would no longer be willing to resolve the subject matter
through mediation and would seek litigation which would be much more complicated and
expensive. Thirdly, with the, mediation process having gone to waste, the time and money
invested by both the parties and the mediator would also be rendered of no use. Therefore, it
is essential for the parties to be in the clear as and when they are sharing information during
the mediation.
3. Generate Options
It is common for parties to end up in situations such as a deadlock where neither party is
ready to budge on their demands which leads to a waste of time and delays the resolution.
While the mediator is supposed to facilitate the breaking of the deadlock, he or she cannot
provide direct solutions as that does not come under the ambit of the functions of a mediator.
Therefore, it is vital that the parties take charge in such a situation and come up with a
creative solution in which both the parties are able to get what they want or it is at least a fair
compromise for the both.
The more interactive the mediation session is the better would be the resolution that would be
reached at by the end.

Mediation is an emerging road to dispute resolution and is slowly gaining popular

acceptance. Understanding the intricacies of the same will be of great importance on times to
come. Mediation is starting to get strongly recommended by Indian courts and many high
courts have even set up mediation centres housed within the courts of which they are bearing
the expenses. It is crucial for the parties to abide by the ethics during a mediation process as
that is what will steer the mediation into the right direction.