COURSE-IV: CLINICAL COURSE-II:

ALTERNATIVE DISPUTE RESOLUTION SYSTEMS

COURSE TEACHER- DR. SAMINA NAHID BAIG
UNIT -V

UNIT-V
Mediation: Meaning; Qualities of mediator; Role of mediator; Essential characteristics of the
mediation process – voluntary, collaborative, controlled, confidential, informal, impartial & neutral,
self-responsible; Different models of mediation; Code of conduct for mediators.

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1. What is Mediation? How it has originated in India? What are the advantages and
disadvantages of Mediation? State the difference between mediation and litigation.
ANSWER:

Mediation - It is a voluntary, disputant-centered, non-binding method of dispute resolution wherein a

neutral and credible third party facilitates a settlement between the parties. It is a confidential and
structured process where the mediator uses special communication, negotiation and social skills to
assist the disputants in arriving at a mutually acceptable solution themselves.

The parties thereto must be willing to iron out the creases in their relation by a little outside help as the
focus in mediation is on the future. It is ideal where the emphasis of the parties is on building
relationships, rather than ascertaining the party at fault for what has already transpired. The outcome

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of a successful mediation is a settlement agreement, and not a decision. The objective of mediation
is not to evaluate guilt or innocence but to promote understanding, focus the parties on their interests,
and encourage them to reach their own agreement.

Mediation is an age-old process of dispute resolution practiced since Vedic period. It is a low cost,
keeping the matters, especially family matters secret among three parties, two parties and the mediator.

Moreover, the solution is not imposed on any party, it is a solution that both the parties agreed to. It,
thus gives an effective solution in a peaceful manner.

Mediation in India is a voluntary process where the disputing people decide to mutually find a solution
to their legal problem by entering into a written contract and appointing a mediator.

The decision-making powers remain with the disputing parties, with the mediator acting as a buffer
to bring them to an understanding.

The parties can hire ADR lawyers to represent them before the mediator and explain the situation a
professional way. The difference between arbitration and mediation are that arbitration is a more
formal process than mediation. An arbitrator needs to be formally appointed either beforehand or at the
time of need.

A mediator can be anyone, of any designation, can be appointed formally or casually depends on the
wish of the parties. The mediation law in India has been made user friendly and pretty flexible
Mediation India are divided into two categories which are commonly followed:

Court referred Mediation: The court may refer a pending case for mediation in India under Section
89 of the Code of Civil Procedure, 1908. This type of mediation is frequently used in Matrimonial
disputes, particularly divorce cases.

Private Mediation: In Private Mediation, qualified personnel works as mediators on a fixed-fee basis.
Anyone from courts, to the general public, to corporate as well as the government sector, can appoint
mediators to resolve their dispute through mediation. The concept of mediation received legislative
recognition in India for the first time in the Industrial Disputes Act, 1947. The conciliators appointed
under Section 4 of the Act are " charged with the duty of mediating in and promoting the settlement of
Industrial disputes."

Brief history
On 27th July 2002, the Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre,
reportedly the first lawyer-managed mediation Centre in India. The Chennai Mediation Centre was
inaugurated on 9th April, 2005 and it started functioning in the premises of the Madras High Court.
This became the first Court-Annexed Mediation Centre in India.
The Mediation and Conciliation Project Committee (MCPC) was constituted by the then Chief Justice
of India Hon'ble Mr. Justice R.C. Lahoti by order dt. 9th April, 2005. Hon'ble Mr. Justice N. Santosh
Hegde was its first Chairman MCPC has been taking the lead in evolving policy matters relating to the
mediation. The committee has decided that 40 hours training and 10 actual mediation was essential for
a mediator.

In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Section 89 in
the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR
which included mediation. The Amendment was brought into force with effect from 1st July, 2002.
Mandatory mediation through courts has now a legal sanction.

Court-Annexed Mediation and Conciliation Centers’ are now established at several courts in India and
the courts have started referring cases to such Center’s.

In Court-Annexed Mediation the mediation services are provided by the court as a part and parcel of
the same judicial system as against Court-Referred Mediation, wherein the court merely refers the
matter to a mediator. One feature of court-annexed mediation is that the judges, lawyers and litigants
become participants therein, thereby giving them a feeling that negotiated settlement is achieved by

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all the three actors in the justice delivery system. Mandatory mediation through courts has now a legal
sanction.

ADVANTAGES OF MEDIATION:
1. Time and Cost Savings: Mediation generally lasts a day. It is less costly than evidentiary
process. Mediation is normally completed in a matter of hours through a series of one to three
conferences. It may occur much earlier and with much less preparation in a dispute than in a
trial or arbitration. Furthermore, mediation is - not a formal evidentiary process requiring
extensive use of expert witness or demonstrative proof. Indeed, the process is most effectively
accomplished without introduction of evidence or witnesses, relying instead on the parties to
negotiate in good faith.
2. Efficiency: The process is more efficient than most evidentiary processes; one of the principle
attractions of mediation is the speed with which parties can resolve their disputes. Because,
mediators are present to manage negotiation, not to represent a party or render a legal decision,
they need not prepare extensively to conduct the conference.
3. More settlement Options: The process offers a range of settlement options limited only by
the creativity of the parties and the mediator. Parties can create outcomes custom designed for
their particular situation.
4. Informality: No court rules or legal precedents are involved in mediation. The mediator does
not impose a decision upon the parties. As opposed to adversarial forums, the mediator helps
maintain a business-like approach to resolving a dispute.
5. Privacy and Confidentiality: The mediation conference takes place in a private settling such
as a conference room at any of the Arbitration Associations. Mediation is not a matter of
public record. Its confidentiality is maintained.
6. Control: Parties have control over their participation in mediation. A party can decide to
terminate their participation at any point in mediation. Mediators help parties maintain control
over the negotiation that takes place.
Disadvantages of Mediation: Mediation is not without its disadvantages. Principal among them is
the absence of due process protection for the participants. The formalized procedural and
evidentiary rules of due process designed to protect parties and associated with the trial or
arbitration of a lawsuit are lacking in mediation

This lack of formality is a disadvantage in the eyes of those who believe it may permit mediator
bias, coercion, or party bad faith, For others, it affirms the need for a well-trained mediator or an
attorney to assist in preparation and to participate during the process to ensure that the important
legal rights not being waived without informed consent. A second concern for some parties and
attorneys is the absence of an appeal process in the event that the privately negotiated agreement is
later determined by one of the parties to be flawed in some way, because it is a highly confidential
process; it is never performed on the record or recorded by a court reporter.

DIFFERENCE BETWEEN MEDIATION AND LITIGATION:

Litigation Mediation
1 It’s a court-based process where laws and rules are It’s a private process where the laws and rules are not
followed by the book. followed that strictly.

2 It is very technical with various substantive laws It is not technical. The process is informal and simple.
and legal procedures
3 The judges are appointed by the state. The mediators are chosen by the parties.
4 The litigation takes place in designated courts. The time and venue can be decided by the parties in
mediation.
5 It is not private and confidential as the matter is It is private and confidential as the process is taken up
decided in open court system in a private venue without outsiders.

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 6 Both the parties cannot win. One wins and other Both the parties come to an amicable settlement. Both
loses which leads to adversity between the parties. are satisfied and happy and maintain a good relation
It creates a win- lose situation. after the mediation process is over. It creates a win –
win situation.

7 It consumes a lot of time and money because of It consumes less time and money as it fines quickly in
the elaborate procedure of law one or four meetings.

8 The parties have no control over the procedure. The parties have full control over the mediation
The advocates conduct the case. process.

9 Judgment /decree is passed at the end of litigation The process is voluntary. No judgement is passed.
which is binding on the parties. Only settlement is arrived which is non-binding.
Parties can abandon the process anytime.

10 It is a formal legal process and all disputes can be It is an informal process wherein only civil matter can
resolved both criminal and civil. be resolved. Criminal matters are strictly prohibited
for mediation.

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2. What are the Qualities of a Mediator? “The mediation process depends on the skills and
expertise of the mediator” Explain.

 QUALITIES OF A MEDIATOR
It goes without saying that the success of the mediation process depends on the skills and expertise of
the mediator. Therefore, training in mediation is imperative since one may be a good judge or a good
lawyer, but one may not be a good mediator as the qualities and skills required by a mediator are of a
very different kind from those required of a judge or a lawyer.

Mediators must be specially trained in the art of scientifically and professionally managing and
facilitating negotiation. Therefore, judges and lawyers have to be first trained in the art of mediation
and then permitted to serve as mediators.

The proposals in the ‘National Plan for Mediation’ also emphasize upon the selection of right
mediators and trainers and training to make them successful mediators. It is found that a minimum of
40 hours of specialized theoretical training by experts followed by conducting of 10 actual mediations
under the supervision of expert trainers give the mediators the required skills, knowledge and attitude
required for mediation

. A mediator, facilitates communication, promotes understanding, assists parties to identify interests,

uses creative problem-solving techniques enables parties to reach their own agreement. Mediator is a
person who has been permitted by the parties to intervene in the dispute arena solely for the purpose of
assisting and empowering them to achieve their own lasting settlements. The mediator establishes a
framework, or favourable climate, for co-operation between the parties. The selection of mediator is
done by parties or by the relevant authority.
The first and foremost condition is that the parties must have confidence in the mediator in order to
place trust in the mediator. The selection of the mediator can be based on both objective and subjective
matters.
Among the objective factors are

a) Mediation training
b) Mediation experience
c) expertise in the subject matter of the dispute
d) membership of the professional organization
e) accountability to mediation standards and ethics

Among the subjective criteria are

a) standing in the community

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b) reputation as a mediator or professional
c) personal style
d) Credibility of parties and their legal representatives
A mediator is employed by the disputing parties not to judge the rights and wrongs of the disputes but
to act as a catalyst for better communication and problem solving. Some of the desirable natural
qualities for becoming a successful mediator are
 To have a quick mind capable of picking up on clues about the real dynamics between disputants and
for teasing out hidden agendas;
 Mediators to possess some intuition. They should be aware of the feelings of parties and the success
of mediation
 To possess much patience and real interests in the problems of the others; and commitment to the
mediation;
 A mediator must know when to be self- effacing and quietly draw back from the centre stage.
 Analyze and assess conflict situations in order to develop the most appropriate forms of intervention.
By diagnosing the central causes of the conflict, mediators can determine their choices of tactics and
assist the parties to take appropriate action. They are in a unique position to impose pressure on the
parties with the object of pushing them into a settlement.
It is necessary that a mediator must possess certain basic qualities which include:
1. He must have Complete, genuine and unconditional faith in the process of mediation and its
efficacy.
2. He must have the Ability and commitment to strive for excellence in the art of mediation by
constantly updating skills and knowledge.
3. He must have Sensitivity, alertness and ability to perceive, appreciate and respect the needs,
interests, aspirations, emotions, sentiments, frame of mind and mindset of the parties to
mediation.
4. He must have Highest standards of honesty and integrity in conduct and behavior.
5. He must be Neutral, objective and non-judgmental.
6. He must have the Ability to be an attentive, active and patient listener.
7. He must have a calm, pleasant and cheerful disposition while listening to the parties during the
mediation process.
8. He must have Patience to listen to the parties and their issues.
9. He must be persistence and perseverance to resolve the dispute in an amicable manner.
10. He must have Good communication skills.
11. He must be Open minded and flexible.
12. He must have Empathy towards people and their issues.
13. He must be a Creative person who can give many creative solutions to the disputing parties
rather than failing the mediation process in a deadlock.
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3. Who is a Mediator? What is the role of a Mediator?

Ans: “Mediator means a person who intervenes in a dispute to bring about an agreement or
reconciliation. In other words, mediator is a third party, who assists the parties in amicably resolving
the disputes by using specified communication and negotiation techniques.

The Mediator’s job is to act as an intermediary or a medium taking a middle position in the process of
settlement of disputes”. A mediator, facilitates communication, promotes understanding, assists parties
to identify interests, uses creative problem-solving techniques enables parties to reach their own
agreement.

Mediator is a person who has been permitted by the parties to intervene in the dispute arena solely for
the purpose of assisting and empowering them to achieve their own lasting settlements. The mediator
establishes a framework, or favourable climate, for co-operation between the parties.

 ROLE OF MEDIATORS

Mediation is a process in which an impartial and neutral third person, the mediator, facilitates the
resolution of a dispute without suggesting what should be the solution. It is an informal and non-
adversarial process intended to help disputing parties to reach a mutually acceptable solution.

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The role of the mediator is to remove obstacles in communication, assist in the identification of issues
and the exploration of options and facilitate mutually acceptable agreements to resolve the dispute.
However, the ultimate decision rests solely with the parties.

A mediator cannot force or compel a party to make a particular decision or in any other way impair
or interfere with the party's right of self-determination.

The role play of the mediator is a key ingredient in the qualitative success of mediation. A band of
trained mediators is thus critical if mediation is to acquire a high degree of acceptability.

The essence of mediation lies in the role of the mediator as a facilitator. The mediator is not an
adjudicator. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator; the
mediator is neither a trier of fact nor an arbiter of disputes.

The role of the mediator is to create an environment in which parties before him are facilitated towards
resolving the dispute in a purely voluntary settlement or agreement.

The mediator is a neutral. The neutrality of the mediator is akin to the neutrality of a Judge but the role
of the mediator is completely different from that of a Judge. The mediator does not either deliver
judgment or dictate to the parties the terms of the agreement. As a neutral, the function of the mediator
is to enable the parties to arrive at a mutual and voluntary agreement.

This, the mediator can achieve if he understands and perceives the nature of his function correctly. As
a facilitator, the mediator has to understand the underlying issues between the parties. In order to do
so, the mediator has to open up communication between the parties and between the parties and
himself. The mediator has to enable the parties to understand their own interests and to understand the
interests of the disputing party.

The mediator must enable parties to distinguish between their positions and interests. In the process of
dialogue before him the mediator enables parties to appreciate and evaluate their own interests and
those of each other. All along, as he facilitates communication between the parties, the mediator
controls the process ensuring on the one hand that he is not judgmental or on the other, an advisor.

The effort of the mediator is to ensure that through the mediation dialogue parties arrive at a solution
which is in their best interest. The mediator has to be trained to develop effective communication
skills. Training in mediation has to allow the mediator to develop job specific skills such as the skill of
active listening. Active listening is the process by which a mediator decodes a verbal or non-verbal
message, identifies the basis for the message being expressed and then restates the message using
positive non-adversarial language.

Sometimes the mediator has to carry out a neutral reframing of a party’s positions in a manner which
would be inoffensive to the other. The mediator has to be trained to summarize the essence of
statements by parties regarding issues, positions and terms of agreement. The mediator has to learn to
acknowledge, which is an act by which he communicates having accurately understood the statement
of a party and its importance. The mediator has to set the agenda or the order in which issues, claims
and settlement terms will be discussed.

There are stages in the mediation when the mediator has to defer or postpone in response to a question
raised by one of the parties. Often times the mediator has to redirect the process by which he shifts the
focus from one subject to another.

The choice of words by a mediator is extremely significant because his language must be suggestive
of collaboration. The mediator has to eschew adversarial terms. Language which polarizes the parties
has to be avoided. An astute mediator would similarly avoid recourse to formal legal terminology such
as ‘liability’, ‘damages’, ‘faults’ and ‘rights.

The language of the mediator must promote the object of achieving self-determination, identifying
solutions, an open examination of alternatives and the exploration of alternative settlement proposals.

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The mediator needs to listen to the parties and although is not supposed himself/herself, has to ensure
that the parties do evolve a solution.

Judges and advocates are mostly using their legal learning and are quick to see their solution,
particularly legal solutions. They can quickly identify the points and counter points favoring or
harming the two parties. But the mediator needs another kind of skill: the ability to work towards
win-win solution for both parties.

The mediator is specially trained to not only allow the parties to speak but to extract as much
information possible from each party. The mediator does not have the authority of a judge. Nor should
he/she be perceived to be a person in that authority yet the mediator has to have to control over the
process.

He/She has to develop the skill to handle acrimonious situations and see that the parties’ maintain the
ground rules, the discipline, so to say, of allowing the process without being aggressive, insulting or
dominating. He/She has to know how to bring back order if one of the two parties, wittingly or
unwittingly, threatens to disrupt the process. Although the outcome rests with the parties, the mediator
is in control over the process.

The mediator has to know how to handle emotional outburst including anger and grief. He has to deal
with such parties with full empathy respecting their emotions and yet helping them to compose
themselves. In fact, emotions like anger and grief are at times important factor constituting the
grievances. We have now the 40-hour training of those who have been in the Bar and are willing to be
trained.

But we have no idea about their ability to be mediators or gauge the skills that they acquire in the 40-
hour training. Assessment at the intake level of mediators is necessary to get committed mediators. The
trainees must be evaluated on the basis of their aptitude to be patient, to be encouraging and persuasive
and generally be a ‘solid pillar’.

FACILITATIVE ROLE-
A mediator facilitates the process of mediation by-
i. Creating a conducive environment for the mediation process.
ii. Explaining the process and its ground rules.
iii. Facilitating communication between the parties using the various communication techniques.
iv. Identifying the obstacles to communication between the parties and removing them.
v. Gathering information about the dispute.
vi. Identifying the underlying interests.
vii. Maintaining control over the process and guiding focused discussion. Managing the
interaction between parties.
viii. Assisting the parties to generate options.
ix. Motivating the parties to agree on mutually acceptable settlement.
x. Assisting parties to reduce the agreement into writing.

EVALUATIVE ROLE
A mediator performs an evaluative role by-
i. Helping and guiding the parties to evaluate their case through reality - testing.
ii. Assisting the parties to evaluate the options for settlement.
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4. Explain the Concept of Mediation and What are the essential characteristics of
Mediation?
It has been suggested that the term mediate is derived from the Latin word ‘mediare’ which means ‘to
be in the middle’. Mediation as per Black’s Law Dictionary - A method of nonbinding dispute
resolution involving a neutral third party who tries to help the disputing parties reach a mutually
agreeable solution –Also termed conciliation. Mediation is - “a structured process, however named or
referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to
reach an agreement on the settlement of their dispute with the assistance of a mediator”. The inclusion
of the term “parties attempt by themselves” suggests that the mediator should not play an advisory or

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evaluative role in the resolution of the dispute, but the parties should come to a resolution by
themselves. Mediation as a process is distinct from litigation. Mediation is a process to resolve conflict
from society which in turn reduced the burden on the Court. The essence of mediation lies in the
parties themselves finding a lasting solution to resolve and end their conflict rather than determining
who is at fault. As Gandhiji said “It is a great service to join the hearts of those riven asunder”.
Mediation is the most popular technique which is being employed in resolving the disputes and is a
part of legal aid. Mediation is a process by which disputing parties seek the intervention and assistance
of a neutral third party to act as a mediator and to reduce their differences. He is a facilitator, who
helps the parties to reach a negotiated settlement. Mediation, as a method of dispute resolution is no
new phenomenon, rather one that has for long existed in our tradition. In most of the cases the
disputants desire for an amicable solution. Mediation has been employed by various tribes of our
country by way of a village council, usually consisting of certain village elders. Today, mediation is
perhaps the fastest growing form of alternative dispute resolution. In the process of mediation, the
mediator or the impartial neutral, plays an important role and the success of mediation depends upon
his ability and experience. He should have (use) his skill and ability to perceive and articulate the
grievance, the cause of conflict and the issue at stake. The Mediator has an active but a limited role. He
is a facilitating intermediary who has no authority to make any binding decisions, as he is not a judge,
but who adopts various procedures, techniques and skills to help the parties to resolve their dispute and
arrive at negotiated agreement without adjudication or to impose an award. In mediation process,
disputants will be empowered by putting them in control of their dispute’s resolution. It will enable
them to communicate with each other in a manner they could never have in a Court. They will receive
how much time, money and energy is saved by opting for mediation as a forum for resolving their
disputes. In mediation no party loses, but everyone wins. Mediation is a process whereby hundreds of
litigants will be able to look at their long-term interests and improve their future, not dissent the past. It
will help them realistically examine the strengths and weaknesses of their cases, restore their broken
relationship and actually opt for more than they have ever imagined. Mediation is a process which is
structured but, which at the same time does not involve the rigidity inherent in conventional litigation
settings. The mediator conducts the proceedings in an informal manner bearing in mind the
fundamental principle that his role is neither to advice nor to adjudicate. Rules of evidence do not
apply to the conduct of a mediation proceeding. Parties are at liberty to place whatever information that
they consider relevant. Information which cannot legally be received in evidence in a Court of law may
yet be relevant to a practical resolution of the issues between parties. Hence, all such information can
be received. Parties to mediation can be represented by legal advisors but they are invited to directly
participate by speaking in the course of mediation. A direct interface with the mediator is encouraged.
Essential characteristics of the mediation process –
1. Voluntary - The process is VOLUNTARY and any party can opt out of it at any stage if he
feels that it is not helping him. The self-determining nature of mediation ensures compliance
with the settlement reached. The parties are free to abandon the process at any time after the
first meeting if they find that the process does not meet their interest. there is no force or
compulsion for carrying out the mediation process.
2. Collaborative – Mediation process is a collaborative method where the process is carried out
with the collaboration and support of both the parties. Parties are encouraged or work together
to solve their problem and reach to an amicable solution.
3. Controlled - The parties have CONTROL over the mediation in terms of its scope (i.e., the
terms of reference or issues can be limited or expanded during the course of the proceedings)
and its outcome (i.e., the right to decide whether to settle or not and the terms of settlement.)
4. Confidential – the mediation process is a very private and confidential process where the
parties choose the mediator and the process is carried out behind closed doors. The persons
who are not party to the process cannot attend the mediation process until the parties agree to
do so.
5. Informal – the mediation process does not follow the technicalities of a court process and
laws. the parties decide their own time and place for the mediation process which makes it
flexible and informal.
6. impartial & neutral – the parties choose a mediator who is a neutral person means who is not
related to both the parties. Hence, the conciliator cannot be partial towards one party.
7. self-responsible- based upon having actively resolved the parties conflict, participation
satisfaction, like hood of compliance and self esteem are found by research to be dramatically
elevated through mediation process.

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 8. Mediation is PARTICIPATIVE. Parties get an opportunity to present their case in their own
words and to directly participate in the negotiation.
9. The procedure is SPEEDY, EFFICIENT and ECONOMICAL.
10. The procedure is SIMPLE and FLEXIBLE. It can be modified to suit the demands of each
case. Flexible scheduling allows parties to carry on with their day-to-day activities.
11. The process is conducted in an INFORMAL, CORDIAL and CONDUCIVE environment.
12. Mediation is a FAIR PROCESS. The mediator is impartial, neutral and independent. The
mediator ensures that pre-existing unequal relationships, if any, between the parties, do not
affect the negotiation.
13. The process is CONFIDENTIAL.
14. The process facilitates better and effective COMMUNICATION between the parties which is
crucial for a creative and meaningful negotiation.
15. Mediation helps to maintain/ improve/ restore relationships between the parties.
12. Mediation always takes into account the LONG TERM AND UNDERLYING INTERESTS
OF THE PARTIES at each stage of the dispute resolution process - in examining alternatives,
in generating and evaluating options and finally, in settling the dispute with focus on the
present and the future and not on the past. This provides an opportunity to the parties to
comprehensively resolve all their differences in mediation the focus is on resolving the dispute
in a MUTUALLY BENEFICIAL SETTLEMENT.
13. A mediation settlement often leads to the SETTLING OF RELATED/CONNECTED CASES
between the parties.
14. Mediation allows CREATIVITY in dispute resolution. Parties can accept creative and non-
conventional remedies which satisfy their underlying and long-term interests, even ignoring
their legal entitlements or liabilities.
15. When the parties themselves sign the terms of settlement, satisfying their underlying needs and
interests, there will be compliance.
16. Mediation PROMOTES FINALITY. The disputes are put to rest fully and finally, as there is
no scope for any appeal or revision and further litigation.
17. REFUND OF COURT FEES is permitted as per rules in the case of settlement in a court
referred mediation
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5. What are the Different models of mediation?
I. FACILITATIVE MEDIATION
In this type, any decision making is left to those involved, the mediator has no decision-making
authority. This is based on the belief that the people involved in the situation have the best
understanding of what they need for themselves and from each other.

Facilitative mediation helps parties in a conflict make their own decisions, in the belief that such
decision will have the best fit and therefore be highly sustainable. The mediator offers a structured
process for the parties to make best use of in seeking mutually satisfactory solutions. The process
consists of private, individual session first before being brought together for a joint session.

This approach is ideally suited to relationship situations such as conflicts in the workplace, community,
within families or with clients through complaints resolution where a win-win solution is needed in
order to maintain and strengthen relationships.

II. EVALUATIVE MEDIATION

Evaluative mediators are usually legal practitioners, often with an expertise in a particular area of law
relevant to the conflict. They will provide the parties with an evaluation of the strengths and
weaknesses of their case with respect to their legal positions. If asked they may also advise as to a
likely outcome at court.

They may also offer direction towards settlement options. There is a strong drive towards equitable
settlement as an efficient and economical alternative to legal measures. The process consists of
opening statements in a joint session and then parties are separated for the day and the majority of
work is done in side meetings. This approach is suited to business and contract disputes where there is

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no ongoing relationship and a compromise is sought. This approach is not suited to relationship issues
such as workplace, community and complaints resolution where face to face communication is
required and compromise is a limiting goal.

III. TRANSFORMATIVE MEDIATION

Transformative mediation is a much less structured approach that focuses on two key interpersonal
processes – empowerment and recognition. A transformative mediator aims to empower the parties
involved to make their own decisions and take their own actions.

They also work to foster and develop recognition for and between the parties. This is an organic
process and highly responsive to the parties needs. The parties are very much in charge of both the
content (the substantive issues) and the process, and the mediator works to support both as their
conflict unfolds and their relationship changes and strengthens.

IV. NARRATIVE MEDIATION

Narrative mediation takes a very different stance to conflict. Focusing less on negotiation and more on
how people make sense of the world. By telling stories of events and by giving meaning to these events
people construct their own reality. People in conflict will tell conflict stories that help them make sense
of the situation, the other person and themselves. Conflict stories can be limiting and paralyzing.
Narrative mediators believe that for every conflict story there is an alternative story that can make co-
operation and trust more available. Narrative mediators help parties rewrite new and more constructive
stories.
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6. Explain the code of Conduct for mediators.
CODE OF CONDUCT FOR MEDIATORS

1. Avoid conflict of interest

A mediator must avoid mediating in cases where they have direct personal, professional or financial
interest in the outcome of the dispute. If the mediator has any indirect interest (e.g. he works in a firm
with someone who has an interest in the outcome or he is related to someone who has such an interest)
he is bound to disclose to the parties such indirect interest at the earliest opportunity and he shall not
mediate in the case unless the parties specifically agree to accept him as mediator despite such indirect
interest. Where the mediator is an advocate, he shall not appear for any of the parties in respect of the
dispute which he had mediated. A mediator should not establish or seek to establish a professional
relationship with any of the parties to the dispute until the expiry of a reasonable period after the
conclusion of the mediation proceedings

2. Awareness about competence and professional role boundaries

Mediators have a duty to know the limits of their competence and ability in order to avoid taking on
assignments which they are not equipped to handle and to communicate candidly with the parties about
their background and experience. Mediators must avoid providing other types of professional service
to the parties to mediation, even if they are licensed to provide it. Even though, they may be competent
to provide such services, they will be compromising their effectiveness as mediators when they wear
two hats.
3. Practice Neutrality
Mediators have a duty to remain neutral throughout the mediation i.e. from beginning to end. Their
words, manner, attitude, body language and process management must reflect an impartial and even-
handed approach.

4. Ensure Voluntariness
The mediators must respect the voluntary nature of mediation and must recognize the right of the
parties to withdraw from the mediation at any stage.

5. Maintain Confidentiality
Mediation being confidential in nature, a mediator shall be faithful to the relationship of trust and
confidentiality imposed on him as a mediator. The mediator should not disclose any matter which a
party requires to be kept confidential unless;

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 a. the mediator is specifically given permission to do so by the party concerned; or b. the
mediator is required by law to do so.

6. DO NO HARM
Mediators should avoid conducting the mediation process in a manner that may harm the participants
or worsen the dispute. Some people suffer from emotional disturbances that make mediation
potentially damaging psychologically. Some people come to mediation at a stage when they are not
ready to be there. Some people are willing and able to participate, but the mediator handles the process
in a way that inflames the parties' antagonism towards each other rather than resolving. In such
situations, the mediator must modify the process (e.g. meet the parties separately or meet the counsel
only) and if necessary, withdraw from mediation when it becomes apparent that mediation, even as
modified, is inappropriate or harmful.

7. Promote Self-determination

Supporting and encouraging the parties in mediation to make their own decisions (both individually
and collectively) about the resolution of the dispute rather than imposing the ideas of the mediator or
others, is fundamental to the mediation process. Mediator should ensure that there is no domination by
any party or person preventing a party from making his/her own decision

8. Facilitate Informed Consent

Settlement of dispute must be based on informed consent. Although, the mediator may not be the
source of information for the parties, mediator should try to ensure that the parties have enough
information and data to assess their options of settlement and the alternatives to settlement. If the
parties lack such information and data, the mediator may suggest to them how they might obtain it.

9. Discharge Duties to third parties

Just as the mediator should do no harm to the parties, he should also consider whether a proposed
settlement may harm others who are not participating in the mediation.
This is more important when the third parties likely to be affected by a mediated settlement are
children or other vulnerable people, such as the elderly or the infirm.
Since third parties are not directly involved in the process, the mediator has a duty to ask the parties for
information about the likely impact of the settlement on others and encourage the parties to consider
the interest of such third parties also

10. Commitment to Honesty and Integrity

For a mediator, honesty means, among other things, full and fair disclosure of :his qualifications and
prior experience; direct or indirect interest if any, in the outcome of the dispute; any fees that the
parties will be charged for the mediation; and any other aspect of the mediation which may affect the
party's willingness to participate in the process. Apart from the fee/remuneration/honorarium, if any,
prescribed under the rules, the mediator shall not seek or receive any amount or gift from the parties to
the mediation either before or after the conclusion of the mediation process. Where the mediator is a
judicial officer, he shall not mediate any dispute involved in or connected with a case pending in his
Court.

IN SHORT POINTS:
Ethics is a part of the code of conduct applicable to a mediator in the process of mediation. It is based
upon certain values that are intrinsic to Mediation i.e.-
1) Every act, conduct, dealing of the Mediator related to or connected with Mediation, the parties
and the process is required to be Fair, Unbiased, Impartial and Equitable.
2) The conduct of the Mediator should be above board and in conformity with the highest moral
standards.
3) The Mediator must maintain confidentiality.
4) The conduct of the Mediator must reflect and be in conformity with the universally acceptable
‘good practices’.
5) The Mediator should refrain from promises or guarantee of results.
6) The Mediator would withdraw from the Mediation if he / she even remotely senses that he/she
cannot be impartial.

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 7) The Mediator shall not be judgmental nor express an opinion on any issue even if requested or
demanded by parties.
8) The Mediator will upload the integrity and fairness of the Mediation process.
9) The Mediator should not compel parties to enter into a settlement.
10) The Mediator shall disclose any interest in or relationship with the subject matter of dispute or
parties which is likely to affect his / her impartiality or lead to bias or apprehension of bias.
11) The Mediator will not render legal advice to any party even if requested.
12) The Mediator shall satisfy himself / herself that he is to complete the assignment in a
professional manner.
13) The Mediator shall recognize that mediation is based on principals of self-determination by the
parties and that the mediation process relies upon the ability of parties to reach an agreement
voluntarily.

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