FAQs

   
 

1. What is mediation/conciliation?

Mediation/conciliation is a dispute resolution process in which a trained neutral third party, called the mediator/conciliator, assists the parties to a dispute to resolve their disputes through a facilitated negotiation. The negotiations are private and confidential. The mediator/conciliator helps the disputants to understand, evaluate options for resolving the dispute between them.

2. What are the kinds of disputes that can be resolved through mediation/conciliation?

Any dispute can be resolved through mediation/conciliation. Disputes arising out of any relationship, contractual or otherwise can be resolved through mediation/conciliation. These will include commercial, employment, matrimonial, family, custody, maintenance and alimony, partition, business, real estate, consumer disputes, etc.

3. How does the process of mediation/conciliation work?

Once both parties agree to resolve their dispute through mediation/conciliation, the time and venue for the meeting is fixed. Mediation/conciliation starts with a joint session where the mediator/conciliator explains the process and the ground rules to all the parties. The Mediator/conciliator then listens to what the parties have to say about their respective positions. After listening to both parties, the Mediator/conciliator works with the parties to understand and identify their underlying issues, concerns and expectations.

This may be done in the joint session itself or in private sessions with each of the parties. The Mediator/conciliator continues to work with the parties to generate as many options as possible to address their issues and concerns and to resolve the dispute. Once the parties are able to reach a meeting point, the Mediator/conciliator in a joint session formulates the terms of the agreement in discussion with the parties and their lawyers. The agreement is then recorded and passed as an award.

The mediator/conciliator controls the process and assists parties to determine the outcome by having joint and separate sessions with the parties as deemed necessary. Parties get clarity about the issues, disclose concerns and voice their inner fears in separate sessions and understand the perception of the other party in joint sessions. They then consider and evaluate options and come to a solution which is reduced to an agreement once they are sure about their choice.

4. Are lawyers necessary in the mediation/conciliation process?

Lawyers can form an integral part of the process as they guide and advise the parties in the negotiation process and on the legality of the agreement that may be reached. However, the decision to bring a lawyer is that of the parties.

5. How can I initiate mediation/conciliation if the other side has not agreed?

You can approach FCDR who will contact the other side and ascertain their willingness to participate in a mediation/conciliation to resolve the dispute.

6. Is a written agreement to mediate necessary to take recourse to mediation/conciliation?

No. Unlike arbitration, where there should be an agreement in writing between both parties to arbitrate and where only parties to such arbitration agreement can invoke the arbitration, in mediation/conciliation there is no necessity of such a written agreement. It is enough if one party suggests mediation/conciliation and the other agrees. This form of agreement is sufficient for a valid mediation/conciliation to take place.

7. Is any formal training or qualification required to be a mediator/conciliator?

Yes. Mediation/conciliation being a process requiring specialized skills in negotiation, handling people and problem-solving, a specialized training is mandatory.

8. Who can be a mediator/conciliator?

Any person can be a mediator/conciliator provided he has undergone the requisite training and has some special knowledge of the subject matter of the dispute and knows the fundamental elements of law to ensure that a legally enforceable agreement is reached between the parties.

9. What is the effect of an agreement reached in mediation/conciliation?

An agreement reached in mediation/conciliation is deemed to be an “arbitral award on agreed terms” under the provisions of the Arbitration and Conciliation Act, 1996. Hence it is enforceable as if it were a court order or decree.

10. Can an agreement reached in mediation/conciliation be challenged in appeal?

There are limited grounds to challenge the mediated/conciliated agreement, which is an award.

11. How can I become a mediator/conciliator?

You can become a mediator/conciliator by undergoing training through an institution such as FCDR. There are also court-annexed training programs but these are open only for lawyers who are selected by the court-appointed committees.

12. How can I invoke mediation/conciliation?

You can approach an institution like FCDR with a request to mediate the dispute. FCDR will then issue a notice to the other party/parties requesting them to indicate their consent for the mediation/conciliation within 30 days of receipt of the notice. If the other party/parties agree to the mediation/conciliation, then FCDR will nominate one of their panel mediator/conciliators to mediate the dispute. If the other party/parties refuse or do not reply, it will be deemed to be refusal on their part and in such a case, the mediation/conciliation cannot take place and you have to opt for the usual methods to resolve the dispute like litigation.

13. What are the fees payable to a mediator/conciliator?

Mediator/conciliators usually fix their fees based on the complexity of the dispute and time that is likely to be taken. Usually a fee is fixed for each session. Please contact FCDR for the schedule of fees.

14. What are the advantages of mediation/conciliation?

Mediation/conciliation is a much quicker process than arbitration or litigation. Depending on the nature of the dispute, the mediation/conciliation would normally be over in 3 to 4 sessions of 3 hours each.

 

Secondly, the process is private and confidential.

 

Thirdly, it is cost-effective as compared to arbitration and litigation.

 

Fourthly, it is final and binding.

 

Through the mediation/conciliation process, the parties get clarity by discussing the issues and are able to work on these and related issues and arrive at a realistic solution for the matters referred. Related and connected issues can also be resolved through this process.

15. Is confidentiality legally protected in mediation/conciliation?

Yes. Confidentiality is protected under the Arbitration and Conciliation Act, 1996.

16. Can there be a mediation/conciliation clause in a contract?

Yes. Parties can agree that in case of disputes arising under the contract, recourse will first be had to mediation/conciliation and in case mediation/conciliation fails the parties will go in for arbitration or to the court.

17. What is the difference between an arbitral award and mediation/conciliation award?

An arbitral award is the decision taken by the arbitrator after hearing both sides and evaluating their evidence. It usually favours one party and finds against the other and can be challenged in court. A mediation/conciliation agreement is a consensual agreement and since the terms for the settlement agreement originates from the parties it is workable and is less likely to be challenged.

18. What should be the form of a mediation/conciliation award?

Since the agreement reached in mediation/conciliation is deemed to be an award on agreed terms, it has to be duly stamped and given in the form of an arbitral award.