Guidelines

Very often, if a case is referred for judicial mediation, it proves to be successful because of the appropriateness of the cases. Judges of Supreme Court and High Courts refer these cases in the very beginning and this decides the success or failure. When wrong cases are referred to, it results in failure. In a study, it was found out that at least 20% of the cases referred for judicial mediation were not appropriate. This not only wastes the time of the mediating authorities, but also affects the efficiency of the mediation centres. Inappropriate cases are needed to be started from scratch, thereby consuming a lot of time. Therefore, judges should exercise some control and check before referring cases for mediation. There are certain guidelines to be followed for the same, for the benefit of the judges.

Categories of Cases fit for Mediation

Certain types of cases are perfect to be referred for mediation. As per recent studies and history of cases referred to in the past, the following kinds of cases are highly likely to succeed in mediation.

• Civil Case:
• Injunctions
• Specific performance
• Civil recovery
• Labour
• Motor Accident Claim Cases
• Landlord/tenant disputes :
• Matrimonial Cases :
• Criminal Cases

Suitable criminal cases include:-

• Section 406/498A IPC
• Section 138 N. I. Act.

Selection of Cases

The judge who refers a case should weigh all the necessary information regarding the case and should evaluate if it would succeed in mediation or not. If a particular case is quite old and disputing parties are educated, there has been a low emotional quotient in the previous dispute handling method. If the issues between the parties are quite significant, it has a high probability to succeed in mediation. The judge may also think of certain appropriate reasons on a why a case should be referred for mediation based on his experience and history. Judges should always ensure that they don’t refer cases to mediation centres just to pass the responsibility. It not only delays justice delivery, but it could also come back harsher when the case is passed back to him after unsuccessful mediation.

Party Characteristics

• When mediation costs and time taken for the same is not more than actual litigation process.
• When both the parties are willing to try out mediation to solve their problems amicably.
• When the Government would not be involved in the process.

Case Characteristics

• The case should not be too complex for mediation, unclear history or contain issues relating to the constitution or public policies.
• The judge referring the case should evaluate if the case has been referred earlier for mediation and why the mediation process had not been successful back then.

Consent

• If the number of parties involved in a particular case is very big, then it may not be advisable to refer the same for mediation. Only if all the concerned parties are open for an amicable settlement of their disputes, mediation would work in this case.
• CPC Section 89 explains that mediation should be chosen only for cases where settlement is a possible option. Before referring a particular case for mediation, the judge should enquire and collect all relevant information upon which he should base his decision. Some of the factors that a judge should consider while referring are:
• Check if all the parties involved have the willingness to go through mediation and settle all the pending disputes among them. If a case has proved that there is no basic trust among the parties and that the parties just wanted to delay the proceedings with no objective of settlement, it should never be referred for mediation. The parties must be clearly informed that mediation should never be chosen for delaying the justice delivery.
• If one of the parties has already agreed for mediation and the other party is willing to try a hand at the open and amicable solution of mediation, then the case has all the qualifications to be referred for mediation.
• When both the parties have not agreed for a final settlement, but they are willing to sit through, talk out their disputes openly and agree for mutual win-win situation, then such a case can be referred for mediation. In this case, since both the parties agree for a settlement, the judge should try if he can do it himself before passing it over to the mediation centre.
• When both the parties have not agreed for a settlement, but the judge still believes that an amicable solution is possible in the case, it should be referred for mediation. This is where the judge’s gut instinct and experience proves to be handy. This could work in a case where both the concerned parties might be ignorant of the law, but might get convinced when a third party mediator gives them personalised attention, explains about the law and how claims can be applied for etc.

Conference With the Parties

• When the parties are not agreeing for a settlement, they can be given some awareness about a mediation centre in the form of a pamphlet. The judge can talk to both the parties personally about the benefits of mediation and how damages can be reduced in this process. This could make the parties become inclined towards mediation.
• A judge should sit with both the parties and get all information from them about the nitty-gritties of the case relating to the issues and the probability of a final settlement. In case, the parties have a dispute relating to a financial settlement, then it could be easily solved through mediation.
• The benefits of mediation should be clearly and patiently explained to the parties by the referring judge and pamphlets should be mandatorily distributed to them to make them more aware.
• Facts like no cost for mediation process and that in appropriate cases, the complainant is eligible for refund, etc. are some attractive points that could make the parties more open for mediation.
• The parties should be educated that mediation will be done by a highly qualified lawyer, who would approach the problem in a very friendly yet practical way.
• Parties should also be told that mediation would not compel them in any way and that details shared in this process would be kept strictly confidential.

Schedule of appearance before Mediation Centre

The referring judge issues an order to the parties regarding the time, date and venue of the mediation centre they should report at to take the case forward.

Production of Documents

As per the referring Judge’s instruction, the concerned parties should furnish all the relevant documents at the mediation centre to prove the facts explained in the mediation. This will ensure that justice is delivered quickly and efficiently.

Referral Order

This is the document that flags off the mediation process and explains the rules and methodologies of the process. The contents of this referral order are:

• First and foremost, it should contain a rule authorising a judge for referring the cases for mediation.
• The duties and responsibilities of the mediator or the expert.
• All necessary and relevant documents should either file or submitted at the mediation centre before starting off with the process.
• Rules pertaining to who can appear before the mediator, whether it is only the parties or their lawyers as well, should be clearly mentioned in the referral order.
• Disclaimer that parties involved in mediation does so in good faith.
• Clear-cut guidelines pertaining to the timeframe for the process and finalisation of mediation should be mentioned.
• Clear policies stating that all facts shared during mediation process would be kept strictly confidential.

Conclusion

A case should be referred for mediation only after investing a lot of time and research. The success of mediation process hugely depends on the appropriateness of the cases referred. Due to this process, the efficiency of the court increases to a great extent as backlogs are cleared quickly.

Mediation does not provide overnight results. It requires a lot of patience, time and many rounds of discussions before a case reaches an amicable settlement in the mediation process.