Unit 2

2.1 Mediation: Types and Advantages

Mediation is a dispute resolution process where a neutral third party (the mediator) helps conflicting parties reach a
mutually acceptable agreement. It is a voluntary, confidential, and cost-effective alternative to litigation.
Types of Mediation
1. Facilitative Mediation
o The mediator helps parties communicate and understand each other's perspectives.
o No legal advice is given; the focus is on mutual problem-solving.
2. Evaluative Mediation
o The mediator assesses the strengths and weaknesses of each side's case.
o Often used in legal disputes where a legal expert serves as the mediator.
3. Transformative Mediation
o Focuses on improving relationships and empowering individuals.
o Used in interpersonal disputes, such as workplace or family conflicts.
4. Court-Mandated Mediation
o Ordered by a court before litigation to encourage settlement.
o Common in divorce, custody, and civil disputes.
5. Arbitration-Mediation (Med-Arb)
o A hybrid where mediation is attempted first, but if no agreement is reached, the mediator acts as an
arbitrator and makes a binding decision.
6. Online Mediation
o Conducted through virtual platforms for convenience and accessibility.
o Useful for cross-border disputes or when parties cannot meet in person.

Advantages of Mediation
1. Cost-Effective
o Less expensive than litigation.
o Reduces legal fees and court costs.
2. Time-Saving
o Resolves disputes faster than court proceedings.
o Flexible scheduling based on the parties' availability.
3. Confidential
o Discussions remain private, unlike public court cases.
o Protects sensitive information.
4. Preserves Relationships
o Encourages cooperative communication.
o Helps maintain personal or business relationships.
 5. Voluntary and Flexible
o Parties control the outcome instead of a judge.
o Can create personalized solutions tailored to both sides.
6. Less Stressful
o A more informal and less adversarial process.
o Reduces emotional strain compared to litigation.
7. High Compliance Rate
o Agreements reached through mutual consent are more likely to be honored.
o Less need for enforcement measures.
Mediation is an effective alternative for resolving disputes amicably, making it a preferred choice in legal, business, and
personal conflicts.

Comparison Between Judicial Process and Mediation.

Aspect Judicial Process Mediation

A formal legal process where a judge or A voluntary and confidential process where a neutral
authorized authority adjudicates disputes third party (mediator) facilitates communication
Definition
based on statutory laws and legal between disputing parties to help them reach a mutually
precedents. acceptable agreement.

Adjudicatory and adversarial; the judge Collaborative and non-adjudicatory; the mediator
Nature of Process imposes a binding decision after assists parties in negotiating their own resolution
evaluating evidence and legal arguments. without imposing decisions.

The outcome is determined by the judge,

Control over Parties retain full control over the outcome, crafting
and parties have limited control over the
Outcome solutions that best meet their interests and needs.
final decision.

Governed by strict procedural rules and

Procedural Flexible procedures tailored to the parties' preferences,
evidence laws, leading to a more rigid
Formality allowing for a more informal and adaptable approach.
and formal process.

Proceedings are typically public, and Discussions are private and confidential, with
Confidentiality records are accessible as part of the information disclosed during mediation generally not
public domain. admissible in court.

Often time-consuming and costly due to Generally more time-efficient and cost-effective,
Time and Cost lengthy procedures, court fees, and legal focusing on expedited resolutions with reduced
representation expenses. expenses.

The adversarial nature may strain or

Aims to preserve and improve relationships by
Relationship Impact further damage relationships between
fostering mutual understanding and cooperation.
parties.

Decisions are legally binding and Agreements reached are binding only if all parties
Binding Nature enforceable; parties must comply with consent; otherwise, parties may pursue other dispute
the court's judgment. resolution methods.

The judge acts as a decision-maker with The mediator facilitates dialogue without decision-
Role of Third Party authority to impose a resolution based on making power, guiding parties toward a mutually
law. agreeable solution.
Aspect Judicial Process Mediation

Well-suited for complex legal issues May not be suitable for cases requiring legal precedents
Suitability for
requiring authoritative rulings and legal or authoritative rulings, especially where power
Complex Cases
precedents. imbalances exist.

Court judgments are enforceable by law, Enforcement relies on the parties' commitment to the
Enforcement of
with mechanisms in place to ensure agreement; legal enforcement may require additional
Decisions
compliance. steps.

Emotional and
The adversarial setting can increase stress The collaborative environment often reduces stress and
Psychological
and emotional strain on parties. promotes a sense of empowerment among parties.
Impact

Public Perception Court cases are public, which may lead to Mediation is private, reducing the risk of public
and Stigma reputational risks and public scrutiny. exposure and potential stigma.

Advantages and Disadvantages

Judicial Process
Advantages:
 Authoritative Resolution: Provides a definitive and legally binding decision, which is crucial for setting legal
precedents and resolving complex legal issues.
 Enforcement Mechanisms: Courts have the authority to enforce judgments, ensuring compliance through legal
means.
 Public Record: Creates a public record of proceedings and decisions, contributing to legal transparency and
accountability.
Disadvantages:
 Costly and Time-Consuming: Legal proceedings can be expensive and protracted, leading to financial and
emotional strain on the parties involved.
 Adversarial Nature: The win-lose dynamic can exacerbate conflicts and damage relationships, making future
cooperation difficult.
 Limited Control: Parties have little control over the outcome, as decisions are imposed by the judge based on
legal considerations.
Mediation
Advantages:
 Cost-Effective and Efficient: Typically involves lower costs and faster resolutions compared to litigation.
 Preserves Relationships: The collaborative approach fosters mutual understanding and helps maintain or
improve relationships.
 Confidentiality: Keeps disputes and their resolutions private, protecting the parties' reputations and personal
matters.
 Flexibility: Allows for creative solutions tailored to the specific needs and interests of the parties involved.
Disadvantages:
 Non-Binding Nature: Agreements reached in mediation are not legally binding unless formalized in a contract,
which may require additional legal steps for enforcement.
 Unsuitable for Certain Cases: May not be appropriate for disputes requiring legal precedents, authoritative
rulings, or where significant power imbalances exist.
  Dependence on Cooperation: Success relies on the willingness of both parties to negotiate in good faith; lack of
cooperation can lead to impasse.
Recent Developments
It's noteworthy that the availability and support for mediation services can vary by region and over time. For instance, in
New South Wales, Australia, the government decided to close the Community Justice Centre (CJC) program, effective
June 2025. Established over 40 years ago, the CJC offered free mediation services for various disputes, achieving an 80%
success rate. The closure, attributed by the government to a decrease in demand due to other mediation services, is
disputed by mediators, who cite significant declines and reduced outreach over the past decade. This decision has raised
concerns about increased costs, court burdens, and mental health issues, while dismantling a highly valued, effective
mediation system.
Case Laws Illustrating the Judicial Process and Mediation
To further understand the practical applications of the judicial process and mediation, let's explore notable case laws that
highlight these mechanisms.
1. Mediation in the Indian Legal System: Lok Adalat
Case Example: State of Punjab & Anr vs Jalour Singh & Ors (2008)
 Background: The Lok Adalat system in India serves as an alternative dispute resolution mechanism, facilitating
amicable settlements without formal court proceedings.
 Case Details: In State of Punjab & Anr vs Jalour Singh & Ors, the Supreme Court of India addressed the binding
nature of awards passed by Lok Adalats. The court held that an award by a Lok Adalat is deemed a decree of a
civil court and is final and binding on all parties, with no provision for appeal.
 Significance: This case underscores the effectiveness of mediation through Lok Adalats in delivering swift and
binding resolutions, reducing the burden on traditional courts.
2. Judicial Process in Bankruptcy Cases: Albany Diocese
Case Example: Sexual Abuse Lawsuits Against the Roman Catholic Diocese of Albany (2025)
 Background: In the United States, the judicial process often involves formal litigation, especially in complex
cases like bankruptcy and mass torts.
 Case Details: In 2025, a federal judge lifted a stay to allow seven child sexual abuse lawsuits against the Roman
Catholic Diocese of Albany to proceed to trial. This decision came after mediation efforts stalled in the diocese's
bankruptcy case. The plaintiffs sought trials to determine fair compensation, highlighting the limitations of
mediation in certain contexts.
 Significance: This case illustrates that while mediation can be effective, the judicial process remains essential
when mediation reaches an impasse or when parties seek authoritative resolutions.
3. Mandatory Mediation: Ontario's Experience
Case Example: Ontario Mandatory Mediation Program (1999)
 Background: To address delays and high costs in civil litigation, Ontario implemented a mandatory mediation
program for non-family civil cases.
 Case Details: The program required parties to participate in mediation before proceeding to trial. Reports
indicated that mandatory mediation reduced both the cost and time required to resolve disputes, with
approximately two-thirds of participants acknowledging its benefits.
 Significance: This initiative demonstrates how integrating mediation into the judicial process can enhance
efficiency and satisfaction among disputants.

Conclusion
Both the judicial process and mediation have their respective merits and limitations. The choice between them depends on
various factors, including the nature of the dispute, the relationship between the parties, the desired confidentiality, and
the need for a legally binding resolution. Understanding these differences enables individuals and organizations to select
the most appropriate method for resolving their specific conflicts.

2.2 Stages of Mediation: Introduction and Opening Statement, Joint Session, Separate Session, and Closing
Introduction
Mediation is a structured dispute resolution process in which a neutral third party, the mediator, facilitates discussions
between disputing parties to help them reach a mutually acceptable agreement. Unlike litigation or arbitration, mediation
is collaborative, confidential, and often less expensive and time-consuming. The process follows specific stages, ensuring
fairness and effectiveness in resolving conflicts. The key stages include:
1. Introduction and Opening Statement
2. Joint Session
3. Separate Session (Caucus)
4. Closing
Each of these stages plays a crucial role in achieving a successful resolution. This document explores each stage in detail,
supported by relevant case laws illustrating mediation's role in resolving disputes effectively.
Convening Mediation
1. Reference to ADR by Court
Under Section 89 and Order X Rule 1A of the CPC, courts direct parties to opt for ADR—Arbitration, Conciliation,
Judicial Settlement, Lok Adalat, or Mediation. The referral judge assesses the case's suitability for ADR and makes the
reference at an appropriate stage (e.g., post-pleadings in civil cases, post-notice in family matters).
2. Preparation for Mediation
The judge encourages parties to mediate, addressing reluctance and explaining mediation’s benefits. While consent is
needed, courts can apply pressure to induce participation.
3. Referral Order
The referral judge issues a referral order, detailing case particulars, trial stage, statutory basis, mediator details,
mediation timeline, and parties' contact information. This order formally initiates mediation.

1. Introduction and Opening Statement

Purpose of this Stage
The introduction and opening statement stage sets the tone for the mediation process. The mediator outlines the mediation
rules, explains the process, and establishes an atmosphere of respect and cooperation.
Key Elements
 Introduction of the Mediator and Participants: The mediator introduces themselves and asks the disputing
parties to do the same.
 Explanation of Mediation Process: The mediator provides an overview of the process, including confidentiality,
neutrality, and voluntary participation.
 Ground Rules: Establishing guidelines such as respectful communication, speaking one at a time, and
maintaining confidentiality.
 Opening Statements by Parties: Each party presents their perspective on the dispute without interruptions.
The mediator has to ensure that the parties and their counsels are present at the commencement of the mediation process.
Introduction and Opening Statement
Introduction
* The mediator gives an introduction with his qualifications, establishes his neutrality and reposes faith in the mediation
process.
* The mediator requests the parties to introduce themselves, attempts to develop a rapport with them and gain their
confidence and trust.
* The motive is to create a constructive environment conducive to negotiations and motivate the parties for an amicable
resolution of disputes.
* The mediator establishes control over the mediation process.
* There is no standard set of rules that have to be followed, making the mediation procedure flexible.
Opening Statements
* The mediator's opening statement is intended to explain to the parties-

 the concepts, processes and stages of mediation,

 the role of the mediator, advocates and parties and
 the advantages and ground rules of mediation.
* The mediator confirms that the parties have understood the process and gives them the opportunity to get any doubts
clarified.
* Statements are also sought from the negotiators. The parties articulate their positions, enabling the other party to
understand what they want.
* This is followed by a restatement of the problem by the mediator where an attempt is made to incorporate the differing
perspectives.
Setting the Agenda
* Setting the agenda is an important duty imparted on the mediator in order to shed clarity on the mediation proceedings
and
remove vagueness.
* It involves setting down the order in which negotiation is to proceed and gives the parties a standard using which they
can individually evaluate the progress of the negotiations.
* The mediator may mention the time and venues for the negotiation sessions, along with the issues before the parties, to
be discussed sequentially.
Case Law: KSR International Co. v. Teleflex Inc. (2007)
This U.S. Supreme Court case highlighted the importance of structured discussions in intellectual property disputes.
Before litigation, mediation efforts included clear opening statements, allowing both parties to clarify their positions on
patent rights, although the case ultimately proceeded to litigation.
2. Joint Session
Purpose of this Stage
The joint session enables direct communication between the disputing parties, facilitated by the mediator. The goal is to
identify key issues, clarify misunderstandings, and encourage dialogue.
Key Elements
 Active Listening and Open Communication: Parties express their concerns and listen to the other side’s
viewpoint.
 Identification of Key Issues: The mediator summarizes the core issues that need resolution.
 Exploration of Interests: Understanding each party’s underlying interests rather than just their stated positions
Step 2 : Joint Session
The purpose of the joint session is to gather information.
* The mediator provides an opportunity for the parties to hear and understand each other's perspectives, relationships and
feelings.
* The petitioner is allowed to explain their case in their own words, followed by the presentation of the case by their
counsel and the statement of the legal issues. Similarly, the defendant is allowed to explain their case, followed by the
presentation of the case and statement of the legal issues involved by the defendant's counsel.
* The mediator attempts to understand the facts, issues, obstacles and possibilities and ensures that each participant feels
heard.
* The mediator encourages communication and asks questions to elicit information.
* At the completion of the joint session, the mediator may also suggest meeting each party with their counsel separately.
Case Law: Lok Adalat and Mediation in India (State of Punjab & Anr vs. Jalour Singh & Ors, 2008)
In India, Lok Adalats serve as platforms for joint discussions. In this case, mediation helped settle compensation claims
amicably. The joint session allowed both parties to express their concerns, leading to a binding resolution without
prolonged litigation.
3. Separate Session (Caucus)
Purpose of this Stage
In the separate session, or caucus, the mediator meets individually with each party. This stage provides an opportunity for
private discussions, allowing parties to express concerns they might hesitate to share in a joint session.
Key Elements
 Confidential Discussion: Information shared remains confidential unless explicitly permitted for disclosure.
 Reality Testing: The mediator helps each party assess the strengths and weaknesses of their case.
 Exploring Settlement Options: Parties brainstorm potential solutions in a confidential setting.
Step 3: Separate Sessions
* The separate sessions are meant for the mediator to understand the dispute at a deeper level.
* It provides the parties with a forum to further vent their feelings and disclose confidential information they do not wish
to share with the other parties.
* It helps the mediator to understand the underlying interests of the parties, the positions taken by them and the reasons
for these positions, identify areas of dispute, differential priorities and common interests, and to shift the parties to a mood
of finding mutually-acceptable solutions.
* The mediator is supposed to reaffirm confidentiality, gather further information and challenge and test the perceptions
and conclusions of the parties in order to open their minds to different possibilities. This is to be done by asking effective
questions and helping the parties understand the strengths and weaknesses of their cases.
* The mediator offers options which he feels bests satisfies the underlying interests of the parties.
Case Law: Brown v. Board of Education Settlement (2001)
In the post-litigation phase of desegregation disputes in the U.S., mediation played a key role in implementing school
reforms. Private caucuses allowed school boards and civil rights groups to negotiate without public or political pressure.
4. Closing Stage
Purpose of this Stage
The closing stage ensures that parties reach a clear, enforceable agreement or decide on next steps if no resolution is
achieved.
Key Elements
  Summarizing Agreements: The mediator summarizes the key terms of the agreement.
 Drafting and Signing the Agreement: A written agreement is prepared and signed by both parties.
 Future Steps: If no resolution is reached, parties may agree to reconvene or pursue litigation.
Case Law: Mediation in Divorce Settlements (Katz v. Katz, 2019)
In this high-profile divorce mediation, private caucuses and final joint discussions led to a confidential settlement,
avoiding public litigation and ensuring financial and custodial agreements.
Step 4 : Reaching a Settlement
* By helping parties to understand the reality of their situation and give up rigid positions, the mediator creates creative
options for settlement.
* The mediator can conduct as many separate sessions as necessary and may even conduct sessions with groups on the
same side with diverging interests.
* The parties negotiate through the mediator until a solution mutually acceptable to all the parties involved. The mediator
directs the parties to a solution which he believes will satisfy the underlying interests of the parties.
* In case negotiations fail, the case is sent back to the referral court.
Closing
* There is no fixed procedure that must be followed.
* Once the terms of the settlement have been agreed to, the parties are reassembled.
* The mediator orally confirms the terms the terms of the settlement as a procedural requirement.
* The parties, with the mediator's aid, write down the terms of the settlement and sign the agreement.
* The settlement has the binding nature of a contract and is enforceable in a court of law.
* In his closing comment, the mediator thanks the parties for their help and participation in the mediation process.
In case no settlement is reached between the parties, the case is returned to the referral court stating failure to settle. The
proceedings of the mediation are kept confidential and cannot be revealed even to the court.
Conclusion
Mediation follows a structured yet flexible approach, guiding parties through discussions to resolve disputes amicably.
The success of mediation depends on adherence to these stages, ensuring fair, efficient, and constructive conflict
resolution.
2.3 Role of Mediator - Facilitative and Evaluative role, Qualities of Mediator, Ethics and Code of
Conduct for Mediators
Role of Mediator - Facilitative and Evaluative role
A mediator plays a crucial role in resolving disputes by acting as a neutral third party to help conflicting parties
reach a mutually acceptable resolution. The two primary roles of a mediator are facilitative and evaluative:
1. Facilitative Role
 In a facilitative mediation, the mediator guides the discussion but does not provide opinions or
solutions.
 The focus is on effective communication and helping parties understand each other’s interests.
 The mediator asks questions, clarifies issues, and encourages negotiation without imposing
decisions.
 The goal is to empower the parties to reach their own agreement based on their needs and interests.
 This approach is commonly used in family disputes, workplace conflicts, and community
mediations.
2. Evaluative Role
 In an evaluative mediation, the mediator takes a more directive approach.
 The mediator assesses the strengths and weaknesses of each party’s case and may provide an opinion
or suggestion on possible outcomes.
 This approach is often used in legal disputes where legal norms and precedents are important.
 The mediator may suggest realistic settlement options based on laws and previous case outcomes.
 It is commonly used in commercial disputes, litigation-related cases, and insurance claims.
Key Differences:

Aspect Facilitative Mediation Evaluative Mediation

Mediator's Role Guides and facilitates discussion Provides opinions and evaluations

Decision-Making Parties make decisions Mediator suggests possible outcomes

Focus Interests and needs of parties Legal rights, strengths, and weaknesses

Common Use Relationship-based disputes Legal and business disputes

Apart from the facilitative and evaluative roles, a mediator plays several other crucial roles in the mediation
process, ensuring a fair and constructive resolution. These include:
3. Transformative Role
 Focuses on empowering parties and fostering mutual recognition.
 Helps parties understand each other's perspectives and improve their relationship.
 Used in cases where long-term relationships matter, such as family disputes, workplace conflicts, and
social issues.
4. Neutral and Impartial Role
 Ensures that both parties are treated fairly without bias.
  Does not favor one party over the other.
 Helps maintain trust and credibility in the mediation process.
5. Communication Facilitator
 Encourages effective dialogue by reducing misunderstandings.
 Helps clarify positions and emotions while preventing escalation of conflicts.
 Uses techniques like active listening, reframing, and summarization to keep discussions productive.
6. Problem-Solving Role
 Assists in identifying key issues and developing creative solutions.
 Encourages brainstorming and helps parties explore alternative resolutions.
 Ensures that the solutions are realistic, practical, and mutually beneficial.
7. Process Manager
 Establishes ground rules and guides the structure of mediation.
 Ensures that the process remains organized, time-efficient, and goal-oriented.
 Manages emotional outbursts and ensures a respectful atmosphere.
8. Legal and Ethical Guide (within limits)
 Ensures that mediation follows legal and ethical guidelines.
 In cases like business or legal disputes, the mediator may highlight legal implications (without giving
legal advice).
 Helps parties consider the feasibility of agreements within legal boundaries.
9. Confidentiality Keeper
 Ensures that all discussions remain confidential, creating a safe space for open dialogue.
 Prevents sensitive information from being misused outside the mediation process.
 Encourages parties to share concerns without fear of repercussions.
10. Relationship Builder
 Helps maintain or restore relationships by fostering trust and cooperation.
 Encourages respectful communication to prevent future conflicts.
 Used in family disputes, workplace conflicts, and business partnerships where ongoing relationships
are important.
11. Motivator
 Encourages parties to stay engaged in the process despite challenges.
 Helps parties move past emotional roadblocks and focus on resolution.
 Reinforces the benefits of reaching a mutually acceptable agreement rather than prolonged conflict.
12. Agreement Drafting Assistant
 Helps structure and document the final settlement agreement.
 Ensures clarity, specificity, and enforceability in the agreement terms.
  Avoids ambiguity to reduce future misunderstandings.
Conclusion
A mediator's role extends beyond just facilitation and evaluation. They act as neutral guides, problem-
solvers, communicators, and relationship builders, ensuring that the mediation process leads to a fair,
practical, and sustainable resolution. Depending on the context, a mediator may adopt different roles or blend
multiple approaches to achieve the best outcome.

QUALITIES OF A GOOD MEDIATOR

A good mediator must possess a combination of skills, traits, and ethical values to effectively guide disputing
parties toward a resolution. Some of the key qualities of a successful mediator include:
1. Neutrality and Impartiality
 Treats all parties fairly and without bias.
 Does not take sides or influence the outcome in favor of one party.
 Maintains an objective and balanced perspective throughout the process.
2. Active Listening Skills
 Pays full attention to each party’s concerns and emotions.
 Uses paraphrasing and summarization to ensure understanding.
 Recognizes verbal and non-verbal cues like tone, gestures, and expressions.
3. Strong Communication Skills
 Clearly conveys ideas, rules, and processes in a way that is easy to understand.
 Helps parties express their viewpoints without misinterpretation.
 Uses diplomatic language to prevent conflicts from escalating.
4. Patience and Emotional Intelligence
 Remains calm and composed even in tense situations.
 Understands and manages emotions—both their own and those of the disputing parties.
 Recognizes underlying emotions that may influence the dispute and addresses them appropriately.
5. Problem-Solving and Analytical Thinking
 Identifies the root cause of the conflict rather than just the surface issues.
 Encourages parties to explore creative and practical solutions.
 Helps break down complex problems into manageable steps.
6. Trustworthiness and Confidentiality
 Builds trust by ensuring transparency and ethical behavior.
 Maintains strict confidentiality about discussions and agreements.
 Ensures that parties feel safe in expressing their thoughts without fear of judgment.
7. Adaptability and Flexibility
 Adjusts strategies based on the needs of the parties and the nature of the dispute.
 Can shift between facilitative, evaluative, or transformative approaches as required.
  Handles unexpected challenges without losing control of the process.
8. Fairness and Objectivity
 Encourages equal participation from all parties.
 Ensures that the outcome is mutually acceptable rather than favoring one side.
 Focuses on principles of justice while respecting individual interests.
9. Persistence and Persuasion
 Encourages parties to continue negotiations even when progress seems slow.
 Uses persuasive techniques to help parties consider alternative viewpoints.
 Remains committed to finding a resolution rather than allowing the process to collapse.
10. Cultural Awareness and Sensitivity
 Respects cultural, social, and personal differences of the parties.
 Avoids language or behavior that may unintentionally offend any party.
 Recognizes how cultural norms influence decision-making and conflict resolution.
11. Ethical Integrity
 Adheres to professional codes of conduct and ethical standards.
 Does not manipulate or mislead any party for personal or external gain.
 Acts in a way that upholds the credibility of the mediation process.
12. Ability to Handle Pressure
 Manages high-stakes or emotionally charged disputes without becoming overwhelmed.
 Maintains a solution-focused mindset even in complex or hostile situations.
 Can de-escalate conflicts using conflict resolution techniques.

Code of Conduct of Mediators:

Voluntariness – Participation in mediation should be voluntary, with parties engaging in good faith.
Impartiality- it is important for the mediator to be unbiased. He cannot favour one particular party. He should
hear both the sides and come up with a possible settlement which is agreed by both the parties.
Conflict of interest- the parties should me no way related to the mediator. It might lead to conflict of interest.
Principle of self-determination- self-determination is the right of the parties in mediation to make their own
voluntary decision regarding the possible resolution. The mediator is to provide the parties with the solutions to
the dispute in hand and assist them throughout the process.
Confidentiality- the mediator should not be disclosing the information of the mediation to any third parties
without the consent of the parties. He may disclose information about the mediation with a written consent of
the parties.
Quality of process- the mediator should make sure that the parties understand the mediation proceedings
before the mediation starts. Mediators have an obligation to acquire and maintain professional skills and ability
to uphold the quality of the mediation process.
Competence – Mediators should be well-trained, knowledgeable, and act within their scope of expertise.
 Fairness & Equality – Both parties must be treated equally, with an opportunity to present their case without
discrimination.
Agreement to Mediate- the mediator must come up with an agreement between both the parties and he must
ensure that both the parties understand the terms and condition of the process. Confidentiality must be
maintained while communication. The mediator has the right to terminate or suspend the process.
Termination or suspension of mediation- mediator should come up with an agreement which is both impartial
or there is no conflict of interest. He shall suspend or terminate the process upon the request of either one of the
both parties. He may also suspend the process in case he finds out the either one of the parties are not acting in
good faith.

2.4 -Negotiation and bargaining In mediation; impasse

Negotiation and Bargaining in Mediation
Negotiation and bargaining are core elements of mediation, as mediation is essentially a facilitated negotiation
process. Here’s how they function within mediation:
1. Negotiation in Mediation
Negotiation in mediation involves structured discussions between disputing parties, guided by a neutral third-
party (mediator), to reach a mutually acceptable resolution. Unlike adversarial negotiations (e.g., litigation),
mediation encourages cooperative problem-solving rather than a "win-lose" mindset.
Types of Negotiation in Mediation:
1. Positional Negotiation (Distributive Bargaining)
o Each party takes a fixed stance and negotiates to maximize personal gain.
o Example: In a property dispute, one party insists on full ownership while the other demands an
equal split.
2. Interest-Based Negotiation (Integrative Bargaining)
o Focuses on understanding underlying interests rather than rigid positions.
o Example: Instead of arguing over money, divorcing spouses may negotiate child custody based
on shared parental concerns.
2. Bargaining in Mediation
Bargaining is the phase where parties make offers, counteroffers, and concessions to reach a settlement.
Mediators facilitate this by ensuring fairness and preventing manipulation.
Forms of Bargaining:
1. Hard Bargaining – Parties stick to extreme positions, making minimal concessions.
2. Soft Bargaining – Parties prioritize relationship preservation and compromise easily.
3. Principled Bargaining (Harvard Model) – Focuses on objective criteria, interests, and creative
solutions rather than rigid demands.
Techniques Used in Mediation Bargaining:
 BATNA & WATNA Analysis – Identifying the Best and Worst Alternatives to a Negotiated Agreement.
 Bracketing – Parties propose settlement ranges to find common ground.
 Reality Testing – Mediator helps parties evaluate the practicality of their demands.
Key Differences from Litigation-Based Bargaining
Feature Mediation Litigation Negotiation

Approach Cooperative Adversarial

Control Over Outcome High Low (court decides)

Confidentiality Yes No (court records)

Cost & Time Lower Higher

Role of Lawyers Advisory Representational

Conclusion
Negotiation and bargaining in mediation differ from traditional adversarial negotiation by promoting mutual
gains, cooperation, and flexibility. A skilled mediator ensures that bargaining remains balanced, productive,
and aligned with the interests of both parties.

IMPASSE : A DEADLOCK IN MEDIATION

During a mediation , impasse occurs when neither party is willing to compromise any further on an issue. When
parties reach impasse they're likely to regard it as the end of the negotiations.
In mediation , the impasse means and includes a hurdle , barrier , bottleneck , hindrance , deadlock or standoff.
Why does Impasse occurs ?
Impasse may be due to various reasons , it may be due to an overt conflict between the parties . It can be aslo
used as a tactic to put pressure on the opposite party. There may aslo be valid or legitimate reasons for the
impasse.
Kinds of Impasse:-
There are three types of impasse , namely
1. Emotional Impasse
2. Substantive Impasse
3. Procedural Impasse
Emotional Impasse : When the party is emotional struck on some point and didn't want to over come with it.
This is caused by factors like personal animosity, mistrust , false pride , arrogance , ego, vengeance or fear of
losing face .
Substantive Impasse : This impasse can be easily recognised as it occurs when the monetary interest of the
party is not being met . This can be caused by the factors like lack of knowledge of facts and /or law , limited
resources , despite willingness to settle , incompetence of the parties, interference by third parties who instigate
the parties not to settle dispute or the obstruct the settlement for extraneous reasons, standing on principles ,
ignoring the realities , adamant attitude of the parties.
Procedural Impasse :- This occurs , when either of the party or both feel that the process for the mediation
itself is being conducted in an unfair or inappropriate manner . This can be caused by factors like lack of
authority to negotiate or to settle , power imbalance between the parties mistrust of the mediation.
Stages when Impasse may arise
Impasse can arise at any stage of the mediation process namely introduction , opening statement , joint session,
separate session and closing.
Techniques to cut down Impasse
The phase of impasse is not unusual its expected . So it's become the responsibility of the mediation to use his
skill and try to break impasse with suitable approaches , which are as follows .
 Reality Testing : Reality Testing is often done in the separate session by asking effective questions ,
discussing the strength and weakness of the respective case of the parties , without breach of
confidentiality and /or considering the consequence of any favour to reach an agreement BATNA
/WATNA / MLATNA
 Brain Storming : It is a technique used to generate option for agreement . There are 2 stages to the brain
storming process :- Creating options and Evaluating options.
 Focussing on the underlying interest of the parties.
 Acknowleding and complementing parties for their time and efforts they have already made.
 Role reversals by asking party to place himself /herself in the position of the other party and try to
understand the perception and feelings of the other party.
 Changing the topic to come back later .
 Using of hypothetical situation on questions.
 Ascertaining from the parties the real reason behind the impasse and seeking their suggestion to break
the impasse.
 Holding hope

2.5 – importance of communication in mediation

Significance of communication in mediation
Communication means imparting or exchanging of information by speaking , writing or using some other
medium.
In mediation , communication is the core of mediation . As in mediation the parties get the full Opportunity to
speak their self out . Communication is not just talking and listening . It is a process of information
transmission . The motive of communication is to convey a message which can be through words , gestures or
both . Basically the communication should be done in such a manner that the sender and the receiver shall
understand the information in the same way as it was intended to be conveyed .
The purpose of communication could be any or all of the following:-
 To Express our feelings, thoughts, ideas , emotions and desire to others
 To make other understand what and how we feel and think .
 To derive a benefit or advantage .
 To Express an unmet need or demand .
Thus, a communication would involve :
A Sender : who sends a message.
A Receiver : who receives the message.
Channel : the medium through which a message is transmitted via words or gestures or expression.
Message: when a thought , feelings, ideas, emotions , knowledge are transmitted into words, gestures , acts ,
expression then the communication is converted into a message.
Encoding : transforming message, information into a form that can be sent to the receiver to be decoded
correctly.
Decoding : understanding the message or information.
Response : answer to a communicated message.
Communication maybe verbal or non verbal
Verbal and Non Verbal communication
Verbal communication is transmission of information or message through spoken words . Whereas non verbal
communication is transmission of message through gestures, written words or attitude.
Non Verbal communication is often move spontaneous than verbal communication . It can provide more
accurate information as it taken place under less conscious control.
Communication skills in mediation
Communication skills in mediation include:-
1. Active listening
2. Listening with Empathy
3. Body Language
4. Asking the right question
 Active listening :- A mediator is required to be a good listener as parties participate in mediation with
varying degree of optimism , anger , distress , confusion , fear etc. If the parties understand that they
will be listened to and understand , it will help in trust building and they can share the responsibility to
resolve the dispute. An active listener listens for both what is said and what is not said.
The commonly used techniques of active listening by mediator.
1. Summarising : Mediator outlines the main points made by speaker.
2. Reflecting : It is a way where mediation confirm they have heard and understood the feelings expressed
by speaker .
3. Re-framing : Used by mediator to help the parties move from position to interests.
4. Acknowledging: In this mediator verbally recognizes what the speaker has said without agreeing or
disagreeing.
5. Deferring : In this mediator postpones the discussion until later.
6. Encouraging: Mediator encourages the parties if they feel upset .
7. Restating : In this mediation reassures the statements he has heard from speak.
8. Silence : Mediator should understand the silence of parties .
9. Order : Mediator sets the sequence of topics, claims , defenced.
 Listening with Empathy :-
It means the ability of mediatior to understand and appreciate the feelings and need of parties and then convey
to them .
 Body Language
The appropriate body language of the listener indicates to the speaker that he is attentive. Example : symmetry
of posture , smiling face , leaning gently towards the parties for listening.
  Asking the right question
Mediator must gathers good quality of information by asking relevant questions . The timings of questions is
very important. As the right questions help the parties and the mediators to understand what the issues are .
Effective communication is vital in mediation as it enables parties to understand each other's perspectives,
express their needs, and work towards a mutually agreeable solution, ultimately facilitating a successful
resolution of the conflict.
Here's a more detailed explanation:
 Understanding Perspectives:
Clear communication allows each party to share their viewpoint, concerns, and needs, fostering empathy and
understanding between them.
Facilitating Dialogue:
Effective communication is essential for a productive dialogue, enabling parties to express themselves, listen
actively, and engage in constructive discussions.
Identifying Issues:
Open and honest communication helps identify the root causes of the conflict and the underlying interests of
each party, which is crucial for finding a lasting solution.
Building Trust:
When parties communicate openly and honestly, trust and rapport can be built, which is essential for a
successful mediation process.
Reaching Agreements:
Clear communication ensures that all parties understand the terms of any agreement reached, reducing the risk
of future misunderstandings or disputes.
Mediator's Role:
The mediator plays a crucial role in facilitating effective communication, guiding the conversation, and
ensuring that all parties have an opportunity to be heard