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Mediation: Stratergies and faq’s

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Mediation: Stratergies and faq’s – 22August2010 – By Raghvendra Naik

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What is mediation?

Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A Mediator uses special negotiation and communication techniques to help the parties to come to a settlement. The parties can appoint a Mediator with their mutual consent or a mediator can be appointed by the Court in a pending litigation. Mediation always leaves the decision making power with the parties. A Mediator does not decide what is fair or right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.

Why my case is referred to Mediation?

Your case cannot be referred to mediation without both parties consent. You and the other party have to sign in front of the Judge for your case to be referred to the mediation centre.

What type of cases is referred to mediations?

Any case which is civil in nature can be referred to mediation.

Is referring the case to Mediation compulsory?

No. Unless both the party sign in front of the judge that they agree to mediation one cannot be forced.

What will happen if I do not attend mediation?

Once you agree for the mediation it is better if you attend. If on the particular day of mediation you are unable to attend mediation due to unavoidable reasons then call mediation centre and inform about it. You can also inform your advocate who in turn will inform the mediation centre and get a next date.

What is the duration of the mediation?

There is no fixed rule but in Bengaluru, normally the file referred for mediation for 60 days and normally 2-4 sittings happen.

Can a decision be forced on me by mediators?

No, no one can force a decision on you. Though there have been cases where the opposite party will threaten you with 498A and try to extract huge sum. Never succumb to such blackmail. You have the choice walk out of the mediation room if any such thing happens. Immediately report such things to the Director of the Mediation Centre with a written complaint against the opposite party and mediator.

Is the presence of lawyer must in mediation hall?

Normally only the parties concerned have to be present in the mediation centre. E.g. in a divorce proceedings only husband, wife and the mediator should be present. For assistance advocates can be present. There are instances where parents, relatives and friends are reported to be inside the mediation room. You have the right to object the presence of the persons who are not petitioner/respondent.

What preparation is to be done for mediation?

Reach the mediation centre in advance and recollect your case. Never give in to blackmail/threaten/extortion. Be cool and remember you have the option to speak to the mediator one to one.

What is the outcome of mediation?

The outcome of the mediation is normally out-of-court settlement agreed by both the parties which is signed by both the parties and then presented to the judge for his consideration. It includes all pending cases criminal and civil.

Is the outcome of mediation binding on both parties?

Normally once both the parties have signed the MOU, it is binding on them but there have been instances where one of the parties has gone back from the MOU and restarted the case. You have legal options and many judgments are available which deal with such situation.

Is mediator equal to a judge?

No, Mediator is an advocate and a member of advocate bar with experience of not less than 10 years.

Is there an enquiry done by mediator?

No, a mediator only listens to both the parties and explores the option of out of court settlement.

Do I have to present evidence to a mediator?

No

Will mediator record whatever I say in the mediation hall?

No, nothing is recorded in the room. Mediator only writes final report whether it failed or succeeded. He does not write anything about behavior of the parties or any such thing. A mediator is not a judge.

My wife is demanding huge amount in front of the mediator. What should I do?

Never give in to threat/extortion/blackmail.

My mediation is wrt the divorce case but I have 498a and DV also. What will happen to them?

When MOU is signed then you need to make sure that all the cases are settled.

My wife has agreed to give mutual consent divorce for 4 lakh rs in front of the mediator. What should I do?

Never give in to threat/extortion/blackmail.

My mediation has failed. Now what happens?

Nothing! Your file will be sent back to the judge and the case will start like normal case.

I feel the mediator has mingled with opposite party and trying to extract money.

Never give in to threat/extortion/blackmail. If you feel you are n=being cornered in the mediation centre and the mediator is unfair to you the just walk out of the hall and complain to the Director of the centre.

My wife has given a huge amount of money they claim as marriage expense. What should I do?

As told before mediation centre is not a place to appreciate evidence. It is not a court hall proceeding.

My wife is putting all false allegations on me. What should I do?

Don’t lose your cool. Deny allegations and remind the mediator that you will chose to walk out of the centre if baseless allegations are leveled against you.

Delhi Mediation Centre

http://delhimediationcentre.gov.in/index.asp

Bangalore Mediation Centre

http://nyayadegula.kar.nic.in/

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