Mediation vs. Conciliation vs. Arbitration
It is important to understand the distinctions:
Mediation: The mediator facilitates discussion and helps parties find their own solution. The mediator does not propose solutions unless specifically invited to.
Conciliation: Similar to mediation, but the conciliator plays a more active role — they may propose solutions, draft the settlement, and actively encourage settlement. Conciliation is recognized under Part III of the Arbitration and Conciliation Act, 1996.
Arbitration: An adversarial process where the arbitrator acts like a judge, hears evidence, and imposes a binding decision (award).
Advocate Shaw advises clients on the most appropriate ADR (Alternative Dispute Resolution) mechanism based on the nature of the dispute and the relationship between the parties.
Court-Annexed Mediation in Kolkata
Under Section 89 of the Code of Civil Procedure, 1908, courts have the power to refer pending cases to mediation, arbitration, conciliation, or judicial settlement. In Kolkata, all major courts have mediation centres:
Calcutta High Court Mediation Centre: Located within the High Court premises, this centre handles mediation in civil, family, and commercial matters referred by the High Court. The mediators are trained lawyers and retired judges.
Alipore Mediation Centre: Serves the Alipore Judges' Court complex, including the Family Court.
City Civil Court Mediation Centre: At Bankshall Court, handling civil and matrimonial matters.
District Mediation Centres: At Barasat, Barrackpore, and Bidhannagar courts.
When a case is referred to mediation, the court stays the proceedings. If mediation succeeds, a settlement agreement is recorded and forms part of the court order. If mediation fails, the case resumes in court.
Private Mediation
Parties can also engage in private mediation without court referral. This is common in commercial disputes where the parties wish to avoid publicity and preserve business relationships. Private mediation offers:
Choice of Mediator: Parties can select a mediator with expertise in their industry.
Flexible Scheduling: Sessions can be scheduled at the parties' convenience, not the court's calendar.
Venue: Mediation can be held at a neutral venue, not a courthouse.
Confidentiality: Even greater confidentiality than court-annexed mediation.
Advocate Shaw facilitates private mediations, acting either as the mediator or as counsel for one of the parties.
How Mediation Works — The Process
A typical mediation proceeds through the following stages:
Agreement to Mediate: The parties sign an agreement to mediate, which includes a confidentiality clause.
Mediator's Opening Statement: The mediator explains the process, the ground rules, and their role.
Parties' Opening Statements: Each party (through their counsel) presents their perspective without interruption.
Joint Session: The mediator facilitates discussion, identifies issues, and clarifies misunderstandings.
Private Caucuses: The mediator meets separately with each party to explore interests, understand bottom lines, and reality-test positions. These private sessions are confidential — the mediator does not disclose information to the other side without permission.
Negotiation: The mediator shuttles between parties, conveying offers and counter-offers, until a settlement is reached or impasse is declared.
Settlement Agreement: If successful, a written settlement agreement is drafted and signed by the parties. In court-annexed mediation, this becomes part of the court order.
Advantages of Mediation in Kolkata
Advocate Shaw recommends mediation for the following reasons:
Speed: Mediation can resolve disputes in weeks or months, compared to years in court.
Cost: Mediation costs a fraction of full-scale litigation.
Control: Parties control the outcome rather than leaving it to a judge.
Creative Solutions: Mediation allows for creative, non-monetary solutions that courts cannot order (e.g., an apology, future business arrangements, or structured payment plans).
Confidentiality: Unlike court proceedings (which are public), mediation is confidential.
Preserves Relationships: Mediation's non-adversarial approach preserves personal, family, and business relationships.
No Losers: A mediated settlement is a win-win, not a win-lose.