2. Categories of Cases suitable for Mediation
3. Selection of Cases
5. Conference with Parties
6. Schedule of appearances
7. Production of Documents
8. Referral Orders
In mediation, the key to success depends on Judges referring
appropriate cases, which occurs at the very beginning of the
process. Conversely, failure is dependent on referring inappropriate
cases. It has been seen over a period of time that almost
20% of the cases sent to the Mediation Centre were not fit
for mediation as disclosed by the parties/ their advocates.
This is a very high percentage and affects the working of
the Mediation Centre.
Failure to refer an appropriate case for mediation results
in the case having to go through its full course of trial.
Therefore, by and large, some objective assessment need to
be made in every case by a referral judge. This exercise should
not be done in casual manner.
Categories of cases fit for mediation
Certain cases are particularly appropriate for
referral to mediation. From the available statistics, it is
clear that successful mediation occurs in following categories
of cases :---
1 Civil Cases:
b. Specific performance
c. Civil recovery
e. Motor Accident Claim Cases
f. Landlord/tenant disputes :
In landlord/tenant matters, restoration of services claims
are especially successful, although some eviction cases have
also been resolved through mediation.
g. Matrimonial Cases :
Matrimonial cases are much more likely to settle if the parties
are educated, the marriage is a shorter one with no children
involved, and the litigants are from an urban area. In such
cases, the fear of women accepting a monetary payment after
a failed marriage is less than would be the case with an uneducated
spouse, particularly if there are children.
2 Criminal Cases
Suitable criminal cases include :---
a. Section 406/498A IPC
b. Section 138 N. I. Act.
Selection of Cases
The referring Judge should evaluate all the important factors
which in his discretion will facilitate a successful mediation.
For example, if it is an older case where the parties have
a lower emotional investment, and it involves quantum issues
between educated litigants, these factors would strongly suggest
that the matter should be referred for mediation. There
may be other factors which, in the judges' experience, make
a case suitable for a successful mediation. However, no case
should be sent to mediation merely to clear a Judge's docket;
it will only delay resolution, result in a failed experience,
and end up back on the Judge's calender.
A referral Judge should select appropriate cases for mediation.
In some of the cases U/s 498A/406 IPC referred for mediation
at the stage of consideration of application for bail and
offer of mediation by one of the parties is used as a ploy
to get interim protection. Therefore, in case U/s 498A IPC,
the referral Judge must give his assessment that the parties
bonafidely wants amicable resolution of the dispute. A referral
Judge before selecting the cases appropriate for the mediation
should consider following factors :
a. Party Characteristics
- costs and time in mediation are not more than litigation
- the parties and their advocates have a positive attitudes
- Government is not a party to the suit.
b. Case Characteristics
- case should not involve complex legal issues, ambiguous
precedent, Constitutional issues or Public Policy.
- a referral Judge should ascertain whether previous attempts
to mediation have failed and why.
1. It has been found in some cases, that where there are
too many parties involved, these are unsuitable for mediation.
It is advisable not to refer such cases for mediation unless
all the parties have a very positive frame of mind.
2. Section 89 of the CPC mandates referral of a case for
mediation only if there is an element of settlement. It is
critical for the Judge to make inquiries which lay the foundation
for successful referral. The elements of laying such a foundation
i) Determine whether the parties have consented to mediation
and whether they wish to settle their cases. Do not allow
referral to mediation in which there is no evidence of good
faith intent to settlement but mediation is intended to delay
the legal proceedings. It should be made clear that mediation
does not delay the proceedings.
ii) Referral is appropriate when one party has agreed to mediation,
and the other party is willing to go to mediation, though
not necessarily committed to settlement.
iii) Referral to mediation is proper even when neither party
has agreed to settle, but both parties are honestly willing
to explore the possibilities of settlement through mediation.
However, the referring Judge should believe it could be settled
before he refers such cases to mediation.
iv) Lastly, referral is appropriate where neither party has
expressed a desire to settle a case, but where the referring
Judge should believe that a settlement may be possible. The
referring Judge's careful exercise of discretion is critical
here. An example of such a situation might involve parties
who are unaware of the law, and with the careful attention
and time that could be given by a mediator, a case may very
well settle with a credible explanation of the law and the
damages can be easily worked out.
Conference with the parties
1 Where parties are not open to a settlement,
they may be given a copy of the Mediation Centre pamphlet.
Sometimes it may be worthwhile talking to the parties for
a few minutes. This kind of a discussion can sometimes go
a long way in resolving disputes. It helps the parties to
think about the benefits of settlement through mediation.
2 As a referring Judge, you should probe the issues with
the parties to determine whether the possible terms of a settlement
and the identified issues are proper subjects of mediation.
For example, where “quantum” issues such as monetary damages
can resolve a case, this has a high likelihood of settlement
3 The parties should be informed by the referring Judge about
the utility of mediation, and they should invariably be given
the Mediation Centre pamphlet if they have not already received
4. It should be made clear to both the parties that mediation
is free of cost and that if mediation process succeeds, the
Plaintiff/Appellant will be entitled to refund of court fees.
5. It should be explained that mediation provides a friendly
non- adversarial opportunity to talk with a skilled Judge
mediator and seek a solution to the entire litigation.
6. It should be emphasized that this is a voluntary process,
and it is also confidential.
Schedule of appearance before Mediation Centre
The parties and counsel should be directed to appear in
person at the Mediation Centre to schedule a date and time
for the mediation.
Production of documents
In the Judges' discretion, the parties should be advised
to bring documentation (evidence), if any, to help clarify
the issues and facts at the mediation. This will help the
mediator to resolve the outstanding issues and will prevent
A referral order is an important
document which initiates the mediation, explains ground rules
and structures the process. A referral order should contain
the following :
(i) A referral order should state relevant statute or rule
authorizing a referral Judge to refer parties to mediation.
(ii) A referral order should outline proposed duties and responsibilities
of the mediator.
(iii) The parties may be advised to file/submit documents
or any other relevant materials before the mediator.
(iv)A referral order should state who is authorized to appear
before a mediator. It should be mentioned whether advocates
are permitted to appear during mediation proceedings.
(v)A referral order should contain that parties are required
to participate in mediation in good faith.
(vi)A referral order should spell out a definite time frame
for conduction and conclusion of mediation proceedings.
(vii)A referral order should spell out in unambiguous forms
that mediation proceedings are confidential in nature.
- 1. Please take the time to properly select cases for referral
to mediation. Your efforts to do so are extremely important
to the success of this programme and to bring about a reduction
in your caseload through successful settlements.
2. Do not expect miracles. Mediation process requires
a lot of patience and it is necessary for the Judges as
well as the litigants to appreciate this.