Rights and Duties of the Parties in the Mediation Process
The very essence of mediation as a dispute resolution process is that it puts the needs and interests of the parties above anything else. It gives a chance to the parties to determine what kind of solution they want while the mediator only facilitates the process. While the mediation process is not binding, it still has certain rights and limitations for the parties and the mediator to keep the process in check and make sure that no one party is left feeling the process was unjust.
The role of the parties is to have an open and honest discussion upon the matter that brought them in for mediation and the role of the mediator is to facilitate the said discussions by helping the parties if they are in a deadlock situation during the discussion and to elucidate the points of both the parties so that there is no misunderstanding during the process. These are the basic functions of the mediator and the parties. As discussed earlier, attached with these roles are certain rights and limitations for governing the mediation process. We shall be discussing the rights and limitations that the parties have to keep in mind during the mediation.
Rights of the Parties
The parties to the mediation essentially have five types of rights under the mediation process. These rights are in place to help the parties feel in a position of power during the resolution process.
- Selecting Mediation as a Resolution process
Neither of the parties is bound to comply with mediation as their dispute resolution process as they are free to choose the method in which they seek to resolve the subject matter of the dispute. In the case where one party sends a proposal for the matter to be resolved through mediation, the other party is not bound to accept such proposal. In addition to that, there are no legal sanctions or repercussions on the party ignoring the proposal, refusing the mediation process or frustrating the mediation process.
While no reason has to be provided for refusing to the aforementioned proposal, refusing a court-mandated mediation has a few requisites. A party who refuses an offer of mediation must file a witness statement at court giving their reasons for refusing.[1]
- Withdrawing from the Mediation Process at any time
There is no restriction over when a party can and cannot withdraw from the process. As when of the most basic features of mediation is that it is completely voluntary, to deny a party from withdrawing is to go against that very principle. Even in this case, the parties need not state any reason for their withdrawal. But, this might have negative consequences on the party that has pulled out from the process.
A UK court decided in a case that the party that withdrew from the mediation process was liable to pay the claimant the wasted costs that they sought for post the withdrawal.[2] Even though the costs awarded in this case were on a standard, proportionate and reasonable basis rather than that of indemnity, one should not withdraw from the mediation at the very last moment or at a point of time which might seem morally incorrect.
- Appointment of an Impartial and Neutral Mediator
Appointing an impartial mediator is one of the most crucial components of the mediation process. No party would want to have the mediator to be partial towards the other party as that would hinder the chances of them getting a fair settlement. The parties rely on the mediator and share sensitive information which is to be kept confidential at any cost. The mediators hold private caucuses for understanding the stance of each party in a better manner and further facilitate the smooth functioning of the joint session. While the parties might want the mediator to share certain details of what they shared, there are also some facts which the party might disclose so that the mediator can keep that in mind while steering the other party into any direction. This includes financial conditions, details regarding one’s family, any medical condition, etc.
With a partial and biased mediator, the whole process of mediation could go to waste, causing losses in terms of time and money. Therefore, the parties are the ones who appoint the mediator that will be facilitating the process as this ensures maximum transparency and ensures that no party gains an undue advantage through the mediator.
- Confidentiality
Confidentiality is a key to the mediation proceedings and has thus been spelled out in the Arbitration and Conciliation Act, 1996 and the parties are bound to keep all information shared during the proceedings, confidential except where its disclosure is necessary for purposes of implementation and enforcement.[3] In order for parties to be able to open up and talk about the subject matter freely, it is critical that they be assured of the fact that what they are going to share is going to stay between the people present. Confidentiality acts as a relaxation for the fear of sharing personal details and further facilitates full disclosure and guarantee a fair outcome. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.
Signing an agreement before the commencement of the mediation process which outlines confidentiality and other key features goes a long way in ensuring a spirit of full disclosure which will further lead to a successful mediation proceeding.
This concludes the basic rights that parties have during the mediation proceedings. It is vital for the mediation process to be governed by the aforementioned in order for it to be successful. But with these rights also come the duties that are to be fulfilled by the parties during the mediation proceedings. They ensure that the parties understand their responsibilities and while the mediator facilitates the proceeding, the parties can also further the agenda by complying with the duties and make the process a success.
Duties of the Parties
There are three basic duties or responsibilities of the parties in mediation. Essentially, these responsibilities are for the benefit for the parties itself even though they are called duties. The parties, by acting in accordance with the duties, would be gaining profits as they will be saving their time and money during the process.
- Signing of the Agreement to Mediate
This agreement is the summation of the rights and duties of all the members taking part in the mediation process. It essentially covers what the mediator has already mentioned in his or her opening statement and explains the same in a detailed manner. While there is no legal mandate, it is customary to have such written agreement. This will include provisions regarding confidentiality and the process to be followed. For example, by signing the agreement, the parties that sigh the same become bound by the confidentiality clause which a part of all the agreements to mediate. Following are the clauses which are generally incorporated into a mediation agreement:
- Nature of Mediation
- Scope of Mediation
- Voluntary nature of mediation
- Confidentiality
- Full Disclosure
- Mediator Impartiality
- Litigation
- Mediation Fees
By signing this agreement, the parties can commence their mediation proceedings and the clauses of the agreement of the agreement can be invoked as and when required. For example, by including the clause for Full Disclosure, the mediator makes sure that the parties do not leave out details which are vital in order to arrive at a resolution and that the mediation process is fruitful for both the parties. The confidentiality clause, as explained earlier helps with the spirit of full disclosure. The agreement being the amalgamation of all the vital clauses of mediation becomes an important document to sign further making this a duty.
- Sharing relevant and authentic information with the other parties and the mediator
In order for mediation to be speedy, as it should be, it is the parties’ responsibility that they stick to information relevant to the subject matter. It is also their duty to furnish information that is true and not fabricated in any sense. While it might be lucrative to lie during a mediation proceeding to tip the scales in you favour, it is morally incorrect and unjust to the other party. Usually, the matters that are mediated are quite sensitive in nature and lying in that case can lead to harm for not just the people present in the mediation, but outside of it too. For example, if the mediation is for the custody of a child, a party lying about their ability to take care of the said child would hamper with the very future that the child deserves.
In case a party lies and the same is discovered, firstly, the whole mediation process goes to waste. Secondly, the other party would no longer be willing to resolve the subject matter through mediation and would seek litigation which would be much more complicated and expensive. Thirdly, with the, mediation process having gone to waste, the time and money invested by both the parties and the mediator would also be rendered of no use. Therefore, it is essential for the parties to be in the clear as and when they are sharing information during the mediation.
- Generate Options
It is common for parties to end up in situations such as a deadlock where neither party is ready to budge on their demands which leads to a waste of time and delays the resolution. While the mediator is supposed to facilitate the breaking of the deadlock, he or she cannot provide direct solutions as that does not come under the ambit of the functions of a mediator. Therefore, it is vital that the parties take charge in such a situation and come up with a creative solution in which both the parties are able to get what they want or it is at least a fair compromise for the both.
The more interactive the mediation session is the better would be the resolution that would be reached at by the end.
Mediation is an emerging road to dispute resolution and is slowly gaining popular acceptance. Understanding the intricacies of the same will be of great importance on times to come. Mediation is starting to get strongly recommended by Indian courts and many high courts have even set up mediation centres housed within the courts of which they are bearing the expenses. It is crucial for the parties to abide by the ethics during a mediation process as that is what will steer the mediation into the right direction.
[1] Tom Williams, What are the risks of refusing mediation?, Harrison Clark Rickerby’s Solicitors https://www.hcrlaw.com/blog/what-are-the-risks-of-refusing-mediation/
[2] Roundstone Nurseries Ltd v Stephenson Holdings Ltd, EWHC 1431 TCC, [2009] 5 Costs LR 787
[3] The Arbitration and Conciliation Act, 1996, §75