CASES SUITABLE FOR MEDIATION
All suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special tribunals/forums) are normally suitable for ADR processes:
i) All cases relating to trade, commerce and contracts, including...
- -disputes arising out of contracts (including all money suits);
- -disputes relating to specific performance;
- -disputes between suppliers and customers;
- -disputes between bankers and customers;
- -disputes between developers/builders and customers;
- -disputes between landlords and tenants/licensor and licensees;
- -disputes between insurer and insured
ii) All cases arising from strained or soured relationships, including;
- disputes relating to matrimonial causes, maintenance, custody of children;
- disputes relating to partition/division among family members/coparceners/co-owners; and - disputes relating to partnership among partners.
iii) All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including-disputes between neighbours (relating to easementary rights, encroachments, nuisance, etc.);
- disputes between employers and employees;
- disputes among members of societies/associations/apartment owners' associations;
iv) All cases relating to tortious liability, including -claims for compensation in motor accidents/other accidents; and,
v) All consumer disputes, including;
- disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity
The list is not exhaustive.
The following categories of cases are normally considered unsuitable for ADR process.
i) Representative suits under Order I Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court.
ii) Disputes relating to election to public offices.
iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.
iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc.
v) Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against the Government.
vi) Cases involving prosecution for criminal offences.
REFERAL FOR MEDIATION
Reference to ADR and statutory requirement Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908 require the court to direct the parties to opt for any of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation. If the suitable method is mediation, the court shall refer the dispute to mediation and direct the parties to be present before the Mediation Centre with the counsel, if any. It is ideal that the referral judge ensures presence of the parties before referring the case to one of the ADR methods.
IN A PROCEDURE A mediator meets both parties and their Advocates in a joint mediation sessions. The initial meeting provides for:
- An introduction to the participants
- Explanation[DELETE] Briefing of the mediation process An opportunity to discuss issues affecting settlement or which are important for the mediator to know
- An opportunity for parties to express their views of the dispute and their suggestions for settlement
- If necessary, a mediator may meet each disputing party in private sessions. Private sessions offer opportunities to:
- help the mediator understand the needs of each participant and the obstacles to settlement
- explain to the party the strengths and weaknesses of his case
- assist parties to priortise their interests in the dispute
- explore confidentially with each side the possibilities of various settlement options
The mediator will spend as much time as necessary with the participants (jointly and privately) to explore all options of settlement. If the parties do reach a settlement, the terms will be written, signed and submitted to the court for approval and passing a decree. If not, the case will be returned to the court for adjudication.