Question

1. What is the definition of mediation? Is it a type of alternative dispute resolution? 2. How does it differ from arbitration? 3. What are the qualifications to be a mediator? Does one have to be a judge? A lawyer? Does one have to have passed a bar exam? 4. What kinds of matters get mediated? 5. When would one choose mediation over a lawsuit or a court action? 6. Do mediators (the presiding "judge") make rulings/decisions in mediations? If not, who makes them? 7. What is the role of the mediator? 8. Can mediation be used as a liquidated damage in a contract? What is the definition of "liquidated damage?" 9. Do you think you have a personality suited to mediation (if you had a dispute?) Why or why not? 10. Are the rules of evidence and court procedure used in mediation? If not, what rules are used?

Answer 1

Mediation :-

Mediation is a procedure in which two parties refer to a third party called mediator who helps them to discuss their disputes and reach an amicable settlement.

Is it a type of ADR :-

Yes , Mediation is one of the methods of alternate dispute mechanism because it is a form of negotiation facilitated by neutral third party.

How does it differ to arbitration :-

The major point of difference between arbitration and mediation is that :-

1) Arbitration is a form of trial , while mediation is a form of negotiation.

2) Arbitration involves decision making by a third party , however mediation does not involve any decision making by a third party.

Qualifications of a mediator :-

1) Court appointed mediators have to compulsory obtain approved mediation training.

2) Few states in US require a law degree to be recognized as a court approved mediator.

3) A retired judge can work in the capacity of mediator.

Matters that can be referred to Mediation :-

Mediation is mostly referred usually in non criminal matters like verbal harassment, divorce , child custody, labour unions , land lord and tenant issues .

When does a matter is referred to mediation :-

Mediation is a voluntary process . However small claim courts , housing courts , family courts may require the parties to go for mediation in order to amicably reach to a mutual negotiation.

Who passes the judgement in mediation :-

The third party who acts as a mediator has no right to pass any judgement regards to the matter bought in front of him .

Instead once the parties reach to an amicable decision , mediation agreement is made that is signed by both parties and such agreement is binding and enforceable on both the parties .

Can mediation be used as a liquidated damage :-

Liquidated damages are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach .

Yes , if both the parties agree to this , mediation charges can be considered as liquidated damages and it's liability of payment is decided as per the negotiation reached in the mediation contract.

Are the rules of evidence and court procedure used in mediation :-

Any party can bring evidence to the court .However Mediator must not provide any evidence to the other side without the first party's consent

Under Section 131 of the Evidence Act 2008 , information provided to mediator in order to negotiate a settlement cannot be latter used as evidence as court .