Professional Documents
Culture Documents
Non-binding procedure
Confidential procedure
Interest-based procedure
RESPONSIBILITY OF MEDIATOR
Acts as a catalyst
Confidential process
Multiple and flexible possibilities for resolving
dispute
Mutual endeavor
Aid of mediator
MEDIATION PROCESS
Creative solution
Identification of facts
Discussions
Decision
Agreement
TYPES OF MEDIATION
Consumer mediation
Eldercare mediation
Environmental mediation
Divorce mediation
Real-estate mediation
Employment mediation
Commercial mediation
Land/tenant mediation
MEDIATION STYLES
Evaluative mediation
Facilitative mediation
Transformative mediation
EFFECTIVE MEDIATION TECHNIQUES
Listen to mediator
Don’t be afraid
Follow principles
Stronger party
Cont..
RESTORATIVE JUSTICE
Juvenile cases
Less heinous adult crimes
Mutual assaults and the disputes between
neighbors
Crimes against property
Motor Accident Claims - Drunk-driving
Dowry harassment and cruelty u/s 406/498-A IPC
Complaints u/s 138 of Negotiable Instruments Act
Petitions u/s 125 Cr. P.C.
Any other compoundable offence
FACTORS TO BE CONSIDERED BY
REFERRAL JUDGE
Case Characteristics
• case not to involve complex legal issues,
ambiguous precedent, Constitutional issues
or Public Policy
• referral Judge should ascertain whether
previous attempts to mediation have failed
and why
Cont..
FACTORS TO BE CONSIDERED BY
REFERRAL JUDGE
Party Characteristics
• costs and time - not more than litigation
• parties and their advocates have positive
attitude
• government is not a party
PROCESS
Acts as a catalyst
Third party who referees disputed parties
Neutral party but not neutral as to the wrong
Attending to the needs of crime victims
Process of facilitating meaningful accountability
Trained prepare victims and offenders to come
face to-face
Skills for working with trauma victims
Rule 3 of the Mediation and Conciliation Rules,
2004
PARTICIPANTS IN MEDIATION
The Defendant
Defendant’s lawyer
The Victim - a natural or a legal person
Public Prosecutor
Victim’s Advocate
A representative from Law Enforcement
Juvenile mediations - juvenile, parent/ guardian,
victim, victim’s relative or advocate
All participants to meet at scheduled place on
scheduled date with the mediator
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Criminal Mediation
• Resolution by compromise
• Both parties have opportunity to explain their behavior
• Quick, inexpensive, and effective
• Mediators charge affordable flat rate or hourly fee
• Enhance chances of winning
• Mediation can give guidance, support, and compassion
• Voluntary and feeling of satisfaction to parties
Contd..
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Criminal Mediation
• Presents open-minded opportunity
• Casual neutral setting
• Personalizing a plan to encourage mutually fair resolution
agreement
Court system
• Follow strict standards
• Opportunity to explain may be denied as it is legal counsel who
puts forward their case
• Burdens the parties financially, emotionally and inconveniently
Contd..
Contd..
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Court system
• Courts and lawyers charge excess fees
• Odds of winning a criminal dispute are slim
• Lawyers and court systems have no mercy
• Decision always enforced on one party. Thus
discontentment - leads to filing of multiple appeals
• Judge presents his/her legal opinion in the verdict
• Most people do not like attending court
• Dictate the resolve by making biased decisions
MEDIATION IN CASES INVOLVING
JUVENILE OFFENDERS
Diversion from prosecution
Opportunity to avoid getting a juvenile or
criminal record
Charges may be dismissed
Case of 1974
Other countries
ADVANTAGES
Cheaper, quick and less adversarial
Entirely voluntary
Flexible, often informal, and adaptable
Confidentiality
No technicalities involved
Neutral environment
Mutual agreement
Criminal Arbitration and lawsuit litigation still
remain as options
Avoids psychological sufferings
Less time consuming
Contd..
ADVANTAGES
90% cases
Law Enforcement Assistance Administration
(LEAA)
• Pilot Neighbourhood justice centres
• Increased support from private sector
• Children, Courts and Dispute Resolution
Types of Mediation
• Rights – based
• Interest or needs based
Cont..
UNITED STATES OF AMERICA
State courts
• California
• Minnesota
• New Jersey
• Texas
Cont..
UNITED STATES OF AMERICA
International Mediation
Anglo- Saxon legal base
ADR not litigation or arbitration
Types of Mediation
• Standard Mediation
• Mini- trial/ Executive Tribunal
• Adjudication/ Med- Arb/ Rent a judge
Cont..
UNITED KINGDOM
Advantages
• Parties autonomy
• Flexible and neutral
• Confidential and without prejudice
• Relatively inexpensive
• Not adversarial
• Cultural differences are eased out
• Future relationships are preserved and
continued
Disadvantages
• Serious Business
• Consent of both sides
SRI LANKA
Cont..
SRI LANKA
Cont..
HONG KONG
Aims of HKMC:
• Development of Mediation
• Collaboration
• Facilitating exchange of information
• Education and training
Function of HKMC:
• Holding seminars and meetings
• Training of mediators
• Publishing a newsletter
Cont..
HONG KONG
Function of HKMC:
• Coordinating the development of
mediation
• Establishing standards of practice for
mediation
Mediation Process:
• Written request
• Notification within 14 days
• Mediation within 42 days
• Appointment of mediator
AUSTRALIA
Cont..
AUSTRALIA