The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Name: Kruthika Varada
Corporate Dynamics: Unveiling the Transformative Influence of Mediation in the Business Sector
What is Mediation?
“Mediation is when parties meet with a neutral person to help them with conflict resolution. Mediation is one of several alternative dispute resolution methods (ADR) available to parties. It is an alternative to resolving a legal dispute through a trial or court case. Mediators aim to help disputing parties find common ground and reach a mutually satisfying solution. They oversee the exchange of information and the bargaining process. They may participate in creative problem-solving and assist in drafting a final settlement agreement. It is usually a voluntary process.”
Mediation in India:
“The Mediation Bill, 2023 was passed by the Rajya Sabha and the Lok Sabha on August 1 2023 and August 7 2023, respectively. Subsequently, upon receipt of the presidential assent on September 14 2023, the Mediation Bill, 2023 was enacted as the Mediation Act of 2023. Quintessentially, the Act aims “to promote and facilitate mediation”, thus in furtherance of its object, the Act includes within its ambit pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person.
The Act applies to mediation proceedings conducted in India; or if all or both parties habitually reside in or are incorporated in or have their place of business in India; or when a mediation agreement provides for resolution of disputes through this Act; or international mediation for disputes that are commercial in nature wherein, one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations and local bodies, including entities controlled or owned by such Government; or other notified disputes.”
Mediation in Corporate Law:
“The relationship between parties in the corporate world is essential in order to address business disagreements which focus on the language of business contract per se. Despite solutions to various disputes and legal provisions on corporate, company and shareholder rights, all the parties concerned are still facing some challenges. The mediation method is one of the alternative dispute resolutions for those who seek justice without undergoing court proceedings. It is a swift and inexpensive form of dispute resolution. A mediator’s role is to facilitate the disputing parties and utilize both joint and private sessions to assist them to achieve consensus. In view of the economic interest and with a vision to maintain their business relationships, a private settlement is preferred between” parties in the corporate sector.
“A caucus is a mediation technique that involves separate meetings between disputing parties and a neutral mediator. These private sessions provide a safe and confidential space for parties to communicate their concerns, express their viewpoints, and work towards a resolution. The mediator plays a pivotal role in facilitating communication, guiding negotiations, and assisting parties in reaching an agreement.”
“In India, the recent Mediation Act, 2023, is seen as progressive by the industry and the legal fraternity. The salient features of the Act include provisions for setting up a Mediation Council of India (MCI), ensuring the confidentiality of proceedings, recognition of mediation institutes, empanelment of mediators, timelines within which mediation should be conducted, along with the withdrawal option from proceedings, and circumstances under which mediated agreements can be challenged, among others.”
“The concept of Commercial Mediation was boosted up in India after the passing of Companies Act, 2013 which makes it mandatory for central government to maintain a mediation and conciliation panel, comprising of experts of commercial mediation for resolving the dispute between the parties. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Act, 2018 is a landmark statute which provides for compulsory Pre Institution commercial mediation for any commercial dispute as defined in Section 2(c) of the Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 which states whose value is greater than three lakhs, pre-institution commercial mediation will be compulsory unless any urgent interim relief is sought by the parties, in which case mediation will not be required.” “India's banking sector assumes a crucial role in the nation's economic progress. To bolster this vital sector, it is imperative to embrace alternative dispute resolution mechanisms for addressing commercial disputes, as well as tackling issues related to defaults in home loans, retail loans, and even in cases involving restructuring and One Time Settlements. In the context of India's banking industry, mediation offers several compelling advantages. The major advantage being that of confidentiality. Mediation proceedings are confidential, enabling institutions and the customer to discuss sensitive financial matters privately. This confidentiality is crucial when negotiating loan settlements or restructuring or any other matter crucial to the company. Further, mediation allows for amicable dispute resolution, which enhances customer satisfaction and retention compared to the adversarial nature of litigation. In the context of international trade and export financing, Indian banks have successfully employed Mediation/ADR to resolve disputes related to documentary credits, letters of credit, and trade finance arrangements. Mediation has proven effective in cases involving discrepancies in shipping documents or disagreements over the terms of export financing agreements. Indian retail banks have increasingly turned to informal mediation to address customer complaints and disputes related to issues such as unauthorized transactions, account discrepancies and loan servicing errors.”
In conclusion, mediation has become a vital instrument for dispute resolution in the business world. Its advantages, such as cost-effectiveness, relationship preservation, secrecy, flexibility, and quick settlement, make it an appealing alternative to traditional litigation. As organizations manage the intricacies of today's economy, the use of mediation demonstrates a strategic commitment to efficient conflict resolution and the development of healthy and collaborative corporate cultures. Corporations that embrace mediation may not only efficiently settle problems but also contribute to a more sustainable and peaceful corporate environment as well as a lesser burdened legal system.
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