Difference Between Institutional and Ad Hoc Mediation

Mediation can be organised through a recognised mediation institution or independently by the disputing parties. These two arrangements are known as institutional mediation and ad hoc mediation. Although both involve a neutral mediator who assists parties in reaching a voluntary settlement, they differ in administration, procedure, appointment, costs and supervision. Understanding these differences helps in selecting a suitable mediation framework for a particular dispute.

What Is Institutional Mediation?

Institutional mediation means mediation conducted under the administration or supervision of a mediation institution or mediation service provider. The institution provides an organised framework for the proceedings and generally conducts the mediation according to its established rules.

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The Mediation Act, 2023 defines institutional mediation as mediation conducted under the aegis of a mediation service provider. The expression “under the aegis” indicates that the mediation is supported, administered or supervised by an organised body rather than being managed entirely by the parties themselves.

A mediation institution does not decide the dispute. Its role is administrative and facilitative. The actual mediation is conducted by a neutral mediator who assists the parties in communicating, identifying their interests and exploring possible terms of settlement.

What Is Ad Hoc Mediation?

Ad hoc mediation means mediation organised directly by the parties without placing the proceedings under the administration of a permanent mediation institution.

The expression “ad hoc” refers to an arrangement created for a specific purpose. In this form of mediation, the parties establish a process for resolving a particular dispute. Once the mediation concludes, either through settlement or termination, the arrangement ordinarily comes to an end.

In ad hoc mediation, the parties directly select the mediator. They also decide the procedure, venue, language, schedule, mode of communication, fee arrangement and other administrative matters. The mediator may assist the parties in developing the procedure, but there is no separate institution managing the case.

Difference Between Institutional and Ad Hoc Mediation

The basic difference between institutional and ad hoc mediation lies in the manner in which the proceedings are organised and administered.

Administration of Proceedings

In institutional mediation, the proceedings are administered by a recognised institution or mediation service provider. The institution handles procedural and logistical matters, including registration of the case, communication with the parties, scheduling and fee administration.

In ad hoc mediation, there is no permanent administrative body. These responsibilities are managed by the parties, their legal representatives or the mediator.

Institutional mediation therefore reduces the administrative burden on the parties. Ad hoc mediation requires greater cooperation and direct involvement in organisational matters.

Governing Rules and Procedure

Institutional mediation is generally conducted according to the rules of the selected institution. These rules provide a ready-made procedure and regulate the principal stages of mediation.

Ad hoc mediation is governed by the procedure agreed upon by the parties. They may create their own rules, adopt model mediation rules or authorise the mediator to determine procedural matters.

The institutional model offers greater procedural certainty. The ad hoc model provides greater freedom to customise the procedure.

Appointment of the Mediator

In institutional mediation, the institution may provide a panel of mediators and assist the parties in making a selection. If the parties fail to agree, the institution may appoint a mediator in accordance with its rules.

In ad hoc mediation, the mediator is directly appointed by mutual agreement of the parties. Unless the mediation agreement names an appointing authority, there may be no independent body to make the appointment when disagreement arises.

Institutional mediation is therefore useful where the parties cannot easily agree on a suitable mediator.

Choice of Mediator

Institutional mediation may require the parties to select a mediator from a panel maintained or approved by the institution. The panel usually includes persons who satisfy the institution’s professional or training requirements.

In ad hoc mediation, the parties may choose any mutually acceptable person. They are not ordinarily restricted to an institutional panel.

This makes ad hoc mediation particularly useful where the dispute requires a highly specialised technical or industry expert who may not be included in a particular institution’s panel.

Administrative Assistance

Institutional mediation provides professional administrative support. The institution may arrange meeting rooms, online facilities, document exchange, communication and payment of fees.

In ad hoc mediation, such arrangements must be made independently. The mediator may provide some assistance, but the level of administrative support depends on the parties’ arrangements.

The difference becomes significant in complex, international or multi-party disputes where extensive coordination is required.

Flexibility

Institutional mediation allows flexibility, but the proceedings remain subject to the institution’s rules and administrative requirements.

Ad hoc mediation generally offers a higher degree of flexibility. The parties may decide the number and duration of sessions, mode of participation, exchange of statements and other procedural matters.

The process can therefore be designed according to the particular needs of the dispute. However, excessive informality may create uncertainty where the parties have not clearly agreed on the procedure.

Party Autonomy

Party autonomy exists in both forms of mediation. The parties retain the right to decide whether to settle and what settlement terms to accept.

However, ad hoc mediation gives wider autonomy in relation to the design and administration of the proceedings. Institutional mediation requires the parties to operate within an established framework.

The institutional framework may limit certain procedural choices, but it can also protect the parties from disagreement and delay.

Cost of Mediation

Institutional mediation generally involves mediator fees as well as registration and administrative charges payable to the institution.

Ad hoc mediation normally avoids institutional charges. The parties directly negotiate the mediator’s fee and bear any expenses relating to the venue, technology or documentation.

Ad hoc mediation may therefore be less expensive, particularly in straightforward disputes. Institutional costs may nevertheless be justified where the case requires professional administration and logistical support.

Predictability of Fees

Institutions often publish fee schedules or provide a clear method for calculating administrative and mediator fees. This may make the cost structure more predictable.

In ad hoc mediation, the parties directly negotiate fees with the mediator. This provides flexibility but may lead to uncertainty unless the fee arrangement is recorded clearly at the beginning.

A detailed written agreement is important in ad hoc mediation to prevent disputes over payment.

Commencement of Mediation

Institutional mediation generally begins by filing a request or application with the selected institution. The institution then communicates with the opposite party and completes the required administrative steps.

Ad hoc mediation may begin through a direct notice or proposal from one party to another. Once the parties agree on the mediator and procedure, the sessions can commence.

Ad hoc mediation may begin more quickly where the parties cooperate. Institutional mediation may take additional time because registration and appointment procedures must be completed.

Replacement of the Mediator

In institutional mediation, the applicable rules usually provide a mechanism for replacing a mediator who resigns, becomes unavailable, fails to disclose a conflict or is unable to continue.

The institution may appoint a substitute mediator without requiring the parties to redesign the process.

In ad hoc mediation, replacement generally requires a fresh agreement between the parties. The absence of an agreed replacement mechanism may cause delay or even result in the termination of mediation.

Conflict of Interest and Disclosure

Institutional rules often prescribe detailed disclosure and ethical requirements for mediators. The institution may examine objections regarding a mediator’s independence or impartiality.

In ad hoc mediation, the mediator remains under a duty to disclose circumstances that may create doubts about neutrality. However, objections are handled according to the agreement between the parties because no institution is present to decide administrative questions.

The effectiveness of disclosure arrangements in ad hoc mediation therefore depends heavily on the terms of appointment.

Professional Standards and Quality Control

Mediation institutions commonly maintain eligibility criteria, codes of conduct and training requirements for mediators. They may also monitor performance and deal with complaints.

Ad hoc mediation does not have built-in institutional quality control. The parties must independently assess the mediator’s qualifications, experience and suitability.

This does not make ad hoc mediators less competent. It simply places greater responsibility on the parties when making the appointment.

Confidentiality and Record Management

Confidentiality is a central principle in both institutional and ad hoc mediation.

In institutional mediation, confidentiality may be regulated by the institution’s rules. The institution may also maintain limited administrative records relating to the commencement, appointment and termination of proceedings.

In ad hoc mediation, confidentiality obligations must be addressed through the mediation agreement and applicable law. Records are normally maintained by the parties or mediator.

Institutional record management may provide greater organisation, while ad hoc mediation may involve fewer persons having access to information.

Procedural Certainty

Institutional mediation provides greater certainty because the parties can rely on established rules. Questions relating to appointment, fees, replacement and termination are usually covered in advance.

In ad hoc mediation, certainty depends on the completeness of the mediation agreement. A poorly drafted agreement may lead to procedural disagreements.

Ad hoc mediation therefore requires careful planning despite its informal and flexible character.

Accountability and Supervision

Institutional mediation involves a degree of administrative oversight. The institution may ensure compliance with its rules and professional standards.

Ad hoc mediation operates without such supervision. Accountability arises from the mediation agreement, professional obligations of the mediator and applicable legal provisions.

Institutional oversight may increase confidence where the parties are unfamiliar with each other or have unequal bargaining power.

Suitability for Complex Disputes

Institutional mediation is often suitable for high-value commercial disputes, international transactions, construction matters, multi-party conflicts and cases requiring extensive coordination.

The institution can manage communications, identify suitable mediators and provide facilities needed for a complex process.

Ad hoc mediation is often suitable for relatively straightforward disputes, disputes involving a limited number of parties and cases where a trusted mediator has already been identified.

However, a well-designed ad hoc process can also handle complex disputes where the parties and mediator possess sufficient experience.

Suitability for Continuing Relationships

Both forms can help preserve commercial, professional, family and community relationships because mediation is cooperative rather than adjudicatory.

Ad hoc mediation may be suitable where the parties already have a working relationship and can jointly organise the process.

Institutional mediation may be preferable where the relationship has deteriorated to the extent that independent administration is required.

Speed and Efficiency

Ad hoc mediation can be arranged quickly because the parties are not required to complete institutional formalities. This advantage depends on their ability to agree on the mediator and procedure without delay.

Institutional mediation may involve additional registration and administrative stages. However, once initiated, professional case management may make the overall process more efficient.

Speed therefore depends not only on the chosen model but also on the conduct of the parties, complexity of the case and availability of the mediator.

International and Cross-Border Disputes

Institutional mediation may be preferred in international disputes because a recognised institution provides neutral administration and established rules.

Parties from different jurisdictions may have greater confidence in an independent institution than in a process managed by one of the parties.

Ad hoc mediation can also be used for cross-border disputes, but it requires detailed agreement on the mediator, language, venue, applicable procedure and use of technology.

How to Decide Between Institutional and Ad Hoc Mediation

The choice between institutional and ad hoc mediation depends on the nature of the dispute, the relationship between the parties, the need for administrative support and the level of procedural flexibility required. No single model is suitable for every case. Institutional mediation provides a structured framework, while ad hoc mediation gives parties greater freedom to design the process.

When to Choose Institutional Mediation

Institutional mediation may be more suitable when:

• The dispute is complex, high-value or involves several parties.
• The parties require assistance in appointing a qualified mediator.
• There is a risk of disagreement regarding procedure, fees or timelines.
• Professional case management, document handling and scheduling support are necessary.
• The dispute has an international or cross-border element.
• Greater procedural certainty, ethical oversight and accountability are important.
• A clear mechanism is needed for replacing the mediator.

When to Choose Ad Hoc Mediation

Ad hoc mediation may be more suitable when:

• The dispute is relatively straightforward and involves limited issues.
• The parties already agree on a trusted and suitable mediator.
• Greater flexibility is required in deciding procedure, venue and schedule.
• The parties wish to avoid institutional administrative charges.
• The matter requires a specialised expert who may not be on an institutional panel.
• The parties have a cooperative relationship and can manage administrative arrangements independently.

Conclusion

Institutional and ad hoc mediation are two methods of organising a consensual dispute resolution process. Institutional mediation provides established rules, administrative assistance, appointment mechanisms and professional oversight. Ad hoc mediation provides greater flexibility, wider procedural control and potentially lower costs.

Neither form is suitable for every dispute. Institutional mediation may be preferable where the dispute is complex, the parties require administrative support or agreement on a mediator is difficult. Ad hoc mediation may be more appropriate where the parties cooperate, a suitable mediator is readily available and a flexible process is required.