‘When you are at the edge of a cliff, sometimes progress is a step backward’. The system of Alternative Dispute Resolution (hereinafter referred to as ADR) evolved to provide an alternative route to speedy justice and to reduce the burden of courts. ADR is a range of procedures serving as alternatives to litigation for resolution of disputes . In the case of India, roots of mediation can be traced back to ancient Indian legal systems such as ‘Gram panchayats’ or ‘Nyaya Panchayats’ which were widely prevalent in the Indian rural areas . In a nutshell, mediation can be referred to as a process of facilitated negotiation in which parties attempt to resolve their disputes by involving a neutral third party, called the mediator who identifies the issues, irons out the differences, sorts priorities, explores possible compromises, and generates options for resolving the dispute .
The process of mediation does help a great deal in overcoming the pitfalls of litigation. Some common disadvantages are delay in justice delivery, procedural rigidity, limited participatory roles of the parties etc . A mediator, who is a facilitator and not an adjudicator, seeks to establish joint communication between the parties, to identify the agenda, to moderate the statements of both the parties without undermining the intended significance, and most importantly, to ensure that views of parties are mutually acknowledged . There is a win-win situation for both the sides. It is to be noted that parties who enter the process of mediation do not forfeit their legal rights or remedies. If there is no settlement in mediation, parties can enforce their rights through appropriate court procedures.
The process of mediation is to remain strictly confidential and the confidential facts discussed during mediation can’t be used as evidence in the court if settlement isn’t reached. This confidentiality factor helps the parties to effectively negotiate amongst themselves. Only an executed mediation statement or an unsuccessful mediation statement can be given to the court by the mediator . The process of mediation has its own share of disadvantages. The access to quality justice depends on how the disadvantaged party fares in mediation. These disadvantages may arise from poor language skills, poor health, illiteracy etc. which results in loss of capacity of the disadvantaged party to meet the requirement of party-autonomy in mediation .
The process of mediation is negatively affected by low levels of awareness about the process, lack of initiative on the part of the government and legal fraternity to spread awareness and provide access to mediation, and conservative approach on the part of lawyers who often hesitate to expose their clients to uncertain risks of ADR process due to fear that mediation would potentially deprive them of their income by settling cases prematurely .
Various safeguards can be taken for nullifying the aforesaid disadvantages. These safeguards have to promote both efficiency and ethics. The mediators have to be properly trained to follow the fundamental principles of mediation. There has to be a periodic/on-going evaluation of mediation processes. Mediators have to be trained for guiding the process strictly and taking a detailed intake session with the parties . There has to be a shift from traditional adversarial litigation system to a system of alternate dispute resolution as law can’t remain stagnant.
So, with a little more awareness of the process and efficient training of the relevant actors (mediators), mediation can be an effective tool for achieving justice. Finally, in the words of Joseph Grynbaum, ‘An ounce of mediation is worth a pound of arbitration and a ton of litigation’.
1.) BROWN & MARIOTT, ADR PRINCIPLES AND PRACTICE 12-13, (2nd ed. 1999).
2.) Anil Xavier, Mediation: Its growth and origin in India, INDIAN INSTITUTE OF ARBITRATION AND MEDIATION (April 1, 2020, 02:21 P.M.), https://www.arbitrationindia.com/articles.html
3.) BROWN & MARIOTT, supra note 1, at 127.
4.) D.Y.Chandrachud, J., Mediation: Realizing the potential and designing the implementation strategies, LAW COMMISSION OF INDIA (April 1, 2020, 02:30 P.M.), http://lawcommissionofindia.nic.in/adr_conf/chandrachud3.pdf
5.) Anil Xavier, supra note 2, at 275.
6.) Motiram (Dead) Tr. LRs v. Ashok Kumar, (2010) S.C. 497 (India).
7.) Christine Coumarelos et al, Access to justice and legal needs, 7 Legal Australia Wide Survey 5-6, 16 (2012).
8.) Maithili Pai, Impact of mediation in India, VALENTI LAW (March 11, 2015) https://valentilaw.com/2015/03/11/impact-of-mediation-in-india-guest-post-from-maithili-pai/
9.) Lola Akin Ojelabi, Mediation and Justice: An Australian perspective using Rawls’ categories of procedural justice, 31 CIVIL JUSTICE QUARTERLY 318, 325 (2012).
Tags : Mediation, justice, litigation, awareness , conservatism