“An ounce of mediation is worth a pound of arbitration and a ton of litigation”
- Joseph Grynbaum
Mediation and Litigation are two methods widely adopted by the people to often get justice. They both are complementary to each other as one can as per their choice either go in the courtroom to solve their disputes/issues or settle their disputes/issues by the means of mutual understanding through mediator.
But a common misconception lies that these both methods are not complementary and are detrimental to the growth of one another. While litigation is the traditional method, Mediation in Alternative dispute resolution is a modern method which came due to the problems faced by the public because of litigation. These problems can be highlighted through the quote of Abraham Lincoln:
“Discourage Litigation. Persuade your neighbors to compromise where you can. Point out them how the nominal winner is often the real loser- in fees, expenses and waste of time.”
As we know that these days, mediation as a way to settle issues is growing rapidly among the people, a threat is detected constantly to the field of litigation. Though, I am not in favor of this notion that mediation is a threat to the field of litigation but I will agree to the point in wholesome that advent of mediation has changed the perspective of justice with respect to litigation.
Times have changed and so the people need to adapt to various other settlements to make their lives easier. That is why these days mediation is being adapted by a large number of people. But this in no way indicates that litigation has lost its value or it has come in the zone of detriment because of the advent of any other field such as mediation.
We need to understand that these both are complementary to each other. One can decide on the merits and demerits of their case whether to go for mediation or litigation. So, in order to know what these merits and demerits are we need to know in detail about these two fields of law i.e. Mediation and Litigation.
It is very rightly said by Miroslav lajcak that, “Mediation is one of the most effective tools of non-violence. It can turn parties away from conflict, towards compromise”.
As per LB Cuszon, Mediation is the act of a 3rd party relating to the settling of a dispute between two contending parties. Obviously, a mediator is not required to follow the procedural law but he is expected to act adhering to the fundamental principle of natural justice.
Mediation is a non-binding procedure between the contended parties. Mediator assists in reaching the mutually agreed settlement by being neutral to both sides. The mediation process is informal and an assisted negotiation of disputed settlement. It occurs outside the formal legal system. In other words it avoids procedural trap.
STAGES OF MEDIATION
There are certain stages involved in the process of mediation. These are as follows:
Selection of mediator.
Furnishing of information and correspondence.
Meeting of parties.
Mediator is familiarized with the facts about parties.
Information is gathered.
A stage of impasse.
Either mediation is terminated or agreement is achieved.
QUALITIES OF A MEDIATOR
Understanding: A mediator has the quality of understanding complex as well as sensitive issues. A mediator is concerned with the aspirations of the parties both explicitly and implicitly.
Judgment: It is very often observed that a mediator always gave a sound and judicious judgment with a rational approach and a shortcut common sense.
Intuition: A mediator has the ability to sense information without any rationalization which is obtained through perceptiveness to a verbal and other signals received.
Trustworthiness: A mediator is a trusted person whose integrity coupled with a sense repose the mediator.
Flexibility: A mediator has the ability to cope up with changes, with unusual situations, ideas and solutions in rapidly varying solutions.
Independence: Independence means the ability to work autonomously. A mediator has the quality of being working independently and neutral without any support or feedback.
While mediator has certain advantages in various factors, he does face some limitations too. These limitations act as a hindrance to him as well as to the mediation process. Some of the limitations are discussed below.
LIMITATIONS OF A MEDIATOR
Neither attendance of the parties nor production of any document can be compelled by the mediator at any point of time during the process.
He is a mediator only till the party consents. As soon as the parties changes their mind to remove mediator, a mediator has to exist himself from the dispute.
Only those disputed points can be discussed which are being raised by the parties. He can only induce them to discuss their views on those disputed points.
No power is given to him seek the intervention of court in the dispute resolving process.
Subject matter cannot be modified by him on any account.
A party is not penalized for non-cooperation in the dispute since a mediator has no authority to do so.
Mediation lacks enforceability because of its non-statutory function. Therefore, the decisions of mediator are non-binding.
Only if the party consents, the only the assistance of expert can be taken. Otherwise he had no authority to do so.
Ex-parte mediation is not allowed and the mediator can be removed by the parties any time.
TYPES OF DISPUTE RESOLVED BY THE MEDIATION PROCESS
Environmental issues, financial services
Boundary disputes, Broker Liability
Aviation, Banking and Finance
Distribution agreement- Employment
Maritime and Shipping, Multiparty actions
Commercial agencies, Commercial contracts
Oil and Gas Contracts, Partnership disputes
Clinical and Medical Negligence
Information Technology, Insolvency and Banking
Environmental issues and Financial Services
Railway Industry: Transport Regulatory Disputes
ADVANTAGES OF MEDIATION
Deals with root causes of disputes: In Mediation, the root causes of problems and issues are identified and then solved. This kind of settlement is long lasting because parties are encouraged to think about the basic reasons of dispute.
Improves Communication: The process of mediation improves the communicative capacity between the parties. Views are exchanged in a soothing environment which allows the party to communicate effectively and resolve disputes in a peaceful manner.
Mediation-A Friendly Process: Mediators are not strangers like courts. Instead they act in a friendly manner and assists between both the parties in a neutral way. Thus Mediation is termed as a process which is resolved in a very friendly amicable manner.
The process of mediation is neither threatening nor coercive.
It is a means of reducing stress in the community.
The process of mediation is voluntary and thus the parties are allowed to resolve their disputes themselves.
Mediators are not professionals and hence don not require long trainings like Judges, officials etc.
Mediation is less expensive, a speedier process and fairer than adjudication. Also, unlike judges, mediators represent society and their basic values and norms.
Litigation is the process of resolving a dispute before the court of law. It is more than a lawsuit and courtroom proceedings. It involves two opposite parties who proceed to either enforce or defend a legal right. According to a few, it simply means a ‘Pure’ practice of law. Two advocates, each represents a client and fight out in the court of law.
A matter of dispute if it is unsolvable by the lawsuit, then it falls under the category of Litigation. Though the dispute can be resolved out of the court, but if that’s not possible then the dispute may be solved by the jury or judge. If both or either of the clients cannot resolve their disputes amicably, then they resort to the litigation process.
Let us understand the process of litigation in a brief manner.
PROCESS OF LITIGATION
Step 1: Complaint
Once it is decided by the parties that they cannot reach an agreement, either or both of the parties will hire a litigation lawyer. A complaint is filed by one party in the court. The complaint document contains the details of parties involved, facts of the dispute, and lays out legal claims and indicates specific damages. Then a Demand letter must be sent to the other party so that they can be informed what they had to do to avoid further legal hassles.
The other party has to respond within a specified time period. Reply can include filing an answer, admitting or denying the facts or statements in the case. It can also file an answer with counterclaims or dismiss the motion on the grounds that it is not as per the law.
Step 2: Discovery
During this stage, the information is exchanged between the parties. A litigation lawyer demands for the facts, documents and evidences related to the case from other party. This stage is a really crucial and a formal one. One has to maintain deadlines. If deadlines are not met, then the parties may lose the right to use evidence and facts in the trial.
In additions to it, the rules may be really technical and complex. It is really necessary to have a well versed lawyer who understands the minute details of this discovery process. The formal interviewing of both the parties is done and depositions are conducted under an oath and are transcribed.
STEP 3: MOTION AND TRIAL
The lawyers can ask in the court of law more time to discover the facts of the case. After the process of trial begins, litigating lawyer of both the parties presents their stances in the court of law before judges. It is pertinent to note that a trial may go on for several weeks. After going through a rigorous stance of arguments, the jury (judge, in case no jury is present), the verdict is delivered.
STEP 4: APPEAL
After the verdict is delivered, there may be the case that either of the parties is not satisfied with the judgment. Therefore, in such a situation, the party not satisfied can file an appeal in the higher court. The jury of the higher court will review the facts and legal issues involved and will look for the legal errors in the judgment. If it finds that the decision by lower court had no errors involved it will dispose the case. But if it finds anything erroneous in the judgment it may reverse the judgment of lower court and at this stage a new trial begins.
TYPES OF LITIGATION
Civil Litigation: Involves dispute between parties relating to money over the damages. It may also involve performance of any specific act.
Criminal Litigation: Involves matters related to murder, dowry death, suicide etc.
Commercial Litigation: Involves dispute relating to specific-business transactions.
The list of types of litigation is endless as its subject matter is really vast.
CONCLUSION- MEDIATION V. LITIGATION
After having a brief analysis on what mediation and litigation is, it can be clearly inferred that both the process are complementary to each other. One must go for mediation or other such types in ADR if they are not financially capable to bear the heavy costs of the dispute process. This nowhere implies that it cannot be adopted by financially capable people.
Litigation, as we know that is a time-consuming as well as involves heavy costs, a man with fewer earnings would eventually loss himself because of these heavy costs. Both the process has their implied advantages as well as disadvantages.
Advent of modern method didn’t imply that traditional method would lose their place in society. It is the wish of the complainant to either go for the former or latter. Therefore, we can say that Mediation is not detriment to the growth of litigation.
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2. Law Office of Ben Carrasco, https://bencarrascolaw.com/blog/what-is-litigation/, (Last visited May 12, 2021).
3.Wilson Kehoe Winingham, https://www.wkw.com/legal-process/blog/mediation-litigation-whats-difference/#:~:text=Litigation%20is%20the%20legal%20term,of%20contract%20to%20personal%20injury.&text=Mediation%20attempts%20to%20settle%20a%20case%20without%20going%20to%20trial, (Last visited May, 19,2021)
By Surbhi Jindal