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AN ANALYSIS ON ELEVATION OF MEDIATION IS DETRIMENTAL FOR LITIGATION


“An ounce of mediation is worth a pound of arbitration and a ton of litigation”

- Joseph Grynbaum

INTRODUCTION

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.


ABOUT MEDIATION

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.

  • Contract Execution.

  • 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.

  • Post-termination stage.

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