MEDIATION - THE PREFERRED ALTERNATIVE TO LITIGATION

“Its paradoxical to resolve conflict by fighting”

Mediation being one of the mechanisms of Alternative Dispute Resolution , has over the last decade, gained significant relevance in the context of expeditious and mutually acceptable resolution of disputes

The glaring reality of burgeoning backlog of cases , has indeed stirred Indian Judicial System to take active recourse to ADR mechanisms. Of those, mediation seems the preferred choice. With India becoming one of the initial signatories to the Singapore Convention on Mediation, there seems promising vistas for promoting mediation, for settlement of cross border commercial disputes and enforcement of mediated agreements arising from cross-border commercial disputes that is taking form and shape . Besides the recent legislations over the last decade like, The Companies Ac 2013, The Insolvency & Bankruptcy Code, The Commercial Courts Act 2018 , The Consumer Protection Act 2019 have envisaged mediation as an alternative of dispute resolution

It is an overwhelming feel to know that our country is stepping into an era, where mindsets are changing, people no longer have the time to engage in embittering court hauls that covet their precious time and money, in addition to the looming uncertainty of protracted legal battles.

Conflict is an unending friction of incompatible goals and varying views, An endemic phenomenon that has most often devastated and wrecked the human spirit by making one a prisoner of his past. Mediation helps in letting go of what was, letting go of the need to be always right , liberating oneself from the controls of the mind and rediscovering one’s own panacea to that which has held him/her captive for long.

So what is the preferred alternative to litigation? Undoubtedly it is Mediation. Needless to say, it is that beacon of hope which is worth a try for a weary litigant who has almost lost hope of a desirable consequence, and the reasons being far too many.

Mediation is facilitated negotiation. It is a structured Alternative Dispute Resolution Process where a neutral third party assists the disputants to voluntarily reach a mutually acceptable settlement, using techniques of negotiation and skills of communication, the mode of operation being one of complete confidentiality and impartiality with party autonomy in the decision making process.

The parties by themselves intimately understanding the complexities of their situation, achieve a resolution with the help of a mediator who facilitates such a resolution, whereas in an adjudicative process it is the judge or the arbitrator whose preferences in accordance with the civil procedure rules dictate the process. In an adversarial system of justice active listening, fairness and empathy has no role to play. The specifics of the mediation process adheres to the causes and dynamics of conflict, the position, interests and rationality of the conflict unlike an adversarial process where determination is on the rights and entitlements of the disputing parties. Simply put, Mediation is enormously satisfying as it is a process of peacemaking, preserving relationships, healing, connecting, communicating, uplifting, mutual recognition, party empowering and dealing with differences in a deferential and a realistic sense. The disputants are encouraged to think beyond their perceived interests, and a skilled mediator is able to harness the power of emotions by understanding each others perspectives, to secure satisfying solutions. Searching for solutions ought not to be construed as a sign of weakness but as a mantle of strength that helps one to move on with dignity

Professor Lon Fuller, described the central quality of mediation as, "Its capacity to reorient the parties toward each other, not by imposing rules on them but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another."

Court annexed mediations have been growing steadily as litigants in civil disputes can try mediation without any risk attached, because if the mediation fails , they can still resume the court process hoping for a favourable judgment . However, court referrals need to be increased so that mediation is not treated with scepticism and perceived as a chipping away on the adjudicating capabilities of Judicial officers. Most times Legal professionals too, do carry a view of their own self interests and become oblivious of value creation in mediation

To conclude, visualising a world without adjudication and legal controls becoming less distinctive, may for the present seem farfetched and elusive. Whatever said, the transition from a formal justice system to an informal one can never really be attributed to the existence of various ADR mechanisms, on the contrary it can only be possible with a dispute resolution process that is collaborative and transformative, where the outcome is win-win, informed decision making and absolute party autonomy. This necessitates effective mediation skills and a mediator who can help warring parties to get past their negative emotions and one who is able to help draw on people’s better human instincts that often gets buried in their perceived victimisation and past indignations or otherwise.