Mediation: Constituents, Process And Merit
The philosophy of ADR is to motivate people to resolve their
disputes amicably and for this purpose it is necessary to examine
ADR's main trends and underlying objectives. Mediation has
helped in reducing the pendency considerably. So much so that
mediation is considered as a recognized tool to settle the dispute
between the parties prior to filing of a case and even during the
trial.
Focus on mediation has reduced the pendency of cases
considerably and relieving the courts of unnecessary burden and
leaving them free to decide cases of public importance which
require the expertise of the court. The time has come for the
judges to shed their traditional neutrality and to adopt a pro-active
role, the law officers must remember that their duty was not only
to decide the list of cases brought before them but to settle the
dispute forever.
Definition:
Mediation is a structured process of dispute resolution in
which a mediator, a neutral person trained in the process of a
mediation, works with the parties to a dispute, to bring them
to a mutually acceptable agreement. The mediator does not
decide the dispute or give an award. He is only a facilitator
and in charge of the process of mediation. The Mediation is a
purely voluntary process in which parties continue out of
their free will.
Suggestions
Intensive training of concerned judges, lawyers and the
court staff is a must. The training will be on a continuous
basis and JOTI should have an instructor on its pay roll to
impart training on Mediation to different tiers of trainee-
judges, including new entrants to the Judicial Service. A
batch of trainers should be created to take up this arduous
job in all the districts.
Mediation will have a-smooth transition if it is
introduced on a pilot court basis. The performances, results,
reactions among pilot court judges, practicing lawyers and
the litigants should be carefully monitored and recorded and
suitable adjustments in the Mediation project should be
made at each stage of extension after an exhaustive study of
the experienceLabor Courts and Small Causes Court are the two areas
where mediation should be introduced immediately on a
priority basis, amending the two special legislations.
By above discussion it is clear that Mediation is very
useful and Every New Institutional Framework must be
brought about three Stages. The First Stage is bring
awareness, the second acceptance and third
implementation.
Although the proper stage to do so is after receiving the
written statement, I would suggest 'at any stage of the suit'
to cover backlogs
Advantages of Mediation:
When Mediation works it is an effective means of dispute
resolution for any dispute not requiring a judicial or third
party determination. It provides a forum and an atmosphere in
which parties gain understanding, become understood, and
work together to explore options for resolution. By resolving
disputes in mediation, parties determine for themselves what
is important and, ultimately the outcome of the situation.
While the benefits of mediation vary somewhat depending
upon the nature of the dispute, and model of mediation
applied, the following are some of the benefits typically
associated with mediation:
Recognition:
In hearing and being heard in the
mediation forum, parties gain the understanding of the
other parties point of view, and an enhanced opportunity
to be heard and understood themselves.
Use of Mediation in Reducing of
Pre-litigation:
Sometimes, pre-litigation mediation or early
mediation are not options. The other side will not agree,
the risks to either side are not clear yet, discovery needs to
be taken. But, where the time is right, the benefits to all
may make pre-litigation mediation the creative strategy.
There are various reasons to do a mediation before
suit is filed. First, litigation can be very emotionally
draining on plaintiffs, especially in very emotional cases.
Time away from jobs and family may be yet another justification and motivation for pre-litigation mediation.
All in all, there is a move to mediate early in the process.
Conclusion
Do you know In America almost 96 % cases get
disposed through Mediation in ground level. Every
Civil Case put before the Mediator authority at first
instance and then mediator authority clear all aspect
between parties and lawyers never misguide the
parties of suit and if any question of law involved in
that case, parties go before trial Court.
A pilot project like Delhi & other Metro District
Courts should also be adopted in Chhattisgarh State.From the above discussion,
it is clear that:
Mediation will become revolutionary for our judiciary.
For the aforementioned purpose, the government and
the judiciary have to undergo the process of judicial
review seriously both an operational and structural
level. If all the players viz., the Government, the
Judiciary, the Bar and the litigants take a concerted
action in co-operation with each other, there is no
reason as to why all stakeholders, should not reach
consensus on the programme. A full-time professional
mediator involved in resolving disputes throughout
the District level is required.
First two letters of Mediation is 'ME'
but it become more effective if it's
implemented by the concern of 'WE'.
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