ADR: JUSTICE WITHOUT TRIAL
Every human being in their whole life has disputes going on even for once. Conflicts are unavoidable, and they indeed arise personally or even in a commercial association. Every disagreement has three facets - process, problem and people. There isn’t anything wrong with having a dispute, but what’s important, how the parties should handle the conflict. Addressing a conflict could involve two modes - adversarial (litigation and arbitration) and non-adversarial (mediation and conciliation).
The adversarial system of dispute resolution
It is one in which the competing claims of parties are represented by legal representatives who are interested in the outcomes of dispute, to an impartial third party, with power to impose authorities. As against the adversarial mode of dispute resolution, non-adversarial ADR mechanisms like mediation are informal, people-friendly, less complicated, and allow the parties to communicate the root cause of their conflict and identify their underlying interests helps them focus on finding out the solution themselves. It helps strengthen and rebuild relationships—such non-adversarial modes of dispute resolution help save time and money for the parties.
Matters which can be mediated
Not all matters can be mediated. The issues which can be mediated consist of commercial, contractual disputes, consumer matters and those involving tortious liability. Currently, we are all passing through a global crisis on account of Covid-19. Covid-19/coronavirus has been officially declared a pandemic by the World Health Organization on March 11, 2020. This pandemic has resulted in the loss of lives. It has harmed business, commerce, the performance of the contractual obligations, and the global economies on account of lockdowns and restricted movement. Instead of addressing all such contractual disputes through litigation or arbitration, parties should use their best endeavours to resolve the same through mediation in the first instance. If arrived at in a commercial dispute, a settlement strengthens the business relations and may result in a win-win situation for both parties. Promoting mediation as a mode of addressing conflicts between the parties would also save precious judicial time.
Albert Einstein quoted, "In the middle of every difficulty lies opportunity." In the light of the aforesaid grim situation, the courts have risen to the occasion and gradually evolved the virtual hearings through video conferencing in urgent matters and having online filings. So, it is time that we understand the merits of mediation and resort to mediation as a professional and sophisticated mode of settlement of disputes between the parties. There is a need to change the mindset about mediation. It should be mandatorily resorted to as a mode of addressing the conflicts between the parties. If mediation does not work out, then and then only the parties should approach the courts through litigation or arbitration as the case may be.
In the light of the preceding, it is essential to understand the cardinal points about mediation, the difference between mediation and conciliation, the current jurisprudence about mediation, judicial precedents and the path ahead for mediation.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.