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ARBITRATION OR MEDIATION: WHICH ONE DELIVERS ACTUAL JUSTICE?
INTRODUCTION
Access and delivery of Justice have been the bedrock of our Judiciary system. Traditionally, courts were set up to deal with civil and criminal disputes between people to uphold and safeguard our constitution. But with the passage of time and the increase in population, the courts were faced with abundant cases. People are inclined to approach the court for the slightest inconvenience or trouble. Even though minor, these cases still deserved to be heard and adjudged. Alternative Dispute Resolution (ADR) or External Dispute Resolution became a helpful tool to ensure speedy trials with less procedural work. It aims to avoid judicial trials and settle disputes through compromise, negotiations, or fair settlements. Arbitration and mediation are two such methods of Alternative Dispute Resolution.
ARBITRATION AND MEDIATION
Arbitration, though an out-of-court settlement, still a lot similar to the traditional court. It has its own rules and procedures set to be followed beforehand. It is typically a binding process where disputed parties choose an independent arbitrator, a person, or an institution. The common practice of arbitration is when both parties have selected an arbitrator and then mutually select a third arbitrator who acts as the judge. Mediation, on the other hand, looks more at facilitating discussion and communication to achieve some resolution. It is a non-binding process where the mediator’s role is to show a broad view and develop a favorable solution to help the party come to a mutually acceptable approach. It is a process that comes into place when both parties consent to such a resolution mechanism and are committed to the decision or agreement settled upon. Arbitration is an adjudicative process; mediation is a facilitative process. The concept of Alternative Dispute Resolution was not just to provide alternative resolutions but to provide appropriate dispute resolution. This means that the alternatives' process matches the parties' needs and the type of dispute at hand.
OBSTACLES TO ACHIEVE JUSTICE
Private arbitration is when the parties have already fixed the terms to govern the solution to their dispute by sort of an agreement. There is judicial arbitration where the courts mandate arbitration to be the dispute resolution for some cases. Even though there is an Arbitration and Conciliation Act or arbitral tribunals to pass awards, there is still space for judicial intervention. Also, lawyers who litigate and act as arbitrators have always put this on the second-priority radar as they are caught up with court proceedings and strict timelines. Hence, there is no arbitration board. Often, arbitration is considered as an extension of court settlement. The judges, arbitrators appointed from courts, often apply court procedures to the arbitral proceedings, which cause lengthy hearings. This stumbles with the objectives of ADR.
In reality, mediation has proved to be more economical. But, its facilitative nature is usually ignored and settling the dispute without much insight into the content occurs. Mediation rules are very general and not well defined. The mediator recommends a solution, and this at times pressurizes the parties into accepting it. If the mediators lack the quality of patience and active listening, then the result is futile. There are instances when the parties refuse to agree on any settlement, and the dispute goes back to the court. This again stumbles with the objectives of ADR.
CONCLUSION
To decide what can be the best alternative to achieve justice is hard. Both arbitration and mediation come with their challenges and limitations. What mainly has to be looked into is if the parties are being given the appropriate dispute resolution to the dispute at hand. Both arbitration and mediation come with many benefits and must be practiced in the future to settle disputes as it ensures a more friendly and diplomatic approach. Even though mediation doesn’t end up in parties agreeing to the solutions, they leave with a sense of clarity on the issue. With arbitration, there is at least hope that it ends in a satisfactory award because of the pre-fixed rules. Both methods of resolution deliver justice in some way or another.
References:
- https://www.researchgate.net/publication/288390701_Access_to_justice_Is_ADR_a_help_or_hindrance.
- https://uk.practicallaw.thomsonreuters.com/9-502-0625?transitionType=Default&contextData=(sc.Default)&firstPage=true.
- https://www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation-whats-the-difference.html.
- https://www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation-whats-the-difference.html.
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.
- INTRODUCTION
- ARBITRATION AND MEDIATION WITH OBSTACLES
- CONSLUSION
