What is mediation:
Mediation is one of the most flexible method of dispute resolution and belongs to the family of Alternative Dispute Resolution Mechanism. It is generally opted as an alternative by the parties against the traditional method of dispute resolution through the court of law. It is increasingly gaining popularity, especially after the establishment of Lok Adalats, which indirectly promotes resolution of conflict between the parties through the method of ADR.
Pros of mediation:
Mediation as an Alternative Dispute Resolution Mechanism has many advantages added to it. Some of them are listed below:
- One of the most basic boon of mediation is that being an ADR technique it lets the party avoid all the technicality and delays that are attributed to the proceedings in court which arise due to the inflexibility and complexity of procedural laws.
- It is a process which respects the privacy of the parties and confidentiality of the matters discussed during the procedure. This sometimes becomes an eye catcher element for big business corporation or traders who would not like their business secrets and management techniques to be laid on the table for debate in front of an open court.
- Mediation also provides an opportunity to the parties to settle their dispute in an amicable matter. The procedure itself vouches for conciliatory behaviour and does not promote hostility or grudges between the parties. this comes in handy in conflicts between companies trading regularly or family disputes.
- The parties to the conflict are generally more open to accept the final decision as it is reached upon through negotiation and consent between the both parties in contrast with the court’s judgement which is enforced upon both the parties.
- The mediation being a voluntary process, a party to the contract can at any time choose to opt out from it and choose to take up the matter before a court or another form of ADR.
- The process of mediation is much less time consuming and cost effective than the court proceedings.
Cons of mediation:
Some of the obvious disadvantage of mediation are listed below:
- It has a limited scope as it can be only opted in civil cases. Also because of its nature, it depends heavily on the will of the parties, whether or not they themselves are ready to solve a dispute peacefully through consensual negotiation or not which, in many cases, is not possible.
- Usually the parties to the dispute are not willing to choose mediation. This is because usually a litigant feel’s that he or she has a strong chance of winning the case and thus choosing to settle a dispute through mediation may lead to a lessor award than what can be granted by the court.
- It is usually seen that in cases of Lok Adalats, as due to the time constraint, the parties in order to delay the trial, falsely choose mediation and after some time deny the procedure of mediation
- The advocates appointed by the parties sometime play a huge role in deterring the parties to solve a dispute through mediation. This is because they do not gain much if their clients go through with mediation as it is quicker as it is formed after negotiations between the parties there is a very small chance of future dispute or appeal.