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Mandatory Mediation: A Double-edged Sword
Mandatory Mediation: A Double-edged Sword
Before evaluating the positives and negatives of mandatory mediation, I would like to give first give a brief overview of Mediation. It is a settlement process in which a mediator is appointed by either a person or the courts who helps both the parties to reach an amicable agreement which leads to satisfaction of their needs and agreed upon by both sides.
Looking at the pendency of litigation in almost all justice delivery systems across the globe, Abraham Lincoln rightly said “Discourage litigation. Persuade your neighbours to compromise whenever you can.” In most cases, a common citizen gets trapped in years of court proceedings, essentially depriving him of timely justice. Henceforth, long litigation battles provide the testimony for the age-old adage-“Justice delayed is justice denied”.
In the landmark judgment of Hussainara Khatoon [1], the Supreme Court has held that right to a speedy trial is an intrinsic part of Right to Life guaranteed under Article 21 of the Constitution. This necessitates mediation which is a quicker way of dispensing justice.
Mediation is quite an expeditious process as it requires lesser time as is needed for a trial. It also takes place in a relatively earlier stage of the dispute. Mediation is more economical and less complex and formal. It is usually recommended for matrimonial disputes where the relationship between the parties is such which needs to be preserved and therefore mandatory mediation can lead to an amicable settlement between the parties and avoids arduous litigation battles in the sensitive area of family relationships.
On the contrary, the critics of mandatory mediation view it as a compulsion for the parties, impinging upon their freedom of choosing their desired mode of settlement of the dispute and their autonomy.
There is widespread criticism from lawyers about the non-consensual nature of Mandatory mediation which is inconsistent with the concept of mediation. This dissatisfaction of lawyers may also arise from the fact that there will lead to a reduction in inflow cases to them due to mediation.
To conclude, we can say that mediation is an effective tool for the resolution of disputes in an economical and timely manner. Even if it turns out to be unsuccessful, parties can always go for litigation. Therefore, there’s no harm in opting for a simpler and more beneficial method, mediation which acts as a boon for society at large.
Endnotes:
[1] v. State of Bihar 1979 AIR 1369
- Mediation
- Mandatory Mediation
- Pros and cons
