Judicial Review of Mediated Settlement Agreement
The aim was to explore the values And limits to mediation in judicial review claims, despite considering the enthusiasm among the policymakers and others for the increased use of mediation, for the actual take-up of mediation in judicial review cases is negligible.
Mediation is a new mechanism where a neutral third party helps the disputing parties to settle their conflicts with various communication techniques. Mediation was put forth by a statue of Arbitration and Mediation Act,1996. Section 30 of Arbitration and Mediation Act,1996 empowered arbitration and mediation to conduct proceedings for settling conflicts between the parties. However, due to the lack of proper enforcement of any specific rule or clause, it was not able to gain recognition by the people. People were not clear and hesitant about the statute. The problem was rectified to a great extent by the introduction of Sec 89 of the Code of Civil Procedure,1908m which dealt with the exploration of different Alternative Dispute Resolutions. Also, the concept of “judicial mediation was first introduced from this section. Relying on this the Indian Courts were satisfied with the concept of mediation and other mechanisms. The courts also encouraged people to seek remedies from Alternative Dispute Resolutions. Mediation has also popular among the people because of cost-effective, less time taking. Another important aspect is Confidentiality unlike the courts were precedents act an important role in providing future decisions with similar facts and circumstances.
Judicial Review in Mediation
There have been strict time limits imposed in Rule 54(1) of the Civil Procedure Rule 1998 that may discourage the parties to the dispute from using mediation before the commencement of the proceedings. An application for a permit to apply for judicial review has to be made promptly and in within three months from the date on which the first claim arose. Even though the court has the discretion under 3.1 (2)(a) to permit a late claim, the discretion is only allowed in exceptional facts and circumstances and involves certainly reasonable doubts. Hence, the most appropriate time to consider mediation is once when permission has been granted and evidence has been by both the parties rather than before the commencement of proceedings.
Is it always appropriate?
As per the survey conducted, it was observed that mediation is not always a viable alternative to judicial review because
- The particular case based on the facts and circumstances may not be suitable for judicial review.
- There was no guarantee for settlement of the dispute
- It leads to duplication of court cost
As noticed by the policymakers and others for the low number of mediation is that is because the lawyers act a gatekeeper and block the access for mediation to maximize their profit through litigation. Although it is unlikely to save the cost, mediation can add huge value in judicial review. It has also resulted in a better and appropriate outcome for the clients. It has also been observed that a number of judicial review cases where mediation was considered and used.