Mediators Post

Why litigate when you can mediate and avoid the maze?

Author´s name: Maheswary Mohan

Profile: Accrediated Mediator, Advocate, Founder Co Draft, Finishing School in Law

Location: Chennai

A bad settlement is always better than a good judgment that gives all the relief sought.

Conflict is inevitable, but combat is optional.
— Max Lucade

Disputes often lead to litigation, which could be cumbersome and expensive. The process is also painful, in terms of time, loss of relationships and stress. A disputant in India who files a civil suit is typically in court for something like a decade, but the probability of success is only 50 per cent. Courts, therefore, should be the last resort. The alternative is mediation.

A bad settlement is always better than a good judgment that gives all the relief sought. In a settlement, a litigant may give up something that he or she is entitled to. But the true winner is one who buys peace and gets relieved of a haunting obsession with the dispute.

After a judgment comes, both sides return to their respective lawyers, one to challenge and the other to defend it. The winner continues to worry. For, there are appellate and further appellate proceedings available to both parties.

Even after the final success, the question of execution may remain. Experience shows this could often turn out to be more painful than the litigation itself.

A recent disclosure by a judge of the Supreme Court would show the quantum of pendency in court, which necessarily means that cases do not normally come to an end within a reasonable time. There are several instances where legal representatives have to be brought on record as the person who initiated the proceedings is not alive to see the success. As Justice V.R. Krishna Iyer once wrote, relief granted by courts, often posthumously, are minimal.

Given this situation, why do people still opt for litigation?

One alternative to litigation is arbitration. It was once a speedy and economical process to resolve civil disputes, but no longer so. The cost of the arbitrator´s travel, accommodation and fee costs a bomb. The result is again “win-lose”. Mediation is the right solution. Civil disputes of any kind, small disputes to cross-boundary disputes, could be dealt with through mediation.

Mediation, being flexible, speedy, confidential and cost-effective, helps the parties explain and prioritise their concerns to the mediator. The mediator being a neutral person trained in problem-solving, he or she assists the parties to reach an agreement. The process is flexible because the parties take control of, and responsibility for, resolving issues and disputes. The process is confidential, and the mediator enables the parties to prioritise their needs and concerns. Unless otherwise agreed to by the parties, the mediator is bound to keep confidential all information, declarations, proposals, documents or other records. The obligation of confidentiality binds all persons working with the mediator. Thus, the mediator helps the parties reach an agreement.

Mediation can be less stressful and less expensive than litigation, and holds the prospect of revival of relationships. It could lead to a win-win situation. The arbitration clause is now increasingly being replaced by a Med-Arb (mediation and arbitration) clause in commercial contracts, providing for mediation before arbitration.

In the case of family disputes, it is best to opt for mediation first. Family disputes resulting in divorces could be stressful, emotionally draining and depressing. This is the reason the law sets down that family courts offer counselling before considering the merits of a case. Trained mediators can help sort out issues between partners, enabling them to reach an agreement. Family mediation helps one take better decisions, whereas a court can only impose decisions.

In mediation, both parties can make their own decisions, and by doing so they try not to back out from the commitments made to each other. Thus, mediation in family disputes is less stressful, speedy, relatively inexpensive and also confidential.

Published on 11.1.2015 in THE HINDU, OPEN PAGE.

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Satyam Gupta

Thank you for the article.

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