In India, the term ADR stands for “Appropriate Dispute Resolution” and it shifts participant awareness towards a form of forward – looking justice and conflict management as a preferable choice over litigation. Is this truly tenable? Is it truly the reality in Indian court culture?
Mediation promises to cut across multiple layers of court bureaucracy, reduce costs, shrink resolution time, and above all other concerns, maintain relationships between the parties to a dispute. For example, one strong factor to consider, reduction of conflict resolution costs, links to the virtual absence of legal “contingency fee agreements” within the Indian legal process. It is very difficult to succeed through litigation in the courts without substantial socioeconomic resources to maintain the legal pursuit. The socio – economic reality supports the favorable stance of mediation where costs are considerably less than the costs associated with litigation. Even more so, cost reductions are available through the utilization of online dispute resolution (ODR) platforms such as Brāv being one of them, a globally available mediation resource. This benefit listing should also include process and outcome confidentiality; however, a future blog post shall give a broader treatment to the confidentiality context within mediation.
These aforementioned positive aspects of mediation support exploration and exploitation of the ADR process. The contemporary reality of a hugely overburdened court system in a large, densely populated country cannot be overstated. Many courts have highly over – extended calendars, and mediation has great action potential for reducing that burden.
Another strong point favoring the consideration of mediation is the difference between historical legal systems and the ADR process. By their very nature, legal systems must dwell in the past. Precedence binds the hands of every judgment, and fairness extends only as far as the bindings will allow. Any judgment that shifts precedence must then be heavily weighed for the action potential of impacting or harming future cases, not to mention the potential delays in unresolved cases that must adopt the new precedents. This concern disappears with mediation, mainly due to privacy and confidentiality, the foundational tenets of mediation.
Confidentiality and the nature of direct resolution allow precedence to be ignored for the pursuit of interests. Being heard by the other parties to a dispute (although there is no guarantee of being understood) is almost a given in mediation. Therefore, ensuring each party is heard and understood is often the primary request of one or more of the participants, and is often the key that opens the door to a quick resolution, or at least a durable one.
Mediation is not always a panacea. Both parties must agree to participate, and this can become very contentious. Especially when one party believes they wield stronger influence or hold a distinct economic advantage, it becomes harder to entice them to entertain mediation as an option. Once at the table, the competency of the mediator, or more accurately the lack thereof, always has the potential to undermine even the most amenable parties. The best solution is a new global standard for mediator training that includes mandated competency testing and continuing education units (CEU’s). Current mediation training covers the basics of the process but also needs to approach areas such as recognition skills in the areas of process manipulation, mental health barriers and issues, and contingency awareness. This list is not exhaustive and shall be the subject of another future blog post.
In general, “Alternative Dispute Resolution” has taken a back seat to litigation based on the vernacular of wording, and many mediators believe the correct terminology should be “primary dispute resolution.” Taking a deeper look at “alternative” opens the door for other processes, such as conciliation, arbitration, hybrid “med-arb,” and others too numerous to list here. The strongest aspect of mediation is its voluntary nature, closely followed by its ability to reconcile or maintain relationships that many parties prefer to maintain, an aspect that heavily influenced their decision to use mediation in the first place. At least in India, the shift to “primary” has started and has a great opportunity to expand mediation into its rightful place in the justice arena.
– by Dr. Buddy Thornton