“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s heart. I realised that the true function of a lawyer was to unite the parties driven as under. I lost nothing thereby – not even money, certainly not my soul”.
– Mohandas Karamchand Gandhi
NATURE OF THE ADVERSARIAL PROCESS
Equity, justice and fair conscience are the guiding principles for a judge. But judge, however, has to function as a part of the legal system which usually employs the method of litigation by the adversarial process. In this process the parties fight the legal battle against the other to be declared a winner. At early stage of dispute, the party seek to take the services of the lawyer. The lawyer is trained to fight in the adversarial mode, and the mindset starts to operate. The communication ceases or becomes increasingly hostile. The relationship, already weakened by the conflict, deteriorates as the process unfolds which turns into adversarial.
Let’s examine the adversarial process, that will give the clues as to why there is need of alternatives. The nature of the adversarial process is that it is procedure laden, encourages disputing, is a case in victor-vanquished mode, and provides multiple appeals.
- The burden of proof
- Excessive disputing and polarization.
- Winner takes it all.
- Lost your case? Go in appeal
- Elongated legal time, increased legal costs.
NEED FOR ADVERSARIAL AND CONSETUAL RESOLUTION
So, while now recognising that the adversarial system has strong merits and deep demerits, we need to improve and move forward. For ages we have chosen to live with the belief that we need to live with the system’s demerits if we are to have its merits. That is hardly a matter which need to be taken into account for a workable solution. No amount of court verdicts is going to effectively resolve such a dispute.
ON THE MEDIATION PROCESS
The legal system in India and elsewhere, is characterised by detailed technical procedures and overwhelming use of the adversarial system. Huge delays, indeterminable procedure and taxing cost are its accompanying features. The judge population is low. Growing administrative illegality has increased court dockets with cases demanding judicial review of administrative action.
The indiscriminate and inadequate use of the adversarial method also raises fundamental ethical problems for members of the legal profession, characterized as a learned and a noble one. The system places a premium on winning, not on establishing the truth or finding the best solution
Mediation is the flagship of the ADR movement, which for the country like India is not alternative dispute resolution but Appropriate Dispute Resolution. It is a different paradigm and path from litigation. In the litigation process, the focus is on the past and a win-lose situation (result), whereas in mediation the emphasis is on the future, on sustainable solutions, which are all win-win for all parties.
WHY MEDIATION IS FLAGSHIP OF THE ADR MOVEMENT?
In the year 2011, for the second time in fifteen years, leading counsels at many of the world’s largest corporations participated in a landmark survey of perception and experiences with alternative dispute resolution- mediation, arbitration and third party intervention strategies intended to produce more satisfactory paths to managing and resolving conflict, including approaches that may be more economical, less formal, and more private than court litigation, with more satisfactory and more durable results*. These results were uniquely placed to help bring about a sea change in the culture of conflict.
Mediation appears to be more widely used than in 1997 and is today virtually ubiquitous among major companies. It saves time and money, approximately half reported that mediation also preserves relationships. Mediation was by far the most widely used of the new approaches** and construction lawyers tended to view mediation as more effective than arbitration in producing positive results. It is more satisfying both in terms of process and outcomes.
Mediation is extremely flexible process. It can work in disputes before they are taken in the court, to disputes pending in courts and even after a court verdict has been given. The response to mediation has been very good in the western world. Courts of law hace set up Court Annexed Mediation Programmes. Judges have taken to mediation after their tenire on the bench. Lawyers have found that mediation is anew skill, which aids their clients. Clients have realised that this is a time effective process and prefer lawyers who can suggest mediation before going in to the court of law.
Mediation focuses on the long-term interests, shows parties the weaknesses, not just the strengths of their case, and makes tem examine their alternatives to a negotiated agreement. It is a voluntary process where the parties retain decision-making rights all through and are only bound when they enter into a written agreement concluding the mediation.
Perhaps the time has come for a new way of looking at conflict resolution and the legal profession- on that will harmonize the ethics of practice, the values of the law and the demands of public policy.
If not the best, but Mediation is one of the most effective techniques for dispute resolution as all the factors of legal perspective, emotional turmoil, factual circumstances are given equal footings and arriving at a desirable end results. In order to achieve substantial result, one need to adhere to the basic principles and also execute them by pertaining the same. Mediation has become increasingly popular and demanding in Indian legal system as also reduces the burden of courts for solving of matters and is sort to be desirable alternative.
- [*] Thomas J. Stipanowich, ADR and “The Vanishing Trial”: the growth and Impact of “Alternative Dispute Resolution” 1. Empirical Legal stud, 843, 845 (2004), available at http://ssrn.com/abstract=1380922
- [**] Thomas J. Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, 31 WAKE FOREST L., REV. 65 (1996)