Benefit of Mediation over Litigation
An ounce of mediation is worth a pound of arbitration and a ton of litigation - Joseph Grynbaum
By: Sangita Majhi
Mediation has proven to be one of the most effective methods of resolving legal disputes outside the courtroom. In mediation, the parties meet with a neutral mediator, who is usually an attorney with special training in conflict resolution.
The mediator works with the parties to facilitate resolution of the issues in dispute. There are many advantages to participating in mediation. Some of them are:
Even if you are unable to reach a settlement, still mediation can be a productive part of the legal process. Attending mediation can give you valuable insight into the opposing party’s position and help to narrow down the issues that need to be addressed at trial.
While there are many advantages to settling your case at mediation as opposed to going to trial, mediation is most successful when both parties are open to settlement possibilities and committed to resolving their dispute in a fair and amicable manner.
Settlement of disputes is an amicable way is the hallmark of civilization. In ancient India, mediation system has been prevalent in one form of the other. It has continued in our villages and has also been preserved in its customary form in our tribal areas.
When it comes to formal litigation system, mediation along with other methods of Alternative Disputes Resolution (ADR) has been statutorily recognized by the Civil Procedure Code (Amendment) Act, 1999 which introduced Section 89 thereto.
Section 89 of the Code of Civil Procedure, which gives the Court the power to refer the dispute for settlement or conciliation, was introduced with a purpose of an amicable, peaceful and mutual settlement between parties without the intervention of the court. However, the issue is that even after more than a decade of its implementation, the provision provided for ADR under Section 89 suffers from many anomalies.
The constitutional validity of this section was upheld but the frequency with which ADR is utilized for resolution of disputes remains minute, which arises due to lack of knowledge about the same or on account of the reluctance of the parties.
The Law Commission in its 129th Report advocated the need for amicable settlement of disputes between parties and the Malimath Committee recommended to make it mandatory for courts to refer disputes, after their issues having been framed by courts, for resolution through alternate means rather than litigation/trials.
Alternative dispute resolution can help the justice system in a country function more efficiently. It often saves costs and time and increases user satisfaction. It has some indirect benefits. It can increase the effectiveness of courts by reducing bottlenecks.
There are a number of advantages of Alternative Dispute Resolution in general (and mediation in particular) over litigation. It is usually faster and less costly. People have a chance to tell their story as they see it. It is more flexible and responsive to the chance individual needs of the people involved. Mediation is also an informal alternative to litigation. It is a meeting where a mediator attempts to help the parties to a lawsuit compromise and resolve their differences so that a lawsuit can be settled without going to trial.
Mediation is more time saving than litigation. It is a quick process that involves the coming into a mutually acceptable agreement to settle the dispute by both the parties. The charge for mediation service is lower as the time consumed for the settlement of the dispute is shorter.
Mediation is almost always less expensive in comparison to going to trial.
Mediation is private and can take place in a comfortable and non-adversarial setting that is less formal than a courtroom.
Mediation can be scheduled at a date and time that is convenient for all parties, rather than a date and time given by the court.
Settling a case in mediation can allow you to avoid stress and anxiety associated with going to court and having to testify.
Mediation allows parties to realize some control outcome over their case. If the case goes to trial then a judge decides the outcome and the parties do not have a say in the decision.
Studies show that parties are generally more satisfied on the long term when they have put into how their case is resolved.
The cooperative nature of a Mediated settlement tends to reduce hostility between the parties
When parties go to the court they often feel that they are in a win-lose situation.
Mediation provides the parties with a greater level of confidentiality. The parties can reach an agreement that is memorialized in a legally binding contract that can be kept private. An order signed by a judge in a divorce case is typically a matter of public record.
Even if you are unable to reach a settlement at mediation can be a productive part of the legal process.
Mediation attempts to settle a case without going to trial. The plaintiff, defendant, attorneys, and a neutral third party called a mediator all talk about the case to see if they can find a solution. The mediator’s job is not to make a judgment on a case like a judge and jury or the arbitrator in arbitration would: while the mediator will look at documents, listen to what both parties say, and educate themselves on the case, they are there to facilitate a conversation about the most agreeable option for both parties rather than make a legally-binding decision. Mediation generally only happens if both sides agree to try settling in this way. Most of the time, mediation is a voluntary process unless the dispute becomes a lawsuit or in certain kinds of cases. If no agreement is reached, everyone goes back to where they were before mediation began: no one can be forced to settle.
One of the biggest benefits of mediation is that settling your case before it goes to trial could save a lot of money: between depositions, expert witnesses, and various other courtroom expenses, lawsuits are expensive, and those expenses can come out of your settlement. Therefore, even if you might receive less in damages by settling outside of court, you can keep more of those damages once the case ends (and even see a check sooner than you would after a trial that might get appealed). This doesn’t mean that mediation is without expenses: the process lasts a few hours, and those hours can be expensive depending on the mediator involved.
Here are some differences between the mediation process and trial or hearing:
- Shorter time to resolution-process not fast
- Informal structure-Formal structure
- More likely to be final and stick-Final resolution can be delayed
- More flexibility / fairer-Less flexibility/not always fair
- Financial and tax issues understood-Financial and tax issues controlled
- Faster and cheaper-Expensive and delay
- More popular method-Unpredictable
- (Win-win solution)-(May lead to the bad outcome)
According to Mediation Training Manual of India MCPC Mediation and Conciliation Project committee, Supreme Court on India – The committee decided 40 hrs Mediation Training and 10 actual mediations as the essential qualification required for a mediator to be able to be entrusted the task of mediation disputes. The manual is a product of a teamwork and intellectual exercise of the experts. The MCPC hopes that the Training Manual will facilitate and help guide mediation in growing not as an alternative dispute resolution mechanism but as another effective mode of disputes resolution. So, let us yes to mediation no to litigation in disputes.
The author is a lawyer and mediator. She runs Sangita’s Mediation Centre in Bhubaneswar.