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Why Litigate when you can mediate?

— Maheshwari Mohan



Any dispute or altercations between parties have always given rise to litigations. Litigations from time immemorial have always been a cumbersome process.

Several decades ago Former Chief Justice of the U.S. Supreme Court, Warren E. Burger said:

“The entire legal profession – lawyers, judges, law professors – has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.”

The cost of litigation has become absolutely outrageous. An aggrieved person has to think twice to exercise the option of litigating as the process is very costly.

The process is also painful, in terms of time, loss of relationship and stress. A disputant who has filed a civil suit wanders in the court premises for atleast a minimum of 10 long years and by then he becomes conversant with the laws and the rules without going to a law school. The advocate appearing for him, even begins to offer him a clerical job at his office.

After going through the process for several years the probability of winning is only 50%. Today, facts and precedents of a case is not enough to succeed a case but lot more.

To resolve the issue through court is very expensive, time consuming and the result is WIN-LOSE. Courts should be the last resort for anyone to get his/her grievance redressed. On the contrary one may be advised to seek mediation.

Even today in the case of intra disputes in a family, an elderly relative is approached for a solution in villages. The relative, mostly unlettered and a rustic gives a solution acceptable to both the disputing parties. In the matter of other dispute in the village an elderly person gives an excellent way out and it is mostly satisfactory, being fair and reasonable. Such people take a decision in a very short span of time and put an end to the hostility between the disputing parties.

A BAD settlement is always better than a GOOD judgement which gives all the reliefs sought for by the successful litigant. But then one may wonder as to how something that is bad can be better than the good.

In a settlement, may be a litigant gives up something to which he is entitled to. But he purchases peace and gets relieved of a haunting obsession of having to always think of his dispute and the prospects of otherside winning totally. He always has in mind the other side whose very thought otherwise be better. On the contrary a fight in the court is always time consuming, besides huge expenditure. Even after a judgement, both sides go to their respective lawyers one for challenging and other for defending the verdict.

The successful litigant, far from rejoicing starts getting worried and obsessed as to how to get the verdict confused. There are appellate and further appellate proceedings available to both the parties allowing no peace of mind to either side.

Even after final success the question of execution arises. The practical experience of any advocate & litigant is that the execution is more painful than litigating in court to establish their right.

The pendency of execution petition and contempt petitions in courts at several levels would show that a successful litigant has to spend time and money to enjoy the fruit of his success.

A recent startling disclosure by a sitting judge of the Hon’ble Supreme court would show the quantum of pendency in court which necessarily means that no case will come to an end within a reasonable time.

There are several instances where legal representatives are brought on record meaning thereby the person who initiated the proceedings will not be alive to see the success.

To borrow the words of the Great Legal Luminary Justice Krishna Iyer the reliefs granted by the courts, most often posthumous, are minimal.

With all this why do people still opt for litigation? What is attractive about it? What is the secret of attraction? Are we left with no alternatives?

Among the alternatives to litigation, the truth is Arbitration in vogue. It was once a speedy and economical process to resolve civil dispute, but no longer. The cost of arbitration has become multifold. The Arbitrators cost of travel, accommodation and their fees costs a fortune to the parties. The result is again “Win- Lose”. The Arbitration clause in commercial agreements are now rightly getting replaced to MED-ARB clause.

Mediation is apt for resolving a civil dispute. Disagreement between parties to a contract gives rise to a civil dispute.

Civil disputes of any kind, small disputes to cross border disputes can be dealt through mediation.

Mediation being flexible, speedy, confidential and cost effective helps both parties to explain and prioritize their concerns to the mediator.

The Mediator being a neutral person trained in problem solving assists them to reach an agreement between themselves.

Mediation is flexible because the parties take control and responsibility in resolving issues/disputes.

The process involved in Mediation is a confidential one, The mediator enables the parties to prioritize their needs and concerns either by putting them joint or in private sessions. Unless otherwise agreed by the parties, the mediator should keep confidential all information, declarations, proposals, documents or other records submitted or acquired by any means throughout the mediation process. The obligation of confidentiality includes all persons working with the mediator.

Thus, the mediator helps the parties to reach an agreement between themselves.

Mediation can be less stressful, less expensive, revival of relationship and the result is WIN-WIN.

Arbitration clause is now getting replaced by MED-ARB clause in all commercial contracts, to sort to mediation before Arbitration.

In case of family disputes, it is best to opt for mediation first and then to go to court for an order of divorce.

Although, divorce cannot be pronounced through mediation, the process of mediation can help couples negotiate on maintenance, division of property, child custody, visitation rights etc. On agreement with the above issues, a divorce under mutual consent can be sought.

Family disputes resulting in divorces are stressful, emotional and depressing.

This is the reason why law except the family courts first offer counseling before entering into the merits of the case.

Trained Mediators help in sorting out issues with your partner with short term plans or long term plans, thus enabling both to reach an agreement.

Family mediation helps one to take decisions which would be better presently and in future whereas a judge in a court can only impose decisions.

In mediation, both the 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, less expensive, highly confidential and in some cases helps the parties to enter into an agreement which can be reviewed and altered after a short period of time.

Disputants should opt for mediation rather than litigation.


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