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Penetration of Mediation and Alternative Dispute Resolution

At the end of the last century and almost two decades of the new one, many have tried to give a logical solution and system which is needed to develop approaches and methods to resolving disputed matters through which traditional litigation can be avoided. Privatization of dispute resolution is one of the suggested methods.

Many apprehensions lie behind the alternative dispute resolution or privatization of justice’s effort:

  1. Concerns over a so-called “litigation process” that some say are burdening our courts; 
  2. Generally, even though there are too many lawyers and laws, the average person and many commercial enterprises cannot get help at a reasonable cost when they needed and left the system or system left them
  3. A compromise that traditional court processes often lengthen and become worst 
  4. Mass tort cases involve plaintiff or defendants more than one they may be many and it is just like a math problem in new types of litigation 

With the help of encouragement of the government, the policy-making bodies making alternative routes for justice leave the courts for alternative forums. 

The privatization of justice in the shape of dispute resolution must be deemed in the perspective of our fundamental public commitment for providing substantive justice on equality basis to all people. But the doors of courts will remain open to those who need courthouse protection. Better administrated justice is what both models of new and old forms should seek.

Alternative Dispute Resolution has distributive penetration into public and private institutions. In government contracts, contracts between businesses and businesses mandated statutorily relationships and contracts between individuals and businesses alternative dispute resolution has been incorporated into court procedures and also more inclusion is insisting on. 

 One senior partner at a major New York law firm estimates that he spends almost half his time mediating disputes-as a special master to the courts or by request from attorneys involved in litigation. Much of the other half is spent using ADR techniques to develop settlements for his clients. Law firms interested in exploring settlements are increasingly resorting to ADR on their initiative-for example, by arranging privately choreographed “mini-trials” at which both sides present arguments and evidence to the CEOs of the disputing companies, even as litigation is pending in a traditional forum. Ethical rules are being developed to govern arbitrators’ Case law assures the immunity of court-appointed administrators and neutral evaluators for actions taken within the scope of their official duties.” The immunity of others, particularly special masters, is not clear.[1] 

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Courts are always being preferred forum to resolve many society’s disputes and also consider as capable of meeting many dispute-resolution demands. Everyone is equal in the courts (as a theory); there is also a mechanism that exists to help rectify inequity and guard against obvious injustice. Many forms of private, extrajudicial dispute resolution are lack of commitment which courts assure. Some forms designed to exploit information and resource imbalances between the parties cynically. The extensive spread of privatization dispute resolution has the probability to exploit the common law’s development

The Importance and Modern Use of Mediation

The basic principle of mediation is to offer the disputed parties an opportunity to create or find their solutions instead of depending upon the third party to resolve a dispute and find who is right and who is wrong. It is flexible, keep confidentiality, saves time and money. It enables high profile parties to communicate freely without fear of media coverage. In mediation, try to find actual issues and throw light on them and find methods to deal with. 

Mediation as ADR process has attained remarkable recognition in dispute resolution from personal to local, from local to national and from national to international dispute resolution. Mediation is used in the private and public sectors and also from domestic/ family issues to big business issues. 

In order to explain of modern growth and use of mediation, we must consider some factors like the desire and need of secrecy, the pull of moving towards custom of using industry professional (who are experts) as mediators rather than conventional court judges and therefore also more flexible procedures, the option of selecting rules of decision and trade norms of the economy, speed, secrecy and certainty of the process, as well as the capability and freedom given to parties for settlement of a dispute whilst maintaining business relations between them.

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The increasing importance of mediation as an alternative to costly litigation, it is very important to recognize the role that mediation plays in promotion of self-negotiated settlements in different situations and the cause of its more effective, especially in an international commercial context as opposed to other widely used techniques of alternative dispute resolution. The process of mediation constitutes assisted negotiation through which a person (mediator) helps the parties to reach an agreement. It is different from arbitration in that it is rather more accordant and does not always lead to a final settlement of the dispute. It is less costly than arbitration and assists the parties to find a solution on their own to the dispute. Even if they fail to find any final solution, it may help them to decide the next batter steps for the resolution of the dispute. In some circumstances, the litigant may be obligated to enter into mediation or at least be pressurized to do so it is only effective and successful to the extent that disputants find it effective. 

All the above including other factors like the fact that this means of alternative dispute resolution does not fit cases where a disputant is not able to negotiate further, or feels it requires a court order to control the conduct of an opponent, have its way out in arbitration being more often chosen and used as a means of alternative dispute resolution rather than mediation.

 In the case of Med-Arb, which is an interim form of alternative dispute resolution in that it entails features from both arbitration and mediation, parties may choose, and arbitral institutions may offer, it to resolve contractual disputes. In some cases, having a single neutral person serving in both the role of arbitrator and mediator saves time and money and may encourage parties to resolve their dispute at the mediation stage because they know that their mediator will finally render a final and binding decision if disputes are not settled at the mediation stage. Nevertheless, this form of alternative dispute resolution has not evolved and is not used as much as arbitration. There is hostility towards the mixing of the roles of arbitrator and mediator for many reasons. 

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Firstly, the roles are considered distinct and incompatible.

 Secondly and in contrast with what is used as an argument in favour of Med-Arb, parties may be less candid in communicating with the mediator and, thus, undermine a vivid feature of mediation, if they know that their mediator will, in any case, decide the dispute should mediation fail.

Thirdly, the possibility that the mediator-turned-arbitrator’s view of the issues concerned may have been affected by information imparted confidentially in ex parte discussions is also a negative factor that may deter the use of this form of alternative dispute resolution.

Fourthly, a negative factor that may deter the use of this form of alternative dispute resolution is the fact that many mediators have little or no experience conducting an arbitration hearing and may not be competent to take on the other role.

Lastly, there is also the chance, unless there is an express waiver of such a right, for the arbitral award to be challenged on grounds of ex parte communication at the mediation stage.[2]

[1] THE OHIO STATE JOURNAL ON DISPUTE RESOLUTION VOLUME 11 1996 NUMBER 2 p.245

[2] See Township of Aberdeen v Patrolmen’s Benevolent Association, 669 A.2d 291 (N.J.S. Ct., App. Div. 1996) where the arbitral award rendered was struck down by the Court on the basis that the arbitrator had improperly relied on information gained during the course of mediation and not presented during the arbitration process; Folberg et al. (2005, pp. 643–646). 16 2 The History, Importance and Modern Use of Arbitration

(Part 1)

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Arifa Rana

Written by Arifa Rana

Lawyer

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