How to lead to an Effective Outcome

As a Legal Professional

Indian courts suffer from a serious backlog of cases, which is mainly due to less number of judges and insufficient infrastructure which is unable to handle the caseload. India being a developing country, going through major economic reforms within the framework of the rule of law, for expeditious resolution of disputes and lessening the burden on the courts, alternative mechanisms for resolution (ADR) are the only alternative through arbitration, conciliation, mediation and negotiation. By virtue of Code of Civil Procedure amendment in the year 2002, Section 89 has been included, which gives importance to mediation, conciliation and arbitration. This section makes it obligatory on the part of the Court to refer the matter for settlement either before the Lok Adalat or other methods enumerated in that section. Now it has become an international phenomenon to resolve commercial disputes through arbitration and not through normal judicial system. Majority of the persons do not want to become involved in lawsuits due to delays, high costs, unwanted publicity, and ill will. ADR, on the other hand, is usually faster and less expensive, and it is also conclusive. In addition to reducing the burden on the Courts and giving speedy justice to people, Alternative Dispute Resolution mechanism have been introduced and are being utilized for a number of other reason. Alternative Disputes Resolution mechanisms are relatively inexpensive in comparison with the ordinary legal process. These mechanisms, therefore, help litigants who are unable to meet the expenses involved in the ordinary process of dispute resolution through Courts. Furthermore, ADR mechanisms enhance the involvement of the community in the dispute resolution process.

Alternative Dispute Resolution mechanism (ADR) is not a replacement of litigation, rather it would be used to make our traditional court systems work more efficiently and effectively. We have to formulate effective Alternative Dispute Resolution mechanisms to ease the present burden of judicial functioning. The backlog of cases is increasing day by day; however, judiciary alone is not responsible for the same. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government has to play a pro-active role in this direction. Therefore, in order to make Alternative Dispute Resolution Mechanisms more effective and taking it out of very narrow and limited area of application and widening the area of its operation. Further the lawyers have to play a very active and positive role and they should never forget that dispute is a problem, which needs to be solved unlike a contest, which needs to be won.

As a Client

To get an effective outcome, parties must come to the mediation table with open minds and willingness to compromise rather than to win. The willingness of the parties to compromise and come to a settlement which can be viewed as a win-win for both the parties is of utmost importance, without which the mediation or negotiation will not be useful. The lawyers must prepare the parties to be giving up on their position and be more flexible. The parties must also remember that that there is no right or wrong in mediation, it is all about compromise.

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