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Resorting to mediation
01/05/2007 The Star ARTICLES OF LAW by BHAG SINGH
Mediation is an ideal way to resolve disputes.
MUCH has been said about mediation as a means to resolve disputes speedily
and satisfactorily. It also reduces pressure on the courts to settle cases,
specifically in civil matters.
A reader enquires about the effect of mediation, saying that people talked
firstly about courts, then the use of arbitration and, now, mediation. If
mediation is adopted, does it mean that one need not go to the courts?
Mediation is not intended to replace the need to go to the courts. At most,
it can complement the courts in speeding up the resolution of disputes.
There are always two ways in which a dispute can be resolved. Parties can
meet up and concede to, and compromise with, each other and agree to the
terms on which they have decided to resolve the dispute. This is an option
that has always been available from the earliest of times.
The other way is to ask a third party to decide and then accept the decision
that has been made. In olden days, a dispute in a tribe would have been
referred to, and dealt with by, the tribal chief.
Later, the King or Ruler became the dispenser of justice and the final
arbiter of disputes. Disputes were, therefore, brought before the King when
he held court.
As society progressed, the King delegated his powers in this regard to
suitable officials; the system of judges and courts came into existence.
Even today, writs are issued by the court in the name of the King and are a
reminder of the historical origins of the system.
Resorting to a third party occurs when two parties cannot agree. The court,
when resorted to, decides and imposes its decision on occasions referred to
as a Third Party Imposed Dispute Resolution Procedure.
Arbitration is also a Third Party Imposed Dispute Resolution Procedure
because, once reference is made to arbitration and the arbitrator makes a
decision which is referred to as an award, it is capable of being binding –
just like a judgment of court.
The decision of an arbitrator can be challenged in a court of law. This,
however, is possible only on a limited basis. But then, court decisions can
also be challenged unless the stage is reached where there is no higher
court or restrictions are imposed.
Mediation is different from going to the courts or arbitration, in that a
third party does not impose a decision on the parties in conflict. Rather,
the mediator assists and facilitates the resolution of the matter by helping
parties to focus on, and be aware of, the real issues.
Once the parties agree – and this involves making compromises and
concessions – the agreement is recorded. The duly recorded agreement becomes
a binding arrangement between the parties.
In times past, when two individuals had a dispute, they would approach a
village headman or elder to resolve it. After telling him about their
dispute and listening to his views and advice, parties would likely decide
to settle. This was also mediation.
However the complexity of present day commercial transactions requires a
more informed and perhaps professional approach to mediation. It requires
persons who are knowledgeable in the respective areas to facilitate an
amicable and satisfactory resolution.
So various professional bodies today have guidelines and procedures for
mediation to be conducted and mediators to be appointed from panels
comprising persons trained for the purpose.
So, how does one initiate the process of mediation? This depends on the
particular circumstances in each case.
In some cases, the parties to a transaction may have incorporated a clause
in their contract that requires a dispute to first be referred to mediation.
Where there is such stipulation, mediation becomes a preliminary
prerequisite to be complied with, and a precondition to the parties
proceeding to arbitration or court.
However, where there is no such prior agreement, resort to mediation is an
option. Mediation, however, cannot take place if one of the parties is not
willing to do so.
Such would be the situation where one party is totally uncompromising and
not willing to resolve the matter except on its own terms and the other
party is not prepared to completely surrender.
Where a matter is already in court, it is open to a judge to suggest to the
parties if they are inclined to attempt mediation. If they are, it would be
entirely within the discretion of the judge to adjourn the matter for the
purpose.
Still, the fact remains that mediation can only work where parties are
prepared to sit down and talk to each other. Acknowledging one’s own
shortcomings and making concession, are important ingredients. Where there
is bad blood, animosity and a sense of absolute self-righteousness,
mediation will not work.
Where mediation is successful and parties are able to resolve the matter,
they will sign a document to record the arrangement. |
