Arbitration and Mediation are the forms of Alternative Dispute Resolution. As the work in the courts is full of busy schedule and burden is there with the increasing numbers of cases, it is in need that some alternative ways for disputes may be used. These are alternative to litigation. Gandhi ji said: “I had learnt the true practice of law. I had learnt to find out the better side of human nature, and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt unto me that the large part of my time, during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly not my soul. ” This article specifically deals with the promotion of arbitration and mediation in India.
Meaning of Arbitration and Mediation
Arbitration, in the law, is a form of alternative dispute resolution –specifically, a legal alternative to litigation whereby the parties to a dispute agree to submit their respective positions (through agreement or hearing) to a neutral third party (the arbitrator(s) or arbiter(s)) for resolution.
Mediation is defined as a facilitative process in which ―disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution of their dispute without adjudication .
How To Promote Arbitration and Mediation
Both Arbitration and Mediation are the means to achieve speedy settlement of disputes by amicable solutions to the problems. But there are certain problems in the proper implementation of these methods for the disposal of the cases. The question which generally arises is how to promote arbitration and mediation to make it successful. For its successful implementation, the following ways may be used for its promotion as alternative to litigation:
- Comprehensive Plan:- First of all, a comprehensive plan is required to be made for the purpose of necessary infrastructure for the proper functioning of these means.
- Awareness:- For the awareness relating to arbitration and mediation, proper seminars, workshops etc. should be conducted properly. A full proper literacy programme has to be made. With these programmes the people may get aware of the benefit of such amicable solutions to dispute.
- Attitude:- The Indian law favours the arbitration and mediation but the attitude of the disputants towards such means is not good. So, the change in the attitude of the disputants is necessary by making him aware of the benefits of the Arbitration and mediation.
- Role of Lawyers:- The Lawyers must try to settle the disputes by means of such amicable ways. They do not have to make control over the matters and not to earn the money from their clients by increasing dispute. They have to consider the ethics and try to use the friendly solutions.
- Legal Education:- The basic legal education in regard to modes of dispute settlement must have to be provided to the students so that they can make aware of the people nearby them. The students must have to be proper trained and to make them clear in regard to important keys of such ways.
- Proper Training:- Proper training to mediators, arbitrators etc. must have to be provided so that they would be able to resolve the disputes and help in promotion of such friendly solution to dispute. Training may also be given to welfare experts, family counselor etc. to promote these means.
- Participation:- For the promotion of the arbitration and mediation, the active participation of lawyers, judges, law students and volunteers are necessary. The lawyers must suggest the disputants to seek the method of arbitration or mediation to resolve the dispute.
- Role of NGO’s:- The participation of the NGO in the promotion of these means are highly required as they may also make aware the people to adopt such friendly means to sum up their disputes. They may have to conduct such programmes to make aware the public at large regarding the benefits of the arbitration and mediation.
There is abnormal growth in the cases at the court so the disposal of the cases may be delayed. But by adopting arbitration and mediation for the settlement of the dispute may decrease the number of cases pending in the courts in a speedy way. The Supreme Court started using various directions as to see that the PSU’s of central government and their counterpart in states should not fight their litigations in court by spending money on fees of counsels etc. Once it is understood that mediation and arbitration are intended to complement the judicial process and is an alternative to the litigation, it may be used in a large number for the disposal of the cases.
4th Year, B.A.LL.B. (Hons.)
5th Integrated Law Course, Faculty of Law, University of Allahabad