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Opt for conciliation, mediation or settlement

Saturday, April 28, 2012

What is the solution to the spree of court cases pending in cooperative courts today? The burden of legal suits bears heavily on both parties and lands up costing a fortune. What is the way around it?
— Rakesh Singh

Keeping in mind the innumerable cases pending in the cooperative courts today, the best solution for those looking for a swift legal recourse would be to look for an alternative remedy. Legal suits not only cost both parties huge amounts of money but also take a lot of time for verdicts to come through.

The more recent amendment to the Civil Procedure Court especially Section 89 offers the best option for two adversaries to speedily settle disputes between themselves. This section deals with settlements of disputes outside the court and the procedure has been delineated carefully by the law. According to the section:
Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observation and after receiving the observation of the parties, the Court may reformulate the terms of a possible settlement and refer the same for a) Arbitration; b) Conciliation; c) Judicial settlement including settlement through Lok Adalat; or d) Mediation.

Cooperative Courts across the nation can use the inclusion of this relatively new section to resolve disputes by the new and independent mode of mediation. While the main object behind the new insertion of Sec 89 is to promote an easy alternative to settling disputes instead of opting for long drawn out battles in court, it does not clearly indicate if the alternate methods offered here are made mandatory by the Court or if the Court can use its discretionary powers to suggest it.

The section also does not define the stage at which such a mode can be exercised by both parties to solve their disputes. In addition, a few questions do arise here with regards to the mediator. For example, who will be appointed as mediator? What matters will his jurisdiction cover? Where will the mediation process be held and who will decide the fees of the mediator? Most importantly what if both parties do not agree to the solution provided by the mediator?

At this point of time, there are still a few blurred aspects to the section but clearly if a competent and a qualified mediator is appointed a number of minor disputes can easily be solved. Appointing a mediator may actually have quite a few benefits because the mediator may be able to look at things more clearly than the Court probably would. The Court may turn a blind eye to certain facts relevant to both parties which a mediator may keep in mind while meting out justice such as the financial position of both parties or the cause of certain actions etc.

A mediator with good communication skills can act like a guide and let both opposing parties know the consequences of judgements. This is one issue that sadly lacks in our judiciary system and parties are caught completely unawares of the consequence of judgements passed against them. Mediators can caution parties well in advance about the possibility of the judgement to be delivered and its effect on their futures.

All these factors together make this section quite radical and an ideal speedy alternative to solving disputes outside the Court.

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