By Rishabh Kumar
Published on: 21 September 2023 at 12:11 IST
When there is a legal dispute that arises, the first instinct is to take strict actions against the wrong doer specially if you feel like you have a winning edge, while this maybe the recommended course of action in a criminal case, in civil and commercial matters it is a very controversial position. While the courts more often than not, provide the most justified solution, the time taken to reach that conclusion is disheartening.
In this article we will assist you to help you decide better as what remedy to take meditation or litigation by understanding what it entails initiating mediation vs litigation proceeding.
This is a relatively new mode of dispute resolution that not everyone is comfortable with, due to lack of awareness or otherwise. It is an alternative dispute resolution process which is voluntary, flexible and informal.
To state the obvious, Mediation is the unconventional way of dispute resolution that has a lot of benefits over the conventional means of dispute resolution. Mediation encourages a healthy and mutual negotiation between the parties to mutually arrive at a reasonable middle ground. A successful mediation can proportionally reduce the cost of dispute resolution.
Black’s Law dictionary defines ‘Mediation’ as:
“Intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute. In international law and diplomacy, the word denotes the friendly interference of a state in the controversies of others, for the purpose, by its influence and by adjusting their difficulties, of keeping the peace in the family of nations.”(Black’s Law Dictionary)
In a mediation, there is a Mediator who provides both the parties with a neutral ground. Both parties come willingly to the forum unlike in litigation where one is dragged by another. To initial mediation both parties should be of like mind and consenting for a settlement.
To this effect, mediation is very cost effective and time saving. When the parties have this understanding that litigation will drain more financial and emotionally, mediation seems like the more viable option.
Mediation is fast and cost-effective, the whole set-up is very modern and based on saving time, money and compliance. You can claim your hard-earned money faster and with reduced downside. In family situations, it is understandable that things may get heated or emotionally distressing. But Mediation tends to soften the blow and reduce the overbearing stress of conflict resolution. Unlike litigation, mediation records are not public documents and are private and confidential.
Mediation is often seen as a sign of weakness and which every party prefers it may not have a substantial case to build on. But that is not the case every time it would be suggested even if one has a strong case, they may prefer mediation to reduce their overall costs and save time.
In the landmark decision by the Supreme Court in the case of B.S. Krishnamurthy V, B.S. Nagaraj, wherein it directed the Family Courts to strive to settle matrimonial disputes via mediation and to also introduce parties to mediation centres with consent of the parties, especially in matters concerning maintenance, child custody, and the lot.
To promote mediation and alternative dispute resolution (ADR), there is a need for widespread awareness campaigns targeting the general public. Initiatives that involve communities and professionals in the mediation process can help bridge the gap between traditional litigation and ADR methods.
Mediation serves as a forum for mutual settlement, it may not be the intention of the parties to simply claim damages. It has been noted that during the proceedings of important cases such as the one regarding the demolition of the Babri Masjid, the Chief Justice of India himself has stepped in to facilitate mediation between the warring parties.
The Law Commission of India in its 129th Report recommended that it should be made obligatory for the Court to refer disputes to mediation for settlement. This was referred to in the landmark case of Afcons Infra Ltd vs M/S Cherian Varkey Constructions (2010).
In this case, the Supreme Court of India further held that all cases relating to trade, commerce and contracts, consumer disputes and even tortious liability could normally be mediated.
Here are some reasons why one might choose mediation over litigation in a matrimonial dispute:
1. Cost-effective: Mediation is often more cost-effective than litigation. Litigation can involve significant legal fees, court costs, and expenses associated with a lengthy legal process. In contrast, mediation typically requires fewer sessions and less time, which can result in lower overall costs.
2. Faster resolution: Mediation tends to be a quicker process than litigation. Court proceedings can be protracted, sometimes taking months or even years to reach a resolution. Mediation sessions can be scheduled at the convenience of the parties involved, allowing for a faster resolution.
3. Control and flexibility: In mediation, the parties have more control over the outcome and the terms of the settlement. They can work together with the mediator to craft creative solutions that meet their unique needs and interests. In contrast, in litigation, a judge makes the final decisions, which may not align with the parties’ preferences.
4. Preservation of relationships: Mediation is a less adversarial process than litigation. It promotes open communication and collaboration between the parties, which can be particularly important in matrimonial disputes, where ongoing relationships (e.g., co-parenting) may be necessary. Litigation can escalate conflicts and damage relationships further.
5. Confidentiality: Mediation sessions are usually confidential, which means that what is discussed during the process typically cannot be used against either party in court. This can lead to more honest and open discussions, as parties may be more willing to share their concerns without fear of legal repercussions.
6. Less emotionally taxing: Litigation can be emotionally draining and stressful for all parties involved. Mediation offers a more supportive and less confrontational environment, which can help reduce emotional strain.
7. Customized solutions: Mediation allows for tailored solutions that consider the unique needs and circumstances of the parties involved. In litigation, the court follows legal procedures and precedents, which may not always be a good fit for a particular family’s situation.
8. Greater satisfaction: Many individuals who choose mediation report higher levels of satisfaction with the outcome compared to those who go through litigation. This is often because they had more direct involvement in crafting the resolution.
We all understand litigation in a wholistic way, or have a presumptive image of it being arboreous. True as that may, the legal tussle is seldom uncalled for personal of family matters. It is the ultimate redressal of your legal injury and enforcement of your rights. The society is established on certain laws and rights, the very fundamental inception of these rights is argued in the conventional system of justice.
Black’s Law Dictionary defines Litigation as:
“Contest in a court of justice for the purpose of enforcing a right. A judicial contest, a judicial controversy, a suit at law.”(Black’s Law Dictionary)
The main reason anyone would prefer litigation is to utilize the full extent of one’s rights, as enshrined by the Constitution to all its citizens. The conventional legal systems are established on an ultimatum basis, rulings of the apex court are the words of gospel. While the legislative can change the so-called ultimatums, its not a redressal available to common man.
The conventional litigation systems are slow and laborious to work with. There is a huge burden on the justice system and the cogs are rustic.
It is perhaps this reason that people look at court cases with apprehension. The long running suits that are a financial and mental black hole, they really take a toll on one’s life and even if one gets a favorable order from court getting it executed is another delay. There are roadblocks in every step of litigation, every block is an opportunity for the opponent to delay the crippling speed of litigation.
But there are some cases where litigation is the only way; infringement of fundamental rights or criminal offences. A lot of specific matters which come under the purview of specific tribunals need to be taken up in their corresponding scope jurisdiction.
Litigation has its own merits, when justice is the end goal it is the way to move forward. But if compensation and equity, It may be the counterproductive of either party to be vengeful as in their own sense of justice.
Litigation offers a formal and structured approach to resolving disputes, providing a higher degree of certainty and predictability for both parties involved. The adherence to established rules and procedures ensures a clear understanding of the process, enabling effective planning and preparation.
One of the key advantages of litigation is its capacity to deliver a definitive resolution. Courts or juries typically determine the outcome, offering closure to the dispute and allowing parties to move forward with their lives unburdened by ongoing conflicts.
Certainly, here are some reasons why someone might choose litigation over mediation in a matrimonial dispute:
1. Complex Legal Issues: Matrimonial disputes can involve complex legal issues such as property division, spousal support, child custody, and visitation rights. In cases where these issues are legally intricate and contentious, parties may opt for litigation because they believe that a court’s decision will provide a clearer and legally sound resolution.
2. Power Imbalance: In some cases, there may be a significant power imbalance between the parties. One party might feel intimidated or coerced by the other, making mediation less suitable as it relies on voluntary participation and cooperation. Litigation can provide a structured legal process where both parties have equal standing before the court.
3. Protection of Rights: Litigation offers formal legal procedures and protections. If one party believes that their legal rights are not being respected or upheld during mediation, they may prefer litigation to ensure that their rights are enforced.
4. Enforcement of Orders: Court orders issued through litigation are legally binding and enforceable. If one party is concerned about the other not following through on agreements reached during mediation, they may choose litigation to have the court issue enforceable orders.
5. Evidence and Discovery: Litigation allows for formal discovery processes, including subpoenas, depositions, and document requests, to gather evidence. This can be crucial in complex disputes where a party suspects hidden assets, non-disclosure of information, or other issues that may not be easily addressed in mediation.
6. Irreconcilable Differences: In cases where there is a high level of conflict, emotional turmoil, or a complete breakdown in communication between the parties, mediation may not be a viable option. Litigation provides a more structured and adversarial approach that can help manage contentious disputes.
8. Protection from Retaliation: If one party fears retaliation or harm from the other party, litigation can provide protective orders and security measures to ensure their safety during the legal process.
Mediation or litigation has been a significant question in one’s mind when one is trying to seak legal remedy, both these forums have their strengths and shortcomings, and for specific relief parties can prefer them as per their objectives.
While relying on the legal system as the primary dispute resolution approach to resolve a dispute may be tempting, especially when you have a strong case, mediation offers numerous benefits that make it a compelling alternative. Mediation can lead to more satisfying outcomes for everyone involved, from cost savings and time efficiency to preserving relationships and maintaining privacy.
No doubt mediation is essential for potential benefits for reducing case backlogs and legal costs have not been fully realized due to a lack of awareness and resistance from the legal fraternity. Lawyers are often apprehensive about embracing mediation, fearing a reduction in their income and uncertain outcomes.
It’s important to note that mediation may not be suitable for all matrimonial disputes. In cases involving domestic violence, abuse, or situations where one party is unwilling to cooperate or engage in good faith negotiations, litigation may be necessary to ensure the safety and rights of the parties involved. Ultimately, the choice between mediation and litigation should be based on a careful assessment of the specific circumstances and case.
Edited by Bharti Verma, Associate Editor at Law Insider