Judicial
mediation: Can it make difference?
Abdullah
Al Faruque
Mediation as one of the means of alternative dispute resolution is increasingly
gaining popularity due to the fact that it is generally is less expensive,
more expeditious system of dispute settlement, and involves greater
confidentiality as well as informal and flexible process. Typically,
mediation is loosely structured process where a neutral third party
assists the disputants in reaching their own settlement through negotiation,
and unlike litigation, he does not render decision of his own. While,
in litigation, parties has to conform strict legal principles and rules,
in mediation parties can reflect their own value and resolve disputes
within their own social structure.
Mediation
differs from litigation in many respects and confers many advantages
to the parties compared to litigation. Indeed, litigation is adversarial
and confrontational process which can inhibit the parties to fully participate
in the process. On the other hand, mediation is a consensual, voluntary
system, which can help the parties to tell their own story. Mediation
gives the parties the opportunity to participate fully and they can
control the process and design solutions that meet their needs, while
not necessarily adhering to technical legal principles, procedure of
evidence and witness. Therefore, in mediation process, parties are really
empowered to restore their sense of own value and apply their capacity
to handle their problems. The parties may reach to results that are
outside the typical judicial order. On the other, outcome of litigation
are limited to strictly legal remedies. The informality of mediation
allows holding negotiation more quickly and decision can be made immediately
following negotiation. This time element helps to reduce cost to a significant
extent.
Apart
from reduced cost, mediation can provide social and psychological benefits
to the parties. Legalistic and formalistic approach of litigation emphasises
on legal rights of the parties which can decided upon one of the parties
is right or wrong. In this binary process, one party may win and other
may lose. This win-lose outcome may be counterproductive to the future
relationship of the parties. This social cost of adjudicative process
is hardly taken into consideration in legal remedies in litigation.
On the other hand, mediation tolerates degrees of right and wrong and
values personal feelings and relationships. Mediation not only brings
to the resolution of the dispute, but also peace and healing, which
is important for preservation for future relationship between the parties.
Thus, mediation reduces the alienation and tension that often arises
between the parties and create mutual understanding and trust. This
achieves valuable goal of social cohesion. In this way, mediated settlement
tends to be integrative, accommodative and durable. Although mediation
is voluntary system and mediated settlement has no procedural force
in the traditional sense, meditated settlements enjoy a higher rate
of compliance. Even in cases of failure, mediation can clarify issues,
sort out facts and reduce hostility. Mediated settlement, if reached,
gives finality to any dispute. On the other hand, a claim litigated
through the courts will most likely to be appealed, which can result
in reversal and a new trials.
The
success of mediation depends, to a significant extent, personal qualities,
skill, training and outlook of mediator. Mediator should possess positive
and constructive outlook. Mediator should have good communicative skill
to bring out essential information from parties, which may appear vital
to settle the disputes. Communicative skill is very important to bring
together parties to settle their dispute. The mediator has to facilitate
communication and identify the interests and position of the parties,
generate alternatives and option for settlement. Understanding psychology
of the parties is also essential to identify the source of dispute.
Mediator has to create favourable psychological environment in which
parties can tell their own stories. Cultural understanding of the parties
may be very crucial to identify the desired solutions. Cultural traits,
power structure and social organisation of the parties should be understood
and valued highly which can help the disputants to resolve the dispute
within the framework of their own social and religious fabric. This
also allows the parties to construct a resolution they perceive as fair,
which may prove more satisfying than formal, legal solution.
Mediator
should bring the parties together and keep the negotiation going and
establish a constructive ambience for negotiation. Mediator should help
the parties identify divisive issues and points of agreement, create
option, and explore compromise. He/she guide the parties' discussion
towards the merits of their dispute and away from squabbles based on
personal animosity. The mediator should encourage the sharing information
needed to resolve the dispute and reduce misunderstanding. A successful
mediation also depends on how mediator keeps him away from personal
biasness in resolving dispute. Therefore, mediator should act on impartial
and neutral way while conducting mediation. A mediator should disclose
all actual and potential conflicts of interests reasonably known to
the mediator. A good mediator strictly maintains his neutrality throughout
the whole mediation process. Mediator should provide parties a neutral
perspective on their position and a norm of equity and fairness. He/She
should allow both sides to tell their stories and vent their emotion
in a setting made 'safe' by a neutral presence. He/she has to show sympathy,
build trust, at the same time, has to keep a sense of detachment and
advise the parties confidentially. Thus, unlike the judges, jury and
arbitration, who ear only the arguments of the lawyers, mediator has
to learn the concerns of the parties in private and confidentiality
if necessary. Another important quality of the mediation should be his/her
patience of listening to the parties, which should be exhibited throughout
the entire mediation. The mediator must all time be positive and constructive
in listening.
Recent
initiative in Bangladesh for resolving disputes of small scales through
mediation within the framework of law of land and existing judicial
structure should be appreciated not only for its perceived utility of
reducing backlog of cases, but also conferring disputants many advantages
in resolving disputes as mentioned above. Such official recognition
of mediation as means of dispute settlement recognises the necessity
of dispute settlement in informal and speedy manner. It also reveals
that how traditional court system with inflexible procedure can be remodelled
to adjust with the flexible process of mediation to cope with the changing
needs of society. However, success of this judicial mediation system
depends considerably upon efficient administration and time management
within the justice delivery system of lower judiciary. It also involves
effective coordination between legal norms and social norms within the
setting of mediation process as judicial mediation can involve application
of legal principles and rules contained in the statutes, codes, and
judicial decisions. On the other, mediation is also seen as social process
that reflects prevailing societal norms and values in a given society.
In fact, mediation is pervasive and exists in institutionalised form
in many societies and cultures. This is also true for Bangladesh where
mediation is seen as traditionally and culturally accepted and socially
recommended method of resolving family, land and other small disputes.
Therefore, mediation combining use of appropriate legal technique and
social norm can make difference in current scenario of adversarial process
of litigation that developed in colonial era.
However,
in order to build up an effective mediation system, it is necessary
to identify the barriers that impede the initiatives of mediation and
suggest some recommendations. It should be recognised that in common
law legal system, legal community including academics, judges and lawyers
are geared and motivated towards litigation through legal education
and training that shape and control their mindset. Therefore, a reform
in curriculum of legal education and skill training for lawyers for
orientation towards mediated dispute settlement and its advantages can
be suggested to change existing culture. Economic consideration also
plays a great role in promoting litigation. Lawyers prefer litigation
as usual means of their professional pursuit and livelihood which explains
their professional apathy towards mediation. These facts explain why
mediation still remains the exclusive function of some legal and human
NGOs and government, not legal professionals. Not surprisingly, this
trend will persist also in foreseeable future. However, it may be suggested
that legal reform can be introduced to the effect that a small portion
of all disputes brought before lawyers, should be mediated and resolved
by them outside of the court. However, it will be difficult task to
define nature of dispute that to be mediated by lawyers. In this regard,
a benchmarking of dispute by its nature and economic value of the subject
matter of dispute can be taken into account. For example, family disputes
and simple property disputes can be identified for mediation by lawyers.
Legally mandatory provision in this regard can be considered on the
basis of welfare perspective of society. They can also be persuaded
that private initiative of lawyers for mediated settlement can enhance
their image and bring to them social respect, which has been eroded
in recent time. Moreover, considering that present scope of judicial
mediation is limited as it has been introduced in only few district
courts but already has been appeared to be a success story, the programme
should be further extended by the government to every unit of lower
judiciary. It needs considerable reorientation of lower judiciary towards
mediation, and requires adequate institutional and policy support, and
appropriate legal reform on the part of the government.
Mediation
is not panacea. But institutionalised, legally-backed and state sponsored
mediation either in existing justice delivery system or in separate
forum can make breakthrough in prevailing crisis of backlogging of cases.
Structuring mediation process in both legal and social setting and its
implementation through pulling of adequate resource and required administrative
support and management can reduce economic and social cost involved
in adversarial process of litigation to a significant extent, if not
fully.
Abdullah
Al Faruque is an Assistant Professor, Dept of Law, Chittagong University.
