Author: Rajat Singh, IV year of B.A.,LL.B.(Hons.) from Law College Dehradun faculty of Uttaranchal University
ABSTRACT
The purpose of this article is to introduce mediation or a method of alternative dispute resolution. This paper is fully detailed about mediation in criminal disputes in India. This paper is divided into four parts; Arbitration, mediation, the role of mediation, Lok Adalat and also how it works. In the simplest form, mediation is a process in which a neutral third party assists disputes and reaches a voluntary, negotiated settlement of the issues in dispute. The mediator facilitates communication between disputes so they can more clearly understand their differences and mutual settlement, but has no power to impose the decision upon the parties. In mediation and disputes resolution, there are several ways to resolve conflict management and resolution, conflicts may be avoided, talked out, negotiated, Arbitrated etc. Mediation has grown as the most advanced form of ADR mechanism. It is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. The basic motive of mediation is to provide opportunities to parties to negotiate and come to a final solution catering to both sides.
INTRODUCTION
India was very globalized or commercial with various techniques. The person can contact each other the enhance the business deals and other developments. Most of the people have no time to file the case in court and they don’t have time to wait a longer period for the hearing. They are hurrying to approach the stage for where litigation is replaced with the ADR (Alternative Dispute Resolution). Mediation is a structured, interactive process where a third party appoint a person to resolve conflict through the use of specialized communication. The technique of ADR is an effort to design the work and alternative dispute resolution. There is many types of technique in ADR are- Arbitration, negotiation, conciliation, mediation. These all are techniques under in arbitration and conciliation act 1996. It is an assisted negotiation and an informal process in which parties are aided by a third person, who is a mediator, possessing specialized skills.
WHAT IS ARBITRATION?
ADR (Alternative dispute resolution) party’s right to refer a dispute to arbitration depends on the existence of an agreement between then and the other parties to the dispute that the dispute may be referred to arbitration, in the form of mediation, negotiation, conciliation, Lok Adalat, online arbitration, then it is Alternative dispute resolution. ADR opens the way in the field of business and tends to solve the matter more efficiently and effectively. It is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. Meditation encourages a search for the solution by the parties themselves, involved in the dispute resolution. ADR (Alternative dispute resolution) party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is the form of dispute resolution method in which the parties avoid the court proceedings and instead decide to resolve their dispute through appointing a third person to resolve their conflicts between two parties this is known as arbitration. Mediation is a structured, interactive process where a third party appoints a person to resolve conflict through the use of specialized communication. Most of the people have no time to file the case in court and they don’t have time to wait a longer period for a hearing. They are hurrying to approach the stage for where litigation is replaced with the ADR (Alternative Dispute Resolution). Mediation is a structured, interactive process where a third party appoints a person to resolve conflict through the use of specialized communication.
WHAT IS MEDIATION?
The mediator facilitates communication between disputes so they can more clearly understand their differences and mutual settlement, but has no power to impose the decision upon the parties. Mediation is a non-binding procedure in which a neutral intermediary, the mediator, assists the parties in settling the disputes. In mediation and disputes resolution, there are several ways to resolve conflict management and resolution, conflicts may be avoided, talked out, negotiated, Arbitrated etc. Mediation has grown as the most advanced form of ADR mechanism. It is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. It is an assisted negotiation and an informal process in which parties are aided by a third impartial person, who is the mediator, possessing specialization with mediation and arbitration training and sufficient experience necessary to assist the disputed parties in reaching a negotiated settlement. Mediation is part of the ADR (Alternative Dispute Resolution).
THE VALUE OF MEDIATION PROCESSES
In mediation, the evaluation is the use of mediation and objective and awareness of the and the specific value of others[1]. The effective adoption of mediation to set the new condition 1st counsel separate treatment of the wide variety of features under the mediation. Mediation is a structured, interactive process where a third party appoints a person to resolve conflict through the use of specialized communication. Mediation is part of ADR (Alternative disputes resolution) resolving disputes between two parties. It is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. ADR includes processes that are out of court proceedings. Due to the facts of pendency of the court cases and suit. In the ADR mediation and conciliation, both parties decide they know the truth of their position. Attendance at the mediation by the party compensation mediation, the insurance adjusters must advise the mediator that their supervisor or another person with full settlement authority is readily available by telephone.[2]
ROLES AND DUTIES OF MEDIATOR
[3]ROLE OF THE MEDIATOR
The mediator manages the meeting and is in charge of the proceedings, he should not impose solutions or decisions and has no power to force a settlement. Generally, judicial mediation is in the form of alternative dispute resolution. ADR usually includes arbitration, mediation, conciliation, negotiation or resolving the disputes or conflict between both parties. Both the parties agreed to appoint a person as a mediator to resolve our disputes under the eyes of the law court are not involved. In Indian court, many cases are pending then arbitration as well as mediation are most important in India. Furthermore, a mediator has no right or duty to provide legal advice to the parties even if he happens to be a lawyer. The parties should seek legal advice solely from their legal counsel.
DUTIES OF THE MEDIATOR
A mediator has the following duties to observe:-
1- Code of conduct
Mediators are required by the Act to follow the centre’s code of conduct for mediators in the performance of their duties as mediators.
Impartiality
A mediator shall mediate only those matters in which he can remain impartial. Impartially means freedom from favouritism, bias or prejudice both in conduct and appearance. The mediator facilitates communication between disputes so they can more clearly understand their differences and mutual settlement, but has no power to impose the decision upon the parties. Mediation is a non-binding procedure in which a neutral intermediary, the mediator, assists the parties in settling the disputes. In mediation and disputes resolution, there are several ways to resolve the conflict management and resolution, conflicts may be avoided, talked out, negotiated, Arbitrated etc. concerning the mediator’s impartiality the mediator should withdraw and the mediation centre would appoint another mediator in his stead.
Impartiality and challenge of mediator
The concept of conflict mechanism management through ADR (Alternative Dispute Resolution) has introduced a new mechanism of ADR that is non-adversarial. The dispute is the justice and dispensation System in India. In the new method of alternative dispute resolution such as ADR, all the mediators facilitate our parties to deal with the issue of their parties in a more cost-effective manner. ADR usually includes arbitration, mediation, conciliation, negotiation or resolving the disputes or conflict between both parties. Both the parties agreed to appoint a person as a mediator to resolve our disputes under the eyes of the law court are not involved. In Indian court, many cases are pending then arbitration as well as mediation are most important in India. Furthermore, a mediator has no right or duty to provide legal advice to the parties even if he happens to be a lawyer. The parties should seek legal advice solely from their legal counsel. When a mediator is challenged he would withdraw and be substituted by a new mediator.
CONFLICT OF INTEREST
A mediator has the duty and obligation to disclose to the parties any actual or perceived conflict of interest as soon as he becomes aware of it whether before the resolution of ADR facilitate the parties in generally classified into four types
(1)- Negotiation
(2)- Mediation
(3)- Arbitration
(4)- Conciliation.[4]
If a mediator has a conflict of interest he may only accept or continue the mediation if the parties explicitly consent in writing, provided, however, that if the mediator deems that the conflict of interest gives rise to the slightest reasonable doubt as to the integrity of the process he should decline to proceed regardless of the consent of the parties to the country.
CONFIDENTIALITY
Confidentiality is the cornerstone of the mediation process. Moreover, the system of mediation in ADR of dispensing justice in India has come to great stress for many reasons because of the huge or many pending cases in the Indian court. In India, a lot of cases are filed in court but working experience is not good. That is the reason for the delay and that is the reason for the need for alternative dispute resolution in India. ADR has resolved the burden of cases in the court and court of law.[5]
LOK ADALAT
The Legal Services Authority Act, 1987 gives the statutory status to Lok Adalats, Under the constitutional mandate in Article 39-A of the constitution of India, They contain the mandate in Article 39-A of the constitution of India. It contains the provisions of the settlement of Lok Adalat. This act mandates the constitution of legal service authority to provide free legal services to the weaker section of the society and to ensure that justice is not denied to any citizen of India. It also mandates the organization of Lok Adalats to ensure the legal system promotes justice based on equal treatment to all citizens in India. The evolution of movement is also called LokAdalat was the part of the burden of court.[6] :-
(a)- Mutation of land cases
(b)- Compoundable criminal offences
(c)- Encroachment on forest lands
(d)- Family disputes
(e)- Land acquisition disputes
(f)- Motor accident claims
(g)- Cases that are not sub-judice.
JURISDICTION
The Lok Adalat shall be the jurisdiction to determine the disputes and provide the compromise or settlement between both parties. Any case pending before in court or any matter which falls within the jurisdiction. They are not to have jurisdiction for the matters relating to an offence, which is not compoundable under any law.
POWERS OF LOK ADALAT
(1)- The LokAdalat have the power of the civil court under the CPC( Code of Civil Procedure)
(2)- 1908, while they try to suit, in the respect of the matters.
(3)- Power to summon and enforce the attendance of any witness and to examine him. On oath.
(4)- Power to enforce the discovery and production of any document.
(5)- Power to receive evidence on affidavits.
(6)- power for requisitioning of any public record or document or copy from any court.
(7)- Every Lok Adalat shall have the power to specify its procedure.
(8)- Every LokAdalatsall is deemed to be a civil court for a sec. 195 and chapter XXVI of Cr.P.C.
In the new method of alternative dispute resolution such as ADR, all the mediators facilitate our parties to deal with the issue of their parties in a more cost-effective manner. ADR usually includes arbitration, mediation, conciliation, negotiation or resolving the disputes or conflict between both parties. Both the parties agreed to appoint a person as a mediator to resolve our disputes under the eyes of the law court are not involved. In Indian court, many cases are pending then arbitration as well as mediation are most important in India.
MEDIATION & CRIMINOLOGY
Criminology, a trend in the phase of globalization where urbanization is taking its track like a bullet. The mindsets are still repudiating the nation of modern mindsets. Today, criminal cases are rapidly increasing, it is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. The basic motive of mediation is to provide opportunities to parties to negotiate and come to a final solution catering to both sides. The judges and the courts in the country are not enough to deal with all these cases. For the requisite judicial system, the stakeholders have developed Alternative dispute Resolution(ADR) to provide speedy and cost-effective justice. The initial method that came under the category of ADR and that was a very innovative contribution of India to the world jurisprudence was the concept of Lok Adalat and mediation. These are practised in Indian society at the grass-root level, known as panchayats.
Many important cases resolved through the mediation of criminal disputes are:-
1- Salem Advocate bar VS Union of India, (2nd Aug, 2005)
2- Dayavati VS Yogesh Kumar Gusain, (17th Oct, 2017)
SALEM ADVOCATE BAR VS UNION OF INDIA, (2ND AUG, 2005)
The challenge made to the constitutional validity of amendments made to the code of civil procedure by amendment Acts of 1999 and 2002 was rejected by this court.[7]
DAYAVATI VS YOGESH KUMAR GUSAIN, (17TH OCT, 2017)
The legal permissibility of referring complaint cases under sec. 138 NI Act; procedure to be followed upon settlement is the subject matter of this judgement.[8]
SMRITI MADAN KANSAGRA VS PERRY KANSAGRA, (11th DEC, 2017)
In this case, after hearing both sides, the division bench of the high court referred parties to mediation and also directed that Aditya be produced before the High Court on 11.05.2016. During the ensuing mediation sessions, the mediator and counsellor interacted with Aditya, based on her interactions with him, Counsellor contended that reports could not have relied upon the given principle of confidentiality. The High Court dealt with said submissions and while disposing of the appeal, by its judgement dates 17th February 2017 observed that mediation has failed.[9]
CONCLUSION
Mediation is part of ADR (Alternative disputes resolution) resolving disputes between two parties. It is one of the methods for positively handling human relationships, mainly for the good of the people involved and for the betterment of the community. Meditation encourages a search for the solution by the parties themselves, involved in the dispute resolution. It is an assisted negotiation and an informal process in which parties are aided by a third person, who is a mediator, possessing specialized skills. In Indian court, many cases are pending then arbitration as well as mediation are most important in India. Furthermore, a mediator has no right or duty to provide legal advice to the parties even if he happens to be a lawyer. The parties should seek legal advice solely from their legal counsel. When a mediator is challenged he would withdraw and be substituted by a new mediator. The mediator facilitates communication between disputes so they can more clearly understand their differences and mutual settlement, but has no power to impose the decision upon the parties. Mediation is a non-binding procedure in which a neutral intermediary, the mediator, assists the parties in settling the disputes. In mediation and disputes resolution, there are several ways to resolve conflict management and resolution, conflicts may be avoided, talked out, negotiated, Arbitrated etc.
[1]https;//lawshelf.com//
[2]Corporate.findlaw.com/
[3]Justice.gov.mt/
[4]www.wikipedia.ADR/dispute/resolution.com/
[5]Justice.gov.mt/en/mmc/pages/roles-and-duties-of-mediator.aspx.
[6]Taxmanagementindia.com/visitor/detail_article.asp?
[7]Indiankanoon.org/salem advocate bar vs union of india{(2003) 1 SCC 49}on 2ndaug 2005 JUDGEMENT [with Writ Petition No. 570 of 2002].
[8]Indiankanoon.org/dayavativsyogeshkumar Husain, on (17th Oct 2017) CRL.REF.NO. 1/2016.
[9]Viamediationcentre.org/ smritimadankansagravsperrykansgra , on (11thdec 2017)