“Role of Advocate in Mediation and Administration of Justice”
– Harsh Bansod
Student, B.A. LL.B., Indore Institute of Law
Dharmendra Singh Thakur
Student, B.A. LL.B., Indore Institute of Law
– Karan Naresh Bagora
Student, B.A. LL.B., Indore Institute of Law
– Ashutosh Shrivastav
Asst. Prof., Indore Institute of Law, Indore
“It is not in truth alternative. It is not in competition with the established judicial system. It is an additional rage of mechanisms within the overall aggregated mechanisms for the resolution of disputes. Nothing can be alternative to the sovereign authority of the Court system. We can, however, accommodate mechanisms which operate as additional or subsidiary processes in the discharge of the sovereign’s responsibility. These enable the Court system to devote its precious time and resources to the more solemn task of administering justice in the name of the sovereign.”
– – Sir Laurence Street
Who supports a cause and exercise his right to be heard or represents a party before court to defend it or plead on behalf of party is called advocate. As a peace maker, the advocate has a superior opportunity of being a good person. Advocate is an officer of the court and entered his name in any role under the provision of advocate act 1961, and with that privilege; responsibility must follow in his wake. As a member of bar, advocate should use best efforts to restraint and prevent his client from restoring to any unfair practice.
“Let us not negotiate with fear but let us not fear to negotiate.”
– – John F. Kennedy, former US President
Mediation is a process ofdispute resolution focused on effective communication and negotiation. “It is a good and fair settlement when neither party likes the outcome, but agreed to it.” In that process, mediator act as a facilitator assisting the disputing parties in communicating and negotiation more effectively thereby enhancing the ability to reach a settlement. It is also treated as a private, informal dispute resolution process in which a neutral third person, the mediator help disputing parties to reach an agreement. The most valuable contribution of mediation to the society may actually lie elsewhere in the internationalisation of the communication and negotiation techniques with the legal process and with the broader society.
“The administration of justice is the firmest pillar of government. Justice is the great interest of man on earth.”
Administration of justice as the maintenance of right within a political communityby means of physical force of the state, it is the application by the state of the sanction of force to the right. Administration of justice may be described as a modern and civilised substitute for private vengeance and self-help in primitive the force of the organised community replaced the force of individuals as the instrument of redress and punishment of injury the state protect the weak against the powerful.
“Justice according to law i.e. ‘rule of law’ and not ‘rule of man’. Justice and power must be bought together so that whatever is just maybe powerful and whatever is powerful may be just and justice without power is insufficient and power without justice is tyranny.”
Administration of justice: How the court system is used as a dispute resolution (Mediation) –
Administration of justice in our country playvery important role because the Indian constitution through federal character provides for unitaryjudicial system. This system provides hierarchy of the courts – court of smallcases for metropolitan cities or court of sub judge third classcourt of sub judge class two subordinate class one district court high courtsupreme court. This adversarial system has become very cumbrous, extravagant and cumulative disastrous. The judge population ratio is also verylow. In Indian court system, number of fresh cases instituted is in voluminous and also there is backlog of large number of pending cases. This hierarchy of court, which appealafter appeal, add to the abundance of the problem. Therefore, The Supreme Court being the apex court of the country gave a proposal to the government to bring a law to provide legislative backing to out of court settlement to reduce court cases. No greater damage can be cause to the administration of justice and to make the confidence of the people in judicial system, judges took a step towards mediation. It is a time to take step for the fast justice when there is lot of cases pending in the court. Following steps can be practice in administration of justice for fast and fair proceeding by mediation – Tribunal/ commission/ boards etc., Lok Adalats, Nyay Panchayat, Arbitration, Conciliation, Ombudsman and Fast Track Courts.
The code of civil procedure, 1908 is a consolidated document that is the primary procedural law relating to all civil disputes in India. The long nature of litigative system in administrationof justice which makes delay in court systemso civil procedure code, 1908 enshrined the provision under section 89 is an attempt to bring about resolution of disputes between parties, minimize cost and reduce the burden of the court. It is provided for object of blending judicial and non- judicial dispute resolution mechanism and bringing alternative dispute mechanism to the centre of the Indian judicial system and it was introduced with a purpose of amicable, peaceful and mutual settlement between parties without intervention ofthe court. It is also supported by the law commission in 129th report advocated the need for amicable settlement of dispute between parties and the malimath committee recommended to make it mandatory for courts to refer disputes, after their issue framed by courts, for resolution through alternative means rather than litigation or by trial.
Alternative dispute resolution includes disputes resolution process and technique that act as a means for disagreeing parties to come to an agreement sort of litigation it is a collective term for the ways that the parties can settle dispute, with the help of third party. For that Indian parliament pass an act Alternative Dispute Resolution Act, 1996.
Due to the great stress on justice dispensing system and huge pendency of cases in court has underline the government of India to provide a new forum and procedure for resolving international and domestic disputes quickly. Therefore the international centre for alternative dispute resolution (ICADR) was established for the promotion and development of ADR facilities and techniques to promote reforms in the system of settlement of dispute and its healthy development within the framework of the social and economic need of the country.
Mediation – “the need of hour and good for administration of justice” –
“The obligation of the legal profession is, to serve as headers of human conflict. We should provide mechanisms that can produce an acceptable result in shortest possible time, with the least possible expense and with a minimum of stress on the participants. Courts should provide mechanism that can produce an acceptable result in the shortest possible expenses and with a minimum of stress in the participants. That is what all about.”
– Chief Justice Warren Burger
Law derives its authority from the obedience of the people however, the corpulent backlog and delay of our litigative system defects the very purpose of a fair and just system of law. The procedural rigidity and expenses involved in litigative system make relying break into our legal structure, has the faith of the people in our administration of justice slowly wanes away. Through mediation advocates provides service in restoring public faith in our administration of justice. Mediation aforesaid to the people, a system of settlement of disputes which is free from the delay, cost and rigidity involved in our litigative system. According to natural justice advocate work is not for self-interest or making a profit, advocacy is a profession where advocate serve his profession for public welfare not for profit gain. In the process of mediation advocate play a role of mediator, because of their skills and experience advocates have superior opportunities to do well. Advocate can be a peace maker and advocate can help people construct fair and durable commitments, feel protected, recover from loss and resolve dispute as a mediator in process of mediation.
Mediation that looks to resolving legitimate matters in a peacefulmanner. Inprocess of mediation a mediator as an advocate play very important role. The mediator is neutral third party who assists the disputing parties for settlement. Mediator initiates the first meeting and discusses the problem and provides solution. In the whole process mediator should be unbiased. If mediator follows the fairness then solution will come and mediation become effective and resolves the disputes.The mediator is neither a trier of fact nor an arbiter of disputes.
The role of the mediator is to create an environment in which parties before him are facilitated towards resolving the dispute in a purely voluntary settlement or agreement. The mediator may invite the parties to meet him together, or may ask each of themto meet him separately in order to solve their disputes. The mediator must review the dispute from an overall business, professional or personal perspective. Mediation has to be looked up with all earnestness so that the litigant public has faith in the speedy process of resolving their disputes by this process.
The success ofthe institution of mediation like judicial institution depends upon the confidence the institution could create and establish the mind of the people. Confidence of the public depends upon the character, impartiality and credibility of the person who are called upon to mediation. It is common believe that in mediation the participation of advocate is optional but according to current scenario advocate play dominant and active role in the mediation process during preparation, during mediation and after the conclusion of mediation. By the process of mediation procedure that has as its goal avoiding the cost and delay the litigation, reliving court congestion, providing a more effecting and constructive resolution between disputant, enhancing and facilating access to justice. In order to advance this goal, mediation procedure usually is characterized as voluntarily, informal, private, fast and inexpensive process. That all process is done by a highly educated person in a field of law is calledan advocate.
The advocates is best placed to assist his client to understand the role if the mediator as a facilitator. He helps declined to purpose of mediation is not merely to settle the dispute and dispose of the litigation. But also to address the needs of the parties and to explore creative solution to satisfy their underlying interest in the administration of justice people are protected by law. the main aim of administration of justice is that people of their country are protected against the any kind of exploitation and advocate play a very important role in administration of justice because advocate seeks for another person’s rights and for justice. According to administration of justice mediation is assisted negotiation. Negotiation is central to advocacy. Advocate plays a critical role in administration of justice for the process of negotiation.
Mediation is a process where disputing parties got satisfaction of individual interest, self- determination and empowerment. Mediation may enhance the party’s ability to resolve future dispute. In the administration of justice mediation increases access the higher quality justice by the way of settlement. Mediation follow some principle values they are – Joint problem solving and consensually of outcome, process of fairness, satisfaction of individual needs, party participation and autonomy andsatisfaction ofindividual need. By the mediation people directly empower and increase sense of their own personal efficiency. Advocate for the mediation can play vital role in supporting parties self-determination. Advocate can guide and assist their clients for their disputes and provide a solution. It is a feature of advocacy to advice his or her client to help in time of problem. In a time of mediation proceedings advocate stands as a pillar to provide justice to his clients.
Obligations of Advocates in Mediation –
When advocate represents parties in mediation, they are engaged in the practice of law. Advocates are professional bodies having not issue additional rules of conduct for legal representatives in mediation. However they must follow the ethical obligations which are governed by a single generic or all-purpose set of rules. They also have other sources of obligations which includes – Contract Law, Law of Torts, Equity, Procedural Law etc. the nature of obligation is follow the rules said by bar and act in the best interest of a client in any matter in which advocate represents the client and to be honest in the course of legal practice. The ethical rule for presentation and dealing with court are same apply in mediation. That is honesty to the mediation by way of solution to the both parties and the conduct should be unbiased and best to the interest for both the parties to the mediation. In the process of mediation advocate cannot engage in, or assist, conduct that is illegal or dishonest to the administration of justice. Mediator should know all facts of case and in process of mediation; mediator is treated as court so party must inform them of all relevant facts. So mediator owes duty of fairness and courtesy to everyone with whom they engage in the course of legal practice of mediation. Advocates have duty to cooperate in mediation process to know the problem and suggest a solution. He can’t mislead his party.
Importance of Mediation in Administration of Justice –
Mediation is a flagship of alternative dispute resolution, which for us is not an alternative dispute resolution but appropriate dispute resolution. Mediation provides flexibility, less expensively, speedy and finality of orders, confidentiality, choice of decision maker, certainty and enforceability. Mediation is itself different paragon and path fromlitigation. Litigation may take as long as a year to get a court date and multiple years if a case is appealed, as in litigation the focus is on the past, on establishing blame and liability and win and lose result. In mediation the emphasis is on the future, cooperation and communication, on sustainable solution, which are win-win for all parties.
Therefore, mediation is the best alternative option provides a more timely way of resolving disputes when parties want to get on with business or their lives mediation may be desirable as a means of producing rapid results.The development of mediation in administration of justice holds enormous promise, because it provides fast and fair justice.In particular, the neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society.
Mediation is a better alternative because it is absolutely consensualthe proceedings are instituted at the written behest of both parties and any party can opt out of the proceeding at any time.All information provided to mediator is kept confidential, neither the proceeding of mediation used as evidence in a court of law nor the mediator is asked to give evidence in judicial proceedings. This provides the parties a risk-free communication and provides a healthy and sympathetic environment for facilitated negotiation.
Mediation is a process maintains a healthy relation between parties in as administration of justice; adecision tends to result in one party winning the dispute and the other losing it.This is anadversarialsystem intraditional courts ruptures relationship as it sets one party against another. But in the process of mediation two parties which has a healthy business relationship, wish to continue their relationship in setting-aside a dispute between themselves it is feature ofmediation both parties win the dispute as they find solution that accommodate fundamental or monitory need of both the parties.
Mediation reduces the incentives for corruption because the neutral third partyhas no authority to bind the parties. Decision passed in mediation is not a final or binding decision because in that mediator may present the parties with a solution and such a solution can either be agreed upon a rejected by both party if both the parties are agree the decision will be a final and parties continue their relations.Mediation may have effect on political interference with the administration of justice. In the process ofmediation all control over the resolution of disputed matter in the hand of the parties the states and courts have less power to interference with the resolution ofprivate dispute in mediation and by relieving the burden of the courts of countries.
Mediation has crossed its nascent stage and is flourishing, but lack of statutory recognition is proving to be barrier in its further development. Mediation as initially advocate as an escape root for the heavy traffic which was blocking the path of justice in our judicial system, however with the passage oftime this has created a niche for itselfand it has infect become an indispensible part and parcel of the contemporary justice delivery system.
In the end I hope that in future mediation flourish in administration of justice on account of the inadequacies ofthe traditional justice deliverysystem but as an independent mechanism offering fair and fast justice and effective economical and expeditious resolution of disputes outside the traditional litigative process. So that speedy justice becomes reality. Justice delayed is justice denied.