Correlation Between CASE MANAGEMENT And MEDIATION - Law ...

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solutions. We always negotiate business deals, we negotiate propertytransactions, we discuss the terms of a job and in India we even negotiate amarriage. Can we not negotiate the settlement of disputes? Negotiatingsettlement of disputes is recognized as the best form of dispute resolution at thebeginning of 21 st Century because it gives maximum satisfaction to the partieswho actively participate in the process.It has also been now recognized that negotiated settlement becomes moreeffective if a neutral, skilled and trained mediator, helps the parties. Mediation orconciliation is thus a voluntary process of negotiating the resolution of a disputewith the assistance of a mediator. Conciliation and mediation are more or lesssynonyms, though mediation goes further than conciliation by allowing theneutral third party to suggest terms on which dispute might be resolved. TheMediation is faster than the conventional adversarial system of dispensingjustice. It is flexible as there is no set formula of complicated procedure and leadsto an imaginative, creative, cost efficient, convenient and lasting solution of adispute bringing parties closure avoiding hostility and maintaining relationship.In modern complex society mediation has acquired global acceptance and hasbecome part and parcel of the conventional system of justice. With the growth ofcommerce, industry and international business, the adversarial system of justiceneeds to be aided by various other indigenous alternatives catering to the needand choice of the litigants. Just as different quicker transport systems havehelped in reducing traffic jams, the variety of Alternative Dispute ResolutionMethods have provided to the consumers of justice a choice of selectingalternatives for resolving their disputes. However, it is necessary that thesealternatives are provided as a part of the same time tested system which hasacquired the confidence of the people because of its integrity and impartiality.The court is like a parental institution for resolution of disputes and if ADRmodels are directed under the courts’ supervision, at least in those cases whichare referred to ADR procedures by the courts, the effort for dispensing justice6
can become more coordinated. ADR agencies can become part and parcel ofcourt system which would provide more alternative channels under its owncontrol and supervision. This would ensure complimentary systems of justice andnot competitive procedures. It is also necessary to decide which case is suitablefor which ADR procedure. Who will decide this? And when? This will require ajudge to adopt a managerial role. Cases pending in the Court are within thecontrol of a judge. Traditionally a judge hears two adversaries, weighs theevidence on record and gives the judgement. This judicial role is more or lesspassive and takes no initiative for the progress of the case. Till the trial beginsthe judge almost plays no role except passing interim orders on applicationsmoved by either side. Even for such applications progress of the case dependsupon the initiative taken by lawyers of the parties. In the words of Judge RobertF. Peckham , “Mis-management or non-management of the cases can causeconsiderable delay leading to uncertainty in business and personal affairs andoften crushing expenses to one or more of the parties”. Experience has revealedthat in those cases where a judge exercises more pre-trial control, progresstowards conclusion is faster. In the last decade due to the introduction of theconcept of the case management in the Federal District Courts in the UnitedStates, the disposal of the cases by trial has increased. It is also found that thecourts became more efficient in dealing with the cases. This new role of a judgeas a case manager promises to increase judicial productivity.CASE MANAGEMENTThe case management is a judicial process which provides effective, efficientand purposeful judicial management of a case so as to achieve a timely andqualitative resolution of a dispute. It assists in early identification of disputedissues of facts and law, establishment of a procedural calendar for the life of thecase and exploration of a possibility of a resolution of disputes throughmethods other than court trial. The case management requires the early7
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Page 9 and 10: ealistic. It is therefore necessary
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Page 19 and 20: In order to facilitate the conduct
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