Comparative Stack between Litigation, Arbitration, and Mediation

 

  Litigation Arbitration Mediation
What is? Litigation is the process of going to Court to enforce one’s legal right.

Litigation is an adjudicatory process.

Arbitration is a private Court, where a neutral third party is appointed by the parties as an arbitrator, who renders a decision after hearing both sides.

Arbitration is an adjudicatory process.

Mediation is a voluntary process, where a mediator assists the parties in negotiating with each other to develop their own settlement terms to resolve their disputes.

Mediation is assisted negotiation, which is a collaborative process.

Nature of Cases The types of cases include criminal, civil, constitutional, tax matters etc. Mostly civil commercial matters are arbitrated. All Civil disputes except those requiring statutory and constitutional interpretation, public policy issues and establishing precedents.

All Criminal disputes that are compoundable can be mediated. Non-compoundable criminal cases cannot be mediated, except dowry harassment cases filed specifically under Section 498A of the Indian Penal Code, 1860. A petition is required to be filed under S. 482 of the Criminal Procedure Code, 1973 at the High Court for quashing the S. 498A petition.

Procedure The Court identifies the issues in the matter, based on the pleadings submitted by the parties, and after considering the evidence presented, renders a binding order or judgment on who is right and wrong or what is fair and unfair. Arbitrator relies on facts, evidence and law to render an award. Mediator helps parties in identifying underlying interests and needs, core concerns, understand the issues and create options to negotiate a mutually acceptable settlement.
Timelines Cases litigated can go on for several years in Court. With recent amendments, an arbitration proceeding cannot exceed 18 months. Cases are usually concluded in a few sessions, with a majority of the cases being concluded on the same day in private mediation, where mediations could be day long

In Court- annexed mediations two months’ time is given with provision to extend for another one month.

Nature of Process Formal in nature, governed by strict rules of evidence and procedure. Cases can be rejected if proper procedure of filing is not adhered to. Formal – governed by the Arbitration and Conciliation Act, 1996. Flexible and informal – not bound by rigid rules. The mediation process is structured to suit the needs of the parties. Informal and holistic process as all connected issues and disputes are addressed.

Procedural rules prescribed in the Evidence Act, 1872 and Civil Procedure Code, 1907 do not apply in mediations.

Participation Participation almost only by Attorneys. Very rare instances of parties representing themselves. Participation primarily by Attorneys. Parties are central to the process and Attorneys are active participants.

Experts and others who can contribute positively to the negotiations can participate.

Privacy and Confidentiality Public hearings. Arbitration is essentially a private process, but the decisions are publicly available.

“Court-like” evidentiary hearings.

No private communications with the arbitrator.

Confidentiality is a fundamental principle of mediation. In confidential private sessions with mediator the core concerns of the parties can be addressed.

In Private mediations, confidentiality is protected through Confidentiality Agreements. In Court-annexed mediations, confidentiality is maintained through the Court prescribed mediation rules.

Nature of Outcomes Outcomes in win/lose judgments.

Invariably relationships are damaged.

Outcomes are unpredictable and beyond the control of the parties.

Result is win/lose award.

Invariably relationships are damaged.

Outcomes are unpredictable and beyond the control of the parties.

Mediation is negotiation in which parties attempt to find solutions that are mutually acceptable and therefore win/win.

The presence of a neutral mediator, makes the negotiation multi-dimensional and relationship may be maintained, enhanced or created.

Outcomes are controlled by the parties.

Finality Judgements are subject to appeals and  revisions at different levels. Awards can be challenged in Court on certain grounds. There is a high rate of settlement in mediation.

In case of a settlement in mediation, they are binding on parties as a contractual agreement or as a conciliator’s award under Section 74 of the Arbitration and Conciliation Act, 1996.

Mediated settlements are hardly reopened or challenged as there is a high level of self-determination in reaching the outcome, and hence enjoy a high degree of finality.

Conclusion of the Process Litigation continues until finally decided or withdrawn. Arbitration continues until final award is passed or withdrawn. Mediation is a voluntary process and the parties can decide to leave the process if they’re not comfortable with it, without affecting their rights to try other legal processes.

 

If you wish to be a mediator, please ping us on relationships@novojuris.com

 

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