FAVOURITE SUBJECT APART FROM THE MANDATORY LAW SUBJECTS TAUGHT IN LAW SCHOOLBy Akshita Mittal, Law Student, NLU Nagpur, Online Intern @LawOF
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
— Joseph Grynbaum
Growing up as a child in the capital city of India, at quite an early age I developed conscience to build faith in the above statement. I vehemently believe in the above said statement because time and again I have heard the drawbacks of litigation which compels me to ponder over this new subject.
Although, I have not studied many law subjects because of the simple reason that I am still in second year, pursuing a five year integrated course i.e. B.A. L.L.B. (HONS.) from NLU Nagpur. During the first two years of the course curriculum, BA subjects are taught simultaneously with law subjects. Thus, I am really not in a position to judge my favourite subject as of now.
Moreover, no subject can be called a favourite subject in law, since all subjects have their own charm and intricacies which furthers the interest towards a particular direction. Though Constitution is the bread and butter for every person associated with legal field but ethics can’t also be compromised with. The subject which caught my attention was Alternative Dispute Resolution, a clinical subject taught in Law school.
India is a common law country that follows an adversarial system of justice. In recent years, the role of the judiciary has expanded and has become more complex in nature. The increasing role of the judiciary has resulted in huge expenditures and undue delays in delivering justice to the seeker of justice and one of the methods to deal with the problem of increasing number of cases is through resolving disputes through different forms of Alternative Dispute Resolution(hereinafter referred to as ADR).
ADR is a term used to describe several different methods of settling disputes outside of the courtroom i.e. resolving disputes without litigation. The most used forms include early neutral evaluation, negotiation, conciliation, mediation, and arbitration. Even the courts have displayed their trust on these alternate methods and have often referred the matters to mediation or any other form for dispute settlement.
One of the primary reasons of giving preference to ADR proceedings is that, unlike adversarial litigation, ADR procedures are often collaborative and allow the parties to understand each other’s positions. ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose upon the parties.
Procedural delays are inherent in the ordinary court system. Especially in matrimonial litigation, the whole purpose of relief is negated if it is delayed. Also, our Constitution, the gerund norm emphasises the Right to have a Speedy Trial which derives its existence from Right to Life mentioned in Article 21. Various statutory provisions and judicial prouncements have highlighted the prominence of ADR.
Litigation has enormous destructive capacity precisely because of the high voltage emotions unleashed during family conflict. Another good reason for adopting ADR is the compliance rates. The agreements reached by mediation are complied with when compared to other processes. Moreover, the deliberations held during the process are entirely confidential which further encourages the parties to move from traditional court system to new evolving alternate resolution systems.
Having enough said, it is established that ADR is sine qua non in today’s era. In this fast moving practical life, just as medicine can mitigate the agony of a patient suffering from the most dreadful and painful of diseases, similarly such forms of amicable settlement can reduce the tensions and legal disputes between the said parties.
This subject is not given enough importance and is under-rated in my opinion. Students also tend to discount the importance of this subject; maybe because it is now workable in all the situations but knowingly or unknowingly, this method of dispute resolution is followed through ages. It is particularly used because there is no technicality involved and hence easy for a layman also.
Therefore, this subject should be greatly emphasised and taught in depth so as to cope with the changing dimensions of this legal profession as a recent shift can be witnessed from the traditional court system to different modern mechanisms. This trend is seen in both rural as well as urban areas. It is proved that it is most useful for advocates in their daily life when they start practising or even corporate lawyers who have to negotiate with their clients on a day to day basis.