If Alternative Dispute Resolution becomes a fashion, what will the lawyers do? Is there any role of lawyers in ADR? The role of advocate in outside court settlement is still crucial since convincing the court is not the only task for practising lawyers in India. Addressing the counsel role in mediation, they have to assist their clients since even statutory provisions of mediation run after the black letters of law. What is right in the eyes of law can not be compromised unless the contrary allows so. People ignorant of these black letters often end up accepting terms which go against their interest only because they disregarded the role of lawyers in mediation. Find out in depth regarding the role of lawyers in mediation and what the future holds for them.
Before jumping towards the role of advocate in outside court settlement, understanding the process of mediation in India is pivotal. Court litigation is the traditional mode of dispute resolution in India. However, this mode has been overburdened in the past few years which has tremendously slowed down the road to justice. Alternative Dispute Resolution is the escape route promoted by courts through Section 89 of the Code of Civil Procedure which encourages out of court settlement. During litigation, if court deems that facts of the case may allow so, alternate methods, usually mediation are suggested. This gives parties the chance to settle their case through a mediator who may suggest a middle ground which saves interests for both the parties of mediation.
Courts usually refer parties to mediation in family matters wherever there is some scope for amicable settlement. Family lawyers are more aware of the usual outcomes of mediation. It is usually in matters of divorce, child custody, disputes during family partition, etc. Hence, parties in a mediation process are usually people in a family related to each other through blood, marriage or adoption. The neutral party, i.e. mediator grants parties in a mediation a common ground to settle their dispute and suggests accordingly.
It may be noted that statutory provisions of mediation do not specifically restrict the counsel role in mediation. People are often afraid of the mediation process and have questions like “Can my attorney be present during mediation?” and “What does a lawyer do during mediation?”. The answer to the former is yes since nothing specifically restricts the presence of lawyers in mediation. The mediator may not allow the same while meeting parties in mediation privately and individually. Answer to the latter query regarding the role of lawyers in the mediation process has been explained below in detail.
The role of advocate in outside court settlement is often assumed to be null. What people often ignore is the fact that the black letters of law are not understandable to laymen but are governing authority for the ADR process. Coming back to mediation lawyers, they understand both mediation and the laws which may affect interests of the parties in a mediation. The role of counsel in mediation is to assist their clients educating parties of the legal outcome of what they say during the process.
Make sure that the statutory provisions of mediation are paid due attention
Represent the parties in a mediation
The legal fraternity is often seen to be against the Alternative Dispute Resolution advocating that it may affect their ‘Right to Livelihood’. However, what has been discussed above clearly depicts what do mediation lawyers do. Hence, the role of lawyers in the mediation process can not be denied. Parties in a mediation must entrust counsel role in mediation since it is beneficial later as well if things are not settled and parties turn back to litigation in courts.