Mediation: A New Dimension To Access To Justice
Justice is a core value not only in the field of technology, law and political philosophy, but also in politics, social life and economics. Justice is a process wherein either a criminal who has committed a crime is punished or an innocent who is accused of some charges is acquitted. This process is done in the courts of law and judgment is pronounced by the judges.
The concept of Reflective Equilibrium, first introduced by Nelson Goodman, says that all humans have equal value and should and therefore be treated as equal, as well as by equal laws. Later John Rawls introduced the concept of Justice as Fairness. This concept is elaborated on the lines of Reflective Equilibrium. The concept of Distributive Justice was given by Hume which aims at achieving a society producing maximum happiness or net satisfaction.
Presently in almost all civil societies, disputes are resolved through the courts of law, though judicial system may vary from jurisdiction to jurisdiction. Currently the justice imparting system is adversarial in nature. A feeling of disillusionment and frustration develops among the people due to undue delays in delivering justice. The motive of judicial system is to impart justice to people. The judges have thus started invoking the principle of fairness and equality which are essential in dispensing justice.
From human rights perspective, persons belonging to the weaker sections are disadvantaged people. These people do not have access to justice due to lack of funds. Also they are too busy in earning their livelihood that they can barely come up above all that and fight for their violation of their rights. Therefore, in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. It is the constitutional mandate and therefore the responsibility lies on the players in the judicial system to provide access to justice in the persons in need.
Access to Justice involves access to court or a guarantee of legal representation. It means to get a legal advice, accessibility to courts, adjudication of grievance and enforcement of relief.
This concept has two significant components. Firstly, strong and effective legal system with rights enumerated and supported by substantive legislations. Secondly, accessible judicial and remedial system easily is available to the litigant public.
Mediation is one such mechanism which has recently been incorporated in our judicial system. It is one of the methods of Alternate Dispute Resolution. It resolves the dispute in way which is private, fast and economical. It is a process in which a neutral intervener assists two or more negotiating parties to identify matters of concern, develop a better understanding of their situation, and based upon that improved understanding, develop mutually acceptable proposals to resolve their concerns.
Advantages of Mediation
Mediation helps in preserving, developing and improving communication, build bridges of understanding, find out options for settlement of mutual gains, dive underneath a problem and dig out underlying interests of disputing parties, preserve and maintain relationships and collaborative problem solving and some of the fundamental advantages of mediation.
Via mediation the parties will become partners in solution rather than partners in problem. Mediation therefore creates a win-win situation. Mediation also solves the problem of delay in our system and further contributes towards economic, commercial and financial growth and development of the country. The other advantages of mediation are that the parties can communicate in a real sense with each other, which they have not been able to do since the dispute started. This process is voluntary and does not bind the parties against their wishes. It saves precious time, energy and cost which can result in lesser burden on exchequer when poor litigants are to be provided legal aid. It focuses on the long term interest and restores the broken relationships. It does not uphold the principles of the court based justice rather it is based on informality of procedure I which the parties participate directly.
The notion of access to justice constitutes three tier approach of justice:
Firstly, a string legal system with rights enumerated and supported by substantive legislations. Secondly, with respect to approaching the Courts and emphasizes on legal aid and legal representation whereby making an accessible judicial system. And thirdly, an effective remedial system and its enforcement thereof are present.
Mediation thus leads to an increase in overall efficiency.
Manasi Bhushan, Research Associate
Student, Govt. Law College, Mumbai
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