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Mediation Or Litigation: A Hobson's Choice?

An Average Family Court Cause list has 150 cases a day and 1 Judge who presides for 7 hours excluding lunch hour on any given day.

This translates to 420/150 minutes per case or around 3 minutes per case per day. Within 3 minutes the Judge has to move on to the next case. He also has to factor in the arguments during the afternoon session. So eventually the time taken per case per day goes even lesser than 1.5 minutes. Even Assuming 20% of the average of 72 hours of court to close a case, that’s 14.4 hours or 864 minutes. This means 864/3 or 288 hearings roughly to close a case. Assuming 14 days between hearings that is 2016 days or 6 years almost. And that’s assuming that, litigants come promptly on every hearing date, Proper Evidence is promptly filed, witnesses come promptly, Judges don’t get transferred, Judges don’t take leave, unscheduled holidays are not there, pandemics don’t happen, Lawyers don’t strike etc. All of the above never really happens, so on an average it takes anywhere between 6 to 8 Years to complete. And that is the Average duration of Family Court cases.

The Cause lists are smaller for Sessions Courts (80 to 100 Cases a day) and High Court (40 - 70 Cases a day) but even then, that is 7 years at least for a case (Sessions cases take around 18 to 24 hours for a case). All the above information is not taking into consideration that cases can be appealed in the High court and then in the Supreme Court which would then take longer and closer to 10 years to complete.

If this is not a compelling reason to opt for Mediation instead of litigation then I do not know what is. Apart from the aforementioned, Parties who negotiate their own settlements have more control over the outcome of their dispute. Parties have an equal say in the process. There is no determination of fault, but rather, the parties reach a mutually agreeable resolution to their conflict. Preservation of Relationships, thus, is a key positive here. And if that was not motivation enough in Mediation the parties split the cost of the mediation 50-50 which means that both parties are splitting the cost of one professional. That is considerably less expensive than each party paying for his or her own lawyer. Nowadays in most courts there is an annexed mediation centre, the facilities of which are free for litigants who opt for resolution of their disputes.

With all these positives, one cannot overlook the negatives which are fewer in comparison to litigation, nevertheless they do exist.

For starters, Mediation is a voluntary process and both parties need to be willing to participate willingly. Since in most conflicts’, emotions run high and the intent of the parties is invariably to prove the other side wrong and it is generally a considerable time before people mellow down and decide to take the route of mediation. However, that being said the benefits far outweigh the disadvantages and that alone should tilt the balance comfortably in favour of Mediation.




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