Journal of
Law and Conflict Resolution

  • Abbreviation: J. Law Conflict. Resolut
  • Language: English
  • ISSN: 2006-9804
  • DOI: 10.5897/JLCR
  • Start Year: 2009
  • Published Articles: 98

Review

Court-administered mediation in Jammu and Kashmir: A problem-solving machine with an adversarial search engine

Dar Mohammad Ayub
Department of Law, University of Kashmir, Hazratbal, 190006, Srinagar.
Email: [email protected]

  •  Accepted: 10 April 2012
  •  Published: 30 November 2012

Abstract

Alternate dispute resolution (ADR) is assuming significance worldwide and the adversarial system of justice delivery is embracing it and substantially incorporating its features. Mediation as an ADR is not a rehearsal trial in front of a judge but a dialogue process to capture parties’ insights and ideas in a dispute that help them to identify and shape their preferred outcomes. ADR procedures need to retain their distinctive features in order to gain and maintain faith and confidence of stake holders. The local legal history of Jammu and Kashmir demonstrates that mediation as an alternative to litigation has been tested a century earlier and has shown remarkable results. Integrating these local historical lessons with the modern scholarly research of some adversarial jurisdictions, this paper examines the legal framework of court-administrated mediation in Jammu and Kashmir to scan its potential adversarial features. The Article focuses on suggesting measures so that mediation as a viable dispute resolution mechanism does not fully integrate with traditional adversarial paradigm, assume problems similar to litigation and gradually loose features that make it appealing. Doctrinal research tools have been adopted in the study with the objective of reforming the existing court-administered mediation mechanism in Jammu and Kashmir, and to achieve it, the relevant literature available from the pages of local history and current legal research on mediation have been discussed to analyse the existing  legal framework and draw the conclusions.

 

Key words: Alternate dispute resolution (ADR), mediation, adversarial system, building blocks, procedural mechanism, Lok Adalat, problem solving strategy, settlement, ethical standards, immunity, arbitration