ADR PPT

MEDIATION AS AN EFFECTIVE MEANS TO ALTERNATE DISPUTE RESOLUTION

MECHANISM

Shashank Bahadur Nagar 0171033807Astha Sharma 0831033807Sanskriti Jain 0851033807

Nayanjyoti Jha 0991033807Deeksha Shukla 1611033807

WHAT IS MEDIATON

Compromise between two parties.

Facilitator assist in resolving dispute.

High degree of client satisfaction.

Time needed for settlement.

Earlier Panchayat SystemPopular among businessmanAnother form of dispute resolution- PANCHASLok AdalatsDevelopment of mediationJustice Malimath Committee ReportPilot project on mediationMediation centers

EVOLUTION AND DEVELOPMENT

Non-binding procedure

Confidential procedure

Interest-based procedure

CHARACTERSTICS OF MEDIATION

Settles the disputeEstablishes and enforces procedureShould not be biasedActs as a catalystShould have ability to understand issueShould act as a convenerCommunication facilitator as a counselor

RESPONSIBILITY OF MEDIATOR

WHY TO PREFER MEDIATION

Less expensive and less time consumingConfidential processMultiple and flexible possibilities for resolving disputeMutual endeavorAid of mediator

MEDIATION PROCESS

Communication between partiesUnderstanding between partiesTry and find common ground of disputeFocuses on real interests of partiesCreative solutionResponsibility to decide outcomeAgreement between parties

STAGES OF MEDIATION

Presentation of opening statements

Identification of facts

Discussions

Decision

Agreement

Consumer mediationEldercare mediationEnvironmental mediationDivorce mediationReal-estate mediationEmployment mediationCommercial mediationLand/tenant mediation

TYPES OF MEDIATION

MEDIATION STYLES

Evaluative mediation

Facilitative mediation

Transformative mediation

EFFECTIVE MEDIATION TECHNIQUES

Listen to mediatorUse logical approachDon’t be afraidFollow principlesPrepare the clientThe opening lineResearch and more research

ADVANTAGES

Less costlyFaster processFull participationWork together and reach settlementExperienced mediatorRight to know about background of mediatorPrivate processBinding mediationAgreement is enforceable

DISADVANTAGES

Parties withholding informationProblem of legal resourceStronger partyCases of domestic violenceMediation does not succeed

CRIMINAL MEDIATION

INTRODUCTION

Also called restorative mediationCriminal system – do not address victim’s specific needsVictim-Offender MediationExample of 9 children vandalizing propertyProsecution – no prima facie caseLegal burden to prove case beyond reasonable doubtMakes sense for prosecution for Mediation

RESTORATIVE JUSTICE

Mainstream criminal justice system - Retributive justiceGuilt and punishment, victims feel empty and unsatisfied Cannot restore their lossesRestorative justice – focus on restoring their emotional and material lossesConcerned far more about restoration of victim than about punishment of offenderElevates importance of victim Offenders be held directly accountable

Cont..

Encourages entire community to be involvedPlaces greater emphasis on having offenders accept responsibility Community responsibilityU.S. and Canada - VOM and VORP

RESTORATIVE JUSTICE

MATTERS IN CRIMINAL MEDIATION

Juvenile casesLess heinous adult crimesMutual assaults and the disputes between neighbors Crimes against propertyMotor Accident Claims - Drunk-drivingDowry harassment and cruelty u/s 406/498-A IPCComplaints u/s 138 of Negotiable Instruments ActPetitions u/s 125 Cr. P.C.Any other compoundable offence

Case Characteristics• case not to involve complex legal

issues, ambiguous precedent, Constitutional issues or Public Policy

• referral Judge should ascertain whether previous attempts to mediation have failed and why

Cont..

FACTORS TO BE CONSIDERED BY REFERRAL JUDGE

Party Characteristics• costs and time - not more than litigation • parties and their advocates have positive

attitude • government is not a party

FACTORS TO BE CONSIDERED BY REFERRAL JUDGE

PROCESS

Any stage in the processSign an agreement ReferralFirst ContactPreliminary InterviewsFace-to-Face MeetingConclusionsAgreement reached is not necessarily final

CRIMINAL MEDIATOR

Acts as a catalyst Third party who referees disputed parties Neutral party but not neutral as to the wrongAttending to the needs of crime victims Process of facilitating meaningful accountability Trained prepare victims and offenders to come face to-faceSkills for working with trauma victimsRule 3 of the Mediation and Conciliation Rules, 2004

PARTICIPANTS IN MEDIATION

The Defendant Defendant’s lawyerThe Victim - a natural or a legal personPublic ProsecutorVictim’s AdvocateA representative from Law Enforcement Juvenile mediations - juvenile, parent/ guardian, victim, victim’s relative or advocateAll participants to meet at scheduled place on scheduled date with the mediator

CRIMINAL MEDIATION VIS-À-VIS TRADITIONAL CRIMINAL JUSTICE SYSTEM

Criminal Mediation• Resolution by compromise • Both parties have opportunity to explain their behavior • Quick, inexpensive, and effective• Mediators charge affordable flat rate or hourly fee • Enhance chances of winning • Mediation can give guidance, support, and compassion• Voluntary and feeling of satisfaction to parties

Contd..

Contd..


Criminal Mediation• Presents open-minded opportunity • Casual neutral setting• Personalizing a plan to encourage mutually fair resolution

agreementCourt system

• Follow strict standards • Opportunity to explain may be denied as it is legal counsel

who puts forward their case• Burdens the parties financially, emotionally and

inconvenientlyContd..

Contd..


Court system• Courts and lawyers charge excess fees• Odds of winning a criminal dispute are slim• Lawyers and court systems have no mercy• Decision always enforced on one party. Thus

discontentment - leads to filing of multiple appeals

• Judge presents his/her legal opinion in the verdict

• Most people do not like attending court• Dictate the resolve by making biased decisions

MEDIATION IN CASES INVOLVING JUVENILE OFFENDERS

Diversion from prosecutionOpportunity to avoid getting a juvenile or criminal recordCharges may be dismissed Case of 1974Other countries

ADVANTAGES

Cheaper, quick and less adversarial Entirely voluntary Flexible, often informal, and adaptableConfidentialityNo technicalities involvedNeutral environmentMutual agreementCriminal Arbitration and lawsuit litigation still remain as optionsAvoids psychological sufferingsLess time consuming

Contd..

ADVANTAGES

Puts a face on deeply felt emotional issuesReduce burden on court system Judge (mediator) acts as a facilitatorEnforceable in Court if parties fail to honor the settlement agreementParties may choose to re-enter the formal processHave a positive effect on the participants

DISADVANTAGES

Unawareness among peopleDoes not necessarily save the accused person any moneyUnequal bargaining power Victims should have the right to opt out, even during the process itself, if the mediation becomes uncomfortableNot available for all types of crimes and to all criminals

INTERNATIONAL MEDIATION

UNITED STATES OF AMERICA

90% casesLaw Enforcement Assistance Administration (LEAA)• Pilot Neighbourhood justice centres• Increased support from private sector• Children, Courts and Dispute Resolution

Types of Mediation• Rights – based• Interest or needs based

Cont..

Dispute Resolution in Judicial System• US District court• Court of Appeals

State courts • California• Minnesota• New Jersey• Texas

Cont..


Corporate use of ADR• Companies• Banks• Food companies• Manufacturers of non- prescription

drugs• Franchisors

Multi- door courthouse approach


UNITED KINGDOM

International MediationAnglo- Saxon legal baseADR not litigation or arbitration

Types of Mediation• Standard Mediation• Mini- trial/ Executive Tribunal• Adjudication/ Med- Arb/ Rent a judge

Cont..

Advantages• Parties autonomy• Flexible and neutral• Confidential and without prejudice• Relatively inexpensive• Not adversarial• Cultural differences are eased out• Future relationships are preserved and

continuedDisadvantages• Serious Business• Consent of both sides

UNITED KINGDOM

SRI LANKA

Evolution of Mediation in Sri LankaConciliation Board Act, 1958Mediation Board Act, 1988Features of the Act:• Institutionalising Mediation Board• Boards are appointed at community level

Cont..

SRI LANKA

Features of the Act:• Appointment by independent

commission• Training of mediators• Informal functioning• Voluntary settlement• Major problem – lack of provision to

compel attendances

HONG KONG

Family disputes and Construction IndustryHong Kong Mediation Council (HKMC)• Part of Hong Kong International

Arbitration Centre (HKIAC)• Mediation Interest Groups

• Construction Mediation Interest Group• Family Mediation Interest Group• Commercial Mediation Interest Group• General Mediation Interest Group

Cont..

HONG KONG

Aims of HKMC:• Development of Mediation• Collaboration• Facilitating exchange of information• Education and training

Function of HKMC:• Holding seminars and meetings• Training of mediators• Publishing a newsletter

Cont..

HONG KONG

Function of HKMC:• Coordinating the development of

mediation• Establishing standards of practice for

mediation

Mediation Process:• Written request• Notification within 14 days• Mediation within 42 days• Appointment of mediator

AUSTRALIA

Voluntary, unbounded and mutually accepted agreementFacilitation of mutually agreeable agreementsIntra – family and neighbourhood disputesDivorce, custody and related disputesConsumer, landlord- tenant and other economic disputesAdministrative actionsCommunity disputesMulti – party disputesPublic policy creation issues

Cont..

Factors:• Complexity of matter• Involvement of more than one plaintiff or

defendant• Cross claims• Relationship of parties• Frequent litigations• Outcome• Matter – private and confidential• Party is a litigant• Appropriate time• Desire of mediation• Number of facets

Cont..

AUSTRALIA

Mediation Act, 1997• Salient features:

• Registration• Renewal of Registration• Cancellation of Registration

AUSTRALIA

THANK YOU

Documents

ADR PPT