“A WORD DEVOID OF THOUGHT IS

A DEAD THING AND

A THOUGHT UNEMBODIED IN WORDS REMAINS A SHADOW”

A QUOTE BY - VYGOTSKY

*A dispute is a difference of opinion regarding A dispute is a difference of opinion regarding interests, rights and liabilities of individuals.interests, rights and liabilities of individuals.

*Every dispute is an out come of Every dispute is an out come of

violated individual expectations.violated individual expectations.

*What they want is not What they want is not

happeninghappening

*What they do not want is What they do not want is

happeninghappening

What does one do when he is involved in a dispute?What does one do when he is involved in a dispute?

*He may disagree and quarrel with the other.*He may think, introspect, question himself, cross

examine himself, QUESTION THE OTHER PARTY in imagination, cross examine him, answer himself, argue for himself, pass a judgment for himself.*He may discuss with his nearest and dearest /

close associates / well wishers.*He may approach the Head of the family,

Village Head, reputed / influential persons.*He may approach Politicians – Police *He may opt for arbitration – conciliation *He may approach anti social elements *He may approach the Lawyer *He may approach the Court.

*Confused.. tense.. argumentative.

*Fault finding.. Suspecting.. troubled with Superiority complex / inferiority complex.

*Assuming that he alone is right.. and the other party is a wrong doer.

*Behavior becomes extreme and less tolerable to others.

What is the state of mind of a person What is the state of mind of a person involved in dispute?involved in dispute?

What does a person involved in a dispute expect?

*I should swim…he should sink

*I should swim…he should not swim

*He should sink…does not mind if I also sink.

““VENGEANCE”…? At what cost?VENGEANCE”…? At what cost?

What is the state of mind of What is the state of mind of a person involved in dispute?a person involved in dispute?

What does the Court do?What does the Court do?

*Court hears both the parties (generally through Lawyers), Court hears both the parties (generally through Lawyers), takes evidence, formulates issues / points for consideration takes evidence, formulates issues / points for consideration hears arguments and passes judgment.hears arguments and passes judgment.

*Is Judgment by a Court of law an Is Judgment by a Court of law an

end to the dispute between the parties..?end to the dispute between the parties..?

““MILLION DOLLAR QUESTION”?MILLION DOLLAR QUESTION”?

*Litigation comes to an end but not Litigation comes to an end but not the dispute.the dispute.

*Positions/interests/relationships… Positions/interests/relationships… status-quo ante are not restored.status-quo ante are not restored.

*Workable solution is not considered Workable solution is not considered and suggestedand suggested

*Changes after the emergence of Changes after the emergence of dispute, subsequent effects of dispute dispute, subsequent effects of dispute are not determined.are not determined.

*Does not bring both the parties to a Does not bring both the parties to a win / win situation.win / win situation.

What does not the party to a What does not the party to a dispute get through the Court ?dispute get through the Court ?

*ADR is not an adversarial or inquisitorial process.

It is a participative process.

*Parties decide which are the issues or points to be discussed. They narrow down the issues.

*Parties set down their own procedure / rules.

*Evidence - of parties - witnesses - examination in chief-cross examination - production - confrontation of documents are all avoided to a greater extent.

*ADR is neither a fact finding nor an adjudicative process.

WHY ADR?WHY ADR?

ADRADR is a problem solving process. is a problem solving process.

ADRADR is less formal many a times totally informal. is less formal many a times totally informal.

PartiesParties decide and control the result. decide and control the result.

ADRADR depends solely on the agreement of the parties. depends solely on the agreement of the parties.

Any dispute can be resolved in 2 waysAny dispute can be resolved in 2 ways

Non-jurisdictional

process - A.D.R.

Jurisdictional process - through State Court litigation

*State Courts are overloaded

with work

*Several layers of jurisdiction

(Original / Appellate / Supreme Court) are to be crossed.

*Parties become adversaries,

deny each other

*Strict application of procedures and rules

*Parties do not have control over the procedure as well over the outcome.

*Either but not both the parties feels satisfied.

Disadvantages of litigationDisadvantages of litigation

WHAT IS MEDIATION?WHAT IS MEDIATION?

*Mediation is a process where two parties to a dispute Mediation is a process where two parties to a dispute get their dispute/s resolved by themselves, in the get their dispute/s resolved by themselves, in the presence of a neutral third party who is a mediator.presence of a neutral third party who is a mediator.

*Mediation is an assisted negotiation, where the Mediation is an assisted negotiation, where the mediator facilitates the parties to negotiate.mediator facilitates the parties to negotiate.

*Mediation is a combination of methods adopted to Mediation is a combination of methods adopted to facilitate the parties to resolve the dispute. facilitate the parties to resolve the dispute.

Paradigm shiftParadigm shift

Get things doneGet things done

Get things done right, and rightly doneGet things done right, and rightly done

Get alongGet along

Get mutual appreciation.Get mutual appreciation.

A mediator does not sit as a Lawyer or a Judge or an Arbitrator or a Conciliator, or a Village Head / Head of the family / Politician / Police authority / much less as an anti social element.

The best answer is.. One.. who in the proceedings is not a Lawyer or a Judge or an Arbitrator or a Conciliator, or a Village Head / Head of the family / Politician / Police authority / much less an anti social element.

Who is a mediator?Who is a mediator?

““The Big Difference”The Big Difference”

How does a mediator differ from others?

*Mediator does not hold brief for either of the parties.

*Mediator is a neutral third party.. who is neither interested in the parties, nor in the subject matter of litigation.

*Mediator does not argue who is right and who is wrong. (Advocate)

*Mediator does not decide or judge as to who is right or who is wrong? (Judge)

Cont..

““The Big DifferenceThe Big Difference””

*Mediator does not pass an award as to what should happen in future between the parties? (Arbitrator) *Mediator does not suggest, persuade. (Conciliator)*Mediator does not command. (Police / Village head /

person exercising authority)*Mediator does not compel or impose his / her views.

(Friend / relative / well wisher) *Mediator does not take sides and take law into his/her

hands. (Anti social elements)*Mediator only facilitates the parties to resolve the

dispute.*Mediator assists in negotiation.*Mediator provides a congenial atmosphere for

resolution of disputes.

Process of Mediation

OPENING STATEMENT

Mediator introduces himself/herself,

gets introduced to the parties,

tells in brief what mediation is..

and how the mediation process is to be proceeded with.

Cont..

Process of Mediation

JOINT SESSION

A) For the first time, Both the parties to a litigation are made to sit close to one another, on either side of the mediator, along with their advocates.

B) The one who has approached the Court is asked to explain every aspect of dispute, which is covered or not covered in the plaint. The other party is asked to listen without causing any interruption or intervention.

– The advocate is requested to highlight the legal issues.

– A re-statement / reassurance of facts explained by the party, is made by the mediator. The party is asked to correct the mediator if the mediator has not understood the party properly.

Cont..

Process of Mediation JOINT SESSION

C) The other party / respondent / defendant is asked to explain every aspect of dispute, which is covered or not covered in the written statement / objection statement. The first party is asked to listen without causing any interruption or intervention.

*The advocate is requested to highlight the legal issues.

*A re-statement /reassurance of facts explained by the party , is made by the mediator. The party is asked to correct the mediator if the mediator has not understood the party properly.

Cont..

Process of Mediation

PRIVATE SESSION

*Each party is spoken to in private. The party can vent out his/her feelings / emotions / expectations, leisurely. Mediator does not interfere or interrupt. Mediator listens actively effectively and demonstrates understanding.

*Confidential information given by one party is not revealed to the other party unless the party permits .

*Even third parties are given an opportunity to participate.

SHUTTLINGSHUTTLING

The mediator convenes any number of private and joint sessions with the parties.

In the process many solutions are evolved.

One of the solutions agreeable to both the parties is picked up by the parties themselves.

SETTLEMENTSETTLEMENT

*A draft of settlement is placed before the parties.A draft of settlement is placed before the parties.

*Settlement is written, and signed by the parties.Settlement is written, and signed by the parties.

*Settlement arrived at is sent to the Court.Settlement arrived at is sent to the Court.

*Court passes decree in Court passes decree in

terms of settlement.terms of settlement.

IF SETTLEMENT IS NOT IF SETTLEMENT IS NOT ARRIVED ATARRIVED AT

*Parties do not loose anything.

*The mediator mentions : ‘Matter Not Settled’, and sends the file back to the Court.

*Entire process is kept confidential. No cross examination is permitted in court as to what transpired in the Mediation.

*Entire process is time bound – with a maximum of 60 days, as the upper limit.

ADVANTAGES OF MEDIATIONADVANTAGES OF MEDIATION

*Mediation is not a competitive adjudicatory process.

*Mediation is a co-operative decision making process.

*It is a process for achieving what you want by yourself convincing the person, from whom you want, what you want.

*Negotiation may fail

but the communication

is kept alive

What is taken care of in Mediation?What is taken care of in Mediation?

*Positions: What a person wants?

*Interests: Why a person wants that what he wants?

Desires / needs of a negotiator Absolutely essential: Which must be achieved through mediation.

Important: Which may be obtained in different form (FLEXIBILITY).

DESIRABLE: It may be given up to get either important or absolutely essential.

BOTTOM LINE OF MEDIATION

• “A problem is that which has solution”

• OPTIONS: Possible solutions to problem/brain storming

• Alternatives: If no settlement is reached, what do you have outside negotiation?

• Proposals and counter proposals are properly supported.

MEDIATION AND DECISION MAKINGMEDIATION AND DECISION MAKING

• Life changing decisions:• Tangible goals: Income,

profit, career moves, things that can be experienced through senses.

• Intangible goals: Family values, relationships, emotional needs, self esteem.

• Sacrifice of tangible goals for intangible goals / vise - versa.. how beneficial?

DECISION MAKINGDECISION MAKING

• How does a given decision fit into his/her total circumstances

• How would the decision if taken affect his/her other goals and objectives.

• Who else would be affected by the decision and how?

• What would be the consequence of inaction-if no decision is taken and every thing is left as it is.

*What would be the positive and negative What would be the positive and negative consequences of one’s decision.consequences of one’s decision.

*Meeting multiple demands Meeting multiple demands

through decision.through decision.

*Quality of decisionQuality of decision

““RESOLVING DILEMMARESOLVING DILEMMA””

• “One always has a choice of choice between right and wrong”.

• One can give decision without assigning any reasons. “GIVE YOUR DECISION BUT NOT YOUR REASONS”.

• One need not make excuses to express his decision.

• You need not oblige.. but express your decision obligingly.

DECISION MAKINGDECISION MAKING

*Difference between: making things happen and letting things happen.

“BEST FIVE PLAYERS win the game

But not

FIVE BEST PLAYERS” .

What ultimately matters is “THE RESULT”.

*“Last piece of straw broke the camels’ neck”- How to get out?

*Who is responsible? to what extent?

*“Right question leads to correct answer”

““Camel’s Back SyndromeCamel’s Back Syndrome””

“CREAM ALWAYS COMES TO TOP”

Mediation facilitates the milk in the process.

Can a dispute be really Can a dispute be really resolved through resolved through Mediation ?Mediation ?

RETURNSRETURNS

*“It is your work in life

that is the ultimate

seduction”

- PABLO PICASSO

*We all work for a cause..

*“Leaving people better

than we found them”.

RETURNSRETURNS

*“It is your work in life

that is the ultimate

seduction”

- PABLO PICASSO

*We all work for a cause..

*“Leaving people better

than we found them”.

*Cases referred – 7,061

*Cases returned back – 1,315

*Cases Mediated – 5,080

*Cases Settled – 2,919

*Connected Cases Settled – 275

*Success rate – 57%

*Total Mediated hours – 9,920 hours

*Average time per case – 118.055 mins

*Average number of sessions – 1.75

Amendment to S.89 was suggested after the legislature acknowledged that

1.The formal method of dispute resolution was not successful

2.Alternate dispute Resolution system was not popular enough to litigants to try the same

3.The need of making ADR as a part of Court process was felt

*It gently pushes litigants to at least attempt settling the matter out side of Court.

*Promotes settlement.

*Gives judicial recognition to concept of settlement through ADR

*Every Court is duty bound to travel through S. 89 C.P.C.

*What is optional is referring the dispute to ADR.

*S.89 may have to be read along with Order X.

1) Court has to go through the pleadings

2) Observe the issues in controversy

3) Record the admissions and denials of the parties

And then…

Find out if there exists some elements of a possible settlement

What if the Court comes to a conclusion that there is no element of settlement could be found ?*Make an endorsement.. and proceed with the case in the usual manner.

What if the Court comes to a conclusion that there exists some element of settlement?*Formulate terms of possible settlement

*Give them to parties for their observation.

*Get feed back from parties,

*Reframe the terms of a possible settlement THENRefer the matter to one of the ADR methods

*S.89 contemplates the Courts to refer matter to ADR if it feels that there exists some element of settlement acceptable to the parties.

*Participatory role of parties cannot be ignored.

*Parties may be allowed to choose.

BUT…*The Court should come to a conclusion as to which of the methods contemplated in s.89 would be appropriate for the case on hand. The decision taking power is vested with the Courts.

*Right exercise of the discretion results in proper settlement.

1) At any stage.

2) Preferably after the pleadings are completed

Can Court permit parties to jump from one ADR mechanism to another ADR mechanism?

*It can.. If the Court feels it necessary

*It can.. If there is no malafides

*It can.. If it is not an out come of delaying tactics

*It can.. If the subsequent events so demand

*To restate that Courts also recognize ADR mechanisms*To create an obligation on the parties to negotiate in good faith.*To make the parties participate in the process with an open mind *To ensure a degree of certainty *To create a binding enforceable contract.

*Whether Court has power to refer the matter to arbitration even when one of the parties to the suit does not agree to the same?

*Please refer:

AIR 2006 Ker. 2007(1)Afcon Infra Structure Vs Cherian Varkley*Let us wait for the judgment of the Hon’ble Apex Court.

THANK YOU

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