Rohit Presentation on Adr (2)

7/30/2019 Rohit Presentation on Adr (2)

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ALTERNATIVE

DISPUTE

RESOLUTION

DIFFERENCE BETWEEN

MEDIATION

AND

CONCILIATION

FROM: SUBMITTED TO:

DR.ANUPAM KURLWAL

ROHIT DESWAL

8th SEM (BA.LLB)

R.NO 1504


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Mediation and Conciliation

In the present complex society., at least for minor andfamily disputes, the 'Mediation' and 'Conciliation' arealways the better alternative dispute processingmechanism, 'Mediation' and 'Conciliation' are processeswhereby a third person attempts to resolve a dispute bycreating an environment ofempathy and openness in thehope of assisting the parties to understand each Others'position and effect an agreement between them. Inmediation, there is a third party, a mediator, who facilitates

the resolution process (and may even suggest a resolution,typically known as a 'mediator's proposal), but does notimpose a resolution on the parties. In some countries (forexample, the UnitedKingdom), ADR is synonymous with what is generallyreferred to as mediation in other countries.

General

Mediation involves a determination of interests - theinterests of the parties. A concept frequently not found inthe litigator's lexicon, interests are the needs, wants, anddesires that are of importance to the parties - the answer tothe question "what is this dispute really all about for you?"

To get there, mediation provides an environment forprincipled negotiations. These negotiations may at times

become frustrating and troubling, but with the mediator'shelp the parties keep moving forward. Principlednegotiations stimulate exploration of settlementalternatives and an opportunity to evaluate thosealternatives, weighing them against the likely outcome ofgoing to trial and viewing proposals through the lenses ofreality. Mediation - compared to litigation, trial and appeal -


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is a veritable bullet train to certainty* and finality. If thedispute settles at the mediation, it settles on a basisacceptable to the parties; the specter of trial is removed;and, the threat of being tied up on appeal is eliminated.

Mediation and Conciliation- InterchangeableTerms

'Conciliation' is a term used interchangeably withmediation and sometimes used to differentiate between

one of these processes (often mediation) involving a morepro-active mediator role, and the other (conciliation)involving a more facilitative mediator role; but there is noconsistency in such usage. In both the procedures asuccessful completion of the proceedings results in amutually agreed settlement of dispute between theparties though, in some jurisdictions, mediation is treatedas distinct from conciliation inasmuch as in mediation theemphasis is on more positive role of the neutral thirdparty than in conciliation. Nonetheless, this factor shouldnot make mediation distinctive from conciliation becausethe range of the role that a mutual third party can performdepends on the nature of the clash, the degree ofenthusiasm of the parties and the dexterity of theindividual neutrals.

Mediation - Definition

Mediation is a course of action by which disputingparties use the assistance of a neutral third party to act

as a mediator-a facilitating intermediary-who has no

authority to make any binding decisions, but who uses

various procedures, techniques and skills to help the

parties to resolve their dispute by negotiation and by


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agreement without adjudication. It is a non-binding

procedure in which a neutral third party assists the

disputing parties in mutually reaching an agreed

settlement of the dispute.

Conciliation Definition

Conciliation is an alternative dispute resolution

process whereby the parties to a dispute (including

future interest disputes) agree to utilize the services of a

conciliator, who then meets with the parties separately in

an attempt to resolve their differences. Conciliation is

now statutorily recognized and the settlement

agreement is binding on parties.

MEDIATION V. CONCILIATION

1Mediation:

It implies a stronger form of Intervention and mediator may

be permitted to offer to the partys proposals for settlements.

Conciliation:

It is limited to encouraging the parties to discuss their differences and to help developtheir own proposed solutions.

2Mediation:

It is a method not employed in civil law countries

And it is not common as conciliation is.

Conciliation:

It is a method employed in civil law countries like Italy

And it is a more common concept there than mediation is.


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3 Mediation:It takes mainly in Family disputesnamely partition, marriage etc.

Conciliation:It mainly takes place in Labour and Consumer disputes.

4 Mediation:

It is not yet recognized by statutes.

Conciliation:

It is the latest development in the ADR system.

5 Mediation:

Attorneys are more active in mediation

in generating and developing innovative solutionsfor settlement.

Conciliation:

Attorneys generally offer advice and guidance to clients about proposals made by

conciliator

6 Mediation:

The mediator controls the process

through different and specific stages

introduction, joint session, agreement etc.

Conciliation:

The conciliator may not follow a structured process.

7 Mediation:

Settlement of dispute without litigation not possible.

Conciliation:Settlement of dispute without litigation possible.


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8 Mediation:

Mediation trend can be observed in UNITED KINGDOM (U.K)

Conciliation:

Conciliation trend can be observed in SRI LANKA.

Arbitration, Mediation and Conciliation-distinction

Conciliation differs from arbitration in that the

conciliation process, in and of itself, has no legal

standing, and the conciliator usually has no authority toseek evidence or call witnesses, usually writes no

derision, and makes no award. Conciliation differs from

mediation in that the key goal is to conciliate, most of

the time by seeking concession,. In mediation, the

mediator tries to steer the discussion in a way that

optimizes parties' needs, takes feelings into account and

reframes representations. In conciliation the parties

seldom, if ever, actually face each other across the table

in the presence of the conciliator. (This letter differencecan he regarded as one of species to genus),

Elements in Mediation

Most practicing mediators refer to the practice of

meeting with the parties separately as 'caucusing' and

would regard conciliation as an explicit type or form ofmediation practice 'shuttle diplomacy' that relies on

exclusively on caucusing. All the other features of

conciliation are found in mediation as well it the

conciliator is successful in negotiating an understanding

between the parties, said understanding is almost always

committed to writing (usually with the assistance of legal


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counsel) and signed by the parties, at which time it

becomes a legally binding contract and falls under

contract law.

The classic mediation has no formal compulsory

elements, although some regular elements are by

and large found;

Every disputant having a chance to tell his or her

story;

Classification of issues, usually by the mediator;The elucidation and thorough specification of the

respective interests and objectives,

The conversion of respective subjective evaluations

into more objective values,

Identification of options;

Discussion and scrutiny of the probable effects of

diverse solutions;

The fine-tuning and the refinement of the connected

facets,

Reducing the agreements into a written sketch,

Mediation: Its Stages


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The process of mediation can be easily divided into

ten stages as given follows:

Stage 1-Selection of Mediation/Conciliation Centre;

Stage 2-Execution of Contract in

mediation/conciliation;

Stage 3-Furnishing of information and

correspondence;

Stage-4 Meeting of parties;

Stage 5-Familiarising mediator with facts about

dispute;

Stage 6-Gathering information;

Stage 7-Faciliating Negotiations;

Stage 8- A stage of impasse;

Stage 9-Termination of mediation or achieving

agreement; and

Stage 10- Post-termination stage.


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Conciliator and MediatorA Conciliator and mediator assist each of the parties to

independently develop a list of all of their objectives (the

outcomes which they desire to obtain from the conciliation).The conciliator then has each of the parties separatelyprioritize their own list from most to least important. Hethen goes back and forth between the parties andencourages them to 'give' on the objectives one at a time,starting with the least important and working toward themost important for each party in turn. The parties rarelyplace the same priorities on all objectives, and usually havesome objectives which are not on the list compiled byparties on the other side. Thus the conciliator can quickly

build a string of successes and help the parties create anatmosphere of trust which the conciliator can continue todevelop. The mediator is a facilitator, who may, in somemodels of mediation, also provide a non-binding evaluationof the merits of the, dispute, if required, but who cannotmake any binding adjudicatory decisions.

Qualities of Mediator and

ConciliatorThe arbitrator/conciliator/mediator is expected to have

the qualities of patience, sincerity, maintenance ofconfidentiality of the dispute and Wisdom of Solomon,Henry Brown and Arthur Marriott have identified followingtraits and qualities which a mediator should possess tosucceed in his efforts inachieving a settlement of a dispute:

(1) Understanding

The ability to understand with sensitivity the issues,often complex, and the concerns and aspirations of theparties, explicit and implicit.

(2) Judgment


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A sound Judgment, a judicious and rational approach and

shrewd commonsense.

(3/IntuitionA ability to sense information without any

rationalization, obtained through perceptiveness to verbaland other signals received,

(4} CreativityA creative and inventive response to the problems

of the case, generating options and encouraging the

parties to explore ideas,

(5) Trust worthiness

Integrity coupled with a sense that trust can be reposed in themediator,

(6) Authority

A firmness of touch in managing the processeffectively and

constructively.

(7)Empathy

An ability to the relate the parties in a sympathetic wayand to reflect an awareness of and respect for theirconcerns.

(8) Constructiveness

A practical turn of mind thatsees positive possibilitiesand can motivate

the parties to deal constructively with settlement

options.

(9)FlexibilityAn ability to cope with change, with unusual situations,

ideas and solutions and with rapidly varying circumstances.

(10) Independence


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Strategies in MediationSeating the participants: in proximate distance

with the mediator.

Opening Statement of MediatorIntroduction of Participants

Commend them for willing to cooperate

Explain mediation process and goals

Establishing ground rules for confidentially-caucusing

Manner for presenting arguments,

Finally obtain joint agreement to begin Collectopening statement of parties

Organize composite list of issues, written submissions

opening statements

Methods of MediationIn USA different methods of Mediation involving third party

facilitators

(i) Three Layer Mediator PanelThey are attached to Wype Country, Circuit Court in

Detroit Michigan. The Lawyers submit their casesummaries to panel for review. The panel evaluates thecase and informs of its conclusion. The court enters the

judgment.

(ii) Rent a Judge ProgramThe disputants consent to a form of compulsory

arbitration before an individual (often a retired judge).The decision of this arbitration is final like a courtdecision. It saves time and avoids unnecessaryprocedural technicalities


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(iii)Quick Look ProceedingsOne Cleave land court permits selected cases to bepresented in summary form to six member juries whichrender advisory opinions. If the abbreviated proceedingsdo not prompt voluntary settlement then the court givesfinal decision.

(iv)Mini TrialsUnder American judicial system a system of Mini

trials has been developed. Though it consists essentiallyof an abbreviated, adversarial evidentiary presentationcalled an 'information exchange' This system of mini trialsavoids higher litigation costs and the result is moresatisfactory to the parties and the relations betweendisputants remain amicable. It is cheap, quick and amitygenerating. In mini trials, there is a third party neutraladvisor, who acts as facilitator or catalyst of negotiatedsettlement, though he lacks power to compel a solutionor to bind the parties. Thus the mini trials are just likemediation and Non-binding Arbitration

Types of Disputes Resolved byMediation


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1. Aviation Banking and finance

2. Boundary Disputes, Broker Liability

3. Business Disputes, Charities

4. Clinical & Medical Negligence, Compensation

5. Commercial agencies-Commercial contracts

6. Construction & Development-Corporate finance7. Distribution agreements-Employment

8. Energy Engineering & Manufacturing Disputes

9, Environmental issues, financial Services

(10) Franchises Group/ Class actions

(11) Information Technology, insolvency

Bankruptcy(12) Insurance & Reinsurance Intellectual

Property, Trade Mark and Copyright

(13)Landlord & Tenant Leasing and SupplyContracts

(14) Lender Liability, Libel & Defamation

(15) Maritime & Shipping, Multipartyactions

(16) Neighbour Disputes Nuisance

(17) Oil & Gas ContractsPartnership Dispute(18) Passing-off Actions Pensions(19) Personal InjuryPollution Claims

(20) Product Liability Personal Indemnity

(21) Property and Real Estate-Publishing,

Television Broadcasting Rights(22) Railway Industry-Transport RegulatoryDisputes

(23) Securities and Shares-Shareholder's Disputes

Mediation - A Season for AllThings


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The eldest branch of mediation applies to business andcommerce, and still this one is the widest field ofapplication, with reference to the number ofmediators inthese activities and to the financial range of total

exchanged values.

(i) Mediation in Business andCommerce

The mediator in business or in commerce helps theparties to achieve the final goal of respectivelybuying/selling (a generically contraposition that includesall the possible varieties of the exchange of goods orrights) something at satisfactory conditions (typically in

the aim of producing a synallagmatic contract),harmonically bringing the separate elements of the treatyto a respectively balanced equilibrium. The mediator, Inthe ordinary practice, usually cares of finding a positiveagreement between (or among) the parties looking at themain pact as well as at the subsidiary pacts too, thusfinding a composition of all the related aspects that mightcombine in the best possible way all the demands of hisclients. The subfields include specialized branches that are

very well commonly known: in finance, insurances, ship-brokering, rel estate and some other particular markets,mediators have an own name and usually obey to speciallaws. Generally the mediator cannot practice trade in thegenre ofgoods in which he is a specialized mediator.

(ii) Advantages ofMediationMediation deals with the root causes of the problems

or conflicts. Settlement through mediation is lasting because

the parties are encouraged to think about the basic reasonsof dispute,

2. Meditation improves the communicative capacity of

the disputants


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3. Mediation is not strangers like courts but are friends and

the disputes are settled in a friendly manner and the

disputants part as friends.

4 Mediation is neither coercive nor threatening.

5 Mediation is voluntaristic as it allows the disputantsto solve their problems themselves.

6 Mediation is means of reducing tension in thecommunity. Mediators attempt to reduce social conflictbefore it escalates into violence. Mediators sometimessuggest the future course of action to reduce tension.Mediator helps the parties to reshape their thinking abouteach other and to recognize ways to minimize their naturalhostility. However at times it is not feasible to mediatecases between parties unequal in power.

7 Mediators are not professionalized and do not requirelong training as is the case of judges, lawyers, court officialsand police.

8 Mediation is speedier, less costly and fairer thanadjudication because the procedure is less cumbersome andthe chances of misleading the Mediator are remote. Sincethe parties themselves evolve a solution to their dispute,the decision is normally fairer and satisfactory. Mediationcan reduce court congestion and delay if all the cases notappropriate for court process are directed to mediationcentres. Mediation centres can relieve courts from handling

minor problems and leave them free to deal with moreserious cases.

9 Unlike judges, mediators represent the society andshare its values.


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Mediation is more suitable for people, than litigation.The judge in

litigation deals with the case in an impersonal and detailedmanner. He depends upon material evidence and proofsand on rigid rules. He deals with disputants mostly on paperand imposes a solution that rests on command of authority.

The mediator on the other hand depends on his personalrelations with, and personal influence on, the disputantsand on his own information and personal observation ofdispute and circumstances. A Mediator is more dynamicthan the judge and can persuade both parties to giveconcessions and reach compromises. The role of themediator is to identify common ground of interest betweenthe parties by identifying and pointing out the weaknesses

in each side's position. He also tries to understand and dealwith the assumptions and perceptions on each side. Oncethis is done, then the parties are able to focus on the issueswhich will bring about the settlement.

10 The most important thing is that there is no 'winner'

or looser' as in the court decisions. Both parties are always

winners, at least in terms of saving time, money, and the

hardships of litigation. Mediation is also face saving. The

essence of mediation is that each issue whether proceduralor substantive is resolved by joint agreement of the parties.

(iii) Global Relevance

The rise of international trade law, continental tradingblocs, the World Trade Organization and its opposing anti-globalization movement, use of the internet, among otherfactors, seem to suggest that legal complexity is rising to

an intolerable and undesirable point. There may be noobvious way to determine which jurisdiction hasprecedence over which other, and there may be substantialresistance to settling a matter in any one place.Accordingly, mediation may come into more widespreadreplacing formal legal and judicial processes sanctified bynation-states.


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Some, like the anti-globalization movement believesthat such formal process have quite thoroughly failed toprovide real safety and closure guarantees that areprerequisite to uniform rule of law. Following an increasingnotoriety of the process, and a wider notion of its man

aspects and eventual effects, mediation in recent times isfrequently proposed as a form of resolution ofinternational disputes, with attention to belligerentsituations too.

(iv) Future of MediationCourts, with their traditional adversarial procedures are

not always the best mechanism for solving minor disputes.At least for minor conflicts, the need of the time is todevelop non-traditional procedure and the dispute

resolution institutions, which do not rely upon adversaryproceedings. Small claims courts in America. Australia andEngland are the best examples which often rely onmediation and conciliation.

In addition, there are number of Community DisputeResolution centres in U.S.A. which are less expensive,more expeditious and helpful in making the courts moreefficient by reducing their case load, in England, manyadvice giving agencies e.g. .Citizen's Advice Bureau,Marriage Guidance Council and many other, staffed by

volunteers and financed by voluntary contributions, act asmediators to settle the small disputes. There are somepeople who normally serve as mediators for example,shop-stewards. Union officials and supervisory staff, towhom people with problems approach. It may be a disputeinvolving pay, redundancy or dismissal, accusations ofdiscrimination by foremen or disagreements betweenworkers. Government paid social workers also help insolving problems of clients who have problems with localand central Government. Individuals may also turn for help

to policeman, clergyman* doctor, school Head master, toseek advice on a wide variety of problems.

In Philippines, Mediation is widespread as a form of

dispute resolution. The Philippines National Labour RelationsBoard often relies on mediation for solvingemployee/management disputes; the field staff of MinistryofAgrarian reform commonly utilizes mediation process to


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handle conflicts between landlord and tenants, the Ministryof Education and Culture frequently uses mediation to dealwith controversies between employees of the public schools.In each of these instances the use of mediation for dispute

settlement is under the control of state Third partyintermediaries are also asked to resolve about 90 percent ofcomplaints brought to the municipal courts. In villages,Mediation is normally used to resolve disputes Bv

Presidential decree No. 1508, the village level mediation is apre-condition to legal proceedings in the courts of formaladjudicativesystem.

University failed to make reasonable adjustments

for a student with dyslexia.

Impairment: Learning Disability Sector: Education & Training

Summary:

A 19 year-old student with severe dyslexia had a confirmed place on a Finance &

Accounting Degree to commence at the start of the year. On the first day of term, theComplainant was told that they could sit in on lectures but could not go through the

enrolment process. The parents had a meeting with the Academic Director and a member

of staff from Admissions. They were informed that the College did not want theadministrative burden of recruiting and employing a note taker, and had decided to

withdraw the offer of a place at the College.

Three days before the beginning of term, the Academic Director had informed the

Complainant's parents that he thought that the family had agreed to organise the note

taker themselves. Admissions apologised for this and re-assured the student thateverything would be fine for the beginning of term.

Whilst the Academic Director acknowledged that more might have been done to enable

the student to keep his place on the course, it appeared that the Complainant was rejectedfrom the College for reasons related to their disability, and that no reasonable adjustments

had been made.

The Complainant had difficulty finding another place on a similar course (due to having

dropped an A level on the recommendation of the College) and felt that they had not beenable to exercise real choice in terms of a finding a replacement university place.


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Outcome: Full and final settlement was reached.

The duties and responsibilities imposed on the College by Part III

of the Disability Discrimination Act 1995 were discussed.

Parties discussed what actions should have taken place to ensure

that the Complainant could have studied at the School, the personal

impact of the events and the condition of dyslexia and its impact.

The College's disability policy and procedures were also discussed.

The College agreed to assign a member of staff to be responsible

for ensuring that the College complied with the DDA. This person

would be their Disabilities Officer and would have ongoingresponsibility to support students with disabilities. This Disabilities

Officer would be appointed within one year and it was agreed that

information would be sent out to the Complainant about the

training received by this Officer.

It was also agreed that all full-time staff would be trained in

disability awareness and that this training would be incorporated in

induction training for new staff. The Complainant would be told

the percentage of staff that had been trained at the end of the

calendar year. The Academic Director agreed to put in place some

public dyslexia awareness information for students - such as a

poster - by the beginning of October. The Director agreed to

identify the Disabilities Officer in the College's prospectus and on

its website, including the Officer's name, role and contact details.

The College would make it clear that the Officer's support would

be available to both current and new students.

It was agreed that a written apology would be sent from the Chair

of the College to the Complainant by a specified date. This would

include apologies for the stress caused to the student and for the

College not meeting the anticipatory requirements of the DDA.


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Compensation of 3,500 was agreed.

Through conciliation, the DCS offers disabled people a uniquely

accessible and empowering alternative to court or tribunal action,as a way of exercising their civil rights under the Disability

Discrimination Act 1995 (DDA).

We provide an opportunity to resolve complaints relating to DDA

Part lll (Goods and Services) and DDA Part lV (Education).

What is Disability

Conciliation?Disability Conciliation is an

opportunity for disabled people and

service providers to resolve cases under

the DDA. It is a "win/win" situation

where parties come together in a one-off meeting to find their own solutions.

Conciliation:

Is free of charge

Takes less time than court

Is a confidential process

Enables negotiated outcomes between the parties

Leads to real social change

BIBLIOGRAPHY:


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1. An Introduction to Alternative Dispute

Resolution System.

By Dr. Anupam kurlwal

2. Arbitration and Conciliation Act, 1996 wit

Alternative means Of Settlement Of Disputes.

By Dr. S.C. Tripathi

3. www.citehr.com ... Labor & Employee

Relations4. www.scribd.com/.../ Difference - between -

arbitration- conciliation -nego...

5. http://www.hrmindex.com/hr-

forum/legal/2938-difference-between-

mediation-and-conciliation.

6. http://www.wisegeek.com/what-is-the-

difference-between-conciliation-and-

mediation.htm

7. http://www.dcs-gb.net/
http://www.google.co.in/url?url=http://www.citehr.com/labor-employee-relations-f50.html&rct=j&sa=X&ei=MDaNT43eB83IrQfH0NigCQ&ved=0CCsQ6QUoADAB&q=difference+between+mediation+and+conciliation&usg=AFQjCNFBrvfTUPOMI7cgxENob5aMkZsQ2A&cad=rjahttp://www.google.co.in/url?url=http://www.citehr.com/labor-employee-relations-f50.html&rct=j&sa=X&ei=MDaNT43eB83IrQfH0NigCQ&ved=0CCsQ6QUoADAB&q=difference+between+mediation+and+conciliation&usg=AFQjCNFBrvfTUPOMI7cgxENob5aMkZsQ2A&cad=rjahttp://www.scribd.com/.../Difference-between-arbitration-conciliation-negohttp://www.scribd.com/.../Difference-between-arbitration-conciliation-negohttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htmhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htmhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htmhttp://www.google.co.in/url?url=http://www.citehr.com/labor-employee-relations-f50.html&rct=j&sa=X&ei=MDaNT43eB83IrQfH0NigCQ&ved=0CCsQ6QUoADAB&q=difference+between+mediation+and+conciliation&usg=AFQjCNFBrvfTUPOMI7cgxENob5aMkZsQ2A&cad=rjahttp://www.google.co.in/url?url=http://www.citehr.com/labor-employee-relations-f50.html&rct=j&sa=X&ei=MDaNT43eB83IrQfH0NigCQ&ved=0CCsQ6QUoADAB&q=difference+between+mediation+and+conciliation&usg=AFQjCNFBrvfTUPOMI7cgxENob5aMkZsQ2A&cad=rjahttp://www.scribd.com/.../Difference-between-arbitration-conciliation-negohttp://www.scribd.com/.../Difference-between-arbitration-conciliation-negohttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.hrmindex.com/hr-forum/legal/2938-difference-between-mediation-and-conciliationhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htmhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htmhttp://www.wisegeek.com/what-is-the-difference-between-conciliation-and-mediation.htm

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Rohit Presentation on Adr (2)