UNIT – IV

Negotiation1

I. What is negotiation?

Negotiation has been defined as any form of direct or indirect communication whereby
parties who have opposing interests discuss the form of any joint action which they might
take to manage and ultimately resolve the dispute between themFootnote1. Negotiations may
be used to resolve an already-existing problem or to lay the groundwork for a future
relationship between two or more parties.

Negotiation has also been characterized as the “preeminent mode of dispute

resolution”Footnote2, which is hardly surprising given its presence in virtually all aspects of
everyday life, whether at the individual, institutional, national or global levels. Each
negotiation is unique, differing from one another in terms of subject matter, the number of
participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can
also be applied within the context of other dispute resolution processes, such as mediation
and litigation settlement conferences.

II. Characteristics of a negotiation

Negotiation is:-

 Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process. Parties may participate directly in the negotiations or they may choose to be
represented by someone else, such as a family member, friend, a lawyer or other
professional.
 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They
can range from two individuals seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
 Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation
is reached by the parties together without recourse to a third-party neutral.
1
Produced by Dispute Prevention and Resolution Services Department of Justice, Canada.
  Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the
subject matter, timing and location of negotiations. Further matters such as
confidentiality, the number of negotiating sessions the parties commit to, and which
documents may be used, can also be addressed.
 Confidential: The parties have the option of negotiating publicly or privately. In the
government context, negotiations would be subject to the criteria governing disclosure
as specified in the Access to Information Act and the Privacy Act (see confidentiality
section). For general information on the privileged nature of communications between
solicitor and client during the course of negotiations, please refer to the Department of
Justice Civil Litigation Deskbook.
 Flexible: The scope of a negotiation depends on the choice of the parties. The parties
can determine not only the topic or the topics that will be the subject of the
negotiations, but also whether they will adopt a positional-based bargaining approach
or an interest-based approach.

III. Advantages of negotiation

In procedural terms, negotiation is probably the most flexible form of dispute resolution as it
involves only those parties with an interest in the matter and their representatives, if any. The
parties are free to shape the negotiations in accordance with their own needs, for example,
setting the agenda, selecting the forum (public or private) and identifying the participants. By
ensuring that all those who have an interest in the dispute have been consulted regarding their
willingness to participate and that adequate safeguards exist to prevent inequities in the
bargaining process (i.e., an imbalance in power between the parties), the chances of reaching
an agreement satisfactory to all are enhanced.

Like any method of dispute resolution, negotiation cannot guarantee that a party will be
successful. However, many commentators feel that negotiations have a greater possibility of a
successful outcome when the parties adopt an interest-based approach as opposed to a
positional-based approach. By focusing on their mutual needs and interests and the use of
mechanisms such as objective standards, there is a greater chance of reaching an agreement
that meets the needs of the parties. This is sometimes referred to as a “win-win” approach.

Negotiation is a voluntary process. No one is required to participate in negotiations should

they not wish to do so.
There is no need for recourse to a third-party neutral. This is important when none of the
parties wants to involve outside parties in the process, e.g., the matter to be discussed or the
dispute to be resolved may be highly sensitive in nature.

Unlike the outcomes of certain adjudicative processes, e.g., the courts, the outcome of a
negotiation only binds those parties who were involved in the negotiation. The agreement
must not, of course, be contrary to Canadian law (e.g., an agreement to commit a crime
would be illegal and thus void for public policy reasons).

Assuming that the parties are negotiating in good faith, negotiation will provide the parties
with the opportunity to design an agreement which reflects their interests.

Negotiations may preserve and in some cases even enhance the relationship between the
parties once an agreement has been reached between them.

Opting for negotiation instead of litigation may be less expensive for the parties and may
reduce delays.

IV. Disadvantages of negotiation

A particular negotiation may have a successful outcome. However, parties may be of unequal
power and the weaker party(ies) may be placed at a disadvantage. Where a party with an
interest in the matter in dispute is excluded or inadequately represented in the negotiations,
the agreement's value is diminished, thereby making it subject to future challenge. In the
absence of safeguards in the negotiating process, the agreement could be viewed by a
participant or others outside the process as being inequitable, even though the substance of
the agreement may be beyond reproach.

A successful negotiation requires each party to have a clear understanding of its negotiating
mandate. If uncertainty exists regarding the limits of a party's negotiating authority, the party
will not be able to participate effectively in the bargaining process.

The absence of a neutral third party can result in parties being unable to reach agreement as
they be may be incapable of defining the issues at stake, let alone making any progress
towards a solution.

The absence of a neutral third party may encourage one party to attempt to take advantage of
the other.
No party can be compelled to continue negotiating. Anyone who chooses to terminate
negotiations may do so at any time in the process, notwithstanding the time, effort and money
that may have been invested by the other party or parties.

Some issues or questions are simply not amenable to negotiation. There will be virtually no
chance of an agreement where the parties are divided by opposing ideologies or beliefs which
leave little or no room for mutual concessions and there is no willingness to make any such
concessions.

The negotiation process cannot guarantee the good faith or trustworthiness of any of the
parties.

Negotiation may be used as a stalling tactic to prevent another party from asserting its rights
(e.g., through litigation or arbitration).

V. How to use negotiation

Objective of a Negotiation

Negotiations allow the parties to agree to an outcome which is mutually satisfactory. The
actual terms of the agreement must be concluded by the parties and can be as broad or as
specific as the parties desire. A negotiated settlement can be recorded in the form of an
agreement. Once signed, has the force of a contract between the parties. If the settlement is
negotiated in the context of a litigious dispute, then the parties may wish to register the
settlement with the court in conformity with the applicable rules of practice.

Negotiating Styles

Generally speaking, although the labels may vary from one commentator to the next,
negotiating styles can be divided into two categories:

Competitive/Positional-Based Negotiation

In the competitive model, the parties try to maximize their returns at the expense of one
another, will use a variety of methods to do so and view the interests of the opposing party or
parties as not being relevant, except insofar as they advance one's own goal of maximizing
returns. Competitive bargaining has been criticized for its focus on specific positions rather
than attempting to discern the true interests of the partiesFootnote3. Among the criticisms
which have been levelled at the competitive model are its tendency to promote brinkmanship
and to discourage the mutual trust which is necessary for joint gainFootnote4.
Cooperative/Interest-Based Negotiation

Cooperative or problem-solving negotiation starts from the premise that the negotiations need
not be seen as a “zero-sum” situation, i.e., the gains of one party in the negotiation are not
necessarily at the expense of the other partyFootnote5. Common interests and values are
stressed, as is the use of an objective approach, and the goal of the negotiations is a solution
that is fair and mutually agreeableFootnote6.

In recent years, the form of cooperative negotiating style known as principled bargaining has
won widespread acceptanceFootnote7. The proponents of principled bargaining believe that
bargaining over fixed positions can lead to situations where parties will either be stubborn
(“hard bargaining”) or accept unilateral losses (“soft bargaining”) in order to reach
agreementFootnote8. Principled bargaining, which attempts to reconcile the interests
underlying these positions, helps the parties to reach agreement and circumvent the problems
of hard and soft bargaining. It is this form of negotiation which is seeing increasing use. See
Part G “Steps of a Negotiation” for further discussion.

What is the Role of Justice Counsel in a Negotiation?

Simply put, a negotiator is supposed to advance the interests of the party that he or she
represents in order to obtain an optimal outcome. Beyond this general statement, the
functions to be performed by a negotiator will vary, depending on the mandate conferred on
her or him by the party.

In the most elementary form of negotiation, two or more parties work to achieve an
agreement between themselves. However, the parties can delegate representatives to act on
their behalf. These representatives include the following:

 members or employees who have been designated by the party in question;

 third parties (e.g., dispute resolution professionals, lawyers, labour negotiators, etc.)
whose services have been retained by the parties because of the negotiating skills of
these individuals rather than any involvement on the part of the latter in the dispute or
discussion in question.

The role of Justice counsel in a negotiation will vary with the circumstances and the mandate
of the negotiating team. The extent to which Justice counsel will participate in the
negotiations will depend on a variety of factors, including whether or not legal issues or
issues of mixed fact and law are at stake as well as whether the client department needs or
simply wants Justice counsel to participate actively in the negotiation. For example, counsel
with Legal Services Units work with their clients and on their behalf and help represent their
views in a variety of situations, e.g., formulating contractual terms concerning the
development of a project. In some cases, Justice counsel will have carriage of files such as
ongoing litigation and may be directly involved in negotiations, e.g., settlement conferences
in litigation files.

When negotiating on behalf of the client, counsel must ensure that there is no divergence
between his or her negotiating stance and the mandate of the client. This is best done through
following the client's instructions and providing frequent updates to the client. At other times,
client departments may ask the Justice counsel to participate as a member of the negotiating
team. Should the client be present at the negotiations, counsel must determine in advance
whether the client will actually participate in the negotiations. It is crucial for the success of
the negotiations that no divergences, real or apparent, emerge between the positions advanced
by Justice counsel and those proposed by the client. To avoid any such disclosures, counsel
and the client should clarify their respective mandates and formulate a common negotiating
strategy.

The choice of negotiating style will also be an important consideration, as a competitive

negotiator will view the bargaining exclusively in terms of advancing his or her interests and
will conduct the negotiations accordingly. The cooperative negotiator, however, will view the
issues in a fundamentally different light and will attempt to seek common ground with his or
her counterpart.

While the role of counsel will depend on the circumstances surrounding the negotiations, she
or he is always bound by the principles of professional ethics. For example, the Code of
Professional Conduct of the Canadian Bar Association states that when acting as an advocate,
the lawyer must treat the tribunal with courtesy and respect and must represent the client
resolutely, honourably and within the limits of the law. Although no two negotiations are
identical, counsel must apply these principles of professional responsibility in each
situationFootnote9. Counsel for the Department of Justice are bound as well by the provisions
of the Department of Justice Act, and relevant directives and policies which outline the
appropriate role for Justice counsel. Of note is the Treasury Board Contracting Policy, which
specifies negotiations as one means of resolving contractual disputes. Section 12.8.3 reads:
Efforts should be made to resolve disputes as they arise, first by negotiating with the
contractor. This can be through discussion between representatives of the contractor and the
contracting authority or by a more formal review established by the department or agency.
Contracting authorities should develop systems that ensure:

 prompt attention is given to disputes;

 unresolved disputes are brought forward quickly to a designated senior level in the
department or agency for decision;
 the decision is quickly communicated to the contractor so that the contractor may take
further action if so desired.

Counsel should also be aware of all other legislative and government policy requirements
including, for example, the Access to Information Act, the Privacy Act and the Official
Languages Act.

Dealing With Differences

Underlying any successful relationship is the principle of mutual respect. This is particularly
true during negotiations, where cultural and/or linguistic differences between the parties may
occasionally result in misunderstandings between them. Such differences will influence the
perceptions and assumptions of individuals and how they bargainFootnote10. Differences in
gender may also play a role in the negotiating process, whether the parties are of the same or
different cultural backgroundsFootnote11. Reliance on stereotypes, whether they be based on
gender, cultural, physical or racial differences or physical disability, will cause and reinforce
misunderstandings between the parties.

The ability to deal with others who are not of the same gender or cultural origin or who differ
in some way from one's self varies with each individual and the degree to which she or he has
been exposed to and is willing to accept diversity. Whatever one's background, clearly
demonstrating respect for and an open-minded attitude towards others is always an
appropriate course of action. When there are cultural or other differences among parties to a
negotiation, it is important to be aware of and sensitive to these differences. In such a
situation, it is essential to communicate clearly and effectively with the other party or parties
in a negotiation. Doing so will enhance the relationship between the parties as well as
minimize the chances of a misinterpretation of the underlying messageFootnote12.

Dealing With Difficult or Deceptive Conduct

At any point during negotiations, one party may decide to use a variety of tactics in order to
obtain an advantage over another party. This behaviour can range from pressure tactics
(attempting to force a party to accept specific terms), intimidation (implicit or explicit),
deliberate ambiguity regarding the scope of the negotiating mandate to blatantly unethical
behaviour (providing misleading or false information, lies, etc.)Footnote13.

Advance preparation is essential in order to respond effectively to these tactics, whenever

they may arise. In devising strategies to counter such behaviour, each situation must be
viewed as unique. Previous experience of others can provide useful guidelines in formulating
a suitable responseFootnote14. Awareness of basic communication techniques and strategies
on how to communicate with difficult or deceptive individuals may also be extremely helpful.
Ultimately, the choice of tactic(s) to be used to rebut difficult or unethical conduct is a
question of personal judgment, as what may be an appropriate response in one situation may
be excessive or too conciliatory in other circumstances.

 Preparing for a Negotiation

Initial Assessment
The negotiation process begins with a communication or signal from one party to the other
indicating a willingness to bargain. Since negotiation is a voluntary process, the first and
fundamental step to be taken is to confirm whether or not the other party or parties are
interested in negotiations. In making such an assessment, it is important to take into account
the following factors:

1. the desire to resolve the dispute;

2. whether a negotiated solution is in the interests of any or all of the parties in question;

the credibility of the other party(ies);

3. the willingness of the parties to establish or preserve a relationship;

4. whether or not there is a disparity between the parties to the extent that it would be
impossible to bargain equally, i.e., there is a marked contrast between the parties in
terms of the level of education or the resources of the parties;
5. the desirability of using another form of alternative dispute resolution, such as
mediation or arbitration; and
6. proper authority to enter into negotiations and to reach an agreement or settlement.

 Contacting the Other Party

Once it has been decided that negotiations are an appropriate course of action, arrangements
that must be made with the other parties include:

outlining the agenda and the scope of the negotiations;

fixing the timetable, i.e., whether or not there will be a fixed period for the talks as well as the
frequency and the duration of the negotiations;

determining the identity of the participants, ensuring that all interested parties have been
consulted;

choosing the locale for the negotiations (preferably a neutral location) and arranging
necessary support services;

specifying the official language(s) to be used for the purposes of the negotiations, as well as
the need for translation and interpretation services (please refer to the discussion of the
Official Languages Act).
deciding whether or not the negotiations and any resulting agreement will be confidential
(please see the discussion of the Access to Information and Privacy Acts).

Consistency in these matters will not only assist in ensuring the negotiations are as effective
as possible, they will also reinforce one's credibility and can thus contribute to establishing
mutual confidence and trustFootnote15.

 Preparation of a Strategy and Interest Assessment

A crucial factor in achieving one's goals in negotiation is thorough preparation. Therefore, it

is suggested that the following steps should be taken prior to any bargaining session:

Study the dispute in question before the negotiations. This means not only obtaining the facts
surrounding the dispute, but also attempting to find out as much as possible about the other
party or parties, their background and their negotiating interests.

Harmonize and reconcile the varying and sometimes competing interests within one's
negotiating side before negotiating with the other side Footnote16. Failure to do so can
undermine one's negotiating stance by making the other party aware of internal
disagreements and thus raising doubts as to one's ability to implement any future agreement.

When assessing one's interests as well as those of other parties, the Best Alternative To a
Negotiated Agreement (BATNA) must be taken into accountFootnote17. The BATNA is “the
standard against which any proposed agreement should be measured”Footnote18. It is, in
essence, the best of all the possible alternatives to negotiation should the latter fail. Assessing
one's BATNA is indispensable and should be done carefully and well in advance of any
bargaining session so as to avoid unpleasant surprises from the opposing party during the
negotiations. Attempting to estimate the BATNA of the other party will also be worthwhile
when planning one's negotiation strategy.

Creativity is necessary when attempting to devise solutions when at first glance the dispute
appears to be insoluble. An impasse will often result when the negotiating parties advance
specific positions and refuse to change them. Each party should then canvass the various
members of the negotiating team in order to obtain their views regarding possible solutions,
i.e., determining the parties' underlying interests and how they may be satisfied. This should
be done in an environment which encourages the team members to express their ideas freely
and without fear of criticism, e.g., a brainstorming session.
Thought must be given as to how the negotiations will be handled. For example, it must be
decided in advance whether there will be one spokesperson or whether each member of the
negotiating team will be responsible for one or more particular areas or topics. Another
consideration is fixing in advance when and how to call a private team caucus that will
interrupt the negotiations. Resorting to a caucus of team members is helpful when a new issue
emerges at the table or an issue on the table requires clarification or further analysis. Finally,
all members of the negotiating team should be aware of the need to resolve any internal
disputes away from the negotiating table and to avoid revealing any such disputes or doubts
to the other parties, e.g., through the use of inappropriate body language.

 Steps of a NegotiationFootnote19

Each negotiation has its own unique characteristics. There is thus no uniform and exclusive
manner governing the organization of a bargaining session. For example, the timing of an
offer and the question of which party is to make the first offer fall within the discretion of the
negotiator and are determined by the overall dynamic of a particular negotiation.

Negotiation Session

During any negotiation, the following considerations should be kept in mind:

Concentrate on interests, not positions. Try to focus on the underlying interests of all the
parties, i.e., their needs, desires, concerns and fears, and how they might be acknowledged
and reconciled.

Separate the people from the problem. Avoid blaming the other side for the problem(s) one
has encountered and discuss the perceptions held by each side. Ensure that there is effective
communication between all parties.

Listen carefully and actively to what the other side is saying and acknowledge what is being
said. This can be done through methods such as asking questions and by making frequent
summariesFootnote20.

Try to make the negotiations a “win-win” outcome by creating options for mutual benefit.
There is no need to wait until negotiations have begun, however, in order to develop these
options. They can and should form part of the development of the negotiating strategy,
although they are subject to modification in the course of the negotiation.

Creating these options implies a willingness to look beyond the limits of the issue(s) in
question. Doing this can be achieved through means such as brainstorming sessions with
one's negotiating team. Brainstorming can also be a joint exercise involving all the parties.
These sessions should be structured so as to allow all participants the opportunity to voice
ideas in a non-adversarial and non-critical environment.

Use objective standards. Citing objective standards such as legislation or government policies
enables parties to view the issues in rational rather than emotional terms and facilitates the
conclusion of an agreement. There is likely a variety of alternative objective criteria that
could be cited by the parties and, if possible, they should be identified by each negotiating
team prior to entering into the negotiating session.

Evaluate proposals of the other party and the progress of the negotiations in light of the
BATNA (Best Alternative To a Negotiated Agreement). It may become necessary to break
off the negotiations if there appears to be no way of achieving an outcome which is superior
to the BATNA. This can occur when it becomes apparent that the underlying interests
between the parties are irreconcilable or that the other side does not really want an agreement.

When necessary, feel free to stop the negotiations if there is a need for the members of the
negotiating team to confer on a new development. To avoid revealing the content of these
discussions, the caucus should be held in a private location which is preferably not visible to
the other side.

Stay within the limits of one's negotiating mandate. Ensure that there is constant
communication with the client when acting on the latter's behalf. The same principle applies
when bargaining in the governmental context; before committing the government to a
position Justice counsel must be clear as to the extent of her or his bargaining authority. More
specifically, counsel must be certain that they have received specific instructions as to
whether or not to conclude an agreement as well as the limits of the mandate, e.g., the limits
governing any offer to the other party as well as the degree to which other options can be
offered. As well, any agreement that is reached must respect existing laws and government
policies.
Prepare for the possibility of being confronted with provocative, intimidating, unfair or
deceptive behaviour of a party to the negotiationsFootnote21. At worst, it may become
necessary to end the negotiations, having carefully examined one's BATNA and having
concluded that termination is the preferable course of action.

Statutory/Policy Considerations

A negotiator's authority is limited not only by the mandate given by his or her principal or
client, but also by factors that may not be explicitly mentioned in her or his mandate, such as
existing statutes, regulations or government policies.

Justice counsel have a particular duty to ensure that any agreement reached does not breach
the terms of any law or policy directive. For example, the Minister of Justice has
responsibility for a number of federal statutes, including the Access to Information Act, the
Canadian Human Rights Act, the Canadian Bill of Rights, the Commercial Arbitration Act,
the Crown Liability and Proceedings Act, the Federal Real Property and Federal Immovables
Act, the Official Languages Act, the Privacy Act, and the United Nations Foreign Arbitral
Awards Convention. These statutes are cited here only as examples and are not intended to
provide a definitive list of federal statutes to be consulted by Justice counsel. Counsel should
examine the relevant federal, provincial or territorial laws which may be applicable to the
particular fact situation or client department.

Any agreement reached between the parties cannot override the terms of the Access to
Information Act, the Privacy Act or the Official Languages Act as these laws are of general
application. Please refer to sections ins “Confidentiality: Access to Information Act and
Privacy Act” and “Official Languages Act: Considerations” contained in this Reference
Guide for further discussion.

 Checklist for negotiation

Authority/Mandate to negotiate and reach an agreement or settlement

Willingness to negotiate

Credibility of other party(ies)

Ability to negotiate (equality?)

Alternatives to negotiation

Contact with the other party to arrange/confirm:

Agenda

Location (neutral)

Timetable

Participating parties

Public/Confidential nature (See statutory requirements, below)

Official Languages

Support services (word processing, etc.)

Preparation of a strategy and interest assessment:

Study the issues

Harmonize/reconcile competing interests within the team

Assess the BATNA (Best Alternative to a Negotiated Agreement) for all parties

Assign roles for team members (spokesperson(s), etc.)

Create options for mutual gain (“win-win”)

Consult relevant statutes (including the Access to Information Act, the Department of Justice
Act, the Official Languages Act, the Privacy Act) and relevant policy directives

Pointers for a negotiation:

Concentrate on interests, not positions

Separate the people from the problem

Listen carefully and actively

Respect the other party (e.g., any cultural, linguistic or other differences)
Create and propose options for mutual benefit (“win-win”)

Use objective standards

Assess progress in light of one's BATNA

Caucus if necessary

Anticipate and avoid responding to provocative tactics

Communicate frequently with the client

Remain within the limaits of the negotiating mandate

Mediation as An Appropriate Dispute Resolution2

2
http://www.legalserviceindia.com/legal/article-290-mediation-as-an-appropriate-dispute-resolution.html
The justice delivery system in India is known for the huge pendency of cases resulting in
undue delay. And â justice delayed is justice denied . The way forward to reduce the burden
may be taking recourse to ADR mechanism “commonly understood to be Alternative Dispute
Resolution, but more recently as Appropriate Dispute Resolution. These mechanisms could
be adversarial like arbitration or non-adversarial like mediation and conciliation. The Code of
Civil Procedure (Amendment) Act of 1999 inserted Section 89 in the Code of Civil procedure
1908, providing for reference of cases pending in the courts to the various ADR mechanisms
specified therein.

Non-adversarial ADR mechanisms like mediation are less formal, people-friendly, less
complicated and allow the disputant parties to freely interact and communicate with each
other to understand the root cause of their conflict, identifying their underlying interests, and
helps them focus on finding out the solution themselves. Such an approach rebuilds
relationships as also saves the time and money both the parties would spend in litigation.

While there is no stand-alone statute on mediation, the Supreme Court has examined in
Salem Advocate Bar Association v. Union of India 3 the meaning and scope of mediation, and
has formulated the Model Civil Procedure Mediation Rules to be framed by the High Courts.
Another judgment clarifying the law on mediation is that of Afcons Infrastructure Ltd. v.
Cherian Varkey Construction Co. (P) Ltd.4

Mediation And Brief Concept Of Mediation:

According to Black Law Dictionary, Mediation is a method of non-binding dispute resolution

involving a neutral third-party who tries to help the disputing parties reach a neutrally
agreeable solution.5

Mediation is a voluntary, party-centred, non-binding, confidential, and structured process,

where a rational and neutral third party, who possesses special communication, negotiation,
social and interactive skills to facilitate a mutual settlement between the disputant parties. In
mediation, the parties settle their disputes themselves on mutually agreed terms, leading to a
win-win situation. The approach in mediation is not to see the guilt or innocence of the
disputant parties, but to help the parties to focus on their interests and priorities. Mediation

3
(2005) 6 S.C.C. 344
4
(2010) 8 S.C.C. 24
5
Sukumar Ray, Alternate Dispute Resolution Along With The Gram Nyayalayas Act 72 (Eastern Law House
2012).
promotes active and direct participation of the parties. The function of the mediator is mainly
that of a facilitator.

Mediation is a confidential process and whatever transpires in the mediation is not subject to
disclosure without the written consent of all the disputant-parties. The mediator cannot be
called to the court or be asked to testify any of the proceedings or reveal any discussion that
took place during mediation. The statements made during mediation process cannot be
leaked. In India, mediation is still primarily Court-annexed. If a settlement is reached in a
Court-annexed mediation, then the mediator, or parties with the assistance of the mediator,
frames the settlement agreement, which is duly signed by the parties and the mediator and
then sent to the Court for passing of an appropriate order. In Salem Advocate Bar Association
v. Union of India, (2005) Supreme Court Cases 344, the Supreme Court construed Clause (d)
of Section 89 (2) of Code of Civil Procedure to mean that when the mediation succeeds and
the agreement is made on the consensus of both the parties, the mediator will send the report
of settlement agreement to the Court for the Court, after giving notice and hearing the parties,
to give effect to the compromise and pass a decree in accordance with the terms of settlement
accepted by the parties.

Should there be no settlement, the mediator sends a report to the Court stating that the
mediation was not settled and the reason for such non-settlement is not mentioned by the
mediator. Thus, mediation is a people-friendly, effective, efficient, less expensive, time
saving, less stressful and convenient process to resolve disputes with mutual respect and
without painting the other party black. The focus in mediation is on the future, with an
emphasis on building relationships, rather than fixing the blame for what has happened in the
past. It is perhaps the best way to part ways amicably and brings closure to the conflict.

Fundamental Rules Of Mediation Are As Follows:

1. A neutral mediator to conduct the mediation: A mediator should always be neutral, having
no personal or monetary interest in the dispute, or in either party.

2. Self-determination of the parties: Mediation is a process that is based on the self-

determination of disputant parties that is to say that the parties can make free choices keeping
their interest in mind. The mediator is thus responsible to conduct the process whereas the
parties determine the outcome of the settlement.
3. Confidentiality: The very essence of mediation is its confidentiality. The mediator should
take note:

 ˜That she and the parties shall maintain confidentiality in all the matters relating to the
mediation proceedings. The confidentiality shall extend to the settlement agreement,
unless there is a necessity for the disclosure in order to implement and enforce it.
 That it is not legally permissible for her, unless otherwise agreed to by the parties, to
act as an arbitrator or witness in any arbitral or judicial proceeding with respect to the
dispute which is the subject matter of mediation proceedings and the parties are also
not allowed to introduce such evidence.
 That the only information regarding the behavior of the parties might be reported is:
whether the parties appeared at a scheduled mediation and whether or not they
reached a solution.

4. Fairness of process: The mediation process should be a fair one. The parties should be
treated fairly and not arbitrarily and that their concerns should be addressed properly.

5. Voluntary process: The mediation process is impossible without the consent of the parties
involved. The parties are bound once they sign the settlement arrived at during mediation.

Approach Of The Mediator:

The mediator is an essential ingredient of a successful mediation. Mediator must be neutral,

and must be able to understand the underlying issues arising in conflict between the parties to
assist them in arriving at a mutual and voluntary agreement. A mediator should endeavour to
establish a channel between the disputant parties and facilitate the communication process
between the parties and during this process the mediator should use language that is mutually
applicable. The mediator should use simple words so that both the parties can easily
comprehend. The mediator should have appropriate posture, a calm-tone and moderate
behavior while dealing with the parties. The mediator should also take into notice the seating
arrangement, so as to ensure proximity, eye contact and audibility. As the mediator controls
the process, she should insist on decorum and order should the parties develop any heated
argument or starts losing their temper.

Under Rule 16 of Model Civil Procedure Mediation Rules, the role of a mediator is
mentioned. It states that the mediator shall attempt to facilitate voluntary resolution of the
dispute by the parties, and communicate the view of each party to the other, assist them in
identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of
compromise and generating options in an attempt to solve the dispute, emphasizing that it is
the responsibility of the parties to take decision which effect them; he shall not impose any
terms of settlement on the parties. While Rule 12 provides that the mediator is not bound by
the Evidence Act, 1872 and the Code, but should be guided by principles of fairness and
justice, having regard to the rights and obligations of the parties, usages of trade, if any, and
the nature of the dispute.

Mediation- Step By Step:

The following stages and sessions are to be followed in mediation:

1. Opening Statement- The mediator commences the session with an opening statement. It
should be a simple one using lucid language. Through this stage the mediator opens the
channel of communication between the disputant parties. Here the mediator takes the
responsibility to make the participating parties understand the very essence of mediation, give
a brief idea about the sessions and stages that needs to be followed, provide a roadmap of the
session, assure the parties about the confidentiality of mediation and also explains her role as
a mediator and highlights the non-adversarial aspect of mediation process like the absence of
recording of evidence or their statements.

2. The Opening Statement is followed by the following stages:

i. Problem Understanding Stage

ii. Needs and interests understanding stage

iii. Problem defining stage

iv. Issues identification stage

v. Options identification stage

vi. Options evaluation stage

vii. Ending mediation

Unlike litigation or arbitration, it is permissible for a mediator to speak to either party in a

private session, also known as a caucus. The mediator can choose to conduct the various
stages of mediation listed above in private sessions as well as in joint sessions as per
requirement.
It may also be emphasized that every kind of case is not suitable or appropriate for mediation
Cases involving, for instance, questions of Constitutional Law and heinous crimes which
cannot be mediated. Mediation is more appropriate for cases relating to matrimonial disputes,
custody and maintenance disputes, contractual breach, real estate disputes etc. Also, a case
must be for the parties to have a consensual mindset to reach a settlement. Certain cases can
therefore be more appropriately resolved through litigation or arbitration and certain kinds
through mediation.

Mediation: A Way Forward

This paper has dealt with mediation, meaning and concept, rules of mediation, approach of a
mediator and stages of mediation. The importance of mediation as an ADR way has gain
much importance and significance in the recent times. It may, however, be noted here that as
per the Souvenir- National Conference on Mediation 2012 by Mediation & Conciliation
Project Committee, Supreme Court of India, New Delhi, the success of mediation and its
acceptance varies across the country. The Souvenir gives the statistical number of mediation
activities carried on various states as on 12thMarch, 2012, showing the highest success rate of
mediation is 73.41% in Delhi and lowest being in the state of Goa.

In order to take mediation ahead and use it in the best possible manner, it is imperative to
spread its awareness amongst the public. More crucially, those engaged in mediation must
acquire mediation skills in a scientific and structures manner. Law students must be exposed
to mediation skills training at the University level itself. Lawyers or other professionals who
wish to mediate must undergo continuing professional development courses to hone their
mediation skills. It is only if those from a legal background have a crystalclear knowledge
about mediation that they can inform and guide their client to avail of the benefits of
mediation. Many relationships can be saved through mediation and also the burden of cases
upon the Courts will reduce. Encouraging, mediation as an Appropriate Dispute Resolution
mechanism may well be the way forward for ensuring speedy delivery of justice.