Name Rahul Bhardwaj

Section Section D

Centre LC1

Class roll No 206540

Exam Roll no 151419

TASK I

(I) Preferred strategies used to achieve the objective are as follow :

a) SALAMI : It is a technique used to achieve an objective a little bit at a given single time
instead of in one giant step.

Reason : In the present case as Frank on behalf of the Shanghai Pvt Ltd first of all we
want to establish that Shakti Automative Limited was wrong in interpreting our product
as sub standard and they ought to face the dire consequences.
Moreover, Shakti Automative has made an exclusive distributorship deal with Neutron
Enterprises while our contract was still in force . This is one other fault from their side.

We accept that our relationship is not so cordial these days but as we worked for a very
long period of time, there has been a clean past record of our professional relationship.
But due to this remark, we have faced a lot of embarassment and harm of reputation ,
therefore the amount claimed is not appropriate and it should be evaluated again.

b) Standard Practice : It is a strategy used to convince others to do or not to do something

because of so called , standard practices. It often works very well because it infers that it
is the best way to do what ever needs to be done and is probably a safe approach

Reason : As it was well settled through the signed contract that companies would not
disclose any confidential information or publish or say any derogatory comment during
or even after the termination of business with each other that will harm the reputation
of the company or the products in the market.

But Yashvir called our products ‘sub- standard’.

It was clearly mentioned in the contract that Shakti Automative would not accept any
other distributorship from any other company but they did so. This does not fall under
the category of standard practices.
 c) Feinting : It gives the impression one thing is desired when the primary objective is
really something else.

Reason : In present situation we ultimately desire to reduce the amount claimed by Shakti
Automative. So we need to make them realized that they broke the contract and passed lose comments
in public which affected our reputation. Therefore , they are not entitled to charge such a hefty amount
of money

d) Apparent withdrawl : It may include one deception as well as deferring and feinting. It
attempts to make other negotiater believe you have withdrawn from consideration of
an issue when you have really not.

Reason : We would establish that we are not proceeding to pay the amount that has
been claimed by SHAKTI .But we know that SHAKTI are not entirely wrong in their claim .
So our motive is to make them reduce the compensation amount by stating that we
would not be paying the amount . They are at the fault and it was their mistake. Then
they will have to agree to accept a midway and reduce their claimed amount.

II)

BATNA

a) Litigation

Reason : We have too strong a case to win. Considering the below mentioned points, favour the ball in
our court :

i) Shakti Automative harmed our reputation by calling our product as sub standard .
ii) They have accepted another exclusive distributorship by Neutron Enterprises even when our
contract is still subsisting which in itself is a breach of contract.
iii) We have a strong chance of winning the case in the court.

b) Arbitration: As we have a strong case against SHAKTI Automative , we wil try and
convince the arbitrator to get the award in our favour.

WATNA

a) The worst scenario could be that we lose our case in the court and we need to pay the court
fees and the damages because deep down we know that Shakti Automobile is not entirely
wrong in their claim.
b) Arbitration award not in our favour
 In worst case scenario it could happen that arbitrator would give the award against our favour .
Then we would have to go to the litigation and it may happen that we lose the case there as
well.

Bottom line

We will not agree to the terms and conditions of Shakti Automative Pvt Ltd. We will pay only
25% of the amount claimed and we also demand them to apologie and bear the consequences
of the loose statement made in public which have tarnished our company’s image drastically .
They have signed an agreement with other dealer as well. If this dos not work in our favour we
will go for litigation or arbitration. We will not divert from this bottomline.

TASK II

1) Opening Statement

Good Afternoon , my name is Rahul Bhardwaj and I am serving as your mediator today. I am a
certified mediator trained to assist in resolving disputes such as the one before us today. I am
pleased to be here to assist you in working through your issues and believe you will find
mediation to be a very helpful process. Thank you for committing to be here today.

Let me begin by stating that I am not acquainted with the parties involved in this dispute. So ,
Gentleman (Frank) you are humbly requested to calm down and please be patient. Your turn will
come.Please silent all your electronic devices during the mediation and if any of you have a
special need during the session , please let me know now or at any time during the session.

Mediation is a voluntary process in which a neutral, impartial person assists parties who want to
generate options for resolving their issues.
My role as the mediator is to facilitate the discussions and negotiations and help you capture
any agreement into appropriate settlement term. Your attendance at this mediation does not
imply any admission of guilt or wrongdoing. How would each of you like to be addressed in the
session ? Do you have the authority to settle and sign an agreement if one is reached ?
Are you all here voluntarily ?

I am not here to represent any particular side and will not provide advice or guidance. I have no
power to impose a decision on you or to decide how this matter should be settled. This is where
 mediation differs from other forms of dispute resolution. You are empowered with the ability to
design your own solution that meets your needs and addresses your interests.
To proceed further, let’s set some ground rules. Each of you have to participate in good faith . It
means that you are entering with an open mind , that you will be respectful of the other person,
and that you will listen to the other. Secondly, confidentiality is a critical part of this process. I
am bound by law not to disclose this information voluntarily. Most importantly , one party shall
not interrupt the other in the proceedings .
Moreover, this is not a legal proceeding. Now, please allow me to throw some light on the
process of this mediation. Each of you will have an uninterrupted period of time to explain what
brought you to this session and to describe this problem as you see it. Let’s abide by the rules of
the common courtesy and void interrupting or using inflammatory language. Once you both
would give an overview , we will transition into a joint session where we can more fully discuss
the nature of the workplace dispute as well as negotiate possible solutions to resolve it. At
some point , I may meet with each of you separately. This is called a ‘caucus ‘ or individual
meeting. The information shared during caucus is confidential and will not be shared during the
joint session unless you specifically give consent to such disclosure.

Are there any questions at this point ? If not , let’s begin . I know very little about the dispute so
please tell us what brings you to mediation.

II)

Three Questions to Frank in the private session :

a) What changed business practices in distribution system made you sent the notice to SHAKTI
AUTOMATIVE LIMITED expressing your company intentions not to renew the agreement on its
expiration ?
b) Despite the fact that the proposed seventh distribution agreement was drafted by your side and
duly signed by Shakti Automative , why you did not sign the agreement ?
c) Had you made up your firm decision of not doing getting involved in any business relation with
SHAKTI beforehand , and if yes what was that specific reason and if no why you did not go ahead
with the deal inspite of such a professional and cordial relationship with them ?

Three Questions to Yashvir in the private session :

a) Why did you enter into agreement with NEUTRON ENTERPRISES PVT LTD in the midst of the
internal discussions with SHANGHAI were going on ?
 b) What exact reason provoked you to make that additional comment in the public conference
regarding your past dealings when already you had answered the journalist’s question in
negative by saying that “ I will not sue Shanghai “ ?

c) As per Shanghai, the changed business practices forced them to withdraw the agreement ?
Could you elaborate what were those business practices ?

III) Joint Session :

The points to be taken into consideration are as follow:

a) The main priority would be to gather as much as information about the factual background from
the parties themselves . What their respective claims , defence , arguments and positions are.
What are the underlying interests of the parties are ?
b) As for good mediation, a nice environment conducive for constructive negotiations is required I
would try my best to maintain the decorum of the mediation session .
c) I would remain completely impartial and neutral and would not let know any of the party about
the merits and demerits of the case .
d) I would be a good listeners , don’t jump to the conclusions and would be careful in note taking.

CAUCUS or Private Session :

a) I would let the parties vent out their charged up feelings and emotions and would make it
sure that I would be impartial throughout the session.
b) I would gather more information by asking more questions.
c) I would encourage the parties to invent settlement options.
d) Would try to orally confirm a settlement in a separate session with the parties if any.

(IV) Settlement Points

Two points as a mediator I will would be in settlement agreement would be

a) A public apology from SHAKTI stating his words have been taken out of context and confirming
that the professional relations between the two companies have always been cordial and
SHAKTI took it as a proud that they were SHANGAI’s client in the past.
b) Some amount of compensation may be paid to SHAKTI (after offsetting both parties claim to an
extent) as SHANGHAI would not want to burn the bridges with them after working for so long.
 TASK III

DRAFT ARBITRATION CLAUSE

ARTICLE 1. Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be administered by the International Chamber of
Commerce in New Delhi in accordance with the ICC rules on Arbitration in force at the commencement
of the arbitration.

ARTICLE 2. The arbitral tribunal shall consist of 3 arbitrators to be appointed as follow:

The claimant shall appoint an arbitrator in the request for arbitration and the respondent shall appoint
an arbitrator in the reply. The arbitrator selected by the claimant and by the respondentshall, within ten
days of the receipt of reply by the claimant, appoint a third neutral arbitrator.

Should the parties fail for any reason,” arbitrators shall be appointed as provided in the ICC Arbitration
Rules.”

ARTICLE 3. The language of the arbitration shall be English.

ARTICLE 4. For the avoidance of doubt, the arbitral tribunal may decide to convene its meetings at any
other location either for convenience or taking evidence , without affecting the agreed seat of
arbitration as set out in sub clause (1) above.

ARTICLE 5. INDEPENDENCE AND IMPARTIALITY : Prior to the commencement of the arbitral

proceedings, each of the appointed arbitrators shall provide an oath or undertaking of impartiality.

ARTICLE 6. Qualifications of Arbitrators: The arbitrators selected shall possess the following
qualifications:
(i) The arbitrators shall be practising attorneys actively engaged in the field of
arbitration for a period of at least ten years.
(ii) The third arbitrator to be selected mutually by the parties should be an expert
in the field of International Commercial Arbitration related to automobile
industry.
(iii) The arbitrators should be of a nationality other than the nationalities of the
parties.

ARTICLE 7. Fast-track Procedure: The arbitral award shall be made within six months of the filing of
the notice of intention to arbitrate. The arbitral tribunal may extend this time limit in its discretion if it
considers that the interest of justice so requires. The arbitral tribunal shall use its best efforts to issue
the final award within such time period. The arbitral tribunal’s failure to make a final award within this
time limit shall not be a basis for refusing to comply with or for challenging or resisting enforcement of
any such award.

ARTICLE 8. Interim Relief: Either party may apply to the arbitrator seeking injunctive relief until the
arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without
waiving any remedy under this agreement, seek from any court having jurisdiction any interim or
provisional relief that is necessary to protect the rights or property of that party, pending the
establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of
the controversy).

ARTICLE 9. Award: The parties agree that any award(s) made by the arbitral tribunal under this
arbitration clause shall be final and binding on the parties, and each party waives to the fullest
extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any
form of appeal, annulment, action to set-aside or vacate, collateral attack or any other challenge
to such award(s).

ARTICLE 10.Costs: All costs and expenses of the arbitrators shall be borne by the parties equally, each
party shall bear its own costs and expenses including fees of its counsel, witnesses and presentation of
its case.

ARTICLE 11. Non-appearance of a party: The non-appearance of either party may result in an ex-parte
decree or award. Before passing the ex-parte the arbitrators must inform the concerned party about
their intention to proceed ex-parte.

ARTICLE 12. Reasoned award: The arbitral award shall be made in writing and be signed by the
arbitrators. It must be accompanied by a reasoned opinion.

ARTICLE 13.Confidentiality: The parties agree to keep confidential all awards in any arbitration
conducted under this clause, together with all materials submitted or exchanged in any such
arbitration (including all documents and other materials produced by another party in such
arbitration), except insofar as such documents are already in the public domain or to the extent that
disclosure may be required by legal duty, to protect or pursue a legal right, or to recognize, enforce, or
challenge an award in legal proceedings before a court or other judicial authority.