A RESEARCH ASSIGNMENT ON

“TOPIC NAME”

SUBMITTED TO:
(Mr. VISHAL BERA)

(ASSISTANT PROFESSOR)

(FACULTY OF “SUBJECT NAME”)

SUBMITTED BY:

SOMYA MERTIA
ROLL NO.-

17IUDFFN…..
BATCH (2000-2010)

DATE OF SUBMISSION:

ICFAI LAW SCHOOL,

ICFAI UNIVERSITY, DEHRADUN
 DECLARATION

I, ………….., student of ……………., hereby declare that the project work entitled
“………………………………” submitted to the ICFAI Law School, ICFAI University,
Dehradun is a record of an original work done by me under the guidance of Mr. Vishal Bera,
teacher in subject, ICFAI Law School, ICFAI University, Dehradun.

Date: Name:

Roll No.

Batch

i
 CERTIFICATE

This is to certify that the project report entitled “……………………..” submitted by name in
partial fulfilment of the requirement for the award of degree of “Batch” to ICFAI Law
School, ICFAI University, Dehradun is a record of the candidate’s own work carried out by
him under my supervision. The matter embodied in this project is original and has not been
submitted for the award of any other degree.

DATE: (Mr. Vishal Bera)

Teacher in subject

ii
 ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Mr. Vishal Bera without whose constant
support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
ICFAI Law School, ICFAI University, Dehradun.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name:
Roll no

Batch

iii
 LIST OF ABBREVIATIONS

AIR All India Reporter

Cri. LJ Criminal Law Journal

HINDU L.R. Hindu Law Reporter

SCC Supreme Court Cases

iv
TABLE OF CASES

v
 CONTENTS

TOPIC PAGE NO.

 DECLARATION i

 CERTIFICATE ii

 ACKNOWLEDGMENT iii

 LIST OF ABBREVIATIONS iv

 TABLE OF CASES v

CHAPTER-I:

CHAPTER-II:

CHAPTER-III:

CHAPTER-IV:

MAJOR FINDINGS

CONCLUSION

SUGGESTIONS

BIBLIOGRAPHY
 MAJOR FINDINGS OF THE PROJECT

INTRODUCTION-

Mediation and Arbitration are forms of alternative dispute resolution (ADR) that are intended
to avoid the high cost and unpredictable outcome that could result from a lawsuit. Both
mediation and arbitration are private forms of dispute resolution. This means that, unlike a
court case, they are not a matter of public record. This confidentiality may be an extremely
important feature to one or both of the parties involved in the dispute. Mediation and
arbitration can also allow the parties to establish their own ground rules for settling their
dispute, including what types of evidence can be presented, what kinds of experts can be
consulted, and the concepts on which the final agreement or decision will be based.

Of the two, mediation is a more informal process for resolving a dispute. The mediator is a
neutral third party who helps the parties negotiate a resolution to their dispute. In mediation
the parties are responsible for coming to an agreement; it is not the mediator's job to make or
impose any decisions on the parties. The mediator listens to both sides and offers suggestions
that are supposed to help the parties come to a resolution. The advantage to mediation is that,
since both parties participate in resolving the dispute, they are more likely to carry out the
settlement agreed upon. A disadvantage to mediation is that the parties may not be able to
come together on an agreement and will end up in court anyway.

WHAT IS MEDIATION? –

Mediation is a voluntary process wherein two or more parties to a dispute try to resolve their
differences with the assistance of a neutral, disinterested third party, who has knowledge in
conflict resolution and passed a training in mediation, negotiation and human relations. In
most instances, the cost of the mediator is shared equally between the parties. The cost of
retaining a mediator to assist in resolving a dispute will vary depending on such factors as the
experience level of the mediator, how busy he or she may be the nature of the dispute, the
complexity of the issues presented, and the number of involved parties. Most private
mediation centers bill for their mediator’s time on an hourly basis however, others bill a flat
fee for a half or full day. Mediation is not, like arbitration or trial, adversarial in nature. As
such, parties to a dispute can mediate their differences without an attorney.. Anything said
during mediation is inadmissible in court. Thus, it is not uncommon to see parties who
partake in a mediation sitting together in a conference room and, with the assistance of the
mediator, working toward identifying the contested issues and then brainstorming to resolve

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them. Mediation is a give and take process where there is no declared winner and no declared
loser. The mediator search for the common interest of the parties in conflict, to a win-win
solution, that answer the interest of both. A mediation agreement can have the approval of the
Court as a verdict.

For mediation to be successful, it is important that the mediator keep up to the process that
can make the change – from confrontation to collaboration. Mediation is favored and
recommended in cases involving neighborly disputes, family disputes, or where parties to a
lawsuit involving a claim for monetary damages believe that with the intervention of a neutral
third party, a settlement can be achieved. Mediation is also used in Business, commercial and
consumer conflicts. Mediation is often the easiest and most cost effective way to resolve
disputes. The major drawback to mediation is that if no resolution is achieved, the other side
will, by virtue of disclosures in mediation, have a better feel for what theories or claims (and
strengths and weaknesses thereof) one might proffer in litigation. Mediation is used in
divorce and family disputes. Mediation is a systematic process. Parties to the conflict use
intermediaries—professionals who specialize in mediation—to reach an agreement. When it
is important to continue a normal relationship between the disputing parties, mediation is a
particularly suitable method. It is also well suited for parties who wish to end a relationship in
a dignified manner. In Business, Partnership, Marriage, etc…. For these reasons, mediation is
particularly suitable for all family disputes and divorce proceedings. During mediation,
spouses meet under favorable conditions and within a relaxed atmosphere with a professional
mediator. Mediation relieves tension and helps each party to define clearly his or her position
on various issues. The mediator facilitates rational and practical communication in order to
make decisions about a family’s future (e.g. property division, childcare, family economics,
et cetera). The mediator is an objective and neutral, does not take sides in favor of one party
or the other, and does not make decisions for the family. The couple’s decision forms the
basis of the divorce agreement, and will be considered valid after approval by a family court.
All procedures and content of the mediation process will remain secret from the Court or any
other formal or informal organization or person. No minutes at the mediation room. The
Israeli Court approved in a verdict that a mediator is not obliged to give an evidence in the
Court or to discover any information given by any of the parties in the mediation room.
Parties are not allowed to invite a mediator to submit an evidence to the court in any way –
not in writing and nor oral.

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Mediation has definite stages involving a series of techniques for accomplishing necessary
tasks. The main element in the work of the mediator is to distinguish between statements and
interest, between the known to the hidden. Considerable efforts have been made to regulate
mediation within the legal system. In Israel, for example, agreement reached through
mediation process, will get the verification of the court, which will give the agreement
reached a verdict, as if there was a court case. This process has encouraged people &
organizations, to seek mediation as a means of solving conflicts, and as a dialogue for
consensus building, especially in multi-cultural societies.

WHAT IS THE ARBITRATION?-

Arbitration differs little from a bench trial (a trial in which the judge serves as trier of fact as
opposed to a jury fulfilling that role). Arbitration may be binding or non-binding. Binding
arbitration is usually by agreement of the parties with each expressing, in a writing, a
willingness and commitment to be bound by whatever decision the arbitrator may reach.
Non-binding arbitration affords the losing party the opportunity to seek a trial de novo (a trial
on the merits without regard to the arbitrator’s findings) however, there are often penalties
imposed on the party requesting the trial de novo if he or she does not achieve a better result
in trial than achieved in arbitration. The cost is similarly based on an hourly rate or half or
full-day basis. In advance of arbitration, with all sides usually represented by counsel because
arbitration is an adversarial proceeding, the arbitrator will be provided briefs detailing the
positions, arguments and demands of each side. The rules of evidence in arbitration
proceedings are quite liberal. As such, documents and other writings that might be excluded
from evidence in a trial will be received and considered in arbitration. Arbitration will
proceed in whatever fashion the parties’ desire. MEDIATION AND other techniques (known
generally as Alternative Dispute Resolution – ADR) are highly effective alternatives to
litigation. There is considerable recent literature on mediation and other alternative dispute
resolution (ADR) techniques, in English as well as in Hebrew. Much of this literature
provides anecdotal or statistical evidence to support the assertion that these techniques are
effective in practice and provide certain advantages when compared to the traditional
adversarial process of litigation. Mediation arose with the raise of the ADR (Alternative
Dispute Resolution) movement in the USA as critiques that the legal system at the Court does
not help to bring Justice, but causes costly delays and damaged relationships.

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Arbitration is a more formal process for resolving disputes. Arbitration often follows formal
rules of procedure and the arbitrator may have legal training that a mediator does not. The
arbitrator is a neutral third party, but should have some expertise in the area that is the subject
of the dispute. The parties should agree on who the arbitrator will be or on how he or she will
be selected. Unlike a mediator, the arbitrator has the authority to make determinations and
decisions that are binding on the parties. The arbitrator's job is to listen to both sides and then
make a decision that is mutually binding on both parties. Arbitration avoids the risk that the
parties won't agree and will end up in court anyway because the arbitrator makes the
decisions and they are legally binding. However, the disadvantage of this is that one or both
parties may be more dissatisfied with the result.

4
 CONCLUSION
Both processes have their advantages and disadvantages. The main advantages they both
have over a trial are the savings of cost and time, and a greater degree of predictability in the
outcome. For a small business owner these could be extremely important considerations.
There are also potential disadvantages to using mediation and arbitration. Since these
alternative procedures are not bound to follow legal precedent in coming to a decision, parties
cannot count on legal precedent to be determinative of the result. The parties may also have
difficulty choosing a mediator or arbitrator that they are truly satisfied will be neutral or
impartial.

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SUGGESTIONS

6
 BIBLIOGRAPHY

 Books:

 Articles:

 Websites:
*********