Alternative Dispute Resolution Test II Material

Questions for Test:

1. What is Conciliation? Explain the process of Conciliation under A & C Act
or
Explain different styles of Negotiation
2. What is Mediation? Explain the stages of Mediation
or
Discuss essential characteristics of Mediation process.
Short Notes
1. BATNA WATNA MLATNA
2. Conciliation under family courts Act
3. Qualities of a mediator

Different styles of Negotiation

Negotiation is a dialogue between parties to a dispute in an effort to resolve the differences
and arrive at a settlement. Negotiation is an art of finding an agreement to a dispute and can
be related to everyday problem solving, be it in business with spouses or friends.
Traditionally there are 5 forms of Negotiation which characterise the approach of resolving
disputes. Therefore, these styles of Negotiation are to be understood as the means of striking
a deal.
1. Accomodation: I LOSE YOU WIN
This form of Negotiation is unassertive and cooperative and often referred to as “soft
positional bargaining”. The interest in this style of negotiation is to ensure that the other
party finds a solution which is satisfactory. it requires sacrifice to be made by one or
both the parties. This form of negotiation reinforces the power imbalance in the
relationship and therefore makes it more difficult to change the status quo in the long
term. However, it is seen to be an effective tool in improving or maintain relationship
between the parties and therefore widely used in personal disputes such as those related
to family matters.
2. Avoidance: I NEITHER WIN NOR LOSE, U NEITHER WIN NOR LOSE
While this style of Negotiation is also unassertive, it is also understood to be
uncooperative wherein the parties involved do not seek to confront the problem but to
avoid it. It is seen as an effect negotiation instrument where there is an imbalance of
power. The use of this style can be either to provide more time to consider one’s
position (the immediate stands that parties take) or to defuse further conflict. It must
 however be noted that in most situations little or nothing is achieved by adopting this
style of dispute resolution.
3. Collaboration: I WIN, U WIN
Seen as a more effective form of negotiation, collaboration involves an assertive,
cooperative and constructive approach to problem solving, also called; interest-based
negotiation’ wherein interests of the parties resulting from human needs are given more
weightage than their position. this is achieved by understanding the issue and providing
mutually acceptable solution that satisfies the interests of the parties to a great extent.
While adopting this form of negotiation it must be kept in mind that this approach is
only effective if both parties are willing to examine each possible option and choose
what they need and not what they want.
4. Competition: I WIN, U LOSE
In contrast with accommodative style of negotiation, this form of problem solving is
assertive as well as uncooperative often called ‘hard positional bargaining’ because
either of the parties has to take a stand on the outcome of the negotiation. As opposed
to collaboration form of negotiation, in a competition negotiation parties focus on what
they want rather than what their interests are.
5. Compromise: I WIN SOME, U WIN SOME / I LOSE SOME, YOU LOSE SOME
This style of negotiation is a moderate mixture of assertiveness and cooperation where
the parties have to recognise that both sides have to give up something in order to arrive
at a settlement. This style is also used as a tool to resolve a statement in order to
facilitate movement in the negotiation. The undertone in this form of negotiation is’lets
just split the difference’. It is an effort to reach a settlement both parties have to gain
as much as possible while giving up as little as possible.

Stages of Mediation
Mediation is essentially a search, for a solution, by the parties to the dispute,
themselves, under the guidance of a third party. Mediation is a process, facilitation, an
empowerment. Mediation may be thought of as assisted negotiation. Negotiation may
be thought of as a communication for agreement. Hence, Mediation is assisted
communications for agreement.
A structured mediation process is a multi - stage process which helps the parties reach
a conclusive and mutually satisfactory agreement. The Mediation and Conciliation
Project Committee of Supreme Court of India has explained certain functional stages
of mediation process, which are detailed as follows:
1. Introduction / opening statement.
2. Joint Session
3. Separate Session
4. Closing
 1. STAGE 1: INTRODUCTION & OPENING STATEMENT
Introduction

 To begin with, the mediator introduces himself by giving information such as his name,
areas of specialization if any, and number of years of professional experience.
 Then he furnishes information about his appointment as mediator, the assignment of
the case to him for mediation and his experience if any in successfully mediating similar
cases in the past.
 Then the mediator declares that he has no connection with either of the parties and he
has no interest in the dispute.
 He also expresses hope that the dispute would be amicably resolved. this will create
confidence in the parties about the mediator’s competence and impartiality.
 Thereafter, the mediator requests each party to introduce himself.
 The mediator will then request the counsel to introduce themselves.
 The mediator will then confirm that the necessary parties are present with authority to
negotiate and make settlement decisions.
 The mediator will discuss with the parties and their counsel any time constraints or
scheduling issues
Mediators opening statement
opening statement is an important phase of mediation process. The mediator explains in a
language and manner understood by the parties and their counsel, the following
 Concept and process of mediation
 Stages of mediation
 Role of the mediator
 Role of advocates
 Role of parties
 Advantages of Mediation
 Ground rules of mediation
STAGE 2: JOINT SESSION
 The mediator should invite parties to narrate their case, explain perspectives, vent
emotions, and express feelings without interruption or challenge. first the
plaintiff/petitioner and then defendant/respondent.
 The mediator should encourage and promote communication, and effectively manage
interruptions and outbursts by parties.
 The mediator may ask questions to elicit additional information when he finds that facts
of the case and perspectives have not been clearly identified and understood by all
present.
 The mediator would then summarize the facts, as understood by him, to each of the
parties to demonstrate that the mediator has understood the case of both parties by
having actively listened to them.
 Parties may respond to positions conveyed by other parties and may, with permission,
ask brief questions to the other parties.
  Mediator shall identify the areas of agreement and disagreement between the parties
and the issues to be resolved.
 Mediator should be in control of the proceedings and must ensure that parties do not
‘take over’ the session by aggressive behaviour, interruptions or any other similar
conduct.
STAGE 3: SEPARATE SESSION
i. RE-AFFIRMING CONFIDENTIALITY: During the separate session each of the
parties and his counsel would talk to the mediator in confidence. The mediators
should begin by re-affirming the confidential nature of the process.
ii. GATHERING FURTHER INFORMATION: The separate session provides an
opportunity for the mediator to gather more specific information and to follow up
the issues which were raised by the parties during the joint session.
followed by:
o Asking effective questions
o Discussing the strengths and weaknesses of respective cases
o consideration of the consequences of any failure to reach an agreement
(BATNA/WATNA/MLATNA analysis)
STAGE 4: CLOSING
1. Where there is a settlement:
 Parties and their advocates re-assemble
 Mediator orally confirms the terms of settlement
 Such terms of settlement are reduced to writing
 agreement is signed by all the parties to the agreement and the counsel if any
 Mediator may affix his signature on the signed agreement, certifying that the
agreement was signed in his/her presence.
 A copy of the signed agreement is furnished to the parties
 The original signed agreement sent to the referral court for passing appropriate
order in accordance with the agreement
 As far as practicable the parties agree upon a date for appearance in court and
such date is intimated to the court by the mediator.
 The mediator thanks the parties for their participation in the mediation and
congratulates all parties for reaching a settlement.
2. where there is no settlement:
 If a settlement between the parties could not be reached. The case would be
returned to the referral courts merely reporting ‘not settled’. The report will
not assign any reason for non-settlement or fix responsibility on any one for
the non-settlement. The statements made during the mediation will remain
confidential and should not be disclosed by any party or advocate or mediator
to the court or to anybody else.
 The mediator should in a closing statement thank the parties and their counsel
for their participation and efforts for settlement.
Essential Characteristics of Mediation process
1. Voluntary
It is a voluntary process
2. Collaborative
The disputant parties are encouraged to work together to solve their problems and to
reach, what they perceive to be, the best agreement.
3. Controlled
Parties have total command over process and decision. They have complete decision-
making power and a veto over each and every provision of any mediated agreement.
Nothing can be imposed forcibly on anyone.
4. Confidential
Mediation is confidential, to the extent parties desire and agree, be that by statute,
contract, rules of evidence or privilege. Mediation discussions and all materials
developed for mediation are not admissible in any subsequent court or other
contested proceeding, except for a finalised and signed mediated agreement. The
mediator is obligated to describe any exceptions to this general confidentiality of
mediation. Confidentiality in mediation may be waived in writing, although the
mediator may retain his or her own ability to refuse to testify in any contested case.
The extent of confidentiality for any caucus meetings (private session) should also
be defined.
5. Informed
The mediation process offers a full opportunity to obtain and incorporate legal and
other expert information and advice. Mutually acceptable experts can be retained.
Such jointly obtained expert information can be designated as either confidential to
mediation or as the parties’ desire, as admissible in any subsequent contested
proceeding. Expert advice is never determinative in mediation. The parties always
retain decision making power. Mediators are bound to encourage parties to obtain
legal counsel and to advise them to have any mediated agreement involving legal
issues reviewed by independent legal counsel prior to signing. Whether legal advice
is sought, is ultimately a decision of each mediation participant.
6. Impartial, Neutral, balanced and safe
The mediator has an equal and balanced responsibility to assist each mediating party
and cannot favor the interests of any one party over another, nor should the mediator
favor a particular result in mediation. The mediator is ethically obligated to
acknowledge any substantive bias on major issues in discussion. The mediator’s role
is to ensure that parties reach agreement in a voluntarily and informed manner, and
not due to coercion or intimidation.
7. Self- responsible and satisfying
Research has proved that having actively resolved their own conflict, the likelihood
of compliance by the parties dramatically elevates due to the process of mediation.

Qualities of a Mediator
There can be a long list drawn of the qualities, which a mediator should possess.
They sometimes come from how one looks at the mediation or the kind of mediation
a person is involved in. The attempt here is to lay down a few basic qualities, which
every mediator should have. They are as follows:
Trust
One can work as a mediator so long as he or she enjoys the trust of the parties. A
party may never come to know what goes through the mind of a mediator. The parties
communicate to the mediator in confidence that their secrets will not be revealed to
others unless he or she himself or herself so desires. All this is possible only and only
when they completely trust that the mediator will not act in any one’s favor
particularly but will work in the best interest of both the parties
Neutrality
The faith reposed by the parties in the mediator at the time of his appointment needs
to be maintained not only till the entire proceeding is over but also there after. This
faith should not only exist but also seen to be existing all the time. Neutrality is that
overt act or those overt acts of a mediator, which give reason to the parties to believe
that they can continue to have faith in him. A mediator should never give an
impression that he is leaning in favor of any of the parties. It is the neutrality, which
reinforces trust.
Confidentiality
Some times the disputes on the face of it look to be entirely different from what they
actually are. The parties divulge a lot of personal details to the mediator in confidence
that they will not be shared with not just the other party but also with no one else.
They 3 may not be directly connected with the dispute but relevant for negotiations.
It is an unwritten promise that a mediator would maintain confidentiality at all costs.
Confidentiality is just another facet of trust.
Listener
One should know in most of the cases personal grievances precede the actual dispute
or it is the personal grievances, which swell into bigger disputes. When the parties
walk into mediation, they carry a lot of emotional baggage. They look for an
opportunity to offload that from their chest. They look for an opportunity that some
one hears them. Once a party goes with a feeling that the he has been heard to his
satisfaction then a mediator may consider he has won half of the battle
Do not try to grab all the credit
A mediator may be the chief architect of the final settlement between the parties but
still he should not take all the credit for it. Conceptually a mediator only mediates to
help the parties to reach a negotiated settlement. He, therefore, should give credit to
the parties to have settled the dispute to get the best deal.
Punctuality
Traditional litigation is not only time consuming but also in such litigations the
adhering to schedules is very difficult. Most of the people who opt for mediation do
so because they feel that the mediation will yield early results. There object of
coming for mediation would be defeated if it becomes an equally time-consuming
process.
Act within four corners of law
Mediation proceedings have the sanctity of law. It gives a mediator the freedom to
adopt procedure of his/her own to resolve the dispute between the parties. A mediator
should never lose sight of the fact that the settlement arrived before him can be
challenged if it is patently against the law or the public policy or he adopted the
procedure which no reasonable person would ever undertake.
Knowledgable
In case of, however, court annexed mediations or the mediations, which have
pronounced legal consequences, it is desirable and sometimes also necessary that he
should have some legal background or exposure. Once the negotiations are over a
mediator is required to help the parties draw the terms of settlement. These
settlements should be such that they would not fall apart once they are tested on the
touchstone of law. This can only be achieved if the mediator has the knowledge of
the subject matter of the dispute and the law related to it.
Optimist
We claim that mediation proceeds on the realistic assessment of the situations. It looks for
realistic solutions. Then a mediator should be a realist not an optimist. His optimism is a
reflection of his attitude that in the given facts of the case he will be able to find creatively
solutions acceptable to both the parties to the dispute.

Conciliation under family courts Act

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament
provides that it is ‘An Act to provide for the establishment of Family Courts with a
view to promote conciliation in and secure speedy settlement of disputes relating to
marriage and family affairs and for matters connected therewith.’ Statement of
Objects and Reasons of the Family Courts Act also provides the same objective.
This Act contains VI Chapters dealt in 23 sections. Sec 5 of Family Court Act 1984
provides provisions for the association of social welfare organizations to hold Family
Courts under control of Government. Sec 6 of the Act provides for appointment of
permanent counsellors to enforce settlement decisions in the family matters. Further
 Sec 9 of the Act imposes an obligation on the court to make effort for the settlement
before taking evidence in the case.
Family courts can avail services of professional experts to provide counselling,
expert help and assistance of trained mediators or medical experts under Sec 12 ‘to
secure the services of a medical expert or such person (preferably a woman where
available), whether related to the parties or not, including a person professionally
engaged in promoting the welfare of the family as the court may think fit, for the
purposes of assisting the Family Court in discharging the functions by this Act’. In
1984 the Family courts Act was passed and it came into force on September 14, 1984.
Procedure – Sec 9
Sec 9 – Duty of Family court to make efforts for settlement.
1. In every suit or proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in driving at a
settlement in respect of the subject matter of the suit or proceeding and for this
purpose a Family court may, subject to any rules made by the High court, follow
such procedure as it may deem fit.
2. If, in any suit or proceeding at any stage, it appears to the Family Court that there
is a possibility of a settlement between the parties, the Family Court may adjourn
the proceedings for such period as it thinks fit to enable attempts to be made to
effect such a settlement.
3. The power conferred by sub section (2) shall be in addition to and not in
derogation of any other power of the Family court to adjourn the proceedings.
it is the bounded duty of the Family Court for making an attempt for conciliation
before proceeding with trial of the case. It is the constitutional obligation of the
judiciary to exercise its jurisdiction to reaffirm the faith of the people in the
judicial set up. Consequently, evolution of new juristic principles for dispute
resolution is not only important but imperative. Therefore, Family courts Act is
a ’natural and nourishing’ legislation on reconciliatory modes in family law
disputes in the Indian matrimonial jurisdiction.

Note: For conciliation process refer Sec 62 to sec 81 of Arbitration & Conciliation Act