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UNIT-1 INTRODUCTION:-

1.1- Models of Alternative Dispute Resolution

 Introduction
 What is Alternative Dispute Resolution?
 Methods of Alternative Dispute Resolutions
o Arbitration
 Conciliation
o Mediation
o Judicial settlement
o Lok Adalat
 Conclusion

Introduction
Dispute resolution is an important mechanism in order to make social life stable. When
civilization began and when people started interacting with each other, the basis of their
rights gave birth to the dispute between them. To resolve the dispute between them, a
mechanism was required. Dispute resolution mechanism aims to settle and manage disputes,
facilitating cooperation between individuals and groups. Thus, it can be argued that it is the
stability that people require socially, without which it can be difficult for individuals to carry
on with life together. Commercial transactions are increasing in today’s world. All trade can
involve disputes, and effective trade must have the means to resolve disputes other than
force them. In trade, if two traders are in a dispute over the price or quality of the delivered
products, they will normally turn to a third party whom they trust. In the modern world this
process is known as arbitration, international commercial arbitration takes formal action at
international level as a dispute settlement mechanism between the parties during
international trade i.e. when two countries trade with each other.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution (ADR) is a term used to describe the various ways in which
legal disputes are resolved. The business world as well as common people are discovering
that it is impracticable for many individuals to file lawsuits and seek timely justice. The Courts
are backlogged with case files resulting in a year or more delay for the parties to hear and
resolve their cases. In response to this question of delayed justice, the ADR Mechanism was
created.

Alternate dispute resolutions approaches are gradually being recognized at both national and
international level in the field of law and commercial sectors. The diverse approaches can help
parties settle their conflicts efficiently and expeditiously on their own terms.

In addition to the trials, alternate conflict resolution strategies are in character. Alternative
conflict resolution techniques can be used in almost all contested matters, which can be
settled by agreement between the parties according to statute. Alternative conflict resolution
methods can be used in different dispute types, in particular; legal, economic, industrial and

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family disputes. Alternative dispute resolution strategies provide the best solution with
respect to trade disputes to aid the country’s economic development.

The aim of justice is to provide redress for the aggrieved and helpless. If, after the death of
the petitioner or if the subject matter exhausts, the courts delay the trial and give justice, it
cannot be termed as punishment. The alternative dispute resolution process is being
implemented because a mechanism was required that worked effectively and offered a
friendly and speedy solution to people’s disputes. As the name suggests, ADR is an
alternative to the conventional court-led dispute resolution procedure. It is the method of
dispute settlement as an alternative to the standard judicial process.

Such approaches are appropriate for reform and implemented to improve the judicial system
in developing countries. The alternative dispute resolution system has been adopted by many
countries like India. The adoption of ADR in India is a major step by lawmakers and the
judiciary towards achieving the “Constitutional Target” of complete justice in India.

Given the huge number of cases pending, governance and administrative oversight of the
judiciary by manual processes has become extremely difficult. The Supreme Court stated
emphatically that somehow this matter must be addressed: ‘An impartial and effective judicial
system is among our constitution’s core components… It’s indeed our statutory role to check
that a bottleneck of cases are reported and that measures are made to expedite case
disposition.” By the very technique used, the alternative dispute resolution system will
maintain and strengthen personal and business relationships which the adversarial process
might otherwise be harmful. It is also versatile because it requires the contestants to choose
procedures that stipulate the essence of the conflict and the market sense in which it takes
place.

Methods of Alternative Dispute Resolutions

The word “Alternative Dispute Resolution” includes various negotiation mechanisms including,
Lok Adalats, Arbitration, Conciliation, and Mediation in its fold. Several countries have used
this Alternative Dispute Resolution strategy for successful dispute resolution. Mediation is the
most common sort of alternative dispute resolution. In addition to this, some had defined
mediation as the most appropriate method for resolving disputes. Mediation as a tool for
resolving disputes is not a new concept. To put it simply, mediation is a friendly dispute
settlement involving a neutral third party who serves as a facilitator and is called a’
mediator. ADR is usually less formal, less expensive and less time consuming than traditional
trials. ADR can also give people a greater opportunity to decide when and how to settle their
conflict. Arbitration, Conciliation, Mediation, Judicial Settlement, and Lok Adalat are the most
commonly used ADR processes in civil proceedings. Section 89 of the Code of Civil procedure
allows for the out-of-court resolution of disputes. It is founded on the Law Commission of
India’s and the Malimath Committee’s suggestions. The Law Commission of India advised that
the Court may encourage any party to a suit or action to attend in person in order to find an
amicable resolution of the disagreement.

The Malimath Committee recommended that it be made compulsory for the Court to refer the
conflict to arbitration through Arbitration, Conciliation, Mediation, Judicial Arbitration via Lok
Adalat, after the issues have been framed. The case could only proceed further if the parties

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refuse to resolve their differences through any of the alternative dispute resolution
approaches.

The different methods of ADR can be summarized as under: –

1. Arbitration;

2. Conciliation;

3. Mediation;

4. Judicial Settlement;

5. Lok Adalat.

Arbitration
Arbitration, a type of alternative dispute resolution (ADR), is a strategy for resolving conflicts
outside of the court system in which the parties to a disagreement refer it to one or more
people, known as arbitrators, to whom they intend to be bound by their judgement. It is a
method of dispute settlement in which a third person examines the evidence in the case and
renders a legally enforceable decision for both parties. Arbitration awards have limited right
of review and appeal. Arbitration is not the same as civil and mediation proceedings.
Arbitration can be optional, or mandatory. Clearly, mandatory arbitration can only come from
a law or arrangement that is mutually signed where the parties agree to arbitrate all current
or future disputes without necessarily knowing what disputes will ever occur. In India, if the
matter is referred to Arbitration then the provisions of the Arbitration and Conciliation Act,
1996 will apply.

The main types of ADR are as under:

 Voluntary Arbitration;
 Compulsory Arbitration.
Other Types of Arbitration

 Ad-hoc Arbitration;
 Institutional Arbitration;
 Statutory Arbitration;
 Domestic or International Arbitration.

Conciliation
It is a form of alternative dispute resolution in which the parties to a dispute hire a conciliator
to help them resolve their issues individually. They do this by reducing conflicts,
strengthening coordination, identifying problems, offering technical assistance, discussing
possible solutions and bringing about a negotiated settlement. In this manner, it is a bit
different from Arbitration.
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It is a consensual process in which the parties involved are free to reach an agreement and
try to resolve their disagreement through conciliation. The method is versatile, which helps
the parties to determine the time, duration and content of the conciliation procedure. Those
proceedings are seldom public. These are interest-based, as the conciliator must take into
account not only the legal positions of the parties but also their; economic, financial and/or
personal interests when negotiating a settlement. In the Indian sense, the terms conciliation
and mediation are synonymous. Conciliation is a cooperative mechanism through which the
conciliator, a qualified and professional neutral, facilitates negotiations between the disputing
parties and assists them in recognizing their differences and desires in order to reach an
arrangement that is mutually acceptable. Once a settlement has been found before a
conciliator between the parties to the conflict, the resolution has the effect of an arbitration
award and is legally tenable in any court in the country. Many trade disputes, in which it is
not necessary that a binding and enforceable decision should take place, are subject to
conciliation. Conciliation may be especially appropriate where the parties to the conflict seek
to preserve and sustain their commercial relations.

Mediation

Today, mediation is a voluntary and informal method of dispute resolution throughout the world. It is a
simple, voluntary, party-centered and structured negotiation process in which a neutral third party helps
parties resolve their disputes friendly through the use of specified communication and negotiation
techniques. Mediation is a process where the parties are themselves in control of it. The mediator’s role is
strictly that of a facilitator, assisting the parties in reaching a negotiated settlement of their disagreement.
The mediator takes no decisions and does not enforce his opinion on what should be a fair settlement.
Both sides meet with an experienced neutral mediator during the mediation process. The session starts
with each side explaining the issue from their point of view, and the remedy they seek. Once the respective
views of each party is discussed, the mediator then splits them into private rooms, initiating a “caucus
conference” process and then “joint meetings with the parties.” Both sides agree to the limit. The mediator
does not have the power to dictate his decision regarding the party. Mediation allows a conflict to be
handled swiftly, with minimal stress and expense, while still preserving the parties’ relationship and maintaining
anonymity.

Judicial settlement
Section 89 of the Code of Civil Procedure also refers to judicial settlement as one of the
alternative modes of resolution of disputes. There are, of course, no specific rules for such
settlements framed up to now. The term “Judicial Settlement” is however specified in Section
89 of the Code. It was provided that the provisions of the Legal Services Authority Act, 1987,
would apply when there is a judicial settlement. This means that the Judge concerned, seeks
to settle the dispute between the parties in a legal settlement amicably. Such settlement shall
be deemed to be an agreement within the scope of the Legal Services Authority Act, 1987, if
any friendly settlement is resorted to and reached in the case at question. Section 21 of the
Legal Services Authorities Act, 1987 specifies that each Lok Adalat award shall be deemed a
Civil Court decree. India has no written guidance on judicial settlement

Lok Adalat
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The idea that is gaining popularity is that of Lok Adalats or the courts of the people as formed
by the government to settle disputes through conciliation and compromise. It is a judicial
body and a dispute settlement organization established for social justice by the citizens
themselves, based on the settlement or agreement obtained through formal negotiations.
The first Lok Adalats was conducted as far back as 1982 in Una village of Junagadh (Gujrat).
Adalats also recognize cases within their jurisdiction which are pending in regular courts.
Section 89 of the Code of Civil Procedure also provides for the appeal to the Lok Adalat of
pending Civil disputes. When the matter is referred to the Lok Adalat then it will follow the
provisions of the Legal Services Authorities Act, 1987. The holding of Lok Adalat is governed
by Section 19 of the Legal Services Authorities Act, 1987.

Conclusion
People now have a new way to settle their conflicts thanks to the emergence of alternative
dispute resolution systems. The rapid resolution of conflicts in Lok Adalat has gained
widespread public support, giving ADR a fresh impetus that will undoubtedly lower the
number of cases pending in the courts. There is a pressing need for ADR mechanisms to
provide access to justice. The ADR movement must be encouraged to evolve at a faster pace.
This will significantly lessen the burden on the courts, in addition to offering immediate
justice at the doorstep at a low cost. If they are implemented fully, they will truly achieve the
purpose of providing social justice to the disputants.

1.2- All you need to know about Alternative Dispute Resolution

Introduction
Indian judiciary is one of the oldest judicial system, a world-renowned fact but nowadays it is
also well-known fact that Indian judiciary is becoming inefficient to deal with pending cases,
Indian courts are clogged with long unsettled cases. The scenario is that even after setting up
more than a thousand fast track Courts that already settled millions of cases the problem is
far from being solved as pending cases are still piling up.

To deal with such a situation Alternative Dispute Resolution (ADR) can be helpful mechanism,
it resolves conflict in a peaceful manner where the outcome is accepted by both the parties.

ONE OF THE MOST IMPORTANT FEATURE OF ADR IS IT RESOLVES DISPUTE IN COST EFFECTIVE

MANNER, LESS TIME CONSUMING AND PRODUCES DESIRED RESULT.

Alternative Dispute Resolution

The concept of Alternative Dispute Resolution (ADR) mechanism is capable of providing a
substitute to the conventional methods of resolving disputes. ADR offers to resolve all type of
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matters including civil, commercial, industrial and family etc., where people are not being
able to start any type of negotiation and reach the settlement. Generally, ADR uses neutral
third party who helps the parties to communicate, discuss the differences and resolve the
dispute. It is a method which enables individuals and group to maintain co-operation, social
order and provides opportunity to reduce hostility.

Importance of ADR in India

To deal with the situation of pendency of cases in courts of India, ADR plays a significant role
in India by its diverse techniques. Alternative Dispute Resolution mechanism provides
scientifically developed techniques to Indian judiciary which helps in reducing the burden on
the courts. ADR provides various modes of settlement including, arbitration, conciliation,
mediation, negotiation and lok Adalat. Here, negotiation means self-counseling between the
parties to resolve their dispute but it doesn’t have any statutory recognition in India.

ADR is also founded on such fundamental rights, article 14 and 21 which deals with equality
before law and right to life and personal liberty respectively. ADR’s motive is to provide
social-economic and political justice and maintain integrity in the society enshrined in the
preamble. ADR also strive to achieve equal justice and free legal aid provided under article
39-A relating to Directive Principle of State Policy(DPSP).

Few important provisions related to ADR

 Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the
people, if it appears to court there exist elements of settlement outside the court
then court formulate the terms of the possible settlement and refer the same for:
Arbitration, Conciliation, Mediation or Lok Adalat.
 The Acts which deals with Alternative Dispute Resolution are Arbitration and
Conciliation Act, 1996 and,
 The Legal Services Authority Act, 1987

Advantages of Alternative Dispute Resolution

 Less time consuming: people resolve their dispute in short period as compared to
courts
 Cost effective method: it saves lot of money if one undergoes in litigation process.
 It is free from technicalities of courts, here informal ways are applied in resolving
dispute.
 People are free to express themselves without any fear of court of law. They can
reveal the true facts without disclosing it to any court.
 Efficient way: there are always chances of restoring relationship back as parties
discuss their issues together on the same platform.
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 It prevents further conflict and maintains good relationship between the parties.
 It preserves the best interest of the parties.

Various modes of Alternative Dispute Resolution

Arbitration
The process of Arbitration cannot exist without valid arbitration agreement prior to the
emergence of dispute. In this technique of resolution parties refer their dispute to one or
more persons called arbitrators. Decision of arbitrator is bound on parties and their decision is
called ‘Award’. The object of Arbitration is to obtain fair settlement of dispute outside of court
without necessary delay and expense.

Any party to a contract where arbitration clause is there, can invoke arbitration clause either
himself or through their authorized agent which refer the dispute directly to the arbitration as
per the Arbitration clause. Here, arbitration clause means a clause that mention the course of
actions, language, number of arbitrators, seat or legal place of the arbitration to be taken
place in the event of dispute arising out between the parties.

What is the procedure to be followed once the arbitration clause is invoked?

 Initially, applicant initiates an arbitration by filing a statement of claim that specifies

the relevant facts and remedies. The application must include the certified copy of
arbitration agreement.
 Statement of claim is a written document filed in the court or tribunal for judicial
determination and a copy also send to the defendant in which claimant described the
facts in support of his case and the relief he seeks from the defendant.
 The respondent reply to the arbitration by filing an answer against the arbitration
claim of claimant that specifies the relevant facts and available defenses to the
statement of claim.
 Arbitrators selection is the process in which the parties receive lists of potential
arbitrators and select the panel to hear their case.
 Then there is the exchange of documents and information in preparation for the
hearing called ‘Discovery’.
 The parties meet in persons to conduct the hearing in which the parties present the
arguments and evidences in support of their respective cases.
 After the witnesses examined and evidences are presented, then there in conclusion
arbitrator gives an ‘Award’ which is binding on the parties.
Now the intricacies of the proceedings vary with the arbitration agreement. For example,
there could be a timeline which must be followed. This timeline would be stipulated in the
agreement.

Section 8 of Arbitration and Conciliation Act, 1996 provides if any party disrespects the
arbitral agreement and instead of moving to arbitration, moves that suit to civil court, other

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party can apply the court for referring the matter to arbitration tribunal as per the agreement
but not later the submission of the first statement. The application must include a certified
copy of arbitration agreement and if courts satisfy with it, the matter will be referred to
arbitration.

Mediation
Mediation is an Alternative Dispute resolution where a third neutral party aims to assist two
or more disputants in reaching agreement. It is an easy and uncomplicated party centered
negotiation process where third party acts as a mediator to resolve dispute amicably by using
appropriate communication and negotiation techniques. This process is totally controlled by
the parties. Mediator’s work is just to facilitate the parties to reach settlement of their
dispute. Mediator doesn’t impose his views and make no decision about what a fair
settlement should be.

THE PROCESS OF MEDIATION WORKS IN VARIOUS STAGES. THESE ARE,

 Opening statement
 Joint session
 Separate session and,
 Closing
At the commencement of mediation process, the mediator shall ensure the parties and their
counsels should be present.

 Initially in the opening statement he furnishes all the information about his
appointment and declares he does not have any connection with either of parties
and has no interest in the dispute.
 In the joint session, he gathers all the information, understand the fact and issues
about the dispute by inviting both the parties to present their case and put forward
their perspective without any interruption. In this session, mediator tries to
encourage and promote communication and manage interruption and outbursts by
the parties.
 Next is separate session, where he tries to understand the dispute at a deeper level,
gathers specific information by taking both the parties in confidence separately.
 Mediator asks frequent questions on facts and discusses strengths and weaknesses
to the parties of their respective cases.
 After hearing both the sides, mediator starts formulating issues for resolution and
creating options for settlement.
 In the case of failure to reach any agreement through negotiation in mediation,
mediator uses different Reality check technique like:
Best Alternative to Negotiated Agreement (BATNA)

It is the best possible outcome both the party come up with or has in mind. Its suitable
situation as each party thinks about their most favorable scenario looks like.

Most Likely Alternative to Negotiated Agreement (MLATNA)

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For a successful negotiation the result always lies in the middle, mediator after considering
both the parties comes up with most likely outcome. Here result is not always in the middle
but little left or right of the center depending on negotiation situation.

Worst Alternative to Negotiated Agreement (WATNA)

It the worst possible outcome a party has in their mind for what could happen during
negotiation.

It may be helpful to the parties and mediator to examine the alternative outside the
mediation(specifically litigation) and discusses the consequences of failing to reach
agreement like: effect on the relationship of the parties or effect on the business of the
parties. It is always important to consider and discuss the worst and most probable
outcomes, it’s not always people get the best outcome.

Mediator discusses the perspective of the parties about the possible outcome at litigation. It
is also helpful for the mediator to work with parties and their advocates to come to a proper
understanding of the best, worst and most probable outcome to the dispute through litigation
as that would help the parties to acknowledge the reality and prepare realistic, logical and
workable proposals.

Conciliation
Conciliation is a form of arbitration but it is less formal in nature. It is the process of
facilitating an amicable resolution between the parties, whereby the parties to the dispute use
conciliator who meets with the parties separately to settle their dispute. Conciliator meet
separately to lower the tension between parties, improving communication, interpreting issue
to bring about a negotiated settlement There is no need of prior agreement and cannot be
forced on party who is not intending for conciliation. It is different from arbitration in that
way.

1.3-(a) Reformative theory of punishment

Introduction
“An eye for an eye blinds the whole world.” This quotation by Mahatma Gandhi is the
foundation of the reformative theory of punishment. Punishment should not be used simply to
punish; rather, it should be used to transform. The goal of punishment should be to change
the offender’s character. Punishment is a form of societal regulation that enables a society to
maintain its policies and regulations, as well as the peace of its residents’ lives. As a result, if
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the crime is not monitored, it will cause trouble within the community and in people’s daily
lives. In order to cope with improper conduct or crimes that could be defined as infringements
of the law, a new theory known as the reformative theory was introduced around the 18th
century. The theory’s distinguishing characteristic is that, unlike all the other theories of
punishment, it focuses on the criminal instead of the crime and aims to alter the criminal’s
mindset in order to rehabilitate him/her as a law-abiding citizen of society. In this article, we
will be looking at various provisions and cases in which the court recognises the concept of
reformative theory. Also, we will be looking at this concept from the Indian perspective.

What is the reformative theory of punishment

Crime is a violation of relationships and individuals. It produces responsibilities to rectify the
situation. The victim, the violator, and society are all engaged in the search for remedies that
encourage restoration, reconciliation, and a sense of security.

According to reformative theory, the aim of punishment should be to transform the culprit
through the individualization approach. It is premised on the humane concept that a
wrongdoer does not simply cease to be a living human being just because he commits crimes.
Individualism is central to the reformative theory. It involves the transformation of offenders
and faith in re-educating and trying to reform them. According to this theory, crime is linked
to the prevalent physical or emotional condition of the criminal as well as the society’s
environment and circumstances. As a result, the criminal is regarded as a patient. Therefore,
penalisation is not used to reclaim the offender and not to torture or harass them.

According to this concept, most crimes occur as a consequence of a dispute between the
criminal’s character and intent. It should be noted that one may commit an offence either
because the temptation of the intent is greater or because the restriction imposed by
character is relatively weak. Punishment, according to reformative theory, is more restorative
than a deterrent.

The objective of reformative theory of punishment

According to the reformative or rehabilitative theory of punishment, the goal of the
punishment system of the country should be to transform the criminal rather than simply
penalise him. The ideology behind the notion of punishment is not just to offer fairness to the
victim, but also to preserve safety and security in the community. Punishing a criminal does
not only mean torturing or humiliating him, but there is a greater objective that must be
achieved, which is to develop a peaceful society. In modern jurisprudence, the idea of
punitive action is commonly associated with the law of crimes.

The goal of punishment is to transform the criminal into a human, so that he may once more
become an ordinary, law-abiding citizen of society. The focus here is not on the offence itself,
the damage done, or the deterrent impact that punishment may have, but rather on the
criminal person and his personality.

Laws dealing with reformative theory of punishment

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Article 72 and Article 161 of the Constitution of India

Article 72 of the Indian Constitution, 1950 enables the President of India to pardon a
wrongdoer. The Governor of the state also has the same authority under Article 161 of the
Indian Constitution. When the President pardons, the sentence and judgement of the convict
are completely absolved of all penalties, punishments, and disqualifications. The authority of
pardon arises to avoid unfairness, whether it be from severe, unfair laws or from verdicts that
lead to injustice; thus, it has consistently been recognised that granting that power to an
authority other than the judicial system is necessary.

The President may exercise his pardoning powers in the following cases:

1. When he is evaluating a case of punishment against an individual who has violated a

union law,
2. When he is evaluating a case of punishment imposed by a court-martial or military
court,
3. When he is contemplating the death penalty.

The Juvenile Justice (Care and Protection of Children) Act, 2015

The ideology of dealing with delinquent children is among the most crucial components of
the Juvenile Justice (Care and Protection of Children) Act, 2015. The Act’s goal is to restore
children and make them capable members of the community. This is demonstrated by the
fact that children under the age of 18 (16 in the case of heinous crimes) who commit a crime
are termed delinquents rather than criminals.

Some of the main features that represent the Juvenile Justice Act’s restorative nature are as
follows:

1. Section 14: Even though the crime committed by the child is non-bailable, the Board,
under the Juvenile Justice Act, may discharge the child on bail or put the child under
the mentorship of a probation officer.
2. Section 18: If a child younger than the age of 16 is convicted of a crime, the Board
under the Juvenile Justice Act may order counselling services or community work or a
fine (payable by the parents) or discharge the child on probation or send him to a
special home for a maximum of three years. Furthermore, the Board has the authority
to direct the delinquent child to access education, vocational courses, a therapeutic
facility, or de-addiction programmes.
3. Section 21: No child shall be sentenced to life imprisonment or death.
4. Section 40: The goal of a child care centre under the Juvenile Justice Act ought to be
the transformation of children.
5. Section 74: The Juvenile Justice Act also bars the disclaimer of the child’s identity in the
press in any form. The police are also prohibited from disclosing any information

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concerning the child except to the Board in accordance with the Juvenile Justice Act and
only in the best interests of the child.
As a result, the Juvenile Justice Act was enacted to ensure the rehabilitation of delinquent
children. It reflects the reformist strategy of the Indian penal system.

The Code of Criminal Procedure, 1973

Section 27 of the Code of Criminal Procedure, 1973 (CrPC) states that any crime not
punishable with life imprisonment or death if committed by any individual who is below the
age of sixteen on the day he appears or is introduced before the court may be tried by the
court of the Chief Judicial Magistrate or by any court particularly authorised under
the Children Act, 1960 or any other legislation in force for the time being providing for the
treatment, mentoring, and rehabilitative services of youth.

Section 360 of the CrPC enables the court to grant discharge on probation on good behaviour
or after admonition.

Section 432 of the CrPC says that the government has statutory power under this section that
whenever an individual is convicted of any punishment, the government can suspend or remit
the punishment in entirety or in proportion at any period.

Section 433 of the CrPC enables the government to commute or change the punishment of
the offender from:

 a death sentence to any other form of punishment;

 life imprisonment to imprisonment not exceeding 14 years;
 rigorous imprisonment to simple imprisonment.

Sections 54 and 55 of the Indian Penal Code, 1860

These provisions of the Indian Penal Code, 1860 deal with the commutation of
punishment. Section 54 of the Indian Penal Code allows for the commutation of the death
penalty to any other form of punishment, and Section 55 of the Indian Penal Code allows for
the commutation of a life sentence of 14 years in prison. The ability to commute a sentence
refers to the ability to exchange a sentence or punishment imposed by the judicial system for
a lower punishment. In other words, it refers to the ability to decrease or minimise a
sentence imposed as a result of a criminal conviction. For example, a 10-year sentence may
be commuted to a 5-year sentence.

The Probation of Offenders Act, 1958

Section 4 of the Probation of Offenders Act, 1958 addresses the discharge of a wrongdoer
because of his or her good behaviour. Section 4 of the Act does not apply if the offender is
convicted of an offence punishable by death or life imprisonment.
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Indian perspective of reformative theory of punishment

Crime may be a universal truth, and the community cannot be free of it because crime is an
unavoidable situation. The notion of reformative theory is to restore the current rate of
offenders in India. It acts as the polishing agent to our nation’s social control system that
targets the crucial philosophy of restoration of serious criminals as well as reworking the
concept of punitive action as an idea of transformation of an individual as well as his
behavioural conduct.

Gandhi preached the message of nonviolence and forgiveness. These are the principles that
led to the independence of India. Similar principles have been implemented into India’s legal
system in the form of the reformative theory of punishment. Indian courts have repeatedly
emphasised the significance of the reformative theory of punishment. The Supreme Court
refused to increase the accused’s punishment in the case of Gulab Singh v. Yuvraj Singh
(1994), mentioning that the goal of the Indian penal system is reformative. There are
numerous legal provisions that demonstrate the primacy of reform in India’s punitive system.
Few present reformative social control strategies are primarily designed for the treatment of
criminals based on their psychological characteristics, such as:

Probation
Probation is a criminal punishment offered under the mentorship of a corrections officer
instead of the violator serving punishment in jail time. Probation entails allowing a prisoner
convicted of a minor offence to go free while behaving well. A probation officer supervises or
oversees the person who has been released. A probation officer is someone who supervises
probation and parole and assists offenders with other modifications when they come back to
society after being imprisoned. Generally, probation is given at the choice of the judge
observing the case. Probation is commonly given for nonviolent offences. Furthermore,
probation is more probable to be granted when the offence occurs for the first time.

Parole
Parole is the permission granted to a prisoner to be released before the end of their sentence
with the condition that they will act well in society. It may be interim or permanent discharge
before the completion of his/her sentence in exchange for good behaviour during the time of
imprisonment.

Indeterminate sentence

In our legal system, an indeterminate sentence is a term of imprisonment that does not have
a prescribed limit or maximum limit. The parole authority will determine whether to release
the person on parole or not. In the last nineteenth century, the reformatory movement
introduced indeterminate sentences. Under this concept, improvements made by the prisoner

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in the training programme were used to decide the discharge instead of a judicially imposed
sentence.

Admonition
In the case of The State v. Ghanshamdas (1995), Andhra High Court held that an admonition
by a court is a reprimand, censure, or reproof alerting the wrongdoer that this time he is
being let off but that if he repeats the offence, he will be harshly punished in compliance with
the law.

Pardon
A pardon absolves the individual of all crimes and all repercussions of the wrongdoings for
which it has been awarded and all legislative or other penalties that result from a conviction.

Case law supporting the reformative theory of punishment

Satish v. State of U.P. and Anr, 2021

In the case of Satish v. State of U.P. and Anr, 2021, the Supreme Court analysed, “While it is
indisputably true that a community has the right to live a peaceful and fearless life, without
free-roaming criminals causing trouble in the lives of common peace-loving
people.” However, the basis of the reformative theory is equally powerful, arguing that a
decent society cannot be accomplished solely through punitive behaviours and vengefulness,
and instead, public harmony, fellowship, and consensual social acceptance should be
cultivated. As a result, first-time offenders should be given every opportunity to apologise
and look forward to a better future.

Mofil Khan vs The State of Jharkhand, 2021

In the judgement of Mofil Khan vs The State of Jharkhand, a bench comprising of Justices L
Nageswara Rao, BR Gavai, and BV Nagarathna stated that the Supreme Court is obligated to
obtain all relevant information about the probability of the convicts’ transformation before
actually enforcing the maximum punishment of the death penalty, even if the accused is
silent. Furthermore, the state is required to obtain evidence establishing that the accused has
no chance of reformation or restoration. “The possibility of the accused being rehabilitated
and restored is one of the mitigating factors. The State is required to obtain proof
establishing that the accused has no chance of transformation or restoration. “

Criticism of the theory

Although the reformative approach to punitive action appears perfect, it has many
disadvantages. The following are some disadvantages of the reformative theory of
punishment:

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1. The national interest requires that habitual criminals who have a natural propensity to
commit a crime be penalised according to the prohibitive theory rather than the
reformative theory.
2. When the punishment is a death sentence, the reformative theory is rendered
inapplicable. This is because only life, not death, can reform the offender. As a result,
death sentences are opposed to the reformative aspect of the penal system.
3. The reformative theory of punishment tends to adopt an offender-centric strategy that
is occasionally unfair to the victim. In their efforts to protect the rights of prisoners,
courts may unintentionally violate the rights of the victims.
4. In a nation like India, where poverty is a major cause of crime, if people find prisoners
relaxed, they will be motivated to commit small offences and return to prison under the
pretence of reform.

Conclusion
This theory aims to change criminal minds so that inmates of penal-correctional organisations
can live the life of a common citizen. It aims to rehabilitate them and transform them into
law-abiding members of society. This theory is opposed to all forms of corporal punishment.
It tends to view the exclusion of offenders from the community as an attempt to rehabilitate
them and protect the individual from social rejection. Though this theory works fantastically
for the correction of juvenile offenders and first-time criminals because it relies heavily on
humanistic mechanisms of punishment, it might not work as well for serious criminals. In
these cases, deterrence and retributive theory become important.

(b) Gandhian principles of nonviolent conflict resolution :-

Approach
 Introduce by writing a few lines on Gandhian ethics.
 Explain the major principles of Gandhian ethics.
 Discuss the role of Gandhian ethics in conflict resolution.
 Conclude suitably.

Introduction
 Gandhian philosophy’s objective is to transform the individual and society
simultaneously, in accordance with the principles inspired from various sources
like Bhagavad Geeta, Jainism, Buddhism, Bible, Thoreau, Gopal Krishna
Gokhale, Tolstoy, John Ruskin among others.
 Gandhian thought cannot altogether be separated from ethics. His ideas are
generally expressed in moral categories or terminology. Ethical theories provide
the underpinnings for Gandhian thought in any sphere.

Body

Major Principles of Gandhian Ethics:

 Satyagraha: It is the continuous realisation for truth. It mainly includes self-
sacrifice, peace and non-violence. Only a person with will and determination can
follow satyagraha.

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 Trusteeship: Wealthy people should act as Trustees of trust that look after the
welfare of the people.
 Ends and Means: Gandhi always emphasised on purity of means. Improper
means cannot be adopted to achieve proper ends. As a wrong path cannot take
you to the right destination.
 Concept of seven sins: Wealth without work, Pleasure without conscience,
Knowledge without character, Commerce without morality, Science without
Humanity, Religion without Sacrifice, Politics without Principle are seven sins in
a society that should be rectified.
 Sarvodaya: It means Universal Upliftment of all. By inclusiveness many evils of
society can be removed.
 Dignity of Labor: Gandhi tried to establish equality among all by making bread
labor compulsory to all.

Role of Gandhian Ethics in conflict resolution:

 The Gandhian technique of conflict resolution is through satyagraha which has
been interpreted as passive resistance, nonviolent resistance etc. Satyagraha
according to Gandhi is holding on to Truth.
 A satyagrahi enjoys a degree of freedom not possible for others, for he becomes
a truly fearless person. Once his mind is rid of fear, he will never agree to be
another’s slave. Having achieved this state of mind he will never submit to any
arbitrary action.
 Satyagraha is more than a method of conflict resolution that lends itself easily
to scientific analysis. It is in fact an ethical system that places heavy emphasis
on the quality of the relationship between individuals.
 According to Gandhian ethics the sense of mutual satisfaction with the outcome
needs to be stressed for conflict resolution.
 Nonviolent action is the most important method in the process of conflict
resolution. The technique of nonviolent action conducts protest, resistance and
intervention without physical violence.

Conclusion

In today’s world conflict is complex and further, incorporates the utilization of

physical and psychological violent instruments. The Gandhian approach addresses
conflict at the individual level. Gandhi's approach is still highly important in modern
complicated conflict resolution, and there is a need to revitalise and resurrect the
concept at the level of conflict resolution institutions.

1.4 What is international dispute?

In layman language, International Disputes refers to disputes and conflicts involving different
countries. The United Nations Security Council (UNSC) defines “International Disputes” as a
conflict of legal dispute. It refers to any disagreements between nations on any fact, issue,
interest or any subject matter in the political, ideological or legal arena.

Types of international dispute

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International disputes or conflicting situations between nations/states/countries can be due to

various reasons. It might be related to territory, ideology, security, independence, ethnicity,
culture, resources, refugee issue, border disputes, war, biological war, etc. Several sensitive
refugee issues have arisen in different countries like the Bangladesh refugee crisis, the crisis
over the Rohingya Muslims, etc. The nations try to resolve such disputes by mediation to
shorten the process of dispute resolution. Here in solving the disputes regarding the Rohingya
Muslims between Bangladesh and Myanmar, the Chinese Government has served as the
mediator. Border disputes also have been one of the challenging disputes in the international
arena. It can be aerial, marine or on land. It arises between countries due to various reasons
like occupancy, infiltration, smuggling, espionage, etc.

How are disputes solved at the international level?

It is the International Law that prevails at the international level. Mainly there are two main
methods of solving disputes. One is the peaceful means including negotiation, inquiry, good
offices, mediation, conciliation and arbitration as mentioned under Chapter VI of the United
Nations charter and the other is the compulsive means including complaints, restoration,
reprisal, hostile embargo, blockade, intervention, war. International law aims at finding a
peaceful solution to the disagreement/disputes between nations. As per the 1970 “Declaration
of Principles of International Law”, the states should solve their international disputes by
negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement. In an
international platform, mediation is useful when a conflict has continued for some time but
the parties have not reached any resolution and are also not prepared to incur further costs
or escalation of the dispute or to engage in direct or indirect dialogue and what they require
is external conflict management.

International Dispute Resolution Centers

Today, at the international level, different dispute resolution centres have come upon. There
is the Singapore Mediation Convention to resolve commercial international disputes. In 2018,
the International Centre for Settlement of Investment Disputes (ICSID) has set mediation
rules to modernize the rules for resolving investment disputes. This has also organized a
series of events on investment mediation to increase knowledge about investor-state
mediation. There are other centres like the London Court of International Arbitration (LCIA),
Chartered Institute of Arbitrators (CIArb), World Intellectual Property Organization (WIPO),
Arbitration and Mediation Centre (AMC), American Arbitration Association (AAA), Hong Kong
Mediation Centre, Indian Institute of Arbitration and Mediation, Japan International mediation
centre, etc. that deals with mediation provisions and laws.

How does mediation play an effective role in settling international disputes?

Be it domestic or international, mediation consists of four main segments. It includes
mediators, disputants, disputes and outcomes. Meditation is a process of resolving disputes
that is generally ideal for those nations having different backgrounds, different cultures and
different languages as it might lead to great misunderstanding. There are three main factors
that play a crucial function in enhancing the role of mediation in the complete process. It
comprises the role played by the mediator, the strategies and stages involved in the process
and the nature of the parties in the conflict.

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Mediator’s role
The mediation process starts with the appointment of a mediator. Mediators are also known
as the “Third Party”. Mediators can be individuals (2.3%), states (49.8%), regional
organizations (19.5%), or international organizations (28.4%). After the Cold War, the UN
has actively participated in dispute resolution in Afghanistan, Bosnia, Cambodia, East Timor,
Somalia, Liberia, Rwanda and Angola. Also, regional organizations like the African Union (AU),
the European Union (EU), and the Arab League have also acted as mediators. The mediator
that the parties are assigned with is a neutral person and is mutually selected by them. He
has to be equally trusted by both parties. The mediators should possess the required skill and
intelligence, to tackle the conflict at hand. In this process, the mediator’s job is not to judge.
The mediator must be consistent, transparent and even-handed in managing the mediation
process and should respect the confidentiality of the parties. The determining factor includes
parties’ consent to mediation, military or political interest or goals, ideological and
psychological considerations, or actions of external players, etc.

In any international dispute, solving it is 50% based on the role played by the mediator. If
the mediator succeeds then the whole mediation process gives fruitful results. The mediator
must choose the strategies very strategically. The mediator should not be biased. Partiality
can lead to complex effects. In some cases, more than one mediator mediates the conflict.
This might hinder as well as contribute to peacemaking. This was seen in one of the disputes
where the European Union (EU), the United States (US) and the United Nations (UN) worked
feverishly to foster peace in Yugoslavia which resulted in the Dayton Accords. It is also
important to analyze the different mediation dynamics, identifying the dispute’s type, the
background of the issues, etc. before proceeding. Mediators working conduct should adhere
to the mandates and the set rules and regulations. The UN mediators work within the
framework and abide by the guidelines of the United Nations Charter. They also work
according to the applicability of the framework constituted by the rules of the governing
international law in the situation, international humanitarian law, human rights law, refugee
laws, global and regional conventions, and international criminal law, etc. To follow a legal
and procedural method, it is important that the process complies with the normative and
legal frameworks. They need to ensure that the parties understand and are aware of it. For
instance, if a party demands war, crimes against humanity, genocide, or gross violations of
human rights, including sexual and gender-based violence; treason or rebellion then it
violates international principles. Also because of emotional and behavioural factors, having a
female mediator in the mediation process helps in the success rate to some extent as per
some studies.

Mediation strategy
The role of mediation in solving international conflict would be successful if there are credible
mediation efforts. This would allow the mediator to monitor as well as guide the mediation
process, helping in strengthening the negotiating capacity of the parties and other
stakeholders involved, assisting them in reaching agreements, and stirring support for
implementation.

The mediators’ strategies are based on the context of the conflict, willingness of the parties to
find a solution, countries involved, etc. Also, the previous relationships between the mediator
and the parties play a part in the process. If the mediators belong to the same organization
or alliance then the degree of trust in each other would be high. Evaluative and facilitative are
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two different approaches to mediation. In evaluative mediation, the mediator provides each
party with an assessment of the strengths and weaknesses of its position and in facilitative
mediation, it is the parties that offer and counter-offer and discusses the potential expense
and risk.

There are also three general approaches. In the power-based approach, the parties opt for
war as means of solving their conflicts. In the rights-based approach, certain standards are
followed to conclude. Mediation falls in the third category i.e., an interest-based approach
where parties reconcile their underlying interests. They attempt to bridge their different
needs, aspirations, fears or concerns in a manner that is satisfactory to both.

A mediation process usually goes through three phases. In the introduction phase, the
mediator and the parties lay ground rules of the process and the parties lay down their
demands and perspective. In the second stage, the mediator and the involved parties discuss
the problem in-depth and try to find a solution for the same. Then there is the third closing
stage where the parties decide on a resolution, agree to it and a resolution for the same is
drafted mentioning the outcomes of the mediation.

A mediator in the mediation process follows certain strategies. The first and foremost is the
Communication- Facilitation Strategy where the parties together start the communication.
The mediator tries to gain trust and confidence and understand the facts and identify the
issues to create a suitable environment and interests for the parties and provide them with
information. Proper communication can be a key to conflict resolution. This was seen in the
Oslo agreement between Israel and the PLO where Norway played a major role. The second
strategy is the Procedural Formulation Strategy which deals in deciding key decisions like
agenda structure, venue of the discussion, and further enhancing the communication process.
It also involves establishing protocols, suggesting procedures, highlighting common interests,
interactions with the media, and keeping the process focused on issues. It was seen in the
New Zealand mediations of the Bougainville conflict in 1995. The third is the Directive
Strategies. It is the most important phase where the mediator tries changing the parties’
expectations, making suggestions and proposals, supplying information, making them aware
of costs involved, helping devise a framework for acceptable outcomes, pressing the parties
to show variability, changing perceptions, etc. It provides for a systematic application of the
possible resolution and empirical analysis of mediation in solving international conflicts. The
application of this strategy was seen in the Camp David Peace Accords where President Carter
provided a billion-dollar aid guarantee to Israel and Egypt as part of the agreement that
lasted over 30 years.

The mediator also uses a preventive diplomacy strategy. It helps the mediator to avoid any
sort of conflict arising between disputants and also to prevent the occurrence of fights. This
strategy was very handy during the China trade war, the Russia-United States disputes and
the North Korea- United States conflict. As per a study by Bercovitch (who introduced this
strategy) and Houston in the early 20th century, they found out that it is the directive
strategies that are highly effective in settling international disputes. It can persuade the
disputants to agree to an outcome. In the apolitical strategy, non-profit and private
organizations like the International Crisis Group participate in the resolution of international
conflicts through analyzing, researching, and advocating for conflict resolution. National
ownership can be adopted after closely consulting with the parties where local cultures and
norms are adapted along with international law and normative frameworks. Parties must be
sensitized on the need to balance national ownership with the importance of marshalling
international support for the implementation of an agreement in the resolving process.

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Conduct of the parties

The parties that have opted for mediation are known as disputants. Minimum two parties are
involved. It can be either two states or one state and another organization and such. The
disputants are from Central and South America; Africa; South West and East Asia; and the
Pacific, Middle East and Europe. International disputes can be on various matters. Over 47%
of the interstate disputes mediated are in the highest category of fatalities. The composition
of the disputes is: territory (27.5%), ideology (5.8%), security (32.5%), colonial (7.9%),
resources (5.5%) and ethnicity (20.8%).

First and most importantly, the parties in the conflict must be willing and trying to meditate.
It is up to the parties to decide when to choose mediation. Mediation processes turn complex
when it engages actors at different levels. The mediation process faces hurdles when in the
case of interest groups like social movements and youth groups, they lack clear leadership
and are not easily defined. The parties must be transparent with the laws and norms that
guide their involvement. Sometimes the parties may reject mediation initiatives because they
do not understand mediation and perceive it as a threat to sovereignty or outside
interference. Also sometimes in a multi-actor conflict, the parties may agree to the mediation,
leaving a mediator with the difficult situation of partial consent to commence a mediation
process.

The final stage is the outcome. If it appears that any settlement is unattainable, then the
mediator should consult with the parties what is as to the minimum that needs to be achieved
in order to commence a peaceful approach. It should also help the parties build into the
agreement options to address the issue later. Sometimes mediation can be a long-lasting
process bearing fruitful outcomes. One such instance was the nuclear crisis in Iran where the
mediation process started in 2002 and was solved after 14 years.

Global outlook: laws in international arena

Today, war is becoming increasingly complex and so is mediating peace. International c

onflict takes regional and cultural dimensions and that leads to political unrest and drags on
for more than decades. It is within the power of the United Nations to tackle this system. The
UN has various mediation resources. The United Nations Convention on International
Settlement Agreements Resulting from Mediation enhances the global framework for
mediation and harbingers its continued growth in a new international treaty. Article 2 and
Article 33 of the United Nations Charter states that countries should solve their disputes
through peaceful means. International Arbitral Institutions such as the ICC, ICDR, and LCIA
also provide mediation services as a first step to solve any dispute.

In 2002 “Model Law on International Commercial Conciliation” was adopted to make more
effective laws and rules for the mediator as well. In some countries like Hawaii, California,
Norway, and the United Kingdom, mediation is mandatory before litigation. 45 jurisdictions
have adopted legislation on mediation procedure inspired by the Model Law on International
Commercial Mediation that was adopted by the United Nations in 2002 and later amended in
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2018. In 2006, the “Mediation Support Unit” was established within the Department of
Political Affairs for mediation processes. In the year 2008, a five-person Mediation Support
Standby Team was developed to allow for the deployment of mediators to conflict areas on
short notice. On 24th September 2010, the “Friends of Mediation” was founded with the sole
motive to promote the culture of mediation. It consisted of 52 Member States, the United
Nations and 8 regional organizations and other international organizations and was chaired by
Finland and Turkey. In the 65th session of the General Assembly, emphasis was given to
strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention
and resolution. According to the UN Guidance on Effective Mediation, a mediation process
should take into consideration factors like consent, impartiality, inclusivity and national
ownership of each specific conflict.

In 2011, the European Union established a Mediation Support Team followed by the
Organization for Security and Cooperation in Europe (OSCE). Also, the African Union, the
Economic Community of West African States (ECOWAS) and the Intergovernmental Authority
on Development (IGAD) have established mediation support offices within their secretariat
structures. The Southern African Development Community (SADC), the Economic Community
of Central African States (ECCAS) and the Organization of American States (OAS) have
supported mediation capacities. Resulting from Mediation of the “Convention on Mediation” or
“Singapore Convention”, the United Nations Convention on International Settlement
Agreements facilitates international dispute resolution by making settlement agreements
resulting from the mediation to be directly enforceable at the courts of the member States. In
August 2019, it had six countries namely Qatar, Saudi Arabia, Ecuador, Fiji, Belarus and
Singapore and 48 signatories.

Mediation by international organizations

1. In the Thailand-Philippines dispute over tuna exports, the parties preferred

consultations facilitated by the European Union Trade Commissioner and mediation
to the World Trade Organization Dispute Settlement Body’s adjudicative approach.
2. The International Institute for Sustainable Development (IISD) took a premediating
step where it conducted neutral third-party research to avert the chance of any
dispute that might arise out of climate change due to scarcity of water in Syria,
Lebanon, Israel, Jordan and Palestine.
3. In 2019, the International Environment was facing several conflicts and to solve this
the United Nations-led international communities ensure peaceful interaction and
coexistence through mediation.
4. In the Gambia, there was a union by the United Nations, the AFRICAN union, and
neighbours’ countries to prevent a major political crisis through mediation. This was
also prevalent in countries like Sudan, Iran, to name a few.

Mediation by individual leaders

1. In the Nigerian Civil War of 1967-1970, Adam Curle (British Academic), John
Volkmar and Walter Martin acted as mediators to find solutions to end the war.
Popularly known as the Three Quakers, they also mediated during the Zimbabwe
war of independence during 1965-1979.

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2. Due to the mediation of Ex-American President Carter, the Camp David accords were
signed in 1978 following the thirty years of peace between Egypt and Israel.
3. Beginning in the year 2002 and continuing till 2004, a Mediation Dialogue was
opened between Venezuelan President Hugo Chavez Fraiz, the Government and the
opposition by the Organization of American States, the United Nations Development
Program and Jimmy Carter (Ex-US President) to solve the issue of a divided society
and preserve the democracy.

Has the role of mediation always resulted in success?

As mediating international conflicts involves different aspects, mediation has not always
resulted in any settleable outcome. Mediation may lead to spectacular successes as well as
failure. For instance, in the year 1948, the UN Commission for India and Pakistan failed in
facilitating peace between the countries and hence the conflict persisted.

Recently the Foreign Office spokesperson of Pakistan, Zahid Hafeez Chaudhri, said that the
Indo-Pak disputes must be resolved through talks and dialogue to maintain good relations
with India. Here the Kashmir issue was mainly emphasized and Pakistan is of the opinion to
resolve it through the international community in accordance with the relevant UN Security
Council resolutions.

There has also been a situation where mediators have denied mediating issues and also
where the parties have rejected mediation. The US government during the Presidential
regime of Donald Trump has denied mediating between India and China to resolve the
standoff between border troops. But here the Chinese foreign ministry spokesperson, Zhao
Lijian rejected the third-party intervention citing that the countries are capable of solving the
issues through dialogue. In the same way in 2019, India had turned down Trump’s offer to
mediate the Kashmir issue as India was aware of the US’ bad history of mediation. In the
Indus River Treaty case between India and Pakistan, both countries opted for facilitation by
the Permanent Indus Commission instead of mediation and arbitration. In the Mekong River
Dispute between Thailand and Laos, the parties rejected adjudication as a dispute resolution
option in the Mekong Agreement stating that disputes that are not first resolved by the
Mekong River Committee are to be referred to the governments for negotiation, possible
mediation or eventual settlement according to principles of international law. In the Amur
River Dispute between China and Russia, the parties decided against adjudication and chose
to resolve the problem through a joint field-mapping exercise of the disputed area in which
they agreed to divide the islands in half.

Another aspect is that countries have agreed to ADR but have contrasting opinions on which
ADR mechanism to follow. Mediation has also worked as a dispute resolution mechanism in
case of maritime disputes. One such conflict was between Greece, Turkey and Cyprus. Here
although dispute resolution was preferred still Greece favours international arbitration
whereas Turkey prefers bilateral negotiations. Turkey’s capital Ankara agrees to international
ADR techniques but Greece’s capital Athens wants international adjudication on a more
specific and limited set of topics, whereas Ankara wants to put a broader range of topics on
the table.

Challenges that mediation faces to settle disputes

Although the nations have opted for mediation as a means to solve disputes still there are
certain obstacles and lacunas apart from their various advantages and importance.
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1. Obstacles: Mediating any international conflict involves different things. Primarily it

depends on the type of issues as its nature poses a challenge in the mediation
process. In some cases, the issues are state fragility, political and criminal and
ideological interests, etc. the mediator, as well as the parties, faces certain hurdles
in the process. Thus, strengthening the capacities of mediators and conflict parties,
enhancing the chances of success, maximization of opportunities for effective
mediation is still not adopted properly.
2. Lacunas: Mediation as a dispute resolution system at the international level lacks
the institutional power and support that is associated with adjudicatory forums. Also,
there are no proper unitary or procedural rules for governing the practice and
implementation of the mediation process. As seen, mediation involves many aspects.
It is not just a country coming forward to mediate the dispute between two
conflicting countries. It involves other aspects like time, venue, rules, procedures
and so on as seen. There is a lack of proper standards for determining international
mediators or such other factors to maintain uniformity. This uniformity is required
because the involved countries have their own contrasting rules and process. Thus,
uniformity is required to comply with international law. It is just in recent time that
the American Arbitration Association (Private Mediation Providers), Judicial
Arbitration and Mediation Services (‘JAMS’) Inc and the International Mediation
Institute have developed processes for certifying mediators in the practice of
international mediation.

How can we promote mediation for effective role and implementation?

It is the burden and the responsibility on the mediator’s shoulder to create an effective
environment. Since the governing laws of the countries and the laws of the imposed
legislation or organization may clash leading to a chaotic ending, thus in order to have a
balanced approach the mediator and the parties must be sensitized to the positive and
negative impacts of a mediation process, function of the process, implementing rules and
procedures and all related things. Mediation would be a success if the parties are well
informed, patient and balanced in their approach. The UN has worked on the technical
aspects of mediation through United Nations Ceasefire Mediation and Management Course,
De-escalation and Coordination Committee, Special Envoy, Mediation Support Unit.

To foster growth, development and effective implementation of any particular thing, it is

important that the steps are initiated for the same at the grassroots level. Applying the same
to the mediation process, mediation should be introduced in courts too at the national level of
the states via rules of court, judicial training, cost sanctions, legal aid provisions, professional
obligations and education of professionals. If this is done, then countries would be far more
motivated to approach mediation as a dispute resolution mechanism. Government and Public
Sector Bodies can take steps for greater utilization of mediation through initiatives with
stakeholders to include mediation in the health sector, major construction projects, land
community activity, reform, education, planning proposals and provision of local services.

It is necessary that mediation is promoted by the local authorities, civil societies. In the
Southern African Republic, the UN has been engaging at a local level with religious authorities
and participating in women leadership so that women have a seat at the table and that their
voices are heard. The Nordic Women Mediators’ Network and African Women Networks of
Women Mediators are notable in this regard. There should be inclusive mediation focusing on
the gender dimensions of mediation. International actors should establish international

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contact groups to provide resources to support mediation efforts and processes and guide the
whole system of resolution for a greater success rate.

Conclusion
Today the world has been advancing at a very fast rate. These advancements have impacted
countries in many ways as various disputes have started arising at the international level on
various matters. Due to differences in ideology, diplomacy, policies and other facts each they
have been facing conflicts. Earlier any conflict would lead to gory war but now to solve
disputes, peaceful manners have been opted for and mediation have proved to be a very
approachable way. Countries have preferred discussions over any arguments and debates.
The use of mediation is rapidly increasing today as the countries are coming forward to
handle international diplomacy. In the coming time, more and more countries would be
willing to opt for mediation instead of any other lengthy process. Mediation can help settle
controversies and decrease aggression and animosity between the involved parties. Mediators
can play an invaluable role if the parties are willing to explore a negotiated solution.

Unit 2: Concepts and Laws in Mediation

2.1- Keep reading to discover the seven elements of mediation.

 Interests. Interests refer to the underlying needs and desires of the parties involved in the dispute. ...
 Alternatives. ...
 Options. ...
 Communication. ...
 Relationships. ...
 Legitimacy. ...
 Commitment. ...
 Talk to an Experienced Los Angeles Mediator Today.

How Does The Mediation Process Work – Steps and Procedure

In this article, Akanksha Mathur of National Law University, Delhi discusses the procedure to
go for mediation and the issues one should be aware of before going for it.

With changing times, an increasing number of people are resorting to alternative methods of
dispute resolution such as mediation in order to resolve their issues.

What is Mediation?
Mediation is an alternative method of resolving disputes without resorting to the courts. It is
a structured, voluntary and interactive negotiation process where a neutral third-party uses
specialized communication and negotiation techniques to help the parties in fulfilling their

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stated objectives. As a party-centred process, it focuses on the interests, needs and rights of
the parties.

Laws Governing Mediation in India

Mediation first came to be legally recognised as a method of dispute resolution in the
Industrial Disputes Act, 1947.

In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It
provided for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer
to alternative dispute resolution (ADR) methods to settle pending disputes.

Under this, consent of the parties was made mandatory and the court could refer cases for
arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.

Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under
r. 5(f)(iii). These allow the court to refer cases for mediation even when the parties are not
ready for reference for mediation if there is an element of settlement.

Types of Mediation
Mediation is of many kinds-

 Statutory/Mandatory

There are some kinds of disputes that are required by law to be subjected to the mediation
process, such as disputes in labour and family law. In India, r. 5(f)(iii) of the Civil Procedure-
Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare.

 Court Ordered

Some sort of alternative dispute resolution is required by most jurisdictions in India before
resolution through the judicial process. As soon as a case is filed, the parties are provided
with a number of ADR options out of which they must select and pursue one unless exempted
by the court.

1. Court-Annexed

Under Court-Annexed Mediation, the mediation services are provided by the court as
part of the judicial system.

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The Court maintains a list of skilled and experienced mediators who are available to
the parties. The Court appoints a mediator and sets a date by when the mediation
must be completed. The results of the mediation are confidential, and any
agreement reached is enforceable as a judgement of the court.

Since the case is referred to a court-annexed mediation service, the overall

supervision is kept on the process and there is no feeling of abandonment by the
system. The litigants, lawyers and judges become participants in the system and it is
felt that the settlement is achieved by all the actors in the justice delivery system.

The same lawyers who appeared in the case represent their clients before a
mediator and the litigants are also allowed to participate. The popular acceptance for
mediation also improves as it is the integral and impartial court-system which is
seen as extending an additional service. The dispensation of justice thus becomes
well-coordinated.

2. Court-Referred
Under Court-Referred Mediation, the court merely refers the matter to a mediator.

 Private

In private mediation, mediation services are offered on a private, monetary basis by qualified
mediators to the Court, general public, and the commercial and governmental sectors for
dispute resolution through mediation. Recourse may also be taken to private mediation in
pending cases or pre-litigation disputes.

Contractual

1. Parties to a contract may include a mediation clause to resolve disputes as part of

the terms of their agreement as it can effectively resolve contractual disputes before
they turn into a protracted legal battle. The conditions of the mediation and the
selection of the mediator are mentioned in the contract. The results of the mediation
may be enforced as judgements of a court.
2. VoluntaryParties to a dispute may also decide to seek mediation off their own
accord, without being compelled by the law, the court or a contract. This can be
done at any time and is controlled by the parties.
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Cases Suited for ADR

In Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.,
the Supreme Court laid down guidelines pertaining to the kind of cases that would be eligible
for ADR and those not. It ruled that the following nature of cases would be considered
unsuitable for ADR-

1. Representative suits under Order 1 Rule 8 CPC which involve public interest or
interest of numerous persons who are not parties before the court.

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2. Disputes relating to election to public offices.

3. Cases involving grant of authority by the court after enquiry, as for example, suits
for grant of probate or letters of administration.
4. Cases involving serious and specific allegations of fraud, fabrication of documents,
forgery, impersonation, coercion etc.
5. Cases requiring protection of courts, as for example, claims against minors, deities
and mentally challenged and suits for declaration of title against government.
6. Cases involving prosecution for criminal offences.
All other civil suits and cases were to be considered suitable for ADR, such as-

1. All cases relating to trade, commerce and contracts, including-

 Disputes arising out of contracts (including all money claims);

 Disputes relating to specific performance;
 Disputes between suppliers and customers;
 Disputes between bankers and customers;
 Disputes between developers/builders and customers;
 Disputes between landlords and tenants/licensor and licensees;
 Disputes between insurer and insured;
All cases arising from strained or soured relationships, including-

 Disputes relating to matrimonial causes, maintenance, custody of children;

 Disputes relating to partition/division among family members/co-parceners/co-
owners;
 Disputes relating to partnership among partners.
All cases where there is a need for continuation of the pre-existing relationship in
spite of the disputes, including-

 Disputes between neighbours (relating to encroachments, nuisance etc.);

 Disputes between employers and employees;
 Disputes among members of societies/associations/Apartment owners Associations;
All cases relating to tortious liability including

 claims for compensation in motor accidents/other accidents;

All consumer disputes including

 Disputes where a trader/supplier/manufacturer/service provider is keen to maintain

his business/professional reputation and credibility or `product popularity.

Steps in the Mediation Process

Whenever any case is to be sent to mediation, the following steps are followed-

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Step 1: Convening the Mediation Process

The convening of the mediation is often the most difficult and challenging part of the
mediation process. It involves a varied range of procedures-

 Reference to ADR by the Court

The court is required to direct the parties to opt for any of the five modes of alternative
dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok
Adalat or mediation under Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908.

The Court must consider the option exercised by the parties and the suitability of the
particular case for the option chosen. The judge making the reference, known as the referral
judge, is required to acquaint himself with the facts and the nature of the dispute, and
objectively assess the suitability of ADR.

This appropriate stage for making the reference in civil cases is after the completion of
pleadings and before framing the issues, while in cases pertaining to family law, the
appropriate time for making the reference would be immediately after service of notice on the
respondent and before the filing of objections/written statements by the respondent.

Even if the court did not refer the cases to ADR at these times, nothing prevents it from
referring to it at a later stage.

 Preparation for Mediation

The referral judge then has the crucial job of bringing the parties together and motivating
them to resolve their disputes through mediation. This involves finding the reasons for any
disinclination on behalf of the parties to enter into mediation, along with explaining the
concept, process and advantages of mediation.

While the consent of parties is required for mediation, the court can also apply external
pressure to induce the parties to enter the mediation, to the extent of ordering or forcing
them to do so.

 Referral Order

A referral order issued by the referral judge initiates the process of mediation and s the
foundation of a court-referred mediation. An ideal referral order contains details like name of
the referral judge, case number, name of the parties, date and year of institution of the case,
stage of trial, nature of the dispute, the statutory provision under which the reference is
made, next date of hearing before the referral court, whether the parties have consented for
mediation, name of the institution/mediator to whom the case is referred for mediation, the
date and time for the parties to report before the institution/ mediator, the time limit for
completing the mediation, quantum of fee/remuneration if payable and contact address and
telephone numbers of the parties and their advocates.

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Step 2: Initiation of the Mediation Process

The mediator has to ensure that the parties and their counsels are present at the
commencement of the mediation process.

Introduction and Opening Statement

Introduction

 The mediator gives an introduction with his qualifications, establishes his neutrality
and reposes faith in the mediation process.
 The mediator requests the parties to introduce themselves, attempts to develop a
rapport with them and gain their confidence and trust.
 The motive is to create a constructive environment conducive to negotiations and
motivate the parties for an amicable resolution of disputes.
 The mediator establishes control over the mediation process.
 There is no standard set of rules that have to be followed, making the mediation
procedure flexible.

Opening Statements

 The mediator’s opening statement is intended to explain to the parties-

o the concepts, processes and stages of mediation,

o the role of the mediator, advocates and parties and

o the advantages and ground rules of mediation.

 The mediator confirms that the parties have understood the process and gives them
the opportunity to get any doubts clarified.
 Statements are also sought from the negotiators. The parties articulate their
positions, enabling the other party to understand what they want.
 This is followed by a restatement of the problem by the mediator where an attempt
is made to incorporate the differing perspectives.

Step 3: Setting the Agenda

 Setting the agenda is an important duty imparted on the mediator in order to shed
clarity on the mediation proceedings and remove vagueness.
 It involves setting down the order in which negotiation is to proceed and gives the
parties a standard using which they can individually evaluate the progress of the
negotiations.
 The mediator may mention the time and venues for the negotiation sessions, along
with the issues before the parties, to be discussed sequentially.

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Step 4: Facilitation of Negotiation and Generation of Options

Joint Session

The purpose of the joint session is to gather information.

 The mediator provides an opportunity for the parties to hear and understand each
other’s perspectives, relationships and feelings.
 The petitioner is allowed to explain their case in their own words, followed by the
presentation of the case by their counsel and the statement of the legal issues.
Similarly, the defendant is allowed to explain their case, followed by the
presentation of the case and statement of the legal issues involved by the
defendant’s counsel.
 The mediator attempts to understand the facts, issues, obstacles and possibilities
and ensures that each participant feels heard.
 The mediator encourages communication and asks questions to elicit information.
 At the completion of the joint session, the mediator may also suggest meeting each
party with their counsel separately.

Separate Sessions

 The separate sessions are meant for the mediator to understand the dispute at a
deeper level.
 It provides the parties with a forum to further vent their feelings and disclose
confidential information they do not wish to share with the other parties.
 It helps the mediator to understand the underlying interests of the parties, the
positions taken by them and the reasons for these positions, identify areas of
dispute, differential priorities and common interests, and to shift the parties to a
mood of finding mutually-acceptable solutions.
 The mediator is supposed to reaffirm confidentiality, gather further information and
challenge and test the perceptions and conclusions of the parties in order to open
their minds to different possibilities. This is to be done by asking effective questions
and helping the parties understand the strengths and weaknesses of their cases.
 The mediator offers options which he feels bests satisfies the underlying interests of
the parties.

Step 5: Reaching a Settlement

 By helping parties to understand the reality of their situation and give up rigid
positions, the mediator creates creative options for settlement.
 The mediator can conduct as many separate sessions as necessary and may even
conduct sessions with groups on the same side with diverging interests.
 The parties negotiate through the mediator until a solution mutually acceptable to all
the parties involved. The mediator directs the parties to a solution which he believes
will satisfy the underlying interests of the parties.

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 In case negotiations fail, the case is sent back to the referral court.

Step 6: Closing

 There is no fixed procedure that must be followed.

 Once the terms of the settlement have been agreed to, the parties are reassembled.
 The mediator orally confirms the terms the terms of the settlement as a procedural
requirement.
 The parties, with the mediator’s aid, write down the terms of the settlement and
sign the agreement.
 The settlement has the binding nature of a contract and is enforceable in a court of
law.
 In his closing comment, the mediator thanks the parties for their help and
participation in the mediation process.
In case no settlement is reached between the parties, the case is returned to the referral
court stating failure to settle. The proceedings of the mediation are kept confidential and
cannot be revealed even to the court.

Advantages of Mediation

Mediation is a better and more lucrative alternative to the court system as-

 Control- It gives the parties control over the scope of the mediation in terms of the
issues discussed, and its outcome, with regard to the terms of the settlement and
to settle or not.
Control is vested not with a judge or jury, but the parties themselves and helps them in
reaching a mutually agreeable solution.

By giving control to the parties, it may also result in the settling of related and connected
issues and disputes.

It also allows the parties to satisfy their long-term and underlying interests at each stage.
This is immensely beneficial as it allows the parties creativity in examining alternatives,
evaluating options and reaching a settlement. When the parties themselves agree to the
terms of the settlement, there is compliance with the terms.

 Consent-based- Based on voluntary consent, it allows any party to opt out at any
stage if they find mediation to be unhelpful.

 Participation- It allows the parties to directly participate in the negotiation and

present the case in their own perspective.

 Economical- Mediation takes less time to resolve disputes than standard legal
channels. While courts may take months or years to pronounce judgements in cases,
mediations take mere hours. According to figures released by the Bangalore
Mediation Centre, while the mediation process can take a maximum of 60 days, the
average time taken to settle a case is a mere two hours.
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If a settlement is reached, the parties also save money on their hourly costs and no further
litigation. Court fees are also refunded.

Since it takes less time, it is speedy, economical and efficient.

 Confidentiality- Mediations remain strictly confidential, with the terms of the

mediation being known only to the parties involved and the mediator. This aids in
better and effective communication between the parties.

 Conducive to dispute resolution- By providing a procedure that is simple and

flexible, mediation can be modified to the demands of each case and allows the
parties to carry on with their day to day activities. It thus created an informal,
cordial and conducive environment for dispute resolution.

 Mutuality- Since parties to a mediation are amenable to mutually working towards

a solution, they are more receptive to the other party’s side. This aids in restoring
the relationship between the parties and settles the dispute in a mutually beneficial
manner.

 Support by mediator- As a neutral, impartial and independent third-party,

mediators ensure that the mediation remains a fair process. They also guide the
parties through the process as neutral facilitators, encourage creativity in resolution
and broaden the range of solutions.

 Finality- Mediation promotes finality in dispute resolution as there is no scope for an

appeal, a revision or further litigation on the successful conclusion of a mediation.

 Refund of court fees- Court-referred mediation also allows for a refund of court
fees in cases of settlement.

Disadvantages of Mediation

 Informality- In the informal setting of a mediation, there are no formal rules or

procedures that have to be followed. Thus, mediators do not have access to a lot of
tools to get people to testify or produce evidence to get to the truth of a matter.

 Unfairness- Moreover, the lack of formal rules means that there is no way to
ensure a fair procedure for the parties involved. An aggressive party might be able
to steamroll a timid one despite the best efforts of the mediator.
The imbalances of power that exist in a family may thus also lead to unfairness in the
mediation.

 Success not guaranteed- Mediation may also be unsuccessful and not lead to a
settlement between the parties involved. The parties will then have to resort to the
money and time intensive court system after already wasting a significant amount of
them in the mediation.

 Non-binding- The agreement reached in a mediation is non-binding. Parties to a

settlement may also attempt to dispute the settlement agreement in case the
agreement is not made binding on them. They can file another suit in court

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challenging the legitimacy of the settlement, creating another dispute on top of the
underlying one.
The only solution to this is to agree to make the settlement agreement binding on both
parties before signing it.

What To Consider When Going for Mediation

Time and Cost of the Mediation Process

 Time
Mediation can take any amount of time, ranging from several hours to days. This depends on
the complexity of the issues to be discussed, the number of parties, and their preparation,
flexibility, and desire to resolve disputes.

According to figures presented by the Bangalore Mediation Centre, however, the average
mediation in India takes only two hours. Moreover, the parties are given a maximum of 60
days to resolve their disputes before reverting to the court.

 Cost
The cost of mediation is extremely economical as compared to the courts. A single motion
filed by an attorney often costs more than the mediation. Mediation fees currently range
between Rs. 15,000 to Rs. 70,000.

A mediation is also less emotionally stressful than a trial might be.

What to Discuss With Your Lawyer Before Going to Mediation

 Alternatives to Trial to be Taken Up

Alternative methods to litigation and trial for dispute resolution that can be referred to by the
court include arbitration, conciliation, judicial settlement through Lok Adalat, and mediation.
It is a good idea to discuss with your lawyer exactly which method to take up as an
alternative to trial.

 Form of Mediation to be Pursued

There are many different forms of mediation, with the most popular being traditional
mediation. A traditional mediation has many distinct phases, such as openings, joint sessions
etc. Other forms of mediation include-

 Facilitative Mediation
 Transformative Mediation
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 Evaluative Mediation
 Directive Mediation
You can read more about them here.

 Parties to be Present at the Mediation

The success of a mediation depends highly on the parties present at the table. This, too,
varies according to the kind of mediation.

Any mediation requires a person who can make a binding decision to be present.

Parties may also want their technical experts to be present as it allows them the opportunity
to learn more in a short amount of time.

In emotionally charged mediation, it may be prudent for a party to ensure the presence of
their psychologist.

 Risk Factors

Mediation statements are issued by the parties days before the mediation begins. These
contain the factual claims and legal arguments according to a party. The parties and their
counsels then need to discuss the risk factors, i.e. the opposition’s strengths and their
weaknesses. This also allows them to start considering solutions.

 Timing of the Mediation

Timing is crucial in a mediation. A person should discuss the timing of the mediation with
their lawyer. The ideal time is as early in the dispute as possible after the parties and
counsels have a good knowledge of the factual and legal issues. It should take place before
expensive phases in the trial, such as depositions.

Challenging a Mediation Agreement

A successful mediation results in a negotiated agreement that takes the place of a contract
between the parties. The parties cannot pursue any litigation for the underlying dispute if
they are dissatisfied with the settlement reached as it would amount to a breach of the
contract.

However, if the parties wish to dispute the agreement, they can bring an action in court
challenging the validity of the agreement based on principles of contract law, and not on the
basis of the underlying dispute.

2.2-Mediation and Role of Mediator

Introduction
Mediation is an alternative dispute resolution (ADR) process in which two or more
parties meet with a mediator to resolve their differences and come to an agreeable
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solution to the problem, such as marital settlement agreements. The mediator is an

outside party, hired by the group involved, who advises each side and helps the session
come to an end as quickly as possible, Mediation is a voluntary process in which two or
more parties involved in a dispute work with an impartial party, the mediator, to
generate their own solutions in settling their conflict. Unlike a judge or an arbitrator
whose decisions subject one party to win and the other party to lose, mediation is
about finding a solution that works for both parties.
What is Mediation?
Mediation may be thought of as “assisted negotiation.” Negotiation may be thought of
as “communications for agreement.” Hence, mediation is “assisted communications for
agreement.” It is an effective way of resolving disputes without the need to go to court.
It involves an independent third party – a mediator – who helps both sides come to an
agreement.
Assisted negotiation is a process where parties negotiate and settle their issues,
disputes or grievances. There is no third party intervention.
Communication remains the most powerful motivator in life. One communication can
change the direction of a person’s life .The key to communication is not control. It is
agreement. To overcome resistance more effectively with communication than can with
force, because with communication, you can establish agreement with other people,
and that reduces the effort in living.
Mediation is always an option if you are thinking about taking dispute to court. Other
signs may be if the dispute has been ongoing, if want to preserve a relationship being
affected by the conflict, if the dispute is upsetting and affecting daily life, if cannot
afford the time and cost involved with litigation, if would like to speak to the other
party so they may hear your concerns, or if would like to resolve the dispute without a
third party judgment. Mediation, as used in law, is a form of alternative dispute
resolution (ADR), a way of resolving disputes between two or more parties. A third
party, the mediator assists the parties to negotiate their own settlement. In some cases,
mediators may express a view on what might be a fair or reasonable settlement,
generally where all the parties agree that the mediator may do so Mediation has a
structure, timetable and dynamics that ordinary negotiation lacks. The process is private
and confidential. The presence of a mediator is the key distinguishing feature of the
process. There may be no obligation to go to mediation, but in some cases, any
settlement agreement signed by the parties to a dispute will be binding on them. It is a
process of dispute resolution that involves a trained third party who works with both
sides of the dispute in an informal discussion, to help resolve the dispute.
Facilitative mediation is a way of returning control to the parties. In a lawsuit, the court
makes a determination or judgment that is imposed on the parties. In mediation, the
resolution will be acceptable to all parties or it can be rejected by any of the parties in

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the dispute. If a mutually satisfactory resolution or mediated agreement is not reached,

the parties still have the option to pursue a lawsuit. There is no harm in trying
mediation.
Evaluative mediation is generally understood to be a process which may include an
assessment by the mediator of the strengths and weaknesses of the parties’ cases and a
prediction of the likely outcome of the case. While in favor of having parties choose any
neutral process they desire, there must be clarity and agreement among the neutral and
the parties as to what the process is and what it is not. Parties and mediators do not
have the same expectations regarding evaluative mediation.
Merits of Mediation
Mediation is easy, immediate and accessible.
Mediation-
· Can be started quickly
· Lets both parties become directly involved in reaching a settlement
· Helps parties explore alternatives they might not have considered on their own
· Is confidential and informal
· Is potentially cost-effective compared with legal action
· Doesn’t prejudice your rights in any way.
· Economical decisions
· Rapid Settlements
· Mutually Satisfactory Outcomes
· High Rate of Compliance
· Comprehensive and Customized Agreements
· Greater Degree of Control and Predictability of Outcome
· Personal Empowerment
· Workable and Implementable Decisions
· Decisions that Hold up Over Time
· The process promotes communication and cooperation.
· It allows the parties, not the court, to make decisions affecting their future.
· It promotes positive family relationships by reducing conflict.
· It is confidential. There is no public disclosure of personal problems or finances,
unlike litigation where both the trial proceedings, as well as all papers filed, are open to
the public.
· Mediation usually costs less than litigation.
Besides these, there are many advantages to mediation over other forms of alternative
dispute resolution (ADR) or civil litigation. Below are some of the major advantages that
mediation and binding mediation offers to the construction industry as an alternative
dispute resolution option. Keep in mind that a judge’s responsibility is to interpret and

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rule on matters of law. The mediators’ responsibility is to assist the parties in settling
their dispute and be fair and equitable to all parties if it is a binding mediation.
1. Mediation is much less costly than civil litigation for many reasons-
a. Most mediators who specialize in construction charge by the hour and the mediation
usually is completed in one or two days.
b. As most construction mediations are conducted in one or two days and most
certainly less days than civil litigation, the cost of your time away from business will be
minimal.
c. Preparation for mediation is far easier and simpler than is required to prepare for
arbitration or litigation.
d. Attorneys are not necessary but may participate at the request of a party.
e. If you choose binding mediation, you will have a similar finality as binding arbitration
offers without the formalities and costs associated with binding arbitration.
f. In many cases, the mediation can be held at the residence involved rather than
needing to schedule a jobsite visit and a separate arbitration hearing at a neutral
location or litigation that must be held at a court of jurisdiction.
g. In most cases, the mediator is well-versed in the issues that are in dispute and can
assist the parties in the reality of their opinions and positions.
h. There should be no court filing fees and related expenses.
2. Mediation is a much faster process.
3. In mediation, the parties are full participants and can express their own opinions and
concerns, where in civil litigation the parties’ attorneys are the only ones who represent
their party unless the party “takes the stand” and is subject to cross-examination by the
opposing attorney.
Recommended next reads

Different Styles of Mediation

4. Mediation allows the opportunity for parties to work together and reach a settlement
and continue to work together to complete the construction project, very often with a
good customer referral at the end of the job. Typically, if the parties end up in litigation,
their relationship immediately comes to an end.
5. After there is a settlement, if other items come into dispute, a new mediation can be
scheduled without affecting the prior settled items. If a major dispute develops in the
early stages of a construction project, a quick, low cost mediation can be scheduled
which will allow the project to continue in a timely manner.

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6. Mediation is so informal that if a construction contract does not recognize an

alternative dispute resolution option; mediation may be scheduled by mutual
agreement of both parties to the contract.
7. In mediation, both parties have the opportunity to check the background and
experience of the mediator unless the mediator is specified in the dispute resolution
section of their contract.
8. Mediation is a private process and not subject to public knowledge and possible
media attention as can be the case with civil litigation.
9. If the mediation is scheduled as a binding mediation or a med-arb process, it is
virtually a guarantee that there will be a full settlement on all issues by the end of the
binding mediation or med-arb process.
10. If there is a full settlement or if certain items are settled and an agreement is written,
that agreement is enforceable in court, if necessary and there will generally be no
appeals process. In civil litigation, there are several levels of appeals available in the
continuing judicial process.
11. Mediation can protect parties from some of the extra problems associated with civil
litigation, such as punitive awards, if applicable.
12. There is no jury in mediation, and the risk of a huge, unwarranted award is greatly
reduced by the fact that an experienced mediator who has a full comprehension of the
construction industry is usually a seasoned professional who is unlikely to be swayed by
emotion or superficial arguments.
13. Discovery is limited in mediation, which usually means that disputants’ attorneys, if
involved in the mediation, will rarely pursue the burdensome fishing expeditions that
can occur in ordinary litigations.
14. Class action litigation is relatively unheard of in mediation, which reduces incentives
to plaintiffs’ lawyers, and can avoid the danger of a large award based on an
accumulation of claims.
15. Insurance companies are more likely to write policies for construction companies
who specify an ADR process in their construction contract for most of the above
reasons.
16. Today, most of the construction cases that are filed with a court of jurisdiction are
remanded to mediation by the judge to see if a settlement can be reached. If no
settlement is reached, the case will then be scheduled for hearing before the court.
Civil litigation is a legal dispute between two or more parties that seek money damages
or specific performance rather than criminal sanctions. A lawyer who specializes in civil
litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation
represent parties in trials, hearings, arbitrations and mediations before administrative
agencies, foreign tribunals and federal, state and local courts.

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Emotion is a complex physiological experience of an individual’s state of mind as

interacting with biochemical (internal) and environmental (external) influences.
In humans, emotion fundamentally involves “physiological arousal,
expressive behaviors, and conscious experience. Emotion is associated
with mood, temperament, personality, disposition, and motivation.
Ordinary litigation is when there is real damage done, like when a gunshop sells under
the table to a known criminal. Political litigation is when innocent parties are sued for
the purpose of creating enough court costs that they either capitulate to the political
pressure or go bankrupt, for example, the bogus lawsuits against firearms
manufacturers, importers, distributors and gunshops which did no illegal dealing.
What are the Roles of Mediator?
The mediators come from a mixed group of staff, from a wide range of departments
and grades. Mediators will only be appointed to cases where they do not know the
parties involved. Mediators are not advocates for either party. They are independent
people committed to the process of problem resolution. Mediators work with people to
find solutions to the problem that will work for both parties.
The mediator’s role is to:
 help people find the best way to resolve their problems
 encourage parties to identify the real issues
 help the parties explain those issues to each other
 identify points of agreement between the two parties
 help people find a way through their problem that may not seem immediately
apparent
 work with people to find answers that reflect good faith and common sense
 provide an assessment of the risks of the problem escalating to the Employment
Relations Authority
 seek a resolution that allows both parties to put the issues behind them.
Each employment relations problem is different. The process for each mediation will
depend on the needs of the parties and the nature of the problem. Mediation services
provide confidential processes where problems can be discussed, issues clarified and a
conclusion reached that all those involved can accept.
Mediators can also:

 Provide early assistance to parties with or without representatives being

present

 Make a written recommendation or decision with the agreement of the

parties

 Record settlements
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 Perform a range of legislative duties under the Employment Relations Act.

 Provide information to unions, to community groups and advisors, to

employer organizations or employment law seminars.

Mediators:
– facilitate discussion between the parties
– clarify underlying feelings to help parties understand each other
– support parties to generate ideas and agreements for the future
– remain impartial and non-judgmental
– ensure that both parties get the opportunity to speak and listen
Mediators do not:

 Make a judgment or decision, or “take sides”.

 It is not the Mediator’s role to make decisions for the conflicting parties.
Mediators do not offer legal advice and they do not try and push the
conflicting parties towards any one particular outcome. The mediator does
not take the side of any one party. The Mediator has no enforcing powers
over any of the involved parties

The primary role of the mediator is to mediate from a position of impartiality, having no
vested interest in the outcome of a dispute between parties. The mediator as well as the
parties can set the ground rules before the process begins. The mediator shares joint
responsibility with the parties for protecting and maintaining the confidentiality of the
process. The mediators that serve the program are trained and certified professionals.
The mediator will explain how the law will affect unresolved issues between the parties.
He/She will not take sides or become invested in any particular outcome of the
mediation. While they want to help, in the end, it’s the parties’ lives that are being
discussed. The parties need to reach their own conclusions with the assistance of the
mediator. The mediator listens without bias.
The parties agree to make full disclosure to each other and to the mediator of all
property and income and all debts. This is a requirement in any family law matter. It is
also very important for the parties to make full disclosure of all information essential to
a successful resolution of the issues. In other words, they need to fully participate in the
mediation.
What are the Legal Effects of Mediated Agreement and so forth?
Parties who enter into mediation do not forfeit any legal rights or remedies. If the
mediation process does not result in settlement, each side can continue to enforce their
rights through appropriate court or tribunal procedures. However, if a settlement has
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been reached through mediation, legal rights and obligations are affected in differing
degrees. In some situations, the parties may only wish to have a memorandum or a
moral force agreement put in place; these are often found in community mediations. In
other instances, a more comprehensive deed of agreement is drafted and this deed
serves to bring a legally binding situation.
Mediation has opened the door for parties in conflict to resolve their differences
through non-traditional judicial forums. Over the last few decades, mediation has
brought to light the processes, or alternatives to litigation, that enable parties to resolve
their differences without the high cost associated with litigation.
Mediation can be very helpful if you and your spouse want to make decisions in the
most cooperative way possible. A trained mediator can work with you to develop a
parenting plan for the children and make other decisions. Your lawyer may or may not
be with you at the mediation sessions, but if you see a mediator, it’s important that you
consult a lawyer about your rights and responsibilities before signing any separation
agreement.
Conclusion
Mediation is a process by which two parties present their dispute to a neutral third
party, the mediator. The mediator is not a judge and cannot make any decisions for the
parties, but can assist the parties in resolving their dispute. Mediation has become an
increasingly popular method of cost-effective dispute resolution. By participating in
mediation, the parties can work towards an agreement and save time and money which
would otherwise be spent litigating their claims. Most mediation problems and issues
arise because the mediators lack structural support and a clear understanding of what
type of mediator they are. As mediation becomes a more mature area of practice and
as the functional framework of mediation is better understood, most of the common
problems and issues should be resolved.

2.3-Judicial interpretation and relevant case laws :-

Legal aspect and approach to mediation in India

Mediation is an out of court settlement which is voluntary and two parties undergo this process to reach an
amicable settlement. Mediation being one of the Alternative Dispute Resolution mechanisms is an
upcoming field in the legal sphere. Mediation is a process where a third party who has no benefits from the
outcome tries to solve is the dispute between the two conflicting parties. The mediation process begins with
an interaction between the mediator and the two parties.

The parties then state their issues and what is the outcome they desire. The basic motive of mediation is to
provide the parties with an opportunity to negotiate, converse, and explore options aided by a neutral third
party, to exhaustively determine if a settlement is possible.[1]

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There are certain preconceived notions about the working of mediation by Indians as they are unfamiliar
about this concept.

Few misconceptions are that mediation yields a lesser form of justice[2], the mediator will make erroneous
decisions, the process of mediation does not work, it is a waste of time[3] and other such apprehensions.
Mediation or any ADR mechanism is not new to India. Alternative Dispute Resolution has been practiced
from the Vedic period.

The Koran recommended mediation where there is a dispute between husband and wife. Then it is
provided in paragraph 219 that if the reconciliation efforts fail then the marriage may be dissolved. It is
clearly provided that the mediator can dissolve the marriage provided they are empowered by both the
spouses. In my view, this section pertaining to mediation is only an enabling provision. It is nowhere stated
in the section that in every case of divorce, mediation must precede pronouncement of talaq.[4]This
process is a speedy and fast method of justice.

The Code of Civil Procedure, 1908[5] in Section 89 states about the settlement of
disputes outside the court.

Settlement of disputes outside the Court.--(1) Where it appears to the Court that there exist elements of a
settlement which may be acceptable to the parties, The court shall formulate the terms of the settlement
and give them to the parties for their observations and after receiving the observations of the parties, The
court may reformulate the terms of a possible settlement and refer the same for:

a. arbitration;
b. conciliation;
c. judicial settlement including settlement through Lok Adalat: or
d. mediation.

Rule 1A Order 10 requires the court to give the option to the parties, to choose any of the ADR processes.
This does not mean an individual option, but a joint option or consensus about the choice of the ADR
process.[6]

In the case, Perry Kansagra vs. Smriti Madan Kansagra[7] the Court held that the process of mediation
was founded on an element of confidentiality. Mediation stands on a completely different footing as against
regular adjudicatory processes. Instead of an adversarial stand in adjudicatory proceedings, the idea of
mediation was to resolve a dispute at a level that was amicable rather than adversarial.

It is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases
which are filed in court need not necessarily be decided by the court itself. The Alternative Dispute
Resolution (A.D.R.) Mechanism as contemplated by Section 89 is arbitration or conciliation or judicial
settlement including settlement through Lok-Adalat or mediation. Section 89(2)(d), therefore, contemplates
appropriate rules being framed with regard to mediation. This was held in the case Salem Advocate Bar
Association vs. Union of India (UOI)[8]

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Judicial Pendency and Right to a speedy trial in Indian courts

The Indian courts suffer mainly from the pendency of cases. Over 3 crore cases are pending in the judicial
system recorded until April 2018, which includes the Supreme Court, High Court, and other subordinate
courts.[9] Of these, the subordinate courts represent over 86% pendency of cases, trailed by 13.8%
pendency under the watchful eye of the 24 High Courts. The staying 0.2% of cases are pending with the
Supreme Court. The main reason for the pendency is the logistics work and the formalities of the courts in
India.

The average pendency of any case in the 21 high courts for which we have data is about three years and
one month[10].Karnataka High court if taken as an example the pendency in days measures up to 1011
days on an average.[11] In these, over two years one could expect to go to court about 12-13 times, as the
average time between hearings in the Karnataka High Court is 78 days.[12]

Mediation being an informal and fast process can surely reduce the pendency in the courts. The pendency
of such cases creates a delay in restoring justice. The maxim Justice delayed is justice denied' quoted by
William Goldstone depicts the current situation of the Indian Judiciary.

This delay may be of various reasons such as the insufficiency of judges in the courts, an increase in the
number of appeals to the appellate courts, absenteeism of advocates, and other such delays. The
Constitution of India in its Preamble provides social, economic, and political justice to all its citizens.
Therefore it is the duty of the State to secure a social order for the promotion of the welfare of the people.
[13]

The main facets that constitute the essence of access to justice are the State must provide an effective
adjudicatory mechanism; the mechanism so provided must be reasonably accessible in terms of distance;
the process of adjudication must be speedy, and the litigant's access to the adjudicatory process must be
affordable.[14] The process of adjudication should be speedy in order to render justice to the people. It is a
basic right enjoyed by the people involved in court proceedings.

In Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr[15] while holding that speedy trial at all
stages is part of right Under Article 21, it was held that if there is a violation of the right of speedy trial,
instead of quashing the proceedings, a higher court can direct conclusion of proceedings in a fixed time. To
render speedy justice is the duty of the state and the administration of justice is a state subject. Therefore
the States must look into the maintenance of Fast track courts with the help of the Union Government.[16]

Approach to Mediation in India

Mediation is an upcoming field in India. The first mediation training session was conducted in Ahmedabad
in the year 2000 by the Institute for the Study and Development of Legal Systems (ISDLS), a non-
governmental organization based in San Francisco, California, USA.[17] After this, the scope of mediation
in India has escalated. Many lawyers as well as people from other professions are taking up this course.
Several districts and cities have come up with mediation centers. Some of the examples of public mediation
centers are Bangalore Mediation Centre, Delhi mediation center, etc and private are Centre for Advanced

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Mediation Practice (CAMP), Bangalore, India International ADR Association (IIADRA), Cochin, Mediators
India, Chennai etc.

The Mediation and Conciliation Project Committee was constituted by the then Chief Justice of India
Hon'ble Justice R C Lahoti in the year 2005. The project gave effect to Section 89 of the Civil Procedure
Code 1908[18]. Many High Courts in India along with State legal services authority is taking the initiative to
establish Alternative Dispute Resolution Centres. One such instance can be seen with the setting up of the
Kerala State Mediation and Conciliation Centre (KSMCC) in the districts of Kerala.

Mediation has become the order of the day. Various cases in the Supreme Court and High Courts have
been referred for mediation. This is clearly visible in the landmark case M Siddiq (D) Thr v. Mahant
Suresh Das Ors[19] also known as the Ram Janmabhoomi case in which the Supreme Court referred the
parties for mediation. The mediation report was submitted by the Court-appointed mediators namely retired
Justice F M I Kaifulla, Sri Sri Ravi Shankar, and Sriram Panchu.

The parties weren't able to reach an amicable settlement. The Courts in India are taking steps to popularise
the ADR process. The Supreme Court held that:
If the court refers the matter to an ADR process (other than Arbitration), it should keep track of the matter
by fixing a hearing date for the ADR Report. The period allotted for the ADR process can normally vary
from a week to two months (which may be extended in exceptional cases, depending upon the availability
of the alternative forum, the nature of the case, etc.)[20]

Certain new enactments of the parliament such as The Consumer Protection Act 2019[21], Industrial
Disputes Act 1947[22] and The Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts (Amendment) Act 2018[23] has provisions for mediation. Chapter V of the
Consumer Protection Act 2019 refers to mediation in consumer protection cases. The State Government
shall establish consumer cells which will give its report to consumer commissions.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts
(Amendment) Act 2018 act provides for pre-institutional mediation. It is mandatory for the parties to
complete the mediation process within three months from the date of application of the suit. [24]

Many family law cases such as divorce, child custody, etc are referred for mediation as the parties can
settle with certain compromises. Although if the parties are not ready to compromise then the court
proceedings are always available. Various cases such as Meenal Bhargava vs. Naveen Sharma[25] have
shown that the clashes have been settled due to the process of mediation.

Role of judiciary in alternate dispute

resolution
Introduction
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Alternative conflict resolution techniques have grown in popularity in recent years, owing to their
numerous benefits over the traditional way of litigation. In a report presented to Parliament in
September 2014, the Ministry of Law and Justice showed that India is short of nearly 6,000 judges.

It’s worth noting that between 2006 and 2018, India saw an 8.6% increase in the number of cases
pending in all courts, lengthening the time it takes for a judge to determine a dispute. These
considerations make it possible to prevent litigation in India, particularly in contractual issues that can
be resolved by alternative methods such as arbitration, which is regulated by the Arbitration and
Conciliation Act, 1996.

Alternative dispute resolution is a procedure for parties who do not agree or have certain
disputes with one another. This resolution gives them more possibilities for reaching a compromise.
Conciliation, mediation, arbitration, and Lok Adalat are some of the examples of these methods. These
procedures are far superior to the traditional court procedures. They are both faster than traditional
court procedures. They are also casual, requiring fewer protocols and formality on the part of the
families.

Different methods to solve disputes

As we all know there are a few methods available for two parties to resolve disputes. The first and
most common approach is to resolve disputes through courts when a dispute occurs between two
individuals belonging to the same government, there is the same sense for the dispute to be resolved
by the parties through the courts set up by that country’s law. Our conventional judicial system has
become outdated and there has also been a need for another structure to sustain our judicial system
as a replacement or alternative for settling disputes between peoples.

Our judicial system has some drawbacks, such as an overburdened court, time-consuming, requiring a
costly technical process with a low population ratio of judges, and unfilled vacancies with long
procedural and pendency of cases.

Alternative dispute resolution mechanism in the Indian

judiciary system
Justice is the foundation and the focus of every civilized society. The quest for justice was an ideal that
the human race aspired to down the line for decades. Dispute resolution is one of the Indian judiciary’s
major functions and is essential to a stable society. The Government of India operates through various
organs and the judiciary is directly responsible for the administration of justice.

The judiciary in India is the real point of the provision of justice. Resolving conflicts is one of the key
factors for society’s peaceful existence. Arbitration, the ADR style, is accepted as an instrument of
dispute settlement by the Indian judiciary. Originally, arbitration was regulated by the Indian
Arbitration Act, 1940.

The courts were mainly concerned about the control of the arbitral tribunals, and they were very keen
to see if the arbitrator had exceeded his authority in determining the matter referred to him for
arbitration.

The judicial process in India is not only expensive for an ordinary person but also it takes years and
years to deliver justice. To address the much-criticized delay in the delivery of justice, the

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implementation of Alternative Dispute Resolution (ADR) mechanisms such as Lok Adalats, arbitration,
mediation, and conciliation were considered and followed with praiseworthy results afterward.

The judiciary has figured prominently in developing and transforming India into an arbitration-friendly
country, and the day is not far away when India will be a significant contender in hosting international
arbitrations. When a party challenges an arbitration ruling, the Supreme Court of India and different
High Courts have taken a hands-off attitude.

In recent years, Indian courts have repeatedly embraced an arbitration-friendly attitude. There have
been numerous cases where courts have sustained arbitration agreements despite small flaws, thereby
recognising the parties’ decision to have their problems resolved through arbitration. Despite adopting
a pro-arbitration stance, the Supreme Court approved an arbitration agreement despite an error,
concluding that because the parties’ purpose to arbitrate was obvious, the Court can make the
arbitration agreement viable even if it contains certain faults.

Whenever litigants have attempted to circumvent the Arbitration Act’s requirements, the courts have
typically refused to interfere with the awards made under the Act. Anti-arbitration injunctions have also
been granted with caution by the courts. The High Court has ruled that if a party has recourse under
the Arbitration Act, it cannot obtain an anti-arbitration order from the court by ignoring the Act’s
provisions. In that particular ruling, one of the arbitrators was chosen in conjunction with another party
and without implementing the consented process, prompting the party to seek an injunction from the
Court prohibiting the arbitral tribunal from proceeding with the arbitration.

Measures to be taken to make ADR more effective

There are certain measures that can be taken so that the arbitration process in India will no longer be
allowed to drag on needlessly:-

 The transition from ad hoc to institutional arbitration should be pursued.

 Courts should impose steep fines on bogus requests to overturn arbitral rulings.
 Expert arbitrators should be appointed based on the circumstances of the case.
 Laws pertaining to arbitration, mediation, and conciliation lack a clear distinction and should
be defined clearly.
 Each financial year, the state must specify a reasonable proportion of new issues that must
be resolved using one of the ADR methods. It would encourage organisations to begin
training and developing skills to advocates in the area of ADR, as well as building a profitable
ADR practise.

Findings of the Law Commission of India

While the alternative methods have provided speedy justice to the people, some legal luminaries have
raised a few relevant questions through these exercises. The Law Commission of India maintained that
the reason for the judicial delay was not the lack of clear procedural rules, but rather the inadequate
implementation or even absolute non-observance thereof. In its 14th Report, the Law Commission of
India categorically stated that the delay did not result from the law-making process, but from the non-
observance of many of its important factors. Given the huge number of cases pending, governance and
administrative oversight of the judiciary by manual processes have become extremely difficult.

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If we study the reports from the Law Commission of India it sheds light on the factors that contribute
to delays and a huge backlog of cases before the courts. The main contributing factors are regular
adjournments to clients and attorneys, trial boycotts by lawyers, a scarcity of presiding tribunals and
tribunals, lack of adherence to basic procedures and standards of case management and disposal.

The Supreme Court in Brij Mohan Lal v. Union of India & Others made it clear that this state of affairs
must be addressed: “An autonomous and effective judiciary is one of the basic structures of our
Constitution … It is our constitutional obligation to ensure that the backlog of cases decreases and that
efforts are made to increase the disposal of cases .”

In the case of Avitel Post Studioz Limited v. HSBC PI Holdings Limited, the Supreme Court recently
addressed the subject of whether or not claims of fraud can be handled in arbitration rather than in
court. The Apex Court decided that “serious charges of fraud,” leading to non-arbitrability, could
emerge solely if any of the following two requirements were met, but not otherwise:

In cases in which the Court decides that the arbitration agreement itself is irrevocably tainted by
fraud; or when claims of arbitrary, fraudulent, or mala fide conduct are made against the State or its
instrumentalities, giving credence to due process concerns rather than commercial questions.

Thus, it implies that all other cases containing “serious allegations of fraud,” that is, situations that do
not fit the Supreme Court’s two criteria, would be arbitrable.

Alternative dispute settlement was once viewed as a voluntary act on the part of the parties seeking
legislative recognition under the Civil Procedure Reform Act, 1999, the Arbitration and Conciliation Act,
1996, the Legal Services Authorities Act, 1997, and the Legal Services Authorities (Amendment) Act,
2002. What is required now is the implementation of the Parliamentary object.

Conclusion
ADR and the judiciary should work in tandem as they both are reliant on one another; the Courts must
urge the parties to resolve their conflicts constructively using ADR processes. The Courts’ engagement
in the ADR process should be limited, and they should only act if needed; more freedom must be given
to the ADR procedure in business disputes. The arbitrator, who is attempting to be an unbiased judge,
ought to be rigorous and liable for any liability they may incur. Arbitrators should be given training and
such advocacy programmes should be organised by the judiciary to give them and train them the
proper method to conduct themselves in the ADR process.

It is strongly recommended that in a country like India, where the ADR process is rapidly expanding
with more cases being filed, the judiciary should commence arbitration advocacy under the Arbitration
Act, allowing it to resolve more litigation and conflict cases in India.

Although the court system has attempted to extract obstacles during and after the arbitral proceedings
by generally refraining from meddling with arbitral tribunal decisions or having to pass other
arbitration-friendly judgments, this may not be enough to entice foreign entities to use India as a
venue for arbitration.

Unit 3: Communication and Skills in Mediation

3.1-Elements of verbal and non-verbal communication

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Communication in alternative dispute

resolution
Introduction
Communication is a crucial aspect in our everyday lives. But it assumes a greater role in resolving
disputes. Communication can either make our argument strong or make it vulnerable to outside
influence. Alternative Dispute Resolution is one such method of resolving disputes which depends
solely on communication. If your communication skills are good, then you automatically gain an edge
over the other counsel. Communication is as important in ADR as food is for our body. Just like we
won’t be able to survive without food for long, similarly without communication, disputes cannot be
resolved or even heard till the judgment day. Communication becomes more important in ADR because
in courts, evidences plays a part in deciding the outcome of the case but while resolving disputes
through ADR, communication is the whole and soul of the mediation/arbitration and other processes.

How do you resolve your disputes that arise on a daily basis? Do you go to court ? Or you prefer to
settle is outside by various means? As per the trend, most of you will prefer to settle disputes outside
the court. But WHY? There are a number of reasons for it, like – you don’t want to get involved in a
court case or simply you prefer to stay away from all the hassle. This is a general consensus and most
people find in more convenient. We all find out various ways (arbitration or consensus ad idem) to
resolve conflicts just to avoid legal proceedings.

But are you actually aware of what this way of dealing with disputes outside the court called? It is
called ALTERNATIVE DISPUTE RESOLUTION (ADR).

In layman’s language – ADR refers to an informal way of dealing with disputes outside the domain of
court by using various techniques. It is a more preferable and an easier way to deal with disputes.

By definition – Alternative dispute resolution (ADR) refers to a variety of processes that help
parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral
evaluation, and collaborative law.

How can we deal with disputes by means of ADR? One of the most important elements of this
is Communication. It refers to way in which we express ourselves, our thoughts and emotions to the
other party by way of speaking, writing, non-verbal techniques etc.

But why is communication necessary? It is necessary because unless and until we do not communicate
to the other party, there will be higher chances of someone being sued.

What are the different ways of communication?

1. Verbal
2. Non-verbal
3. Written

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4. Listening
5. Visual communication
Are there ways other than communication to resolve conflicts through ADR? Yes, they are as follows:

1. Mediation
2. Arbitration
3. Neutral Evaluation
4. Case conferencing
Alternative Dispute Resolution plays a pivotal role in any country’s legal system by unburdening it to
some extent, but this trend is changing. All thanks to the film & media industry to present it in a
glamorous way which attracts and de – motivates people to resolve conflicts through ADR.

Communication
“Communication is not only the essence of being human, but also a vital property of
life.” – This is a quote by John A. Piece, depicting how important communication is for a human being.
Communication is not only the crux of human lives, but also plays a huge role in determining our
personal and social life. It’s like riding a bicycle; the more we work on our communication skills the
more we progress in life.

Communication is a tool by which we, as social creatures can express ourselves and establish relations
with others, either formal or informal.

An effective communication is must for any sort of work, be it a contract or resolving an issue. It eases
off, prevents and eliminates the barriers that hamper effective transfer of ideas, thoughts, emotions
etc and acts as a mediator in resolving conflicts that occur at various steps.

Types of communication
1. Verbal communication: refers to the use of spoken language to convey a message to the
listener. The speaker produces sounds that is then transmitted to the other person. The
message is encoded by the sender, is transmitted via air using sound, then received by the
listener who decodes the meaning to understand the message.
2. Non–verbal communication: This is also an integral part of communication. Sound may or
may not be present but the way it is used indicates or communicates a message (A person
shouting – depicts he is angry or annoyed, etc). The use of Facial expressions, actions, body
language, etc, are examples of non-verbal communication.
3. Written communication: With the advancement in print media and technology, writing has
become a popular mode of communication. In the present world, people use written
communication more than other form of communication because of its advantages. It’s
easier to spread the message in written form rather than verbal or non-verbal methods (Ex –
Email, invitations, cash memo etc).
4. Listening – “One of the best ways to persuade others is with our ears – by listening to
them” This is a famous quote by Dean Rusk (Secretary of state under Presidents John F.
Kennedy & Lyndon Baines Johnson) provides us with one of the most important aspect of
communication i.e. Listening . Many people will ignore this but in actual practice, effective
listening is as important as effective speaking or non-verbal methods. It basically refers to
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decoding the information received by various means in order to interpret it as accurately as

possible. Even a slightest misinterpretation may change the actual meaning which may cause
various other difficulties.
5. Visual communication: This is often the most ignored form of communication but it’s as
important as any other form. Visual communication refers to a form of communication
wherein there are no words or sound or anything like this. Only the picture or the art work is
the one communicating. We have to use our prior knowledge in order to understand what the
creator is trying to tell us.

Alternative Dispute Resolution

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out
to them how the nominal winner is often the real loser — in fees, and expenses, and waste
of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There
will still be business enough.” – Quoted by Abraham Lincoln, explains the concept of Alternative
Dispute Resolution. This shows the relative importance of ADR in everyday life and why we should opt
for it rather than following the regular process of litigation.

ADR is an acronym for Alternative Dispute Resolution, which refers to a variety of dispute resolution
processes that act as an alternative to judicial trial. There are various forms of ADR but the most
popular forms of ADR are Mediation & Arbitration.

Types of Alternative Dispute Resolution

Mediation: refers to facilitation of any agreement by a third party who should be neutral while
decision making. It is cost-efficient and fastest method in ADR

“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — quoted by
Joseph Grynbaum, tells us the value & importance of mediation in ADR.

It is a process which is solely based on communication between the parties for resolving the conflict
between the parties which results in a win-win situation for both of them with the end of mediation
process. The mediator aims to establish effective communication between both the parties and try to
reach at a conclusion so as to resolve the conflicts.

1. Arbitration: refers to a consensual decision by the parties to resolve their dispute by

submitting it to one or more arbitrators. The decision so given is binding on the parties this is
a private way of resolving disputes instead of going to court.
2. Neutral Evaluation: is mainly related to arbitration, in which the case is submitted to a
third party who decides on the matter from a neutral perspective. But in this the decision is
non-binding unlike arbitration.
3. Case conferencing: refers to a process in which the judge or its representative meets with
the parties and try to resolve the dispute outside court before trial begins.

Advantages of ADR
1. Reduces burden on Courts: As cases are resolved outside the court without judicial trials,
thus reducing the number of cases appearing before the court.
2. Cost & time efficient: The process involving mediation, arbitration etc, are resolved by
mutual understanding and rarely involves lawyers. This reduces the cost of lawyer and other
court fee. Also the time required to resolve any dispute is lesser.
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3. Beneficial for all the parties: As this process involves mutual agreement and deliberate
discussion by the parties, the end result will suit both of them and is a win-win kind of
situation.
4. Proceedings are private: The process of resolution of dispute is private and stays between
the parties.

Why is communication important in the process of

Alternative Dispute Resolution?
“The problem with communication is the illusion that is has occurred.” — quoted by George
Bernard Shaw clearly depicts the importance of effective communication. We often assume that
whatever we wanted to say to others has been properly conveyed. But sometimes this assumption is
misleading & in reality nothing much has been conveyed. This encourages the need for effective
communication.

So far we have discussed about the definition and components of Communication & ADR. But here we
will talk about why communication is necessary for resolving disputes through ADR. Communication is
the key factor in ADR, without it, disputes & conflicts cannot be solved. Every method of ADR requires
one or other form of communication, be it mediation/arbitration or any other form.

Slightest misunderstanding can change the understanding & outcome of the case, that is why clear and
efficient communication is must. Here are the steps of communication that are required in ADR:

1. Active Listening with empathy – the key aspect of communication is listening to others
with empathy. Empathy refers to putting your foot in someone else’s shoe. This means trying
to understand the situation from other’s perspective as well. This will lead to a better
judgment of the situation , hence helping us in deciding the matter more clearly.
2. Body language – This refers to non-verbal signs & gestures that we often use to convey our
thoughts, emotions etc. This has a huge impact on others in assessing the situation. A
person with a confident body language is more likely to create an impact & persuade the
others to decide in their favor.
3. Commonly used techniques in ADR:

 Summarizing: refers to giving a brief statement highlighting the main points & the subject
matter. It is extremely important for effective communication which is often accompanied by
paraphrasing about the subject matter.
 Reflecting – This confirms that we have heard the other party well and deciding on the
matter keeping in mind the views of other party. This depicts that whatever decision is being
taken is in accordance with the interests of the concerned parties.
 Acknowledgement – refers to acceptance of truth or existence of something. This is
important as to win the trust of the concerned parties while making decision. Also
acknowledgement is a sign of effective communication.
These techniques of communication are very essential in ADR. A slightest misunderstanding and
everything can go wrong. Communication is a medium of exchange which uses both verbal & non-
verbal sensory channel. We encode the information, transmit it and wait for others to decode it. There
are 3 styles of communication:

1. Passive style – refers to a mode of communication wherein an individual tries to avoid

excessive feeling, opinions, and thoughts etc keeping in mind the needs they have. Those
using passive communication often has low self esteem & behavior depicts lack of action,
refusal of anger, aggressive behavior. All this behavioral elements transform a person into

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being an introvert. This passivity of communication leads them to isolate themselves

physically and emotionally.
2. Aggressive style – refers to a way of communication in which an individual strongly
expresses his opinions & thoughts to others speaking on behalf of their needs in a way that
violates the right of persons who come in contact with them. These persons are aggressive
(verbally/physically) in nature, are always on alert and do not focus about the impact they
have on others. These people have low self esteem because they have experienced some
kind of emotional or physical abuse, feeling helplessness and unhealed emotional wound.
They always try to dominate the others by way of aggression causing stress to those in direct
contact.
3. Assertive style – is a mixture of passive and aggressive style in which individuals express
their opinion and thoughts clearly and in correct terms for their rights and needs keeping in
mind the needs of other parties as well. Person using assertive style has high self esteem
and is confident. They are extroverts and can talk for themselves confidently and accept
other’s point of view. In this, they establish a relation with good terms and deal with the
situation effectively without resorting to aggression or court trial.
Mediation and ADR have been present in our society. In olden days, there used to be wise person who
acts as a mediator, arbitrator in case of disputes. This wise person is considered as a neutral mind that
will decide on the matter from an unbiased point of view and decide on the matter that suits best for
both the parties. All this is possible because of effective communication that seems as the best solution
to the problem and to decide in such a manner that it will be a win-win situation for the parties.

Conclusion
Clear and effective communication is not something which we are born with. We have to work hard to
achieve success in the field of communication which comes with patience, practice and hard work. A
person who works on his communication skills gets an edge from its counterparts. Good, clear &
effective communication is the need of the hour.

From legal perspective, we communicate primarily for two reasons: – to flee or to fight. The style of
communication can vary but the ultimate aim always circles around these two. In Alternative Dispute
Resolution, communication is the most important medium of exchange. Direct, open, simple & honest
method of communication helps in clear understanding of the situation and prevents misinterpretation
of the message. Also clear, effective & efficient communication helps the party to win trust of others
and to convey their stand on a particular matter. This establishes a long term relation which is
beneficial in many ways.

Also communication process should be open for criticisms & scope of improvement with better
understanding because criticisms and conflicts are constructive in nature and helps in overall
development.

The main motive of ADR is to settle dispute outside court by employing various means/methods. We
can conclude that effective communication is a vital, necessary & the most important tool in Alternative
Dispute Resolution (ADR).

3.2- Effective and ineffective communication techniques

Background
What is effective communication? Communication is where we convey information from one
person to another or to a group of people. Effective communication is where this information is
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both received and understood. Ineffective communication is where the message may have
been received but not understood; therefore, the message may not be acted upon or leave the
recipient confused.
Types of Communication
There are various types of communication that we can use. No matter which we use, making
sure your communication is effective is important. Some example types of communication are:
 Verbal – we communicate face to face, via video conference or telephone conference or via
the telephone with the person
 Non-verbal – we are constantly communicating with our body language. What we say may
not always match how we look and this can cause confusion
 Written – we communicate via email, letter or instant messenger

What is Effective Communication?

To answer the question of what is effective communication, we can first look at a definition for
effective communication.
Effective communication is the passing of information and understanding from one person’s brain to another person’s brain with
the minimum amount of interference.

If we break this down into its parts, this will help us to understand what effective communication is.
 Passing of information – we construct a message in our brain that we want to convey to someone
else
 Passing of understanding – we want the recipient to understand our message, not just receive it
 The minimum amount of interference – we need to reduce or remove any barriers to
communication to ensure the message is fully received

Effective communication is the passing of information

and understanding from one person's brain to another

person's brain with the minimum amount of

interference.CLICK TO TWEET

What Makes Communication Ineffective?

To further help answer the question of what is effective communication, it is important that we
understand what makes communication ineffective first. This is what will cause our communication to
fail.
Communication fails when there is too much interference, more commonly known as barriers to
effective communication.
When communication barriers exist, this stops the message from being completely received and
understood.
Some examples of barriers to effective communication are:
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 Poorly constructed message – we haven’t given any thought to what we are communicating and
how we are going to communicate it
 No objective – we haven’t thought about what we want the person to do with the message or what
actions we want them to take
 Not enough time – the message is rushed or we or the recipient haven’t got the time to communicate
or listen
 Wrong communication method – we have used the incorrect method for the message (i.e. used
email instead of face to face)
 Not interesting – the message is not of interest to the recipient
 Language barriers – in multi-cultural organisations, your language may not be the first language of
the recipient
 Relationship issues – you and the recipient may not get along and this may influence how we
communicate or how the recipient perceives and receives the message
In order to ensure our communication is effective, we need to reduce or remove the above barriers to
effective communication.
Making Communication More Effective
To ensure our communication is effective, we should consider the following. This will help us to
remove some of the barriers to effective communication listed above.
 Have an objective – think about what you want the recipient to do after you have communicated to
them, for example, what actions do you want them to take. This will help you to form the message
more effectively
 Create time – if the message is important, book out time with the recipient rather than
communicating on the fly
 Pick the right method – think about the best way to convey the message, for example, will the
understanding be lost if there is no body language? If that is the case, email probably won’t work
 Create interest – make the message interesting for the recipient. Think about the benefits to them.
Consider the delivery of the message based on their personality style

Communication fails when there is too much interference, or more

commonly known as barriers to effective communication. In order to

ensure our communication is effective we need to reduce or remove

these barriers to effective…

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3.3(a) Decision-making techniques

“Certainty is a cruel mindset. It hardens our mindset against possibility.”

~ Ellen J. Langer
Decision making is a process. Taking a decision is an act. In mediation, parties’ right of self-
determination is to be respected. By no stretch of imagination there can be any compromise
on the principle of ‘right of self-determination of the parties’. Mediation being an assisted
negotiation process, a mediator assists the parties during the negotiation. Decision making is
part of the negotiation process. Taking a decision is the end-result of each stage of the
decision-making process in a negotiation. Both are the two different stages of negotiation. To
the question, “Whether the mediator assists the parties in both the stages?” the answer is a
clear “No”.
A mediator assists the parties in the process of decision making without compromising on the
ethical principles. During this decision-making process, the parties are assisted in such a way
that they are not only prepared to take decision either way, but also to take ownership for the
consequences of the decisions taken by them. However, the part of ‘taking a decision’ is left
completely to the domain of the disputing parties.
The different steps involved in a decision-making process are: –
STEP 1 –> SETTING THE ATMOSPHERE: PREPARATORY STAGE
1. i) Understanding the Need to Take a Decision: –
Dr. Ellen J. Langer, the professor of psychology said “Certainty is a cruel mindset. It hardens
our mindset against possibility”. The disputing parties may not be prepared to look at all the
possibilities. As part of decision-making process, a mediator assists the disputing parties to
honestly understand whether there is a need to take decision, irrespective of whether they
would take decision or not. In the absence of this understanding, involving the parties in the
decision-making process may be a futile exercise. A situation may arise where one of the
parties may have a pressing need to take a decision, but the other party may not face such
pressures. Unless both the parties feel the ‘need’ to take a decision, the negotiation may not
be complete. In all situations, the parties may not express this underlying need to the mediator
by words. The mediator must understand this need, if any, from the overall circumstances and
by looking at the larger picture with a deeper insight.

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After spending some quality time with the disputing parties, the mediator brings them safely
to a stage where emotions that have been resolved, do not pop up again and affect the
decision-making process. Preparing the parties to enter into the decision-making process may
involve addressing many emotional issues. In this stage of preparation, the mediator sees to it
that all the emotions that are blocking the parties, or that may potentially block them in the
future, from participating in the process are holistically addressed.

This part of the decision-making process is a strengthening process where, the strength and
depth of the passage of roots of the decision tree are properly assessed by the mediator. By
the end of this first step, parties take a decision, either to participate wholeheartedly in the
mediation process or not to. They take a decision to consider possibility in the place of
certainty.
STEP 2 -> IDENTIFYING THE PROBLEM
1. Mediator assists the disputing party/s to identify that or those problem/s for which the
disputing parties are expecting the solution/s through mediation.

2. Mediator assists the disputing parties to find out whether the problem/s is/are identical
to both the parties?
By the end of these two initial steps of decision-making process, parties take a decision in
identifying what their problem/s is/are, and whether the problems are identical or different.
STEP 3 -> PROBABLE OPTIONS
1. i) Generating Options: The mediator assists the parties in generating several options to
move towards resolution of the dispute.
2. ii) Listing: The mediator assists the parties to make a list of all probable options.
iii) Prioritizing: The mediator assists the parties in prioritizing the generated options with the
help of a VED Analysis. (Vital, Essential and Desirable options).
1. iv) Confirming: The mediator assists the parties in listing the options to be exchanged
between the parties
2. v) Exchanging: The mediator sets an atmosphere to exchange the offers between the
parties.
The mediator assists the parties to see to it that by the end of each of these stages, the
disputing parties take decision on their own.
STEP 4 –> EVALUATION OF OPTIONS
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 Bracketing: Assisting each of the parties to analyze and consider which of the options
proposed by the other side is (a) Agreeable, (b) Not at all agreeable and, (c) Can be
considered only if nothing works out.

 Probable consequences of effect of decisions: The mediator assists the parties to

analyze the probable consequences of agreeing or rejecting each of the offers given by the
other side on the basis of immediate and later effects of the decision to be taken by them.
Assured gain which may be immediate, long term gain, probable gain in the near future or at
later stage, assured loss which may be immediate or later, probable loss which may be in the
immediate future or later, are all analyzed by the parties thread bare.
When the disputing parties are not on the same page, they are encouraged to see whether they
can consider the options parked as ‘considered if nothing works out’. If both the parties agree,
mediator assists them to once again go through the stage of ‘Evaluation of options’ through
bracketing and analyzing consequences of effect of decisions.
 Rating: Mediator assists the parties to rate the options generated by both sides from a
neutral perspective as (i) Good and Bad and Ok
STEP 5 -> FINALIZING
 The mediator draws the attention of the parties to the consequences associated with each
of their choices.
 The mediator helps them understand what they are getting
 The mediator helps them understand what they may be losing.
 The mediator requests them to take a decision as to ‘whether it is worth accepting the
offer/s on the mediation table?’
 The decision given by each of the parties is communicated to the other side.
 The common decision is respected.
Thus the Mediator assists the parties in such a way that “Every step of decision making
ends with taking decision.”
Advantages: When parties are made to pass through every aspect associated with resolution of
dispute in a professional manner , they get involved in the process of decision making.
Automatically they start looking at the problem than at people. Separation of people from the
problem takes place unknowingly.

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Parties try to move from decisions taken by them on the basis of their intuition to decisions
taken by them based on reasoning. Their faith in the latter gets confirmed due to the
professional assistance provided by the neutral mediator.

“Intuition has its place in decision making…but any one who thinks that intuition is a
substitute for reason is indulging in a risky delusion.”

(b)What is problem-solving mediation?

Problem-solving mediation is a style of mediation that focuses on finding a solution
that satisfies the needs and interests of both parties, rather than imposing a
compromise or a legal judgment. It is based on the assumption that the parties have a
common problem that they can solve together, rather than a fixed position that they
have to defend or concede. Problem-solving mediation encourages the parties to
communicate openly, explore their underlying motivations, and brainstorm creative
options.
2Why is trust important in problem-solving mediation?

Trust is a key element in problem-solving mediation, as it enables the parties to share

information, express their emotions, and cooperate with each other. Without trust, the
parties may be reluctant to reveal their true interests, afraid to propose innovative
solutions, or skeptical of the other party's intentions. Trust also helps the parties to
overcome their biases, assumptions, and stereotypes, and to view the other party as a
partner rather than an adversary.

3How can you build trust in problem-solving mediation ?

Building trust in problem-solving mediation requires both skills and attitudes from the
mediator and the parties. To do this, it is important to establish rapport and empathy,
clarify the process and roles, encourage joint problem definition, facilitate collaborative
brainstorming, and support mutual evaluation and selection. Show respect, curiosity,
and understanding for each party's perspective, feelings, and needs by using active
listening, paraphrasing, and summarizing. Explain the purpose, goals, and steps of
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problem-solving mediation and how it differs from other forms of dispute resolution.
Frame the conflict as a shared problem that can be solved together rather than a win-
lose situation. Generate as many possible solutions as possible without judging or
evaluating them.

3.4-(a) Developing mediation skills:-

Introduction
In any civilised community, a fair and effective mechanism for resolving disputes is essential for
safeguarding and defending citizens’ rights. The “Court brings disputes to a close and ensures that
citizens can enforce their rights.” However, in most parts of the world, rising litigation costs,
overburdened court schedules, and delays in case resolution have cast doubt on the system’s efficacy.

This is reflected in a Supreme Court of India judgment, which states that “interminable, time-
consuming, complex, and expensive court procedures compelled jurists to seek an alternative forum
that is less formal, more effective, and can speedily resolve disputes without procedural claptrap.”

Mediation, unlike arbitration or litigation, is a relatively recent process that has been utilised to resolve
labour, business, community, and divorce cases. Mediation is a method that can be tailored to a
variety of different types of disagreements. Although arbitration is probably the most popular form of
alternative dispute resolution (ADR) outside of the courtroom, mediation is becoming more common
because of the recent development of arbitration contract clauses. Commercial disagreements
frequently emerge between parties that, by necessity, must be able to work together amicably. This
article focuses on mediation as a mode of resolving disputes and conflicts by exploring the benefits of
using mediation over all other modes of conflict resolution that are available to us today.

Meaning of mediation
Mediation is the participation of a neutral third person to support and assist individuals involved in a
disagreement in reaching a resolution. Negotiation differs from mediation in the sense that the parties
involved work out the issues of their own accord. They have the assistance of a third party, the
mediator, in the case of mediation to help them reach an agreement. Mediation, whether official or
informal, can often assist in resolving issues that have progressed beyond the stage of negotiation.

Characteristics of mediation
One of the most important aspects of mediation is that the mediator does not ‘sort things out’ for the
parties involved. Instead, he or she assists the parties in collaborating to create their own agreement.
Although there are many professional mediators working to mediate problems, anyone can act as a
mediator in a dispute between co-workers or to reconcile two feuding friends or neighbours. Mentioned
below are a few important characteristics of mediation:

 Participation is entirely voluntary.

 Face-to-face meetings between the conflicting parties
 An unbiased mediator with no decision-making power assists those involved in reaching an
agreement by helping them comprehend one other’s perspectives.
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 All participants have an equal opportunity to speak and clarify their point of view.
 All pertinent data is being shared.
 An agreement can be reached by both sides without being coerced/ patronized in any
manner.

Mediation skills
A mediator must possess a diverse set of abilities, including the following:

 Listening abilities that are active.

 Emotional intelligence to understand the underlying emotions; questioning and clarifying
skills to grasp both the facts and the areas of debate.
 Summarising skills are used to lay out the key areas of contention and underlying emotions,
as well as to assist participants in rephrasing topics in a less emotionally charged language.
 Empathy allows each side to put themselves in the shoes of the other and understand their
viewpoint.
Most importantly, a mediator must avoid taking sides or do things that might portray him as acting
unfairly. As a result, you’ll need to respect all parties’ perspectives and devote equal time to each
individual or problem. It will never help to point out that someone is being unreasonable, but you may
assist them in conducting a “reality check” by asking what they consider a reasonable outcome and
whether they believe the other party would agree.

Investigation
A mediator must conduct extensive research to comprehend the issues, “facts,” and views of the
parties in a case. This investigation, which usually takes the form of a series of questions posed in
public and private sessions, peels back the layers of the dispute and aids in determining which facts,
interests, and sentiments are relevant to resolving the case. A mediator evaluates which lines of
inquiry are fruitful and puts each party’s concession or compromise range to the test. These
investigations allow the mediator to get a feel of what kinds of agreements are conceivable.

Managing the interaction

The interaction between parties is complex and can turn more adversarial if not controlled and
mediated. The number of parties involved, of course, increases the complexity. The mediator must also
serve as the facilitator in order to keep the meeting focused and fruitful. This includes the following:

 Creating a set of communication guidelines,

 Active listening is encouraged,

 Preparing for and dealing with intense emotions,
 Choosing a time and who to meet in private caucus,
 When parties are joined by a representative, managing relationships becomes more difficult.

Invention/problem solving

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Invention and problem solving are two methods for breaking a deadlock and increasing cooperation. A
mediator can help you come up with new ideas in two ways:

 The mediator can establish an environment that allows the parties to come up with their own
solutions (via empathy, investigation, and persuasion).
 The mediator might make suggestions or thoughts that the parties may not be aware of. In
either situation, the mediator and the parties are likely to employ fractionation strategies.

Persuasion
Mediators must have strong persuasion skills – the capacity to convey impressions or ideas that
change others’ perception of a situation or proposition – as well as the discernment to know when to
employ them. When persuading a party to realistically analyse his or her alternative to no agreement
or providing packages to test the rationality of both sides’ proposals, mediators frequently utilise
increasingly convincing tactics as the case advances.

Realistic assessment of alternatives

Parties to a dispute frequently do not consider what will happen if the case is not resolved. The
mediator will normally assist the parties in sorting out these alternatives to settlement, evaluating the
costs and advantages of non-settlement with as much precision as feasible.

Creating options
When it comes to prospective settlements, parties in a conflict frequently have tunnel vision: they
think that they already know the appropriate answer. The mediator will usually assist the parties in
exploring various aspects of a settlement, such as “expanding the pie” to include issues for discussion
that the parties had previously overlooked.

Reformulating or reframing the problem

In most cases, parties in a dispute characterise “the problem” as the other party’s fault. It is difficult
for a party to be flexible in seeking an agreement when they see the problem purely in terms of the
other party’s responsibility. Fortunately, many appropriate definitions of “the problem” exist, and the
mediator will usually assist the parties in finding meanings that they are comfortable with and divert
them from being focused on blaming the other party. The mediator can take into account all the facts
of the case and reframe the problem in terms that would help in better facilitating the solution that is
being sought by the parties.

Managing anger and frustration

In most negotiations, both parties want more than they can obtain. This can cause frustration, which
can then turn into rage. Sometimes the rage is visible, and other times it is hidden. The mediator will

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usually assist the parties in dealing with their anger so that it does not prevent them from reaching an
agreement.

Distributing the pie

Most agreements entail the act of dividing up a set of resources, in some form or another. Parties, with
rare exceptions, demand what they perceive to be a “fair” share of the distribution. The mediator can
take the responsibility to ensure that both the parties are recipients of a fair percentage of the
settlement, as per their role in the issue at hand.

Strategic decision
Overlapping all of her/his responsibilities, the mediator must design and pursue a strategic path that
will assist the parties in reaching an agreement. It’s critical to separate meaningful data from noise,
establish each party’s basic criteria for agreement, “coach” the parties’ negotiating process, and
appreciate the parties’ relative flexibility.

Conclusion
Although a little humility never hurts, it’s vital to remember that mediation doesn’t always work and
that it’s not always the mediator’s responsibility if it doesn’t. It will be impossible to mediate a shared
solution if members do not come prepared to discover one. Cross-cultural conflicts will always be
difficult to resolve because what is accepted in one culture may be completely objectionable in another.

A skilled mediator will always endeavour to be aware of what else is going on, looking for hidden
agendas and obstacles to effective problem solving. At the same time, a successful mediator will be
able to separate themselves from the issue. The mediator’s job is to assist others in reaching mutually
acceptable solutions to their problems without becoming engrossed in the issue themselves.

(C)CODE OF CONDUCT FOR MEDIATORS

Mediation is a method of non-binding dispute resolution mechanism, with the

assistance of a neutral third party who helps in dissolving the dispute in hand.
A mediator is a neutral third party who assists the parties in the mediation
process. The functions of the mediator are (a) to communicate between the
two parties (b) identify the dispute in hand (c) come up with a possible
settlement option (d) help the parties in dissolving the dispute
Code of Conduct of Mediators:

 Impartiality- it is important for the mediator to be unbiased. He cannot

favour one particular party. He should hear both the sides and come up
with a possible settlement which is agreed by both the parties.

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 Conflict of interest- the parties should me no way related to the mediator.

It might lead to conflict of interest.
 Principle of self-determination- self-determination is the right of the
parties in mediation to make their own voluntary decision regarding the
possible resolution. The mediator is to provide the parties with the
solutions to the dispute in hand and assist them throughout the process.
 Confidentiality- the mediator should not be disclosing the information of
the mediation to any third parties without the consent of the parties. He
may disclose information about the mediation with a written consent of
the parties.
 Quality of process- the mediator should make sure that the parties
understand the mediation proceedings before the mediation starts.
Mediators have an obligation to acquire and maintain professional skills
and ability to uphold the quality of the mediation process.
 Agreement to Mediate- the mediator must come up with an agreement
between both the parties and he must ensure that both the parties
understand the terms and condition of the process. Confidentiality must
be maintained while communication. The mediator has the right to
terminate or suspend the process.
 Termination or suspension of mediation- mediator should come up with
an agreement which is both impartial or there is no conflict of interest.
He shall suspend or terminate the process upon the request of either one
of the both parties. He may also suspend the process in case he finds out
the either one of the parties are not acting in good faith.

(d) Confidentiality In Mediation Proceedings

Need of Confidentiality in Mediation
To comprehend the focal issues, the inspirations, the weight focuses and the dangers of the case, the
members must be guaranteed the discourses can\’t and won\’t be unveiled to others so they can talk
straightforwardly. Every now and again, a portion of the rousing powers behind claims are lawfully
insignificant but then outstandingly vital to understanding the contention and encouraging
determination. As often as possible, customers uncover private occasions, observations or issues in
mediation they would not need revealing to anybody. Clarifying their worries and fears is frequently
basically critical to them so as to determine the contention. In the event that discourses with the
middle person are not private and special, the intervention procedure, the mediator part and the
potential for determination are fundamentally lessened.

To bullet list some of the above mentioned points, confidentiality is essential-:

 To Strengthen the level of trust

 To Increase Confidence in the Impartiality of the Mediator

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 To Increase the Integrity of the Mediation

 To Beseech Full and Frank Disclosure
 To Release Parties from the Strict Confines of the Rules of Law
Mediators often tell the parties at mediation that the mediation process is

private and confidential. This may be generally reinforced by a mediation agreement, which is usually
prepared by the mediator, and signed by the parties and the mediator. However, is this clause or
section in the mediation agreement, enforceable? What if the court orders for such information to
impart justice? There are no easy answers to these critical questions.

How Mediation Agreement Ensures Confidentiality?

Mediation is a shut entryway private issue and the prime preferred standpoint related to intervention is
privacy. Not at all like court procedures, third parties don\’t approach mediation procedures. The
mediator intervention is private regardless of whether it brings about the settlement and determination
of the question.

Eventually, the parties are likewise expected to keep private, all issues identifying with the mediation
procedures. Notwithstanding amid the procedures when one party gives data to the mediator subject
to a particular condition that it is to be kept classified, the middle person is blocked from unveiling that
data to the other party.

On the off chance that intervention is unsuccessful, what unfolded in the mediation procedures isn\’t to
be revealed. This is in spite of the reality that privacy in intervention has no statutory
sponsorship [1] in light of the fact that the procedure of mediation is naturally thought to be secret.
In case of court-annexed mediation conducted by the mediation centers at Delhi also, confidentiality
has been accorded due importance[2]. The courts have also emphasized upon the aspect of
confidentiality in mediation proceedings[3].

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