Mediation

• “A facilitative process in which disputing parties engage

the assistance of a third party, the mediator, who helps them
to try to arrive at an agreed resolution of their dispute.
• The mediator has no authority to make any decision which
is binding on them, but uses certain procedures, techniques
and skills to help them to negotiate an agreed resolution of
their dispute without adjudication”.- Henry J Brown &
Mariot.
• Voluntary, non-binding

• Mediation is based on principles as:

• party-autonomy
• focus on interest rather than on rights and positions.
• The mediators were called as internuncius,
medium, intercessor, conciliator, interlocutor &
mediator.
• Mediation –medius[middle]
THEORY OF RESTORATIVE
JUSTICE & APPLICATION
• Helps to reduce conflict
• Respect, accountability, empathy, integrity
• Offence – violation of justice- punishment will be imposed
• Victims and the community are the core elements[ needs and
concerns of the victims]
• Offender has a personal liability towards the victim and community
• Mediator plays a neutral role/ RJ – care and support all parties
equally
• 1980 UNCITRAL drafted UNCITRAL conciliation rules.
• American Arbitration Association –Mediation Rules in 1992
• World Intellectual Property Organisation- Mediation rules in 1994
• UNCITRAL Model Law on international commercial conciliation
rules,2002.
• USA-conciliation /meditation.
• Court annexed mediation funded by state for the 1st hour
• AAA -mediation rules on 2003
• European code of conduct for mediators [2005]
• Competence-knowledgeable
• Before accepting the appointment offer disclose information of his/her background.
• Promote their practise in a professional manner
• Independence & neutrality
• Procedure-
• Inform parties of ;
• Procedure
• Conditions in a mediation agreement
• Fairness in the process
• Fees
• confidentiality
• Elements of mediation :
• Can be court annexed/court referred or private
• Informal, voluntary, confidential & structured
• Conducted by a neutral person
• Non adjudicatory
• Parties have freedom to choose the mediator
• All disputes between the parties can be settled in one agreement.
• Can occur at any stage of a suit.
• Parties have autonomy to obtain expert opinion and advice.
• Self responsible
• Reasons for Use of mediation
• Time pressure
• Relationship is important
• Privacy is important
Selecting a mediator
• By party
• By an institution
• Characteristics of mediator
• A.Neutral
• B.Intelligent
• C.Trustworthy
• D.Courtesy-polite & kind
• E.Respect
• F. Active listening
• Marginal listening-speaker will be given small degree of attention-
insult/misunderstanding
• Evaluative listening- judge the speaker
• Passive listening-listener fails to understand the message
• Directive listening- listener guides the limits and direction of conversation
• Non-directive listening- speaker is allowed to express himself
• Judgemental listening- introduces personal judgements into conversation
• Probing listening- asking bunch of question
• Soothing listening- reassures speaker for avoiding conflict at any cost.
• Projective listening- listener truly hears and understand the position and
intention of speaker.
• G.empathy
• H. Emotional stability[mentally matured]
• I .integrity
• J. trustworthy
• K .facilitative
• L . Wisdom[knowledge to understand the subject matter]
• M .flexibility
• N .patience
• O . Availability
• Tactics used by mediators
• Pressure to change/ lower a parties expectation
• Processes-simplifying the agenda/call for caucus/controlling
the time for negotiation, teach them about the bargaining
process
• Friendliness- to gain trust and confidence
• Avoid negative emotions
• Discuss the alternatives.
MODELS OF MEDIATION

• Facilitative mediation- facilitate communication , help to understand

position and interest
• Evaluative mediation- provides non binding assessment

• Leonard Riskin, “ Grid for the Perplexed”,

• Evaluative narrow, evaluative broad
• Facilitative narrow, facilitative broad
• Conflict [facilitative-inefficient/ evaluative-can be considered only as
arbitration]
• Chris.M curie,” mediator’s approach can be predicted by
examining who the mediator is, than his style”
• Relationship bias
• Content bias
• Authority bias
• Approaches to mediation
• Right-based mediation[Information centred mediation]
• Interest based mediation[process based mediation]
• Problem solving/settlement oriented approach[ giving one
side more preference or power]
• Benefits
• Interest based
• Enlarge the pie
• More choices than Court
• Can resolve disputes quickly & satisfactorily
• Informal process
• Are conducted by trained lawyers/experts
• Provides win-win position to both the parties
• Parties control the outcome
• Result is based on compromise .
• Proceedings are convenient as the mediation can happen even in holidays.
• Court annexed mediation are free of cost
• Confidentiality
• Compliance with the mediation agreement.
• The mediated agreement is fully enforceable in Court.
• MODELS OF MEDIATION
• 1.Commercial mediation:
• Covers business disputes, insurance disputes, and claims under
NI
• 2. Community mediation
• Disputes with neighbours, relatives [easementary
rights/encroachment]
• 3.Family mediation –family dispute claims[divorce, custody of child,
maintenance]
• 4.Facilitative mediation: most prevalent mediation.
• mediators may express view on what might be fair/ reasonable.
• Mediator is in charge of the process & parties are in charge of the
result.
• 5.Evaluative mediation : advisory in nature the mediators
evaluate the strength and weakness of each side.
• Similar to judicial settlement conference.
• Focused more on the substantive legal rights of the parties.
• Responsible for process and outcome of the mediation.
• Mediators have sound legal knowledge.
• 6.Expert-Advisory mediation
• adopt a positional bargaining method.
• Provide guidance on merits of the case,
• suitable settlement terms,
• likely outcomes and advice as to whether matter should advance to
arbitration or adjudication.
• Useful in :-
• technical matters
• When it is mandatory for parties to attend for mediation
• When parties have unequal negotiating abilities.
• 7.Transformative mediation[Prof. Baruch Bush &
Joseph Folger in 1994]
• Help to resolve the dispute
• Recognition by each party of other’s needs &
interest.
• Parties formulate the process & outcome .
• Hybrid model: MED-ARB
• 8.Private mediation- ad hoc [parties appoint]
• Institutional mediation- [assistance of mediation centre]
• 9.Court-annexed mediation/Court ordered mediation
• Factors considered by Court :
• Number of issues, parties, amount stake, public impact of
case, stage at which case has reached, cost of litigation,
willingness of parties to mediate.
• 10.Co-mediation: by two/more mediators
• 11.Michigan mediation- pre-trial procedure /blend of mediation and
arbitration.
• Panel meets parties lawyers/not accepted/ make its own binding
proposals.
• 12.Med- Arb[DIF] – mediators and arbitrators are different
• 13.Mediator –advisory arbitration- opinion for advising parties
• 14.MEDALOA/Med/aolo- Mediation And Last Offer Arbitration
[parties submit offer]
• 15.Med-Rec [mediation fails- recommendation to Court the
resolution recommended]
• 16.Contracted mediation-construction contracts-starts
before occurrence of dispute
• Parties constitute mediation panel[one lawyer &
commercial expert for life time of project]
• Statutory recognition of mediation
• 1.Sec.4 of Industrial Disputes Act,1947-conciliators appointed are entrusted
with the duty of mediating the process
• 2.Civil procedure code
• Sec.89
• 3.Out of Court Settlement
• 4.Family Court’s Act,1984
• 5.The Legal Services Authorities Act,1987-
• Lok Adalath sec.20 cognizance of case
• 21-Award of Lok Adalath
• 22-Powers of Lok Adalath.
• Mediation arising out of agreement between
parties are governed by agreement
• Court referred mediation under sec.89 is
governed by ADR and mediation rules,2003.
COMMUNICATION SKILLS -
MEDIATION
• Telling/ listening / understanding
• Davik K Berlo’s model of communication
• source [Idea]
• Encode [ idea comes to me]
• Translate through message
• channel [ mode]
• Receiver
• Decodes
• Meaning [ how receiver understands]
• Feed back
• Noise
• Message send is not always message received, while
message received is message send
• Manage your tone of voice and body language
• Mediator- use all words in same tone
• Non verbal communications- observe the clients
• Effective speaking & writing- contents/ sequence/ clarity
• Skills
• Setting an agenda
• Summarizing
• Filtering
• Exchanging proper information
• Reflecting emotions
• Reframing in difficult situations
• Prioritization
• Questioning skills
• Use bridging words
• Never judge the client- identify the truth.
STEPS IN MEDIATION THROUGH
MEDIATION CENTRE
• 1.Agreement to mediate
• 2.Starting the mediation- one party send request to mediation centre for
mediation
• [summary details, name & communication reference of parties]
• 3.Appointment of mediators & fix fees
• 4.Initial contacts between parties & mediator
• Location for mediation & documents to be supplied before mediation.
• 5. meeting with the parties
• Mediator set rules for mediation
• Inform parties about caucus and conference sessions
• Gather information.
• 6. Identify issues
• 7. Develop options that satisfy interest of parties
• Evaluation of options
• 8. Conclusion of settlement
• Recording of settlement
STEPS IN MEDIATION

• 1. introduction & opening statement [ joint session]

• Proper seating for mediation
• Welcome parties to mediation room
• Give self introduction
• Ask introduction of parties & counsels
• 2. Opening statement
• Explain the concepts and the process
• Self determinative
• Voluntary
• Non adjudicatory
• Time bound
• Role of parties & advocate
• benefits
• 3. address confidentiality
• Essence of mediation
• Requirements as per law
• Reaffirm the significance of confidentiality at every session
• Moti Ram Vs. Ashok Kumar[2010]
• 4. set ground rules
• Parties/ counsel to address
• No interruptions
• Polite/ respectful language
• Order of presentation
• Mobile phone [ restrictions]
• 5. Address administrative issues
• Place/ time/ note taking by mediator/ length of mediation
• 6. gathering information in joint and private session
• Joint session [ parties play major role]
• Highlighting the merits
• 7. mediators role during joint session-
• Gather information
• Understand more facts / obstacles
• active listening
• Managing the outburst between the parties
• Empathy with neutrality
• Asking right questions
• 8. caucus session
• Gather confidential information
• Understand the dispute deeply
• Offers and counter offers
• Speak regarding their options and interest
• There can be subsections in single session
• 9. closing can be with settlement or without settlement
• Recording of settlement
• 10 agreement to be specific- have clarity as to ho will do
what, when, where and how
• 11. closing statement- thanks to parties/ counsel about their
participation and efforts in mediation and for settlement.
CHECKLIST OF FACTORS FOR
MEDIATION
• Whether:
• Dispute is complex/likely to be lengthy
• Who/how many parties ?
• Is there a cross claim ?
• Parties have a continuing relation ?
• Party is a frequent litigator?
• Parties have desire to keep matter private
• Is it appropriate time to refer the matter
• Who express the desire to mediate.
NEGOTIATION TECHNIQUES
USED BY MEDIATOR
• Position based bargaining
• Pointing to parties that they are not completely correct:
• weakness in position
• uncertainty in legal process
• cost of trial[quantifiable /not]
• Interest based bargaining
• Why parties are fighting over a limited resource ?
• Two cooks fighting for orange
• Who had it first?[property]
• Who purchased it ?[ Contract]
• Who needs it more?[ equity]
• Integrative bargaining
• Investment of resources outside those at stake.
• Buffalo herds man and three sons
• Eldest[1/2-9], middle[1/3-6], youngest[ 1/9=2]=18 buffalos.
• Awarding maintenance in divorce petition

• 17 – will [ son’s – E ½, M 1/3, & Y- 1/9]

• 1 +17=18
• 18/2= 9
• 18/3= 6
• 18/9=2 = 17 , 1
• Shuttle diplomacy
• Parties will not sit in same room.
• Two rooms will be assigned to decision makers and counsel
• Sec.89 CPC, R.1A to 1C
• Constitutional validity of sec.89 was upheld in
Salem Bar Association , Tamil Nadu Vs. Union of
India, AIR 2003 SC 189.
• J. M.Jagannadha Rao
• Salem Bar Association V. Union of India, AIR 2005
SC3353, adopted the following definition for mediation.
“Settlement by mediation means the process by which a
mediator appointed by the parties or by the court ,
mediate the dispute between the parties to the suit by
applying the provisions of the Mediation rules,2003.
• Mediation focuses on the needs, empowerments,
relationship between the parties.
The Civil Procedure Alternative dispute resolution and mediation rules was drafted
in 2003.

• R.2 procedure for directing the parties to opt for alternative modes of settlement-by
Court after recording admissions and denials.
• R.4- mandate the court to give guidance to the parties for the matters they have to take
into account
• R.7 training in alternative methods of resolution disputes-by HC
• Civil procedure mediation rules- part II
• R.2- appointment of mediator
• Single mediator/2/more than 2 mediators.
• R.3 panel of mediators- HC/district court prepare the panel
• R.4 qualifications of persons to be in panel
• Retired judges of SC/HC/District Court
• Legal practitioners with 15 yrs of practise
• Experts /other professionals with 15 yrs of experience
• Institutions which are recognized by HC
• R.5 disqualification of persons- adjudged as insolvent, criminal
charges, convicted ,disciplinary proceedings against him, connected
with the subject matter
• R.6 venue for mediation
• R.8 duty of mediator to disclose certain facts-
independence and impartiality
• R.9 cancellation of appointment
• R.10 removal of name from the panel
• R.11 procedure for mediation
• Parties can agree/ if not mediator has to follow the procedure in
the rules.
• Hold mediation at the convenient location agreeable to the parties
• Conduct joint /separate meetings with the parties
• Each parties 10 days before the session has to give brief
memorandum setting forth the issues and it should be mutually
exchanged between the parties.
• R.12 the mediator is not bound by the Evidence Act,1872/CPC
• Mediator is bounded by the principles of fairness and justice.
• Regard to rights and obligations of the parties, nature of the dispute
• R.13 non-attendance of parties at session
• Mediator can apply to the court for issuing appropriate directions to that
party to attend
• Court can impose cost on the party for non attendance
• Parties non resident in India can be represented by power of attorney.
• R.16mediator to facilitate voluntary resolution of disputes
• Identify issues, clarify the priorities, exploring area of
compromise.
• R.17 parties alone are responsible for taking decision
• R.18 on expiry of 60 days mediation shall stand
terminated unless extended[not beyond 30 days].
• R.20 confidentiality, disclosure and inadmissibility of information
• Views expressed, documents submitted, admission made by a party
• R.21 sessions to be held in private.
• R.22- immunity,
• mediator not liable for anything done bona fide. Nor shall be summoned before Court .
• R.23 communication between court and the mediator is limited.
• If any, should be in writing & limited to
• 1.non attendance of party
• 2.consent of parities
• 3.case not suited for settlement
• 4.parties have settled the dispute.
• R.24Settlement agreement.-
• an agreement is reached –
• reduced to writing and signed by the parties or their power-of-attorney holders.
• The agreement of the parties so signed and attested shall be submitted to the
mediator who shall, with a covering letter signed by him, forward the same to
the Court in which the suit is pending.
• Where no agreement is arrived at between the parties, before the time-limit
stated he shall report the same to the said Court in writing.
• R.25. Court to fix a date for recording settlement and passing decree.
• Within 7 days issue notice- within 14 dys record the settlement
• 27. Ethics to be followed by the mediator
• The mediator shall:
• Not carry out any activity which is considered as unbecoming of a mediator
• Uphold the integrity & fairness
• Ensures that parties have adequate understanding of procedural aspects
• Disclose any interest/ relationship with parties
• Conduct all proceedings on basis of applicable laws
• Maintain confidentiality
• recognise that mediation is based on the principles of self
determination by the parties and that mediation process relies upon
the ability of parties to reach a voluntary, undisclosed agreement
• refrain from promises or guarantees of results.
• Role of mediator
• R.15-a facilitator
• Neutral intervener and does not represent any party.
• Helps in defining the issues, assist parties in understanding the
interest and facilitates the development of options.
• Information's are translated properly.
• Does not decide the dispute
• Mediator will not sign the settlement agreement
Judicial adjudication Resolution Alternative dispute resolution

Judge appointed by the state Neutral third party appointed by parties

judgement Agreement in mediation & award in arbitration

Looks to the past Looks to the future

Focus on facts Focus on relationships

Seeks to establish liability Seeks to restructure the relationship

Results in winner and loser Results in accommodative resolution

Dominated by lawyers Role of disputants ,lawyers may help

No/little compromise More compromise

Lawyer- judge communication Party –party communication

Relevance limited to issues Relevance include interest, goals, relationships

Cultural factors- not relevant Cultural factors are important.