Process of Mediation

Jay Shree Ram! Welcome to this blog. The objective of this blog is to discuss about the process of mediation.

Process of Mediation:

The neutral third party facilitating the process of mediation is known as a mediator. Mediation does not follow a uniform set of rules, though mediators typically set forth rules that the mediation will observe at the outset of the process. Successful mediation often reflects not only the parties’ willingness to participate but also the mediator’s skill. There is no uniform set of rules for mediators to become licensed, and rules vary by state regarding requirements for mediator certification. [1]

Broadly speaking, mediation may be triggered in three ways:

(i) Parties may agree to resolve their claims through a pre-agreed mediation agreement without initiating formal judicial proceedings (pre-litigation mediation). [1]

(ii) Parties may agree to mediate, at the beginning of formal court proceedings (popularly known as court referrals). [1]

(iii) Mediation may be taken recourse of, after formal court proceedings have started, or even post trial, i.e. at the appellate stage.

Under the Indian law, contractual dispute (including money claims), similar disputes arising from strained relationships (from matrimonial to partnership), disputes which need a continuity of relationship (neighbour’s easement rights) and consumer disputes, have been held to be most suited for mediation. For example, a suburban homeowner might find that the formal legal system offers no realistic way to deal with his neighbour's overly bright driveway lights that shine in his bedroom window. Such disputes however can be mediated. [1]

Mediation gives the participants an opportunity to raise and discuss any issues they might wish to settle. For example, it might turn out that the neighbour lit his driveway because the homeowner's dog went on his lawn, or because the homeowner's tree was encroaching upon his property. Because mediation can handle any number of outstanding gripes or issues, it offers a way to discuss (and solve) the problems underlying a dispute and create a truly lasting peace. [1]

The Supreme Court of India in its judicial decision has expressly clarified the ambit of mediation. According to Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., [(2010) 8 SCC 24] representative suits, election disputes, criminal offenses, case against specific classes of persons (minors, mentally challenged) have been excluded from the scope of mediation. [1]

Reference:

1) CBSE Class XII Legal Studies

Mediation

Jay Shree Ram! Welcome to this blog on mediation. The objective of this blog is to understand the concept of mediation and its tyes.

Meaning 

Mediation is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in-order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.

Mediation is more formal than negotiation but less formal than arbitration or litigation. Unlike litigation and similar to arbitration, mediation is relatively inexpensive, fast, and confidential. Further, mediation and arbitration differ on the grounds of the nature of an award rendered. The outcome of mediation does not have similar binding like an arbitral award. However, though non-binding, these resolution agreements may be incorporated into a legally binding contract, which is binding on the parties who execute the contract.

Types of Mediation

Mediation can be classified into the following categories:

Evaluative mediation - Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side's argument and makes some predictions about what would happen should they go to court.

Facilitative mediation - Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute. The facilitative mediator further provides a structure and agenda for the discussion.

Transformative mediation - Transformative mediation practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging deliberation, decision-making, and perspective-taking. A competent transformative mediator practices with a micro-focus on communication, identifying opportunities for empowerment and recognition as those opportunities appear in the parties' own conversations, and responding in ways that provide an opening for parties to choose what, if anything, to do with them.

Mediation with arbitration - Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation/arbitration'. The process begins as a standard mediation, but if mediation fails, the mediator becomes an arbiter. This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor.

Despite their benefits, mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields no coercive power over the parties or the outcome. The parties’ awareness that the mediator might later act in the role of judge could distort the process. Using a different individual as the arbiter addresses this concern.

Online Mediation - Online mediation employs online technology to provide disputants access to mediators and each other despite geographic distance, disability or other barriers to direct meeting.

Reference:

1) CBSE Class XII Legal Studies

Administrative Tribunals

Jay Shree Ram! Welcome to this blog on Administrative Tribunals. The objective of this blog is to discuss about the administrative tribunals in Bharat. 

Administrative Tribunals

The 42nd Amendment Act, 1976 added Articles 323-A and 323-B to the Constitution of India. These articles empower the Parliament to set up tribunals for adjudication of specialised disputes. The range of disputes mentioned in the Constitution refers to:

1) disputes pertaining to service conditions of the government officers,

2) collection and enforcement of tax,

3) industrial and labour disputes,

4) matters concerning land reforms,

5) elections disputes,

6) ceiling on urban property, and

7) production, procurement, supply and distribution of food-stuffs or other essential goods.

Thus the 42nd Amendment Act ushered the era of ‘tribunalisation of Indian judiciary’. Further, the enactment of Administrative Tribunals Act, 1985 took the constitutional objective further and set-up the Central Administrative Tribunal (CAT) and State Administrative Tribunals. The CAT was set up pursuant to the Act of the Legislature in 1985. The tribunals exercise jurisdiction of service matters of employees covered by it. The appeals against the orders of the administrative tribunals lie before the Division bench of the concerned High Court. The tribunals are procedurally flexible and this flexibility increases their efficiency. For example, The Administrative Tribunals Act, 1985 allows the aggrieved persons to appear directly before the tribunals. [1]

The overall objectives of the tribunals are to provide speedy and inexpensive justice to the litigants. Since government is a major litigant in the courts and government related litigation has increased in the delay and pendency of litigation, such tribunals over the past two decades have significantly contributed in supplementing the role of the courts in adjudication of service disputes. The tribunals however are not meant to replace the Courts. This has been explained by the seven judge bench of the Supreme Court in L Chandra Kumar case (JT 1997 (3) SC 589) where it was held that tribunals would not take away the exclusive jurisdiction of the courts, and their decisions could be scrutinised by the Division bench of the High Courts. [1]

One may also note that these administrative and state tribunals are not an original invention of the Indian political and legal system. Such tribunals are now well established in the member countries of the European Union and the United States. [1]

1) Today, CAT has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. [1]

2) The tribunal consists of a Chairman, Vice-Chairman and Members. [1]

3) The members of the tribunal are drawn both from judicial as well as administrative streams so as to give the tribunal the benefit of expertise both in legal and administrative spheres. [1]

Reference:

1) CBSE Class XII Legal Studies

An overview on laws of arbitration

Jay Shree Ram! You are welcome to this blog as you want to know about various laws in Bharat. The objective of this blog is to know about various laws governing arbitration in Bharat.  Read till the end and increase your knowledge. 

Introduction:

The Arbitration and Conciliation Act of 1996 is the relevant legislation that governs the process of arbitration in India. The statute provides for an elaborate codified recognition of the concept of arbitration, which has largely been influenced by significant movements of judicial reforms and conflict management across the world. [1]

 

The Arbitration and Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 repealed several pre-existing Arbitration statutes such as The Arbitration Act, 1940; The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. Thus, arbitration has for long been a part of the Indian legal system. [1]

The Arbitration and Conciliation Act, 1996 has ushered a new era of dispute resolution for domestic and commercial legal issues. On these lines, the Supreme Court of India has also affirmed that the Arbitration and Conciliation Act, 1996 was introduced in order to attract the 'international mercantile community'. The Supreme Court has thus emphasised that the Act should be interpreted and applied, keeping the commercial sense of the dispute in mind (Konkan Railways Corp. Ltd. v. Mehul Construction Co. (2000) 7 SCC 201). [1]

UNCITRAL Model Law on International Commercial Arbitration, 1985

In this regard, a special reference must be made to an international convention entitled, United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, 1985. After the birth of this international treaty, the United Nations General Assembly, recommended that all countries must give due consideration to the said Model law, in-order to bring uniformity in the law and practice of international arbitration. The Indian Arbitration and Conciliation Act of 1996 is similarly modeled on the UNCITRAL model law. [1]

Reference:

1) CBSE Class XII Legal Studies

Arbitration

Jay Shree Ram! You are welcome to this blog as you want to know about various laws in Bharat. The objective of this blog is to know about arbitration in Bharat. Here is short discussion meaning and process of arbitration. Also further types of arbitration are given. Read till the end and increase your knowledge. 

Arbitration

Meaning:

Arbitration is a term derived from the nomenclature of Roman law. Arbitration is a private arrangement of taking disputes to a less adversarial, less formal and more flexible forum and abiding by judgment of a selected person instead of carrying it to the established courts of justice. [1]

Process of arbitration

Arbitration can be chosen by the parties either by way of an Arbitration Agreement or through the reference of the Court. The parties in an arbitration have the freedom to select a qualified expert known as an arbitrator. The process of dispute resolution through arbitration is confidential, and hence arbitration is popular especially for commercial disputes where business secrets revealed during the process of dispute resolution are protected and preserved. Also due to this confidentiality the companies can maintain their commercial reputation, as they can prevent the general public or their customers from discovering the details of their on-going legal disputes. [1]

The decision rendered by an arbitrator is known as an arbitral award. Similar to a judgment given by a judge, the arbitral award is binding on the disputing parties. Once an arbitral award is rendered, it is recognised and enforced like a court pronounced judgment or order. In addition to an arbitral award, the arbitrator also holds power and authority to grant interim measures, like a judge in the court. These interim measures are in the nature of a temporary relief and may be granted while the legal proceedings are on-going in order to preserve and protect certain rights of the parties, till the final award is rendered. Therefore, an arbitral award holds several similarities with a court order or judgment. However, unlike a judgment rendered by a judge in the court, the award does not hold precedential value for future arbitrations. Arbitrators are free to base their decisions on their own conception of what is fair and just. Thus unlike judges, they are not strictly required to follow the law or the reasoning of earlier case decisions. [1]

Types of Arbitration

Domestic Arbitration - An arbitration with Indian parties, where the place of arbitration is in India and rules applicable are Indian. [1]

Foreign Arbitration - An arbitration where proceedings are conducted in a place outside India and the award is required to be enforced in India. [1]

Ad-hoc Arbitration - An arbitration which is governed by parties themselves, without recourse to a formal arbitral institution. It may be domestic or international in character. [1]

Institutional Arbitration - An arbitration where parties select a particular institution, which in turn takes the arbitration forward by selecting an arbitrator and laying out the rules applicable within an arbitration, e.g., mode of obtaining evidence, etc. There are several institutions to govern arbitration. Examples of prominent institutions of arbitration include, The London Chamber of International Arbitration (LCIA) which has its offices across the world, including New-Delhi, Bharat. [1]

Statutory Arbitration - An arbitration which is mandatorily imposed on the parties by operation of a particular law or statute, applicable to them. For example, the Defence of India Act, 1971 is one such legislation that mandates a recourse to arbitration in case of any dispute arising within the Act. [1]

International Commercial Arbitration - An arbitration in which at-least one of the disputing parties is a resident/body corporate of a country other than India. Arbitration with the government of a foreign country is also considered to be an international commercial arbitration. This form of arbitration has been defined specifically under section 2(1)(f) of the Arbitration and Conciliation Act, 1996. [1]

Reference:

1) CBSE Class XII Legal Studies

Types of ADR

Jay Shree Ram! All law aspirants, students and professional, welcome to my blog on ADR. The objective of this blog is to discuss about the various types of ADR mechanisms practiced in Bharat at present. 

Types of ADR

1. Arbitration

Arbitration is a term derived from the nomenclature of Roman law. Arbitration is a private arrangement of taking disputes to a less adversarial, less formal and more flexible forum and abiding by judgment of a selected person instead of carrying it to the established courts of justice. [1]

2. Mediation

Mediation is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in-order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution. [1]

3. Conciliation

Conciliation is a process similar to mediation as parties out of their own free will appoint a neutral third party to resolve their disputes. [1]

4. Negotiation

5. Administrative Tribunals:

The 42nd Amendment Act, 1976 added Articles 323-A and 323-B to the Constitution of India. These articles empower the Parliament to set up tribunals for adjudication of specialised disputes. Further, the enactment of Administrative Tribunals Act, 1985 took the constitutional objective further and set-up the Central Administrative Tribunal (CAT) and State Administrative Tribunals. [1]

6. Lok Adalat:

The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the global legal jurisprudence. The institution of Lok Adalat in India, as the very name suggests, means, People's Court."Lok" stands for "people" and the term "Adalat" means court. India has a long tradition and history of such methods being practiced in the society at grass roots level. [1]

7. Ombudsman

An indigenous Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in the word umboosmaor, essentially meaning ‘representative’. Whether appointed by a legislature, the executive, or an organization, the typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations. [1]

8. Lokpal

A Lokpal (caretaker of people) is an ombudsman in India and is governed by The Lokpal and Lokayukta Act, 2013. [1]

9. Lokayukta 

The Lokayukta (appointed by the people) is a similar anti-corruption ombudsman organization in the Indian states and is governed by The Lokpal and Lokayukta Act, 2013.

10. Facilitation

Reference:

1) CBSE Class XII Legal Studies

Introduction to Alternative Dispute Resolution

Jay Shree Ram! I welcome you law professionals, law students and aspirants to my blog on "Introduction to Alternate Dispute Resolution" (ADR). The objective of this blog is to discuss about meaning and scope of ADR and History of ADR in Bharat and across the world. Also Benefits of the ADR mechanism are discussed at last.

Meaning and Scope:

Alternative Dispute Resolution (ADR) system refers to the use of non-adversarial techniques of adjudication of legal disputes.

History of ADR in Bharat:

Vedik age in Bharat

The Vedic age in India, witnessed the flourishing of specialised tribunals such as Kula (for disputes of family, community, tribe, castes, races), Shreni (for internal disputes in business, corporation of artisans) and Puga (for association of traders/commerce branches). In these institutions, interest-based negotiations dominated with a neutral third party seeking to identify the underlying needs and concerns of the parties in dispute. [1]

Buddhist Era

Muslim Era

British Era

The history of ADR in India pre-dates the modern adversarial model of Indian judiciary. The modern Indian judiciary was introduced with the advent of the British colonial era, as the English courts and the English legal system influenced the practice of Indian courts, advocates and judges. Courts in India were established to have in place a uniform legal system on the lines of the English Courts. However, even before the advent of such formalistic models of courts and judiciary, Indian legal system was characterised by several native ADR techniques. [1]

Post independence

People’s courts or Panchayat continued to be at the centre of dispute resolution in villages. [1]

In the modern era, several new and sophisticated forms of ADR techniques have developed. [1] They can be stated as arbitration, conciliation, negotiation, mediation etc.

History of ADR outside Bharat:

The ancient position of ADR outside India was akin to the submission of disputes to the decision of private persons - recognised under the Roman Law by the name of Compromysm (compromise). Arbitration was a mode of settling controversies much favoured in the civil law of the continent. The Greeks attached particular importance to arbitration. The attitude of English law towards arbitration fluctuated from stiff opposition to moderate welcome. The Common Law Courts looked jealously at agreements to submit disputes to extra-judicial determination. [1]

Benefits of ADR:

The ADR methods are speedier, informal and cheaper modes of dispensing justice when compared to the conventional judicial procedure. ADR provides a more convenient forum to the parties who can choose the time, place and procedure, for conducting the preferred dispute redressal process. Furthermore, if the dispute is technical in nature, parties have an opportunity to select the expert who possesses the relevant legal and technical expertise. It is interesting to note that ADR provides the flexibility to even refer disputes to non-lawyers. For example, several disputes of technical character e.g. disputes pertaining to the regulation of the construction industry are usually referred to engineers rather than lawyers. [1]

ADR is also encouraged amongst the disputants to reduce delays and high pendency of court cases. The rise of ADR is further supported, as the law courts are confronted with following problems, such as: 

1. The lack of number of courts and judges which creates an inadequacy within the justice delivery system; [1]

2. The increasing litigation in India due to increasing population, complexity of laws and obsolete continuation of some pre-existing legal statutes; [1]

3. The increasing cost of litigation in prosecuting or defending a case, increasing court fees, lawyer’s fees and incidental expenses; [1]

4. Delay in disposal of cases resulting in huge pendency in all the courts. [1]

In the light of the apparent need and benefits provided by ADR, it has emerged as a successful alternative to court trials. Further, the rise of the ADR movement in India indicates that it is contributing tremendously towards reviving the litigant’s faith in justice delivery mechanisms. [1]

Reference:

1) CBSE Class XII Legal Studies