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Introduction

ADR or Alternative Dispute Resolution is an attempt to devise


machinery which should be capable of providing an alternative to the
conventional methods of resolving disputes. ADR offers to resolve
matters of litigants, whether in business causes or otherwise, who are not
able to start any process of negotiation and reach any settlement. It has
started gaining ground as against litigation and arbitration.

Need of ADR in India:


The system of dispensing justice in India has come under great stress for
several reasons mainly because of the huge pendency of cases in courts.
In India, the number of cases filed in the courts has shown a tremendous
increase in recent years resulting in pendency and delays underlining the
need for alternative dispute resolution methods. It is in this context that a
Resolution was adopted by the Chief Ministers and the Chief Justices of
States in a conference held in New Delhi on 4th December 1993 under
the chairmanship of the then Prime Minister and presided over by the
Chief Justice of India.

It said: "The Chief Ministers and Chief Justices were of the opinion that
Courts were not in a position to bear the entire burden of justice system
and that a number of disputes lent themselves to resolution by alternative
modes such as arbitration, mediation and negotiation. They emphasized
the desirability of disputants taking advantage of alternative dispute
resolution which provided procedural flexibility, saved valuable time and
money and avoided the stress of a conventional trial".

In a developing country like India with major economic reforms under


way within the framework of the rule of law, strategies for swifter
resolution of disputes for lessening the burden on [1]the courts and to
provide means for expeditious resolution of disputes, there is no better
option but to strive to develop alternative modes of dispute resolution
(ADR) by establishing facilities for providing settlement of disputes
through arbitration, conciliation, mediation and negotiation.2

ADR and Constitution


ADR first started as a quest to find solutions to the perplexing problem of
the ever increasing burden on the courts. It was an attempt made by the
legislators and judiciary alike to achieve the Constitutional goal of
achieving Complete Justice.
Alternative Dispute Resolution in India was founded on the
Constitutional basis of Articles 14 and 21 which deal with Equality
before Law and Right to life and personal liberty respectively.
ADR also tries to achieve the Directive Principle of State Policy
relating to Equal justice and Free Legal Aid as laid down under
Article 39-A of the Constitution.

The acts
The Acts which deal with Alternative Dispute Resolution are Arbitration
and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987.
Section 89 of the Civil Procedure Code, 1908 makes it possible for
Arbitration proceedings to take place in accordance with the Acts stated
above.

Advantage of Alternate Dispute Resolution:


It is less expensive.
It is less time consuming.
It is free from technicalities as in the case of conducting cases in
law Courts.
The parties are free to discuss their difference of opinion without
any fear of disclosure of this fact before any law Courts.
The last but not the least is the fact that parties are having the
feeling that there is no losing or winning feeling among the parties
by at the same time they are having the feeling that their grievance
is redressed and the relationship between the parties is restored.

Legislative recognition of Alternative Dispute Redressal


The Legal Services Authorities Act, 1987 brought about the
establishment of Lok Adalat System for settlement of disputes
cheaply and expeditiously and also in the spirit of compromise by
give and take formula.
Section 30 of the Arbitration and Conciliation Act, 1996
encourages arbitrators, with the agreement of the parties, to use
mediation, conciliation or other procedures at any time during the
arbitration proceedings to encourage settlement.
Further still, the Civil Procedure Code (Amendment) Act, 1999
carries Section 89 which is designed to enable the courts to bring
about a settlement of dispute outside the Court. As and when the
Amendment comes to be enforced, the four methods listed in the
section and known as court-ordered or court- annexed ADRs would
become statutory alternatives to litigation for settlement of disputes
and would be legally enforceable
It is now made obligatory for the Court to refer the dispute after
issues are framed for settlement with the concurrence of the parties
either by way of:
Arbitration,
Conciliation,
Judicial settlement including settlement through Lok Adalat, or
Mediation
Where the parties fail to get their disputes settled through any of
the Alternative Dispute Resolution methods, the suit would come
back to proceed further in the Court it was filed.

Justice Malimath Committee Report (1989-90)


The Malimath Committee undertook a comprehensive review of the
working of the court system, particularly all aspects of arrears and Laws
delay and made various useful recommendations for reducing litigation
and making justice readily accessible to the people at the minimum cost o
time and money. It underlined the need for alternative dispute resolution
mechanism such as mediation, conciliation, arbitration, Lok Adalats etc.
as a viable alternative to the conventional court litigation.

UNIT 2
WHAT IS MEDIATION
Mediation is a procedure designed to resolve disputes through agreement,
i.e., through the mutual consent of the parties. Although the procedure is
frequently confused with arbitration, it is fundamentally different. In
arbitration, the neutral reaches a decision based upon evidence presented
by the parties; in mediation, the neutral facilitates discussion between the
parties with the objective of reaching an agreement between the parties.
Mediation relies upon the consent of the parties; arbitration does not.
A successful mediation is thus dependent upon two inter-related factors:
The willingness of the parties to resolve their dispute; and the skill of the
mediator in guiding the parties to the point where agreement is possible.
One of the most skilled mediators in Indiaand a frequent participant in
programshas said that there exists a point in every dispute where the
parties can reach agreement; it is the duty of the mediator to help the
parties find that point. The existence of parties acting in good faith to
resolve their differences, however, will significantly assist even the best
mediators in achieving their objectives. The combination of a talented
mediator and motivated parties will generally result in resolution of even
the most difficult disputes.
TYPES OF MEDIATION
1.Statutory.
There are some types of cases that are required by law to go through the
mediation process. Labor disputes and domestic (family law) disputes are
two prime examples. In India, however, this type of mandatory mediation
is rare.
2.Court ordered.
Most jurisdictions in India require some form of alternative dispute
resolution before a case may be resolved through the traditional judicial
process. As soon as a case is filed, the parties are provided a number of
ADR options. They must, unless exempted by the Court, select and
pursue one of these options. Included, as an option is mediation. The
Court maintains a list of mediatorsskilled and experienced attorneys
selected by the Courtwho are available to the parties. For parties who
elect this option, the Court will appoint a mediator and designate a date
by which the mediation must be completed. The results of the mediation
are confidentialthe Court will not know what occurred at the
mediation, unless of course, an agreement (or partial agreement) is
reached. If an agreement is reached, that agreement is enforceable as a
judgment of the Court.
3.Contractual.
The parties to a contract, as part of the terms of their agreement, may
include a mediation clause as a mechanism to resolve disputes. Although
binding arbitration is a much more common contractual term since it will
always result in a resolution, mediation can be an effective tool to resolve
contractual disputes before they blossom into a protracted battle. The
selections of the mediator, as well as the conditions of the mediation, are
usually stated in the contract. If the mediation is successful, the results
can be enforced as a judgment of a court.
4.Voluntary.
The parties to a dispute may decide to seek mediation without being
compelled by law, court order, or contract. They may choose to mediate
their dispute at any time: as the dispute is developing, before initiating
legal action, or even while legal action is pending. The conditions of the
mediatione.g., who will be the mediator, when the mediation will
occur, the rules of the mediationare controlled by the parties.

QUALITIES OF THE MEDIATION PROCESS


voluntary
Mediation is a voluntary, party-centered and structured negotiation
process where a neutral third party assists the parties in amicably
resolving their dispute by using specialized communication and
negotiation techniques. In mediation, the parties retain the right to decide
for themselves whether to settle a dispute and the terms of any settlement.
Even though the mediator facilitates their communications and
negotiations, the parties always retain control over the outcome of the
dispute.
Even if the court has referred the case for the mediation or if mediation is
required under a contract or a statute, the decision to settle and the terms
of settlement always rest with the parties. This right of self-determination
is an essential element of the mediation process. It results in a settlement
created by the parties themselves and is therefore acceptable to them. The
parties have ultimate control over the outcome of mediation. Any party
may withdraw from the mediation proceedings at any stage before its
termination and without assigning any reason.

Collaborative - As no participant in mediation can impose anything on


anyone, everyone is motivated to work together to solve the issues and
reach best agreements.

Controlled - Each participant has complete decision-making power and a


veto over each and every provision of any mediated agreement. Nothing
can be imposed on you.
Self-Responsible and Satisfying - Based upon having actively
participated in voluntarily resolving issues, participant satisfaction and
the likelihood of compliance are found to be elevated through mediation
compared to court options.
Informal
Though the mediation process is informal, which means that it is not
governed by the rules of evidence and formal rules of procedure it is not
an extemporaneous or casual process. The mediation process itself is
structured and formalized, with clearly identifiable stages. However, there
is a degree of flexibility in following these stages.
Mediation provides an efficient, effective, convenient and less expensive
process to resolve a dispute with dignity, mutual respect and civility.
Neutral
Mediation is conducted by a neutral third party- the mediator. The
mediator remains impartial, independent, detached and objective
throughout the mediation process. In mediation, the mediator assists the
parties in resolving their dispute. The mediator is a guide who helps the
parties to find their own solution to the dispute. The mediator's personal
preferences or perceptions do not have any bearing on the dispute
resolution process.
In Mediation the mediator works together with parties to facilitate the
dispute resolution process and does not adjudicate a dispute by imposing
a decision upon the parties. A mediator's role is both facilitative and
evaluative. A mediator facilitates when he manages the interaction
between the parties, encourages and promotes communication between
them and manages interruptions and outbursts by them and motivates
them to arrive at an amicable settlement. A mediator evaluates when he
assists each party to analyze the merits of a claim/defence, and to assess
the possible outcome at trial.
The mediator employs certain specialized communication skills and
negotiation techniques to facilitate a productive interaction between the
parties so that they are able to overcome negotiation impasses and find
mutually acceptable solutions.
G Confidentiality
Confidentiality is the cornerstone of the mediation process. The Act
stipulates that everything said during the course of mediation, including
all communications between the parties and the mediator are confidential
and no evidence of anything said or documents produced during the
mediation process are admissible in any litigation proceedings. Moreover,
the mediator cannot be summoned as a witness on what took place and on
what came to his/her knowledge during mediation.
The mediator may, however, disclose to the Court any information
obtained during the mediation process provided all the parties to the
mediation give their written consent. Furthermore, the disclosure of the
content of the agreement reached between the parties is also permitted
when required to prevent harm to the physical or psychological integrity
of a person or where the disclosure is necessary in order to implement or
enforce the agreement reached between the parties.

Qualities of MEDIATOR?
Because mediation differs from arbitration, a good arbitrator will not
always make a good mediator. Obviously the two forms of dispute
resolution have some overlap, and there certainly exist individuals who
are both excellent arbitrators and mediators. However, the ability to
render a decision is not the same skill as that required bringing parties
together to reach agreement. The following are some of the qualifications
that make a good mediator:
1.Trust:
This is the most important characteristic. If the parties do not respect the
mediator, the chances of success are small. Mediation often involves
private discussions between a party and the mediator. If the party does not
trust the mediator to keep confidences disclosed at such a session, there
will exist little chance of success. Similarly, if the parties cannot trust the
mediator to evaluate their positions impartially, the mediation is doomed.
2.Patience:
Parties frequently come to the mediation with set positions that take a
long time to modify. A mediator must have the patience to work with the
parties to bring them to the point where agreement is possible.
3.Knowledge.
The chances of success are greater if the mediator has some knowledge or
expertise in the area of dispute. Because mediation does not result in a
decision by the neutral, knowledge of the subject matter is not as crucial
in mediation as it is in arbitration. However, the parties in a complicated
dispute over software, for example, will have more confidence in a
mediator who knows something about software technology than they
would in a mediator who knew nothing about the subject. Furthermore,
such expertise will enable the mediator to better assist the parties in
identifying nontraditional solutions to their dispute.
4.Intelligence.
A mediator must be resourceful and attentive to understand not only the
nature of the dispute, but also the motivations of the parties. Through an
understanding of what is important to each of the parties, the mediator
can bring them into agreement much more quickly. The requirements are
thus not only an ability to understand the subject matter, but an ability to
understand people and their motivations as well.
5.Impartiality.
This characteristic is closely related to trust. A mediator must be
impartial. Some mediators will express their opinions about the position
of a party, or will use their powers of persuasion in order to bring the
parties to agreement. Other mediators will not analyze or evaluate the
merits of a dispute, but will cause the parties to realize on their own
where the settlement potential lies. In either case, the parties must be
satisfied that the mediator is neutral. In the former situation, if the
mediator is not viewed as neutral, any opinions will carry no weight; in
the latter situation, the parties will refuse to follow a biased leader.
6.Good communication skills.
An arbitrator needs only to listen to the evidence and render a decision
based upon knowledge of the law and good judgment. Although these
talents are extremely valuable ones, an arbitrator need not have the ability
to communicate with the parties. A mediator needs good judgment and
good communication skills; it is the mediators job to evaluate and
understand the motivations of the parties, foresee potential solutions, and
then bring the parties to an agreement. Without good communication
skills, this task is impossible.
Roles of the Mediator
The mediator's ultimate role is to do anything and everything necessary to
assist parties to reach agreement. In serving this ultimate end, the
mediator may take on any or all of the following roles:
Convener
The mediator may assist in contacting the other party(ies) to arrange for
an introductory meeting.
Educator
The mediator educates the parties about the mediation process, other
conflict resolution alternatives, issues that are typically addressed,
options and principles that may be considered, research, court standards,
etc.
Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the
mediation process.
Translator
When necessary, the mediator can help by rephrasing or reframing
communications so that they are better understood and received.

Models of Mediation
The two most common models of mediation are facilitative and
evaluative. We offer facilitative mediation and strengthen this by
integrating transformative and narrative models. We have been
practising, training and supervising facilitative and transformative
mediators for over fifteen years.

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FACILITATIVE MEDIATION
One of the key factors in mediation models is the notion of decision
making. In facilitative mediation, any decision making is left to those
involved, the mediator has no decision making authority. This is based on
the belief that the people involved in the situation have the best
understanding of what they need for themselves and from each other.
Facilitative mediation helps parties in a conflict make their own
decisions, in the belief that such decision will have the best fit and
therefore be highly sustainable. The mediator offers a structured process
for the parties to make best use of in seeking mutually satisfactory
solutions. The process consists of private, individual session first before
being brought together for a joint session. This approach is ideally suited
to relationship situations such as conflicts in the workplace, community,
within families or with clients through complaints resolution where a
win-win solution is needed in order to maintain and strengthen
relationships.
EVALUATIVE MEDIATION
Evaluative mediators are usually legal practitioners, often with an
expertise in a particular area of law relevant to the conflict. They will
provide the parties with an evaluation of the strengths and weaknesses of
their case with respect to their legal positions. If asked they may also
advise as to a likely outcome at court. They may also offer direction
towards settlement options. There is a strong drive towards equitable
settlement as an efficient and economic alternative to legal measures. The
process consists of opening statements in a joint session and then parties
are separated for the day and the majority of work is done in side
meetings. This approach is suited to business and contract disputes where
there is no ongoing relationship and a compromise is sought. This
approach is not suited to relationship issues such as workplace,
community and complaints resolution where face to face communication
is required and compromise is a limiting goal.
TRANSFORMATIVE MEDIATION
Transformative mediation is a much less structured approach that focuses
on two key interpersonal processes empowerment and recognition. A
transformative mediator aims to empower the parties involved to make
their own decisions and take their own actions. They also work to foster
and develop recognition for and between the parties. This is an organic
process and highly responsive to the parties needs. The parties are very
much in charge of both the content (the substantive issues) and the
process, and the mediator works to support both as their conflict unfolds
and their relationship changes and strengthens.

NARRATIVE MEDIATION
Narrative mediation takes a very different stance to conflict. Focusing
less on negotiation and more on how people make sense of the world. By
telling stories of events and by giving meaning to these events people
construct their own reality. People in conflict will tell conflict stories that
help them make sense of the situation, the other person and themselves.
Conflict stories can be limiting and paralysing. Narrative mediators
believe that for every conflict story there is an alternative story that can
make co-operation and trust more available. Narrative mediators help
parties rewrite new and more constructive stories.

CONCILIATION
Conciliation is a voluntary proceeding, where the parties involved are
free to agree and attempt to resolve their dispute by conciliation. The
process is flexible, allowing parties to define the time, structure and
content of the conciliation proceedings. These proceedings are rarely
public. They are interest-based, as the conciliator will when proposing a
settlement, not only take into account the parties' legal positions, but also
their; commercial, financial and / or personal interests.
The process of adjusting or settling disputes in a friendly manner through
extra judicial means. Conciliation means bringing two opposing sides
together to reach a compromise in an attempt to avoid taking a case to
trial. Arbitration, in contrast, is a contractual remedy used to settle
disputes out of court. In arbitration the two parties in controversy agree
in advance to abide by the decision made by a third party called in as a
mediator, whereas conciliation is less structured.
Conciliation is used in labor disputes before arbitration and may also take
place in several areas of the law. A court of conciliation is one that
suggests the manner in which two opposing parties may avoid trial by
proposing mutually acceptable terms. In the past, some states have had
bureaus of conciliation for use in Divorce proceedings.The federal
government has established the Federal Mediation and Conciliation
Service, an independent department devoted to settling labor disputes by
conciliation and mediation, or settlement of disputes through the
intervention of a neutral party.
> Nature
G Conciliation ensures party autonomy.
The parties can choose the timing, language, place, structure and content
of the conciliation proceedings.
G Conciliation ensures the expertise of the decision maker.
The parties are free to select their conciliator. A conciliator does not have
to have a specific professional background. The parties may base their
selection on criteria such as; experience, professional and / or personal
expertise, availability, language and cultural skills. A conciliator should
be impartial and independent.
G Conciliation is time and cost efficient.
Due to the informal and flexible nature of conciliation proceedings, they
can be conducted in a time and cost-efficient manner.
G Conciliation ensures confidentiality.
The parties usually agree on confidentiality. Thus, disputes can be settled
discretely and business secrets will remain confidential.

APPLICATION AND SCOPE


Section 61 of the Arbitration and Conciliation Act of 1996 provides for
the Application and Scope of Conciliation. Section 61 points out that the
process of conciliation extends, in the first place, to disputes, whether
contractual or not. But the disputes must arise out of the legal
relationship. It means that the dispute must be such as to give one party
the right to sue and to the other party the liability to be sued. The process
of conciliation extends, in the second place, to all proceedings relating to
it. But Part III of the Act does not apply to such disputes as cannot be
submitted to conciliation by the virtue of any law for the time being in
force.
Number and qualification of conciliators-Section 63 fixes the number of
conciliators. There shall be one conciliator. But the parties may by their
agreement provide for two or three conciliators. Where the number of
conciliator is more than one, they should as general rule act jointly.

Different types of conciliation


facilitative conciliation:- In facilitative conciliation, the conciliator
avoids opinion and judgments and he merely assists the parties to clarify
their communications, interest and priorities.
evaluative conciliation:- On the other hand, in evaluative conciliation,
the conciliator expresses his opinion on the merit of the issues so as to
enable the parties to approach settlement. His opinion is a third party
view on the merit but such opinion would not be conclusive and binding.
Conciliation may be voluntary or compulsory. In case of voluntary
conciliation, the disputes are referred to the conciliation officer or the
board of conciliation by both parities under their own free will, who agree
to have their disputes settled by an outsider (without any compulsion
provided by law) put they are left free to accept or not to accept the
decision.
Qualities of Conciliators
Critical-thinking skills. Arbitrators, mediators, and conciliators must
apply rules of law. They must remain neutral and not let their own
personal assumptions interfere with the proceedings.

Decision making skills. Arbitrators, mediators, and conciliators must be


able to weigh facts, apply the law or rules, and make a decision relatively
quickly.
Interpersonal skills. Arbitrators, mediators, and conciliators deal with
disputing parties and must be able to facilitate discussion in a calm and
respectful way.
Listening skills. Arbitrators, mediators, and conciliators must pay close
attention to what is being said in order for them to evaluate information.
Reading skills. Arbitrators, mediators, and conciliators must be able to
evaluate and distinguish important facts from large amounts of complex
information.
Writing skills. Arbitrators, mediators, and conciliators write
recommendations or decisions relating to appeals or disputes. They must
be able to write their decisions clearly so that all sides understand the
decision.
DUTIES OF CONCILIATOR
1. Independence and impartiality [Section 67(1)]- The conciliator
should be independent and impartial. He should assist the parties in
an independent and impartial manner while he is attempting to
reach an amicable settlement of their dispute.
2. Fairness and justice [Section 67(2)]- The conciliator should be
guided by the principles of fairness and justice. He should take into
consideration, among other things , the rights and obligations of the
parties, the usages of the trade concerned ,and the circumstances
surrounding the dispute ,including any previous business practices
between the parties.
3. Confidentiality [Section 70]- The conciliator and the parties are
duly bound to keep confidential all matters relating to conciliation
proceedings. Similarly when a party gives a information to the
conciliator on the condition that it be kept confidential, the
conciliator should not disclose that information to the other party.
4. Disclosure of the information [Section 70]- When the conciliator
receives an information about any fact relating to the dispute from
a party, he should disclose the substance of that information to the
other party. The purpose of this provision is to enable the other
party to present an explanation which he might consider
appropriate.
5. Co-operation of the parties with Conciliator [S. 71]- The parties
should in good faith cooperate with the conciliator. They should
submit the written materials, provide evidence and attend meetings
when the conciliator requests them for this purpose.

Role of Conciliator
(1) The conciliator shall assist the parties in an independent and
impartial manner in their attempt to reach an amicable settlement
of their dispute.
(2) The conciliator shall be guided by principle of objectivity,
fairness and justice, giving consideration to, among other things,
the rights and obligations of the parties, the usages of the trade
concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties.
(3) The conciliator may conduct the conciliator proceedings in such
a manner as he considers appropriate, taking into account the
circumstances of the case, the wishes the parties may express,
including any request by a party that the conciliator hear oral
statements, and the need for a speedy settlement of the dispute.
(4) The conciliator may, at any stage of the conciliator proceedings,
make proposals for a settlement of the dispute. Such proposals
need not be in writing and need not be accompanied by a statement
of the reasons therefor.
PROCEDURE OF CONCILIATION

1. Commencement of The Conciliation Proceedings [Section


62]- The conciliation proceeding are initiated by one party
sending a written invitation to the other party to conciliate. The
invitation should identify the subject of the dispute.
Conciliation proceedings are commenced when the other party
accepts the invitation to conciliate in writing. If the other party
rejects the invitation, there will be no conciliation proceedings.
If the party inviting conciliation does not receive a reply within
thirty days of the date he sends the invitation or within such
period of time as is specified in the invitation, he may elect to
treat this as rejection of the invitation to conciliate. If he so
elects he should inform the other party in writing accordingly.
2. Submission of Statement to Conciliator [Section 65]
The conciliator may request each party to submit to him a brief
written statement. The statement should describe the general
nature of the dispute and the points at issue. Each party should
send a copy of such statement to the other party. The conciliator
may require each party to submit to hima further written
statement of his position and the facts and grounds in its
support. It may be supplemented by appropriate documents and
evidence. The party should send the copy of such statements,
documents and evidence to the other party. At any stage of the
conciliation proceedings, the conciliator may request a party to
submit to him any additional information which he may deem
appropriate.
3. Conduct of Conciliation Proceedings [Section 69(1), 67(3)]
The conciliator may invite the parties to meet him. He may
communicate with the parties orally or in writing. He may meet
or communicate with the parties together or separately. In the
conduct of the conciliation proceedings, the conciliator has
some freedom. He may conduct them in such manner as he may
consider appropriate. But he should take in account the
circumstances of the case, the express wishes of the parties, a
partys request to be heard orally and the need of speedy
settlement of the dispute.
4. Administrative assistance [S. 68]- Section 68 facilitates
administrative assistance for the conduct of conciliation
proceedings. Accordingly, the parties and the conciliator may
seek administrative assistance by a suitable institution or the
person with the consent of the parties.

Conciliation under the Industrial Disputes Act

Under the Industrial Disputes Act, 1947, conciliation consists of the


following machinery

1. Conciliation Officer Section 4 of the Industrial Dispute Act,


1947 deals with the appointment of such person as a conciliation
officer, as the government may deem fit. The powers of such
conciliation officers are same that of a civil court. It is expected
out of him to give a judgement within 14 days of
commencement of conciliation proceedings. The judgement
given by such a person shall be binding on both the parties. The
functions of Conciliation officer consists of:

Hold Conciliation proceedings in order to reach a settlement


between the two parties;

Investigate into the matter and bring about settlement;

Send a report and memorandum of settlement to the appropriate


government;
In cases where no settlement could be reached then send a report
and memorandum of settlement to the government stating the
steps taken by him or her;

Refrain from forcing a settlement

In cases where the conciliation process in progress, the Industrial


Disputes Act, prohibits strikes and lockouts.

2. Board of Conciliation- In cases where the conciliation officer


fails to resolve the disputes between the two parties concerned,
the appropriate government, under Section 5 of the Industrial
Disputes Act may set up a Board of Conciliation for such
purposes. Unlike the conciliation officer, this board is not
permanent in its existence. It is created for ad hoc purposes and
consists of a chairman and either two or four members
nominated on an equal basis by both the parties. The power of
this body is same as that of the Conciliation officer i.e. of a civil
court but it admits only those matters that are recommended by
the government. The duration in which the board is required to
give its judgement is within two months from the date on which
the matter is referred to it.

In the Indian matrix, settlement of disputes by the Board of Conciliation


is done very rarely whereas the settling of disputes by a Conciliation
officer is more prevalent and also flexible.

Conciliation under the Hindu Personal Laws


The Vedas and other Holy Scriptures makes reconciliation an essential
tool to be followed by Hindus before a marriage irretrievably breaks
down. When the Holy Scriptures was codified to unite the diverse laws of
various sects of Hinduism, reconciliation is mandatory under The Hindu
Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA).
Section 23(2) of the HMA lays down that before proceeding to grant any
relief under the HMA, it shall be a duty of the Court in the first instance,
to make every endeavour to bring about reconciliation between parties in
all cases. This is in relation to any relief sought on most of the fault
grounds for divorce specified in Section 1B of HMA. The provisions
contained in Sections 34(2) and 34(3) of the SMA are pan material to the
provisions contained in Sections 23(2) and 23(3) of the HMA.

Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar
provisions provides that before proceeding to grant any relief under this
Act, it shall be the duty of the court in the first instance, in every case
where it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavour to bring about a
reconciliation between the parties provided that nothing contained in this
sub- section shall apply to any proceeding wherein relief is sought on any
of the grounds specified in clause (ii) clause (iii), clause (iv), clause (v),
clause (vi) of sub-section (1) of section 13 of divorce act. It also states
that, for the purpose of aiding the court in bringing about such
reconciliation, the court may, if the parties so desire or if the court thinks
it just and proper so to do, adjourn the proceedings for a reasonable
period not exceeding fifteen days and refer the matter to any person
named by the parties in this behalf or to any person nominated by the
court if the parties fail to name any person, with directions to report to the
court as to whether reconciliation can be and has been, effected and the
court shall in disposing of the proceeding have due regard to the report.
Here again, there is no compulsion to go for mediation before taking
recourse to litigation.

Conciliation under the Family Courts Act, 1984


The Preamble to the Family Courts Act, 1984 enacted by the Indian
Parliament states that it is An Act to provide for the establishment of
Family Courts with a view to promote conciliation in, and secure speedy
settlement of disputes relating to marriage and family affairs and for
matters connected therewith. In the Statement of Objects and Reasons of
the Family Courts Act, five essential requirements were pinpointed in the
context of providing reconciliatory efforts to litigating parties and these
can be summarized in the following words stated in the statement of
objects and reasons:
(a) make it obligatory on the part of the Family Court to endeavour, in the
first instance to effect a reconciliation or a settlement between the parties
to a family dispute. During this stage, the proceedings will be informal
and rigid rules of procedure shall not apply;
(b) provide for the association of social welfare agencies, counsellors,
etc., during conciliation stage and also to secure the service of medical
and welfare experts;
(c) provide that the parties to a dispute before a Family Court shall not be
entitled, as of right, to be represented by legal practitioners. However, the
court may, in the interest of justice, seek assistance of a legal experts as
amicus curiae in the case;
(d) simplify the rules of evidence and procedure so as to enable a Family
Court to deal effectively with a dispute, and
(e) provide for only one right of appeal which shall lie to the High Court.
In seeking to achieve the above objects, the endeavour of the Family
Courts.
The Act also makes it open to the Family Courts under Section 12 to
secure the services of a medical expert or such person (preferably a
woman where available), whether related to the parties or not, including a
person professionally engaged in promoting the welfare of the family as
the court may think fit, for the purposes of assisting the Family Court in
discharging the functions imposed by this Act. Clearly, the thought,
logic and motive in the Act in making available services of professional
experts is to provide counseling, expert help and assistance of trained
mediators. Therefore, this enactment is a wholesome legislation on
reconciliatory modes in family law disputes in the Indian matrimonial
jurisdiction.
The object for establishment of family courts is to promote conciliation
and secure speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith.
In Abdul Jaleel v. Shahida 2003 ,the Supreme Court held that the
Family Courts Act, 1984 was enacted to provide for the establishments of
family courts with a view to promote conciliation in and secure speedy
settlement of dispute relating to marriage and family affairs and for
matters connected therewith by adopting an approach radically different
from that adopted in ordinary civil proceedings.
The Family Courts Act, 1984 was part of the trends of legal
reforms concerning women.
The Act was expected to facilitate satisfactory resolution of disputes
concerning the family through a forum expected to work
expeditiously in a just manner and with an approach ensuring
maximum welfare of society and dignity of women. Prevalence of
gender biased laws and oppressive social practices over centuries
have denied justice and basic human rights to Indian women.
A major drawback of the Family Courts Act happens to be that it doesnt
explicitly empower Courts to grant injunctions to prevent domestic
violence. While there has been progress, viz the enactment of the
Protection of Women from Domestic Violence Act, 2005 which now
extends to punishing women for acts of violence as well; there are still
issues of jurisdiction to be tackled. It must be understood that the Family
Courts Act has to be read in totality i.e. in accordance with the provisions
in other laws, for example, the Civil Procedure Code on matters of
jurisdiction.
Since the Family Court has restrictive jurisdiction and does not have the
power to decide issues of contempt, people do not seem to take the court
as seriously as they would a magistrate or a city civil court. Further, it
was laid down in the Family Courts Act that the majority of judges should
be women. However, this provision has not been complied with. In the
course of the workshop organised in March 2002 by the National
Commission for Women, it was noted that there were only 18 women
judges till then in the Family Courts in India out of 84 judges in all the 84
courts that existed at that time.
Government is empowered to make rules prescribing some more
qualifications. Apart from prescribing the qualification of the Judges of
Family Courts, the Central Government has no role to play in the
administration of this Act. Different High Courts have laid down different
rules of the procedure. However, this lack of uniformity could also be one
of the reasons behind the fact that family disputes are still being heard by
civil courts. Family courts also need to align themselves with womens
organizations and NGOs dealing with the welfare of families, women and
children.
Arbitration
Settlement of a dispute (whether of fact, law, or
procedure) between parties to a contract by a neutral third
party (the arbitrator) without resorting to court action.
Arbitration is usually voluntary but sometimes it is
required by law. If both sides agree to be bound by the
arbitrator's decision (the 'award') it becomes a binding
arbitration. The exact procedure to be followed (if not
included in the contract under dispute) is governed usually
by a country's arbitration laws, or by the arbitration rules
prescribed by the International Chamber Of Commerce
(ICC).

General principles of arbitration are as follows:

The object of arbitration is to obtain a fair resolution of

disputes by an impartial third party without unnecessary

expense or delay.

Parties should be free to agree how their disputes are

resolved, subject only to such safeguards as are

necessary in the public interest.

Courts should not interfere.

Appointment of Arbitrators

Directly by the disputing parties (by mutual agreement, or

by each party appointing one arbitrator)


By existing tribunal members (For example, each side

appoints one arbitrator and then the arbitrators appoint a

third)
By an external party (For example, the court or an
individual or institution nominated by the parties)

Kinds of Arbitration
(1) Ad-hoc Arbitration: When a dispute or difference arises between the
parties in course of commercial transaction and the same could not be
settled friendly by negotiation inform for conciliation or mediation, in
such case ad-hoc arbitration may be sought by the conflicting parties.
This arbitration is agreed to get justice for the balance of the un-settled
part of the dispute only.
(2) Institutional Arbitration: This kind of arbitration there is prior
agreement between the parties that in case of future differences or
disputes arising between the parties during their commercial transactions,
such differences or disputes will be settled by arbitration as per clause
provide in the agreement.
(3) Statutory Arbitration: It is mandatory arbitration which is imposed
on the parties by operation of law. In such a case the parties have no
option as such but to abide by the law of land. It is apparent that statutory
arbitration differs from the above 2 types of arbitration because (i) The
consent of parties is not necessary; (ii) It is compulsory Arbitration; (iii) It
is binding on the Parties as the law of land; For Example: Section 31of
the North Eastern Hill University ACt, 1973, Section 24,31 and 32 of the
Defence of India Act, 1971 and Section 43(c) of The Indian Trusts Act,
1882 are the statutory provision, which deal with statutory arbitration.
Therefore, all disputes referred to" Disputes-Settlement-Trust", shall be
decided through "Arbitral Tribunals" under Statutory Arbitration.
(4) Domestic or International Arbitration: Arbitration which occurs in
India and have all the parties within India is termed as Domestic
Arbitration. An Arbitration in which any party belongs to other than India
and the dispute is to be settled in India is termed as International
Arbitration.
(5) Foreign Arbitration: When arbitration proceedings are conducted in
a place outside India and the Award is required to be enforced in India, it
is termed as Foreign Arbitration.
Quality of arbitrator
Communication Skills A good arbitrator displays effective
communication skills by being patient, understanding, flexible and
a good listener. The arbitrator is chosen by way of agreement
between the disputing parties. At the hearing of the matter, he gives
all the parties a chance to be heard and to fully present their
grievances. Arbitration is effective when the arbitrator is patient,
allowing each party to state his facts, present any physical or
documentary evidence that he may have as well as hear the
testimony of witnesses that he may call. Since arbitration is not a
court case, parties should be allowed to present their case without
any interruptions and objections. A good arbitrator is flexible and
does not burden the parties with unnecessary formalities. He also
ensures that he takes note of the salient points the parties raise for
determination.
Competent An arbitrator should have knowledge and expertise in
the matters over which he presides. Competence is demonstrated
either through academic qualifications, professional expertise in
the matters that are in dispute or previous arbitration experience. A
good arbitrator quickly and accurately grasps the issues in dispute
and applies his knowledge in the area to make an award that
conclusively ends the matter. The arbitrator should also be well-
versed in arbitration rules and practices to render satisfactory
decisions. For example, just like in the courts, arbitration applies
res judicata, which is a legal principle that forbids parties from
arbitrating matters that have already been determined by another
competent arbitrator or panel of arbitrators.
Objective An objective and impartial arbitrator lends credence and
integrity to the process. A good arbitrator takes all relevant factors
into account in making his decision since it is final and can rarely
be appealed in court. The arbitrator needs to demonstrate
objectivity and respect when dealing with the parties and refrain
from taking sides before he has heard all the facts. He also ensures
that the proceedings continue in an evenhanded manner and that all
the people present at the forum, including he and the parties in
dispute, conduct themselves courteously and with decorum.
Disputing parties will more readily accept the arbitral award when
the conduct of the proceedings is within reasonable expectations.

Discreet Unlike litigation, arbitration is private and confidential


and a good arbitrator understands the need to maintain discretion
throughout the proceedings and in the decision. The arbitrator
ought not to discuss the dispute with anyone who is not involved in
it and he also refrains from engaging any of the parties in private
discussions. Once the matter is concluded, the arbitrator does not
disclose the particulars of the outcome unless the parties give
express consent for him to do so or it is required as a matter of law
or public policy.

Steps in an Arbitration
The process of arbitration differs among cases. The following is a list of
the main steps in arbitration, however it should not be viewed as an
exhaustive list.
1. Initiating the Arbitration A request by one party for a dispute to
be referred to arbitration.
2. Appointment of Arbitrator Arbitrators may be appointed by
one of three ways: (1) Directly by the disputing parties, (2) By
existing tribunal members (For example, each, each side appoints
one arbitrator and then the arbitrators appoint a third), (3) By an
external party (For example, the court or an individual or
institution nominated by the parties).
3. Preliminary Meeting It is a good idea to have a meeting
between the arbitrator and the parties, along with their legal
council, to look over the dispute in question and discuss an
appropriate process and timetable.
4. Statement of Claim and Response The claimant sets out a
summary of the matters in dispute and the remedy sought in a
statement of claim. This is needed to inform the respondent of what
needs to be answered. It summarizes the alleged facts, but does not
include the evidence through which facts are to be proved. The
statement of response from the respondent is to admit or deny the
claims. There may also be a counterclaim by the respondent, which
in turn requires a reply from the claimant. These statements are
called the pleadings. Their purpose is to identify the issues and
avoid surprises.
5. Discovery and Inspection These are legal procedures through
which the parties investigate background information. Each party is
required to list all relevant documents, which are in their control.
This is called discovery. Parties then inspect the discovered
documents and an agreed upon selection of documents are prepared
for the arbitrator.
6. Interchange of Evidence The written evidence is exchanged and
given to the arbitrator for review prior to the hearing.
7. Hearing The hearing is a meeting in which the arbitrator listens
to any oral statements, questioning of witnesses and can ask for
clarification of any information. Both parties are entitled to put
forward their case and be present while the other side states theirs.
A hearing may be avoided however, if the issues can be dealt with
entirely from the documents.
8. Legal Submissions The lawyers of both parties provide the
arbitrator with a summary of their evidence and applicable laws.
These submissions are made either orally at the hearing, or put in
writing as soon as the hearing ends.
9. Award The arbitrator considers all the information and makes a
decision. An award is written to summarize the proceedings and
give the decisions. The award usually includes the arbitrators
reasons for the decision.

Negotiation
Negotiation has been defined as any form of direct or indirect
communication whereby parties who have opposing interests discuss the
form of any joint action which they might take to manage and ultimately
resolve the dispute between them. Negotiations may be used to resolve an
already-existing problem or to lay the groundwork for a future
relationship between two or more parties.
Negotiation has also been characterized as the preeminent mode of
dispute resolution, which is hardly surprising given its presence in
virtually all aspects of everyday life, whether at the individual,
institutional, national or global levels. Each negotiation is unique,
differing from one another in terms of subject matter, the number of
participants and the process used.
Given the presence of negotiation in daily life, it is not surprising to find
that negotiation can also be applied within the context of other dispute
resolution processes, such as mediation and litigation settlement
conferences.
Negotiation is a method by which people settle differences. It is a process
by which compromise or agreement is reached while avoiding argument
and dispute.
In any disagreement, individuals understandably aim to achieve the best
possible outcome for their position (or perhaps an organisation they
represent). However, the principles of fairness, seeking mutual benefit
and maintaining a relationship are the keys to a successful outcome.

Stages of Negotiation
In order to achieve a desirable outcome, it may be useful to follow a
structured approach to negotiation. For example, in a work situation a
meeting may need to be arranged in which all parties involved can come
together.
The process of negotiation includes the following stages:
Preparation
Discussion
Clarification of goals
Negotiate towards a Win-Win outcome
Agreement
Implementation of a course of action
1. Preparation
Before any negotiation takes place, a decision needs to be taken as to
when and where a meeting will take place to discuss the problem and
who will attend. Setting a limited time-scale can also be helpful to
prevent the disagreement continuing.
This stage involves ensuring all the pertinent facts of the situation are
known in order to clarify your own position. In the work example above,
this would include knowing the rules of your organisation, to whom
help is given, when help is not felt appropriate and the grounds for such
refusals. Your organisation may well have policies to which you can refer
in preparation for the negotiation.
Undertaking preparation before discussing the disagreement will help to
avoid further conflict and unnecessarily wasting time during the meeting.
2. Discussion
During this stage, individuals or members of each side put forward the
case as they see it, i.e. their understanding of the situation.
Key skills during this stage include questioning, listening and clarifying.
Sometimes it is helpful to take notes during the discussion stage to record
all points put forward in case there is need for further clarification. It is
extremely important to listen, as when disagreement takes place it is easy
to make the mistake of saying too much and listening too little. Each side
should have an equal opportunity to present their case.
3. Clarifying Goals
From the discussion, the goals, interests and viewpoints of both sides of
the disagreement need to be clarified.
It is helpful to list these factors in order of priority. Through this
clarification it is often possible to identify or establish some common
ground. Clarification is an essential part of the negotiation process,
without it misunderstandings are likely to occur which may cause
problems and barriers to reaching a beneficial outcome.
4. Negotiate Towards a Win-Win Outcome
This stage focuses on what is termed a 'win-win' outcome where both
sides feel they have gained something positive through the process of
negotiation and both sides feel their point of view has been taken into
consideration.
A win-win outcome is usually the best result. Although this may not
always be possible, through negotiation, it should be the ultimate goal.
Suggestions of alternative strategies and compromises need to be
considered at this point. Compromises are often positive alternatives
which can often achieve greater benefit for all concerned compared to
holding to the original positions.
5. Agreement
Agreement can be achieved once understanding of both sides viewpoints
and interests have been considered.
It is essential to for everybody involved to keep an open mind in order to
achieve an acceptable solution. Any agreement needs to be made
perfectly clear so that both sides know what has been decided.
6. Implementing a Course of Action
From the agreement, a course of action has to be implemented to carry
through the decision.

The 4 Phases of the Negotiation Process


1) Pre-negotiation
Everything we do, if we are to perform the activity properly, requires a
certain degree of preparation beforehand. No doubt, there are many
occasions we admonished ourselves for not being prepared, when things
didn't turn out as well as we thought they would. Preparation is
tantamount to any successful activity or endeavour. Negotiation is no
different.
The first thing we need to determine is whether there is actually any
reason to negotiate at all. Secondly we need to be clear on the specifics
we want to negotiate about. We have to get 'our ducks in a row' before we
even contact the person with whom we are to negotiate. We then need to
establish some form of negotiation agenda before beginning our talks. We
should identify the correct people who will be involved in the talks and
their levels or responsibility and authority.
Where possible we should attempt to obtain as much information about
these people and their company or organization. Intelligence gathering is
crucial in obtaining a picture of the other side so we can assess their
needs, motivations, and goals with respect to our own.
Next, we need to set up a venue where we are going to meet and have
appropriate time to conduct the talks. It is a good idea to begin this
process by establishing direct contact with your counterpart. We can
begin by building some kind of rapport, and set out the agenda, through a
variety of means such as phone calls, faxes, e-mails, and even an informal
personal get together beforehand.
2) Conceptualization
This phase is where we develop the foundation of the agreement by
framing the issues, without becoming bogged down in the miniscule
details. The building blocks need to be put together to understand the
basic concept of the agreement we are seeking. It's like two separate
parties coming together to consider the blueprint design, or structure of
the agreement. We are attempting to formulate principles upon which we
can both agree, such as who will provide financing or the licensing
aspects for example.
This is the phase where we define each other's goals and objectives
through fact finding and by establishing some measure of compatibility.
It's not unlike that awkward first date with the opposite sex. We begin to
consider creative options and discuss negotiation concessions. We
advance proposals and counter-proposals, back and forth, until some
manner of tentative agreement is reached.
The terms of the partnership are re-framed until they reach the level,
where both parties are as satisfied as they can be, within the various
parameters of what they bring to the table. This is how we arrive at the
basic concept of our agreement.
3) Settling the Details
Simply put, this phase sees the completion of the agreement. Here, we
use our external specialists to complete the details of the venture, that we
are about to mutually embark upon. This phase discusses the problems of
implementing the partnership realistically, so that it is both viable and
workable. We also hammer out the details as they relate to production,
scheduling, handling delays, task responsibility and authority. We will use
our own technical and management people to streamline the process so it
works smoothly, and meets both our standards and requirements.
The final portion of this process is then left to the wordsmiths, usually
our respective legal experts, to put our agreement into written form
documentation, and to describe the contractual obligations to which both
parties have agreed.
This is not the 'walk in the park' like it sounds. Settling the details
correctly and meticulously is extremely important. Many negotiations
have collapsed because the parties failed to devote the necessary time and
work to address the details efficiently. Until these are properly ironed out,
we can't celebrate our success.
4) Follow-up
Just because we've signed on the dotted line doesn't means that it ends
there. We cannot toss the contract into our files and forget about it. It
seldom ends there as problems always arise. Any aspect of any contract
may need to be re-negotiated, or the details altered to counter a broad
variety of changing circumstances. Expensive and embittered legal battles
can be circumvented simply by keeping the lines of communication open
with our counterparts. We should be experienced enough by now to
understand, that nothing is ever as simple as it seems.

qualities of negotiatior
Active Listening
Negotiators have the skills to listen actively to the other party during the
debate. Active listening involves the ability to read body language as well
as verbal communication. It is important to listen to the other party to
find areas for compromise during the meeting. Instead of spending the
bulk of the time in negotiation expounding the virtues of his viewpoint,
the skilled negotiator will spend more time listening to the other party.
Emotional Control
It is vital that a negotiator have the ability to keep his emotions in check
during the negotiation. While a negotiation on contentious issues can be
frustrating, allowing emotions to take control during the meeting can lead
to unfavorable results. For example, a manager frustrated with the lack of
progress during a salary negotiation may concede more than is acceptable
to the organization in an attempt to end the frustration. On the other hand,
employees negotiating a pay raise may become too emotionally involved
to accept a compromise with management and take an all or nothing
approach, which breaks down the communication between the two
parties.
Verbal Communication
Negotiators must have the ability to communicate clearly and effectively
to the other side during the negotiation. Misunderstandings can occur if
the negotiator does not state his case clearly. During a bargaining
meeting, an effective negotiator must have the skills to state his desired
outcome as well as his reasoning.
High self-esteem and confidence: If you're negotiating with an
aggressive party, they can often sense a lack of confidence and use it to
their advantage. On the flip side, high self-esteem and confidence tend to
breed success. They allow for appropriate boldness and risk-taking.
Collaboration and Teamwork Negotiation is not necessarily a one side
against another arrangement. Effective negotiators must have the skills to
work together as a team and foster a collaborative atmosphere during
negotiations. Those involved in a negotiation on both sides of the issue
must work together to reach an agreeable solution.
Problem Solving Individuals with negotiation skills have the ability to
seek a variety of solutions to problems. Instead of focusing on his
ultimate goal for the negotiation, the individual with skills can focus on
solving the problem, which may be a breakdown in communication, to
benefit both sides of the issue.
Decision Making Ability Leaders with negotiation skills have the ability
to act decisively during a negotiation. It may be necessary during a
bargaining arrangement to agree to a compromise quickly to end a
stalemate.

Negotiating Styles
Generally speaking, although the labels may vary from one commentator
to the next, negotiating styles can be divided into two categories:

Competitive/Positional-Based Negotiation
In the competitive model, the parties try to maximize their returns at the
expense of one another, will use a variety of methods to do so and view
the interests of the opposing party or parties as not being relevant, except
insofar as they advance one's own goal of maximizing returns.
Competitive bargaining has been criticized for its focus on specific
positions rather than attempting to discern the true interests of the parties.
Among the criticisms which have been levelled at the competitive model
are its tendency to promote brinkmanship and to discourage the mutual
trust which is necessary for joint gain.

Cooperative/Interest-Based Negotiation
Cooperative or problem-solving negotiation starts from the premise that
the negotiations need not be seen as a zero-sum situation, i.e., the gains
of one party in the negotiation are not necessarily at the expense of the
other party. Common interests and values are stressed, as is the use of an
objective approach, and the goal of the negotiations is a solution that is
fair and mutually agreeable.
In recent years, the form of cooperative negotiating style known as
principled bargaining has won widespread acceptance. The proponents of
principled bargaining believe that bargaining over fixed positions can
lead to situations where parties will either be stubborn (hard
bargaining) or accept unilateral losses (soft bargaining) in order to
reach agreement. Principled bargaining, which attempts to reconcile the
interests underlying these positions, helps the parties to reach agreement
and circumvent the problems of hard and soft bargaining. It is this form
of negotiation which is seeing increasing use. See Part G Steps of a
Negotiation for further discussion.

ARBITRATION

ADVANTAGES DISADVANTAGES

Success largely dependent on


Parties create own process
arbitrator

Arbitrator can be selected Time and cost affected by


on basis of substantive poor co-operation and poor
knowledge process design
Confidential proceedings Right of appeal limited

Formality compels proper


Confidentiality not suitable for
behaviour and may
some disputes
minimize bad faith

Rules of procedure can be Outcome uncertain in binding


tailored to the process arbitration

Less backlog than courts

Final decision binding or


advisory depending on
wishes of parties

Proceedings may be
shorter and therefore less
expensive

Negotiation and Mediation

ADVANTAGES DISADVANTAGES

Speedy and informal


Can be used as stalling
resolution of disputes;
tactic
generally less stressful

Confidentiality and the Parties not compelled to


continue negotiations or
avoidance of publicity
mediation

May improve communication


between parties thereby Do not produce legal
preserving or enhancing precedents
relationships between parties

High degree of party control: Exclusion of pertinent


Parties create own process parties weakens final
and craft own agreement agreement

Flexibility: resolutions can be


tailored to the needs and
underlying concerns of the
parties and can address legal Parties may have limited
and non-legal issues as well bargaining authority
as providing for remedies
unavailable through
adjudicative processes

Legal and/or other standards Little or no check on


of fairness can be used in power imbalances between
crafting agreements the parties

Increased satisfaction and Disclosure of information


compliance with settlements and truthfulness of
when parties have directly communications depend
on good faith of parties--
participated in crafting
mediation cannot compel
agreements
good faith

May assist in clarifying and In negotiation -- lack of


narrowing issues, and neutral may reduce chance
fostering climate of openness, of reaching agreement,
co-operation, and particularly in complex
collaboration, even if a disputes or those involving
settlement is not reached multi-parties
Risk-free: communications
are without prejudice and if
May not adequately protect
no agreement reached,
parties' legal rights
parties can pursue other
options

In mediation -- strong-
In mediation parties may
willed or incompetent
select mediator with substantive
mediator can exercise
knowledge
too much control

In mediation -- facilitated
discussion useful if negotiations
have broken down or if strong
emotions present

Process voluntary (except where


mandated by contract or
legislation)

Agreement binds parties


AdvantagesandDisadvantagesofConciliation

Advantages

Theconciliatorisnormallyalegalexpertinthedisputedfield
Theprocessisprivatesonoriskofdamagetoreputation
Thepartiesreservetherighttogotocourtiftheyarenothappy
withtheoutcome
Theprocessisflexiblewithatimeanddatesettosuittheparties
Suitableifpartiesareentrenched
Cheaperthantakingthedisputetocourt
Theprocessisinformalsopartiesshouldnotfeeloutoftheir
comfortzone

Disadvantages

Theprocessisnotlegallybinding
Nodecisionisguaranteedattheend
Theprocesscouldbeconsideredtooinformalsopartiesmaynot
takeitseriously
Noappeals
Nolegalaid

Advantagesofmeditation:

Meditationpromotesbraingrowth.Thebraincanliterallygrow!
PennStatedidastudythatlookedatthebrainsofsubjectsthathad
meditatedforover20yearswhodisplayedgreatergyrificationof
thecortex(morefoldsandvalleysonitssurface).
Meditationcanincreaseconcentrationandfocus.Lastyear,astudy
was conducted by the University of Washington that showed
improved concentration using stressful tasks. Meditation had a
directeffectonthebehaviorofthesubjectsinhowtheycompleted
theirtask.Aftermeditating,theyswitchedtaskslessoften
Meditationreducesstress.Duringthatsamestudy,theyalsoasked
the participants to self evaluate the stress levels they were
experiencingandtheresultsdirectlycorrelatedtothepractitioners
feelinglessstressfrommeditation.
Meditation also proved to improve memory, again through the
samestudy.Themeditationgrouphadbetterrecollectionofthe
taskstheyperformedduringtheirstresstest.
Otherstudieshavesuggestedmeditationcanlowerbloodpressure,
treatpainandassistinaddictiontherapy.

Disadvantagesofmeditation:

Takesalotofpractice.Noteveryonecanoneday,allofasudden
beabletoturntheirbrainoff.
Some mayget frustrated andfeel theyre notgetting whatthey
expectedoutofitsoonenoughandgiveup.
Notrecommendedformentallyunbalanced/psychosis.Whenone
takesonthepracticeofmeditation,theyrespendingalotoftime
intheirhead,soyoucanseetheconcernshere.
Noteffectivefortreatingdeepdepression.Ithasbeeneffectively
used to treat mild depression, but not recommended for deep
depression.