|You are at: [Mediation Services] [adrr.com > Mediation Dialogues and Essays] [Mediation Books]|
The Negotiation works when
a) The parties are willing to cooperate and communicate to meet their goals,
b) The parties can mutually benefit or avoid harm by influencing each other
c) The parties know that they have time constraints
d) The parties realize that any other procedure will not produce desired outcome
e) the parties can identify on what issues require to be sorted out
f) the parties also agree that their interests are not incompatible to each other
g) the parties knew that it is preferable to participate in private cooperative process rather than go through severe external constraints like loss of reputation, excessive cost, and possibility of adversarial decision
The dos for the negotiator are as follows:
It is always needed for a good negotiator to know the best and worst alternatives for the process of settlement he is striving to achieve at. The Best Alternative to Negotiated Settlement and the Worst Alternative to Negotiated Settlement are significant points a negotiator is supposed to find out and discuss at every level of discussion. If not discussing, he should be conscious about it. Such an understanding will guide him properly to steer through the difficulties.
a) What is mediation?
The mediation is a process, a facilitation, an empowerment. The core value in mediation is that the process provides the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, the mediator, to exhaustively determine if a settlement is possible. It is a process of empowerment of the parties to control their destiny in their dispute.
Mediation involves a determination of interests the interests of the parties. A concept frequently not found in the litigators lexicon, interests are the needs, wants, and desires that are of importance to the parties the answer to the question what is this dispute really all about for you? To get there, mediation provides a forum for principled negotiations. These negotiations may at times become frustrating and troubling, but with the mediators help the parties keep moving forward. Principled negotiations stimulate exploration of settlement alternatives and an opportunity to evaluate those alternatives, weighing them against the likely outcome of going to trial and viewing proposals through the lenses of reality. Mediation - compared to litigation, trial and appeal is a veritable bullet train to certainty and finality. If the dispute settles at the mediation, it settles on a basis acceptable to the parties; the specter of trial is removed; and, the threat of being tied up on appeal is eliminated.
Strategies and Methods:
Role of mediator: Mediation is accepted as the most viable process of resolving a conflict between two parties before any legal or physical conflict is opted for settling the score for any kind of problem. The major difficulty is getting the parties to agree to prefer the mediation as the process for resolving their problems. As this is known as assisted negotiation or structured negotiation, it is basically a necessary assistance to the negotiators who are the parties themselves. From the voluntary submission to the drafting of settlement agreement, the parties have a major role in mediation rather than the role of mediator himself. The mediator facilitates, renders assistance, gives advise if necessary, presents options available, analyses the strategies, suggests strategies to be adopted, hammers out the issues to be settled, drafts the agreement sentences so that the parties do not find any difficulty in agreeing with them and finally authorizes the settlement. The mediator does not settle. He will not give an award like an arbitrator. He also does not prefer to adjudicate the issues. He will also not prescribe the procedure. He does not examine the witnesses and insist on the production of evidence etc.
Convening for Mediation: The mediator may have to plan very carefully the best strategy to bring the parties to the table of discussion. If one of the parties not ready to send invitation to the other, it is for the provider to initiate an invitation to the parties. If the parties are rigid about going to the opponent, it is for the provider to find a suitable seat of negotiation in his presence or absence, which does not create problems for either of the parties. Whether the initial meeting should be between himself and one of the parties separately or a joint meeting with both the parties? It is the question to be decided depending upon the circumstances and attitudes of the parties.
Flexible Process: There is no rigid frame work of rules for mediation. It is a very flexible process. A person who is acceptable to both the parties would serve as mediator. He is perceived as neutral capable of understanding the issues of their dispute and knowledgeable enough about the mediation processes along with sense of time and attitude to resolve the problems.
It is important to decide on the cost of the mediation at the beginning itself. The Mediator should indicate the possible cost and obtain the consent of parties to share the cost equally. If not the cost of mediation would become an issue of conflict to be mediated between the mediator and the party.
Issues to be discussed: The parties also should decide on the procedure of mediation. In this endeavour, the parties may state what issues need to be discussed and what should be avoided. There also a need to decide about the privacy or secrecy or confidentiality of certain procedures or aspects of the negotiable issues of the dispute.
With the assistance or guidance or knowledge of the mediator, the parties should decide on what issues to be discussed what not to be. Generally in family matters the mediation between spouses would bring out such problems. The spouses may agree on discussion about custody of children and distribution of the joint party or maintenance amount. At the same time they may not agree on discussing the relationships they have with other persons.
Necessary Parties: The parties have to recognize all the necessary parties, who are either involved or interested or might be affected by the decision on the issues before them. If a necessary party is not joined, the decision may not be binding on him and entire process may go waste. The persons who are capable of making commitments may be the parties to the process. It is also necessary to decide in advance whether the parties will represent themselves or be represented by the counsel.
Initial Steps: The mediator has certain hard tasks before him at the initial stages of mediation. He has to contact the distant and complex parties at their places and convince them about the uses and benefits of the mediation, in comparison with the other processes. Mediator has to build necessary credibility and atmosphere to say that he has enough of courage and credibility to assist in resolution of the dispute. Besides this, mediator has to establish a rapport between the disputants. He has to exhibit his personal credibility, build institutional credibility and prove the procedural credibility also, so that parties are ready to establish the rapport between them.
The Beginning: The beginning of mediation session is very important. The atmosphere of the first session sets the necessary atmosphere for resolution. The greeting and seating of participants, their strategic location around the table, either across or along with others, the opening remarks of the mediator and starting statements of the parties, every thing is significant in taking the process a long way.
Collecting and Analyzing the Relevant information: The mediator obtains necessary clues of the issues from the opening statements of the parties and develops further information from that level which help him in establishing a focus and maintain a momentum of the resolution process. One usual method is collecting the briefs from the parties, which will reveal the flavour of the dispute and help understanding the issues and contrasting view points. The opening statement, the circumstances in which the dispute arose, the sum and substance of the issues to be resolved are expected to be collected from the parties at the first or second phase of the mediation.
Agenda Setting: Mediator has to strategically draft the list of the issues, circulate among the parties, collect their suggestions and then finally secure the consensus in listing out and fixing priority of the issues in order of their preference in resolution effort. If needed, he has to reframe the issues or reorient the list or reprioritize the issues. He has to see whether all the interests and concerns of all the parties reflected in the issues listed or not. This process completes agenda setting.
Communication Process: The next stage in mediation is the flow of communication between the disputant parties. The parties understanding of each others perspective and mediators understanding of the issues and interests are important, which require perfect communication. The body language, restatement, paraphrasing, summarizing are the elements of communication. In understanding the communication, one has to cross the barriers of cultural challenges, gender, personality, language and perception challenges. The communication can be re-established with frequent meetings, questions of closed, open and leading questions, active listening questions, elaboration questions, clarification questions, confirmation questions, confrontation questions, hypothetical questions and questions asked by the mediator establish the required information bridge. Unless one listens to, it is difficult to understand the message. There are four levels of listening- ignoring, pretending, selective and attentive listening. The listener has to give up the feeling that he wants to be more important than the speaker and allow the speaker to be most important for some time at least. He has to quell his desire to talk. He has to suspend his judgment and search out what is truly important for the speaker and finally he should focus on the main event.
Meeting the parties and meeting between parties: The mediator has to decide whether to have joint sittings with the parties or individual caucusing. He has to choose whom to meet first. The meetings of this kind affect the party power balance. It is always important to retain the focus on interest and remind the confidentiality of the process and information to the parties. While the objective of initial meetings with parties and arranging meetings between them is to collect more information about the issues to be settled and increase the credibility and the bond of friendship between the parties. The information collected by this process of establishing communication and series of meetings help the mediator in evaluation of the case and possible settlement points. The mediator also can use these meetings for explaining the BATNA and WATNA for both the parties.
These meetings will facilitate the negotiation process between the parties. All those strategies of negotiation can be adopted, tested and the benefits realized.
j) Arbitration & Conciliation Act:
Now, the proceedings relating to CONCILIATION are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996. This Act is aimed at permitting Mediation conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes. This Act also provides that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal.
To which disputes:
Section 61 says that conciliation shall apply to disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. Unless any law excludes, these proceeding will apply to every such dispute while being conciliated. The parties may agree to follow any procedure for conciliation other than what is prescribed under the 1996 Act. If any law certain disputes are excluded from submission to conciliation, the third part will not apply.
According to Section 62, a party can take initiative and send invitation to conciliate under this part after identifying the dispute. Proceedings shall commence when other party accepts the invitation. If rejects it stops there itself. If other party does not reply within 30 days it can be treated as rejection.
1 Conciliation under the Arbitration and Conciliation Act
Act of 1996 (in sections 61 to 81 contained in Part
III) make express provisions as to conciliation by agreement of the parties
- a matter on which there has so far been no statute in
2 Conciliation and Arbitration
Unlike an arbitrator, a conciliator does not give a decision but his main function is to induce the parties themselves to come to settlement. An arbitrator is expected to give a hearing to the parties, but a conciliator does not engage in any formal hearing, though he may informally consult the parties separately or together. The arbitrator is vested with the power of final decision and in that sense it is his contribution that becomes binding. In contrast, a conciliator has to induce the parties to come to a settlement by agreement.
3 The Emotional Aspect
An arbitrator generally decides after a contest between the parties while in the case of conciliation the final result depends on the will of the parties. Therefore, at the end of the proceedings, emotional harmony between the parties may not suffer much, in the case of conciliation.
Under Section 61(1) of the new law, conciliation can be resorted to in relation to "disputes arising out of a legal relationship, whether contractual or not".
A party initiating conciliation can, under Section 62, send to the other party a written invitation to conciliation. Conciliation commences when the other party accepts in writing this invitation. If it does not accept it, then there will be no conciliation (section 62 ).
a. There will be only one conciliator, unless the parties agree to two or three.
b. Where there are two or three conciliators, then as a rule, they ought to act jointly.
c. Where there is only one conciliator, the parties may agree on his name
d. Where there are two conciliators, each party may appoint one conciliator.
e. Where there are three conciliators, each party may appoint one, and the parties may agree on the name of the third conciliator, who shall act as presiding conciliator.
f. But in each of the above cases, the parties may enlist the assistance of a suitable institution or person.
The above provisions are contained in section 63 and 64(1).
7 Institutional Assistance
64(2) and proviso of the new law lay down as under
a. Parties may enlist the assistance of a suitable institution or person regarding appointment of conciliator. The institution may be requested to recommend or to directly appoint the conciliator or conciliators.
b. In recommending such appointment, the institutions etc. shall have regard to the considerations likely to secure an "independent and impartial conciliator".
c. In the case of a sole conciliator, the institution shall take into account the advisability of appointing a conciliator other than the one having the nationality of the parties.
Section 37 provides
that an appeal shall lie from certain orders. No second appeal will lie from
an order passed in an appeal. However, the right to appeal to the Supreme
Court is not affected.
Incidentally, the new list of appealable orders is slightly narrower than that contained in Section 39 of the Arbitration Act, 1940.
sections 65 to 73 contains provisions spread over a number of sections as
to the procedure of the conciliator. Their gist can be stated in short form.
a. The conciliator, when appointed, may request each party to submit a statement, setting out the general nature of the dispute and the points at issue. Copy is to be given to the other party. If necessary, the parties may be asked to submit further written statement and other evidence.
b. The conciliator shall assist the parties "in an independent and impartial manner", in their attempt to reach an amicable settlement. See Section 67(1) of the new law.
The conciliator is to be guided by the principles of "objectivity,
fairness and justice". He is to give consideration to the following matters
i. rights and obligations of the parties;
ii. trade usages; and
iii. circumstances surrounding the dispute, including previous business practices between the parties. [Section 67(2)].
d. He may, at any stage, propose a settlement, even orally, and without stating the reasons for the proposal. [section 67(4)].
e. He may invite the parties (for discussion) or communicate with them jointly or separately. [Section 68].
f. Parties themselves must, in good faith, co-operate with the conciliator and supply the needed written material, provide evidence and attend meetings, [Section 71].
g. If the conciliator finds that there exist "elements of a settlement, which may be acceptable to the parties", then he shall formulate the terms of a possible settlement and submit the same to the parties for their observation.
h. On receipt of the observations of the parties, the conciliator may re-formulate the terms of a possible settlement in the light of such observation.
i. If ultimately a settlement is reached, then the parties may draw and sign a written settlement agreement. At their request, the conciliator can help them in drawing up the same. [See Sections 73(1) and 73(2)].
9 Legal Effect
a. The settlement agreement signed by the parties shall be final and binding on the parties. [See Section 73(1)].
b. The agreement is to be authenticated by the conciliator. [See Section 73(4)].
c. The settlement agreement has the same status and effect as if it were an arbitral award rendered by the arbitral tribunal on agreed terms. [See section 74 read with section 30].
The net result is that the settlement can be enforced as a decree of court by virtue of section 36.
10 Role of the Parties
Under section 72, a party may submit to the conciliator his own suggestions for the settlement of a dispute. Such suggestions may be submitted by him on his own initiative or on the conciliator's request.
11 Conciliator's Procedure
The net result
of section 66, Section 67 (2) and Section 67(3) can be stated as
a. The conciliator is not bound by the Code of Civil Procedure or the Evidence Act.
b. The conciliator is to be guided by the principles of objectivity, fairness and justice.
Subject to the above, he may conduct the proceedings in such
manner as he considers appropriate, taking into
i. the circumstances of the case;
ii. wishes expressed by the parties;
iii. need for speedy settlement.
12 Disclosure and Confidentially
a. Factual information received by the conciliator from one party should be disclosed to the other party, so that the other party can present his explanation, if he so desires. But information given on the conditions of confidentiality cannot be so disclosed.
b. Notwithstanding anything contained in any other law for the time being in force, the conciliator and a party shall keep confidential "all matters relating to the conciliation proceedings". This obligation extends also to the settlement agreement, except where disclosure is necessary for its implementation and enforcement. (Section 75).
13 Admissions etc.
In any arbitral or judicial proceedings (whether relating to the conciliated dispute or otherwise), the party shall not rely on, or introduce as evidence
i. views expressed or suggestions made by the other party for a possible settlement;
ii. admissions made by the other party in the course of conciliation proceedings;
iii. proposal made by the conciliator; and
iv. the fact that the other party had indicated his willingness to accept a settlement proposal (Section 81).
14 Parallel Proceedings
During the pendency of conciliation proceedings, a party is debarred from initiating arbitral or judicial proceedings on the same dispute, except "such proceedings as are necessary for preserving his rights". (Section 77) (There is no mention of arbitral or judicial proceedings which are already initiated).
15 Conciliator Not to Act as Arbitrator etc.
Unless otherwise agreed by the parties, the conciliator cannot act as arbitrator, representative or counsel in any arbitral or judicial proceedings in respect of the conciliated dispute. Nor can he be "presented" by any party as a witness in such proceedings. (Section 80).
16 Costs and Deposit
The new law also contains provisions on certain other miscellaneous matters, such as costs and deposit (Section 78 and 79).
How to Draft and Execute a Settlement:
There is no standard format for drafting a settlement deed. The settlement arrived of negotiation is different from that of conciliation, in its nature. It is a mere contract and breach of which may lead to another litigation before the court of law. Like every agreement this also has to be executed in the stamp paper worth Rs 100. Whereas the settlement in conciliation proceedings could be considered as the award provided some formalities are fulfilled. If the document incorporating the settlement terms is signed by the disputants, the conciliator has to authenticate those signatures, which would complete the formalisation of the document. However, the Indian Stamp Act makes it mandatory to affix the Stamp worth Rs 250 for an award worth above Rs 5000. (For award worth Rs 1000 the stamp paper required is Rs 10, for Rs 5000 it is Rs 50). Then it will acquire legal validity of being an award under Section 31 of Arbitration and Conciliation Act, which would be equivalent to a decree and is immediately enforceable.
If the parties to dispute agree upon a negotiated settlement to the extent of payment of a certain amount, for example, it will be executed immediately when the settled amount is paid. No need of further enforcement or execution. If the settlement is for payment on a future date, and that was not made, the recourse available for the suffered party is only to file a suit for breach of contract.
If the settlement is product of conciliation, with all the formalities of reducing it into writing and authenticated by the conciliator, on a stamped paper, it will be an award and thus a decree, which could be executed immediately. Non compliance would lead the party affected to file execution petition straight.
The following are the advantages of resolving disputes by conciliation:
1. The parties and the third neutral party (in place of judge) sit together to resolve.
2. Matter settles at threshold of the first count, and for all times to come instead of resorting to all possible appeals to High Court and the Supreme Court, as many times as the CPC provided.
3. The social advantage of parties going back home happily without broken relations is of high value. The bickering and enmity will not be enhanced as happens in other modes of rule based resolutions.
4. Drastically cuts down the cost of litigation and the time. The early disposal of the case will reduce the hidden and unproductive costs like traveling to courts and keeping off from working for several productive days.
5. Execution is done simultaneously of the settlement.
6. It offers a more flexible alternative, for a wide variety of disputes, small as well as large.
7. It obviates the parties from seeking recourse to the system.
8. It reserves the freedom of the parties to withdraw from conciliation without prejudice to their legal position inter se at any stage of the proceedings.
9. It is committed to maintenance of confidentiality throughout the proceedings and thereafter of the dispute, information exchanged, the offers and counter offers of solutions made and the settlement arrived at;
10. It facilitates the maintenance of continued relationship between the parties even after the settlement or at least during the period the settlement is attempted at. This feature is of particular significance to the parties who are required to continue their relationship despite the dispute, as in the case of disputes arising out of construction contracts, family relationships, family properties or disputes between members of any business or other orginisations.
11. There is no scope for corruption or bias.
This Website is by Stephen R. Marsh
Contact Information at: