Alternative Dispute ResolutionNegotiation and Mediation

D R MADABHUSHI SRIDHAR

LLM, MC], Ph D

LexisNexis*

Butterworths

Table of Contents

Preface vii

Acknowledgments xi

Table of Contents xiiiTable ofCases xxix

CHAPTER 1

Introduction 11. Is it Possible to Stop Filing? 2

2. Is it Possible to Increase the Outflow by Increasing Efficiency? 3

ADRas another Outlet 3Reference to other Systems 4Difficulties with Arbitration 4Mediation Bar and Clients Evaluation 4

CHAPTER 2

Basic Dispute Resolution Mechanism: Law 7

1. What is Law and why is it needed? 7

2. Evolution of law 9(a) Legislation 9(b) Customs 11(c) Judicial Precedents 13

3. Personal Rights and Duties and Marital Conflicts 14

4. Civil Law and Criminal Law 17

5. What is Right and Duty? 19(a) Essentials of Legal Right 19(b) Moral and Legal Rights: 20(c) Civil Rights 20(d) Indemnity 23(e) Guarantee 24(f) Bailment and Pledge 29(g) Difference with Säle and Hire-Purchase 30

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6. Transfer of Properry 33(a) Property 33(b) Säle 34(c) Agreement to Seil 36(d) Mortgage 36(e) Lease 37(f) Gift 37

7. General Civil Wrongs- Torts 38(a) Definition of Tort 38(b) Essentials ofaTort 38(c) An act or Omission 39(d) Intention 39(e) Legal Damage 39(f) Tort and Crime 39(g) Tort and Breach of contract 40(h) Classification of Specific Torts 41

8. Procedure to resolve Civil Disputes: Civil Procedure Code 44(a) WhythisCode? 45(b) Power and Limitation of Law: Problem of Jurisdiction 47(c) The Civil Adjective Law 49(d) Fundamental Principles of Procedure 50(e) Adversary: Conflicting Facts and Proofs 50(f) Inquisitotial: Fact Finding Mechanism 50(g) Participative: An Alternative Process 51(h) Standard of Proof: Rules of Evidence 51(i) Different Standards of Proof 52(j) Degreeof Proof 52

(k) Degree of proof of civil actions 53(1) Adversarial, Inquisitorial and Participative Systems of

Dispute Resolution 54

CHAPTER 3

Need For Alternative Dispute Resolution 57

I. Reasons for Finding Alternatives 57(a) WeightofPendency 57(b) State Fighting the Citizen 57(c) Other Reasons 58(d) Adjournments 58(e) Concentration of Work 58

II. Efforts to Reform: Amendments to Civil Procedure 59(a) Provision for Arbitration and Conciliation 59(b) Reforms in Methods of Trial 60(c) Changes in Pleadings 61(d) Service of Summons 61

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(e) Restriction on Adjournments 62(f) A Rigid Time-frame 63(g) Framing of Issues 63(h) Summons to Witnesses 63(i) Decree and Copy of Judgment 64(j) Security for 'Stay' 64(k) Register of Appeal 64(1) No Further Appeals 64(m) Enlargement of Time 65(n) Attachment 65

III Criticism against Changes 65(a) Appeals Made Costly 66(b) Commissions for Examining Witnesses 67

IV Delay in Dispensation of Justice at Different Stages of Trial 67(a) Delay at rhe Service Stage 68(b) Indifferent Handling of Issues 69(c) Hearing 69(d) Delay at the Arguments Stage 70(e) Delay in Execution 73(f) Affidavit of Assets 73(g) Arrears in High Courts 73(h) Delays in Appeals 75(i) Curtailing Second Appeals 75(j) Restriction on Revision 76(k) Restricting Appeals to Supreme Court 77(1) Ptuning the Turisdiction of Supreme Court 77(m) Powers of Supreme Court 77

CHAPTER 4

Dispute, Dispute Resolution and Complete Justice 79

Dispute 79

Complete Justice 79

Principles of Natural Justice 80

Procedural Due Process 81

Is Law Relevant in Alternative Dispute Resolution? 81

History of Alternative Dispute Resolution 82

ADR in India 82

Nyaya Panchayats and Panchayats 83

Decision of Karta or Head of Joint Family 86

Community Heads 86

Religious Groups 86

Business Groups and Professional Associations 86

Genrlemen's Agreement 87

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In Search of Wisdom 87Mediators 87Tradkional Dispute Resolution Process 88Constitutionalism 91ADR in Indian Statutes 92Need For ADR 93Usefulness of ADR 94

Innovative Methods 94Management 95Confidentiality and Relations 96Disadvantages of ADR 96Difficulties 97State controlled and Seif controlled Techniques 97Litigative and Non-litigative 98Informal and Simple 98Efficient Management 99Difficulties with 'Win or Lose' Approach 99

Main Processes of ADR 99Advantages of ADR 102

CHAPTER 5

State Authorities of ADR: Lok Adalats and Legal Aid 105Legal Aid as Human Right 105Foundations of Legal Aid 108Right to Counsel of Choice 110Committee for Implementing Legal Aid Scheme (CILAS) 111Lok Adalat: As Center for ADR 112Legal Services Authority Act 115

Objective 116Authorities under the Law 116Functions of NALSA 116

Eligibility 119No Legal Services in Certain Cases 120Withdrawal of Legal Services 121Modes of Legal Service 121Legal Aid Fund 121Constitution and Jurisdiction of Lok Adalat 122

Limitations 1231. Transgression of Limit 1232. Consent as Basis of Jurisdiction 1243. No Criminal Offences 124Refund of Court Fee 129

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Powers of Lok Adalat 130Power ofjudicial Review 131Permanent Lok Adalats 132Object of the Amendment 2002 132

Salient Features of the Amendment 133Scope for Consensual Process 134

CHAPTER 6

Ascertaining the Problem: Techniques of Interview 139Communication 139Interpersonal Communication 140Verbal and Non-verbal Communication 140

Intersubjectivity 141Models of Client Interviewing 141Therapeutic Approach 143Existential Approach 143Opening the Interview 144Role of a Lawyer/counsellor 144

Purpose of Client Interviewing 145Different Phases of Interview 146Preparation and Identification of Problem 147

Taking Notes 148Chronological Overviewof Events 148Expectation of the Client 148Advising 149Difficult Clients 149Care for Clients 149Feelings and Responses 150Questioning Techniques 150Active Listening Questions 151Levelsof Listening 152Secretsof Listening 153Validation 153Validation by Introspection 153Impediments in Communication 154Blocks in Counselling 154HealthyAssumptions 155

Theory Development and Verification Stage 155Establishing Relationship 156Preparation for the Interview 158

CHAPTER 7

Negotiation 161

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Need for Negotiation 161Discussion: A Virtue and Essential Component of Indian Culture .... 162Meaningof Negotiation 162Essentials of Negotiation 163Phases of Negotiation 163Characteristics of Negotiation 163Negotiation Power Sources 164Joint Decision 166Negotiation as Mixed Motive Exchange 167Power of Control 167Negotiation as a Compromise 167Negotiation as an Exchange of Information 169Communication 169Essential Skills 169Do's 170

How to Make Concessions 170Tactics used by Negotiator 170

Negotiation-dialogue 171Information, a Dynamic Necessity 171Operating Strategies 172

Negotiation Styles 172Cooperative Style 172Competitive Style 172

Fivc Kinds of Approaches to Negotiation , 172Approaches to Negotiation 173

1) Avoidance 1742) Accommodator 1753) Competitor 1754) Compromiser 1755) The Collaborator 175

The Summary of Five Approaches 176Model of Developmental Process 177

An Arena 178Agenda Formation 178Exploring Limits 178Narrowing Differences 178Bargaining 178Agreement 179Strategies of Negotiation 179A. Adversarial Strategy 179Manipulative Approach of Competitive Strategy 186General Assumptions 186

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Problems Involved in the Competitive Approach 186B. Problem Solving Negotiation Strategy 187Four Defining Aspects of Interest Based Model 188

Identify Issues-the four core Areas 190Focus of Negotiation 190Issues, Interests and Positions 190Types of Interests 191Inquiry 191Bridging 191

Common Obstacles to Bridging 191Develop new Options 192Concession Strategies 192

Best Alternative to Negotiated Arrangement (BATNA) and Worst Alterna-tive to Negotiated Arrangement (WATNA) 193

Enhancing the Choice of Settlement in Integrative Bargaining 193Benefits of Integrative Compared to Distributive Bargaining 194

Approach and Personality 195Best Negotiators with Both the Skills 195Dispute Negotiation and Transactional Negotiation 195Merits of the Integrative Approach 196General Assumptions of the Integrative Approach 196Problems of the Integrative Approach 196Principled Negotiation 196Separate the People from the Problem 196Focus on Interests, Not Positions 197Invent Options for Mutual Gain 197Select from Among Options by Using Objective Criteria 197Negotiating Advantage 197Resistant Competitive Negotiator 197Negotiation Power 198Impediments to Setdement 199

Two Roles of Negotiation 200Influencing Factors 200Cultural Difference 204Negotiation Berween Neighbouring Countries 204Non-binding Communications: Simla Agreement and Lahore

Declaration < 205Mixed Motive Exchange 205Body Language 207Verbal Language 208Power, Culture and Gender as Strategies 209Confidence Building Measures (CBM) 209Cordial and Constructive 209

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Cautious Optimism 210Batna and Watna 210

Generating Good will 211Assessment of Result: Another Language Exercise 211

Domestic Disputes and Tool of Negotiation 213The Hindu Marriage Act 1955 and the Special Marriage Act 1954 ... 213Code of Civil Procedure 1908 214Family Courts Actl984 214Negotiation andTrade Unions: Collective Bargaining 215

CHAPTER 8ADR in Criminal Cases 217

Alarming Pendency of Cases 217Fundamental Right to SpeedyTrial 218

Constitutional Obligation 218Need for a Fair Judge-Population Ratio 218Fast Track Court Scheme 219

Initial Set-back 219The Impact 220Term of Judges of High Court 220Lacunae in the Operation of the Scheme 220Strengthening the Legal System 221

Problem of Undertrial Prisoners 222Bürden of Pendency on Exchequer 222Increasing Rate of Acquittals 222

Independent Prosecution Authority and Elimination at Threshold.... 223Right to SpeedyTrial 223Criminal Case Management Systems 223ADR in Criminal Cases 224

Compounding of offences: Need to Reframe Section 320 Cr PC 225Plea Bargaining: The need 225

Evaluating the Results in Other Countries 226Constitutional Validity of Plea Bargaining: Views of US Judiciary 226Victim-Offender Mediation (VOM) 228Law Reforms in Canada 229Rejection by Supreme Court of India of the Concept

of Plea Bargaining 229Curable Ills of Plea Bargaining 229Essential Precautions 230Possible Objections 230

CHAPTER 9

Mediation and Conciliation 233

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A. Mediation 233Introduction 233

Why Mediation? 233Meaning of Mediation 234

Determination of Interests 234Techniques of Mediation for Conflict Situation 235

Exploratory Stage 235Foüow-up 236ADRinUK 236Court Annexed Process in US 237Conciliation as a Pre-trial Process 239Counselling 239

How Mediation Works in case of EEOC 240Mediating EEOC Charges/Issues 240Administrative Process in EEOC Mediation 240Mediation During an Investigation or During the Conciliation

Process 240Differences in Mediation at the Conciliation Stage 241Mediation at Partys Request 241Confidentiality 241Attendance at a Mediation Session 241Attorney's Assistance 241Time of Mediation 242Deciding Issues or Charges for Mediation 242Charge not Resolved 242Enforceability 242Success in Mediation 242Benefits of Mediation 242Universal Agreements to Mediate (UAMS) 243Benefits ofUAM? 243

Conciliation in Japan 244Conciliation Council in Norway 244ADR Experience in Australia 244Mediation Boards in Sri Lanka 245Conciliation Courts in Pakistan 246Hong Kong Dispute Resolution 247Conciliation as an Experiment in Himachal Pradesh, India 247Advantages of Mediation 248

Free 248Fair and Neutral 249High Rate of Compliance 249Comprehensive and Customised Agreements 249Confidentiality 249

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Avoids Litigation 249Fosters Cooperation 249Improves Communication 249Tailor Made Solutions 249Personal Empowerment 250Preservation of Ongoing Relationship 250EveryoneWins 250

Essential Characteristics of the Mediation Process 250Voluntary 250CoUaborative 250Controlled 250Confidential 250Informed 251Impartial, Neutral, Balanced and Safe 251Self-Responsible and Satisfying 251

Convening for Mediation 252Flexible Process 252Issues to be Discussed 252Necessary Parties 252Initial Steps 253Beginning 253Collecting and Analysing the Relevant Information 253Communication Process 253Meetings 254Essential characters of Mediator 254

Convener 254Educator 255Communication Facilitator 255Translator 255Questioner and Clarifier 255Process Advisor 255Counsellor 255Catalyst 255Responsible Record Holder 255

Preparation for Mediation 256Stages of Mediation 257Two Models of Mediation 258Therapeutic Mediation 258Facilitative Mediation 258Evaluative Mediation 259Directive Mediation 259Classic Mediation 259

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Pure Process Mediation 259Two Styles of Mediation 259Mediation Agreement 260

Successful Completion 260The Seven Dimensions of Writing Mediation Agreements 261

Accurate Identity of Parties 262Reflecting the Framework of the Agreement 263Priority of Interests after Identifying Topics 264Interim Agreement 264Revisions 265Reading the Agreement in Open 266Ceremonial Signing 267

Mediation in a Commercial Litigation 267Mediation in Medical Malpractice 268Bankruptcy and Mediation 269B. Conciliation 270

What is Conciliation? 270Statutory Conciliation 271Conciliation under Industrial Disputes Act 1947 271Conciliation Machinery 273Arbitration under Industrial Disputes Act 1947 273Board of Conciliation and Reference of Disputes 273

Powers and Procedures 274Duties of the Board of Conciliators 274

Prohibition of Strike During Conciliation 275Investigation into facts: Enquiry Committees 275Court of Inquiry 275Conciliatory Officers Efforts 275Powers of Conciliation Officer 276Duties of Conciliation officer 277

Problems in Conciliation 278Problem of Integrating into the Dispute Situation 278Problem of Ascertaining the Real Issues of the Dispute 278Temptation of Deciding for the Parties 278

Negotiation: Prime Mediod of Resolution 279Conciliation under Family Courts Act 1984 281Conciliation under Hindu Marriage Act 1955 283

Tackling Conflict and Emotional Stress 284Unwinding tension: Mediators Positive Role 284Frustration disintegrates personality, tackle it 284

Fixing Label on Problem is Bad 284Communication 286

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Exchanging Positions 286Exploring Interests and Needs 286Generating Options 287Children 287UNCITRAL Model of Conciliation 287

Revised Draft on UNCITRAL Conciliation 288Concept and Characteristics of Conciliation as Distinguished from other

Methods of Dispute Settlement 289Purpose and Potential Advantages of Conciliation 290Policy Considerations Underiying the Draft UNCITRAL Conciliation

Ruies 291Application of the Ruies and Initiation of Conciliation 292

Article 1: Application of the Ruies 292Article 2: Commencement of Conciliation Proceedings 293NumberandAppointmentofConciüators 294Article 4: Appointment of Conciliator(s) 296

Conduct of Conciliation Proceedings 297Article 5: Submission of Statements to Conciliator 297Article 6: Representation and Assistance 298Article 7: Role of Conciliator 298Article 8: Administrative Assistance 299Article 9: Communication Between Conciliator and Parties 299Article 10: Disclosure of Information 300Article 11: Party Suggestions for Settlement of Dispute 300Article 12: Co-operation of Parties with Conciliator 301Article 13: Settlement Agreement 301Article 14: Confidentiality 302

Termination of Conciliation Proceedings and Costs 302Article 15: Termination of Conciliation Proceedings 302Article 16: Resort to Arbitral or Judicial Proceedings 302Article 17: Costs 303Article 18: Deposits 304

Subsequent Proceedings 304Article 19: Role of Conciliator in Subsequent Proceedings 304Article 20: Admissibility of Evidence in other Proceedings 305

Model Conciliation Clause 306Conciliation Under Amended Civil Procedure Code 1908 307Commentary 309Amendment of Order XVIII 311

DifFerence between Mediation and Conciliation 311Conciliator Pro-active, Mediator a facilitator 313Comparison with Expressions in UK 314The DifFerence Between Conciliation and Mediation 315

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Validity of Amended Section 89 318Court Annexed Mediation 319Some Cases 320

Court Annexed Mediation in India 321The Board for Industrial Financial Reconstruction as Mediator 322Supreme Courts 2005 Judgment and ADR 323

CPC and ADR 324Civil Procedure ADR and Mediation Ruies 330

PartIAlternative Dispute Resolution Ruies 330

Rule 1: Title 330Rule 2: Procedure for directing parties to opt for alternative 330

modes of settlementRule 3: Persons authorised to take decision for the Union of 331

India, State Governments and othersRule 4: Court to give guidance to parties while giving direction

toopt 331Rule 5: Procedure for reference by the Court to the different 333

modes of settlementRule 6: Referral to the Court and appearance before the Court 336

upon failute of attempts to settle disputes by conciliationor judicial settlement or mediation

Rule 7: Training in alternative methods of resolution of 336disputes, and preparation of manual

Rule 8: Applicability to other proceedings 337Part II

Civil Procedure Mediation Ruies 337Rule 1: Title 337Rule 2: Appointment of Mediator 337Rule 3: Panel of Mediators 338Rule 4: Qualifications' of Persons to be Empanelled Under Rule 3 338Rule 5: Disqualifications of Persons 339Rule 6: Venue for Conducting Mediation 339Rule 7: Preference 339Rule 8: Duty of Mediator to Disclose Certain Facts 340Rule 9: Cancellation of Appointment 340Rule 10: Removal or Deletion from Panel 340Rule 11: Procedure of Mediation 341Rule 12: Mediator not Bound by Evidence Act 1872 or Code of Civil

Procedure, 1908 342Rule 13: Non-attendance of Parties at Sessions or Meetings on

DueDates 342Rule 14: Administrative Assistance 342Rule 15: Offer of Settiement by Parties 342

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Rule 16: Role of Mediator 342Rule 17: Parties Alone Responsible for Taking Decision - 343Rule 18: Time Limit for Completion of Mediation 343Rule 19: Parties to Act in Good Faith 343Rule 20: Confidentiality, Disclosure and Inadmissibility of

Information 343Rule21:Privacy 344Rule 22: Immunity 344Rule 23: Communication Between Mediator and the Court 344Rule 24: Settlement Agreement 345Rule 25: Court to Fix a Date for Recording Settlement and Passing

Decree 345Rule 26: Fee of Mediator and Costs 346Rule 27: Ethics to be Followed by Mediator 346Rule 28: Transitory Provisions 347

Critical Analysis of Ruies for Mediation 347Parties Must be-Free to Select their Mediators 348Training Must for all Judges 349Recognised Institutions Only 349No Compulsion to Seek Mediation 349No Detailed Prescription 349Mediator Not to Impose a Decision 350Role of Mediator and Act of 1996 351

Conciliation under Arbitration and Conciliation Act 351Disputes to which Applicable 351Is Agreement Necessary 352Which Disputes can be Settled by Conciliation? 353

Commencement 353How Can Recourse to Conciliation be Sought? 353Who Can Seek Conciliation? 354NumberofConciliators 354Appointment of Conciliators 354Calling Upon the Parties 355Joint Meeting 355Private Meetings 355Final Joint Sitting ; 355

Institutional Assistance 356Role of ADR Institution as a Facilitator 356

Stages 356Conciliators Procedure 357

Role of Conciliator 358Role of the Parties 358Parallel Proceedings 358

Legal Effect 358

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Disclosure and Confidentially 359Admissions 359

Conciliator not to Act as Arbitrator 359Enforceability of Agreement Like Award in Arbitration 360Termination of Conciliation Proceedings 360Discipline 361If no Agreement is Reached Between Parties 361How to Draft: and Execute a Settlement 361

Advantages 362Reciprocity and Healthy Business Relationship 363

Canadian Bar Association, Ontario's Model Code of Conduct forMediation 364Objective for Model Code of Conduct for Mediators 364Definitions 364Principle of Self-Determination 365Impartiality 365Conflict of Interest 365Confidentiality 366Quality of the Process 366Advertising 367Fees 367Agreement to Mediate 367Termination or Suspension of Mediation 367Other Conduct Obligations 368Application of Code 368General 368Additional Requirements under the Mandatory Mediation Program 369C. Conflict Resolution Initiatives of Supreme Court 370Constitutional Questions 370Brokering Peace in Tamil Nadu MassDismissal case 371A Fit Case for Adjudication 371Advised to Work More'in Protest' 371Striking Against the 'Strike' 372D. Strikes and Andhra Pradesh High Court's Intervention 372Justice is not a Globally Marketable Commodity 373Advantages of Mediation 373

The Challenge Ahead 374

ANNEXURE

Uncitral Conciliation Ruies 377Index 385

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