OBLIGATION OF LAW, LEGAL PROCESS & LEGAL PROFESSION

Goals of a dispute resolution system

a) Least possible expense
b) Shortest possible time
c) Minimum Stress
d) Equal Access

What is ADR

The term is often used to describe a wide variety of dispute resolution mechanisms
that are short of, or alternative to, full-scale court processes.

Why ADR
With court congestion and excessive litigiousness drawing increasing criticism, it is
clear that lawyers in the future will have to be trained to find fresh approaches to
explore non-litigation routes to resolve disputes.

Advantages of ADR
Private process of dispute settlement
Expeditious
Informal
Inexpensive
Lack of technicality
Involve community participation
Decision making process is controlled by the parties
Leads to amicable results
Relationship is secured
Finality of result
Confidentiality

DISPUTE RESOLUTION

1.Emphasis was put on

(A) Case Management
(B) Developing Dispute Processing Techniques
(C) Fostering Multi-door Dispute resolution Center

2 Issues to be addressed
Design the DR methods for cost and time effective dispute settlement
Bring peoples trust
Introducing teaching and research materials
Training future lawyers

How to determine a dispute resolution process?

Two step approach

Step 1 Considering the client goals.
Whether the D.R. can attain those goals.

Step 2 Whether client is amenable to settlement

Evaluation of the impediments to settlement

Subsequent consideration Public interest in the dispute

A comparative analysis of various dispute resolution processes

Evaluation of the impediments to settlement and likelihood of overcoming

those impediments.

Impediments to settlement
poor communication Effectively poor communication
Emotional stress Opportunity to express their views
Different views on fact Disagreement of parties on matters
Different views on law Disagreement on the legal implications
Important principle Fundamentally associated to a ideology
Constituent pressure Pressure formits group or constituency
Multiple parties - Different parties with diverse interest
Jackpot Syndrome - Discretionary awards

What is Arbitration
A private method of dispute resolution
A consensual dispute resolution process
To resolve their commercial or trade related disputes at venue selected by the parties.
Without recourse to court of law
By reference to a neutral third party for its determination chosen by the parties
themselves
With a binding end result which is internationally enforceable
Avail interim reliefs if required and Confidentiality in the process.

Contrast with litigation

A Private form of dispute settlement
Arbitration offers a quicker, cheaper, and more streamlined procedure than litigation.
Parties choose arbitration as the method of dispute resolution
Agreement to arbitrate
Limited right of appeal
The "internationalist" quality of the arbitral tribunal that makes arbitration attractive --
with party-nominated arbitrators often chosen from the parties' respective countries,
and the chairperson from yet a third country
 Co n tra st
Arb i trati o n Med i ati o n / Co nci li atio n
1. Privat e Adjudicat ion 1. F acilit at ive

2. T ot ally binding 2. Non-binding unless

agreement is reached
3. Adjudicat ory bet ween part ies

4. Has power t o grant 3. F acilit at ive/ Evaluat ive

int erim-measures
5. Awards and agreement s 4. No
are enf orceable 5. No
int ernat ionally

History of Arbitrations
Popular process of dispute resolution between commercial and trader groups from
ancient time.
Primary reason- Limiting the intervention of court and external sanctions
Initially no legal frame work
Peer-group pressure among the trader groups and communities as the main force
which resulted in obligating the parties to abide by the decision of the arbitrations
tribunals.

Types of Arbitration

Institutional Arbitration:
Clause- All disputes arising in connection with the present contract shall be finally settled
under the rules of ICC

Advantages
Degree of permanency
Modern rules of arbitration
High quality technical support facility
Better scrutiny of awards

Disadvantages
Cost is higher (Cost is determined on the ad-volerem of the amount involved in the
claim)
Time problems with the respondent (As there is a fixed period on the respondent to
submit his response to the issues raised by the party initiating arbitration).
Lack of greater flexibility
Process is extremely technical and involves higher time for its resolution.

Ad-Hoc Arbitration-
Clause- All dispute or differences arising out of or in connection with this agreement shall
be referred to and determined by arbitration.

Advantages
Parties agree there own rules
Greater flexibility offered
Usually less costly and less technical in comparison to institutional arbitration
 The Adoption of UNCITRAL RULES OF ARBITRATION provides modern
rules.
Disadvantages
Depends on co-operation and effectiveness of parties.
Grater chance of existence of factual errors in the award.

Party Autonomy in Arbitration

(1) What set of rules will apply to the arbitration
(2) What procedural law will apply to the arbitration
(3) What substantive law will apply to the dispute being arbitrated

Both the proceedings and, to a certain extent, the results, are determined by these
three fundamental decisions.

Objective of A & C Act 1996

(a) To comprehensively cover international commercial arbitration and conciliation as also

domestic arbitration and conciliation;
(b) To minimize the supervisory role of courts in the arbitral process;
(c) To provide that every final arbitral award is enforced in the same manner as if it was a
decree of court
(d) To ensure that Indian law is harmonized with the international legal framework

DAY 2

What is an Domestic & International Arbitration?

The Arbitration and Conciliation Act, 1996

(i) An individual who is a national of, or habitually resident in, any country other than
India; or

(ii) A body corporate which is in corporate in any on n try other than India; or

(iii) A company or an association or a body of individuals whose central management

and control is exercised in any country other than India; or

(iv). The Government of a foreign country

What is a Commercial subject?

Commercial-
Matters arising from all relationship of a commercial nature whether contractual or of
non-contractual nature
UNCITRAL Model Law states that
The term commercial should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods or services;
distribution agreement; commercial representation or agency; factoring; leasing; construction
of works; consulting; engineering; licensing; investment; financing; banking; insurance;
exploitation agreement or concession; joint venture and other forms of industrial or business
cooperation; carriage of goods or passengers by air, sea, rail or road.

ARBITRALITY
Not every type of disputes can be submitted to arbitration. The international conventions and
domestic statues require that certain matter of types of disputes cannot be subject matter of
arbitration. This subject matters or disputes are considered as no arbitrable subjects and the
principle is known as arbitrability. The decision relating to what is not arbitrable in
particular jurisdiction lies with the state and its domestic court. Arbitrability in essence, is a
matter of national public policy. As public policy can differ from one country to another, the
arbitrability of a particular dispute may vary considerably from jurisdiction to jurisdiction.

Some traditionally non-arbitrable subjects

Criminal disputes/Fraud
Disputes between the patent or trademark applicant and the granting office.
Anti-trust or anti-competition claims
Matrimonial dispute
Insolvency disputes
Consumer Disputes

What is an Arbitration Agreement?

Arbitration primarily being a contractual process requires the free consent of the parties to
arbitrate. The arbitration agreement is the foundation stone on which the entire arbitration
process consolidates. Therefore requirement of a valid arbitration agreement is a mandatory
requirement in all national and international law governing arbitration.

Functions of an arbitration agreement

1. It shows that the parties have consented to resolve the disputes by arbitration
2. Once parties have express their consent to arbitrate they cannot unilaterally withdraw
from arbitration
3. Agreement establishes the jurisdiction of the tribunal.
4. Agreement to arbitrate is an universally enforceable agreement [ Art II (3) of NYC
and Art 8 UML]

Valid Legal Requirements for Arbitration Agreement

1. Agreement in writing
2. Dispute arises in respect to defined legal relationship, whether contractual or
not
3. Deals with existing or future disputes
4. Subject matter is capable of settlement by arbitration

An arbitration agreement in writing consists of four aspects

(1) In a contract containing an arbitration clause signed by the parties,
(2) In a contract contained in exchange of letters, telegrams telex, telegrams or
other means of telecommunication.
(3) An exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.
 (4) Incorporation by reference to another contract

PROBLEMS:

A contract containing an arbitration clause is formed on the basis of a text

proposed by one party, which is not explicitly accepted in writing by the other party,
but that latter party refers in writing to the contract in subsequent correspondence,
invoice or letter of credit by mentioning, for example, its date or contract number.
Q. Whether there is a binding arbitration agreement ?

A bill of lading contains an arbitration clause that is not signed by the shipper or
the subsequent holder.
Q. Whether there is a binding arbitration agreement ?

Arbitration is private process with public consequence.

An introduction to UNCITRAL Model law on International Commercial Arbitration
Pillars of UNCITRAL Model law on International Commercial Arbitration
Party autonomy in arbitration
Equal treatment of parties in arbitration
Minimal Court Intervention
Waiver of rights

Sec-8 Power to refer parties to arbitration where there is an arbitration agreement.

(1) A judicial authority before which an action is brought in a matter, which is the subject of
an arbitration agreement, shall, if a party so applies not later than when submitting his first
statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is
accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the
issue is pending before the judicial authority, an arbitration may be commenced or continued
and an arbitrat award made.

Nature of court intervention to enforce foreign arbitration agreement?

a challenge to the arbitration agreement under Section 45 on the ground that
it is null and void, inoperative or incapable of being performed is to be determined on a
prima facie basis.

Interim Measures
In arbitration, due to the lapse of time between commencement of arbitral proceedings
and issuance of the final award, interim measures often constitute a key tool to prevent
irreparable and non-compensatory harm to one party.
Nature of Interim Measures
An interim measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which the dispute is
finally decided.
Difference with Section 9 application
Maintainable even before the commencement of proceedings
Sec 17 would operate only during the existence of the arbitral tribunal and it being
functional

CONDITIONS FOR GRANTING INTERIM MEASURES

Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545
The object of the interlocutory injunction is to protect the plaintiff against
a. injury by violation of his right for which he could not be adequately compensated in
damages recoverable in the action if the uncertainty were resolved in his favour at the
trial.(Irreparable injury)
b. The need for such protection has, however, to be weighed against the
corresponding need of the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal rights for which he could not be adequately
compensated. The court must weigh one need against another and determine where the
balance of convenience lies."

Type of interim measures

1. Maintain or restore the status quo pending determination of the dispute
2. Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself
3. Provide a means of preserving assets out of which a subsequent award may be
satisfied
4. Preserve evidence that may be relevant and material to the resolution of the dispute.

Recourse
An appeal shall lie under Section 37 from an order
1. Court
Granting or refusing to grant any measure under section 9
2. Arbitral Tribunal
Granting or refusing to grant an interim measure under section 17

Composition of arbitral tribunal

Section 10 gives freedom to the parties to
a. determine the number of arbitrators
b. but imposes a restriction that it shall not be an even number.
Section 11 is Appointment of arbitrators
A person of any nationality may be an arbitrator
Parties can agree on a procedure for appointing
Parties can appointment of an arbitrator
Each party could appoint one arbitrator, and the two arbitrators so appointed,
could appoint the third arbitrator, who would act as the presiding arbitrator.
Appointment
Parties have power to select the arbitrator, its qualification and procedure. [Sec 10 and
11 of A&C Act 1996]
Power of Court to appointment arbitrator [Sec 11 (5) & (6) A&C Act 1996]
Nature of the power exercised by Chief Justice or his representative during
appointment of an arbitrator - Judicial

Power of Chief Justice

Where either the party or parties had failed to
nominate their arbitrator
two nominated arbitrators had failed to agree on the presiding
arbitrator

Duty of Independence and Impartiality of an

Arbitrator
Duty to disclose any bias
When a person is approached in connection with his
possible appointment as an arbitrator, he shall disclose in
writing any circumstances likely to give rise to
justifiable doubts as to his independence or impartiality.

Grounds for challenge

Circumstances exist that give rise to justifiable doubts as
to his independence or impartiality
He does not possess the qualifications agreed to by the
parties

What Is Bias
A predisposition to decide for or against one party, without proper regard to the true
merits of the dispute is bias.
Reasonable apprehension of bias in the mind of a reasonable man can be a ground for
removal of the arbitrator.
There must be reasonable apprehension of that predisposition. The reasonable
apprehension must be based on cogent materials.

Disqualification
1. The relationship of the arbitrator to one of the parties was unknown to the other party
2. The arbitrator has performed as a lawyer, legal officer or legal consultant for any
party in the past.
3. The arbitrator has been an adjudicator in any matter before him in the capacity of a
judge
4. Fraudulent collusion
5. Arbitrator was indebted to one of the parties
6. Arbitrator has rendered some legal service to any of the parties free of charge in the
past

The mandate of an arbitrator shall be terminated if:-

 Becomes de jure or de facto unable to perform his functions
Fails to act without undue delay
He withdraws from his office
By agreement parties decide to the termination of his mandate

Arbitration & Conciliation Act

Sec 16- Competence of arbitral tribunal to rule on its jurisdictional-
The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and for that
purpose, -
(a) An arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract
(b) A decision by the arbitral tribunal that the contract is null and void shall not entail
ipso jure the invalidity of the arbitration clause

Domestic Arbitration
Section 31 & 33 of the Arbitration Act, 1940
No power of arbitrators to decide its jurisdiction.

International Commercial Arbitration

Ordinarily as a rule, an arbitrator has no authority to clothe himself with power to
decide the question of his own jurisdiction unless parties, expressly conferred such a
power on him.

Autonomy
The autonomy of the arbitration agreement is understood by arbitral tribunals and courts to
mean, above all, separability of the arbitral clause from the main agreement. To speak of
autonomy is to consider the arbitration clause as separate from the main contract.

Manner of challenging jurisdiction

A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defence
A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raise as soon as the matter alleged to be beyond the scope of its authority is
raised during the arbitral proceedings.

What is the procedure that the arbitrators need to follow

Chapter V of Part-I - Conduct of arbitral proceedings.

Section 18 mandates that parties to the arbitral proceedings shall be treated with
equality and each party shall be given full opportunity to present his case. Section 19
specifically provides that arbitral tribunal is not bound by the Code of Civil Procedure 1908
or the Indian Evidence Act 1872 and parties are free to agree on the procedure to be followed
by the arbitral tribunal in conducting its proceedings. Failing any agreement between the
parties subject to other provisions of Part-I, the arbitral tribunal is to conduct the proceedings
in the manner it considers appropriate. This power includes the power to determine the
admissibility, relevance, the materiality and weight of any evidence. Sections 20, 21 and 22
deals with place of arbitration, commencement of arbitral proceedings and language
respectively. Thereafter, Section 23, 24 and 25 deal with statements of claim and defence,
hearings and written proceedings and procedure to be followed in case of default of a party.

Chapter VI - Making of arbitral award and termination of proceedings.

Relevant sections which require consideration are Section 28 and 31.

Complex system of applicable laws in ICA

Law governing the existence and proceedings of an arbitration
Law governing the substantive issues in dispute
Law governing recognition and enforcement of an arbitration agreement or an award
Law governing the arbitration agreement and the performance of that agreement

ARBITRAL AWRAD
Meaning
An instrument embodying a decision of an arbitrator or arbitrators as regards matters
referred to him.
Settlement agreement under the conciliation process is not an award
Statutory Definition
Arbitral awards includes an interim award

VALID AWARD
To be valid an award must comprise a decision by the tribunal on the matters referred with
which it deals. An award must also be final, in the sense of being a complete decision without
leaving matters to be dealt with subsequently or by a third party, and it must be certain.

Kinds of award
Domestic award (Arbitral award made under Part-I)
[Bhatia International vs. Bulk Trading (AIR 2002 SC 1432)
Part-I extends to arbitration taking place outside the territory of India]
Foreign Award
Classification of awards
1. Final award
2. Interim award
3. Consent award
4. Additional Award

FORMS AND CONTENT OF AWARD

1. Written form and signed
2. Date and place
3. Reasons

Exception
The parties have agreed that no reasons are to be given, or
The award is an arbitral award on a-reed terms under section 30.

1. Delivery of award
2. Stamp duty
 3. Awarding interest and period
4. Costs
Fees and expenses of arbitrators and witnesses
Legal fees
Administration fees
Expenses incurred in connection with arbitral proceedings

Question of presumption in favour of an award

A Court should approach an award with a desire to support it, if that is reasonably possible, rather than to destroy it by calling it
5.
illegal;
Unless the reference to arbitration specifically so requires, the arbitrator is not bound to deal with each claim or matter
6.
separately, but can deliver a consolidated award. The legal position is clear that unless so specifically required, an award need not
formally express the decision of the arbitrator on each matter of difference;
unless the contrary appears the Court will presume that the award disposes of finally all the mattes in difference; and
7.
where an award is made de praemissis (that is, of and concerning all matters in dispute referred to the arbitrator), the
8.
presumption is that the arbitrator intended to dispose of finally all the matters in difference; and his award will be held final, if by
any intendment it can be made so.

GROUNDS FOR SETTING ASIDE AN AWARD

An arbitral award may be set aside by the court only if

Incapacity
Invalid arbitration agreement
With out proper notice
Exceeding the scope of submission to arbitration
Composition of the arbitral tribunal
Arbitrability
Public Policy
Fundamental policy of Indian Law
Interest of India
Justice and morality
Patently illegal [ ONGC vs. SAW Pipes Ltd. ( AIR 2003 SC 3041)]
Procedure for setting aside

An application for setting aside an award be made before a competent court having
jurisdiction to hear such an application
Made before three months elapsed from the date on which the party making that
application had received the arbitral award

The phrase 'Public Policy of India' is not defined under the Act. Hence, the said term is
required to be given meaning in context and also considering the purpose of the section and
scheme of the Act. It has been repeatedly stated by various authorities that the expression
'public policy' does not admit of precise definition and may vary from generation to
generation and from time to time. Hence, the concept 'public policy' is considered to be
vague, susceptible to narrow or wider meaning depending upon the context in which it is
used.
PATENTLY ILLEGAL ORDER

The award which is, on the face of its, patently in violation of statutory provisions cannot be
said to be in public interest. Such award/judgment/decision is likely to adversely affect the
administration of justice. Hence, in our view in addition to narrower meaning given to the
term 'public policy' in Renusagar's case, it is required to be held that the award could be set
aside if it is patently illegal. Result would be - award could be set aside if it is contrary to:
fundamental policy of Indian law; or
the interest of India; or
justice or morality; or
in addition, if it is patently illegal.

The nature of illegality-
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be
held that award is against the public policy. Award could also be set aside if it so unfair and
unreasonable that it shocks the conscience of the court. Such award is opposed to public
policy and is required to be adjudged void.

FINALITY
Arbitral award shall be final and binding on the parties and persons, claiming under them
respectively.

Enforcement
Where the time for making an application to set aside the arbitral award under section
34 has expired, or such application having been made, it has been refused the award shall be
enforced under the Code of Civil Procedure 1908 (5 of 1908) in the same manner as if it were
a decree of the court.

FOREIGN AWARD
1. It means an arbitral award on differences between persons arising out of legal
relationships, whether contractual or not.
2. Considered as commercial under the law in force in India.
3. Award must have been made in pursuance of an arbitration agreement in writing.
4. The award must be made in one of the reciprocating territories declared by the Central
govt. by notification in Official Gazette.
New York Convention Award
Geneva convention Award

Grounds for refusing enforcement of a foreign award under NYC

(1) Enforcement of a foreign award may be refused, at the request of the party
(a) The parties to the agreement referred to in section 44 were, under the law applicable to
them, under some incapacity, or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon, under the law of the country where
the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present
his case; or
 (c) The award deals with a difference not contemplated by or not falling within the terms of
the submission to arbitration, or it contains decisions on matters beyond the scope of the
submission to arbitration.
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance
with the agreement of the parties, or, failing such agreement, was not in accordance with the
law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has beenset aside or suspended
by a competent authority of the country in which, or under the law of which, that award was
made.
(2) Enforcement of an arbitral award may also be refused if the court findsthat-
(a) The subject-matter of the difference is not capable of settlement by arbitration under the
law of India; or
(b) The enforcement of the award would be contrary to the public policy of India.

NEGOTIATION
Negotiation is an interactive communicative process that potentially takes place
whenever you want something from some one else or they want something from you;
Negotiation is achieving what you want by convincing the person from whom you
want that.

Elements Of Negotiation
Interests : Your interests and other interests in Negotiation. Interest is different from
position. Interests may be classified into three categories:
(i) Absolutely essential Must be achieved.
(ii) Important It is important. May be obtained in different forms : there has to be
flexibility; Need not break the deal for not getting the way you want;
(iii) Desirable This is generally built as a buffer; May be given up to get important or
absolutely essential things.
(iv) Options There are many ways of satisfying interests. Options are possible solutions
to the problem. What options will satisfy your interests.
(v) Standards & People
(vi) Alternatives If no agreement is reached in Negotiation, what alternatives you have?
If the options coming out in the Negotiation are not acceptable, what is the alternative
to the problem?
(vii) Legitimacy When you put forth your option, what supports that? The proposals and
counter proposals are to be properly supported. You will be on a firm footing.
(viii) Communications Negotiation takes place through communications. Verbal or Non-
verbal body language, Skill of listening. Even if Negotiations fail,
communication lines could be kept alive.
(ix) Relationship Separate problems from the relationship. No emotions. Separate
people from problem. Easier to negotiate when relationship is good.
Communications lines should be kept alive. Positional Negotiation endangers
ongoing relationship.
(x) Commitment Ensure that the agreement is legally enforceable.

What is mediation?
It is negotiation carried out with the assistance of a third party. The mediator, in contrast to the arbitrator o

Main characteristics
 Negotiation in presence of a third neutral Facilitative and not adjudicatory NOR BINDING

Mediation saved me precious time and energy

Mediation process was confidential, the procedure was simple and the atmosphere was
informal

Mediation restored my broken relationships and focused on improving the future, not
on dissecting the past

Mediation showed me the strength and weaknesses of my case which helped me find
realistic solution

Settlement of disputes outside the Court (seC 89 cpc)

(1)Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties
a) arbitration;
b) conciliation;
c) judicial settlement including settlement through Lok Adalat;
d) mediation

MEDIATION
Mediation is an informal process where a party selected neutral assists disputing
parties in their negotiation.
Mediation is a process in which a third party facilitates and coordinates the
negotiation of disputing parties.
Mediation is trying to get two people to do that which they least want to do talk to
each other.
Mediation process is a flexible one. There is a structure to the mediation process, it is
not rigid but rather fluid in nature.
Mediation has been used since thousands of years as a primary means of conflict
resolution.
The Indian history reflects this.
In China and Japan Mediation and Conciliation is used as primary means of dispute
resolution.

CONCILIATION
It means the process by which a conciliator who is appointed by parties or by the Court, as the case
may be, conciliates the disputes between the parties to the suit by the application of the provisions of
the Arbitration and Conciliation Act, 1996 (26 of 1996) in so far as they relate to conciliation, and in
particular, in exercise of his powers under sections 67 and 73 of that Act, by making proposals for a
settlement of the dispute and by formulating or reformulating the terms of a possible settlement; and
has a greater role than a mediator.
 Distinction
Conciliation Mediation

1. Governed by A&C Act 1. No Statutory recognition

1996 2. Facilitative
2. Evaluative 3. Role mediator is passive
3. Role of conciliator is more 4. Mediator cannot propose
active settlement
4. Conciliator has power to 5. The decision of a mediator
propose settlement is not an award.
5. Settlement agreement
when signed by the
parties and conciliator
becomes an award in
agreed terms

STAGES IN MEDIATION
Convening Process preliminary arrangements.
Mediators introduction and laying down of ground rules to be followed in the Mediation
process.
Statements by Negotiators problem venting of emotions.
Re-statement of the problem by the Mediator briefly
Collection of additional information, if necessary
Setting the Agenda for Mediation similar to issues how to arrange?
Facilitation of Negotiation - process
Mediator generating alternatives process
Private meetings, if necessary process
Persuasion meetings, if necessary process
Persuasion to reach a settlement process
Agreement Realistic Implementable
Summing up the settlement for clarity also process of implementation
Reduce the settlement to writing

REMEMBER WHILE MEDIATING

Neutrality
Confidentiality
Separate people from the problem
Motivating Negotiators
Counseling
Provide scope of venting of emotions
Ethics
a) To bring out an amicable settlement?
b) To bring out fair and amicable settlement?

Who is a conciliator
Conciliator is the neutral third party who assists the disputing parties in mutually reaching an agreed settlement
Appointment of conciliator
In conciliation proceedings with one conciliator, the parties may agree on the name of a sole
conciliator;
In conciliation proceedings with two conciliators, each party may appoint one conciliator;
 In conciliation proceedings with three conciliators, each party may appoint one conciliator
and the parties may agree on the name of the third conciliator who shall act as the presiding
conciliator.
Parties may enlist the assistance of a suitable institution or person in connection with the
appointment of conciliators

What to do if there is exploitation in the process of reading a settlement?

Different shades of Negotiators.
Keep reminding the negotiators about the ground rules.
Mediator as face saver.
Resist the temptation to suggest via media But the margin of difference is not much may
think of suggesting via media Give reasons for exercising this.
Problem/issue and interests underlying the problem/issue. There is difference between issue
and interest.

CONCILIATION PROCEEDINGS
Commencement of conciliation
Written invitation by one party
Written acceptance by other party
Appointment of conciliator
Submission of statements by parties
Exchange of statements and communication between conciliator and the parties
Suggestion for settlement

Who can appointment a mediator

Parties are free to agree on the name of the mediator or mediators for mediating between them.
Who can be appointed as mediators
Any persons other than
a person who has been adjudged as insolvent or persons
against whom criminal charges involving moral turpitude are framed by a criminal
court
persons who have been convicted by a criminal court for any offence involving moral
turpitude
person against whom disciplinary proceedings have been initiated by the appropriate
disciplinary authority
any person who is interested or connected with the subject-matter of dispute
any legal practitioner who has or is appearing for any of the parties in the dispute

Role of mediator

The mediator shall attempt to facilitate voluntary resolution of the dispute by the parties, and
communicate the view of each party to the other, assist them in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of compromise and generating
options in an attempt to solve the dispute, emphasizing that it is the responsibility of the
parties to take decision which effect them; he shall not impose any terms of settlement on the
parties.

Confidentiality of mediation
When a mediator receives factual information concerning the dispute from any party, it shall be
confidential and the mediator shall not be compelled to divulge
information regarding those documents.
Who can be appointed as conciliators
Any persons other than
a person who has been adjudged as insolvent or persons
against whom criminal charges involving moral turpitude are framed by a criminal
court
persons who have been convicted by a criminal court for any offence involving moral
turpitude
person against whom disciplinary proceedings have been initiated by the appropriate
disciplinary authority
any person who is interested or connected with the subject-matter of dispute
any legal practitioner who has or is appearing for any of the parties in the dispute

ROLE OF CONCILIATOR
Independence and impartiality
Maintaining confidentiality of all communications between the parties and the conciliator
Give consideration to the rights and obligations of the parties, usages of the trade concerned
and the circumstances surrounding the dispute
Conduct of proceedings in an objective and fair manner
Proposal of settlement
Formulation of the settlement agreement as agreed by the parties to conciliation
Authentication of the settlement agreement

EHICS TO BE FOLLOWED BY MEDIATOR

Follow and observe these Rules strictly and with due diligence;
Not carry on any activity or conduct which could reasonably be considered as conduct
unbecoming of a mediator;
Uphold the integrity and fairness of the mediation process;
Ensure that the parties involved in the mediation and fairly informed and have an adequate
understanding of the procedural aspects of the process;
Satisfy himself/herself that he/she is qualified to undertake and complete the assignment in a
professional manner;
Disclose any interest or relationship likely to affect impartiality or which might seek an
appearance of partiality or bias;
Avoid, while communicating with the parties, any impropriety or appearance of impropriety;
Be faithful to the relationship of trust and confidentiality imposed in the office of mediator;
Conduct all proceedings related to the resolutions of a dispute, in accordance with the
applicable law;
Recognize that mediation is based on principles of self-determination by the parties and that
mediation process relies upon the ability of parties to reach a voluntary, undisclosed
agreement;
Maintain the reasonable expectations of the parties as to confidentiality;
Refrain from promises or guarantees of results

SETTLEMENT AGREEMENT
1. When it appears to the conciliator that there exist elements of a settlement, which may be
acceptable to the parties, he shall formulate the terms of a possible settlement and submit
them to the parties for their observations.
2. After receiving the observations of the parties, the conciliator may reformulate the terms of a
possible settlement in the light of such observations.
3. If the parties reach agreement on a settlement of the dispute, they may draw up and sign a
written settlement agreement.
4. When the parties sign the settlement agreement, it shall be final and binding on the parties and
persons claiming under them respectively.
FINALITY

The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed
terms on the substance of the dispute rendered by an arbitral tribunal under section 30.

Termination of conciliation proceedings

1. By the signing of the settlement agreement by the parties
2. By a written declaration of the conciliator
3. By a written declaration of the parties addressed to the conciliator