FICM-MCN Newsletter explores new approaches to dispute resolution (38

TM
THE MEDIATION AND
CONCILIATION NETWORK
TM
FEDERATION OF INTEGRATED
CONFLICT MANAGEMENT
OnPoint
RESOLVE
The official Newsletter of the Federation of Integrated Conflict
Management (FICM) and The Mediation and Conciliation Network (MCN).
FICM-MCN
NEWSLETTER
International
ArbitrationDispute Resolution Coming of Age
with International Arbitration Hub
AUGUST
2018
ISSUE 1
FEATURED STORY
New Global Council Members
WELCOME
WHY TO MEDIATE
LITIGOUS SOCIETY
POWER BALANCING
VOLUME 1
Are we hardwired to adversarial struggle?
Understanding Conflict Patterns
Getting the other side to mediation table
TATA Housing signs up Consumer
Ombudsman Scheme
INTERNATIONAL
NEWS

ALL OF US SHARE THE
STRONG DESIRE TO
HEAL THE WORLD.
CONFLICT IS A NATURAL
PART OF LIFE, HELPING
MANAGE CONFLICTS
AND RESOLVE DISPUTES
IS A NATURAL PART OF
WHAT WE DO.

Dispute Resolution Ecosystem
for the Modern World.
BORN IN INDIA
BONDING THE WORLD
TM
OUR
JOURNEY
BEGINSEnabling Peace, Enhancing Access to
Justice and Strengthening Rule of Law
TM
THE MEDIATION AND
CONCILIATION NETWORK
TM
FEDERATION OF INTEGRATED
CONFLICT MANAGEMENT

Welcome to the first edition of OnPoint RESOLVE,
a periodic newsletter which captures updates,
recent developments and commentary on adopting
new ways and approaches to conflict management
and dispute resolution.
Everything around us has changed rapidly in the
last two decades. But we are still using age old and
almost obsolete systems, mechanisms, legal
doctrines and institutions of dispute resolution. After
all why legal reforms are not taking place as
rapidly? Specifically in the civil justice system.
No single institution, rule, technique, or role can be
for all kinds of disputes. Why the legal fraternity use
litigation as the only default mechanism of dispute
resolution? Why only adjudicative measure?
Moreover dispute resolution has generally become
the exclusive jurisdiction of lawyers. Why is this not
changing or improving for decades in India? Is that
for politics? which is closely intertwined with justice
system? or anything more?
Access to justice should be the priority for any
government or society. For federalism, sovereignty,
expertise, neutrality or whatever, the appropriate
dispute system would be one that assigns a unique
process, approach, mechanism and administering
institution to any given situation and dispute.
WELCOME
FICM-MCN would like to thank the
corporations and specialist FICM-MCN
neutrals network
This periodic newsletter is a product of
invaluable support of numerous
organisations and people, and in particular
the FICM-MCN distinguished members on
the panels and experts who helped us put
together this piece of information and
knowledge.
Acknowledgment
Any existing institution - a court, an administrative
agency, the judiciary, the jury is only one way to
resolve or process the "dispute". People are distant
far from the understanding that there are many
ways to resolve disputes outside of the courts. Why
the awareness about the effectiveness of ADR is
still not there among masses.
It is now, more than ever, necessary to advance the
ADR movement - an amalgamation of science,
skills, and law that make up this exciting new field.
The first Newsletter addresses these primary
issues and also updates on new developments
within and outside of FICM-MCN universe. Do let
us know what you think and in case you want us to
address any specific subject in the forthcoming
issues, feel free to write to us. We will be
expanding our horizons of information and updates
in the forthcoming issues.
We welcome your feedback.

“The entire legal
profession… has become so
mesmerized with the
stimulation of the courtroom
contest, that we tend to
forget that we ought to be
healers of conﬂict… trial by
adversarial contest must in
time go the way of the
ancient trial by battle and
blood… our system has
become too costly, too
painful, too destructive, too
inefﬁcient for truly civilized
people.”
— Chief Justice Warren Burger,
excerpt from the 1984 “The State
of Justice” speech

WHAT’S
INSIDE
OnPoint
RESOLVE
Special Feature:
- International Arbitration: Freeing the Access!
- The Ombudsman in India
A Periodic Newsletter Magazine - Binging Insights
and actions to achieve truth, peace and justice.
Welcome to the First Edition of

WHAT’S
INSIDE
INTERNATIONAL
International Arbitration - The challenges
DOMESTIC FOCUS (INDIA)
Mediation Programs Successful in Clearing Dockets
Best Practices in Resolving Employment Disputes
Launch of Ombudsman Schemes in India
A safety net - for doing business in India
IN THE SPOTLIGHT
COMMENTARY
The Rule of Law - The civil Justice
Civil cases and the collaborative process
Choosing a dispute resolution mechanism
Dispute Resolution is "people Side Of The Law”
Settlement Counsel
Driving a global dispute
prevention and resolution culture
NEWS & UPDATES
The Small Big: Small Changes
That Spark Big Inﬂuence
NEWS & UPDATES
COMMENTARY
FICM-MCN ADR LAWYERS
WELCOMING NEW PANEL MEMBERS
STUDENT AMBASSADORS
TRAINING & PROFESSIONAL DEVELOPMENT
FICM-MCN ACTIVITIES
TABLE OF INDEX
2
5
5
11
16
5
5
5
5
5
5
5
5
5
5
16
16
16
16
16
16
16

WHAT IS DISPUTE RESOLUTION.
HOW SHOULD WE RESOLVE DISPUTES?
A matter of managing human
psychology, human values and
other human circumstances and
behaviors in our social, political,
commercial and family situations.
Or is it just enforcement of legal
rights and obligations? What is
dispute resolution really?
Is that applying force of law to bring
a dispute to an end, so called legally
enforced end? Or is this a zero sum
win-loss game?
We have all witnessed this through
decades in the court of law. Millions
of people and entities fighting for
winning the horrific and stressful
zero sum win loss game over
adversaries in the court of law,
destroying the most productive time
and hard earned money in the
process, sometimes fighting for
decades to get the verdict.
Is that verdict really RESOLUTION
of Dispute? If at all so, is that
really worth?
A third party’s determination or judgement may end a
legal dispute, but it certainly may not be the end of a
human conflict, that remains in our social fabric, until
the real resolution is reached in the minds or hearts of
humans.
From ages, we have misunderstood the difference
between resolution of dispute and protecting
ourselves from the cheaters, frauds and criminals with
the help of force of law. We do not need courts,
lawyers or judges for resolution primarily, but we
definitely need the help of court, law and enforcement
to protect our life and property from people with
malafide intentions, the few hidden predators in
humans.
Dispute resolution is about applying the human
science to identify and solve a problem, the root
cause of disputes. Dispute resolution is essentially a
matter outside of the law, until the dispute is only
about a question of law point, which we all know, is
not the case, in majority of disputes.
If dispute resolution is always not about legal point,
then why lawyers? why courts? why judges? why
dispute resolution has become the domain, and
almost monopoly, of the law practice professionals?
In fact a dispute will invariably always become more
complex, more damaging and protracted if we try the
so called RESOLUTION by using coercive means
and applying the force of Law.
let us all introspect.
VIEW POINT - OPINION

OVER HALF OF
COMMERCIAL
DISPUTES THAT
REACH LEGAL
DEPARTMENT OF
A COMPANY OR
COURT CAN BE
AVOIDED.
Business disputes can be
managed, and their risk
controlled, just as other
business contingencies
can be managed: through
foresight, attention and
sophisticated techniques
of negotiation and risk
allocation.
Research shows that a well
thought out Dispute
Management Clause in
Commercial Contracts
minimizes the damages
caused due to conﬂicts by
more than half.
Parties negotiating a commercial deal
must assess not just the value of the
deal but also the risk of the deal’s
falling through, and must decide how to
preserve the value of the deal in the
event of breach of the agreement.
Managing that risk through choice-of-
law clauses, waivers, or bare
arbitration provisions too often results
in dispute resolution processes that are
unresponsive to the commercial needs
of the company or the demands and
risks of the particular deal.
Effective Dispute resolution is build
upon a well drafted contract, The
contract between the parties is the
basis of an effective dispute resolution
process which is designed, directed
and controlled by the parties. Poor
provisions of dispute resolution clauses
or if you do not have a stepped hybrid
dispute resolution agreement, you
invariably end up in court when faced
with disagreements.
Why do we fail to incorporate these
so important legally viable dispute
resolution clauses in our commercial
contracts? Why do legal counsel fall
short of elaborating this most important
aspect of a transaction in the contracts?
A KEY MANAGEMENT AND
GOVERNANCE ISSUE THAT
NEEDS A CEO’S OR BOARD’S
ATTENTION.
VIEW POINT - OPINION

We all spend weeks or even months negotiating on
commercial agreements stretching over many
years, but we have a laid back tendency on
addressing the consequences of disputes arising
under the agreement.
The fact is that there are no perfect contracts.
There are no deals in which all parties’ interests
and capabilities remain constant throughout the
term, and in which all parties share an identical
understanding of their rights and obligations.
Opportunities arise (or fail to materialize),
currencies fluctuate, contractors go out of business,
government approvals are withdrawn, public
funding is not renewed, natural catastrophes and
other social disasters happen. All sorts of
contingencies occur that we can not anticipate.
Risks that were unclear at the time of the contract
become real at some time down the road.
This is for no fault of the contract drafters. No
drafter can foresee every change on the ground, or
every good-faith interpretive disagreement, that will
occur over the term of the deal. Since that is so, it
is incumbent upon the drafters to devise processes
for the management and resolution of unknown and
unknowable contingencies.
Why do we fail to incorporate these legally viable
and so important dispute resolution clauses? Why
do legal counsel fall short of elaborating on this
most important aspect of a transaction?
Conflict resolution processes that are embedded in
the initial agreement must be designed to protect
the value of the deal. The analysis should be
straightforward: Identify the value that we seek from
the venture, assume a risk of nonperformance from
some unidentified cause, and devise methods to
manage that eventuality designed to preserve that
value to the extent possible.
In practice, this might involve such questions as:
Should the counterparty be required to continue
performance during a dispute? Should judicial
access be agreed upon (or waived) for immediate
preliminary relief? Should party have the right to
cease payment upon certain conditions? Is the
other area of our business critical to both, so that
the overall relationship is more important than this
particular deal? Should “buffers” be built in to make
it difficult for any party to abruptly terminate
performance? Does the party have assets in the
home jurisdiction that may be subject to
attachment?
Conscious and rigorous analysis of the deal, on the
assumption that disputes will inevitably occur, is the
first step in drafting contract clauses that add value
to the deal as a whole. The next step is to negotiate
and draft such clauses with sophistication.
A threshold question is whether the contract is
cross-border. A “cross-border” deal may be one
where the parties are residents of different
countries. But it may also be where performance is
to take place in a different country, or payment is to
be made in a different currency, or where collateral
is located outside the country of performance, or
where governing law is different from the law of the
residency of all of the parties to the deal. Cross-
border dispute resolution is different from domestic.
The selection of neutrals, the rules chosen for the
process, the reliability and integrity of the enforcing
courts, the cultural predispositions of the parties
and their legal representatives, the restrictions on
civil courts’ powers compared with those in
common law countries, the practicality of enforcing
a judicial judgment compared with enforcing an
arbitral award under the New York Convention – all
of these questions arise in cross border disputes.
International dispute resolutions pose a different set
of challenges, and needs a completely expanded
approach for drafting.
Dispute resolution processes are divided into two
categories – processes in which the parties retain
control over the procedure and the outcome,
processes in which they cede that control. The first
category includes “consensual” processes, such as
negotiation, facilitated negotiation, early neutral
evaluation, joint expert evaluation; the second
category includes “adjudicative” processes, both
private (arbitration) and public (trial). Most
enterprises must prefer consensual processes.
They yield more commercially rational results,
remain in the control of the disputants, are
confidential, and center on business rather than
legal concerns. The transaction costs for
consensual processes tend to be lower than
adjudicative processes. It is therefore almost
always advisable to frame contractual dispute
resolution clauses so as to exhaust consensual
processes before incurring the costs and other
disadvantages of adjudicative means of dispute
resolution. This structure is called “stepped”
clauses – negotiation leading to mediation (or other
ADR methods) and only then leading to arbitration
or litigation.
DOMESTIC FOCUS - INDIA

The drafter seeking to preserve the value of the
deal must be familiar with the elementary concerns
of dispute risk management.
These are the fundamental questions that each
drafter should be asking, to determine whether
its dispute resolution agreement is fit for the
task.
Notice: To whom should notice of a dispute be
given? How soon after the event giving rise to the
dispute must notice be given? What specificity
should the notice contain?
Scope: Are all matters to be treated the same way
or are certain matters (such as breaches of
confidentiality or misuse of intellectual property) to
be carved out of the scope of the clause and
subject to immediate judicial relief?
Rules and Initiation: How are formal processes
such as mediation or arbitration formally initiated,
and what rules will be followed?
Administered or Unadministered: Shall the
formal processes be administered by an ADR
provider body (such as FICM-MCN) or will the
parties choose rules that give them and the neutral
that authority (such as UNCITRAL)?
Time Periods: To ensure efficiency and
commercial good faith, shall the various steps of
the process be limited? For example, shall
mediation commence automatically if a negotiated
agreement has not been reached within XX days?
Designated Representatives: Shall the parties
designate the level and seniority of their
negotiators, and the identification of an agreed-
upon arbitrator or mediator? Should the negotiation
stage continue at a higher level if the initial
negotiators are unsuccessful?
Location: Shall the mediation or arbitration occur
at the location of one party, or in a third place?
Information Exchange: Shall initial notice of a
dispute be accompanied by documents and
information sufficient to advise the receiving party
of the facts giving rise to the claim? In arbitration,
shall costly discovery processes, such as electronic
communications, interrogatories and depositions,
be limited?
Privilege and Confidentiality: Are the various
ADR processes to remain confidential? Are
statements and information exchanged in the
course of settlement discussions inadmissible in a
subsequent proceeding?
Conditions Precedent: Must negotiations take
place prior to mediation, and must mediation take
place prior to arbitration or litigation? Any
exceptions?
Provisional and Interim Relief: May the parties
seek immediate provisional relief from a court or an
arbitrator? If so, with respect to what relief, and to
what end?
Continuing Performance and Right of
Termination: Are the parties to continue to perform
during the pendency of the dispute? Do the ADR
provisions erode any party’s termination rights?
Selection of the Neutral: Shall the mediator or
arbitrator be selected pursuant to institutional rules,
or do the parties wish to delineate criteria to guide
the selection? If the parties choose to control the
selection of the neutral themselves, how shall that
selection process be structured?
Awards, Costs and Fees: How shall the costs of
the mediation be allocated? Is an arbitral tribunal
free to make any award it wishes or shall its powers
be bounded in some way? May consequential
damages be awarded? May the tribunal award
attorney fees to the prevailing party?
Form of Award: Shall the arbitral award be
reasoned (written)? Shall the tribunal be required to
issue its award within a specified period of time
after close of the hearing?
Customized ADR Processes and Other Issues:
Parties may wish to create an ADR process that
suits their precise needs. For example, shall they
jointly engage a neutral expert to opine on
technological or other issues in dispute? Shall the
arbitrator offer to mediate the matter after drafting
the award but before issuing it? Shall the arbitration
take place in a specified language and, if so, who
pays for the translation? What law shall govern (a)
the substance of the contract, (b) the arbitration
process, and (c) the enforcement of the arbitration
award?

NEW PRODUCT/SERVICE ANNOUNCEMENTS:
INTERNATIONAL
INDIA DESPERATELY NEEDS NEW WAYS
OF ADMINISTRATION OF CIVIL JUSTICE
22

INTERNATIONAL COMMERCIAL ARBITRATION
The recent surveys show that
there is growing concern over
the process. ICA is losing its
credibility and attraction among
the parties due to excessive
costs, time and unpredictable
arbitral awards. Even as
arbitration awards ﬁnd
criticisms from the losing side,
so little has changed in terms of
the mechanisms and procedures
used by tribunals and
practitioners.
Is that really
delivering
justice?
The rapid growth of international trade and
exposure to new partners, countries, cultures,
legal systems and trade practices is bringing
new challenges and risks for the international
cross-border trading and commercial
transactions.
Dispute management, prevention and
resolution is one of the very important aspect
of risk management in international commerce
and transactions. Dealing with international
cross border disputes is becoming highly
expensive and effects small businesses to its
core, sometimes endangering their existence.
How can businesses avoid or resolve disputes
during various contractual phases, from
negotiation through to performance?

The lack of a delocalized international court system
with the power to resolve private cross-border
disputes of all kinds has led to a fragmentation of
dispute settlement forums, and arbitration became
the preferred method for the resolution of such
disputes. Mainly due to the fact that legal fraternity
world over pushed this private adjudicative method
of dispute resolution – the most loved method of
qualified legal professionals around the world.
Until recently, international arbitration was widely
seen as fair, neutral, and effective. The field’s rapid
growth reinforced this perception, helping establish
international arbitration as the default mechanism
for resolving transnational disputes. Today, this
perception is changing. International Arbitration is
becoming too costly, time consuming and
inefficient. Many now doubt the fairness of the
arbitration process, the integrity of some decision-
makers and institutions, the binding effect of
awards, the options of appeals when awards are
arbitrary and the legitimacy of awards obtained in
international arbitration. The arbitration system has
become too arbitrary and broken down to a degree
and needs a new avatar - a new way to deal with
international cross border dispute resolution.
There are several methods and mechanisms of
dispute resolution, not just arbitration, many of
these methods can be combined with arbitration, to
ensure early and cost effective resolution, and the
binding effect and enforcement of the awards.
In the last few decades, the use of other
consensual ADR mechanisms has increased, but
not much happened in the International
Commercial Dispute Management Arena. Most of
the arbitrators and institutions have acted alike, to
predominantly focus on the adjudicative
approaches only.
Dealing with cross border disputes bring lot of
stress and anxieties due to that fact we feel not at
home. There is a strong need of one “Delocalized
international commercial dispute management
system” governed by the businesses and business
stakeholders themselves. We can not rely on just
one process “Arbitration” and just few institutions
administering this process with limited pool of
arbitrators for resolution of commercial disputes.
We need an inclusive, integrated
comprehensive system in place, that is free of
all the systemic bias and overload.
Currently, international commercial arbitration
embodies, to a large extent, western standards, but
a key question is whether or not those standards
are the correct standards of finding commercial
solutions around the world.
Today, we need a system and an institution that
attracts and appeals to a growing base of users
from the developing world. Merging different
arbitration cultures (eg East, West, developed and
developing) and using an hybrid or combination of
different process (not just Arbitration process) will
make this world a safer place to transact and trade
across borders. The practice and regulation of
international arbitration must better reflect its broad
international user base: to recognize the truly
international nature of arbitration and to fully
integrate different approaches and attitudes
towards arbitral law and practice.
Parties need a wider range of DR options besides
Arbitration, to select a method most appropriate to
their cause and to resolve commercial and trade
disputes in the best interest of International trade
community and all its stakeholders and to deliver
actual justice to all parties - big or small.
Parties in the international commerce need to
feel secure, having a safety net to protect their
genuine business commercial interests within a
well defined and dynamic legal and commercial
eco-system.
Who cares?
When you are in an international arena, wanting to
protect your own commercial interests related to
cross border transactions. Maybe only you and the
other party will have to care about the safety and
management of conflicts between themselves in
most apt manner. The business communities in
cross border disputes cannot leave this to the
states as no one other than businesses themselves
will be able to see or care for the ever changing
perspectives, needs and interests of businesses in
the International transactions.
Complacency is the buzz word. The international
rule makers will be complacent about the process
and the outcome until we ourselves find the
solution. No outsiders will be able to continually
recognize the changing demands of the users of
the process. We all need a system that is all time
concerned and flexible about the ever changing

needs and demands of communities in the international cross-border transactions and ensure that the
complacency is never the barrier to this most important safety need of businesses in international transactions.
The goal is to all time maintain arbitration (dispute resolution) as a flexible, speedy and cost-efficient dispute
settlement mechanism where the arbitrators and the parties conduct the process according to the
requirements of the particular case and not try to use a one size fits all approach.
Enriching the practice of international integrated arbitration (integrated dispute resolution) and address issues
of integrity, a change in the culture that promotes selection of due process, seat of arbitration, venue,
selection and appointment of dispute resolution experts, neutrals (negotiators, mediators, arbitrators etc).
In today’s digital age, dispute resolution practice is ever Dynamic. We must depart from established practices
in the management of proceedings and invent new ways to avoid duplications and losses of time and
resources.
Domestic courts of many countries, and in particular the United States Supreme Court, have largely left
transnational adjudication to the realm of arbitration. To achieve this support for the International Commercial
Dispute Resolution, it is necessary to construct one autonomous global-wide eco-system, a network and a
culture that defines International Commercial Dispute Resolution. To develop a governing structure which will
define modern arbitration, to move towards instituting own mandatory norms and to defend the continued
expansion of capitalism and legitimize the private resolution of International Commercial Disputes.
How FICM-MCN is changing it all?
Governed by all its members, FICM-MCN is
transforming the International Commercial
Arbitration landscape. It will now be no more an old
boys club or the sole domain of handful arbitrators
operating from handful arbitration Institutions from
select jurisdictions. The new word thinkers and
doers, innovators and a diverse plethora of wisdom
are changing the way commercial disputes are
resolved internationally. The plain "Arbitration" with
age old process is giving way to innovative hybrid
approaches, designed, devised, developed and
administered by the institution that is governed by
the international business community itself.
Parties are willing more and more to appoint new
faces backed by the FICM-MCN trust for neutrality,
quality and efficiency to ensure speedy
proceedings and awards that set the disputes to its
finality. The strong conflict rules; procedural
controls and unique mechanisms of appointments
of Neutrals are enhancing the legitimacy of the
process and overall satisfaction of parties with the
process and its outcome.
As international commercial transactions have
grown in complexity, self governed international
commercial dispute system is emerging as a
governance structure that possess the requisite
flexibility, technical expertise, privacy,
confidentiality, and speed to allow these
transactions to operate efficiently. By employing a
wide range of highly professional new world dispute
resolvers (mediators, arbitrators etc.) FICM-MCN is
creating a highly effective system in which rarely
awards may be challenged.
Governed by its members from around the world,
the organization is one of its kind neutral body
shaping the International Commercial Dispute
System design, that serve the best interests and
needs of international trade and commerce.
FICM-MCN will keep on establishing a hierarchy of
commercial legal norms that integrate both
transnational and domestic public policy concepts.
This hierarchy of norms, along with democratic
structure governed by all members, will form the
core of our emerging constitutional order beyond
the nation-state, to accomplish the mission of one
world, one institution – to deliver commercial
meditative justice.

Impartiality and the perception that decisions
are being made by an ‘old boys’ club’.
A limited pool of arbitrators with institutions is one
of the causes of resulting delays in scheduling
hearings and receiving awards. FICM-MCN is
addressing this key issue, by the appointment of
the largest, widest and deepest pool of talent as
Neutrals from around the world.
International arbitration is facing challenges
due to a perceived lack of transparency in the
process.
Soon, in the future, the parties should only need to
give their consent at the outset, to agree to
recourse to a process as their final dispute
resolution method. After such consent is provided,
the system should be able to provide all the
necessary procedural tools - and the arbitral
tribunal should have the corresponding powers -
without there being any risk to the enforceability of
the award.
The Process
Several procedures of FICM-MCN include some
that will be based largely on documents, with less
reliance on witnesses and having short hearings.
While the proceedings may not be ‘fast-track’, the
time and cost of the entire proceeding will be
contained.
Rules of Dispute Resolution Processes
The FICM-MCN Rules are the most comprehensive
range that can custom fit almost all kinds of cases
emanating from contracts and jurisdictions. This
approach needs a very tightly managed dispute
management system governed by the users only,
as the commercial agreements at times, rarely
describe in detail how the dispute resolution
procedure will be conducted, and once a dispute
has arisen, parties often find it hard to agree on
such matters.
Costs issues
Various surveys have identified cost issues as
“arbitration’s worst feature”. Such feedback cannot
be ignored and is related to the second most
disliked feature of arbitration in the survey, namely
the lack of effective tribunal sanctions. Therefore,
working on tribunals’ ‘due process paranoia’ will
assist in reducing costs.
Enforcement and the true timeline of resolving
an arbitral dispute
An international arbitration award is not worth the
paper it’s written on unless it can be enforced, and
so the enforceability of the award is something that
one needs to consider at the very outset of the
proceeding because if there is no prospect of
finding assets against which to enforce the award,
then one is going to be throwing good money in a
deep hole.
The enforcement of arbitration awards is
something that often involves skilled lawyering
to the same degree as the conduct of the
proceeding itself.
At the time of contract negotiation, one must make
sure that waivers of sovereign immunity are in the
contract to provide with the opportunity of going
after a governmental agency and ultimately
enforcing an award against its assets or against the
assets of the sovereign without being faced with the
defense of sovereign immunity.
Out of the anxieties, corporate parties’ try to choose
governing law (seat) of their home jurisdictions.
When that is unattainable, parties in countries that
are not favored as seat of arbitration have a tough
time to decide the choice of seat. Although
governing law is one most critical factor for parties,
but its impact can be limited to some extent with a
carefully drafted contract. Horror stories of
enforcement delays abound, where an arbitral
award rendered in 2004 and valued at over $340m
was still subject to an enforcement stay in England
in 2015.
As courts have found, the role of arbitration is to
foster international trade and that role is
underwritten by arbitral institutions, courts,
arbitrators, advocates and parties alike. The
competitive diversity of stakeholders in international
arbitration is the cornerstone of its adaptability and
constitutes the force that is best placed to ensure it
remains a reliable forum for dispute resolution.
Are you in the International Trade? Wish to
keep a safety net on your internal transactions?
Give a call to one of our members at
08505999820

VIEW
POINT
22

“If lawyers seriously consider
ADR and hybrid approach to
resolution, most of the law
suits can settle early or even
without court intervention.”
LITIGATION
Verses
MEDIATION
93 percent of cases filed with the courts are settled
at some time, either through direct negotiation,
mediation or arbitration.
“Dispute resolution is typically much quicker and
cheaper than the traditional litigation process, and
[it] keeps the results confidential, which can protect
you from escalation and additional lawsuits.”
The study and practice of dispute resolution
without or least use of litigation is becoming
popular, since it is the next generation of law
practice. The new generation of lawyers who
practice dispute resolution, need to incorporate the
learning and practice of integrated and hybrid
approach. Litigation is an instrument, that will be
required in rare situations and the practice of using
litigation as a default mechanism is gradually
weaning.
Research demonstrates that over 80%
disputes have the potential of an early
resolution, if the resolution is handled by
adequately skilled and committed third
party neutrals.
More and more lawyers need to look at
disputes as problems to be solved, but not
a legal battle to be won.
Dispute resolution needs a dispute
resolution expert, may it be a lawyer or a
non-lawyer - disputes need a hybrid
approach to find early and cost effective
solutions.

Determining whether to mediate requires identifying
and assessing whether significant actual or
potential commercial relationships or other
business interests exist. Doing this encourages
evaluating the importance clients place on publicity,
confidentiality, and obtaining relief that adjudication
cannot provide such as apologies, modified
relations, expedited compliance, licensing
agreements, equipment sharing arrangements,
barter arrangements, bid invitations, and future
references. Mediating combats fixed pie and zero
sum biases by expanding resolution agendas to
include these and other types of business and non-
monetary interests. Mediation process helps to shift
focus from the parties and their inclinations to
maximize gain against each other to solving
together the commercial problems disputes
present.
Mediating also provides opportunities to broaden
understandings of how counterparts view disputes,
business interests, potential trades, and the
impacts that these perspectives have on monetary
remedies that are or might be asserted in
adjudication. Many commercial disputes present
situations where considerations external to the
monetary claims framed by adjudication primarily
drive decisions. Even when assessing just win-lose
outcomes on legal claims involving money
damages, however, mediating helps lawyers and
their commercial clients realize that they lack
perfect information upon which to base their case
analyses and outcome forecasts.
Effective lawyers understand that they do not know
or understand everything relevant to analyzing and
forecasting adjudication outcomes. They also know
that selective and partisan perception lessens their
analytic objectivity and increases risks of biased
predictions. Mediating creates balanced
opportunities for commercial disputants and their
lawyers to speak to and learn from each other
privately about factors on which case analyses and
outcome forecasts are based with assurance that
what they say and do will not appear in court
testimony or the media. An additional layer of
confidential caucusing allows private meetings with
mediators and frequently generates information that
would never appear in adjudication but which often
proves crucial to resolutions. Confidential caucuses
overcome major resolution barriers that flow from
strategic approaches to communication generated
by adjudicating.
The enhanced communication channels that are
possible in mediation but not in adjudication help
commercial decision-makers move their
understanding beyond selective perception by
becoming more familiar with and realistic regarding
dispute facts, case analyses, and outcome
forecasts. They help commercial disputants avoid
negotiation errors stemming from missing or
misunderstanding important facts, legal rules,
possible agreement terms, and adjudicatory
outcome components.
Negative, hostile emotions influence behaviors,
divert attention from resolution, and damage
relationships. Positive emotions promote satisfying
substantive interests, enhance relationships, and
reduce exploitation fears. Mediating often defuses
hostility between disputants and combats the
distortions caused by partisan perception and
biased attribution. Remembering this may help
lawyers manage their discomfort with dealing with
the fluid emotional dynamics that mediated
negotiations often reveal.
Effective mediators seek to establish and maintain
positive emotional climates conducive to
constructive communication. They frequently
respond to core emotional concerns by expressing
appreciation, building affiliation, respecting
autonomy, and acknowledging status. They strive
to introduce “light where before there was only
heat” by acknowledging strong emotions that
disputants often express. This permits participants
to express negative emotions, usually in caucus
away from counterparts. Discussing topics
triggering strong emotions in private sessions allow
full expression without alienating counterparts.
These conversations counter biased attribution by
disentangling impact from intent. They also often
generate useful information that clarifies interests
and aids careful analysis of the costs and benefits
of mediation alternatives.
Mediating commercial cases combats optimistic
overconfidence because it typically encompasses
frank, mutual analysis of alternatives to agreeing
consensually. Comparing what emerges as the best
terms achievable during mediating with these
alternatives supplies a core component of
commercial dispute mediation. Effective mediators
promote the development of greater information
regarding mediation alternatives by discussing,
usually in caucuses, strengths, weaknesses, gaps,

inconsistencies, and vulnerabilities concerning
specific dimensions of anticipated mediation
options.
Because commercial dispute resolution usually
occurs in the shadow of adjudicatory alternatives,
much of this conversation concerns specific
information regarding case analyses and outcome
forecasts. Typically occurring after disputants have
presented their views, concerns, and opinions fully,
these conversations often begin with discussions of
analytic strengths and bases of favorable
predictions. Listening carefully, mediators can
convert this information to questions to ask
counterparts regarding potential vulnerabilities and
weaknesses in their legal positions and outcome
forecasts.
Mediators then tactfully phrase and respectfully ask
these questions. Responding to these inquiries
permits counterparts to learn and assess these
contrasting perspectives. Using questions rather
than statements allows mediators to encourage
lawyers to articulate responses to inquiries about
potential gaps, inconsistencies, and problems. This
dialogue allows commercial clients to hear pros and
cons of adjudicatory analyses and predictions
discussed in non-adversarial, information-oriented
rather than persuasion-focused, settings. These
discussions often help clients understand why and
how they need to adjust their views of adjudicatory
outcomes and form more realistic expectations
regarding settlement possibilities and proposals.
Finally, mediating counters the perceptual and legal
cultural, win-lose biases that influence the strategic
ways lawyers typically negotiate money-based
issues. Most commercial disputes involve at least
some negotiating over money and mediators add
considerable value by helping participants deal with
optimistically overconfident case analyses and the
negative emotions that positional bargaining
between differing perspectives frequently
generates.
Mediating dampens the use and effects of
ineffective but common negotiating tactics like
unwarranted threats, dangerous bluffs, and
premature “final offers.”Money-based negotiating
typically involves multiple rounds of offers and
responses as participants move through their
negotiation ranges. Attempts to maximize gain and
avoid loss influence tendencies to start negotiating
with extreme demands reflected in high or low ball
offers, often considerably above or below
adjudication forecasts, and to stop bargaining
before reaching their best numbers. Using skilled
listening, questioning, and confidential caucusing,
mediators help everyone deal with negative
emotions generated by biased attributions that
perceive evaluation differences as criticism and
strategic negotiating actions as disrespect.
They also help participants deal with the escalating
impatience and frustration that accompanies
grudging efforts to move to midpoints between
opening proposals. Analyzing and evaluating claims
is not easy, and mediating helps lawyers avoid false
negotiation failures during this process resulting
from guessing incorrectly about what they can
achieve, posturing too long, hiding real top or
bottom limits too tenaciously, and concluding further
movement cannot be made without unacceptable
face loss.
Although disputants’ best numbers usually do not
overlap, mediating helps many commercial
disputants find ways to bridge the smaller gaps that
usually appear once extensive negotiating identifies
viable ranges. Carefully examining estimates
regarding all transactional costs of pursuing
adjudicatory alternatives, including attorneys fees,
court costs, business disruption expenses, lost
commercial opportunities, time estimates, collection
probabilities, and appellate risks, often helps bridge
these gaps. So does analyzing shared interests in
ending disputes, avoiding loss risks, and
maximizing independent business interests.
Mediating helps commercial clients assess carefully
whether adjudicating is really necessary and cost
beneficial to achieve vindication, secure company
reputations, reduce the incidence of future similar
or related claims, or obtain decisive legal
precedent. Even if agreement does not result,
mediating often increases mutual understanding,
resolves many issues, and narrows the focus for
going forward with either adjudication or later
mediation reconvened with different participants.

Globalization, regional economic integration, and
increased business activity amplify needs to
resolve commercial disputes with greater efficiency.
Lawyers need to develop heightened awareness of
adjudication alternatives and the promise they hold
to create mutually satisfactory, business interest
based resolutions. Pre- or early-adjudication
mediation, while not a panacea, supplies a valuable
tool that enhances efficient commercial dispute
resolution when used more often by lawyers and
their business clients.
Mediating builds on to rather than ignores existing
lawyer skills needed to analyze fact situations,
discern applicable law, and estimate adjudicatory
outcomes. Mediating gives lawyers important roles
in helping their commercial clients develop,
compare, and then choose between accepting the
best settlement option obtainable or initiating or
continuing adjudication. Mediating also lets lawyers
satisfy human impulses for resolution, healing
individuals and organizations, and enabling
commerce to function more harmoniously and
productively.
Humans are profoundly social beings constantly
influencing and being influenced by each other.
Small scale activities by a few individuals can
generate contagious behaviors that cross a tipping
point and produce dramatic, immediate changes in
social practices. The tipping point for commercial
dispute mediation probably occurs when mediating
happens so commonly that it becomes the regular
option, the default preference unless particular
circumstances suggest otherwise. As this analysis
demonstrates, lawyers’ resistance to mediating
commercial disputes has not approached such a
tipping point. But if more lawyers identified and
surmounted the barriers generating their resistance
to mediate, use of this beneficial adjudicatory
alternative might approach or even cross this
tipping point.

A good lawyer
should be: not
someone who
encourages clients
to start law suits
and who feeds on
conflict, but
someone who puts
out fires and strives
for consensus. The
FICM-MCN ADR
Lawyers are
different type of
lawyers, who seek
consensus and start
from the needs,
rather than the
positions of their
clients.
Human behavior
Hardwired for
Adversarial Struggle
This inherent human behavior tilts our
choice for an Adversarial approach to resolve
disputes, instead of making a choice of
consensual process as the first option.
Litigation fires up this behavior further,
sometimes causing a bigger damage for
all parties in dispute.
Human beings resist change. And evolutionary
psychologists are not surprised at all by the fact
that, despite the excellent press that change is
given, almost everyone resists it - except when they
are dissatisfied.
The vast majority of human beings avoid loss when
comfortable with life and fight furiously when
survival requires them to do so. Human’s hardwired
behavior of fight and flight at the time of risk /
crises, makes litigation (adversarial approach)
sought after mechanism for dispute resolution. But
gradually we are learning to rewire to adjust in the
modern world. We are conditioning ourselves to
find peaceful solutions of dispute resolution, as we
all are getting aware that in the modern world,
adversarial approach is damaging for all.
When all is said and done, evolutionary psychology
paints a rather illuminating picture of human
thinking and feeling. We may wish human beings
were more rational, but our brains, created for a
different time and place, get in the way. But the
truth is, today we need rationality more than ever.
The world is increasingly complex, and we must
make harder, more layered decisions faster and
faster. Our response patterns to conflict can cause
'furrows' to form in our brains that cause us to
interact in ways that can seem impossible to
escape. Our reactions to conflict, or our willingness
to become locked within it, is in a very real sense a
habit of the brain that has developed over time.
Many of us have felt quite helpless in the face of
some of our reactions, during and after the fact.
There is a biological basis for understanding how
we become conditioned in any number of ways,
including how we become rooted in conflicted
styles of interacting under the stress of a dispute.
Given the capacity of our brains to rewire, and our
amazing abilities to adapt once we develop an
awareness of the outlines of any challenge, like
overcoming patterned behaviors, mediation and
mediated processes offer disputants an
environment for safely exploring creative new
solutions to old problems. When we become willing
to consider how our own reactivity tends to keep us
recycling, and that sometimes our response to
anxiety producing circumstances are almost

unconscious, we are suddenly freed to look deeply
at how we might honor and protect our own
interests while honoring the views of adversaries.
When people are assisted in developing options
that are more visionary and mutual than what
Courts impose, the process costs them less, they
are more satisfied, they reach agreements that are
lasting, and that they can positively influence those
around them and especially those who depend
upon them for emotional and financial support.
Evolutionary psychology holds that although human
beings today inhabit a thoroughly modern world of
space exploration and virtual realities, they do so
with the ingrained mentality of Stone Age hunter-
gatherers. People today still seek those traits that
made survival possible then: an instinct to fight
furiously when threatened, for instance, and a drive
to trade information and share secrets. Human
beings are, in other words, hardwired.
Evolutionary psychology, in identifying the aspects
of human behavior that are inborn and universal,
can explain some familiar patterns. It sheds light on
why people behave in ways that don’t appear to be
beneficial to themselves or to their businesses.
If evolution shaped the human body, they say, it
also shaped the human mind.
Sometimes our ancestors lived below the margin,
with barely enough food to get by and no secure
shelter. Or they experienced a direct threat to their
lives from a predator, a natural disaster, or another
human being. They had no option but to fight
furiously and willing to do anything to save
themselves. Thus, we are hardwired to avoid loss
when comfortable but to scramble madly when
threatened. Such behavior can be seen in business
all the time.
Human beings became hardwired to stereotype
people based on very small pieces of evidence,
mainly their looks and a few readily apparent
behaviors. Such propensity to classify is human
nature doesn’t make it right. People are complex
and many sided. But it is illuminating to know that
we are actually programmed not to see them that
way.
We may wish human beings were more rational,
but our brains, created for a different time and
place, get in the way. But the truth is, today we
need rationality more than ever. The world is
increasingly complex, and we must make harder,
more layered decisions faster and faster.
The individuals personality is inborn is not
news to any parent with more than one child.
You provide a stable home environment for
your brood - the same food, the same schools,
the same basic experiences on a day-to-day
basis. And yet the first child is introverted and
grows up to be an R&D scientist. The second,
who never stopped chattering as a child, grows
up to become a flamboyant sales executive.
And still a third child is as even-keeled as can
be and pursues a career as a school teacher.
Evolutionary psychology would tell us that
each one of these individuals was living out
his biogenetic destiny.
All three of these children are hardwired for
certain dispositions. For instance, each falls
somewhere along the continuum of risk
aversion described earlier. But each one’s level
of aversion to risk differs. The point is, along
with each person’s fundamental brain circuitry,
people also come with inborn personalities.
Some people are more dominant than others.
Some are more optimistic. Some like math
better than poetry. People can compensate for
these underlying dispositions with training and
other forms of education, but there is little point
in trying to change deep-rooted inclinations.

One reason why people become
"stuck" is that they develop patterns
of dealing with conflict, over time,
with their spouses, domestic
partners, employers, children,
inlaws, and just about everybody
else. We respond in repetitive types
of ways. These can be likened to
unconscious "strategies" in the
sense that we rarely make a decision
to employ one pattern or another.
The patterns can become
conditioned over time, and may
become a part of how we have
structured our personalities.
If you are considering mediating
your family law matter, it may be
helpful for you to reflect on your
conflict interaction patterns. One
important reason why is that conflict
patterns provide a strong argument
in favor of using mediation instead
of some other dispute resolution
method like the Courts, violence as
an extreme example, or just plain
arguing or disruptive conduct (yes,
each of those can be a strategy for
overcoming conflict).
At FICM we suggest that some form
of peacemaking is the only approach
that resolves disputes - the others
just impose outcomes and call it a
"result" or perhaps a
"consequence."
In general terms there are three
primary patterns that persons in
conflict employ or express as a
coping mechanism:
Accommodation, Avoidance, and
Control. They manifest in behaviors
and speech, or the seeming absence
thereof. They tend to look like this.
Do any seem to fit your style of
dealing with conflict more than
others?
Understanding conflict patterns
Accommodation
Ÿ Giving in
Ÿ Playing the victim
Ÿ Attempting to pacify the other
Ÿ Deference to the law
Ÿ Deference to the mediator
Ÿ Emphasis on sense of personal inadequacy
Ÿ Wanting peace at any price
Ÿ Failing to assert one's own needs
Avoidance
Ÿ Refusing to participate in mediation, litigation, or even conflict itself
Ÿ Avoidance of differences
Ÿ Indecision
Ÿ Withdrawing behaviors (refusing to engage and isolation)
Ÿ Going off on tangents
Ÿ Being overwhelmed by complexity
Ÿ Difficulties processing information
Ÿ Wanting it over at any cost
Control
Ÿ Dominating the other party or the process
Ÿ Seeing only one's own interest
Ÿ Rigid positions and outlooks
Ÿ Blaming behaviors
Ÿ Shaming behaviors
Ÿ Threatening behaviors
Ÿ Inability/unwillingness to view situations in different ways
Ÿ Acting in ingratiating ways towards the other party or the mediator
Understanding these patterns and how they play out in your life, and
in struggles with others is an essential first step to moving forward.
We believe that the existence of these patterns is an important
reason why people should consider mediating their disputes:
Ÿ The avoider avoids, and his or her interests are not protected
Ÿ The accommodator accommodates, and so sacrifices his or her
interests
Ÿ The controller controls, tramples the interests of others, and their
own as well
Mediation holds the promise that these patterns, including the triggers
that the cause them, can be understood and real choices can be
restored that are much healthier for all concerned.
WHY TO MEDIATE

Getting the
Other Side
to the
Mediation
Table
Those familiar with mediation note that the
hardest part of the process often is getting the
parties to sit down together.
Ignorance of the process merits, lack of trust
in the process, or the adversary, or more
serious and complex emotional, social,
psychological issues and doubts around the
outcome are key concerns that need to be
addressed in order for a mediation to take
place, proceed and succeed.
Causes of unwillingness to mediate
Frequently, the major hangup to mediating a
dispute arises not from other parties to the
dispute, but from their own legal advocates. Some
fear justification, that they will lose control and
possibly jeopardize their relationship with their
client by mediating a dispute. Others may believe
that suggesting mediation to an angry client, bent
on vindication will be perceived as a sign of
weakness. Some people point to the inherent
conflict of interest attorneys face when
recommending mediation. Continuing fee is the
lifeblood of many lawyers and mediation
frequently stops their flow of income. The situation
becomes even more complex in multiple-party
disputes, where one advocate can affect the
income of other advocates by pushing for
mediation. In other instances, advocates may
refuse to pursue mediation as a tactic to prolong
the litigation, making it more expensive and
burdensome for their adversary.
But most of the modern world successful
lawyers normally put client interests ahead of
their own to win client loyalty and future
business and referrals. Many advocates have
started believing that they have an ethical if
not legal responsibility to at least apprise
clients of all their options.
Objections to mediation may also arise from
parties, yours and theirs. For example, a party
may initially react with suspicion when mediation
is suggested. Why does the other side (or my
advocate) want to mediate now? Do they have
something on us? Should we postpone and try to
get something on them? Do they already have the
upper hand?
THE ACT OF POWER BALANCE

How a Mediation Organization Overcomes
Resistance
Once you tell the mediation organization to go
ahead, it most likely will send a letter and
supporting materials to the other side, explaining
the overall benefit, psychological barriers,
enhancing the trust in process as well as the
confidence on the neutrals abilities and
emphasizing the benefits of mediation, including
low cost, privacy and speed. If you use a private
mediation company, the letter will also likely point
out the high quality of the people on their mediation
panels, the simplicity of the process and
competitive pricing.
If the mediation organization doesn't get a
response to this initial mailing within a week or two,
a staff person, often called a "case manager" or
"case coordinator," will usually follow up with a
phone call to answer the other side's questions
about mediation and review mediation's potential
benefits. If the other side declines to participate
based on their lawyer's advice, the staffer may ask
permission to call the lawyer directly to be sure the
lawyer understands mediation. Before long, the
case manager may finally report good news: the
other side is willing and ready to mediate. If so, the
two of you can select a mediator and schedule the
mediation.
The worst-case scenario is that mediation fails and
parties proceed with litigation as they would have
anyway. Still, with more than 90 percent of
mediations resulting in settlements, the odds are
with you and the stakes are low. Mediation offers all
parties a chance, usually the only chance in the life
of a case, to sit at a table with their adversaries and
spend sufficient time trying to work things out.
Other parties simply want their day in court. They
want to go for the legal rigmarole, not a settlement.
They may perceive a judge as more neutral than a
mediator.
Emphasizing the fact that most cases (93%) settle
before trial and that they, not the judge or jury will
decide if the terms of a settlement are acceptable,
will make these parties think about early mediation.
Up-front costs can also keep parties from
mediating. Mediator fees and associated
administrative expenses may appear excessive
and unnecessary. Parties must understand that
these costs may be far lower than those associated
with protracted and potentially fruitless litigation.
if you're also convinced that your opponent is not
sensible and is determined to prolong the dispute
or fight things out in court even after your persistent
effort, the good news is that with a little help, you
can probably get even an obstinate neighbor, a
quarrelsome ex-spouse or an unresponsive
business owner to mediate. You may be able to
break through this resistance easily.
The best way to coax a recalcitrant party to
mediate is to do it indirectly. Have a mediation
organization--not you--extend the invitation to
mediate. This means your first step is to find a
mediation organization that is appropriate for your
dispute.
Here are some suggestions:
Ÿ State that you would like to try mediation and list
some reasons why--for example, because it's an
efficient, low cost, no-risk approach.
Ÿ Do not try to persuade the other person to
mediate. Leave it to the mediation organization
to do the selling.
Ÿ Never threaten the other person. For example,
do not write, "If you don't agree to mediation, I
will have no recourse but to commence a
lawsuit.
Ÿ State clearly that you have no personal
connection with the mediation organization other
than contacting it for this mediation.
Ÿ Let the other person know that the mediation
service will be calling.

Commercial relationships create substantial
economic activity through licensing, distributor,
supplier, joint venture, and other transactional
arrangements. Changes in economic, market,
and other circumstances occur after these
relationships begin, however, and often
produce differing performance related
perceptions and contractual interpretations.
These differences may generate disagreements
regarding responsibilities, obligations,
performances, and entitlements that may
escalate into commercial disputes.
Because such commercial disputes are increasing,
moreover the courts in India are ill prepared to
deliver speedy justice, choosing how to confront
and resolve them supplies important tasks for
lawyers. Lawyers often rely on their adjudication-
influenced habitual ways of perceiving and acting
while recommending and taking primary
responsibility for the means used to pursue their
clients’ commercial dispute resolution objectives.
Non-violent / Non-adversarial and consensual
dispute resolution options are not the first line of
option for most lawyers. Although found in most of
the world’s cultures and practiced for centuries,
mediation is the least used option in this menu.
Negotiation is used far more frequently, and it is
typically conducted by company representatives
before involving lawyers or by in-house counsel
before hiring outside experts. Mediation enhances
negotiation by allowing lawyers and business
persons to converse with the assistance of non-
dispute involved mediators who encourage
constructive communication and interaction.
Mediators help negotiators frame conversations in
ways that counter selective and partisan
perceptions, exploit shared and independent
interests, and investigate resolutions that promote
mutual gain. Unlike judges and arbitrators,
mediators do not decide issues or enter judgments.
Instead, mediators use confidential sessions to
generate more and better information that often
helps participants create agreements that
accomplish more than is allowed by the narrow,
win-lose remedies available in adjudication.
Combating biased perceptions and distorted
judgments, mediators help participants craft
resolutions that allow all disputants to satisfy some
of their interests.
Mediation more fully honors these business
interests by looking forward to assess future
commercial opportunities rather than
emphasizing on looking backward, as
adjudication does, to determine legal
consequences arising from past events.
WHY LAWYERS
AVOID MEDIATION?
LEGAL CULTURAL AND OTHER FACTORS INFLUENCING
LAWYERS’ RELUCTANCE TO MEDIATE DISPUTES

constrained expanding their activities as counselors and
allowed competitive, legal-related occupations to
perform much of this activity. All these emotional-brain
and neural short-cut biases, combined with powerful
legal cultural influences explain why lawyers resist
mediating commercial disputes.
Overcoming mediation resistance begins with identifying
that mediating exists as an optional method for resolving
commercial disputes. Because of long-standing
traditions to view adjudication as simply what is done
when participants cannot negotiate commercial disputes
successfully, this initial step of consciously making a
decision about mediating often disappears.
Lawyers, executives and managers assume that they
have no other choice than to adjudicate. Failing to
appreciate fully the ways mediating differs from and is
superior to unaided face-to-face negotiation, they
assume that disputes cannot resolve consensually
because they have already tried to negotiate them
without success. They also often fail to grasp how
mediating creates opportunities to achieve many
different goals and provides process and procedural
tools not offered by adjudication.
Lawyers must question these assumptions and restrain
their automatic, habitual desires to adjudicate
commercial disputes. Lawyers enjoy monopoly status as
persons generally permitted to represent human and
entity clients in lawsuits and arbitrations. We all tend to
sell to our strengths and adjudicating allows lawyers to
market their primary product lines of knowledge of legal
rules, rights, remedies and defenses and abilities to
apply this expertise persuading external decision-
makers. Adjudication emphasizes issue-oriented dispute
resolution which focuses on legal rule connections and
applications.
Lawyers enjoy feeling in control and central to the action.
As compared to clients, adjudicating lets lawyers
exercise control, play dominant roles, and remain central
to the endeavor until external decision-makers act.
Lawyers usually prefer leading to following, and
adjudicating requires them to lead as they plead claims
and defenses, assemble evidence, and present
arguments. Clients usually defer to their lawyer’s
knowledge and expertise in these realms and focusing
interactions on lawyers’ expertise lessens attorneys’
needs to share agendas with their clients.
Lawyers, like all humans, feel most comfortable doing
what they know best and resist performing actions that
present more challenge and produce less comfort.
Change is never easy and it often generates fears of
making mistakes and receiving negative judgments.
Lawyers reject mediation because it changes resolution
process dynamics and gives them less control, centrality,
leadership, and opportunity to display legal knowledge-
based advocacy. Lawyers avoid mediation because it
Disputes generate strong emotions reflecting anger,
distrust, and interests in self-preservation that influence
dispute resolution process selection. Powerful feelings of
suspicion, betrayal, and disrespect often influence
desires for achieving vindication, using professional
advocates and punishing dispute counterparts. All of
these emotions influence choosing to adjudicate
commercial disputes to achieve vindication by winning
and inflicting harm.
Sharing a professional tradition of intense commitment
to their client’s cause, lawyers risk reinforcing partisan
emotions when discussing commercial dispute resolution
options with angry and threatened clients. Sometimes
lawyers intentionally strengthen their clients’ emotional
fires to encourage adjudicatory choice. More often,
lawyers remain neutral initially but personally experience
partisan perception after adjudication is selected and
produces quarrels and skirmishes.
Lawyers routinely demonstrate optimistic
overconfidence. Biased, inaccurate future outcome
predictions often influence lawyers to recommend
adjudication, and their clients frequently follow this
advice based primarily on these forecasts. Commitments
to adjudicate often harden when commercial clients
independently reach equally optimistically overconfident
predictions that amplify and reinforce their lawyers’
biased forecasts.
Distorted selective and partisan perception, fixed pie and
zero-sum biases, and optimistic overconfidence often
combine to activate a powerful, emotion-based mental
habit, loss aversion. Loss aversion motivates humans
to escape anything that feels like loss. People are more
motivated to avoid losses than to achieve gains. This
powerful mental habit often shapes human decisions by
influencing choices and actions that attribute more
weight to avoiding loss than achieving gain. Loss
aversion is an innate emotional flaw in human brains,
and everyone who experiences emotion is vulnerable to
its affects.
The Traditional Dispute Resolution Lawyers
Lawyers share a professional legal culture that strongly
emphasizes using law and its rights and remedies as the
framework for resolving disputes through Adjudication.
A commercial representative discussing mediation noted
that his company’s main problem is lawyers, explaining
that “advocates don’t think the way other people think.”
Lawyers prefer adjudicating to resolve commercial
disputes. Advocating or defending legal positions before
courts or administrative bodies as their most important
role.
Civil lawyers view themselves primarily as advocates in
adjudication. Historically, this strong attachment to
defining their role as adjudicatory advocacy has

puts them outside their comfort zone by requiring actions
that acknowledge and respond to the complicated,
interactive emotional dynamics that arise during dispute
resolution.
Mediation reduces lawyer control by substituting a less
formal consensual process where clients attend and
have opportunities to participate substantially, for more
rule-bound adjudication approaches where clients often
are not present, do not participate unless testifying, and
transfer decision-making to judges, arbitrators, or juries.
Mediating anticipates larger roles for clients than they
play in adjudicating. Mediating typically requires clients
to attend, and provides several opportunities for them to
talk and listen in joint sessions when all disputants meet
together, and in confidential meetings conducted outside
the presence of all or some other participants. Mediating
gives commercial clients opportunities to hear
counterparts’ perspectives directly without distortion from
their lawyers, interact directly with counterparts, and
make informed comparisons between best mediation
options and likely adjudication outcomes.
While lawyers typically play central, often leading, roles
in the managed discourse that comprises effective
mediating, their actions occur in the presence of and in
collaboration with representatives of their commercial
clients and their counterparts. For example, their
analysis of case strengths, weaknesses, and outcome
forecasts are typically discussed confidentially yet in
their client’s presence. Because this presents risks of
surfacing evidence gathering and evaluation errors, it
often encourages more preparation by lawyers than
face-to-face negotiations generate. In addition,
mediation lessens lawyer’s law-based expertise by
integrating consideration of non-monetary and other
interests outside legal frames, de-emphasizing
determinations about applicable law, and seeking
outcomes parties can live with considering costs,
benefits, and risks.
Finally, mediating challenges lawyers to navigate
emotional dynamics skillfully, managing themselves in
the midst of emotional stress while conducting effective
professional interactions with others who are often
strongly influenced by emotions. Discussing mediation
as a pre-adjudication option counters brain-based and
cultural biases and helps lawyers approach the
challenging tasks that mediating encompasses.

In Europe, commercial mediation is on the rise,
but many parts of the business community are
still largely unaware of its benefits or even its
attributes. In the United Kingdom, civil
commercial mediation has experienced
substantial growth since the Woolf Reforms,
but it is still more often referred to than
practiced, and only a handful of practitioners
are able to support themselves exclusively by
service as mediators. In both markets, the
practice is more often looked upon as a means
of resolving individual disputes than as a
method of adding value to a business
relationship or a technique to manage outside
legal costs. And of course in Eastern Europe,
the Middle East, Africa and (to a lesser extent)
Latin America commercial mediation is an
object of study more than of practice.
In the United States, the take-up is broader
and the application less narrow. Most corporate
legal departments understand the process of
commercial mediation and many companies
are responding to competitive pressure to
reduce their legal budgets by looking to the
principles of ADR to guide them in creating
dispute management systems, rather than
merely using mediation as an alternative to
litigating or arbitrating particular cases.
ADR systems have proven to be a highly
reliable method of managing streams of cases
in employment and other contexts. Entire
platoons of consultants have realized a tidy
business assisting corporations to set up ‘Early
Case Assessment’ systems. If at its heart ADR
is, in fact, a tool for management, then what
does it manage? Commercial conflicts, yes,
but commercial relationships also. Any serious
student of mediation readily appreciates that
the process results in the reformation and
clarification of business dealings, at least as
much as it does the issuance of an award of
damages. It is useful in the management of
critical business partners such as IT
CRITICAL ROLE
OF ADR AND
DISPUTE SYSTEM
DESIGN IN
CORPORATE
MANAGEMENT &
GOVERNANCE.
CORPORATE
MANAGEMENT
AND GOVERNANCE

Ÿ have been uncovered? How many claims of
racial or gender discrimination have been
voiced, and is there any indication of
mismanagement that might give rise to a
suit that would have serious reputational
consequences to the company? What
percentage of employee disputes have
remained unresolved and risen to the level
of the filing of arbitration or lawsuits? What
impact has the system had on rates of
employee turnover and outside counsel
costs?
Ÿ Does the company have an early dispute
detection and resolution system with respect
to its critical procurement functions such as
IT vendors? If not, why not?
Ÿ What systems does the company have in
place to manage disputes involving its
patents and trademarks? What are the
trends of outside counsel costs in the area
of protecting intellectual property rights?
What percentage of such claims result in
licences, and what transaction costs are
incurred between the onset of the claim and
the licence agreement?
Ÿ Does the company have a policy that its
transactional attorneys and businesspeople
draft dispute management clauses in critical
contracts, that are designed to protect the
value of the deal? What resources are
expended to provide such training for the
professionals who negotiate and draft these
critical deals?
The concept of ‘shareholder value’ takes on
many forms, including measuring return on
financial investment; managing the conflicting
interests of stakeholders as employees,
shareholders, communities, regulators; setting
and enforcing ethical business practices;
setting and enforcing sustainable business
practices; and ensuring the continued value of
the brand by protection of the company’s
reputation and goodwill.
professionals, vendors, customers and
employees.
There are two aspects of corporate governance
that imply a role for ADR skills. One is in
facilitating the work of the board itself, and the
other is in creating shareholder value.
Corporate governance principles that provide,
in part, that ‘corporate governance issues
between shareholders, the board and
management should be pursued by dialogue
and, where appropriate, with government and
regulatory representatives as well as other
concerned bodies, so as to resolve disputes, if
possible, through negotiation, mediation or
arbitration. But the principle seems not to have
been applied in real cases of managing internal
or external board conflict. It is in the second
role of the board – ensuring the creation of
shareholder value – that the most intriguing
possibilities lie for application of the core
principles of interest-based facilitated
negotiation.
No one would seriously contend that the
management of particular disputes by the legal
department is a matter rising to the board level
– not, that is, unless something has gone very
seriously wrong, in which case it is too late. But
is not the management of critical business
relationships clearly a board matter?
Of course it is.
And it may be entirely prudent for any board to
ask senior management these questions, and
be satisfied with the answers:
Ÿ Does the company have a system of early
case assessment, and a method of
establishing reserves against contingencies
that the auditor approves? If not, why not?
Ÿ Does the company have a rigorously
designed method of identifying and
addressing streams of employee disputes?
What is the track record of that system, and
what trends
‘

NEW PRODUCT/SERVICE ANNOUNCEMENTS:
COMMENTARY
22

The use of the trial as the dominant form of
dispute resolution is diminishing, yet law
schools continue to train young lawyers as
if the courtroom will be the principal venue
for addressing legal conflicts. The
historically narrow focus of legal curricula
on litigation and appeals is insufficient to
prepare young lawyers for the world that
awaits them. While clients will continue to
need attorneys who are effective in court,
lawyers are increasingly called upon to play
a much wider range of roles.
Law-trained professionals often must work
“upstream” in the life of conflicts. They
must understand how to prevent conflicts,
manage them more effectively and
efficiently at an early stage, and
successfully resolve those that ripen into
legally-framed disputes. They are called
upon to be organizational problem solvers
as members of multi disciplinary teams.
And - most interesting to us - attorneys in
these broader roles sometimes have the
opportunity to help organizations create or
improve systems that prevent or address
conflicts before and after they evolve into
full-fledged disputes.
Systems analysis skills may thus be used in
situations as diverse as:
Ÿ An attorney who negotiates contracts for joint
business ventures as they select and draft
language for the processes that will be used
to prevent, manage and resolve conflicts that
may arise;
Ÿ A general counsel or outside counsel who
revamps an employee grievance procedure or
designs a payout system connected to the
settlement of a multi-party class action;
Ÿ A legal advisor or diplomat who counsels a
country emerging from conflict on how to
create multi-tiered justice systems that
address punishment as well as reconciliation
in an effort both to achieve justice and prevent
future violence;
Ÿ A judge or court administrator who develops
multiple settlement and case management
processes to better serve litigants;
Ÿ A legislator or legislative staff member who
develops new policy with enforcement
mechanisms and an implementing regulatory
scheme.
Ÿ In short, dispute systems analysis is an
essential skill in systems design, and one that
we believe should be widely taught in law
schools and better understood by attorneys.
Commentators on dispute systems design have
since proposed a number of characteristics that
bear on whether these criteria can be met. They
propose that the best systems involve:
Ÿ Multiple process options for parties, including
rights-based and interest-based processes
Ÿ Ability for parties to “loop back” and “loop
forward” between rights-based and interest-
based options
Ÿ Substantial stakeholder involvement in the
system’s design
Ÿ Participation that is voluntary, confidential and
assisted by impartial third-party neutrals
Ÿ System transparency and accountability
Ÿ Education and training of stakeholders on the
use of the available process options
LAWYERING
IN THE NEW
WORLD.

What are Laws?
The existence of laws is fundamental to a society
governed by the rule of law. However, the creation
and enforcement of laws does not, of itself,
constitute or enable a society to be governed by the
rule of law. The important distinction must be drawn
between a society governed by laws and a society
governed by the rule of law. A society governed by
laws, without consideration and embrace of the rule
of law as a guiding and underlying principle, has
the potential to be a tyrannical or “Police” state.
A “good” law:
Ÿ Protects individual freedom;
Ÿ Ensures collective security (including through
the individual’s responsibility to not infringe that
security through the prudent exercise of his/her
freedom by reference to the freedom of others);
and,
Ÿ Acknowledges and protects fundamental rights.
Yet clearly there are examples where laws have not
met these purposes and yet have been laws
enacted by elected governments.
We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable rights, that among
these are Life, Liberty and the pursuit of Happiness.
But are we truly living in a state that ...
Law and order exist for the purpose of establishing
justice and when they fail in this purpose they
become the dangerously structured dams that
block the ﬂow of social progress.
- Martin Luther King Jnr
Laws are the means by which political will is given
expression. Thus if the political will is not just then
nor will be the expression of that will. In this sense
the absence of justice constitutes injustice and
injustice oppresses. Similarly, a law passed for an
unjust purpose will oppress.
What is the Rule of Law
Most of the content of the rule of law can be
summed up in two points: (1) that the people
(including, one should add, the government) should
be ruled by the law and obey it and (2) that the law
should be such that people will be able (and, one
should add, willing) to be guided by it”
India is very poorly ranked in "Rule of Law Index"
among 100 countries around the word. While being
a largest democracy in the world, it's time we
realize that massive legal justice reforms are the
need of time.
THE RULE OF LAW
Law as an instrument
of Justice and a tool
of oppression

DISPUTE
SYSTEM
DESIGN
In our society's culture there are basic agreements
about cooperation and transactions between
members. Our social systems are ordered by
threat, exchange, and integration or love.
We know from our own day-to-day experiences that
people fail to cooperate as often as they do
cooperate. Dispute resolution is a part of every
society's culture, and in each society some
methods are favored over others. Each culture in
the world may be unique, but underlying each
culture is its own specific system that determines
how to resolve disputes. But, some systems of
dispute resolution lead to consistently inefficient
outcomes, by encouraging and reinforcing actions
that are not in the best interest of everyone
involved.
FICM-MCN focuses on designing dispute
management and settlement systems, tailored
to the situation, using best practices of conflict
resolution.
Dispute Systems Design (DSD) is a method for
resolving intractable or frequent conflicts in
troubled communities, organizations,
businesses, or entire industries.
It involves three ways of resolving disputes: by
negotiating interests, by adjudicating rights, or by
pursuing power options. Ideally, disputes should be
resolved at the lowest level, through negotiating
interests. Claims of interest focus on the desires of
the actors in any given dispute. Rather than
focusing on what a person can do based on their
rights and power.
Actors should focus on what they would like to do
based on their own interests. Interest-based claims
are more negotiable, and hence less likely to
become intractable. Only if interest negotiation
doesn't work, should the parties try a rights-based
approach. Today most disputes, even minor ones,
are tried to resolve with either adversarial or
sometimes using power struggles.
A healthy dispute management system resolves
most disputes at the interest level, fewer at the
rights level, and fewest through power options. This
is healthy for several reasons:

Ÿ Negotiating interests is less expensive than
adjudicating rights or pursuing power options.
Ÿ Negotiating interests results in mutually
satisfactory solutions, while the other two
approaches are win-lose, meaning one side
wins and the other side loses.
Ÿ When power-based approaches are tried, the
losing side often is angry, and may try to "get
back" at the other side whenever they get the
chance.
Ÿ Interest-based negotiation is usually less time
consuming than the other approaches.
System Design Principles
Put the focus on interests
This means any dispute resolution should start with
a process (either direct negotiation or mediation)
where the parties try to solve the problem using
interest-based bargaining. This is the best way to
find a solution that satisfies everyone. Only when
this doesn't work, do you move on to rights-based
processes (such as arbitration) or power-based
processes (such as elections).
Provide low-cost rights and power backups
Arbitration, voting, and protests are low-cost
alternatives to rights and power contests. Although
they are higher in cost than negotiation, they are
less costly than adjudication or violent force.
Build in "loop-backs" to negotiation
Rights-based and power-based strategies for
resolving disputes seldom need to be played
out to the end. Rather, as soon as it is clear who is
going to "win," parties can return to negotiation to
develop a solution which best meets their needs, as
well as their rights.
Build in consultation before, feedback after
Increasing shared information is a basic strategy in
ameliorating all conflicts. Consultation and
feedback mechanisms between parties provide a
consistent and reliable method of sharing
information.
Arrange procedures in a low-to-high-cost
sequence
Dispute-resolution systems typically have a series
of steps. If one has a grievance or a conflict with
another person or an organization, first you try to
solve it on your own, and then you seek the help of
a expert negotiator, mediator, conciliator, arbitrator
or a lawyer etc. By arranging dispute-resolution
procedures in a low-to-high-cost sequence one can
reduce the probability of rapid escalation.
Minimizing this tendency toward rapid escalation
had the added benefit of reducing enmity and
increasing faith in the ability of the system to
resolve basic disputes.
Provide the necessary motivation, skills, and
resources
An alternative system can function only if people
buy into it. People are creatures of habit, and this is
the greatest limit to broad-based systemic change.
While there may be active resistance from some
groups to new dispute-resolution systems, the
greater problem is spreading the skills, knowledge,
and habits that reinforce the new system. It is
incumbent on the elites in the conflict, and third-
party interveners, to provide the resources and time
necessary to generate cooperation with the new
system.
Process / Stages
Stages for implementing the new dispute-resolution
system:
Ÿ diagnosis
Ÿ design
Ÿ implementation
Ÿ exit, evaluation, and diffusion
These stages are self-explanatory, but they are
helpful for explaining the changing roles that
third-party interveners must perform in
designing new dispute-resolution systems.
Focus more on the process of designing
dispute-resolution systems than the content. It
implies that there is no single approach to
designing dispute-resolution systems; the
findings over the course of implementation
should determine the specific content of each
dispute-resolution system. Each system must
be tailored to the groups involved. Further, it
implies that a well-designed system should be
self-sustaining. Once the system is in place,
the process should be successful.

Dispute Systems Design – Focus on Systemic
Conflicts
We would expect conflict to occur in any system,
and in most systems, specific patterns of conflict
will recur, indicating a problem with the system
itself. DSD is focused on managing disputes once
they arise, but interveners should focus instead on
resolving underlying systemic conflicts.
For example, some actions have lower costs than
others. Inefficient social systems will consistently
attach lower costs to actions that result in inefficient
outcomes. This can be a major source of systemic
conflict. One goal of DSD is to attach different costs
to the standard set of actions that an actor might
take, so that the actor becomes more likely to
engage in efficient behavior.
Sometimes the existing system of costs leads to
inefficient outcomes. For example, If it is easier for
a worker to go on strike than to go through a
grievance process, and the likely outcome of the
strike is better than that of the grievance process,
then clearly the dispute-resolution system in place
needs to be redesigned. The goal should be to
change the costs attached to actions, such that the
new process of rapid mediation becomes the most
favorable option.
New dispute-resolution systems should incorporate
not only processes that encourage mediation,
conciliation, and other interest-based dispute-
resolution methods, but also ongoing processes
that identify inefficient outcomes and attempt to
resolve them.
Dispute Systems Design – It’s
Extension
An effective dispute-resolution system should
incorporate:
Ÿ commitment to the values of fairness and
freedom from reprisal;
Ÿ interest- and rights-based options;
Ÿ multiple access points;
Ÿ an organizational ombudsperson;
Ÿ wide scope; and
Ÿ continuous improvement via an oversight
committee.
Ÿ responding to stakeholder interest;
Ÿ reflecting important values;
Ÿ promoting the mission of the new agency;
Ÿ providing visible support by the organization's
leadership;
Ÿ loop-backs forward and back between interest-
and rights-based options;
Ÿ a system that is fair, flexible, friendly, and fast;
Ÿ the goal of resolution at a low level; and
mechanisms by which the organization can shift
from conflict resolution to management.
Ÿ it should include prevention and early-
intervention options;
Ÿ it should seek to build collaborative strength
through seven checkpoints;
Ÿ it should utilize the mediation model in order to
build consensus among those involved.
Ÿ A dispute system should:
Ÿ contain options for preventing, identifying, and
resolving issues;
Ÿ promote a culture that works to solve problems
at the lowest level through direct negotiation;
Ÿ allow multiple access points;
Ÿ empower employees to select from a range of
options for addressing the conflict;
Ÿ contain effective structure and support to
maintain options.
The Society goes on to identify ten other
necessary elements:
Ÿ leadership support;
Ÿ an oversight body composed of representatives
from all stakeholder groups;
Ÿ evaluation processes;
Ÿ training;
Ÿ a central coordinator;
Ÿ alignment of the "philosophy of conflict
competency" with the mission, vision, values,
and policies;
Ÿ institutionalized incentives for effective
operation;
Ÿ a communication strategy;
Ÿ incentives for early resolution; and
Ÿ adequate resources for the system to function
properly.
It has also been suggested that DSD is most
effective when:
Ÿ Conflict prevention, rather than conflict
management, is emphasized. This requires
increasing the capacity of organizations to
understand sources of potential conflict and deal
with them early, before they escalate.
Ÿ Outside designers do not play too

Where our substantive solutions to human
problems come from and how we can improve
upon the human repertoire for problem solving.
Although necessary and important in some cases,
conventional legal processes, like adjudication and
adversarial negotiation, are often inadequate for a
fuller satisfaction of human needs and interests,
and so we must look to other processes than
traditional institutions or practices, depending on
the kind of conflict or dispute at issue.
If procedural justice is important to modern justice
seekers, it is also important to recognize that
particular processes affect outcomes. There can be
functional variation to what fair procedures might be
in any particular context. As long as all parties are
given an opportunity to be heard on (or, participate
in) decisions affecting them, they can create their
own process or use any one of the existing hybrid
processes. This is the principle of process pluralism
(which is of defining importance to the modern
dispute resolution movement and is what
distinguishes us from more conventional
jurisprudes who often still see conventional legal
THE
INSUFFICIENCY
OF LEGAL
REMEDIES
FOR DISPUTE
RESOLUTION
For solving clients' underlying problems and
addressing underlying needs, legal disputes are a
much narrower subset of actual human, social,
political, and economic conflicts. The legal field's
focus on "legal disputes" or cases is so narrow and
explained so little that we must search for justice in
a broader disciplinary framework. We must learn to
analyze and understand what conflicts and disputes
are about, in their full contextual complexity, before
we can choose the appropriate behavioral
response. Once we have decided on our goals and
desired outcomes, we can seek to achieve them
with a broader repertoire of processes and
behaviors.
Many critics of the legal system were focused not
only on the increasing costs and delays of the
litigation system (what I have labeled the
"quantitative" approach to legal conflict resolution),
but on the quality of the solutions or resolutions
produced by court orders or settlements negotiated
in their "shadow."
Law as often conflictual, indeterminate, and
politically contested or manipulable, or so focused
on the need for regulation of the aggregate that it
cannot always do 'Justice" in particular cases.
Legal justice is not always actual justice.

Some legal matters are not capable of binary
solutions and so in some cases compromises or
negotiated resolutions are actually more 'just" than
more extreme binary solutions, precisely because
of their distributed "precision. While legal principles
(especially statutory law, passed by legislatures for
the “average," "aggregate," or "typical" situation)
may serve as "general" justice, in particular cases
justice may better be served by tailored
"departures” from the general rule (as long as the
negotiated solutions are not otherwise unlawful).
Negotiated justice may, then, for the individuals
involved, be more 'just" than legislated or court-
ruled justice. Trades, tailor-made solutions, or
contingent agreements, linking past to future in
dynamic and changeable solutions, are often
preferable to rigid, past-focused adjudication of
"rights and responsibilities” from rigid legal
principles.
processes as the only way forward to substantive
justice).
We need practice to use conflict creatively and
constructively, to make 'Justice" in legal terms and
to make "peace" in human terms.
Conflict resolution is a human skill (to be theorized
about, taught, learned, and practiced) and a difficult
but highly valued one at that. It is more than a
single skill, constituting a multidimensional set of
skills, implicating abilities to listen, articulate,
advocate, empathize, analyze, facilitate, create,
manage, and care about people and their
problems, issues, values, and material well-being.
Instead of focusing on limited legal remedies, our
approach works on thinking more broadly about
substantive problem solving and conflict resolution
in deeper and richer sociological and psychological
contexts. While process pluralism allows us to
choose different processes for functional or other
reasons, we must also consider that the choice of a
particular process will almost certainly affect the
outcome we produce.
To choose another process may allow for more
creative, joint-gain, wealth creating, and
satisfactory possibilities to emerge.
Compromise is NOT mediated or conciliated
settlement. Compromise is often an unprincipled
result in legal negotiations where parties or lawyers
fail to explore the full panoply of their various needs
and interests, including legal, economic, social,
psychological, emotional, moral, political, and
religious. The skilled dispute resolution professional
may help uncover the needs of the client and other
affected third parties. This broader, social welfare (if
perhaps somewhat maternalistic) approach to
determining what actually may be at issue in a
dispute to go beyond the "framed” dispute to look at
what the underlying conflict is really about and
"reframe" it. With a deeper and perhaps longer list
of "needs," efficient trades continue (perhaps there
are more or fewer of them), but parties (with the
help of skilled mediator) attempt to negotiate for
deeper and ultimately more stable satisfaction
among the parties.

IN THE
SPOTLIGHT
22

A SAFETY NET FOR BUSINESSES
IN INTERNATIONAL TRANSACTIONS
IN THE SPOTLIGHT
An inclusive integrated dispute resolution eco-system
for Importers, Exporters, cross-border investors ....

While Europe, America and other parts
of the world are cris- crossed with
arbitral institutions, but unfortunately
most of these institutions have become
complacent, plagued with unnecessary
procedural and appointment delays,
exorbitant costs, limited pool of
arbitrators and some awards that do not
get enforced. Moreover even if the
awards are delivered, enforceability of
the awards is delayed, sometimes for
many years. Moreover none are really
addressing the needs of small and
medium business transactions while
they may also not have a viable reach
outside of the countries in which they
themselves operate.
What is the solution?
Why are we using one mechanism only?
And why having only few institutions?
why not an all inclusive, integrated
network or web of institutions in every
state of the world?
Disputes can be resolved to its finality if
we use cost effective hybrid
mechanisms at our own time, pace and
place of comfort. Why should we
struggle in an international dispute so
much so that we end up wasting
valuable time and lot of money, still
uncertain, if the award can actually be
enforced against any asset of a state or
not. The entire dispute SYSTEM needs
a big change, including arbitration, with
a new
worlds perspective, with a purely
commercial perspective.
To deliver viable international
commercial dispute resolution solutions,
we need ONE inclusive global SYSTEM.
A dispute resolution eco-system around
the world that incorporates all
procedures that take care of disputes
emanating from any country, including
all those countries that have signed up
to the obligations of the New York
Convention. We need one global body
governed by its own members, having
flexible and diverse set of rules, a
diverse and large panel of dispute
resolution talent from around the world
who have profound knowledge and
insight. An institution with a inter-
continental reach, which allows all of the
continents to participate. FICM-MCN
has drawn up the plans that would allow
any regional players in ADR that would
wish to join the transnational global
phenomena.
Businesses operating in transnational
transactions can now operate
confidently with a safety net to manage
and prevent disputes and to enforce
their rights and obligations in the
international environment. More and
more commercial enterprises and
companies of all sizes are signing up to
common ground rules and ethics in
commercial transactions and are also
pledging to resolve disputes through
consensual mechanisms before looking
for any adversarial options.
IN THE SPOTLIGHT

FICM-MCN
NEWS & UPDATES
22

FICM-MCN Newsletter explores new approaches to dispute resolution (38

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