This document discusses dispute resolution and mediation. It begins with a quote about the relationship between words and thoughts. It then provides details about the nature of disputes, the state of mind of disputing parties, and the limitations of resolving disputes through litigation in courts. It introduces mediation as an alternative dispute resolution (ADR) process that is less adversarial and allows parties to control the process and outcome. The document describes the mediation process in detail and highlights how mediation differs from and has advantages over other dispute resolution methods like litigation. It concludes by providing statistics about positive outcomes from mediated cases.

2. “A WORD DEVOID OF
THOUGHT IS
A DEAD THING AND
A THOUGHT UNEMBODIED IN
WORDS REMAINS A SHADOW”
A QUOTE BY - VYGOTSKY

3. *A dispute is a difference of opinion regardingA dispute is a difference of opinion regarding
interests, rights and liabilities of individuals.interests, rights and liabilities of individuals.
*Every dispute is an out come ofEvery dispute is an out come of
violated individual expectations.violated individual expectations.
*What they want is notWhat they want is not
happeninghappening
*What they do not want isWhat they do not want is
happeninghappening

4. What does one do when he is involved in a dispute?What does one do when he is involved in a dispute?
*He may disagree and quarrel with the other.
*He may think, introspect, question himself, cross
examine himself, QUESTION THE OTHER PARTY
in imagination, cross examine him, answer himself,
argue for himself, pass a judgment for himself.
*He may discuss with his nearest and dearest /
close associates / well wishers.
*He may approach the Head of the family,
Village Head, reputed / influential persons.
*He may approach Politicians – Police
*He may opt for arbitration – conciliation
*He may approach anti social elements
*He may approach the Lawyer
*He may approach the Court.

5. *Confused.. tense.. argumentative.
*Fault finding.. Suspecting.. troubled with
Superiority complex / inferiority complex.
*Assuming that he alone is right.. and the
other party is a wrong doer.
*Behavior becomes extreme and less
tolerable to others.
What is the state of mind of a personWhat is the state of mind of a person
involved in dispute?involved in dispute?

6. What does a person involved
in a dispute expect?
*I should swim…
he should sink
*I should swim…
he should not swim
*He should sink…
does not mind if I also sink.
““VENGEANCE”…? At what cost?VENGEANCE”…? At what cost?
What is the state of mind ofWhat is the state of mind of
a person involved in dispute?a person involved in dispute?

7. What does the Court do?What does the Court do?
*Court hears both the parties (generally through Lawyers),Court hears both the parties (generally through Lawyers),
takes evidence, formulates issues / points for considerationtakes evidence, formulates issues / points for consideration
hears arguments and passes judgment.hears arguments and passes judgment.
*Is Judgment by a Court of law anIs Judgment by a Court of law an
end to the dispute between the parties..?end to the dispute between the parties..?
““MILLION DOLLAR QUESTION”?MILLION DOLLAR QUESTION”?

8. *Litigation comes to an end but notLitigation comes to an end but not
the dispute.the dispute.
*Positions/interests/relationships…Positions/interests/relationships…
status-quo ante are not restored.status-quo ante are not restored.
*Workable solution is not consideredWorkable solution is not considered
and suggestedand suggested
*Changes after the emergence ofChanges after the emergence of
dispute, subsequent effects of disputedispute, subsequent effects of dispute
are not determined.are not determined.
*Does not bring both the parties to aDoes not bring both the parties to a
win / win situation.win / win situation.
What does not the party to aWhat does not the party to a
dispute get through the Court ?dispute get through the Court ?

9. *ADR is not an adversarial or inquisitorial process.
It is a participative process.
*Parties decide which are the issues or points to be discussed.
They narrow down the issues.
*Parties set down their own procedure / rules.
*Evidence - of parties - witnesses - examination in chief-cross
examination - production - confrontation of documents are all
avoided to a greater extent.
*ADR is neither a fact finding nor an adjudicative process.
WHY ADR?WHY ADR?

10. ADRADR is a problem solving process.is a problem solving process.
ADRADR is less formal many a times totally informal.is less formal many a times totally informal.
PartiesParties decide and control the result.decide and control the result.
ADRADR depends solely on the agreement of the parties.depends solely on the agreement of the parties.

11. Any dispute can be resolved in 2 waysAny dispute can be resolved in 2 ways
Non-jurisdictional
process - A.D.R.
Jurisdictional process - through
State Court litigation

12. *State Courts are overloaded
with work
*Several layers of jurisdiction
(Original / Appellate / Supreme Court)
are to be crossed.
*Parties become adversaries,
deny each other
*Strict application of procedures and
rules
*Parties do not have control over the
procedure as well over the outcome.
*Either but not both the parties feels
satisfied.
Disadvantages of litigationDisadvantages of litigation

13. WHAT IS MEDIATION?WHAT IS MEDIATION?
*Mediation is a process where two parties to a disputeMediation is a process where two parties to a dispute
get their dispute/s resolved by themselves, in theget their dispute/s resolved by themselves, in the
presence of a neutral third party who is a mediator.presence of a neutral third party who is a mediator.
*Mediation is an assisted negotiation, where theMediation is an assisted negotiation, where the
mediator facilitates the parties to negotiate.mediator facilitates the parties to negotiate.
*Mediation is a combination of methods adopted toMediation is a combination of methods adopted to
facilitate the parties to resolve the dispute.facilitate the parties to resolve the dispute.

14. Paradigm shiftParadigm shift
Get things doneGet things done
Get things done right, and rightly doneGet things done right, and rightly done
Get alongGet along
Get mutual appreciation.Get mutual appreciation.

15. A mediator does not sit as a Lawyer or a Judge or an
Arbitrator or a Conciliator, or a Village Head / Head of the
family / Politician / Police authority / much less as an anti
social element.
The best answer is.. One.. who in the proceedings is not a
Lawyer or a Judge or an Arbitrator or a Conciliator, or a
Village Head / Head of the family / Politician / Police
authority / much less an anti social element.
Who is a mediator?Who is a mediator?

16. ““The Big Difference”The Big Difference”
How does a mediator differ from others?
*Mediator does not hold brief for either of the parties.
*Mediator is a neutral third party.. who is neither
interested in the parties, nor in the subject matter of
litigation.
*Mediator does not argue who is right and who is wrong.
(Advocate)
*Mediator does not decide or judge as to who is right or
who is wrong? (Judge)
Cont..

17. ““The Big DifferenceThe Big Difference””
*Mediator does not pass an award as to what should
happen in future between the parties? (Arbitrator)
*Mediator does not suggest, persuade. (Conciliator)
*Mediator does not command. (Police / Village head /
person exercising authority)
*Mediator does not compel or impose his / her views.
(Friend / relative / well wisher)
*Mediator does not take sides and take law into his/her
hands. (Anti social elements)
*Mediator only facilitates the parties to resolve the
dispute.
*Mediator assists in negotiation.
*Mediator provides a congenial atmosphere for
resolution of disputes.

18. Process of Mediation
OPENING STATEMENT
Mediator introduces himself/herself,
gets introduced to the parties,
tells in brief what mediation is..
and how the mediation process is to be proceeded
with.
Cont..

19. Process of Mediation
JOINT SESSION
A) For the first time, Both the parties to a litigation are
made to sit close to one another, on either side of the
mediator, along with their advocates.
B) The one who has approached the Court is asked to
explain every aspect of dispute, which is covered or not
covered in the plaint. The other party is asked to listen
without causing any interruption or intervention.
– The advocate is requested to highlight the legal issues.
– A re-statement / reassurance of facts explained by the
party, is made by the mediator. The party is asked to
correct the mediator if the mediator has not understood
the party properly.
Cont..

20. Process of Mediation JOINT SESSION
C) The other party / respondent / defendant is asked
to explain every aspect of dispute, which is covered
or not covered in the written statement / objection
statement. The first party is asked to listen without
causing any interruption or intervention.
*The advocate is requested to highlight the legal
issues.
*A re-statement /reassurance of facts explained by
the party , is made by the mediator. The party is
asked to correct the mediator if the mediator has not
understood the party properly.
Cont..

21. Process of Mediation
PRIVATE SESSION
*Each party is spoken to in private. The party can vent out
his/her feelings / emotions / expectations, leisurely.
Mediator does not interfere or interrupt. Mediator listens
actively effectively and demonstrates understanding.
*Confidential information given by one party is not
revealed to the other party unless the party permits .
*Even third parties are given an opportunity to participate.

22. SHUTTLINGSHUTTLING
The mediator convenes any number of private
and joint sessions with the parties.
In the process many solutions are evolved.
One of the solutions agreeable to both the
parties is picked up by the parties themselves.

23. SETTLEMENTSETTLEMENT
*A draft of settlement is placed before the parties.A draft of settlement is placed before the parties.
*Settlement is written, and signed by the parties.Settlement is written, and signed by the parties.
*Settlement arrived at is sent to the Court.Settlement arrived at is sent to the Court.
*Court passes decree inCourt passes decree in
terms of settlement.terms of settlement.

24. IF SETTLEMENT IS NOTIF SETTLEMENT IS NOT
ARRIVED ATARRIVED AT
*Parties do not loose anything.
*The mediator mentions :
‘Matter Not Settled’, and
sends the file back to the Court.
*Entire process is kept
confidential. No cross
examination is permitted
in court as to what transpired
in the Mediation.
*Entire process is time bound –
with a maximum of 60 days,
as the upper limit.

25. ADVANTAGES OF MEDIATIONADVANTAGES OF MEDIATION
*Mediation is not a competitive adjudicatory process.
*Mediation is a co-operative decision making process.
*It is a process for achieving what you want by yourself
convincing the person, from whom you want, what you
want.
*Negotiation may fail
but the communication
is kept alive

26. What is taken care of in Mediation?What is taken care of in Mediation?
*Positions: What a person wants?
*Interests: Why a person wants that what he wants?
Desires / needs of a negotiator
Absolutely essential: Which must be achieved
through mediation.
Important: Which may be obtained in different form
(FLEXIBILITY).
DESIRABLE: It may be given up to get either
important or absolutely essential.

27. BOTTOM LINE OF MEDIATION
• “A problem is that which has
solution”
• OPTIONS: Possible solutions
to problem/brain storming
• Alternatives: If no settlement is
reached, what do you have
outside negotiation?
• Proposals and counter
proposals are properly
supported.

28. MEDIATION AND DECISION MAKINGMEDIATION AND DECISION MAKING
• Life changing decisions:
• Tangible goals: Income,
profit, career moves, things
that can be experienced
through senses.
• Intangible goals: Family
values, relationships,
emotional needs, self esteem.
• Sacrifice of tangible goals for
intangible goals / vise - versa..
how beneficial?

29. DECISION MAKINGDECISION MAKING
• How does a given decision fit into
his/her total circumstances
• How would the decision if taken
affect his/her other goals and
objectives.
• Who else would be affected by the
decision and how?
• What would be the consequence of
inaction-if no decision is taken and
every thing is left as it is.

30. *What would be the positive and negativeWhat would be the positive and negative
consequences of one’s decision.consequences of one’s decision.
*Meeting multiple demandsMeeting multiple demands
through decision.through decision.
*Quality of decisionQuality of decision

31. ““RESOLVING DILEMMARESOLVING DILEMMA””
• “One always has a choice of choice between right and
wrong”.
• One can give decision without assigning any reasons.
“GIVE YOUR DECISION BUT NOT YOUR REASONS”.
• One need not make excuses to express his decision.
• You need not oblige.. but express your decision obligingly.

32. DECISION MAKINGDECISION MAKING
*Difference between: making things happen and
letting things happen.
“BEST FIVE PLAYERS win the game
But not
FIVE BEST PLAYERS” .
What ultimately matters is “THE RESULT”.

33. *“Last piece of
straw broke the
camels’ neck”-
How to get out?
*Who is
responsible? to
what extent?
*“Right question
leads to correct
answer”
““Camel’s Back SyndromeCamel’s Back Syndrome””

34. “CREAM ALWAYS
COMES TO TOP”
Mediation facilitates the
milk in the process.
Can a dispute be reallyCan a dispute be really
resolved throughresolved through
Mediation ?Mediation ?

35. RETURNSRETURNS
*“It is your work in life
that is the ultimate
seduction”
- PABLO PICASSO
*We all work for a cause..
*“Leaving people better
than we found them”.
RETURNSRETURNS
*“It is your work in life
that is the ultimate
seduction”
- PABLO PICASSO
*We all work for a cause..
*“Leaving people better
than we found them”.

36. *Cases referred – 7,061
*Cases returned back – 1,315
*Cases Mediated – 5,080
*Cases Settled – 2,919
*Connected Cases Settled – 275
*Success rate – 57%
*Total Mediated hours – 9,920 hours
*Average time per case – 118.055 mins
*Average number of sessions – 1.75

38. Amendment to S.89 was suggested
after the legislature acknowledged
that
1.The formal method of dispute resolution
was not successful
2.Alternate dispute Resolution system was
not popular enough to litigants to try the
same
3.The need of making ADR as a part of Court
process was felt

39. *It gently pushes litigants to at least attempt settling the
matter out side of Court.
*Promotes settlement.
*Gives judicial recognition to concept of settlement through
ADR

40. *Every Court is duty bound to travel through S. 89 C.P.C.
*What is optional is referring the dispute to ADR.
*S.89 may have to be read along with Order X.

41. 1) Court has to go through the pleadings
2) Observe the issues in controversy
3) Record the admissions and denials of the parties
And then…
Find out if there exists some elements of a
possible settlement

42. What if the Court comes to a conclusion that there
is no element of settlement could be found ?
*Make an endorsement.. and proceed with the case in the
usual manner.
What if the Court comes to a conclusion that there
exists some element of settlement?
*Formulate terms of possible settlement
*Give them to parties for their observation.
*Get feed back from parties,
*Reframe the terms of a possible settlement
THEN
Refer the matter to one of the ADR methods

43. *S.89 contemplates the Courts to refer matter to ADR if it
feels that there exists some element of settlement
acceptable to the parties.
*Participatory role of parties cannot be ignored.

44. *Parties may be allowed to choose.
BUT…
*The Court should come to a conclusion as to
which of the methods contemplated in s.89
would be appropriate for the case on hand. The
decision taking power is vested with the Courts.
*Right exercise of the discretion results in proper
settlement.

45. 1) At any stage.
2) Preferably after the pleadings are completed
Can Court permit parties to jump from one ADR
mechanism to another ADR mechanism?
*It can.. If the Court feels it necessary
*It can.. If there is no malafides
*It can.. If it is not an out come of delaying tactics
*It can.. If the subsequent events so demand

46. *To restate that Courts also recognize
ADR mechanisms
*To create an obligation on the parties
to negotiate in good faith.
*To make the parties participate in the
process with an open mind
*To ensure a degree of certainty
*To create a binding enforceable
contract.

47. *Whether Court has power to refer the matter to arbitration
even when one of the parties to the suit does not agree to
the same?
*Please refer:
AIR 2006 Ker. 2007(1)Afcon Infra Structure Vs
Cherian Varkley
*Let us wait for the judgment of the Hon’ble Apex Court.

48. THANK YOU
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