Tag Archives: #Mediation

Opportunities, Webinars/Workshops

HNLU in collaboration with IIAM arbitration and mediation institute and KD LEX CHAMBERS presents Mediation Webinar Series 2021.

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About Hidayatullah National Law University

Established in 2003, Hidayatullah National Law University has completed the journey of more than one and half a decade. In such a short span of time, HNLU has carved out a niche in the realm of legal education across India and the legacy is soaring towards newer heights day by day.
Named after the great legal luminary Justice Mohammed Hidayatullah, the University was established by the Government of Chhattisgarh under the Hidayatullah National University of Law, Chhattisgarh, Act (Act No.10 of 2003).
HNLU is the sixth in the series of National Law Schools across India. HNLU has been included in the list of the Universities maintained by the University Grants Commission under Section 2(f) of the UGC Act, 1956 and has been declared fit to receive Central assistance in terms of the rules framed under Section 12 (B) of the UGC Act, 1956. The university is recognized by
the Bar Council of India under section 7 of the Advocates Act 1961.
Hon’ble Mr. Justice Prashant Kumar Mishra, Acting Chief Justice, High Court of Chhattisgarh is the Chancellor and Prof. (Dr.) V. C. Vivekanandan is the Vice-Chancellor of the University. “Dharma Sansthapanartham” (for the sake of establishing the primacy of the laws of eternal values) is the motto of Hidayatullah National Law University, Raipur.

Indian Institute of Arbitration & Mediation

Indian Institute of Arbitration& Mediation is one of the pioneer institutions in India, providing institutional alternative dispute resolution services, which include international and domestic commercial arbitration, mediation and negotiation, and conducting training programmes in ADR. IIAM is a non-profit organization registered in India and commenced in the year 2001. The IIAM is a founding member of Asia Pacific Centre of Arbitration & Mediation (APCAM)-Stay_Conneted-

KD Lex Chambers LLP, Centre for Conflict Resolution

KD Lex Chambers LLP has been established with the primary objective of promoting Alternative Dispute Resolution (ADR) mechanism by providing a conducive environment and appropriate infrastructure for quick and effective resolution of commercial conflicts. In order to make the ADR mechanism completely client-friendly, KDLC commits to provide various services and facilities with state-of-the-art technical support to achieve this objective in an effective, efficient, and professional manner with the involvement and intervention of highly professional arbitrators, mediators, and neutrals from various legal as well as technical backgrounds. KDLC prides itself to be partnered with ADR ODR INTERNATIONAL (UK), which is accredited by the Singapore International Mediation Institute (SIMI), recognized by the UK Civil Mediation Council (CMC), and certified by International Mediation Institute (IMI). This gives it an internationally recognized kite mark of excellence.

Mediation

Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement. A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their dispute. India is in the edge coming with its new law on mediation which will help in facilitating the development of settling the disputes through mediation.

Webinar Series

In India, the origin of mediation is obscured by the lack of clear historical and official records of indigenous processes of dispute resolution systems due to our colonial past. However, recently mediation has emerged as a fast-growing disputes redressal mechanism. The supreme court of India has constituted a mediation and conciliation project committee to oversee the effective implementation of mediation and conciliation in the country. The objective of our webinar series is to create awareness among the target groups to understand the technicalities of mediation and its dimensions.
This webinar series will try to improve the skills of conducting mediation to the mediation professionals and will be useful as an advocacy programme to the law students in the State of Chhattisgarh and across the nation. Our aim is to achieve a high standard practice of mediation to resolve complex disputes like property, family, civil and commercial. The entire webinar series is divided into four sessions and our experts will come from a variety of backgrounds and include professionals from different walks of life, academician, legal practitioners, and Judges.

Who May Participate

The participant can be from inside or outside of the University.
• HNLU students across all Batches, and Faculties.
• Undergraduate and postgraduate law students, research scholars, Advocates and
ADR enthusiasts.
• Professionals practicing ADR.

Certification

Certificates will be provided to all Participants

Objectives of the Workshop

• Aim is to achieve a high standard practice of mediation to resolve complex disputes like property, family, civil and commercial.

Schedule of the Webinar Series

The entire webinar series is divided into four sessions every second Saturday of
September, October, November, and December respectively.
• 11th September 2021 – Inaugural Webinar (Topic: Fundamentals of Mediation)
• 9th October 2021 – Second webinar (Topic: Family/Civil Mediation in India)
• 13th November 2021 – Third Webinar (Topic: Commercial Mediation)
• 11th December 2021 – Fourth Webinar (Topic: ODR & Mediation as a Profession)

Registration

Register Here – https://lnkd.in/dP9DuiUe

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Articles

Alternative Dispute Resolution During Pandemic

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This Article is written by Raashi Suredia and Nupur Misra, students of Army Law College, Pune

INTRODUCTION

Alternative dispute resolution (ADR) alludes to a set of practices and techniques aimed at resolving civil disputes outside traditional legal and administrative forums. It normally covers mediation, arbitration, and a variety of “hybrid” processes by which a third party facilitates the resolution of legal disputes without formal adjudication. These substitutes to adjudication are advocated on a variety of rationale. Potential perks include the reduction of the transaction costs of dispute resolution and the proceedings are quicker as compared to ordinary proceedings; the creation of resolutions that are better suited to the parties’ underlying interests and requisites; and improved ex-post compliance with the terms and conditions of the resolution. 

ADR has gained ubiquitous acceptance among both the general public and the legal profession in recent years and is also being espoused as the means to help settle disputes alongside the court system itself. There are various widely used methods of ADR such as Arbitration, Mediation Negotiation and Conciliation. However, in the present state of affairs where the spread of Coronavirus (COVID-19) has put everything on hold, it is important to talk about its effect on ADR.

The coronavirus global health crisis is significantly impacting communities worldwide. It has caused unparalleled disruptions and has damaged the world’s economy and business relationships. Great numbers of commercial disputes are coming into view as parties are finding it difficult to execute their contractual obligations. There is a likelihood that the crisis will result in a surge of litigation and will as a result defer the resolution of pending court cases. It is the unprecedented delays that should direct the parties towards alternative dispute resolution (ADR). Online Dispute Resolution (ODR) or Virtual ADR has come into play owing to this crisis.

Virtual ADR allows the cases to be resolved in a hassle-free manner and this system there is no need for the parties to travel. Parties to the dispute can communicate with each other through video conferencing which makes it possible for them to hear and see each other. In the case of mediation, the mediator can separate the parties and engage in a mutually agreeable settlement. Greater utilisation of ADR will result in nippy resolution of cases and will also be time and money-saving.

It must be stated that despite it being the need of the hour, there are certain challenges in this process. It is no secret that lawyers have always been averse to technology. Yet, in times like these, learning and adopting technology is essential for survival. Arduous and continuous training will be required for the lawyers to get through the offline to online transition. It is a tough row to hoe to provide internet connectivity to Indian Courts since most of them have poor network connectivity. Adequate security standards will have to be put into place so that the critical data that is stored is not hacked or tampered with in any way.

Like any new initiative, virtual ADR will have its share of complications and glitches. However, it is undoubtedly a step in the right direction. ADR is no longer an alternate mode of resolving disputes. Rather, it is the ideal forum for the speedy, cost-effective resolution of disputes. The current pandemic has reformed the way we think about our lives and daily interactions. However, in unprecedented situations like these, it is much more important to come together and fight, to come out stronger and significantly more evolved.

The emphasis of this article is on mediation and arbitration. The first half of the article covers essential background for understanding ADR by focusing mainly on arbitration and mediation. The other half covers the use of AI in ADR during the pandemic.  

ARBITRATION

Arbitration in India is an age-old conception, originating in ancient India. It is still prevalent today in villages where the seniors of the village or community sit and resolve disputes between villagers and/ or the community. Therefore, it cannot be said that Arbitration as a concept or ADR is a foreign ingress on the Indian legal system. Arbitration is a part of ADR along with other ADR processes like Conciliation and Mediation. Arbitration in India is administered by the Indian Arbitration and Conciliation Act 1996. The Arbitration and Conciliation Act, 1996 as applicable in India today was created on the lines of the Model Law of the UNCITAL (United Nations Commission on International Trade Law). The popularity of cherry-picking arbitration over mediation and/ or conciliation has created the term Arbitration Dispute Resolution.

Over time processes, procedures and powers concerning Arbitration and the right of parties to the same were incorporated in The Civil Procedure Code, Indian Contract Act, Specific Relief Act and by further incorporation of Indian Arbitration Act 1899, subsequently rescinded by the Indian Arbitration Act of 1940 and then finally by the Arbitration and Conciliation Act, 1996 which came into effect from 25th January 1996. The Arbitration and Conciliation Act 1996, seeks to consolidate and amend the laws about arbitration as were in force pre 25 January 1996 and seeks to fortify the domestic and international commercial arbitration which includes enforcement of the foreign arbitration awards on the lines of Model Law on International and Commercial Arbitration adopted by UN Commission on International Trade Law, 1985.

MEDIATION

Mediation is a form of ADR, a way of resolving disputes between two or more parties. A third party, the mediator assists the parties to negotiate their settlement (facilitative mediation). In a few cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation). Mediation has a structure, timetable and dynamics which the “ordinary” negotiation has a paucity. The process is private and confidential. The presence of a mediator is the key distinctive feature of the process. There may be no compulsion to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. Mediators use numerous methods to open, or mend, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skills and qualifications. The mediator must be wholly unbiased. Disputants may use mediation in a multiplicity of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. 

USE OF AI IN ADR

With the COVID-19 pandemic hitting the world, the mode of all sorts of transactions has shifted to online methods. The technological resources which were earlier being underutilised are now being used at their optimum best and new advancements are also happening within very short periods to meet the new requirements of people. When the entire economy shifted to online mode and the definition of ‘normal’ changed, the legal world had to adapt to the dynamic scenario as well and accept the ‘new normal’. Cases were put on hold for the pandemic to die down, however, that was not and still is not the case. The legal processes which are tedious in a country like India, where trials take years to be completed, the pandemic, provided an opportunity to the Indian legal system to develop itself and adapt to the change to provide speedy trials. Administration of justice and access to justice is the basic essential as well as an important public service provided to every citizen which cannot be ‘quarantined’ due to the lockdowns put in place for safety. Therefore, the Indian judiciary adapted to the ‘work from home’ approach quite quickly. The Supreme Court issued guidelines for the conduct of virtual hearings, which guidelines directed all High Courts to take necessary steps to implement virtual hearings through video conferencing both for themselves and for the subordinate courts within their jurisdiction. The presence of Artificial Intelligence is however not new to the Indian judiciary and has been in use for a good amount of time. Alternative Dispute Resolution has also incorporated the element of Artificial Intelligence in the pandemic very smoothly and adopted the word Online Dispute Resolution, combining Alternative Dispute Resolution and AI technology used. The pandemic made online dispute resolution gain attraction due to social distancing norms and remote work policies. Online dispute resolution permits resolution by way of mechanisms on the internet and coded algorithms. The COVID-19 pandemic and the AI-enabled virtual communication between parties that are geographically apart, thereby continuing the legal formalities and not putting any hindrance to the ADR methods. The demand for the prediction of trial outcomes through data analytics is as it is high and the AI technology has been able to predict outcomes with appreciable accuracy. Algorithms are used to find the area of settlement between both parties, thereby reducing the need for human contact, which was the main aim of implementing multiple lockdowns in the first place and increasing the speed of dispute resolution. The whole aim of ADR is to not take the case to the court which not only saves the time of the judiciary and the parties involved but also protects the relationship between the parties. The usage of algorithms and since they are prompt, allows the parties to save time by settling matters out of the court directly. These AI-based settlements are also more consistent and uniform across similar cases, simply because they have been formed after time and continued testing which has been done time and again. 

Platforms like Manupatra and Lexis Nexis have been formed after taking into consideration the amount of time that is taken up while researching for case laws, these platforms have been designed in such a way so that they can give the user the required data without going through multiple cases or searches, this proves how well such coded platforms work in benefit of legal professionals. An AI can systematize data according to the user needs and provide that as and when required which in turn would lessen the burden on an individual. The use of AI would also reduce the documentation workload, by quickly assessing and selecting the material document, or for making summaries for documents. As human beings, we all have our biases, opinions and prejudices, but when it comes to AI technology, it is not affected by these mundane weaknesses, it would give answers only after following the rational and logical approach, therefore, eliminating the scope of human emotions interfering the case. 

CONCLUSION

The primary aim of arbitration is to get a neutral third party to resolve disputes equally without unnecessary costs or delays. The core aim of the Arbitration process is to save time and costs. AI will be complementary to the process of arbitration, as it is developed independently with its thinking and reasoning power and it is prompt and quick to solve queries, both aims of arbitration will be achieved. India is still a developing country and even though we are exploring new horizons in the field of computer technology time and again, development not only includes new advancements, it also requires optimum utilization of pre-existing resources to ensure sustainability, which is exactly what will happen when AI technology is incorporated into the ADR wholly and completely, reduction in individual workload, development of nation and sustainability of the world at large.

ENDNOTES:
  1. Nilava Bandyopadhyay, India: Future of Litigation and ADR in India – Post COVID-19, MONDAQ (Mar 27, 2021), https://www.mondaq.com. 
  2. Masood Ahmed, Alternative Dispute Resolution during the Covid-19 Crisis and Beyond, TAYLOR AND FRANCIS ONLINE (Feb 25, 2021), https://www.tandfonline.
  3. Anubhav Pandey, All you need to know about Alternative Dispute Resolution, IPLEADERS (May 9, 2017), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
  4. Lalit Sharma, Evolution of ADR Mechanisms in India, SCC ONLINE (Feb 7, 2021), https://www.scconline.com/blog/post/2021/02/07/evolution-of-adr-mechanisms-in-india/.
  5. Manoj K Singh, The future of arbitration in India: Strengthening the process of alternative dispute resolution, THE ECONOMIC TIMES (Apr 17, 2021), https://economictimes.indiatimes.com/small-biz/legal/the-future-of-arbitration-in-india-strengthening-the-process-of-alternative-dispute-resolution/articleshow/.
  6. Michael Finnegan, Alternative Dispute Resolution: benefits and use during (and after) the COVID-19 crisis, BURGES-SALMON (Jul 17, 2020), https://www.burges-salmon.com/news-and-insight/legal-updates/private-wealth/alternative-dispute-resolution-benefits-and-use-during-and-after-covid-19.

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Articles

MEDIATION A TOOL FOR ACCESS TO JUSTICE

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This article deals with the topic of mediation which is a part of ADR. This article basically talks about the importance of mediation and how it is important in these times.


INTRODUCTION

ADR i.e. alternative Dispute Resolution as it very well may be effectively comprehended by the words that ADR is an alternative technique to resolve disputes now first we need to comprehend that what is the conventional method that is “court”. In India, as we all know there are plenty of cases pending and courts can’t resolve all the cases and the Indian judiciary is inefficient to manage the pending cases. The administration knows about this reality and that is the reason the legislature has supported for setting up in excess of a thousand fast track courts and these courts help a ton to break up and settle a large number of cases. Be that as it may, much after that the number of pending cases is expanding day by day.

To manage this sort of circumstance ADR can assume an extremely indispensable job. ADR can resolve the dispute swiftly and the decision that gets through this ADR is acknowledged by both the parties. ADR is generally acknowledged on the grounds that it settle the dispute in practice a wide range of issues like a commercial, civil, family and industrial issues, and so on.1

RELATION OF ADR WITH CONSTITUTION AND OTHER ACTS.

At the point when we talk about ADR in the Indian situation so ADR in India was founded on the Constitutional article 14 right to equality and Article 21 right to life and personal liberty. Article 39 A, DPSPs, are likewise included in the ADR for giving justice and free legal aid, Furthermore, when we talk about explicit acts that are connected with ADR so for the Arbitration and Conciliation Act 1996 and legal services authority act 1987 is there. Section 89 of CPC 1908 likewise discusses the alternative method, this section gives that opportunity to the individuals, in the event that it seems to court there exists a component of settlement outside the courts at that point court figure the particulars of a potential settlement and allude the equivalent for arbitration, conciliation, mediation and Lok Adalat.


WHY ADR IS THE NEED OF THE TIME?

Since this procedure is quick thusly less time-consuming in contrast with conventional court procedures. Less expensive than litigation and saves money as well. It is adaptable and liberated from the technicalities of courts and individuals can resolve their disputes without any problem. It is a nonbinding procedure with the exception of from few methods people are allowed to express and they can reveal the true facts identified with the case.


TYPES OF ADR

  • Arbitration
  • Conciliation
  • Negotiation
  • Mediation
  • Lok Adalat

WHAT IS THE SIGNIFICANCE OF ACCESS TO JUSTICE?

In 1999 the then chief justice of the family court Alastair Nicholson, and sue lynch wrote: “any conversation of access to Justice should be set inside a more extensive setting than that of the legal framework alone and in the time of 2009 the access to the justice task force in the commonwealth attorney, journals dept. Published ‘ a key structure for access to justice in the federal civil justice framework. Access to justice is key to the standard of law and basic to the enjoyment regarding fundamental human rights, it is a basic precondition to social incorporation and a basic component of a well-working majority rule government. An effective justice system must be available in the entirety of its parts without this, the framework dangers losing its significance to, and the regard of the network it serves availability is about more than straightforward entry to land stone structure or getting legal advice. While courts are a significant part of the justice system, there are numerous circumstances courts are the last spot individuals will get the result they are searching for to determine issues.

The basic test is whether our justice system is simple, reasonable, and affordable. It is additionally significant that the framework gives viable early mediation to assist individuals with settling issues before they raise and lead to digging in a disservice.

An alternative mechanism to improve value and access to justice and accomplish lower cast civil dispute resolution, in both metropolitan regions and provincial and remote communities and the expense and advantages of these.

Where parties can’t arrive at a private resolution, the civil justice system gives them different approaches to determine the dispute and mediation is one of the ways.


WHAT IS MEDIATION?

Mediation is one of the methods of alternative dispute resolution(ADR) accessible to parties. Mediation is basically a negotiation encouraged by an impartial third party. Unlike arbitration, which is a procedure of ADR fairly like a trial, mediation doesn’t include decisions by the impartial third party. ADR techniques can be started by the parties or might be constrained by enactment, the courts, or legally binding terms.


IS MEDIATION RIGHT FOR YOU?

At the point when pieties are reluctant or unable to resolve a dispute, one great option is to go to mediation. Mediation is commonly a short term, structured, task-situated, and “hands-on” process.

In meditation, the disputing parties work with an unbiased third party, the mediator, to determine their disputes. The mediator encourages the resolution of the parties’ disputes by regulating the exchange of information and the haggling procedure. The mediator enables the parties to discover shared opinions and manage unrealistic desires. The individual may likewise offer inventive arrangements and help with drafting a final assessment. The role of the mediator is to decipher concerns, transfer information between the parties, outline issues, and characterize the issues.


WHEN TO MEDIATE

Mediation is generally a voluntary procedure, albeit now and again resolutions, rules, or court orders may require participation in mediation. Mediation is regular in small claims courts, housing courts, family courts, and some criminal court projects and neighbourhood justice system.

Dissimilar to the litigation procedure, where a nonpartisan third party (normally a judge) imposes a decision over the issue, the parties and their mediator commonly control the mediation process – choosing when and where the mediation happens, who will be present, how the mediation will be paid for, and how the mediator will interface with the parties.


WHAT IS THE ROLE OF THE MEDIATOR

Every time the last decision is taken by the parties and the mediator doesn’t decide anything and he has no power to decide the dispute between the parties and essentially put he is the guardian of the procedure and he can’t give his recommendation gave it is evaluative mediation. Be that as it may, what does the mediator do is he simply offer his input and attempt to come to a conclusion which is generally of the parties by their own points.


PROCEDURE

  • Opening statement
  • Joint session
  • Separate session
  • Closing

In the opening statement, the mediator just gives all the information about his appointment and he proclaims that he is an unbiased individual and he has no interest in the subject matter. In the joint session, the mediator attempts to comprehend the facts and the issues of the case and he assembles each data identified with the dispute by welcoming both the parties and parties present their case and give their point of view looking into the case.

In the separate session fundamentally mediator accumulates information by taking both the parties in confidence separately and he attempts to comprehend the core of the dispute. In the wake of hearing both the parties and when he comprehends the entire dispute, he attempts to make alternatives for settlement through parties on the statement, facts which are given by the parties subsequent to being asked by the mediator.

Mediation is not quite the same as conciliation as conciliation is the formulation of opinion and conveyance of verdict. Be that as it may, in mediation, a mediator is just a facilitator and just render his opinion in the dispute and he can convey his verdict with respect to the contest anyway the conciliator plays more interventionist role and make a proposition for the dispute and this was decided in the case of Salem Advocate Bar Association v. U.O.I; in this case, SC held that mediator is merely a facilitator while the conciliator by making proposals for a settlement of the dispute and by reformulation the conditions of the settlement assume a progressively dynamic the mediation is the procedure of structured negotiation including various stages like a joint session, introduction, separate session and so on.


HOW IT IS A TOOL FOR ACCESS TO JUSTICE

As we already understood that what is the significance of access to justice and how it is related to ADR now let’s try to understand how it is a tool for access to Justice.

At the point when parties can’t arrive at a private resolution then the civil justice system gives them different approaches to determine the contest mediation at that point turns into the most embraced structure for this since it is the nonbinding decision by the mediator. Parties can without much of a stretch access the Justice through their own particular manner by giving the fact to the mediator and thus resolve the dispute, access to Justice implies the capacity to get Justice by any individual and the most ordinary method for getting justice is through a court of law yet nowadays courts are overburdened by loads of cases at the principal example court alludes the parties to determine the dispute through mediation.

As has just been expressed that a mediator is a nonpartisan third party that goes about as a guardian of the procedure without mediating in the topic makes it a method for settling disputes agreeably and it additionally is a swift and adaptable method for resolving disputes with sets aside both money and time. Since mediation isn’t a procedure to be recorded for the public record their for it likewise spares the generosity of the parties from being discoloured. Every one of these highlights of mediation makes it the fittest method for resolving disputes between parties in today’s time when the courts are troubled with cases.


CONCLUSION

Mediation is one of a few ways to deal with resolving disputes It contrasts from the antagonistic resolution process by temperance of its simplicity, familiarity, flexibility, and economy. Mediation gives the chance to parties to concur terms and resolve issues without anyone else, without the requirement for legal representation or court hearings.

Why mediation is important and how it is a tool for access to justice, following are some of the benefits which typically associated with mediation.

  • Recognition
  • Empowerment
  • Speedy trial
  • Economical
  • Confidentiality
  • Quality of settlement
  • Avoid bad outcomes


The prior is only a portion of the convincing reasons to mediate disputes. Besides, there is only here and there any genuine drawback to mediation. While some may hesitate “to lay it all out there” in mediation, in this period of disclosure driven litigation, the old “trial by ambush” long stretches of civil litigation are progressively turning into a relic of times gone by. Mediation works not just on the grounds that it centres around the parties, own interests, and agendas. yet in addition since it gives the chance to parties to move beyond dispute proficiently and graph their own future.