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MEDIATION AS AN EFFECTIVE MEANS

TO ALTERNATE DISPUTE RESOLUTION


MECHANISM

Shashank Bahadur Nagar 0171033807


Astha Sharma 0831033807
Sanskriti Jain 0851033807
Nayanjyoti Jha 0991033807
Deeksha Shukla 1611033807
WHAT IS MEDIATON

Compromise between two parties.

Facilitator assist in resolving dispute.

High degree of client satisfaction.

Time needed for settlement.


EVOLUTION AND DEVELOPMENT

Earlier Panchayat System


Popular among businessman
Another form of dispute resolution- PANCHAS
Lok Adalats
Development of mediation
Justice Malimath Committee Report
Pilot project on mediation
Mediation centers
CHARACTERSTICS OF MEDIATION

Non-binding procedure

Confidential procedure

Interest-based procedure
RESPONSIBILITY OF MEDIATOR

Settles the dispute

Establishes and enforces procedure

Should not be biased

Acts as a catalyst

Should have ability to understand issue

Should act as a convener

Communication facilitator as a counselor


WHY TO PREFER MEDIATION

Less expensive and less time consuming

Confidential process
Multiple and flexible possibilities for resolving
dispute

Mutual endeavor

Aid of mediator
MEDIATION PROCESS

Communication between parties

Understanding between parties

Try and find common ground of dispute

Focuses on real interests of parties

Creative solution

Responsibility to decide outcome

Agreement between parties


STAGES OF MEDIATION

Presentation of opening statements

Identification of facts

Discussions

Decision

Agreement
TYPES OF MEDIATION

Consumer mediation
Eldercare mediation
Environmental mediation
Divorce mediation
Real-estate mediation
Employment mediation
Commercial mediation
Land/tenant mediation
MEDIATION STYLES

Evaluative mediation

Facilitative mediation

Transformative mediation
EFFECTIVE MEDIATION TECHNIQUES

Listen to mediator

Use logical approach

Don’t be afraid

Follow principles

Prepare the client

The opening line

Research and more research


ADVANTAGES
Less costly
Faster process
Full participation
Work together and reach settlement
Experienced mediator
Right to know about background of mediator
Private process
Binding mediation
Agreement is enforceable
DISADVANTAGES

Parties withholding information

Problem of legal resource

Stronger party

Cases of domestic violence

Mediation does not succeed


CRIMINAL
MEDIATION
INTRODUCTION

Also called restorative mediation


Criminal system – do not address victim’s specific
needs
Victim-Offender Mediation
Example of 9 children vandalizing property
Prosecution – no prima facie case
Legal burden to prove case beyond reasonable
doubt
Makes sense for prosecution for Mediation
RESTORATIVE JUSTICE
Mainstream criminal justice system - Retributive
justice
Guilt and punishment, victims feel empty and
unsatisfied
Cannot restore their losses
Restorative justice – focus on restoring their
emotional and material losses
Concerned far more about restoration of victim
than about punishment of offender
Elevates importance of victim
Offenders be held directly accountable

Cont..
RESTORATIVE JUSTICE

Encourages entire community to be involved


Places greater emphasis on having offenders
accept responsibility
Community responsibility
U.S. and Canada - VOM and VORP
MATTERS IN CRIMINAL MEDIATION

Juvenile cases
Less heinous adult crimes
Mutual assaults and the disputes between
neighbors
Crimes against property
Motor Accident Claims - Drunk-driving
Dowry harassment and cruelty u/s 406/498-A IPC
Complaints u/s 138 of Negotiable Instruments Act
Petitions u/s 125 Cr. P.C.
Any other compoundable offence
FACTORS TO BE CONSIDERED BY
REFERRAL JUDGE
Case Characteristics
• case not to involve complex legal issues,
ambiguous precedent, Constitutional issues
or Public Policy
• referral Judge should ascertain whether
previous attempts to mediation have failed
and why

Cont..
FACTORS TO BE CONSIDERED BY
REFERRAL JUDGE

Party Characteristics
• costs and time - not more than litigation 
• parties and their advocates have positive
attitude
• government is not a party
PROCESS

Any stage in the process


Sign an agreement
Referral
First Contact
Preliminary Interviews
Face-to-Face Meeting
Conclusions
Agreement reached is not necessarily final
CRIMINAL MEDIATOR

Acts as a catalyst
Third party who referees disputed parties
Neutral party but not neutral as to the wrong
Attending to the needs of crime victims
Process of facilitating meaningful accountability
Trained prepare victims and offenders to come
face to-face
Skills for working with trauma victims
Rule 3 of the Mediation and Conciliation Rules,
2004
PARTICIPANTS IN MEDIATION

The Defendant
Defendant’s lawyer
The Victim - a natural or a legal person
Public Prosecutor
Victim’s Advocate
A representative from Law Enforcement
Juvenile mediations - juvenile, parent/ guardian,
victim, victim’s relative or advocate
All participants to meet at scheduled place on
scheduled date with the mediator
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Criminal Mediation
• Resolution by compromise
• Both parties have opportunity to explain their behavior
• Quick, inexpensive, and effective
• Mediators charge affordable flat rate or hourly fee
• Enhance chances of winning
• Mediation can give guidance, support, and compassion
• Voluntary and feeling of satisfaction to parties

Contd..
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Criminal Mediation
• Presents open-minded opportunity
• Casual neutral setting
• Personalizing a plan to encourage mutually fair resolution
agreement
Court system
• Follow strict standards
• Opportunity to explain may be denied as it is legal counsel who
puts forward their case
• Burdens the parties financially, emotionally and inconveniently
Contd..

Contd..
CRIMINAL MEDIATION VIS-À-VIS
TRADITIONAL CRIMINAL JUSTICE
SYSTEM
Court system
• Courts and lawyers charge excess fees
• Odds of winning a criminal dispute are slim
• Lawyers and court systems have no mercy
• Decision always enforced on one party. Thus
discontentment - leads to filing of multiple appeals
• Judge presents his/her legal opinion in the verdict
• Most people do not like attending court
• Dictate the resolve by making biased decisions
MEDIATION IN CASES INVOLVING
JUVENILE OFFENDERS
Diversion from prosecution
Opportunity to avoid getting a juvenile or
criminal record
Charges may be dismissed
Case of 1974
Other countries
ADVANTAGES
Cheaper, quick and less adversarial
Entirely voluntary
Flexible, often informal, and adaptable
Confidentiality
No technicalities involved
Neutral environment
Mutual agreement
Criminal Arbitration and lawsuit litigation still
remain as options
Avoids psychological sufferings
Less time consuming
Contd..
ADVANTAGES

Puts a face on deeply felt emotional issues

Reduce burden on court system

Judge (mediator) acts as a facilitator

Enforceable in Court if parties fail to honor the


settlement agreement

Parties may choose to re-enter the formal process

Have a positive effect on the participants


DISADVANTAGES

Unawareness among people


Does not necessarily save the accused person
any money
Unequal bargaining power
Victims should have the right to opt out, even
during the process itself, if the mediation
becomes uncomfortable
Not available for all types of crimes and to all
criminals
INTERNATIONAL
MEDIATION
UNITED STATES OF AMERICA

90% cases
Law Enforcement Assistance Administration
(LEAA)
• Pilot Neighbourhood justice centres
• Increased support from private sector
• Children, Courts and Dispute Resolution

Types of Mediation
• Rights – based
• Interest or needs based

Cont..
UNITED STATES OF AMERICA

Dispute Resolution in Judicial System


• US District court
• Court of Appeals

State courts
• California
• Minnesota
• New Jersey
• Texas

Cont..
UNITED STATES OF AMERICA

Corporate use of ADR


• Companies
• Banks
• Food companies
• Manufacturers of non- prescription drugs
• Franchisors

Multi- door courthouse approach


UNITED KINGDOM

International Mediation
Anglo- Saxon legal base
ADR not litigation or arbitration

Types of Mediation
• Standard Mediation
• Mini- trial/ Executive Tribunal
• Adjudication/ Med- Arb/ Rent a judge

Cont..
UNITED KINGDOM

Advantages
• Parties autonomy
• Flexible and neutral
• Confidential and without prejudice
• Relatively inexpensive
• Not adversarial
• Cultural differences are eased out
• Future relationships are preserved and
continued
Disadvantages
• Serious Business
• Consent of both sides
SRI LANKA

Evolution of Mediation in Sri Lanka


Conciliation Board Act, 1958
Mediation Board Act, 1988
Features of the Act:
• Institutionalising Mediation Board
• Boards are appointed at community level

Cont..
SRI LANKA

Features of the Act:


• Appointment by independent
commission
• Training of mediators
• Informal functioning
• Voluntary settlement
• Major problem – lack of provision to
compel attendances
HONG KONG

Family disputes and Construction Industry


Hong Kong Mediation Council (HKMC)
• Part of Hong Kong International Arbitration
Centre (HKIAC)
• Mediation Interest Groups
• Construction Mediation Interest Group
• Family Mediation Interest Group
• Commercial Mediation Interest Group
• General Mediation Interest Group

Cont..
HONG KONG
Aims of HKMC:
• Development of Mediation
• Collaboration
• Facilitating exchange of information
• Education and training

Function of HKMC:
• Holding seminars and meetings
• Training of mediators
• Publishing a newsletter

Cont..
HONG KONG

Function of HKMC:
• Coordinating the development of
mediation
• Establishing standards of practice for
mediation

Mediation Process:
• Written request
• Notification within 14 days
• Mediation within 42 days
• Appointment of mediator
AUSTRALIA

Voluntary, unbounded and mutually accepted


agreement
Facilitation of mutually agreeable agreements
Intra – family and neighbourhood disputes
Divorce, custody and related disputes
Consumer, landlord- tenant and other economic
disputes
Administrative actions
Community disputes
Multi – party disputes
Public policy creation issues
Cont..
AUSTRALIA
Factors:
• Complexity of matter
• Involvement of more than one plaintiff or
defendant
• Cross claims
• Relationship of parties
• Frequent litigations
• Outcome
• Matter – private and confidential
• Party is a litigant
• Appropriate time
• Desire of mediation
• Number of facets

Cont..
AUSTRALIA

Mediation Act, 1997


• Salient features:
• Registration
• Renewal of Registration
• Cancellation of Registration
THANK YOU

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