MEDIATION- A FORM OF ADR

A PROJECT ON

MEDIATION- A FORM OF
ADR.

SUBMITTD TO MR. MANOJ KUMAR

(FACULTY OF ADR)

SUBMITTED BY: NAINCY TOPPO

SECTION B (ECONOMICS MAJOR)
ROLL NO:75
SEMESTER-VI
B.A.LL.B(HONS.)
SUBMITTED ON:18th FEB, 2015

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ACKNOWLEDGEMENT
I feel highly elated to work on the topic ‘MEDIATION” because it has significant
importance in the present scenario of present generation.

The practical realization of this project has obligated the assistance of many persons. I
express my deepest regard and gratitude to Mr. MANOJ KUMAR our Faculty of ADR. His
consistent supervision, constant inspiration and invaluable guidance have been of immense
help in understanding and carrying out the nuances of the project report. I would like to thank
him generously for giving me the opportunity to delve into this topic. I believe this will be of
greater importance in the near future.

I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.

I would be grateful to receive comments and suggestions to further improve this project
report.

NAINCY TOPPO

Semester –IV

Roll No:75

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TABLE OF CONTENTS

INTRODUCTION 4

OBJECTIVES 5

RESEARCH QUESTION 5

RESEARCH METHODOLOGY 6

FUTURE ASPECTATIONS OF STATE 7-8

DISADVANTAGES OF STATE 9-11

CONCLUSION 12

WEBLIOGRAPHY 13

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OBJECTIVE

 To know the relationship of mediation and ADR.

 To know the legal boundations of mediation in ADR

RESEARCH METHEDOLOGY

This research project is descriptive and analytical in nature. Secondary and

Electronic resources have been largely used to gather information and data
about the topic.

Books and other reference as guided by Faculty of Corporate Law have been
primarily helpful in giving this project a firm structure.

Websites, dictionaries and articles have also been referred.

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INTRODUCTION

Alternative Dispute Resolution is a collection of processes used to resolve conflict or disputes

informally and confidentially. ADR provides alternatives to traditional processes, such as
grievances and complaints, but does not displace them.
ADR encourages creativity and practical solutions and can be faster, cheaper, less formal and
less confrontational than traditional processes.The ADR process can improve
communications, provide long-lasting solutions, help avoid publicity and give parties control
of the outcome.
Mediation is a nonbinding process in which parties to a dispute work with an impartial third
party ("neutral" or "mediator") who helps them to reach a settlement. The mediator does not
decide the case but rather facilitates a consensual agreement among the parties to the
dispute. Except under some court-mandated programs, mediation is a consensual effort: both
parties must agree to it. It often is employed after it becomes apparent that direct negotiation
between adversaries will not resolve the dispute efficiently.

Perhaps the most attractive aspect of mediation is that it can be tailored to suit the needs of
each individual dispute. The mediator can play a low-key and conciliatory role, or take on a
more proactive role by making suggestions and probing for convergent interests. The parties
can also decide to convert the mediation into an arbitration proceeding, granting the mediator
the power to issue a binding decision.
Arbitration is a process in which a dispute is referred to one or more impartial persons for a
final, binding decision. The parties to this "quasi-litigation" procedure may contractually
limit the issues subject to the arbitration as well as the procedural aspects of the process.
Mediation-Arbitration ("med-arb") is a combination process in which an impartial person is
first employed as a mediator, then, if the mediation fails, as an arbitrator. Other combinations
of binding and nonbinding processes are possible as well.

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We all have conflicts in our lives. Filing a law suit may be the appropriate way to handle
some disputes, but trials can be expensive and stressful. There are a number of different
ways you can resolve your dispute without going to trial. Alternative dispute resolution, or
“ADR” refers to a variety of processes for resolving disputes without going to trial. ADR
includes:

 Mediation

 Settlement conferences

 Community conferencing

You can take advantage of some of these services even before you file a court case. Once you
have filed a court case, the court may suggest or require that you participate in one or more of
these types of ADR programs. There are private mediators in Maryland that you can hire.
There is also a network of Community Mediation Centers that train local community
members to provide free or low-cost mediation services. The Maryland courts also operate
their own mediation and ADR programs. The court may refer you to mediation or another
ADR program once you have filed a court action.

What is mediation?

Mediation is a process in which a trained impartial person, called a mediator, helps you and
the other person communicate, understand each other, and reach agreement if possible.
Mediation is voluntary, confidential, and lets you and the other person decide decide what
works best for both of you.

MEDIATION IS VOLUNTARY
Mediation is a voluntary process. In all mediations, if the participants cannot come up with a
solution that meets their needs, they cannot be forced to agree to anything. Agreements
reached in mediation are only final when all of the participants are satisfied and willing to
sign their names to the agreement. While a court may order parties to attend mediation, it
cannot order them to reach an agreement. If the parties in court-ordered mediation do not
reach an agreement, they can still proceed with their case in court. Mediators may not be
called to testify about any mediation communications, and mediators are expected to keep
information confidential.

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MEDIATION IS CONFIDENTIAL
Mediation is a confidential process, which means that anything discussed in mediation cannot
be used in court. There are a few exceptions when it comes to child abuse, imminent threats
of harm to a person, or allegations of duress or fraud. But any discussions, and if all parties
choose, even some agreements reached can be kept confidential.

MEDIATION LETS YOU DECIDE

Mediation revolves around the principle of self-determination. That means that the
participants with the dispute decide what solutions will work for them. The mediator does not
act as a judge. The mediator remains impartial throughout the process and will not give legal
advice or make decisions about the dispute.

WHAT IS THE COST OF MEDIATION?

The cost of mediation varies depending on the program. In some court, government, and
community programs, the service will be free or based on a sliding fee scale. In other courts
and in private mediation, the cost likely will be on an hourly basis and is typically divided by
the participants.

WHEN IS MEDIATION NOT APPROPRIATE?

Certain disputes need to be heard by a court. If you are trying to create or change a law, to
have a public airing of a complaint, address serious criminal matters, to set precedent or to
challenge a precedent established by a prior lawsuit, mediation is not appropriate.

Many people in the legal and mediation fields believe cases involving domestic violence
issues are not appropriate for mediation. The mediation process presumes that, with the help
of the mediator, the participants can negotiate without fear of retaliation, which might not be
possible in relationships that have involved a history of domestic violence. As such, in the
Maryland Rules of Procedure, Rule 9-205(b)(2) states that the court shall not order mediation
in cases where physical or sexual abuse has been alleged in good faith.

What is a Settlement Conference?

At a settlement conference the people in a dispute in court and/or their attorneys appear
before an impartial person in an attempt to resolve the dispute or issues in the dispute by
agreement or by means other than trial. A settlement conference may include neutral case
evaluation and neutral fact-finding, and the impartial person may recommend the terms of an
agreement. The settlement conference facilitator is usually a judge or experienced lawyer
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who can give informed opinions about how the court might decide the case, discuss how
similar cases have been settled, provide advice, and suggest agreements.

What is Community Conferencing?

In Community Conferencing, all the people affected by a behavior or a conflict that has
caused them harm are convened for a meeting to have a conversation about that situation. The
goal of the conference is to create an agreement that will repair the harm. During the
conference, all participants have an opportunity to discuss what happened, how they were
personally affected, and how the harm can best be repaired. This process may be used in
conflicts involving large numbers of people and is often used as an alternative to juvenile
court.

Differing Models of Mediation

The Commission acknowledges that partly as a result of the increasing uptake of mediation
and partly as a result of working in a highly competitive culture, mediators are dividing into
distinct areas of practice and are promoting different styles and approaches to resolving
disputes.Furthermore, those training as mediators are coming from varied professional
backgrounds with differing areas of subject matter knowledge. The Law Institute of Victoria
has suggested that as a result of this increasing diversity within the mediation profession:
people who practice a particular sort of mediation or ADR are often of the view that the way
it is practised in their segment of the market is the only correct way; practitioners in a
particular segment of the market are often unaware of what their colleagues in the same
market segment are doing; practitioners in a particular segment of the market are often
unaware of what practitioners in other market segments are doing; and as a result, there is
significant confusion and discrepancy in the various market places and between
practitioners.In its Consultation Paper, the Commission noted that several models of
mediation have developed including: facilitative, evaluative, transformative, and therapeutic
mediation.Cloke sets out the various approaches of these models in the context of a family
dispute as follows: an evaluative approach might focus on reaching agreements regarding the
issues, such as how money is being spent; a facilitative approach might explore their
relationships and emotional responses to each other; a transformative approach might
encourage recognition and empowerment.

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“Every fight is on some level a fight between differing

‘angles of vision’ illuminating the same truth.”
Mahatma Gandhi

Mediation and other forms of dispute resolution

Mediation is just one form of dispute resolution. Before deciding on mediation it’s important
to understand all of the options. This section explores the various forms of Alternative
Dispute Resolution (ADR).

Negotiation
Settling disputes by direct negotiation of the parties is the commonest way that disputes are
settled. It is only when direct negotiation breaks down that some other means of settlement is
required. Negotiation is the starting point for any form of dispute resolution

Arbitration
The core process of arbitration is the process of investigation and judgment by a third party.
This has mimicked lawyer litigation habits of formalism and an adversarial approach. Its core
purpose is resolution by external investigation and judgment.

Conciliation
This is a loosely defined word. More often it uses a process at which the conciliator produces
a recommendation as to how the dispute should be settled if it not possible for the parties to
reach an agreement. It is well known in employment law circles due to the involvement of
ACAS in the assistance of resolution of disputes. Conciliation is often the first stage in the
arbitration process.

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CONCLUSION

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a

way of resolving disputes between two or more parties with concrete effects.
Typically, a third party, the mediator, assists the parties to negotiate a
settlement. Disputants may mediate disputes in a variety of domains, such as
commercial, legal, diplomatic, workplace, community and family matters.

The term "mediation" broadly refers to any instance in which a third party helps
others reach agreement. More specifically, mediation has a structure, timetable
and dynamics that "ordinary" negotiation lacks. The process is private and
confidential, possibly enforced by law. Participation is typically voluntary. The
mediator acts as a neutral third party and facilitates rather than directs the
process.

Mediators use various techniques to open, or

improve, dialogue and empathy between disputants, aiming to help the parties
reach an agreement. Much depends on the mediator's skill and training. As the
practice gained popularity, training programs, certifications and licensing
followed, producing trained, professional mediators committed to the discipline .

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WEBLIOGRAPHY
 www.alhea.com/Mediation+Form
 http://adr.findlaw.com/
 http://www.in.gov/judiciary/rules/adr/
 http://www.in.gov/judiciary/selfservice/2360.htm
 http://law.lexisnexis.com/infopro/zimmermans

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