HOW TO GET AWAY WITH MEDIATION:

WHY WIN-LOSE WHEN

YOU CAN WIN-WIN
Mediation and Negotiation:

Negotiation in the simplest terms means that two parties conduct a

dialogue to resolve issues in a way that both parties find this
acceptable.
Mediation is a process where when two parties choose a person they
consider to be neutral to adjudicate on the matter at hand, to assist
them with their negotiations.

Negotiation and Mediation are considered to be win-win as through

dialogue, it allows both parties to reach a solution that is mutually
agreeable through discussion, as opposed to court proceedings where
one party would necessarily benefit at the cost of the other. These are
usually beneficial from the perspective of businesses as negotiation or
mediation with a company might be more beneficial in the long run as
opposed to a court case.

Fundamental Aspects of a Mediation:

· Mediation is a non-binding method of dispute resolution that is

controlled fully by the parties. The mediator cannot force either party to
accept its decision. The point is for the parties to reach a settlement
that is acceptable to all parties and the mediator facilitates this.
·   Mediation is a non-binding method of dispute resolution that is
controlled fully by the parties. The mediator cannot force either party
to accept its decision. The point is for the parties to reach a settlement
that is acceptable to all parties and the mediator facilitates this.

· In a mediation, the parties have the freedom to pick an outcome

that suits their past or future personal or business interests. In
mediation, it is felt that when parties refer to their interests, it can
result in a more valuable settlement.

Court Mandated Mediation:

· Section 89 of the Civil Procedure Code (CPC) states that, if in a

situation the court feels that the lengthy and costly process of
litigation can be avoided and a settlement can be arrived at by the
parties, the court can refer the case to mediation.

· The 2018 amendment to the Commercial Court Act makes it

compulsory for a party to go through mediation before opting for
litigation (with some exceptions). Similarly, even motor vehicle accident
cases should go through mediation first hand to ensure swift
compensation to the injured parties.

Singapore Convention on Mediation:

The Singapore Convention on Mediation is an international agreement

which recognizes mediated settlements resulting from mediation. It
was adopted in December 2018 and is formally called the “United
Nations Convention on International Settlement Agreements Resulting
from Mediation (New York, 2018).” It serves to create a legal
framework in order to invoke settlement agreements and enforce it.
The Convention ensures efficient resolution of disputes.

Positions v Interests in Mediation:

Parties to mediation generally display two things i.e. (a) their position
and (b) their interest. 

In order to arrive at a settlement, it is important to take cognizance of

both. Positions are the surface statements and reflect what we want as
an outcome. It is simply what the party wants and rarely provides an
insight into underlying values. On the other hand, interests display
what the party wants and why they want it as well. It generally reveals
one’s underlying reasons, motivations and values behind the claim.

For example: A position is if a party states ‘X wants a refund for the

phone he purchased’, its interest would be, ‘X wants a refund for the
product because it was faulty and the system software was not
working efficiently.’

BATNA:

BATNA refers to the best alternative to a negotiated agreement. It is

the factor that gives a party leverage during negotiations and to
effectively strategise, it is important to assess your priorities, the viable
alternatives that are available to you, how much you’re willing to
compromise, and what are the strengths and weaknesses of your
opponent.
WATNA:

WATNA refers to the worst alternative to a negotiated agreement.

Based on the priorities of a party, this is usually the alternative that
costs parties significantly higher. It is the opposite of the BATNA.

Zone of Possible Agreement:

The Zone of Possible Agreement or ZOPA, is the bargaining range

within which two parties may find common ground for negotiations.
This exists only when there is some overlap between the goals and
objectives with regards to the outcome. The possible options for the
parties in the negotiation process lie within the ZOPA, which reflects
the range of options within which an agreement can be reached. The
BATNA and WATNA of a party would also fall under the ZOPA. 

In case the parties have interests or objectives that don’t overlap, then
they fall under a Negative Bargaining Zone and no agreement can be
reached in such a situation unless the ZOPA is expanded to include
other interests of both parties.

Reservation Value:

 Reservation Value refers to the least favourable alternative that a

party would be willing to accept in a negotiated agreement. The ZOPA
usually lies between the Reservation Values of both parties. 

For example, if a seller is willing to sell a software prototype for a

minimum amount of 25,000 rupees and a buyer is willing to buy it for a
maximum of 30,000 rupees, then the ZOPA is between 25,000 and
30,000 and those are the reservation values for the seller and buyer
respectively.

HOW TO GET AWAY WITH MEDIATION:

INTERACTIVE EXERCISE

Mrs. Joanna Samuels was a very successful author. She had written
many bestsellers in her time and had now retired in her huge mansion
in the city of Udaipur. Joanna was fond of collecting paintings, antique
furniture and showpieces from all across the world, which could be
found in her mansion. She had two children, Jake and Jill, whom she
was very close to. Jake was a restaurateur in Delhi and had a thriving
business, while Jill was an art gallery curator in Mumbai. Both her
children periodically visited their mother and shared good familial
relations.

In December 2019, Joanna Samuels died of natural causes, leaving her

family devastated. In January 2020, the family lawyer revealed that
Joanna has left behind a will for all of her properties. Her will stated
that all her properties would be divided equally between her two
children, Jake and Jill. The properties listed in the will were as follows:

1.       Her Udaipur Mansion, including all of its furniture and artifacts.

2.       Her two cars – a Mercedes and a 1970s Ford Impala.
3.       Royalty to her books.
4.       Bank accounts amounting to 5 million USD.
Her children have amicably decided on the cars and the royalty to the
books. They have also each received 2.5 million USD from the bank
accounts. However, Jake and Jill both want ownership of the house
and have not been able to decide on that front. This has resulted in a
lot of tension within the family. They wanted to avoid litigating the
dispute, as it would take a lot of time and may result in an
unfavourable outcome. However, after months of fighting and
bitterness, they approached the court to litigate the dispute. The Court
has now mandated them to judicial mediation to try and amicably
resolve this dispute. They have both decided to virtually approach the
mediation table at 6:30 PM, on 7th May 2020 over Zoom, owing to the
recent coronavirus outbreak.