REFLECTIVE JOURNAL WRITING: REAL LIFE ASPECTS OF ADR & ADR

SKILLS
- VIRUPAKSH KACHWAHA (82LLB17)

Alternative dispute resolution (ADR), typically denotes a wide range of dispute

resolution processes and techniques that act as a means for disagreeing parties to come to an
agreement short of litigation: a collective term for the ways that parties can settle disputes,
with the help of a third party. However, ADR is also increasingly being adopted as a tool to
help settle disputes alongside the court system itself.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has
gained widespread acceptance among both the general public and the legal profession in
recent years. In fact, some courts now require some parties to resort to ADR of some type,
usually mediation, before permitting the parties' cases to be tried (indeed the European
Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this
means that attendance is compulsory, not that settlement must be reached through mediation).
Additionally, parties to merger and acquisition transactions are increasingly turning to ADR
to resolve post-acquisition disputes.

The rising popularity of ADR can be explained by the increasing caseload of traditional
courts, the perception that ADR imposes fewer costs than litigation, a preference for
confidentiality, and the desire of some parties to have greater control over the selection of the
individual or individuals who will decide their dispute.  However, it is not clear as to whether
litigants can properly identify and then use the ADR programmes available to them, thereby
potentially limiting their effectiveness.

In this paper I shall be using two of the most common ADR practices, namely negotiation
and mediation in order to express their utility in real life situations outside the formal or
informal legal system. Additionally, I would try to discuss the effectiveness of these
techniques in real life situations from personal as well as third party experiences.
NEGOTIATION: APPLICATION IN EVERYDAY LIFE:

Conflict has never benefitted anyone, instead it adds to one’s tensions and anxiety. It is better
to discuss things and reach to an alternative benefitting all. Issues must not be dragged
unnecessarily and efforts must be made to come to a conclusion involving the interests of all.
There is no point in being adamant and rigid. One must strive hard to negotiate with each
other and consider the needs, interests and expectations of all. The variety of situations,
occurring in everyday life, where one can benefit from the application of negotiation
techniques are discussed below:

1. Negotiation in minor domestic issues:

Negotiation is essential everywhere. It is not only the corporates where negotiation is

important but also in our daily life. We all must try our level best to adopt negotiation skills
to avoid misunderstandings and lead a peaceful and a stress free life. In order to understand
the role of negotiation techniques in a domestic setting we can use the following example.

Anshul’s mother baked one of his favourite cakes but he had to share it with his brother
Agam as well.
Situation 1
Anshul negotiated with Agam that if Agam gives him the larger share, he would probably
finish all his maths assignments to which Agam gladly agreed as now he could enjoy his
weekend with his friends. It was also a win-win situation for Anshul as now he could relish
his favourite cake.
Situation 2
Anshul fought terribly with Agam over the cake and neither Anshul nor Agam could enjoy
the cake. They spoiled the evening and got a good scolding from their parents as well.

It is thus logical to conclude that Situation 1 is any day a better option as both Anshul as well
as Agam could get whatever they wanted. The negotiation benefitted both of them and
reduced the chances of disputes between the two brothers.
 2. Negotiation for effective buying:

Negotiation also helps in effective buying. Every individual needs to save money for the
rainy days. One must try his level best to negotiate with the second party to reduce the costs
to the best extent possible. If you do negotiate well you will end up saving money for better
usages.

 An example for this could be negotiating when buying groceries, where instead of making
two trips a week to the grocery store, you could reduce it to one and buy more number of
things. This could put one in a better position for demanding discounts as we are spending
more money in a single transaction and helping the grocery store owner to sell his stock
quicker. It would also help us reduce our opportunity and transactional cost(transportation
etc), resulting in a much better outcome for all and especially for us.

3. Negotiation in Law School:

There are broadly two domains wherein negotiation techniques have helped me transverse the
rocky terrain of law school. First is with respect to actual instances wherein the practical
usage of theoretical negotiation concepts has yielded immediate results and Second is with
respect to development of broad skills and traits, which though per se have not brought any
immediate outcome but have altered my approach to conflicts and problem-solving. These
have been discussed below in greater detail.

Talking about instances in law school wherein the usage of ADR techniques has yielded an
immediate and desired outcome, I would like to discuss two instances. The first occurred in
my second year wherein I was participating in the Philip C. Jessup International Law Moot
Court Competition. The background was such that both my partner (Speaker 1) and I
(Speaker 2) wanted more time than how we had initially agreed to divide. I wanted more time
in order to substantiate a point (let’s say Point X), which would then act as a foundation for
my main argument, this was requiring me an additional four minutes. My partner wanted
more time as he was of the opinion that the existing division of time between me and him
(60:40 in my favor) was unfair and the same should be equal. At this juncture I tried to apply
‘interest-based bargaining’ wherein I put my position (needing 4 extra minutes) on the
backend my thoughts and started focusing on how we can serve both our interests. In the end
we realized that substantiating Point X could be done by my partner in one of his sub-
arguments and would only require an additional 2 minutes for him in contrast to 4 minutes for
me. This would give him an additional 2 minutes he wanted, it would also substantiate Point
X for me so I could directly proceed with my main argument and additionally provide us with
an additional 2 minutes for rebuttals (which later proved to be an important factor in the real
competition).

The second instance occurred in the beginning of my third year, wherein a few of my fellow
classmates and I had formed a study group to make notes and provide crash courses to each
other in individual subjects, to reduce the extremely heavy workload (distinctive feature of
third year). The conflict arose when none of my fellow classmates wanted to take the
responsibility of making Jurisprudence notes (owing to the fact that generally 2 lectures were
combined for jurisprudence, leading to a lot of exhaustion if one is drafting good quality
notes). During this conversation I noticed the body language of one of my classmates, which
appeared to be not so reluctant to the prospect. Realising that non-verbal communication is an
important aspect of negotiation and reading such communication a negotiation skill, I
approached this classmate and asked for his opinion. He replied that his home is located
nearby and he would like to not attend the college on Fridays and take a long weekend off.
This would fit in perfectly for the person who was supposed to take Jurisprudence notes as
generally no Jurisprudence classes took place on Fridays. However, seeing the reluctance of
other students, he had decided not to speak up. Post our conversation he took on the
responsibility for the Jurisprudence notes and at the end of the third year told me that was
extremely satisfied with his decision. We were also satisfied with the quality of his notes. I
would attribute the success of this story to the fact that I applied two negotiation principles
i.e. observing body language, which acts as non-verbal communication and the principle of
making no assumptions.

Talking about the second domain wherein negotiation techniques have helped instill in me
broad skills and traits, which though per se have not brought any immediate outcome but
have altered my approach to conflicts and problem-solving. I would simply like to enumerate
these skills as they self-explanatory for the most part. These include active listening,
background study, proper and compassionate communication, observation of body language,
avoiding assumptions etc. Thus, it can be observed that usage of negotiation techniques must
not be limited to the negotiation tables but also be incorporated in everyday instances for a
better outcome for all.
MEDIATION: APPLICATION IN EVERYDAY LIFE:

Mediation is an increasingly popular way of resolving disputes without the need to go to

court or to a tribunal. It presents an alternative to more lengthy, costly, and adversarial
approaches to dispute resolution. People involved in mediation learn and develop the skills
required to resolve disputes which may otherwise lead to litigation. These skills can be
adapted and used to deal with the dispute and conflict which arises during the course of
everyday life. In doing so, such conflict can be dealt with much more easily and effectively.

An important factor which can sometimes overshadow the arguments involved in mediation
is the attitudes of the parties and there being strong (usually negative) feelings between them.
The likelihood of an acceptable solution being achieved between two parties when there is
such ill feeling between them is very remote. Those with experience of litigation and
mediation know how the personal element in a dispute can be a stumbling block to, and in
some cases the only obstacle to reaching agreement. Two everyday instances of usage of
mediation have been discussed below.

Mediation akin to negotiation is also applicable in everyday life to a great extent. From our
very childhood, we can observe mothers in a traditional set up acting as mediators between
the children and their husbands. Whether the question is regarding the amount of pocket
money the child should receive, how many hours he/she can stay at a friend’s house for, will
he/she be allowed to go for a ‘friends only’ trip or not etc. In all these situations the mothers
play the role of a mediator and help both the parties locate a middle ground. In my experience
their success rate is much higher than that of professionally trained mediators.

Mediation is suitable for situations wherein it is desirable for the parties to retain their
existing relationships, such as in the case of friends-cum-roommates. However due to the
persistent 24*7 interactions between them, conflicts are bound to arise. In such situations
there is a sudden spark of ill-feeling between the two parties, which is the sole obstacle in
reaching a mutually desirable outcome despite the issue in question being petty in most
instances. In such situations a third person(friend-cum-roommate) who is well aware of the
conflict and its particulars and also of the mutual interests between the parties (such as
sharing of accessories like shoes or watches, joint ownership of items like refrigerators and
music speakers etc.) can help the parties realign their interests and create a mutually
satisfactory outcome. This can be observed in the Prof. Ghanshyam Boys Hostel on a regular
basis.

Therefore, as a conclusion to this paper, I would like to reiterate that ADR techniques must so
be incorporated in our everyday lives and be thought of as something only belonging to
corporate tables.