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INTERNSHIP REPORT
SUBMITTED BY:
ICHCHHIT SRIVASTAVA
II SEMESTER
B.A.LL.B (Hons.)
CHANAKYA NATIONAL LAW UNIVERSITY
ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to all
those who helped me in completing my internship at the Allahabad High Court
Mediation and Conciliation Centre (AHCMCC) successfully.
Ichchhit Srivastava
B.A.LL.B (Hons.)
1.1 Mediation is voluntary. The parties retain the right to decide for themselves
whether to settle a dispute and the terms of settlement of the dispute. Even if the
court has referred the case for the mediation or if mediation is required under a
contract or a statute, the decision to settle and the terms of settlement always rest
with the parties. This right of self-determination is an essential element of the
mediation process. It results in a settlement created by the parties themselves and
is therefore acceptable to them. The parties have ultimate control over the
outcome of mediation. Any party may withdraw from the mediation proceedings
at any stage before its termination and without assigning any reason.
1.2 Mediation is a party-centred negotiation process. The parties, and not the
neutral mediator are the focal point of the mediation process. Mediation
encourages the active and direct participation of the parties in the resolution of
their dispute. Though the mediator, advocates, and other participants also have
active roles in mediation, the parties play the key role in the mediation process.
They are actively encouraged to explain the factual background of the dispute,
identify issues and underlying interests, generate options for agreement and make
a final decision regarding settlement.
1.3 Though the mediation process is informal, which means that it is not
governed by the rules of evidence and formal rules of procedure it is not an
extemporaneous or casual process . The mediation process itself is structured
and formalized, with clearly identifiable stages. However, there is a degree of
flexibility in following these stages.
1.6 Mediation is conducted by a neutral third party- the mediator. The mediator
remains impartial, independent, detached and objective throughout the mediation
process. In mediation, the mediator assists the parties in resolving their dispute.
The mediator is a guide who helps the parties to find their own solution to the
dispute. The mediator's personal preferences or perceptions do not have any
bearing on the dispute resolution process.
1.7 In Mediation the mediator works together with parties to facilitate the dispute
resolution process and does not adjudicate a dispute by imposing a decision upon
the parties. A mediator's role is both facilitative and evaluative. A mediator
facilitates when he manages the interaction between the parties, encourages and
promotes communication between them and manages interruptions and outbursts
by them and motivates them to arrive at an amicable settlement. A mediator
evaluates when he assists each party to analyze the merits of a claim/defence,
and to assess the possible outcome at trial.
1.9 Mediation is a private process, which is not open to the public. Mediation is
also confidential in nature, which means that statements made during mediation
cannot be disclosed in civil proceedings or elsewhere without the written consent
of all parties. Any statement made or information furnished by either of the
parties, and any document produced or prepared for / during mediation is
inadmissible and non-discoverable in any proceeding. Any concession or
admission made during mediation cannot be used in any proceeding. Further, any
information given by a party to the mediator during mediation process, is not
disclosed to the other party, unless specifically permitted by the first party. No
record of what transpired during mediation is prepared.
1.10 Any settlement reached in a case that is referred for mediation during the
course of litigation is required to be reduced to writing, signed by the concerned
parties and filed in Court for the passing of an appropriate order. A settlement
reached at a pre-litigation stage is a contract, which is binding and enforceable
between the parties.
1.11 In the event of failure to settle the dispute, the report of the mediator does
not mention the reason for the failure. The report will only say "not settled".
1.13 Parties to the mediation proceedings are free to agree for an amicable
settlement, even ignoring their legal entitlement or liabilities.
1.14 Mediation in a particular case, need not be confined to the dispute referred,
but can go beyond and proceed to resolve all other connected or related dispute.
.
HISTORY OF MEDIATION
Mediation is not something new to India. Centuries before the British arrived,
India had utilized a system called the Panchayat system, whereby respected
village elders assisted in resolving community disputes. Such traditional
mediation continues to be utilized even today in villages.
Also, in pre-British India, mediation was popular among businessmen. Impartial
and respected businessmen called Mahajans were requested by business
association members to resolve disputes using an informal procedure, which
combined mediation and arbitration.
It was only after the enactment of The Mediation and Conciliation Act, 1996, the
process of mediation was given formal recognition in India. Ever since, it has
been actively used as the most popular method of Alternative Dispute Resolution.
Mostly, the petty issues, pertaining to matrimonial disputes or the cases of
negotiable instruments are referred by the Hon’ble courts for mediation, if it feels
that there exists a chance of settlement outside the court, in a voluntary, amicable
and confidential environment.
BENEFITS OF MEDIATION
Mediation cases have several advantages over traditional lawsuits, including the
following:
QUICKER: Mediation typically only takes days or weeks (or in very complex
cases, possibly months), whereas a lawsuit takes months or years. When parties
want to get on with their lives, mediation provides a more reasonable timetable
for resolving a dispute.
BETTER RESULTS: For all the reasons above, parties generally report a better
outcome of mediation than they do of a lawsuit. Also, because it is a win-win
situation, and there is no winner or loser, no admission of fault or guilt, and the
settlement is mutually agreed upon, parties are typically more satisfied with
mediation.
For all the above mentioned benefits that the mediation offers in comparison with
the traditional lawsuit, it has been accepted as the most common form of Alternate
Dispute Resolution and one where parties are guaranteed the amicable and
confidential environment where they may lay their grievance freely before the
mediators which they would have otherwise withheld in the court either for want
of losing the lawsuit or for the honour of the family as it is generally seen in
matrimonial and family disputes.
QUALIFICATIONS OF MEDIATORS
A system, even if perfectly structured, may not yield desired result if the persons
operating it do not have requisite operational skills. A person who is selected to
perform a particular job may commit errors if he is not properly trained for it.
Training is indispensable before a person starts performing. Training, seeks to
identify the gaps in the expertise of a person and to fill such gaps to equip him to
perform efficiently. Training should be focused, specialized, result oriented and
structured according to the task. It should improve skills, knowledge and attitude
of a trainee.
It is necessary to follow uniform mediation process and programme all over India.
Uniformity is required also in the matter of duration, nature and curriculum of the
training for mediators.
(i) Theory
(iii) Practical training of mediating a few actual disputes under the guidance of a
trainer or a trained mediator.
Apart from the formal training, let us take a look at the psychological qualities
that make a good mediator:
PATIENCE: Parties frequently come to mediation with set position that takes a
long time to modify. A mediator must have the patience to work with the parties
to bring them to the point where agreement is possible.
KNOWLEDGE: The chances of success are greater if the mediator has some
knowledge or expertise in the area of dispute. Furthermore, this expertise will
enable the mediator to better assist the parties in identifying non-traditional
solutions to their dispute.
Finally the mediator shall confirm that the parties have understood the mediation
process and the ground rules and shall give them an opportunity to get their doubts
clarified.
STAGE 4: CLOSING
Once the parties have agreed upon the terms of settlement, the parties reassemble
and the following steps are followed:
Mediator’s closing comment- The mediator briefly thanks the parties for their
participation and work during the mediation and, where appropriate,
congratulates all parties on reaching a settlement.
If a settlement between the parties could not be reached, the case would be
returned to the referral Court simply reporting non-agreement/ failure to settle.
The report will not assign any reason for such failure or fix responsibility on
any one for the failure. The statements made during the mediation will remain
confidential and should not be conveyed by any party, advocate, or mediator
to the Court.
RULES OF MEDIATION
Mediation is conducted with the purpose of arriving at an acceptable
resolution by settling the dispute in a co-operative manner. Parties
should participate in it in good faith. Also the parties have the right to
decide for themselves whether to settle the dispute and the terms of
settlement of the same.
The mediation is conducted by a neutral third party- the mediator. The
mediator should remain impartial, independent, detached and objective
throughout the process.
The mediator shall respect the confidentiality of information that the
parties request him/her to keep confidential. This is provided for in
Section 75 of the Arbitration and Conciliation Act, 1996.
The parties shall not rely or introduce as evidence in any proceedings
the views, suggestion or admissions expressed or made by a party, the
proposals made by the mediator and indication of acceptance by a party
during the course of the mediation proceedings as provided for in
Section 80 of The Arbitration and Conciliation Act, 1996.
The parties agree not to call the mediator as a witness or as an expert in
any proceedings relating in any way to the dispute, which is the subject
of mediation as provided for in Section 81 of The Arbitration and
Conciliation Act, 1996.
If the parties reach a settlement, they shall sign an agreement to that
effect and this shall be filed into the referral court.
The entire process is a voluntary process and until the parties reach
settlement and sign an agreement to that effect, any party is free to opt
out of the process.
If the parties fail to reach a settlement, the matter shall be referred back
to the referral court.
CASE STUDY
1. Date: 30/06/18
Case Detail: The wife alleges that the husband has contracted a second
marriage which the husband denies labelling it as mere suspicion. The wife
is ready to live in her in-laws’ house but separate from them and also
demands alimony.
Outcome: The parties have been called at a later date after the wife decides
if she can give another chance to the husband to improve his conduct which
has been the cause of suspicion to her.
Analysis: The mediator rightly pointed out that it would be beneficial not
only for the future of the husband and wife but most significantly for that
of the children if she gives the husband a chance to improve.
2. Date: 02/07/18
Case Detail: The husband and wife had been married through an online
marriage portal. The wife complains that her in-laws have been asking for
dowry since then and she was forced to leave her in-laws house after being
tortured during her pregnancy while the husband complains that the wife’s
mother interferes too much in their married life. The wife demands alimony
of Rs. 20 lakhs in a lump sum.
Outcome: The parties have been called at a later date after negotiating on
the amount to be paid by the husband.
Analysis: The mediators understand that it is not possible for the parties to
live together anymore and that the husband should pay maintenance to her
wife.
3. Date: 03/07/18
Case Detail: The wife alleges that the husband has contracted a second
marriage and does not want to keep her with him even when the State
government of which he is an employee, provides him with the
arrangement for the same. The husband denies the allegation. The wife
wants to live with her husband but not with her in-laws’ as they allegedly
assault her.
Analysis: The mediators feel that the husband should support the wife as
the in-laws harass her.
4. Date: 04/07/18
Case Detail: The wife complains that her in-laws scold her for petty reasons
and the husband does not interfere while the husband says that the wife is
not willing to adjust with his mother. The wife is reluctant to live with her
in-laws as she fears for her life.
Outcome: The parties have been called at a later date and have been asked
to bring their parents along.
Analysis: The mediators are of the view that the husband should stand up
for his wife and should clarify if there is misunderstanding between his
mother and his wife.
5. Date: 05/07/18
Case Detail: A cheque of amount Rs. 1, 51,000 had been issued by the
applicant to the respondent and it was dishonoured. The cheque was issued
for a property transaction. The respondent wants the land back for which
the cheque had been issued to them. The applicant is not in a position to
give the land as he no longer belongs to the partnership firm which was
selling the same but is ready to pay 50% of the cheque amount.
6. Date: 06/07/18
Case Detail: The wife alleges that the husband had an extra-marital affair
at the very inception of their marriage. Both of them want mutual divorce.
Outcome: The parties have been called at a later date and the wife has been
asked to bring along the proposal for the amount of maintenance demanded
by her.
Analysis: The mediators realized that it would be better if the parties get
mutually divorced instead of going for litigation.
CONCLUSION
In a lawsuit, no matter whether you have won or lost, it is usually a loss. Litigation
is public. People lose their sense of privacy. It is slow, it is overburdening.
Mediation and other forms of conflict resolution empower people to take control
of their own lives and find creative solutions that work for them. Further one
avoids the economic disadvantage because one spends so much on litigation. The
legal system rarely takes the psychological or emotional factors of either party
into account. Litigation is said to be cold, hard, and uncaring. Both parties are
instructed not to talk to each other and neither side gets to voice their concerns.
Mediation uses the psychological power of empathy to create mutual
understanding between parties to address concerns, promote emotional healing,
and preserve ongoing relationships.