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ALLAHABAD HIGH

COURT MEDIATION AND


CONCILIATION CENTRE

INTERNSHIP REPORT

Date: 30/6/18, 2/7/18, 3/7/18, 4/7/18, 5/7/18, 6/7/18,

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.

Firstly, I am thankful to the in charge at AHCMCC for allowing me to intern with


the AHCMCC and introducing mediation to us as a method of Alternative
Dispute Resolution and explaining it in a detailed manner which provided us with
the background information essential to understand it properly.

Secondly, I am grateful to the mediators at the AHCMCC who acquainted me


with the nuances of the process of mediation and the important role played by
them by adhering strictly to the same without slipping easily and readily into that
of an advocate or a judge.

Lastly, I am obliged to all those who helped me make my internship at the


AHCMCC an invaluable learning experience.

Ichchhit Srivastava

B.A.LL.B (Hons.)

Chanakya National Law University


WHAT IS MEDIATION
Mediation is a voluntary, party-centered and structured negotiation process where
a neutral third party assists the parties in amicably resolving their dispute by
using specialized communication and negotiation techniques. In mediation, the
parties retain the right to decide for themselves whether to settle a dispute and the
terms of any settlement. Even though the mediator facilitates their
communications and negotiations, the parties always retain control over the
outcome of the dispute.

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.

1.4 Mediation in essence is an assisted negotiation process. Mediation addresses


both the factual/ legal issues and the underlying causes of a dispute. Thus,
mediation is broadly focused on the facts, law, and underlying interests of the
parties, such as personal, business/commercial, family, social and community
interests. The goal of mediation is to find a mutually acceptable solution that
adequately and legitimately satisfies the needs, desires and interests of the parties.

1.5 Mediation provides an efficient, effective, speedy, convenient and less


expensive process to resolve a dispute with dignity, mutual respect and civility.

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.

1.8 The mediator employs certain specialized communication skills and


negotiation techniques to facilitate a productive interaction between the parties
so that they are able to overcome negotiation impasses and find mutually
acceptable solutions.

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".

1.12 The mediator cannot be called upon to testify in any proceeding or to


disclose to the court as to what transpired during the mediation.

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.

After the British adversarial system of litigation was followed in India,


arbitration was accepted as the legalized method of Alternative Dispute
Resolution (ADR) and is still the most often utilized. Mediation has begun to
become familiar to the Indian Courts only in the past few years.

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.

LESS EXPENSIVE: Mediation is vastly less expensive than a typical lawsuit.


Employing a mediator costs significantly less than employing a lawyer.
Combined with the much quick turnaround, you’ll be paying considerably less in
a short span of time.

LESS FORMAL: The informality of mediation allows the parties to be more


engaged than they would be in a court driven process, with an abundance of rules
and procedures designed to separate the parties. Accordingly, since the mediator
directly deals with the parties, the mediator can focus the attention of the parties
upon their needs and interests rather than on their stated positions.

CONFIDENTIAL: Unlike court cases, which are public, mediation is typically


confidential, which means that there are no records or transcripts and any
evidence produced during mediation cannot be used later or revealed. This alone
can be a great reason to use mediation rather than file a lawsuit.

PRESERVES RELATIONSHIPS: One of the most overlooked benefits of


mediation is that it can help preserve relationships, business and personal, that
would likely be destroyed through years of litigation. Because it is collaborative,
rather than adversarial process, and because mediation isn’t inherently a win/lose
process, important relationships can often be saved.

GREATER FLEXIBILITY AND CONTROL: In mediation, unlike in a


lawsuit, the parties are in control. This means that the parties have a much greater
say in negotiations and greater control over the outcome.

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.

GREATER COMPLIANCE: Finally because mediation produces better


results more quickly and cheaper, compliance with mediated dispute resolutions
is generally higher than with lawsuits.

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.

Mediation is a developing concept in India. Efforts are being made to make


mediation a fully developed tool for resolution of disputes. Training is necessary
for a mediator to learn the fundamentals of mediation. Training is required for a
mediator irrespective of his background, whether he is a judicial officer or
advocate or person belonging to any other category.

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.

DURATION OF TRAINING: In the light of International standards and


indigenous requirements, the duration of training should be a minimum of 40
hours.

NATURE OF TRAINING: Training consists of:-

(i) Theory

(ii) Exercises like role play and demonstration.

(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:

TRUST: This is the most important characteristic. Mediation often involves


private discussions between a party and the mediator. If the party does not trust
the mediator to keep confidences disclosed at such a session, there will exist little
chance of success. Similarly, if the parties do not trust the mediator to evaluate
their positions impartially, the mediator is doomed.

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.

IMPARTIALITY: This characteristic is closely related to trust. A mediator must


be impartial. Some mediators will express their opinion about the position of a
party, or will use their power of persuasion in order to bring the parties to an
agreement. Other mediators will not analyze the merits of a dispute, but will cause
the parties to evaluate on their own where the settlement position lies. In either
case, the parties must be satisfied that the mediator is neutral.

GOOD COMMUNICATION SKILLS: An arbitrator needs only to listen to the


evidence and render a decision based on the knowledge of law and good
judgement. Although these talents are extremely valuable ones, an arbitrator need
not have the ability to communicate to the parties. A good mediator needs good
judgement and good communication skills. It is the mediator’s job to evaluate
and understand the motivation of the parties, foresee potential solutions, and then
bring the parties to an agreement. Without good communication skills, this task
is impossible.
MEDIATION AND CONCILIATION
PROCESS
The functional stages of mediation are:

1. Introduction and opening statement


2. Joint Session
3. Separate Session(s)
4. Closing

At the commencement of the mediation process, the mediator shall ensure


that the parties and their counsels are present.

STAGE 1: INTRODUCTION AND OPENING


STATEMENT
At this stage, the mediator aims at establishing neutrality and creating an
awareness and understanding of the process. He tries to create an environment
that is conducive to constructive negotiations. He introduces himself and declares
that he has no connection with either of the parties and he has no interest in the
dispute. He requests each party to introduce themselves. The opening statement
is an important phase of the mediation process. The mediator explains the
concept, stages, advantages and ground rules of mediation and the role to be
played by him, the advocates and the parties. He highlights that the process is
voluntary, confidential and non-adjudicatory.

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 2: JOINT SESSION


In the joint session, the mediator aims at gathering information and providing
opportunity to the parties to hear the perspectives of the other parties. He tries to
understand the facts and the issues of the case and ensures that each participant
feels heard.
The mediator invites the parties to narrate their case in their own words and
express feelings without interruption. After this the counsel of the respective
parties state the legal issues involved therein. The mediator may ask question to
elicit additional information if he feels that the facts of the case have not been
clearly identified. He then identifies the areas of agreement and disagreement and
the issues to be resolved. Upon completion of this joint session the mediator may
suggest that he meets each of the party with its counsel separately.

STAGE 3: SEPARATE SESSION(S)


In the separate session, the mediator aims at understanding the dispute at a deeper
level. He provides a forum for parties to disclose confidential information which
they do not wish to share with other parties and understands their underlying
interests. He also helps the parties to realistically understand the case. The parties
may confide in him vent personal feelings of pain, anger, hurt, etc. and let him
explore sensitive issues.

After doing so, the mediator makes a judgement whether it is necessary to


challenge or test the conclusions and perceptions of the parties and to open their
minds to different perspectives. He may ask them effective questions to bring out
specific information, facts, positions and their interests and makes them
understand the strength and weaknesses of their cases and identifies alternatives.
In context of mediation, “alternatives” are the best, worst and most likely
outcomes if a dispute is not resolved through negotiation in mediation. The
mediator assists the parties to give up their rigid positions, identify their genuine
interests and needs and shift their focus to problem solving. He then invents
options and evaluates them giving attention to why an idea is not feasible or
agreeable. The mediator carries the option generated by the parties from one side
to the other. The parties negotiate through the mediator until a mutually agreeable
settlement is found. However, if negotiation s fail and settlement cannot be found,
the case is sent back to referral court.

STAGE 4: CLOSING
Once the parties have agreed upon the terms of settlement, the parties reassemble
and the following steps are followed:

1. Mediator orally confirms the terms of settlement.


2. Parties reduce to writing the terms of settlement with the assistance of the
mediator. The agreement is signed by all parties to the litigation and their
respective counsel.

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 Number: ****/2018

Case Type: Matrimonial Dispute

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 Number: ****/2018

Case Type: Matrimonial Dispute

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 Number: ****/2018

Case Type: Matrimonial Dispute

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.

Outcome: The parties arrived at an amicable settlement and the husband


agreed to pay Rs. 50,000 to the wife as an interim measure and Rs. 7,000
monthly to her on the 7th of every month. They have been called at a later
date on which the husband has agreed to bring a bank draft of Rs. 25,000
in the wife’s name.

Analysis: The mediators feel that the husband should support the wife as
the in-laws harass her.

4. Date: 04/07/18

Case Number: ****/2018

Case Type: Matrimonial Dispute

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 Number: ****/2018

Case Type: Cheque Dishonour

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.

Outcome: Mediation was unsuccessful as the parties failed to arrive a


settlement. The respondent wants the land back and is not ready to accept
half of the cheque amount which the applicant is ready to pay.

Analysis: The mediators had a deep sense of understanding and they


generated several options for the respondent choosing any one of which
they could avoid the litigation and still get the current market value of the
land.

6. Date: 06/07/18

Case Number: ****/2018

Case Type: Matrimonial Dispute

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

Mediation is arguably the best form of alternative dispute resolution since no


party stands to lose the case unlike in litigation where while one party wins the
case in its favour the other loses. It presents the opportunity to express differences
and improve relationships and mutual understanding, whether or not an
agreement is reached. The most important feature of Mediation is that it provides
a solution that both parties can live with, instead of a verdict imposed by a court.
Both parties are involved in suggesting possible solutions to the conflict. The
mediator acts as a bridge to iron the wrinkles of differences affecting the parties.

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.

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