H.P. National Law University, Shimla
H.P. National Law University, Shimla
H.P. National Law University, Shimla
ASSIGNMENT
On mediation – an aspect of ADR
Submitted To:-
Mr. Anirudh Sood
Submitted By:-
Anirudh Sharma
Roll no. – 05
B.A.LL.B. (HONS.) – SEMESTER IX
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TABLE OF CONTENTS
INTRODUCTION 4
OBJECTIVES 5
RESEARCH QUESTION 5
RESEARCH METHODOLOGY 6
CONCLUSION 12
WEBLIOGRAPHY 13
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OBJECTIVE
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.
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INTRODUCTION
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.
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.
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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.
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.
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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
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.
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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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