MEDIATION AND NEGOTIATION IN INDIA: A COMPREHENSIVE STUDY BY - BILAL KHAN
Mediation and negotiation in India: a comprehensive
study
AUTHORED BY
- BILAL KHAN
LLM
(Criminology)
Galgotias
University, Greater Noida
ABSTRACT:
Providing cheap and quick justice to
the backward and poorer people engaging in litigation is an ethical
responsibility and the easiest way is to mediate it all easily. By which
disputes can be resolved outside the court. Reconciliatory disputes can be
settled by mutual consent by negotiation and mediation. Both parties also
escape the litigation in court. The disputes are quickly concluded by
negotiation and mediation. And there is save time and expenditure. It is relieved
to go around the court. It was extremely simple and convenient. And it helps to
maintain social harmony.
Keywords: Consent, Disputes, Mediation, Negotiation, Settlement.
Discourage litigation. Persuade your neighbors to compromise whenever you
can. Point out to them how the nominal winner is often a real loser — in fees,
expenses, and waste of time. As a peacemaker, the lawyer has a superior
opportunity of being a good man. There will still be business enough.
-Abraham Lincoln
1.
INTRODUCTION
The
practice of mediation in India has its historical roots in the ancient periods
when the peaceful resolution of conflicts was highly valued in indigenous
practices and cultural traditions. These early mediation techniques were
ingrained in Indian society's social structure and were crucial to preserving
peace and justice. Similarly, mediation existed in many forms throughout
ancient India. The foundation for peacefully resolving issues was created by
the key Buddhist and Hindu concepts of compassion and non-violence. The idea of
"Ahimsa," which means non-violence, pushed people to look for peace
via communication, comprehension, and reconciliation. Texts and scriptures from
ancient India, including the Vedas, Upanishads, epics like the Mahabharata and
Ramayana, as well as the Arthashastra and Manusmriti, offered mediation advice
and illustrated cases in which mediation was used to resolve conflicts.[1]
They expressed mediation as a good and honorable deed that encouraged the
restoration of justice and harmony.
How
can we resolve disputes between two or more people or between two or more
parties through mediation and negotiation easily and quickly? In the process of
mediation, any one person or a group of persons works as a mediator between the
parties who are involved in the disputes.[2]
In the first mediator contact with one party and try to know about the disputes
and the one’s condition with the other party. Afterward, the mediator contacts
the second party and tries to his intention about the other party. After that
mediator tries to settle between the parties with the help of the negotiation
to resolve the disputes outside the courtroom. In the ancient period mediation,
negotiation, and arbitration were other or optional ways of the resolution of
disputes between the disputants. This way resolution of the disputes is
accepted all over the world not only in India. Thereby, settlement of disputes
with the help of any way except regular legal system like, mediation,
negotiation, etc. so we can say that these are alternative means of settlement
of disputes. All the same, in the eye of the law of arbitration the settlement
through the process of mediation and negotiation is assumed as the alternative
means.[3]
India is a country of villages and rural people are resolved to settle disputes
by the heads of rural intellectuals and villages.[4]
Mediation is essentially
a dialogue that involves a third party that is knowledgeable in effective
negotiation processes and can help people coordinate their activities in the
struggle and become more effective in their bargaining. Arbitration is an
extension of the negotiation process in which it is going to expands the
bargaining in a new format and uses the arbitrator, which contributes to the
new variables and mobility in contact with the controversial. Nowadays the
exercise of mediation and negotiation has also become necessary because at this
time the number of cases is increasing very fast. And over time, can’t resolve
the disputes. at all
this, it seems that in the future, there will be a distraught problem in front
of the country. If this continues, then in the future it will be very difficult
to resolve this problem. if we look towards the judiciary, we discover that the
court is overburdened with cases that are still pending. That’s why the need
for mediation and negotiation has increased. The Arbitration and Conciliation
Act, of 1996 also helped to develop ADR (Alternative Disputes Resolution)
system.
Now the question is why
go for these alternative means? There is
a lot of strain on India's court system. More than 4.7 crore cases are pending
in courts at all levels of the judiciary as of May 2022. Out of them, 12
percent are in High Courts and 87.4% are in subordinate courts; over 1,82,000
of the cases have been pending for more than 30 years[5].
And in future this figure there is the possibility of further increase. One of
the main reasons for this is also that every year a new - new law by the
government. In the future use of these rules and the possibility of misuse
increases. The number of cases is rising every day while the number of judicial
corporations is declining. So, the number of judges is less in the judicial
corporation of the country. This reduction will down the country’s law and
order. In the last two decades, crime has increased
very fast, so in today's time, this burden may be reduced by using mediation in
some of the cases.
Section 89 of the Code (CPC Amendment Act, 1999) of Civil
Procedure:[6]
as per this section we can settle disputes with the help of the other procedure
other than inside the courtroom.[7]
(1) Where
in the Court it appears that there exist elements of a settlement that can be
acceptable to the disputants, the Court prepared the settlement conditions and
gave their comments to the parties and after observing the parties they gave
them to the Court may reformulate the terms of a possible settlement and refer
the same for –
a)
Firstly, the court refers to the Arbitration
b)
Secondly refer to the conciliation
c)
This sub-section gives the direction to go to
Lok Adalat for the settlement of disputes
d)
It gave the direction for the process of
mediation
(2) Where
a dispute has been referred –
a)
Whenever any disputes have been referred for
arbitration or conciliation, then in this matter the provisions of the
Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for
arbitration or conciliation were referred to the settlement under the
provisions of that Act;
b)
Where a dispute has referred to Lok Adalat, the
Court will refer to the Lok Adalat as per the provision of sub-section (1) of
section 20 of the Legal Services Authority Act, and all the Act shall apply
given disputes because referred to the Lok Adalat[8].
c)
For the
judicial disposal, the court will inform a suitable institution or person and
such institution or person will be treated as a Lok Adalat, and all the
provisions of the Legal Services Authority Act, 1987 will apply. As the dispute
was referred to Lok Adalat under the provisions of that Act; (d) For
arbitration, the court will affect an agreement between the parties and will
follow the prescribed procedure.
d)
D) For arbitration, the court will affect an
agreement between the parties and will follow the prescribed procedure.[9]
Hindu Marriage Act 1955 section 23 (2): Before moving forward for any relief
under this Act, in every case in every case, the court shall have the duty of
every case so that every effort can be made to do so in every case with the
nature and circumstances of the matter:[10]
Section 23-A. Relief for
respondent in divorce and other proceedings.- In any proceeding to rebuild divorce or judicial
separation or marital rights, the defendant cannot resist the relief demanded
based on adultery, cruelty, or dependence of the petitioner, But on this
ground, they also make a counter-claim for any relief under this Act; And if
the petitioner is proved to be adultery, cruelty or immersion, then the court
can give a relief to the defendant under this Act If he pleads for the petition
to present that petition[11]
Now let us understand where the
alternative means could be applied. Some of these are explained here, in family
matters or matrimonial disputes, the Supreme Court of India directed the Family
Court and the Criminal Court to give reference to the parties to the
arbitration centers to settle the disputes through the process of mediation and
said that any dispute before the judicial proceedings was settled through
negotiation should try. The Supreme Court of India has directed the family
courts to make every effort to resolve disputes related to family disputes or
marital disputes given section 9 of the Family Court Act.[12] This would be very important when the
disputes are related to maintenance, child custody, etc.[13]
In this situation, disputes should be settled through the process of mediation
and both parties should be referred to the mediation center by the court. The
Supreme Court also directed the criminal courts that when a complainant comes
to the court and the complaints are under section 498A of the IPC, then the
parties show the mediation center before the hearing of the complaints. The
court also said that this reference should only be done in cases where the
parties are ready to resolve disputes or facts. Which offense falls under
section 498A of the IPC[14],
where the agreement can be made, there are non-compoundable offenses, so the
court has issued this directive. The Supreme Court also said that to encourage
the process of arbitration, all arbitration centers ask for pre-litigation /
desk to settle disputes in the pre-litigation phase and to make them very
publicized.
2. PROCESS OF MEDIATION
The present Indian legal system is
borrowed from the British. In ancient times in India ‘Nyay Panchayat’ was very
important and was the basic means for the settlement of disputes. In the period
of the king’s settlement of disputes, was done through mediation, negotiation,
and by ‘Panch’ which was fast and cheap. However, such settlement of disputes
was to be done by senior citizens who were fair and honest. This type of
dispute settlement system almost ended after the arrival of the British in
India. This method of settlement of disputes went down day by day. The method
of the British to resolve the disputes was given more importance, and with
this, the judiciary began to be used to resolve the disputes, but this dispute
redressal system was also supported by the British judiciary system. The
provision was given in the CPC, 1908 for the Arbitration. Such alternative
means of disputes were recognized by the Presidency Court i.e., Calcutta, Bombay, and Madras.
Mediation is an informal process for
settlement of the disputes between the disputants. In the process of mediation
firstly appoint the mediator with the agreement of both parties.[15]
The role of the mediator is to direct the parties for the resolution of the disputes
through joint sessions and different caucuses (members) with parties, the
mediator helps both sides to define the issues clearly; and understand the
position of both parties.[16]
Most often mediation starts with joint sessions and different caucuses to set
rules and order papers. The joint session also helps to define the figure and
the expression of both parties. Generally, more than parties choose the
different caucuses (separate members) in the procedure of mediation. The
mediator will take the message from one party to the second party i.e. offer,
counteroffer, proposal, acceptance, etc. It helps to create good communication
to resolve the disputes between the parties. Because mediation is not a formal
process to resolve disputes between the parties, mediators have no right to
force the parties for the resolution of the disputes. They can only talk with
the parties. And they can say that about loss/harm outcome from the disputes if
they are not to resolve themselves. Mediation is not binding until parties
agree on a resolution.
2.1 The mediator will routinely provide each side with an opportunity to
present their case and concerns after the mediation has begun. Usually, the
person who made the mediation request will speak first. While it does not need
to discuss specifics, it does entail allowing the parties to brainstorm
and provide additional details regarding each other's emotional states.
2.2 The mediator will ask the question to the parties about his will.
2.3 Before the mediation process begins, the mediator can assist the parties
in determining the meeting's agenda and who should attend or not. Both parties
may have a worker, coworker, family member, and lawyer on their side, and they
may even employ a judge and anyone with 10 years of mediation expertise.
2.4 Any type of forum can comprehend mediation. However, in my opinion,
disputes are simpler to resolve if both sides have the same goal at the same
time, which is to resolve the more intricate disputes.
2.5 At its core, mediation is the communication process that a third party
initiates to settle disagreements. Only individuals who wish to set up a secure
communication channel must do this. To establish a communication channel for
the settlement of disputes, the parties may initiate communication directly
with one another and with the assistance of mediators.
2.6 Using mediation to settle disputes has several benefits. First of all,
it's a quick, flexible, and affordable method of resolving conflicts. This
procedure is only carried out between the parties entangled in the
disagreements, not between other individuals.
2.7 In this process both parties must agree on the all points that are given
to the mediators. In this case, even a settlement for mediation has to be
applied in the past and for this settlement, both parties must agree with his
consent which is given in section 13 of the Indian Contract Act 1872; Two or
more parties agree upon the same thing in the same sense and they give their
consent on agreement. Finally, we can
say that the consent of both parties is on same thing. And the consent should
be fully free from pressure, undue influence, cheating, disfiguration, and
fault. If consent is made by anyone the above-discussed fact in that condition,
it is said that this happens because consent is not granted by free will, but
for the existence of such pressure, undue influence, cheating,
misrepresentation, and mistake.
2.8 This process is flexible but needs some preparation. And the possibility
of some week to hearing the mediation proceeding. The boundary of the
flexibility of this process has been declared by both parties before the start
of the mediation (or given by the mediators to both parties at the time of the
first agreement). The limit of flexibility can be increased if it is needed in
the process of mediation only in the way of settlement of disputes not to
pressure any party from them.
2.9 This flexibility also affects on speed of the settlement of disputes.
That’s why flexibility should be with things that can be fixed for the
settlement of disputes.
2.10 Both parties should be completely free to tell the cause (reason) of the
disputes and the possible solution for it. When both parties openly talk and
resolve the disputes, then the disputes can easily be suggested by mediation.
2.11 These procedures are made at the consent of the parties; and can be
broken at any time with the help of the mediator, but before suggestion.
3. NEGOTIATION
AND ITS PROCESS
Not only do businesses need to be
skilled negotiators. Both at business and at home, negotiation training is
useful in a range of real-world scenarios. Through negotiation, two or more
individuals (or organizations) can resolve issues or reach a better solution.
Reaching a mutually agreeable agreement through negotiation helps to prevent
disputes.[17]
In General, Negotiation means
transacting their views and expressing their ideas or any other issue which are
the reason for disputes between the parties. The process of negotiation can be
managed by the participation of disputants or their representatives while
protecting the relationship between the parties. Negotiation is a solution to
disagreement by giving and concerning a specific relationship. Negotiation is a
process of trying to make an agreement or compromise by discussion between the
parties by the parties and by representatives of the parties.[18]
This process is not a regular procedure in which the full control of the result
is in the hands of the parties, who can choose the process by which they will
make a deal. Because most of the parties have set limits on the procedure of
negotiation, it gives for a huge number of presumable settlements for the
potentiality of maximum gain for both parties. Negotiation is fully based on
commercial process or dispute resolution and also the part of its. Negotiation
is the way through which people settle the disputes. It is a process that helps
make a compromise or an agreement easily by avoiding arguments and disputes. If
any misunderstanding or disagreement between the parties then they can
communicate together directly or with the help of their representatives to
achieve the best possible result from the discussion. I would recommend that
conversation is a resource for learning ourselves, interacting with new people,
and knowing about others' expectation and values of our own, by allowing to
others for the talking with us which affect the effective communication between
the parties.[19] Within
the process of ADR (Alternative Dispute Resolution) negotiation is a form of
communication and behind it, the objective is to resolve the disputes between
the parties. From the above discussion, we can observe some main points of
negotiation;
3.1 Negotiation
is a communication process.
3.2 Voluntary
3.3 Control
over the procedure and outcome of the result
3.4 Wide range
of possible solutions and maximize joint gain.
3.5 Quick,
inexpensive, less complicated.
3.1 Negotiation is a communication process: The procedure of negotiation is fully
based on the communication process. In this procedure both the parties can be
directly communicate together or by the help of their representative in favor
of the resolution of disputes.
3.2 Voluntary: In
this procedure both the parties are fully free to choose this process or
communicate together for the resolution of the disputes. In this process, any
person cannot be forced to any party for choosing this procedure to resolve the
disputes. This fully depends on the parties if they do not want to choose this
process for the resolution of disputes then they are free.
3.3 Control over the procedure and outcome of the result: Those parties who are involved in the
disputes have control over the procedure of negotiation and also control over
the outcome of the result. They can get the result they want if both parties
agree on the result they want.
3.4 Wide range of possible solutions and maximize joint gain: In this procedure is a very wide
chance of the resolution of the disputes cheaply and quickly. Because when the
parties talk about the resolution of disputes together directly or indirectly.
When the disputes are settled quickly then both parties benefit from the
resolution of the disputes. They survive to the extent of the lawsuits because
disputes are settled before the procedure of the litigation.
3.5 Quick, inexpensive, less complicated: This procedure is quick, inexpensive,
and less complicated compared with the other procedures.
4. By Using Some Techniques Can Make a Successful
Negotiation
4.1:
By developing
their working condition with their relatives and determination to justly
disrespect disputes.
4.2: Perceive your best alternative to the
negotiated agreement to obtain a superior understanding of your imagination and
selection.
4.3: By the
justification of your intention in the mirror of conflict and try to know about
how can be good bargaining with your stability and infirmity.
4.4: Declare the most common manipulative
negotiation device applied by people- and how to foil their effects.
4.5: We should win, but not
by defeating others, by winning themselves.
5. HOW IT WILL APPLY?
From the above discussion, it is
declared that parties have different sensibilities regarding preferred
alternative dispute resolution methods and there can be different opinions and
choices among the parties. it depends on their opinion that they can choose
either mediation or negotiation to resolve the disputes. Negotiation should be
the first step to resolving the disputes because the procedure of negotiation
is based on communication and we know that when the parties start talking
together the resolve the disputes, they find any way to resolve the disputes.[20]
This procedure is very important in personal disputes because many personal
disputes are due to small disagreements between the parties on any topic or for
any reason. This procedure seems to help us resolve disputes in a quick,
inexpensive way. Many personal disputes can be settled through this procedure.
However, this does not work always but this would happen when both parties
agree not to listen to each other. So, the first duty of the negotiators arises
to agree to the parties to communicate together by forming a meeting between
the parties. In other words, we can say that the reason behind not listening to
each other there could be previous animosity or any other bad feeling between
them. If so, it stops the speed of the conversation in the way of resolution of
the disputes and makes it difficult to resolve the disputes through
negotiations. However, it is difficult but can be resolved through this
mechanism. A good negotiator becomes important, who successfully removes the
communication gap. To achieve good negotiators, they should be trained. When
they are trained well, then they can be easily able to resolve disputes through
negotiations.
Despite all this, even if the
disputes cannot be resolved through negotiation, disputes can be resolved
through mediation. It can prove to be a successful way to resolve personal
disputes. Through intermediaries, both parties can agree to talk to each other
again for the settlement of disputes, because both parties are still in the
majority and they can help each other by adopting this procedure to resolving
the disputes.
In the modern era, many such
institutions have also been opened which work to resolve disputes through
arbitration. These institutions generally want to develop the practice of
arbitration through the development of ethical standards. To properly develop
this procedure, the mediators should be neutral and fair. People need to be
quick and well-satisfied. When people start believing in the mediator that the
mediators are acting neutrally and fairly, then their faith can be won. And
then people will start mediating to resolve their disputes quickly. As far as I
know, people in rural areas or backward areas are not yet well aware of it.
Before promoting mediation, it must inform to the people about this procedure
before it can be used properly. When people start to know about it, then it
will be easy to promote the procedure of mediation. To tell people about it
where camps can be organized so that people can know about it quickly and
easily. By doing so, the burden of lawsuits can be reduced from above the
judiciary. And when the burden of lawsuits has decreased from the judiciary,
people will get justice quickly. It will promote the rule of law in the
society. And when the law will be well in society, then people will begin to
respect it with their honesty. It will promote people’s participation in the
rule of law and it will help people's involvement in helping the rule of law in
society. It will also encourage people to gain legal awareness and respect for
the rights of others.
6.
CONCLUSION
This
paper has explored two ways to resolve conflict and disagreement between
disputants: mediation and negotiation. There are other ways to resolve conflict
as well, like family group conferences, ombudsmen, traditional Indian
arbitration processes, etc. The goal of any conflict resolution process is to
make sure that the underlying causes of the conflict are identified,
acknowledged, and resolved sincerely. If this isn't done then the
situation is win-lose, conflict may still arise, escalate, and turn violent,
causing disruptions, dislocations, and preventable crises. Using these
methods as alternative dispute resolution (ADR) instead of litigation
would increase the likelihood of de-escalation and resolution of disputes.
Both
negotiation and mediation are effective and flexible methods for resolving
conflicts. These approaches, which prioritize open communication, group
problem-solving, and a focus on common interests, promote the upholding of
relationships, the autonomy of individuals, and the effective settlement of
disputes. In a modern globalized society, the mediation and negotiation
processes promote peace, harmony, and mutual respect.
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[6] Salem Advocate’s bar Association
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