Alternative Dispute Resolution - Negotation and Mediation

Negotiation

Meaning

You: "How much those tomatoes costs"?
Vegetable Vendor: 30 Rs/Kg
You: "ohh this expensive, someday you will have to sell kidney to buy tomatoes, can you give for 20 Rs/kg"?
Vegetable Vendor: "I bought it for 20 Rs/Kg. How about 25Rs/kg"
You: Ok Fine!

This is negotiation in short. This is most basic means of settling our differences.

In case of disputes also, you can resolve the differences by negotiating with other party. In this process disputes are settled by mutual consent.

Process

In negotiation, party may directly negotiate with other party or it may hire an attorney.

There is not particular process is to be followed in negotiation.

Place of negotiation could be anything, it could be board room of big company, or coffee center or even a theatre.

In this process parties can participate directly.

The process of negotiation is back and forth. First party can put forward their issues and points, in reply another party can put forward their concerns. Again first party may answer to those concerns. Hence process is transparent and continuous. 

There could be various stages in negotiation
  1. 1) Preparation
  2. 2) Opening or conveying the concerns
  3. 3) Bargaining for position
  4. 4) Closing the deal

Benefits of negotiation

Below are certain benefits of negotiations

  1. Its a voluntary process
  2. Its fast and inexpensive
  3. Its private and confidential where information is not disclosed to any one
  4. More control over process to the parties
  5. It can result in win win situation
  6. It can be designed as per convenience of parties
  7. There is flexibility in dispute resolution
  8. No legal technicalities are involved

Problems with negotiation

  1. Parties may not communicate their concern effectively
  2. Parties may be adamant and may not co-operate fully
  3. Parties may lack negotiation skill
  4. Parties could display negative attitude which could impact proceedings
  5. There could be lack of legal awareness among the parties
  6. Negotiator may not be well equipped with information needed to solve the matter

Now let's look at another method i.e Mediation

Mediation 

Meaning and how it differs from conciliation

If there is dispute between Nirav and Anil, then they could go to neutral person Narendra to resolve the dispute.

Here Narendra will be mediator, who will encourage both parties to arrive at a solution. For example he could say, bury your differences and give me fund to fight election!

This may be look like conciliation, but it differs in various aspect
First, mediation is guided by CPC, whereas conciliation has legal backing in Arbitration and Conciliation Act.

Second, in mediation the third party i.e Mediator is mere facilitator, whereas conciliator has some active job to do. He is facilitator, also propose some solution, or intervene during conciliation process.

Third, the end result of mediation will be an agreement between the parties, whereas in conciliation  settlement is reached which would be binding on parties.

Process

Process is similar to conciliation, but mediator cannot force anybody to do things. 

Parties are encourage to introduce their concerns, share the information regarding disputed matter.

Mediator can organize cross talks between parties.

If parties earlier tried to negotiate, mediator could encourage and facilitate the negotiation further.

If parties manage to reach an agreement, then there would be a drafting of agreement.

Process will terminate after agreement is reached.

Mediator Styles

Mediator is important person in mediation. Below are some of the ways or styles that mediator employs to get the issue resolved

Facilitator: Here the job of mediator is to mere facilitation between parties. He builds the trust and expect the parties to reach some solution

Instigator: Here mediator tries to become conciliator. He takes on active role and try to propose solution or analyze the strength of weaknesses of the case.

Evaluator: Here he takes the role of evaluation. He provides consequences of various solutions if attained.

Referee: Here he acts like referee. Controls the parties, calm them down in case of hostilities.



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