Understanding Mediation in Dispute Resolution
Mediation is an art and science of resolving disputes without litigation. It involves a neutral mediator facilitating communication and settlement between parties. Mediation offers benefits like voluntary participation, confidentiality, flexibility, cost and time efficiency, and preserving relationships. Challenges to its acceptance include lack of awareness, enforcement concerns, and communication issues. Legal frameworks like the Arbitration & Conciliation Act support the use of mediation for settlement. Recent developments highlight the push for mandatory pre-litigation mediation in legal processes.
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grenobleIindia discover the other side MEDIATION .. What, Why and How of the concept ..
grenobleIindia discover the other side MEDIATION: THE CONCEPT An Art & Science of resolving / settling the disputes between the Parties, through the mechanism of enabling the Parties to settle the dispute. This is facilitated by a Neutral (Mediator) who works as a catalyst. Resolving Dispute without Litigation / without Courts Is it Possible? Yes. Neutral here is an Enabler, a Catalyst and a Facilitator
grenobleIindia discover the other side WHY MEDIATION Many disputes can be settled / resolved just by ensuring a better communication & a better connect / involvement of the parties. The benefits of Mediation are: Voluntary Exercise Confidential Proceedings Fully Flexible Cost Effective Time Effective No one has to lose to make other win RELATIONSHIPS are saved
grenobleIindia discover the other side HOW The person who facilitates /runs this process is someone we call, a Mediator. He is a Neutral (not associated with any party), someone who wishes that parties walk out smiling Traits of/for a Mediator: someone who has the Right skill set (softer skills) Appropriate Training Right Mindset Adequate knowledge of the subject matter of the dispute (ideal)
grenobleIindia discover the other side WHAT IS HOLDING IT S ACCEPTANCE Awareness First Step Unsure Enforceability Lack of Connect / Communication between the Parties in Dispute Unpleasant Experience(s)
grenobleIindia POSITION IN LAW .& WHAT GOVT/JUDICIARY IS SAYING.. discover the other side Section 30 of the Arbitration & Conciliation Act 1996 speaks about settlement in the form of an Arbitral Award on agreed terms (An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute) Section 73 of the Act speaks about the settlement agreement during Conciliation process having the strength of the Arbitral Award (When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively) Changes in Commercial Court Act through Section 12A, which envisages a mandatory reference to mediation to attempt to resolve differences out of court, before a suit can be instituted and a settlement would be binding as under Section 30 of Arbitration Act The government may adopt a mediation mechanism that will help companies determine their future tax liabilities and even settle disputes, said a person familiar with the development. ... Neutral mediators, chosen from a panel, will negotiate and arrive at a settlement. The decision is binding on both sides. Jan 23. 2020 Chief Justice of India SA Bobde on Saturday called for a comprehensive legislation spelling out "compulsory pre-litigation mediation" that will help reduce the massive pressure on the country's courts 8thFeb 2020
grenobleIindia discover the other side POSITION OTHERWISE All the perceived benefits of this process / concept called Mediation cannot be just put on paper but they have to be felt by making them part of the mindset and way of doing things . (it might need support of law to start with but then, once tried & tested, it would become the only default option) A perspective: A lot of the disputes are due to contracts vaguely /poorly drafted and respective parties finding themselves stuck in the black & white of it. (after all there is a limit to what extent one can pre- empt while drafting) If only there is an attempt to clarify or rectify the issues , gaps and language at the appropriate time by an effective communication, the entire game can be different . Often often fought issue of force majeure which again requires a meeting of minds, as no one can pre-empt the same but knowing the constraints of each other, there is often a middle way which can be explored, adopted/accepted and life can move on .(fits in apt in current times)
grenobleIindia discover the other side WHERE ARE WE AND WHAT NEXT . Today more or less we accept ADR (Alternate Dispute Resolution) mechanism as Arbitration only . But, we are struggling with the same as well, due to numerous reasons . (including, it being no more cost and time effective, ad hoc vs institutional, challenges under Section 34, defining public policy and the delays in enforcement etc) I would suggest, let there be another ADR (Appropriate Dispute Resolution) mechanism, called MEDIATION which with its inherent benefits, saves relationships, time, cost, is flexible and totally voluntary exercise . CAVEAT: Not all issues might be suitable for Mediation, especially where Adjudication of Claims is critical A failure in Mediation would not cost on time, effort and money where the other options would always be available ..
grenobleIindia discover the other side NEXT STEPS For Private Sector: Have an immediate clause of Mediation to resolve (any kind of) disputes before even thinking of Arbitration or Court Litigation. In existing disputes, explore through a special effort, the chances of settlement through Mediation Have a Mediation Cell within the Organisational Set up (start slow with intra company disputes and then move higher into inter company disputes) get the taste and go stronger you would help yourself and the society For Public Sector: Government being the biggest litigator (by design and by default) needs to take some serious steps to show that they mean it . For such a decision making, the potential design can be: Party A (Non PSU) --------------- Mediator ------------------(Committee of three people from Party B (PSU)). No single person decides but a majority .
grenobleIindia discover the other side WHAT THE WORLD IS DOING . George Lim Chairman SIMC (Singapore International Mediation Centre), a sister arm of SIAC (Arbitration Centre) shared the following 3 days back: Post initiating the Arbitration, we take a pause for 8 weeks, pass on the case to the SIMC . Either a settlement is achieved and Arbitration is stopped, incorporating the consent award as the Arbitral Award, else Arbitration starts .. When they have this concept of Arb Med Arb or Med Arb .., why can t we . Let s do our best by taking the first step . A baby step next time any dispute and we would try to resolve it amicably through Mediation, as a first choice
grenobleIindia APPLICATION OF MEDIATION/TECHNIQUES IN IBC Understanding various concepts: (Hybrid Application in IBC) Mediation / Mediation Advocacy / Mediation Techniques. discover the other side Mediator vs Mediation Advocate (Require Negotiation / Settlement techniques & traits : ATNA: Alternatives to a Negotiated Agreement, & ZOPA: Zone of Possible Agreement Existing reference of Debt Counsellor for Individual Insolvency First hand experience of Mediation Techniques, both pre and post CIRP. This reduces the need to seek directions from AA and results in reducing the workload. Recent NCLAT Order speaks a lot about the essence and need of this mode of ADR. We need more such examples, but only when a proper framework is made and applied and may be IP s be trained on these Mediation techniques.
grenobleIindia NCLAT ORDER ADVISING MEDIATION & SUCCESSFULLY . discover the other side Company Appeal (AT) (Insolvency) No. 968 of 2019 in the matter of Parvinder Singh Vs Intec Capital Ltd. & Anr. was resolved through mediation (order dated 6 December 2019) Application filed with Hon ble NCLT in March 2019; CIRP petition admitted in Sept 2019 CD approached Hon ble NCLAT whereat IRP was advised to enable parties to reach amicable settlement and parties agreed for mediation Matter referred to Hon ble Justice (Retd.) A.K. Sikri, former Judge of the Hon ble Supreme Court for mediation Amicable settlement of dues of the Financial Creditor reached after two rounds of mediation Had this mediation been done earlier, the precious time of Judiciary could have been saved and all litigation cost could have been AVOIDED. Relationships would not have become sour. What if IP s themselves assist in Mediation and charge fees for the same?
grenobleIindia discover the other side OTHER ASPECTS TO BE CONSIDERED Can all the issues of CD/OC/FC s have solutions through strict application of Law / provisions? May be NO May be some can be decided / resolved when we ensure a communication between parties in disputes. May be we can help them decide what is right as opposed to who is right, especially when we can keep giving them comparisons from IBC/CIRP We need to reduce the workload on AA who would not be able to do provide fair justice with such speed. Not all the cases all the time would be ripe for Mediation but a lot of pain of MSME s for sure would be / can be reduced through efficient use of Mediation techniques. When Apex Court tried Mediation in Ayodhya and Shaheen Bagh, why not trials be made in commercial cases also? A dispute is a dispute and quantitative ones can also have creative / amicable solutions Not all situations be resolved with a winner and a loser but court cases normally end up like this Not all battles need to be won, but surely they need to be sorted out, hence alternatives required So when parties agree, see merit, want to resolve, respect relationships, want be in control of the process, are flexible then Mediation is the answer
grenobleIindia discover the other side PROPOSED FRAMEWORK FOR MEDIATION Filing of petition & appointment of Mediator. Ideally IP, being the Mediator, can ensure parties in dispute to sit across the table and compare their situation vs CIRP and aid parties to take steps to find solution aided by Mediator. Else, IP can be a Mediation Advocate supporting his party in the process. 4 weeks / 1 month necessary /mandated period to try, else formal process starts Intent of the Government / Judiciary across board has been to allow settlements through withdrawals whenever wherever possible: (its both about infra and also about complexities) Pre filing (could we try for pre packs and then see if a formal process needs to be carried out) Post filing, pre admission (By the benches) Post admission, pre COC constitution (Inherent powers under Rule 11 - post Swiss Ribbons) Post COC constitution & during CIRP (12A). Sandesarias case for 12A came almost at the end of the CIRP Even post liquidation, applying Sec 230 of CA 2013 shows that they knew resolutions are more important than death of the company
grenobleIindia discover the other side SKILLS / TRAITS REQUIRED Art of Balancing Art of Management Softer Skills Carrot & Stick Approach Being a Team Player Having Respect / Empathy Required Flexibility (within framework of Law) Effort to Learn, Lead, Manage.. Contribution to the Profession by helping evolve Best Practices
grenobleIindia discover the other side STAKEHOLDERS AN IP INTERACTS WITH.. Promoter / Director: Cooperation, ego, self respect, uncertainty, fear (19(2)), carrot & stick Operational Creditors Going concern, claims acceptance, assurance of a fair deal, RA interaction, DD of R Plan Employees / Workmen Cooperation, going concern, support, loyalty, uncertainty, salary/wages, continuity Financial Creditors Approvals, transparency, consistency, support, shorter lead times, decision making, Sec 28, IRP- RP-L knowing where are they coming from . And their position in hierarchies.. What an IP wants is compliance and going concern and knowing ATNA s and ZOPA, helps to interact with the above mentioned stakeholders and move forward. After all, running to NCLT/NCLAT at a drop of a hat is not the best idea. What you being on ground know is a lot and is often /mostly sufficient to help iron out a lot of frictions.
grenobleIindia discover the other side THANK YOU SANJEEV AHUJA RESOLUTION PROFESSIONAL, MEDIATOR, ARBITRATOR, STRATEGY ADVISOR GRENOBLE@GRENOBLEINDIA.COM SSMR.AHUJA@GMAIL.COM +91-9810600016
