PRACTICAL TRAINING - II: ALTERNATE DISPUTE RESOLUTION
Kakatiya University · LL.B. Semester 6 · P-II
Unit I
Introduction- Concept of ADR –Advantages and Disadvantages of ADR –Important forms of ADR · Arbitration · Mediation · Conciliation · Negotiation · Meaning and Theories of Negotiation · problem solving approach · competitive theory · Hybrid methods · Online Dispute Resolution (ODR) · Advantages of ODR · Power of Court to refer parties to Arbitration · Sec. 89 of Civil Procedure Code · Arbitration and Conciliation Act, 1996 · Definition of Arbitration and Arbitrator · Arbitration Agreement · Essentials · Who can enter into Arbitration Agreement · Composition of Arbitral Tribunal · Appointment of Arbitrators · Grounds for challenge · Challenge procedure · Jurisdiction of Arbitral Tribunal · Competence of Arbitral Tribunal to rule on its Jurisdiction · Interim measures ordered by Arbitral Tribunal · Conduct of Arbitral Proceedings · Determination of rules of procedure · Place of arbitration · Language · Statement of Claim and Defence · Hearing and written proceedings · Expert appointment by Arbitral Tribunal
Unit II
Making of Arbitral Award and Termination of Proceedings · Rules applicable to substance of dispute · Settlement · Form and contents of Arbitral Award · Termination proceeding · Enforcement · Recourse against Arbitral Award · Finality and Enforcement of Arbitral Awards · Appeals · International Arbitration and Arbitration Rules · The Geneva Protocol · New York Convention of 1958 · Arbitrations involving State Parties · The UNCITRAL Model Law on International Commercial Arbitration · Enforcement of Foreign Arbitral Awards · The role of National Courts in the International Arbitration Process · Judicial Intervention in Enforcement of Arbitral Awards on the Ground of Public Policy · The evaluation of International Arbitral Institutions and their rules
Unit III
The Mediation Act, 2023 · Application of Mediation Act · Mediation Agreement · Matters not fit for Mediation · Appointment of Mediators · Mediation Proceedings · Territorial Jurisdiction · Mediation settlement agreement · Enforcement of Mediated Settlement Agreement · Online Mediation · Mediation Council of India · Duties and Functions · Community Mediation · Conciliation · Appointment of Conciliator · Role of Conciliator · Powers and Functions of Conciliator · Commencement of Conciliation proceedings · Termination of Conciliation Proceedings
Unit Practical
Practical Exercises (50 marks) As a part of practical exercise, Mediation and Conciliation course component shall be taught to the students on the following topics. A quarter of the time allotted for the Mediation course may be devoted to practical exercises and mediation role play. Practical exercises may be devised to train students in developing crucial communication and negotiation skills, including summarizing of facts, neutral reframing, identification of issues, formulating objective criteria, conducting reality checks, assessing alternatives. Importance of Mediation: Pendency of cases in India, its causes and consequences. Mediation as a flexible, timely, cost-effective mode of alternative dispute resolution. Traditional Mediation Practices in India: Mediation by Mahajans, Panchas and religious leaders. Ahimsa, Satyagraha and Gandhian principles of pragmatic, non-violent conflict resolution. Elements of Mediation: Definitions and key characteristics. Nature of mediation as voluntary, consensual, non-coercive, confidential and risk-free. Parties retain control of the process. Process/stages of Mediation: Problem-defining, Problem-solving and settlement stages. Opening round, joint sessions and private caucus. Gathering information, analysing issues and interests, generating options and proposals, resolving disagreements, reaching agreement. Approaches to Mediation: Facilitative, Evaluative and Transformative Mediation. Role of the Mediator as a neutral facilitator, impartial moderator, trusted interlocutor but never a legal advisor. Importance of communication: Communication styles, Communicative behaviour, Compassionate or Collaborative Communication. Elements of verbal and non-verbal communication: Choice of words, clarity of thought and expression, right pitch, tone and emphasis, body language. Effective and Ineffective communication techniques: Active listening skills, building rapport, empathy not sympathy. Use of open-ended questions, neutral rephrasing, factual summarizing. Conducting effective mediation: summarizing the facts, understanding respective positions, discussing issues rationally, recognizing both individual and common interests, empathizing with underlying emotions and asking relevant open-ended questions. Decision-making techniques: neutral reframing of issues, identifying interests, moving parties away from issues towards interests, generating and exploring options, formulating objective criteria conveying offers and proposals, applying reality checks. Assessing the alternatives to a negotiated settlement (BATNA, WATNA, MLATNA) Problem-solving tactics: Causes for impasse and effective intervention techniques: time-out, calculated adjournment, deadlines, refocusing attention, emphasizing relationships, brainstorming, using expert valuation, using other dispute resolution modes. Ensuring positive outcomes: Distributive v Integrative negotiation. Expanding the pie and developing win-win solutions. Ideal Qualities and Skills of Mediators: Being neutral, impartial, objective, communicative, open-minded, quick-thinking, patient, amicable, diplomatic, honest and empathetic. Learning how to build rapport, gain trust, formulate creative solutions and deal with impasse. Code of Ethics for Mediators: Importance of ethical conduct during Mediation. Ensuring impartiality and neutrality, no conflict of interest, dealing with power imbalance, preventing abuse, encouraging parties to reach their own solutions without any coercion or undue influence. Confidentiality Requirements: Confidentiality extends to all case info, identity of parties, proposals and offers made by parties, confidential revelations during private sessions, terms of the settlement and all case-related documents Drafting of Mediated Agreements: Identifiable parties, unambiguous terms, clear language, specific outcomes, measurable commitments, provision for monitoring implementation and accepted mode for resolving future conflicts. NOTE: Students are required to attend and observe the proceedings of Lok Adalats, Family Courts, Tribunals and other ADR Systems. Each student shall record the above observations in respect of 5 Civil cases and 5 Criminal cases in the diary which will be assessed (Each exercise carries 5 marks). Record submitted by the student shall be evaluated for 50 marks by the teacher concerned. While awarding marks for record, the concerned teacher shall take into consideration of active participation of such student in Mediation and Conciliation practical exercises and Mediation role play. The Records of the students duly certified by the University Examiner appointed by the Controller of Examinations in consultation with the Chairperson, Board of Studies in Law shall be submitted to the University before the commencement of the theory examinations.