Topic 2

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1.Explore the development of Mediation as a dispute resolution technique in India. Clarify

the importance of ascertaining BATNA and WATNA in a mediation process.
Mediation may be understood as a ‘non-adjudicatory’ and relatively informal process,
wherein the parties participate to mutually negotiate and reach solutions to resolve their
disputes. It is a flexible process with numerous variations, but the common underlying factors
in all forms of mediation are self-determination and party participation and autonomy, which
in fact, forms the key principles of mediation. Mediation has long existed as an essential tool
for resolving disputes outside of the traditional ways of litigation, offering distinct
advantages. Since time immemorial, the processes and techniques of formal and informal
forms of mediation have been employed by parties as an alternate dispute resolution for the
purposes of resolution of myriad disputes.
The genesis of pre-instituted mediation in India was the introduction of the Commercial
Courts Act, 2015 which was based on the recommendation of the 253rd Law Commission of
India. In 2018, the Commercial Courts Act, 2015 was amended to provide improvements
including the introduction of Section 12A which stipulated that the parties must exhaust all
other remedies defined in the rules notified by the Government under the Commercial Courts
(Pre-institution Mediation and Settlement) Rules, 2018 before approaching the court for
adjudication of disputes.
Further, Section 89 (1) of the Code of Civil Procedure, 1908 (“CPC”) which deals with the
settlement of disputes outside of court stipulates that where it appears to the court that there
exist elements of settlement which may be acceptable to the parties, the court shall formulate
the terms of settlement and give them to the parties for their observations. Upon receipt of the
observations of the parties, the court may reformulate the terms of a possible settlement and
refer the same either for arbitration, conciliation, judicial settlement including settlement
through Lok Adalat or mediation.
The legislative intent behind introduction of Section 89 (1) of CPC is to facilitate the
settlement of conflicts between parties mutually so as to reduce the legal expenses of the
parties and to ease the judicial workload. In order to implement the said scheme, mediation
centers have been set up across India to facilitate settlement of disputes through mediation.
Mediation is thus, an effective alternative mechanism for dispute resolution not only in
respect of disputes pertaining to matrimonial or family discord but also for other types of
disputes inter-alia civil, commercial, administrative and even for the resolution of certain
insolvency issues.
Mediation always comes to the advantage of the parties:
Mediation is a party centric process with minimal involvement of the mediators, which in
effect fosters open communication and discussions between the stakeholders. The parties
negotiate in the presence of an independent mediator who facilitates discussions between the
parties, with an objective of resolving the dispute in an amicable way. It is thus the parties
who engage in the process of negotiations and discussions, enabling them to have a better
control on the resolution process. Mediation can allow each party to hear the opposing party’s
view in a non-confrontational environment. Further, mediation can be effected in a
timeconditioned and cost effective matter which is relatively quicker and cost efficient as
compared to traditional litigation.
One of the key advantages of resolving disputes via mediation is that the parties and the
participants involved in the process of mediation are under an obligation to maintain
confidentiality in respect of discussions, statements, documents, proposal and / or any
communication exchanged between the parties during mediation. Maintaining confidentiality
of the process of mediation is sacrosanct and thus, encourages the parties to engage in candid
and open discussions to reach an amicable settlement mutually.
Once a settlement is reached between the parties, it is enforceable unless it is void under the
Indian Contract Act, 1872.
A mediation settlement could be challenged under limited circumstances, such as fraud or
impropriety in executing the settlement and the same is subject to demonstration of cogent /
substantive evidence by the party alleging the same. This limits the scope of challenging a
mediation settlement thereby, ensuring finality and enforceability of the mediated settlement
agreements.
Mediation Laws in International Arena – A Global Outlook
In various countries across the globe including the United States of America, the United
Kingdom, China, Australia etc, various forms of mediation are being used frequently in both
civil and administrative disputes to resolve both domestic and cross border disputes. The
United Nations General Assembly adopted the United Nations Convention on International
Settlement Agreements Resulting from Mediation on 20 December 2018 (“Singapore
Convention on Mediation”), which was a step towards ensuring a harmonised framework for
cross-border enforcement of mediation settlement agreements. Although India became a
signatory to the Singapore Convention on Mediation on 7 August 2019, it is yet to be ratified.
Apart from the legal regime, the United States of America also has a well-structured and
formalized mediation system. In order to facilitate an effective mediation process, the United
States of America has numerous professional organisations such as the American Arbitration
Association, Federal Mediation and Conciliation Service, Nation Mediation Board, Civil
Mediation Council, Chartered Institute of Arbitrators, US Institute of Peace, United Nations
Department of Political Affairs, and Judicial Arbitration and Mediation Services to regulate
the process of mediation.
In the European Union, in order to help the EU Member States create legislation governing
mediation in civil and business disputes, the Directive 2008/52 (“Mediation Directive”) was
issued. The Mediation Directive aims to establish a formal and uniform set of guidelines to
control mediation practice and to further ensure an institutional framework to govern
mediation practice across the EU Member States.
Legislative framework in India and introduction of Mediation Act, 2023
Despite the evolving use of mediation as a tool for disputes redressal across the globe, private
mediation in India for a long time, has been bereft of proper structure and legal recognition,
thus, discouraging participation by the parties and consequently, increasing judicial workload.
Unlike arbitration and conciliation,there was no overarching law in India that
governedmediation specifically. In order to address this issue, the Mediation Act, 2023
(“Mediation Act”) was introduced to enhance the effectiveness of mediation in India, thereby,
rendering a comprehensive and elaborate legislative framework for efficient implementation
of mediation. The Mediation Act has been introduced with an objective to promote and
facilitate mediation, especially institutional mediation, for resolution of disputes, commercial
or otherwise, enforce mediated settlement agreements, provide for a body for registration of
mediators, to encourage community mediation and to make online mediation as acceptable
and cost effective process and for matters connected therewith or incidental thereto.
Certain salient features of the Mediation Act, 2023 are culled out as under:
1. Establishment of Mediation Council of India in order to facilitate and regulate

independent and accredited mediators and mediation institutions in India.
2. Mediation Act recognizes a pre-litigation mediation, online and community mediation
and encompasses the term ‘conciliation’ to align with international practice and
standards.
3. Provisions in respect of enforcing domestic mediated settlement agreements are
introduced, thus, making the process more effective and binding in nature.
4. Stipulates a time conditioned process for the mediation proceedings.
5. Introduces provisions for maintaining confidentiality between the participants
involved in the process of mediation.
6. Lays down guidelines for mediator appointments.
7. Introduces amendments to existing statutes, like the Indian Contract Act, 1872 to align
them with the new mediation framework.
The recent trends of growth and developments in the legal and business realms certainly
suggest that mediation may be poised to take precedence in effectively and efficiently
resolving disputes between the parties in a better and more cost-effective manner. Now, with
the advent of the recent Mediation Act, 2023, the existing landscape in mediation as a method
of resolving myriad disputes in the country, would be ever evolving. Additionally, while the
Mediation Act explores the adaptability of mediation in this new age digital era, where online
mediation platforms and technology-assisted processes are reshaping the ADR landscape, the
question of its implementation, however, remains to be unearthed with the passage of time.
In the realm of conflict resolution, the concept of BATNA, or "Best Alternative to a
Negotiated Agreement," has emerged as a critical tool in guiding parties through the
complexities of mediation. BATNA represents the most advantageous option available to a
party if mediation fails to produce an agreement. It serves as a contingency plan or fallback
strategy, enabling parties to approach negotiations with a clearer understanding of their
alternatives and potential outcomes.
The importance of BATNA in mediation cannot be overstated. By knowing one's BATNA, a
party can strengthen their negotiating position and contribute to a more balanced and
equitable agreement. When parties comprehend the alternatives available to them, they can
enter negotiations with greater confidence and resolve, empowering them to engage in more
constructive dialogue and set realistic goals. BATNA aids in developing a clear negotiating
strategy, preventing parties from accepting agreements that fall short of their acceptable
standards.
To effectively leverage the concept of BATNA, parties should carefully consider all possible
alternatives available to them if negotiations fail. This process involves a thorough
assessment of each alternative, weighing its potential benefits and drawbacks, and ultimately
determining which option is most advantageous and acceptable. As mediation progresses and
new information emerges, parties must continuously re-evaluate their BATNA in light of
changing circumstances, ensuring that their understanding remains current and relevant.
While the concept of BATNA holds significant value in mediation, its application is not
without challenges and potential pitfalls. One of the primary concerns associated with
BATNA is the risk of unrealistic expectations. Parties may overestimate the strength of their
alternatives, leading to overly rigid positions and complicating the attainment of
compromises. This situation can arise when parties fail to objectively assess their alternatives
or when they allow emotions or biases to cloud their judgment.
Furthermore, if both parties believe they have a strong BATNA, it could inadvertently
escalate the conflict instead of resolving it. Each party may refuse to compromise, believing
that they can achieve a better outcome through their alternative, thereby diminishing the
prospects of a negotiated settlement. This scenario underscores the importance of maintaining
a balanced perspective and recognizing the value of compromise in mediation.
Another potential challenge lies in the risk of detachment from the mediation process itself.
An excessive focus on BATNA can cause parties to become detached from the current
negotiations, overlooking the possibility of finding mutually beneficial solutions through
mediation. This detachment can hinder the spirit of collaboration and compromise that is
essential for successful conflict resolution.
Additionally, the process of establishing and relying on BATNA can create additional stress
and pressure on parties, particularly if they perceive their alternatives to be weaker or less
desirable than initially anticipated. This added stress can undermine the parties' ability to
engage in productive negotiations and make informed decisions.
Finally, when parties perceive that the opposing side is overly focused on their alternatives, it
can diminish trust and cooperation – two crucial components of successful mediation. An
atmosphere of mistrust can erode the foundation of constructive dialogue and impede
progress towards a mutually acceptable resolution.
Despite these challenges, BATNA remains a valuable tool in the mediation process when
used judiciously and in conjunction with other conflict resolution strategies. Mediators play a
vital role in guiding parties through the responsible and balanced exploration of BATNA,
ensuring that it serves as a means of empowerment and self-awareness rather than a source of
obstruction or conflict escalation.
In mediation, BATNA is not merely a tactical tool; it is also a powerful means of self-
awareness. By recognizing their best alternative, parties become cognizant of their true
priorities and motivations, which can facilitate the search for common ground and the
realization of more productive and enduring solutions. Mediators must foster an atmosphere
of mutual respect, trust, and openness, guiding parties toward shared goals and solutions,
while simultaneously acknowledging and addressing the implications of their respective
BATNAs.
Ultimately, the successful application of BATNA in mediation hinges on striking a delicate
balance. Parties must be empowered to explore their alternatives without allowing those
alternatives to become obstacles to negotiation and compromise. Mediators, through their
skilled facilitation, can navigate this intricate dynamic, ensuring that BATNA serves as a
constructive tool for self-awareness and strategic decision-making, rather than a source of
contention or intransigence.

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1.Explore the development of Mediation as a dispute resolution technique in India. Clarify

1. Establishment of Mediation Council of India in order to facilitate and regulate

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