NEGOTIATION, MEDIATION AND ARBITRATION UNDER CPC

ADVERSERIAL APPROACH Primary goal :Maximize individual gain. Adversarial negotiator takes the issues as distributive and they assume that there is only one prize in the official jackpot and firmly believes that her job for her client to get that prize. They use competitive or cooperative tactics to win the game.

Competitive negotiator Maximizing settlement for their clients Obtaining profitable fees Outmaneuvering opponents Dominating forceful,agreesive,tough,arrogant and un co-operative. Purpose is to create substantial doubt in the mind of the opposite negotiator about the validity of their position.

Cooperative negotiator Conducting self ethically Getting a fair settlement Meeting client needs Avoiding litigation Establishing good personal relationship

Problem-solving Approach Focuses on Joint gain Views the dispute as mutual problem It works as a multiple issue context. First identifying the underlying needs by planning and brainstorming.

Example A owns a patent on a product X which could cure tuberculosis and for which there is a very large world market. A does not plan to develop market. Instead,A is conducting clinical tests and awaiting governmental approval to sell a different unpatented product Y which also cures tuberculosis.this may take one or two years. B already has governmental approval and has begun selling product X as a cure for tuberculosis without A`s consent's sales of product infringe A`s patent. A tells B that his sale of product (X) infringes A`s patent and warns B not to continue making,using or selling the product. B refuses. As a Negotiator gives your arguments for adversarial and problem solving approach.

Types of ADR Under CPC MEDIATION ARBITRATION

MEDIATION Two Stages – PRE TRIAL-after filing written statement APPELLATE STAGE

ADR IN CPC DEFINITION – Mediation" under this section shall mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.

PRE TRIAL STAGE 89 A: After filing of written statement, if all the contesting parties are in attendance in the Court in person or by their respective pleaders, the Court shall, by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no pleader or pleaders have been engaged, or to a mediator from the panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for settlement through mediation.

MODES OF ADR Mediation by the judge himself Mediation by a mediator selected by the pleaders Mediation by a mediator selected by the parties Mediation by a mediator referred by the judge from the panel of mediators

PRECONDITION FOR MEDIATION After filing written statement Attendance of the parties or pleaders Adjournment of the suit The court order Application by contesting parties

APPOINTMENT OF MEDIATOR WHO IS NOT ELLIGIBLE AS MEDIATOR? A person holding an office of the Republic A person engaged by the parties in the suit PANEL OF MEDIATOR District judge with the consultation of the President of District Bar Association prepare a PANEL. Pleaders Retired judges Person known to be trained in dispute resolution, Any other person deemed appropriate.

FEES of mediator If judges works as mediator no fee Parties mutually agree for fees If they cannot decide then court fixes and it is binding upon the parties. Refund of court fees

Time frame to conduct mediation 10 days time for appointment of mediator If parties fail then within 7 days court fix Within 60 days, Extent 30 days by joint petition

Report submission Signature or the left thumb impression Signature of the pleaders Signature of the mediator

IF MEDIATION FAILS ? PRIVILEGES OF MEDIATION- confidentiality APPEAL OR REVISION

MEDIATION IN APPELLATE STAGE 89C.(1) An Appellate Court [ shall] mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties. (2) In mediation under sub-section (1), the provisions of section 89A shall be followed with necessary changes (mutatis mutandis) as may be expedient.

ARBITRATION 89B.(1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be applicable: Provided that, if, for any reason, the arbitration proceeding referred to above does not take place or an arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn under this sub- section. (2) An application under sub-section (1) shall be deemed to be an arbitration agreement under section 9 of the Salish Ain, 2001 (Act No. 1 of 2001)