• Consensual Dispute Resolution

    Ethics and Disclosure of Information in a Negotiation

    Reading Time: 4 minutes A negotiation aiming at an equivalent “win-win” gain to both parties may be idealistic and naïve. Rather, a realistic degree of satisfaction wherein both parties are in a mutually agreeable positioning to fulfill their needs whilst satisfying the obligations of the opposing party is ideal. This may not be equally benefiting for both parties but one which benefits both to differing extents.

  • Consensual Dispute Resolution

    Dayawati v. Yogesh Kumar Gosain: Expanding The Scope of Mediation to Criminal Matters?

    Reading Time: 5 minutes Alternative Dispute Resolution (ADR) mechanisms are deep-rooted in Indian society. Since the ancient period ADR techniques like panchayats have played an important role in village level dispute resolution.[i] In the recent times, mediation has emerged as the most preferred mode of dispute resolution in which a neutral third party assists the parties at dispute to arrive at consensus with concrete effects. On 17th October, 2017, a division bench of Delhi High Court delivered the judgement in Dayawati v Yogesh Kumar Gosain  (Hereinafter “Dayawati”) and held that a criminal compoundable case of ‘cheque bounce’ under section 138 of Negotiable Instrument Act, 1881 (Hereinafter “The NI Act”), can…

  • Consensual Dispute Resolution

    Mediation: Acknowledge the diversity before you act upon it!

    Reading Time: 4 minutes Disputes are manifestations of “people problems rather than legal problems”. A person’s cultural background pervades the entire mediation process and must be considered while reaching mediated settlements. This becomes especially relevant in the realm of International Relations, where crises between two culturally dissimilar states are resolved through mediation. Culture itself encompasses values, norms and standard practices commonly used by a group that is “internally approved and sanctioned” in the daily routines of people. [1]Our behavioural reactions and assumptions of life are the products of the environments we live in and this social conditioning determines the way in which a problem is approached. This, also, means that…

  • Consensual Dispute Resolution

    Decoding the Mandatory Mediation rule: An Analysis of Section 12A of the Commercial Courts Act, 2015

    Reading Time: 4 minutes Section 12A was inserted in the Commercial Courts Act 2015 by way of the “The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018.” The main aim of this insertion was to ensure that the remedy of pre-institution mediation is exhausted before the filing of any commercial disputes. This was a conscious step taken so as to hope that it would help India’s ranking in the Ease of doing business index. This report is released and tabulated by the World Bank. Section 12A(1) of the Act clearly iterates that any suit that would not contemplate any urgent relief under the Act…

  • Consensual Dispute Resolution

    Lok Adalat: A Brief Overview

    Reading Time: 5 minutes At the time of the formal adoption of the Indian Constitution in 1950, there existed a unified structure of courts and laws, which were left undisturbed, as their removal or modification would have signified the upheaval of the entire judicial structure. Disputes of all citizens were settled through a well-defined and recognised system of litigation. The courts have formal rules for settlement of disputes and their decision is binding on the parties, but is subject to appeal to the higher court. The system is highly technical and formal, and the judge controls the proceedings as well as the outcome of the litigation. However, litigation does not…

  • Consensual Dispute Resolution

    Mediating Workplace Sexual Harassment Claims

    Reading Time: 4 minutes With the increase in access to alternate dispute resolution mechanisms, the time has now come to critically analyse if all kinds of disputes are eligible to go in for out of court dispute resolution mechanisms. Of these, the case for mediating sexual harassment cases is now being hotly debated. Mediation seems to fit the harassment rubric ideally for it allows the parties to express strong emotions, allows the victim to confront the harasser directly and does away with the emotionally and psychologically exhaustive court procedure for seeking justice (Young Mediate.com, 2006). But mediation is not a one-size fits-all method of dealing with sexual harassment and each…

  • Consensual Dispute Resolution

    Dependency and Power: Removing Hardwired Hindrances to Negotiation

    Reading Time: 5 minutes The Traditional Lawyer vs. The Modern Lawyer With the advent of globalisation and modernisation, the role of a lawyer is no longer restricted to the courtrooms. The essence of being a lawyer is to able to protect the best interests of one’s client, and to resolve the disputes which have arisen. Generally, the preferred method of resolution depends on the nature of a dispute. While the adversarial approach is necessary for certain types of disputes, it should not be the ‘go to’ option for all. The emergence of negotiation as the preferred means for dispute settlement for commercial and corporate disputes has changed the traditional definition…

  • Consensual Dispute Resolution,  Interviews

    Interview with Sebastian Schäfer, Winner of Warsaw Negotiation Round, 2018

    Reading Time: 4 minutes Warsaw Negotiation Round is one of the most prestigious international negotiation competitions. This year the competition was held in Warsaw from 19-22 April. We interviewed Sebastian Schäfer, a member of the wining team. Sebastian Schäfer is a graduate from IÉSEG School of management at Paris. Coming from an engineering background, he followed his passion for complex negotiation processes and studied International Business Negotiation in Paris. His team won the Warsaw Negotiation Round 2018. Hi Sebastian, hope you are doing well in Paris. Congratulations on your victory at the Warsaw Negotiation Round, 2018. Your experience could definitely help our readers understand the nuances of a negotiation competitions. We would…

  • Consensual Dispute Resolution

    Hostage Negotiations: To Concede or not to Concede?

    Reading Time: 5 minutes Hostage negotiations are one of the most critical areas of research in the recent times and require the work of skilled negotiators and psychologists to determine whether or not a no concession strategy must be adopted. Hostage negotiations are of several types. First, wherein, the criminal takes people hostage in the execution of a robbery where there is virtually no escape; the second, wherein, law enforcement arrives on scene before the successful completion of a crime and thus hostages are taken in; and the third, wherein workplace discord or marital discord escalates into a hostage situation (Miller 2005, 278). An in-depth analysis of the situation at hand will help determine the nature…

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