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India is world ready With the new legislation coming in effect, the FICM-MCN initiative gets further impetus in the process of change through inclusive integrated ecosystem.

International Arbitration Dispute Resolution Coming of Age with International Arbitration Hub

LITIGOUS SOCIETY Are we hardwired to adversarial struggle?

WHY TO MEDIATE Understanding Conflict Patterns

POWER BALANCING Getting the other side to mediation table

DOMESTIC FOCUS - INDIA TATA Housing signs up Consumer Ombudsman Scheme


The official Newsletter of the Federation of Integrated Conflict Management (FICM) and The Mediation and Conciliation Network (MCN).




The FICM-MCN OnPoint RESOLVE Reporter FICM-MCN OnPoint RESOLVE Reporter is a unique newsletter and magazine, acting as one of the important interface between all stakeholders of the ecosystem - from users of the services to the conict management and dispute resolution professionals in legal, corporate and communities worldwide. Published by FICM-MCN, the periodical provides breakthrough knowledge, cutting edge insights, critical intelligence with strategy and analysis on the latest trends and developments, and news updates around the dispute resolution ecosystem. More than 100,000 professionals like in-house counsel, practicing lawyers, government ofď€ cials, law schools and other dispute resolution specialists receive the newsletter cum magazine in their in-box and the periodical is also available online on our website Soon we will be having weekly update snippets. To sign up for our weekly updates, click here. For more information contact +91 8505 999 820 or If you are interested advertising or contributing, contact Sonali Singh at

The FICM-MCN OnPoint RESOLVE Reporter will be organized by geographic regions. Each month we will focus on a particular region, besides delivering news and insights about international commercial disputes. Our Regional members and other reporting sources will be our main backbone in developing this periodical to next levels. Queries regarding case-related issues and other services of the organization should be addressed directly to the Case Manager. Separate senior FICM-MCN staff are responsible for education, ADR systems development and panel development activities and are available to respond to queries related to designing Dispute system design. Our team can be scheduled for on-site presentations regarding the FICM-MCN system and its alternative dispute resolution services at no charge. A current list of FICM-MCN regional senior staff, with their geographic areas of responsibility and contact details.

Interested in the FICM-MCN’s OnPoint RESOLVE Reporter? For questions regarding this or previous editions of the FICM-MCN newsletter or additional information about the FICM-MCN, please contact Sonal Singh, at To register to receive this newsletter, please send an e-mail to updates@ď€ requesting to be added to the FICM-MCN mailing list.

All of us share the strong desire to heal the world. Conict is a natural part of life, helping manage conicts and resolve disputes is a natural part of what we do.


Enabling Peace, Enhancing Access to Justice and Strengthening Rule of Law

BORN IN INDIA BONDING THE WORLD Dispute Resolution Ecosystem for the Modern World.





“It is wrong to consider that courts are established for the benet of the people. Those who want to perpetuate their power do so through the courts. If people were to settle their own quarrels, a third party would not be able to exercise any authority over them. Truly, men were less unmanly when they settled their disputes either by ghting or by asking their relatives to decide for them. They became more unmanly and cowardly when they resorted to the courts of law. It was certainly a sign of savagery when they settled their disputes by ghting. Is it any less so, if I ask a third party to decide between you and me? Surely, the decision of a third party is not always right. The parties alone know who is right.”

“We, in our simplicity and ignorance, imagine that a stranger, by taking our money, gives us justice.” - Mahatma Gandhi, Hind Swaraj

WELCOME Welcome to the rst edition of OnPoint RESOLVE, a periodic newsletter which captures updates, recent developments and commentary on adopting new ways and approaches to conict management and dispute resolution.

whatever, the appropriate dispute system would be one that assigns a unique process, approach, mechanism and administering institution to any given situation and dispute. Any existing institution - a court, an administrative agency, the judiciary, the jury is only one way to resolve or process the "dispute". People are distant far from the understanding that there are many ways to resolve disputes outside of the courts. Why the awareness about the effectiveness of ADR is still not there among masses.

Everything around us has changed rapidly in the last two decades. But we are still using age old and almost obsolete systems, mechanisms, legal doctrines and institutions of dispute resolution. After all why legal reforms are not taking place as rapidly? Specically in the civil justice system.

It is now, more than ever, necessary to advance the ADR movement - an amalgamation of science, skills, and law that make up this exciting new eld.

No single institution, rule, technique, or role can be for all kinds of disputes. Why the legal fraternity use litigation as the only default mechanism of dispute resolution? Why only adjudicative measure? Moreover dispute resolution has generally become the exclusive jurisdiction of lawyers. Why is this not changing or improving for decades in India? Is that for politics? which is closely intertwined with justice system? or anything more?

The rst Newsletter addresses these primary issues and also updates on new developments within and outside of FICMMCN universe. Do let us know what you think and in case you want us to address any specic subject in the forthcoming issues, feel free to write to us. We will be expanding our horizons of information and updates in the forthcoming issues.


Access to justice should be the priority for any government or society. For federalism, sovereignty, expertise, neutrality or

We welcome your feedback.


A Periodic Newsletter Magazine - Bringing Insights and actions to achieve truth, peace and justice.

WHAT’S INSIDE Special Feature:

Ÿ Meet our new Global Council Members Ÿ India is world READY - with new legislation! Ÿ International Commercial Arbitration - is the

process delivering Justice? Ÿ Welcome new members on the panel of Neutrals


The Ombudsman in India

Ÿ Inviting Nominations for 120 member India

Council of FICM-MCN ADR Lawyers



DOMESTIC FOCUS (INDIA) Launch of Ombudsman Schemes in India

International Arbitration - The challenges


VIEW POINT The Rule of Law - The civil Justice




India is world rea India is now ready for the New World, asthe parliament amends Arbitration and Conciliation Act and FICM gains further impetus in its endeavor to creat global ecosystem of prevention and resolution of commercial crossborder disputes. The Bill seeks to establish an independent body called the Arbitration Council of India for the promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanisms.

A momentous and important legislation as Government supports the agends of makin India as an important back ofďŹ ce of international arbitration. This bill will add new dimension to the FICM tag line "Born in India-Bonding the world". The organization is world redy and also ready to fulďŹ l the needs of corporations doing business in India by creating a safety NET around its domestic as well as international operations.





Meet new global council members! We are proud to introduce our new council members who have joined us in the last quarter.

We would like to thank Hon Michael Kirby AC CMG, Mr. David Joseph Attard, Mr. Henrik Rodhe, Dr. Shirani A. Bandaranayake, Mr. Mykola Selivon and Dr. Marko Pavliha for their time and service to the council.


Hon Michael Kirby AC CMG AUSTRALIA Michael Kirby is an international jurist, educator and former judge. He served as a Dy. President of the Australian Conciliation and Arbitration Commission (1975-83); Chairman of the Australian Law Reform Commission (1975-84); Judge of the Federal Court of Australia (1983-4); President of the New South Wales Court of Appeal (1984-96); President of the Court of Appeal of Solomon Islands (1995-96) and Justice of the High Court of Australia (19962009).

Henrik Rodhe |


Chief Justice Rothe is the President of the Maritime and Commercial Court and a mediator and arbitrator in business disputes. He was Secy. General of the Danish Law Society (1995-2009) and Adm. Director of the Lawyers Service Company (1995-2008). A judge in Slagelse (1989-1995), attorney and judge at the courts in Næstved, Korsør, Sorø and Eastern High Court (19781989), secretariat leader in the County Council of West Zealand (1975-1978) and Deputy Chief of the Government of West Zealand (1974-1975).

David Joseph Attard



Board of Governors, IMO International Maritime Law Institute, Malta (1989); UNEP/WMO Working Group on Drafting of an Intl. Convention on Climate, Geneva (1989); Board of Advisers, Climate Institute, Washington, D.C. (1990); Chairman, UNITAR Working Group on Environmental Diplomacy, Geneva (1991); Member of Specialized Panel of Arbitrators, Permanent Court of Arbitration, The Hague (2004–present); European Union Expert Group on Maritime Policy, Brussels (2005).

Dr. Shirani A. Bandaranayake SRILANKA Appointed as the 43rd Chief Justice and the 1st female Chief Justice of the Republic on 17th May, 2011. The Chief Justice, as the Head of the Judiciary, is vested with the overall control of judicial administration and within the Supreme Court he holds the nal authority in case allocation, Court management and general court administration. Appointed as the 1st female Judge of the Supreme Court in October 1996.



IN OUR EVER EXPANDING PANELS OF EXPERT NEUTRALS Mr. Amit Kumar Patni Promoter Shareholder of Patni Computers Mumbai

Ms. Jamina Apio Administrative Partner at Apio, Byabazaire, Musanase& Co. Advocates Kampala Uganda

Mr. Ajit Kumar Mishra, IRSE//Lifetime Member Chief Project Manager DFCCIL(Indian Railways) Delhi

CA. Harsh Patel Mumbai India

Mr. Pramodh Manda CXO – Direct Selling, FMCG & Pharmaceutical Sales | Medico & Nutrition Marketing Bengaluru India

Mr. Jatin Sharma Advocate Delhi India

Mr. Dineshwar Gaur Civil Engineer Delhi India

Mr. Ram Kumar Gupta Retd. Gen Manager Eastern Railway Noida India

Dr. S. M. Dewan Sr. Advisor and Consultant Noida India

Mr. Dato' Varghese George Judge of the Court of Appeal, Putrajaya, Malaysia Selangor Malaysia

Mr. L. S. Kylas Civil Engineer Thiruvananthapuram, Kerala India

Dr. Christopher D. Cottrell Mediator, Crosspoint Mediation Ohio USA

Captain Ganga Ram Rathee Highway Engineering Delhi India

Ms. Teeshna Bahadur Senior Vice President India and Manila, Northern Operating Services Pvt. Ltd. Mumbai India

Ms. Swati Shah Independent Mediator and Counsellor Delhi India

Ms. Mayuri Deshmukh Assistant Government pleader with Bombay high court Nagpur Bench Nagpur India

Mr. Ravi Kaul Engineer Delhi India

Mr. Nitin Singh Bhati Lawyer Indore, India

Ms. Sharada H.V Eminent Real Estate, Lawyer Bengaluru India


22 India desperately needs new ways of administration of civil justice


Dispute Resolution



Conicts and disputes are a matter of managing deep human psychology, human values and other human circumstances and behaviors in our social, political, commercial and family situations. weaving it with an outcome which is legally just and binding. Law is just one of the aspects that is woven at the end of a resolution process to give the solution a legally binding effect. Just enforcement of legal rights and obligations can never be a nal resolution really. Applying force of law to bring a dispute to an end, so called legally enforced end? Or a zero sum win-loss game can never be termed as RESOLUTION of a dispute. We have all witnessed this through decades in the court of law. Millions of people and entities ghting for winning the horric and stressful zero sum win loss game over adversaries in the court of law, destroying the most productive time and hard earned money in the process, sometimes ghting for decades to get the verdict. Is that verdict really RESOLUTION of Dispute? If at all so, is that really worth? A third party’s determination or judgement may end a legal dispute, but it certainly may not be the end of a human conict, that remains in our social fabric, until the real resolution is reached in the minds or hearts of humans. From ages, we have misunderstood the difference between resolution of dispute and protecting ourselves from the cheaters, frauds and criminals with the help of force of law.

We do not need courts, lawyers or judges for resolution primarily, but we denitely need the help of court, law and enforcement to protect our life and property from people with malade intentions, the few hidden predators in humans. Dispute resolution is about applying the human science to identify and solve a problem, the root cause of disputes. Dispute resolution is essentially a matter outside of the law, until the dispute is only about a question of law point, which we all know, is not the case, in majority of disputes. If dispute resolution is always not about legal point, then why lawyers? why courts? why judges? why dispute resolution has become the domain, and almost monopoly, of the law practice professionals? In fact a dispute will invariably always become more complex, more damaging and protracted if we try the so called RESOLUTION by using coercive means and applying the force of Law.




Why do we fail to incorporate these so important legally viable dispute resolution clauses in our commercial contracts? Why do legal counsel fall short of elaborating this most important aspect of a transaction in the contracts?


Business disputes can be managed, and their risk controlled, just as other business contingencies can be managed: through foresight, attention and sophisticated techniques of negotiation and risk allocation. Research shows that a well thought out Dispute Management Clause in Commercial Contracts minimizes the damages caused due to conicts by more than half. Parties negotiating a commercial deal must assess not just the value of the deal but also the risk of the deal’s falling through, and must decide how to preserve the value of the deal in the event of breach of the agreement. Managing that risk through choiceof-law clauses, waivers, or bare arbitration provisions too often results in dispute resolution processes that are unresponsive to the commercial needs of the company or the demands and risks of the particular deal. Effective Dispute resolution is build upon a well drafted contract, The contract between the parties is the basis of an effective dispute resolution process which is designed, directed and controlled by the parties. Poor provisions of dispute resolution clauses or if you do not have a stepped hybrid dispute resolution agreement, you invariably end up in court when faced with disagreements.

We all spend weeks or even months negotiating on commercial agreements stretching over many years, but we have a laid back tendency on addressing the consequences of disputes arising under the agreement. The fact is that there are no perfect contracts. There are no deals in which all parties’ interests and capabilities remain constant throughout the term, and in which all parties share an identical understanding of their rights and obligations. Opportunities arise (or fail to materialize), currencies uctuate, contractors go out of business, government approvals are withdrawn, public funding is not renewed, natural catastrophes and other social disasters happen. All sorts of contingencies occur that we can not anticipate. Risks that were unclear at the time of the contract become real at some time down the road. This is for no fault of the contract drafters. No drafter can foresee every change on the ground, or every good-faith interpretive disagreement, that will occur over the term of the deal. Since that is so, it is incumbent upon the drafters to devise processes for the management and resolution of unknown and unknowable contingencies. Why do we fail to incorporate these legally viable and so important dispute resolution clauses? Why do legal counsel fall short of elaborating on this most important aspect of a transaction? Conict resolution processes that are embedded in the initial agreement must be designed to protect the value of the deal. The analysis should be straightforward: Identify the value that we seek from the venture, assume a risk of nonperformance from some unidentied cause, and devise methods to manage that eventuality designed to preserve that value to the extent possible.


In practice, this might involve such questions as: Should the counterparty be required to continue performance during a dispute? Should judicial access be agreed upon (or waived) for immediate preliminary relief? Should party have the right to cease payment upon certain conditions? Is the other area of our business critical to both, so that the overall relationship is more important than this particular deal? Should “buffers” be built in to make it difcult for any party to abruptly terminate performance? Does the party have assets in the home jurisdiction that may be subject to attachment? Conscious and rigorous analysis of the deal, on the assumption that disputes will inevitably occur, is the rst step in drafting contract clauses that add value to the deal as a whole. The next step is to negotiate and draft such clauses with sophistication. A threshold question is whether the contract is cross-border. A “cross-border” deal may be one where the parties are residents of different countries. But it may also be where performance is to take place in a different country, or payment is to be made in a different currency, or where collateral is located outside the country of performance, or where governing law is different from the law of the residency of all of the parties to the deal. Cross-border dispute resolution is different from domestic. The selection of neutrals, the rules chosen for the process, the reliability and integrity of the enforcing courts, the cultural predispositions of the parties and their legal representatives, the restrictions on civil courts’ powers compared with those in common law countries, the practicality of enforcing a judicial judgment compared with enforcing an arbitral award under the New York Convention – all of these questions arise in cross border disputes. International dispute resolutions pose a different set of challenges, and needs

a completely expanded approach for drafting. Dispute resolution processes are divided into two categories – processes in which the parties retain control over the procedure and the outcome, processes in which they cede that control. The rst category includes “consensual” processes, such as negotiation, facilitated negotiation, early neutral evaluation, joint expert evaluation; the second category includes “adjudicative” processes, both private (arbitration) and public (trial). Most enterprises must prefer consensual processes. They yield more commercially rational results, remain in the control of the disputants, are condential, and center on business rather than legal concerns. The transaction costs for consensual processes tend to be lower than adjudicative processes. It is therefore almost always advisable to frame contractual dispute resolution clauses so as to exhaust consensual processes before incurring the costs and other disadvantages of adjudicative means of dispute resolution. This structure is called “stepped” clauses – negotiation leading to mediation (or other ADR methods) and only then leading to arbitration or litigation. These are the fundamental questions that each drafter should be asking, to determine whether its dispute resolution agreement is t for the task. Notice: To whom should notice of a dispute be given? How soon after the event giving rise to the dispute must notice be given? What specicity should the notice contain? Scope: Are all matters to be treated the same way or are certain matters (such as breaches of condentiality or misuse of intellectual property) to be carved out of the scope of the clause and subject to immediate judicial relief?


Rules and Initiation: How are formal processes such as mediation or arbitration formally initiated, and what rules will be followed? Administered or Unadministered: Shall the formal processes be administered by an ADR provider body (such as FICM-MCN) or will the parties choose rules that give them and the neutral that authority (such as UNCITRAL)? Time Periods: To ensure efciency and commercial good faith, shall the various steps of the process be limited? For example, shall mediation commence automatically if a negotiated agreement has not been reached within XX days? Designated Representatives: Shall the parties designate the level and seniority of their negotiators, and the identication of an agreed-upon arbitrator or mediator? Should the negotiation stage continue at a higher level if the initial negotiators are Privilege and Condentiality: Are the various ADR processes to remain condential? Are statements and information exchangedunsuccessful? Location: Shall the mediation or arbitration occur at the location of one party, or in a third place? Information Exchange: Shall initial notice of a dispute be accompanied by documents and information sufcient to advise the receiving party of the facts giving rise to the claim? In arbitration, shall costly discovery processes, such as electronic communications, interrogatories and deposition in the course of settlement discussions inadmissible in a subsequent proceeding? Conditions Precedent: Must negotiations take place prior to mediation, and must mediation take place prior to arbitration or


litigation? Any exceptions? Provisional and Interim Relief: May the parties seek immediate provisional relief from a court or an arbitrator? If so, with respect to what relief, and to what end? Continuing Performance and Right of Termination: Are the parties to continue to perform during the pendency of the dispute? Do the ADR provisions erode any party’s termination rights? Selection of the Neutral: Shall the mediator or arbitrator be selected pursuant to institutional rules, or do the parties wish to delineate criteria to guide the selection? If the parties choose to control the selection of the neutral themselves, how shall that selection process be structured? Awards, Costs and Fees: How shall the costs of the mediation be allocated? Is an arbitral tribunal free to make any award it wishes or shall its powers be bounded in some way? May consequential damages be awarded? May the tribunal award attorney fees to the prevailing party? Form of Award: Shall the arbitral award be reasoned (written)? Shall the tribunal be required to issue its award within a specied period of time after close of the hearing? Customized ADR Processes and Other Issues: Parties may wish to create an ADR process that suits their precise needs. For example, shall they jointly engage a neutral expert to opine on technological or other issues in dispute? Shall the arbitrator offer to mediate the matter after drafting the award but before issuing it? Shall the arbitration take place in a specied language and, if so, who pays for the translation? What law shall govern (a) the substance of the contract, (b) the arbitration process, and (c) the enforcement of the arbitration award?

Human behavior Hardwired for Adversarial Struggle


This inherent human behavior tilts our choice for an Adversarial approach to resolve disputes, instead of making a choice of consensual process as the rst option. Choice of litigation res up this behavior further, sometimes causing a bigger damage for all parties in dispute. Human beings resist change. And evolutionary psychologists are not surprised at all by the fact that, despite the fact that change is given, almost everyone resists it except when they are dissatised. Evolutionary psychology holds that although human beings today inhabit a thoroughly modern world of space exploration and virtual realities, they do so with the ingrained mentality of Stone Age hunter-gatherers. People today still seek those traits that made survival possible then: an instinct to ght furiously when threatened, for instance, and a drive to trade information and share secrets. Human beings are, in other words, hardwired.

A good lawyer should be: not someone who encourages clients to start law suits and who feeds on conict, but someone who puts out res and strives for consensus. The FICM-MCN ADR Lawyers are different type of lawyers, who seek consensus and start from the needs, rather than the positions of their clients.

Evolutionary psychology, in identifying the aspects of human behavior that are inborn and universal, can explain some familiar patterns. It sheds light on why people behave in ways that don’t appear to be benecial to themselves or to their businesses. If evolution shaped the human body, they say, it also shaped the human mind. Sometimes our ancestors lived below the margin, with barely enough food to get by and no secure shelter. Or they experienced a direct threat to their lives from a predator, a natural disaster, or another human being. They had no option but to ght furiously and


willing to do anything to save themselves. Thus, we are hardwired to avoid loss when comfortable but to scramble madly when threatened. Such behavior can be seen in business all the time. Human beings became hardwired to stereotype people based on very small pieces of evidence, mainly their looks and a few readily apparent behaviors. Such propensity to classify is human nature doesn’t make it right. People are complex and many sided. But it is illuminating to know that we are actually programmed not to see them that way. The vast majority of human beings avoid loss when comfortable with life and ght furiously when survival requires them to do so. Human’s hardwired behavior of ght and ight at the time of risk/crises, makes litigation (adversarial approach) sought after mechanism for dispute resolution. Our response patterns to conict cause 'furrows' to form in our brains that cause us to interact in ways that can seem impossible to escape. Our reactions to conict, or our willingness to become locked within it, is in a very real sense a habit of the brain that has developed over time. Many of us have felt quite helpless in the face of some of our reactions, during and after the fact. There is a biological basis for understanding how we become conditioned in any number of ways, including how we become rooted in conicted styles of interacting under the stress of a dispute. We may wish human beings were more rational, but our brains, created for a different time and place, get in the way. But

the truth is, today we need rationality more than ever. The world is increasingly complex, and we must make harder, more layered decisions faster and faster. We may wish human beings were more rational, but our brains, created for a different time and place, get in the way. But the truth is, today we need rationality more than ever. The world is increasingly complex, and we must make harder, more layered decisions faster and faster. Given the capacity of our brains to rewire, and our amazing abilities to adapt once we develop an awareness of the outlines of any challenge, like overcoming patterned behaviors, mediation and mediated processes offer disputants an environment for safely exploring creative new solutions to old problems. When we become willing to consider how our own reactivity tends to keep us recycling, and that sometimes our response to anxiety producing circumstances are almost unconscious, we are suddenly freed to look deeply at how we might honor and protect our own interests while honoring the views of adversaries. When people are assisted in developing options that are more visionary and mutual than what Courts impose, the process costs them less, they are more satised, they reach agreements that are lasting, and that they can positively inuence those around them and especially those who depend upon them for emotional and nancial support.


Lawyers share a professional legal culture that strongly emphasizes using law and its rights and remedies as the framework for resolving disputes through Adjudication.


Many corporate commercial managers discussing mediation noted that his company’s main problem is lawyers, explaining that “advocates don’t think the way other people think.” Lawyers prefer adjudicating to resolve commercial disputes. Advocating or defending legal positions before courts or administrative bodies as their most important role.


Legal cultural and other factors influencing Lawyers’ reluctance to mediate disputes. Commercial relationships create substantial economic activity through licensing, distributor, supplier, joint venture, and other transactional arrangements. Changes in economic, market, and other circumstances occur after these relationships begin, however, and often produce differing performance related perceptions and contractual interpretations. These differences may generate disagreements regarding responsibilities, obligations, performances, and entitlements that may escalate into commercial disputes. Because such commercial disputes are increasing, moreover the courts in India are ill prepared to deliver speedy justice, choosing how to confront and resolve them supplies important tasks for lawyers. Lawyers often rely on their adjudication-inuenced habitual ways of perceiving and acting while recommending and taking primary responsibility for the means used to pursue their clients’ commercial dispute resolution objectives.

not the rst line of option for most lawyers. Although found in most of the world’s cultures and practiced for centuries, mediation is the least used option in this menu. Negotiation is used far more frequently, and it is typically conducted by company representatives before involving lawyers or by in-house counsel before hiring outside experts. Mediation enhances negotiation by allowing lawyers and business persons to converse with the assistance of non-dispute involved mediators who encourage constructive communication and interaction. Mediators help negotiators frame conversations in ways that counter selective and partisan perceptions, exploit shared and independent interests, and investigate resolutions that promote mutual gain. Unlike judges and arbitrators, mediators do not decide issues or enter judgments. Instead, mediators use condential sessions to generate more and better information that often helps participants create agreements that accomplish more than is allowed by the narrow, win-lose remedies available in adjudication.

Non-violent / Non-adversarial and consensual dispute resolution options are

Combating biased perceptions and distorted judgments, mediators help participants craft


resolutions that allow all disputants to satisfy some of their interests. Mediation more fully honors these business interests by looking forward to assess future commercial opportunities rather than emphasizing on looking backward, as adjudication does, to determine legal consequences arising from past events. Disputes generate strong emotions reecting anger, distrust, and interests in self-preservation that inuence dispute resolution process selection. Powerful feelings of suspicion, betrayal, and disrespect often inuence desires for achieving vindication, using professional advocates and punishing dispute counterparts. All of these emotions inuence choosing to adjudicate commercial disputes to achieve vindication by winning and inicting harm. Sharing a professional tradition of intense commitment to their client’s cause, lawyers risk reinforcing partisan emotions when discussing commercial dispute resolution options with angry and threatened clients. Sometimes lawyers intentionally strengthen their clients’ emotional res to encourage adjudicatory choice. More often, lawyers remain neutral initially but personally experience partisan perception after adjudication is selected and produces quarrels and skirmishes.

human decisions by inuencing choices and actions that attribute more weight to avoiding loss than achieving gain. Loss aversion is an innate emotional aw in human brains, and everyone who experiences emotion is vulnerable to its affects. The Traditional Dispute Resolution Lawyers Lawyers share a professional legal culture that strongly emphasizes using law and its rights and remedies as the framework for resolving disputes through Adjudication. Many corporate commercial managers discussing mediation noted that his company’s main problem is lawyers, explaining that “advocates don’t think the way other people think.” Lawyers prefer adjudicating to resolve commercial disputes. Advocating or defending legal positions before courts or administrative bodies as their most important role. Civil lawyers view themselves primarily as advocates in adjudication. Historically, this strong attachment to dening their role as adjudicatory advocacy has constrained expanding their activities as counselors and allowed competitive, legal-related occupations to perform much of this activity. All these emotional-brain and neural short-cut biases, combined with powerful legal cultural inuences explain why lawyers resist mediating commercial disputes.

Lawyers routinely demonstrate optimistic overcondence. Biased, inaccurate future outcome predictions often inuence lawyers to recommend adjudication, and their clients frequently follow this advice based primarily on these forecasts. Commitments to adjudicate often harden when commercial clients independently reach equally optimistically overcondent predictions that amplify and reinforce their lawyers’ biased forecasts.

Overcoming mediation resistance begins with identifying that mediating exists as an optional method for resolving commercial disputes. Because of long-standing traditions to view adjudication as simply what is done when participants cannot negotiate commercial disputes successfully, this initial step of consciously making a decision about mediating often disappears.

Distorted selective and partisan perception, xed pie and zero-sum biases, and optimistic overcondence often combine to activate a powerful, emotion-based mental habit, loss aversion. Loss aversion motivates humans to escape anything that feels like loss. People are more motivated to avoid losses than to achieve gains. This powerful mental habit often shapes

Lawyers, executives and managers assume that they have no other choice than to adjudicate. Failing to appreciate fully the ways mediating differs from and is superior to unaided face-toface negotiation, they assume that disputes cannot resolve consensually because they have already tried to negotiate them without success. They also often fail to grasp how mediating


creates opportunities to achieve many different goals and provides process and procedural tools not offered by adjudication. Lawyers must question these assumptions and restrain their automatic, habitual desires to adjudicate commercial disputes. Lawyers enjoy monopoly status as persons generally permitted to represent human and entity clients in lawsuits and arbitrations. We all tend to sell to our strengths and adjudicating allows lawyers to market their primary product lines of knowledge of legal rules, rights, remedies and defenses and abilities to apply this expertise persuading external decision-makers. Adjudication emphasizes issue-oriented dispute resolution which focuses on legal rule connections and applications. Lawyers enjoy feeling in control and central to the action. As compared to clients, adjudicating lets lawyers exercise control, play dominant roles, and remain central to the endeavor until external decision-makers act. Lawyers usually prefer leading to following, and adjudicating requires them to lead as they plead claims and defenses, assemble evidence, and present arguments. Clients usually defer to their lawyer’s knowledge and expertise in these realms and focusing interactions on lawyers’ expertise lessens attorneys’ needs to share agendas with their clients. Lawyers, like all humans, feel most comfortable doing what they know best and resist performing actions that present more challenge and produce less comfort. Change is never easy and it often generates fears of making mistakes and receiving negative judgments. Lawyers reject mediation because it changes resolution process dynamics and gives them less control, centrality, leadership, and opportunity to display legal knowledge-based advocacy. Lawyers avoid mediation because it puts them outside their comfort zone by requiring actions that acknowledge and respond to the complicated, interactive emotional dynamics that arise during dispute resolution. Mediation reduces lawyer control by substituting a less formal consensual process where clients attend and have opportunities to participate substantially, for more rule-bound adjudication

approaches where clients often are not present, do not participate unless testifying, and transfer decision-making to judges, arbitrators, or juries. Mediating anticipates larger roles for clients than they play in adjudicating. Mediating typically requires clients to attend, and provides several opportunities for them to talk and listen in joint sessions when all disputants meet together, and in condential meetings conducted outside the presence of all or some other participants. Mediating gives commercial clients opportunities to hear counterparts’ perspectives directly without distortion from their lawyers, interact directly with counterparts, and make informed comparisons between best mediation options and likely adjudication outcomes. While lawyers typically play central, often leading, roles in the managed discourse that comprises effective mediating, their actions occur in the presence of and in collaboration with representatives of their commercial clients and their counterparts. For example, their analysis of case strengths, weaknesses, and outcome forecasts are typically discussed condentially yet in their client’s presence. Because this presents risks of surfacing evidence gathering and evaluation errors, it often encourages more preparation by lawyers than face-to-face negotiations generate. In addition, mediation lessens lawyer’s law-based expertise by integrating consideration of non-monetary and other interests outside legal frames, deemphasizing determinations about applicable law, and seeking outcomes parties can live with considering costs, benets, and risks. Finally, mediating challenges lawyers to navigate emotional dynamics skillfully, managing themselves in the midst of emotional stress while conducting effective professional interactions with others who are often strongly inuenced by emotions. Discussing mediation as a preadjudication option counters brain-based and cultural biases and helps lawyers approach the challenging tasks that mediating encompasses.




The use of the trial as the dominant form of dispute resolution is diminishing, yet law schools continue to train young lawyers as if the courtroom will be the principal venue for addressing legal conicts. The historically narrow focus of legal curricula on litigation and appeals is insufcient to prepare young lawyers for the world that awaits them. While clients will continue to need attorneys who are effective in court, lawyers are increasingly called upon to play a much wider range of roles.

Systems analysis skills may thus be used in situations as diverse as: Ÿ





Law-trained professionals often must work “upstream” in the life of conicts. They must understand how to prevent conicts, manage them more effectively and efciently at an early stage, and successfully resolve those that ripen into legally-framed disputes. They are called upon to be organizational problem solvers as members of multi disciplinary teams. And - most interesting to us - attorneys in these broader roles sometimes have the opportunity to help organizations create or improve systems that prevent or address conicts before and after they evolve into full-edged disputes.


An attorney who negotiates contracts for joint business ventures as they select and draft language for the processes that will be used to prevent, manage and resolve conicts that may arise; A general counsel or outside counsel who revamps an employee grievance procedure or designs a payout system connected to the settlement of a multi-party class action; A legal advisor or diplomat who counsels a country emerging from conict on how to create multi-tiered justice systems that address punishment as well as reconciliation in an effort both to achieve justice and prevent future violence; A judge or court administrator who develops multiple settlement and case management processes to better serve litigants; A legislator or legislative staff member who develops new policy with enforcement mechanisms and an implementing regulatory scheme. In short, dispute systems analysis is an essential skill in systems design, and one that we believe should be widely taught in law schools and better understood by attorneys.

Commentators on dispute systems design have since proposed a number of characteristics that bear on whether these criteria can be met. They propose that the best systems involve: Ÿ




Multiple process options for parties, including rights-based and interest-based processes Ability for parties to “loop back” and “loop forward” between rights-based and interest-based options Substantial stakeholder involvement in the system’s design Participation that is voluntary, condential and assisted by impartial third-party neutrals System transparency and accountability Education and training of stakeholders on the use of the available process options

INTERNATIONAL 22 India desperately needs new ways of administration of civil justice


An inclusive integrated dispute resolution eco-system for Importers, Exporters, cross-border investors ....



While Europe, America and other parts of the world are cris- crossed with arbitral institutions, but unfortunately most of these institutions have become complacent, plagued with unnecessary procedural and appointment delays, exorbitant costs, limited pool of arbitrators and some awards that do not get enforced. Moreover even if the awards are delivered, enforceability of the awards is delayed, sometimes for many years. Moreover none are really addressing the needs of small and medium business transactions while they may also not have a viable reach outside of the countries in which they themselves operate. What is the solution? Why are we using one mechanism only? And why having only few institutions? why not an all inclusive, integrated network or web of institutions in every state of the world? Disputes can be resolved to its ď€ nality if we use cost effective hybrid mechanisms at our own time, pace and place of comfort. Why should we struggle in an international dispute so much so that we end up wasting valuable time and lot of money, still uncertain, if the award can actually be enforced against any asset of a state or not. The entire dispute SYSTEM needs a big change, including arbitration, with a new worlds perspective, with a

purely commercial perspective. To deliver viable international commercial dispute resolution solutions, we need ONE inclusive global SYSTEM. A dispute resolution eco-system around the world that incorporates all procedures that take care of disputes emanating from any country, including all those countries that have signed up to the obligations of the New York Convention. We need one global body governed by its own members, having exible and diverse set of rules, a diverse and large panel of dispute resolution talent from around the world who have profound knowledge and insight. An institution with a inter-continental reach, which allows all of the continents to participate. FICM-MCN has drawn up the plans that would allow any regional players in ADR that would wish to join the transnational global phenomena. Businesses operating in transnational transactions can now operate conď€ dently with a safety net to manage and prevent disputes and to enforce their rights and obligations in the international environment. More and more commercial enterprises and companies of all sizes are signing up to common ground rules and ethics in commercial transactions and are also pledging to resolve disputes through consensual mechanisms before looking for any adversarial options.


International Commercial Arbitration Is that really delivering justice?


The recent surveys show that there is growing concern over the process. ICA is losing its credibility and attraction among the parties due to excessive costs, time and unpredictable arbitral awards. Even as arbitration awards nd criticisms from the losing side, so little has changed in terms of the mechanisms and procedures used by tribunals and practitioners. The rapid growth of international trade and exposure to new partners, countries, cultures, legal systems and trade practices is bringing new challenges and risks for the international cross-border trading and commercial transactions. Dispute management, prevention and resolution is one of the very important aspect of risk management in international commerce and transactions. Dealing with international cross border disputes is becoming highly expensive and effects small businesses to its core, sometimes endangering their existence. How can businesses avoid or resolve disputes during various contractual phases, from negotiation through to performance?

The lack of a delocalized international court system with the power to resolve private cross-border disputes of all kinds has led to a fragmentation of dispute settlement forums, and arbitration became the preferred method for the resolution of such disputes. Mainly due to the fact that legal fraternity world over pushed this private adjudicative method of dispute resolution – the most loved method of qualied legal professionals around the world. Until recently, international arbitration was widely seen as fair, neutral, and effective. The eld’s rapid growth reinforced this perception, helping establish international arbitration as the default mechanism for resolving transnational disputes. Today, this perception is changing. International Arbitration is becoming too costly, time consuming and inefcient. Many now doubt the fairness of the arbitration process, the integrity of some decisionmakers and institutions, the binding effect of awards, the options of appeals when awards are arbitrary and the legitimacy of awards obtained in international arbitration. The arbitration system has become too arbitrary and broken down to a degree and needs a new avatar - a new way to deal with international cross border dispute resolution. There are several methods and mechanisms of dispute resolution, not just arbitration, many of these methods can be combined with arbitration, to ensure early and cost effective resolution, and the binding effect and enforcement of the awards. In the last few decades, the use of other


consensual ADR mechanisms has increased, but not much happened in the International Commercial Dispute Management Arena. Most of the arbitrators and institutions have acted alike, to predominantly focus on the adjudicative approaches only. Dealing with cross border disputes bring lot of stress and anxieties due to that fact we feel not at home. There is a strong need of one “Delocalized international commercial dispute management system” governed by the businesses and business stakeholders themselves. We can not rely on just one process “Arbitration” and just few institutions administering this process with limited pool of arbitrators for resolution of commercial disputes. We need an inclusive, integrated comprehensive system in place, that is

free of all the systemic bias and overload. Currently, international commercial arbitration embodies, to a large extent, western standards, but a key question is whether or not those standards are the correct standards of nding commercial solutions around the world. Today, we need a system and an institution that attracts and appeals to a growing base of users from the developing world. Merging different arbitration cultures (eg East, West, developed and developing) and using an hybrid or combination of different process (not just Arbitration process) will make this world a safer place to transact and trade across borders. The practice and regulation of international arbitration must better reect its broad international user base: to recognize the


international nature of arbitration and to fully integrate different approaches and attitudes towards arbitral law and practice. Parties need a wider range of DR options besides Arbitration, to select a method most appropriate to their cause and to resolve commercial and trade disputes in the best interest of International trade community and all its stakeholders and to deliver actual justice to all parties - big or small. Parties in the international commerce need to feel secure, having a safety net to protect their genuine business commercial interests within a well dened and dynamic legal and commercial eco-system.

Who cares? When you are in an international arena, wanting to protect your own commercial interests related to cross border transactions. Maybe only you and the other party will have to care about the safety and management of conicts between themselves in most apt manner. The business communities in cross border disputes cannot leave this to the states as no one other than businesses themselves will be able to see or care for the ever changing perspectives, needs and interests of businesses in the International transactions. Complacency is the buzz word. The international rule makers will be complacent about the process and the outcome until we ourselves nd the solution. No outsiders will be able to continually recognize the changing demands of the users of the process. We all need a system that is all time concerned and exible about the ever changing needs and demands of communities in the international crossborder transactions and ensure that the complacency is never the barrier to this most important safety need of businesses in international transactions.


How FICM-MCN ecosystem is enabling dispute resolution for international commercial transactions? Governed by all its members, FICMMCN is transforming the International Commercial Arbitration landscape. It will now be no more an old boys club or the sole domain of handful arbitrators operating from handful arbitration Institutions from select jurisdictions. The new word thinkers and doers, innovators and a diverse plethora of wisdom are changing the way commercial disputes are resolved internationally. The plain "Arbitration" with age old process is giving way to innovative hybrid approaches, designed, devised, developed and administered by the institution that is governed by the international business community itself. Parties are willing more and more to appoint new faces backed by the FICM-MCN trust for neutrality, quality and efciency to ensure speedy proceedings and awards that set the disputes to its nality. The strong conict rules; procedural controls and unique mechanisms of appointments of Neutrals are enhancing the legitimacy of the process and overall satisfaction of parties with the process and its outcome. As international commercial transactions have grown in complexity,

self governed international commercial dispute system is emerging as a governance structure that possess the requisite exibility, technical expertise, privacy, condentiality, and speed to allow these transactions to operate efciently. By employing a wide range of highly professional new world dispute resolvers (mediators, arbitrators etc.) FICM-MCN is creating a highly effective system in which rarely awards may be challenged. Governed by its members from around the world, the organization is one of its kind neutral body shaping the International Commercial Dispute System design, that serve the best interests and needs of international trade and commerce. FICM-MCN will keep on establishing a hierarchy of commercial legal norms that integrate both transnational and domestic public policy concepts. This hierarchy of norms, along with democratic structure governed by all members, will form the core of our emerging constitutional order beyond the nation-state, to accomplish the mission of one world, one institution – to deliver commercial meditative justice.


The goal is to all time maintain arbitration (dispute resolution) as a exible, speedy and costefcient dispute settlement mechanism where the arbitrators and the parties conduct the process according to the requirements of the particular case and not try to use a one size ts all approach. Enriching the practice of international integrated arbitration (integrated dispute resolution) and address issues of integrity, a change in the culture that promotes selection of due process, seat of arbitration, venue, selection and appointment of dispute resolution experts, neutrals (negotiators, mediators, arbitrators etc). Domestic courts of many countries, and in particular the United States Supreme Court, have largely left transnational adjudication to the realm of arbitration. To achieve this support for the International Commercial Dispute Resolution, it is necessary to construct one autonomous global-wide ecosystem, a network and a culture that denes International Commercial Dispute Resolution. To develop a governing structure which will dene modern arbitration, to move towards instituting own mandatory norms and to defend the continued expansion of capitalism and legitimize the private resolution of International Commercial Disputes.


Impartiality and the perception that decisions are being made by an ‘old boys’ club’. A limited pool of arbitrators with institutions is one of the causes of resulting delays in scheduling hearings and receiving awards. FICM-MCN is addressing this key issue, by the appointment of the largest, widest and deepest pool of talent as Neutrals from around the world. The Process Several procedures of FICM-MCN include some that will be based largely on documents, with less reliance on witnesses and having short hearings. While the proceedings may not be ‘fast-track’, the time and cost of the entire proceeding will be contained. Rules of Dispute Resolution Processes The FICM-MCN Rules are the most comprehensive range that can custom t almost all kinds of cases emanating from contracts and jurisdictions. This approach needs a very tightly managed dispute management system governed by the users only, as the commercial agreements at times, rarely describe in detail how the dispute resolution procedure will be conducted, and once a dispute has arisen, parties often nd it hard to agree on such matters. Costs issues Various surveys have identied cost issues as “arbitration’s worst feature”. Such feedback cannot be ignored and is related to the second most disliked feature of arbitration in the survey, namely the lack of effective tribunal sanctions. Therefore, working on tribunals’ ‘due process paranoia’ will assist in reducing costs. Enforcement and the true time line of resolving an arbitral dispute. An international arbitration award is not worth the paper it’s written on unless it can be enforced, and so the enforceability of the

award is something that one needs to consider at the very outset of the proceeding because if there is no prospect of nding assets against which to enforce the award, then one is going to be throwing good money in a deep hole. The enforcement of arbitration awards is something that often involves skilled lawyering to the same degree as the conduct of the proceeding itself. At the time of contract negotiation, one must make sure that waivers of sovereign immunity are in the contract to provide with the opportunity of going after a governmental agency and ultimately enforcing an award against its assets or against the assets of the sovereign without being faced with the defense of sovereign immunity. Out of the anxieties, corporate parties’ try to choose governing law (seat) of their home jurisdictions. When that is not possible, parties in countries that are not favored as seat of arbitration have a tough time to decide the choice of seat. Although governing law is one most critical factor for parties, but its impact can be limited to some extent with a carefully drafted contract. Horror stories of enforcement delays are many, where an arbitral award rendered in 2004 and valued at over $340m was still subject to an enforcement stay in England in 2015. As courts have found, the role of arbitration is to foster international trade and that role is underwritten by arbitral institutions, courts, arbitrators, advocates and parties alike. The competitive diversity of stakeholders in international arbitration is the cornerstone of its adaptability and constitutes the force that is best placed to ensure it remains a reliable forum for dispute resolution. Are you in the International Trade? Wish to keep a safety net on your internal transactions? Give a call to one of our members at 08505999820


COMMENTARY 22 India desperately needs new ways of administration of civil justice





In Europe, commercial mediation is on the rise, but many parts of the business community are still largely unaware of its benets or even its attributes. In the United Kingdom, civil commercial mediation has experienced substantial growth since the Woolf Reforms, but it is still more often referred to than practiced, and only a handful of practitioners are able to support themselves exclusively by service as mediators. In both markets, the practice is more often looked upon as a means of resolving individual disputes than as a method of adding value to a business relationship or a technique to manage outside legal costs. And of course in Eastern Europe, the Middle East, Africa and (to a lesser extent) Latin America commercial mediation is an object of study more than of practice. In the United States, the take-up is broader and the application less narrow. Most corporate legal departments understand the process of commercial mediation and many companies are responding to competitive pressure to reduce their legal budgets by looking to the principles of ADR to guide them in creating dispute management systems, rather than merely using mediation as an alternative to litigating or arbitrating particular cases. ADR systems have proven to be a highly reliable method of managing streams of cases in employment and other contexts. Entire platoons of consultants have realized a tidy business assisting corporations to set up ‘Early Case Assessment’ systems. If at its heart ADR is, in fact, a tool for management, then what does it manage? Commercial conicts, yes, but commercial relationships also. Any serious student of mediation readily appreciates that the process results in the reformation and clarication of business dealings, at least as much as it does the issuance of an award of damages. It is useful in the management of critical

business partners such as IT professionals, vendors, customers and employees. There are two aspects of corporate governance that imply a role for ADR skills. One is in facilitating the work of the board itself, and the other is in creating shareholder value. Corporate governance principles that provide, in part, that ‘corporate governance issues between shareholders, the board and management should be pursued by dialogue and, where appropriate, with government and regulatory representatives as well as other concerned bodies, so as to resolve disputes, if possible, through negotiation, mediation or arbitration. But the principle seems not to have been applied in real cases of managing internal or external board conict. It is in the second role of the board – ensuring the creation of shareholder value – that the most intriguing possibilities lie for application of the core principles of interest-based facilitated negotiation. No one would seriously contend that the management of particular disputes by the legal department is a matter rising to the board level – not, that is, unless something has gone very seriously wrong, in which case it is too late. But is not the management of critical business relationships clearly a board matter? Of course it is. And it may be entirely prudent for any board to ask senior management these questions, and be satised with the answers: Does the company have a system of early case assessment, and a method of establishing reserves against contingencies that the auditor approves? If not, why not? Ÿ Does the company have a rigorously designed method of identifying and ‘



addressing streams of employee disputes? What is the track record of that system, and what trends have been uncovered? How many claims of racial or gender discrimination have been voiced, and is there any indication of mismanagement that might give rise to a suit that would have serious reputational consequences to the company? What percentage of employee disputes have remained unresolved and risen to the level of the ling of arbitration or lawsuits? What impact has the system had on rates of employee turnover and outside counsel costs? Ÿ Does the company have an early dispute detection and resolution system with respect to its critical procurement functions such as IT vendors? If not, why not? Ÿ What systems does the company have in place to manage disputes involving its patents and trademarks? What are the trends of outside counsel costs in the area of protecting intellectual property rights? What percentage of such claims result in licences, and what transaction costs are incurred between the onset of the claim and the licence agreement? Ÿ Does the company have a policy that its transactional attorneys and businesspeople draft dispute management clauses in critical contracts, that are designed to protect the value of the deal? What resources are expended to provide such training for the professionals who negotiate and draft these critical deals? Ÿ

The concept of ‘shareholder value’ takes on many forms, including measuring return on nancial investment; managing the conicting interests of stakeholders as employees, shareholders, communities, regulators; setting and enforcing ethical business practices; setting and enforcing sustainable business practices; and ensuring the continued value of the brand by protection of the company’s reputation and goodwill.


“If lawyers seriously consider ADR and hybrid approach to resolution, most of the law suits can settle early or even without court intervention.”


Research demonstrates that over 80% disputes have the potential of an early resolution, if the resolution is handled by adequately skilled and committed third party neutrals. More and more lawyers need to look at disputes as problems to be solved, but not a legal battle to be won. Dispute resolution needs a dispute resolution expert, may it be a lawyer or a non-lawyer - disputes need a hybrid approach to nd early and cost effective solutions.

93 percent of cases led with the courts are settled at some time, either through direct negotiation, mediation or arbitration. “Dispute resolution is typically much quicker and cheaper than the traditional litigation process, and [it] keeps the results condential, which can protect you from escalation and additional lawsuits.” The study and practice of dispute resolution without or least use of litigation is becoming popular, since it is the next generation of law practice. The new generation of lawyers who practice dispute resolution, need to incorporate the learning and practice of integrated and hybrid approach. Litigation is an instrument, that will be required in rare situations and the practice of using litigation as a default mechanism is gradually weaning.


Determining whether to mediate requires identifying and assessing whether signicant actual or potential commercial relationships or other business interests exist. Doing this encourages evaluating the importance clients place on publicity, condentiality, and obtaining relief that adjudication cannot provide such as apologies, modied relations, expedited compliance, licensing agreements, equipment sharing arrangements, barter arrangements, bid invitations, and future references. Mediating combats xed pie and zero sum biases by expanding resolution agendas to include these and other types of business and nonmonetary interests. Mediation process helps to shift focus from the parties and their inclinations to maximize gain against each other to solving together the commercial problems disputes present. Mediating also provides opportunities to broaden understandings of how counterparts view disputes, business interests, potential trades, and the impacts that these perspectives have on monetary remedies that are or might be asserted in adjudication. Many commercial disputes present situations where considerations external to the monetary claims framed by adjudication primarily drive decisions. Even when assessing just win-lose outcomes on legal claims involving money damages, however, mediating helps lawyers and their commercial clients realize that they lack perfect information upon which to base their case analyses and outcome forecasts. Effective lawyers understand that they do not know or understand everything relevant to analyzing and forecasting adjudication outcomes. They also know that selective and partisan perception lessens their analytic objectivity and increases risks of biased predictions. Mediating creates balanced opportunities for commercial disputants and their lawyers to speak to and learn from each other privately about factors on which case analyses and outcome

forecasts are based with assurance that what they say and do will not appear in court testimony or the media. An additional layer of condential caucusing allows private meetings with mediators and frequently generates information that would never appear in adjudication but which often proves crucial to resolutions. Condential caucuses overcome major resolution barriers that ow from strategic approaches to


communication generated by adjudicating. The enhanced communication channels that are possible in mediation but not in adjudication help commercial decisionmakers move their understanding beyond selective perception by becoming more familiar with and realistic regarding dispute facts, case analyses, and outcome forecasts. They help commercial disputants avoid

negotiation errors stemming from missing or misunderstanding important facts, legal rules, possible agreement terms, and adjudicatory outcome components. Negative, hostile emotions inuence behaviors, divert attention from resolution, and damage relationships. Positive emotions promote satisfying substantive interests, enhance relationships, and reduce

exploitation fears. Mediating often defuses hostility between disputants and combats the distortions caused by partisan perception and biased attribution. Remembering this may help lawyers manage their discomfort with dealing with the uid emotional dynamics that mediated negotiations often reveal.

Effective mediators seek to establish and maintain positive emotional climates conducive to constructive communication. They frequently respond to core emotional concerns by expressing appreciation, building afliation, respecting autonomy, and acknowledging status. They strive to introduce “light where before there was only heat” by acknowledging strong emotions that disputants often express. This permits


participants to express negative emotions, usually in caucus away from counterparts. Discussing topics triggering strong emotions in private sessions allow full expression without alienating counterparts. These conversations counter biased attribution by disentangling impact from intent. They also often generate useful information that claries interests and aids careful analysis of the costs and benets of mediation alternatives. Mediating commercial cases combats optimistic overcondence because it typically encompasses frank, mutual analysis of alternatives to agreeing consensually. Comparing what emerges as the best terms achievable during mediating with these alternatives supplies a core component of commercial dispute mediation. Effective mediators promote the development of greater information regarding mediation alternatives by discussing, usually in caucuses, strengths, weaknesses, gaps, inconsistencies, and vulnerabilities concerning specic dimensions of anticipated mediation options. Because commercial dispute resolution usually occurs in the shadow of adjudicatory alternatives, much of this conversation concerns specic information regarding case analyses and outcome forecasts. Typically occurring after disputants have presented their views, concerns, and opinions fully, these conversations often begin with discussions of analytic strengths and bases of favorable predictions. Listening carefully, mediators can convert this information to questions to ask counterparts regarding potential vulnerabilities and weaknesses in their legal positions and outcome forecasts. Mediators then tactfully phrase and respectfully ask these questions. Responding to these inquiries permits counterparts to learn and assess these contrasting perspectives. Using questions

rather than statements allows mediators to encourage lawyers to articulate responses to inquiries about potential gaps, inconsistencies, and problems. This dialogue allows commercial clients to hear pros and cons of adjudicatory analyses and predictions discussed in non-adversarial, information-oriented rather than persuasion-focused, settings. These discussions often help clients understand why and how they need to adjust their views of adjudicatory outcomes and form more realistic expectations regarding settlement possibilities and proposals. Finally, mediating counters the perceptual and legal cultural, win-lose biases that inuence the strategic ways lawyers typically negotiate money-based issues. Most commercial disputes involve at least some negotiating over money and mediators add considerable value by helping participants deal with optimistically overcondent case analyses and the negative emotions that positional bargaining between differing perspectives frequently generates. Mediating dampens the use and effects of ineffective but common negotiating tactics like unwarranted threats, dangerous bluffs, and premature “nal offers.”Money-based negotiating typically involves multiple rounds of offers and responses as participants move through their negotiation ranges. Attempts to maximize gain and avoid loss inuence tendencies to start negotiating with extreme demands reected in high or low ball offers, often considerably above or below adjudication forecasts, and to stop bargaining before reaching their best numbers. Using skilled listening, questioning, and condential caucusing, mediators help everyone deal with negative emotions generated by biased attributions that perceive evaluation differences as criticism and strategic negotiating actions as disrespect.


They also help participants deal with the escalating impatience and frustration that accompanies grudging efforts to move to midpoints between opening proposals. Analyzing and evaluating claims is not easy, and mediating helps lawyers avoid false negotiation failures during this process resulting from guessing incorrectly about what they can achieve, posturing too long, hiding real top or bottom limits too tenaciously, and concluding further movement cannot be made without unacceptable face loss. Although disputants’ best numbers usually do not overlap, mediating helps many commercial disputants nd ways to bridge the smaller gaps that usually appear once extensive negotiating identies viable ranges. Carefully examining estimates regarding all transactional costs of pursuing adjudicatory alternatives, including attorneys fees, court costs, business disruption expenses, lost commercial opportunities, time estimates, collection probabilities, and appellate risks, often helps bridge these gaps. So does analyzing shared interests in ending disputes, avoiding loss risks, and maximizing independent business interests. Mediating helps commercial clients assess carefully whether adjudicating is really necessary and cost benecial to achieve vindication, secure company reputations, reduce the incidence of future similar or related claims, or obtain decisive legal precedent. Even if agreement does not result, mediating often increases mutual understanding, resolves many issues, and narrows the focus for going forward with either adjudication or later mediation reconvened with different participants. Globalization, regional economic integration, and increased business activity amplify needs to resolve commercial disputes with greater efciency. Lawyers need to develop heightened awareness of adjudication alternatives and the promise

they hold to create mutually satisfactory, business interest based resolutions. Pre- or early-adjudication mediation, while not a panacea, supplies a valuable tool that enhances efcient commercial dispute resolution when used more often by lawyers and their business clients. Mediating builds on to rather than ignores existing lawyer skills needed to analyze fact situations, discern applicable law, and estimate adjudicatory outcomes. Mediating gives lawyers important roles in helping their commercial clients develop, compare, and then choose between accepting the best settlement option obtainable or initiating or continuing adjudication. Mediating also lets lawyers satisfy human impulses for resolution, healing individuals and organizations, and enabling commerce to function more harmoniously and productively. Humans are profoundly social beings constantly inuencing and being inuenced by each other. Small scale activities by a few individuals can generate contagious behaviors that cross a tipping point and produce dramatic, immediate changes in social practices. The tipping point for commercial dispute mediation probably occurs when mediating happens so commonly that it becomes the regular option, the default preference unless particular circumstances suggest otherwise. As this analysis demonstrates, lawyers’ resistance to mediating commercial disputes has not approached such a tipping point. But if more lawyers identied and surmounted the barriers generating their resistance to mediate, use of this benecial adjudicatory alternative might approach or even cross this tipping point.



Getting the other side to the mediation table


Those familiar with mediation note that the hardest part of the process often is getting the parties to sit down together. Ignorance of the process merits, lack of trust in the process, or the adversary, or more serious and complex emotional, social, psychological issues and doubts around the outcome are key concerns that need to be addressed in order for a mediation to take place, proceed and succeed. Causes of unwillingness to mediate Frequently, the major hangup to mediating a dispute arises not from other parties to the dispute, but from their own legal advocates. Some fear justication, that they will lose control and possibly jeopardize their relationship with their client by mediating a dispute. Others may believe that suggesting mediation to an angry client, bent on vindication will be perceived as a sign of weakness. Some people point to the inherent conict of interest attorneys face when recommending mediation. Continuing fee is the lifeblood of many lawyers and mediation frequently stops their ow of income. The situation becomes even more complex in multiple-party disputes, where one advocate can affect the income of other advocates by pushing for mediation. In other instances, advocates may refuse to pursue mediation as a tactic to prolong the litigation, making it more expensive and burdensome for their adversary. But most of the modern world successful lawyers normally put client interests ahead of their own to win client loyalty and future business and referrals. Many advocates have started believing that they have an ethical if not legal responsibility to at least apprise clients of all their options. Objections to mediation may also arise from parties, yours and theirs. For example, a

party may initially react with suspicion when mediation is suggested. Why does the other side (or my advocate) want to mediate now? Do they have something on us? Should we postpone and try to get something on them? Do they already have the upper hand? Other parties simply want their day in court. They want to go for the legal rigmarole, not a settlement. They may perceive a judge as more neutral than a mediator. Emphasizing the fact that most cases (93%) settle before trial and that they, not the judge or jury will decide if the terms of a settlement are acceptable, will make these parties think about early mediation. Up-front costs can also keep parties from mediating. Mediator fees and associated administrative expenses may appear excessive and unnecessary. Parties must understand that these costs may be far lower than those associated with protracted and potentially fruitless litigation. if you're also convinced that your opponent is not sensible and is determined to prolong the dispute or ght things out in court even after your persistent effort, the good news is that with a little help, you can probably get even an obstinate neighbor, a quarrelsome ex-spouse or an unresponsive business owner to mediate. You may be able to break through this resistance easily. The best way to coax a recalcitrant party to mediate is to do it indirectly. Have a mediation organization--not you--extend the invitation to mediate. This means your rst step is to nd a mediation organization that is appropriate for your dispute. Here are some suggestions: State that you would like to try mediation and list some reasons why--for example, because it's an efcient, low cost, no-risk approach. Ÿ Do not try to persuade the other person to mediate. Leave it to the mediation organization to do the selling. Ÿ


Never threaten the other person. For example, do not write, "If you don't agree to mediation, I will have no recourse but to commence a lawsuit. Ÿ State clearly that you have no personal connection with the mediation organization other than contacting it for this mediation. Ÿ Let the other person know that the mediation service will be calling. Ÿ

Understanding conict patterns

How a Mediation Organization Overcomes Resistance Once you tell the mediation organization to go ahead, it most likely will send a letter and supporting materials to the other side, explaining the overall benet, psychological barriers, enhancing the trust in process as well as the condence on the neutrals abilities and emphasizing the benets of mediation, including low cost, privacy and speed. If you use a private mediation company, the letter will also likely point out the high quality of the people on their mediation panels, the simplicity of the process and competitive pricing. If the mediation organization doesn't get a response to this initial mailing within a week or two, a staff person, often called a "case manager" or "case coordinator," will usually follow up with a phone call to answer the other side's questions about mediation and review mediation's potential benets. If the other side declines to participate based on their lawyer's advice, the staffer may ask permission to call the lawyer directly to be sure the lawyer understands mediation. Before long, the case manager may nally report good news: the other side is willing and ready to mediate. If so, the two of you can select a mediator and schedule the mediation. The worst-case scenario is that mediation fails and parties proceed with litigation as they would have anyway. Still, with more than 90 percent of mediations resulting in settlements, the odds are with you and the stakes are low. Mediation offers all parties a chance, usually the only chance in the life of a case, to sit at a table with their adversaries and spend sufcient time trying to work things out.



In general terms there are three primary patterns that persons in conict employ or express as a coping mechanism: Accommodation, Avoidance, and Control. They manifest in behaviors and speech, or the seeming absence thereof. They tend to look like this. Do any seem to t your style of dealing with conict more than others?

One reason why people become "stuck" is that they develop patterns of dealing with conict, over time, with their spouses, domestic partners, employers, children, inlaws, and just about everybody else. We respond in repetitive types of ways. These can be likened to unconscious "strategies" in the sense that we rarely make a decision to employ one pattern or another. The patterns can become conditioned over time, and may become a part of how we have structured our personalities.


If you are considering mediating your family law matter, it may be helpful for you to reect on your conict interaction patterns. One important reason why is that conict patterns provide a strong argument in favor of using mediation instead of some other dispute resolution method like the Courts, violence as an extreme example, or just plain arguing or disruptive conduct (yes, each of those can be a strategy for overcoming conict).


At FICM we suggest that some form of peacemaking is the only approach that resolves disputes - the others just impose outcomes and call it a "result" or perhaps a "consequence."


Giving in Playing the victim Attempting to pacify the other Deference to the law Deference to the mediator Emphasis on sense of personal inadequacy Ÿ Wanting peace at any price Ÿ Failing to assert one's own needs




Refusing to participate in mediation, litigation, or even conict itself Avoidance of differences Indecision Withdrawing behaviors (refusing to engage and isolation) Going off on tangents Being overwhelmed by complexity Difculties processing information Wanting it over at any cost

Control Dominating the other party or the process Seeing only one's own interest Rigid positions and outlooks Blaming behaviors Shaming behaviors Threatening behaviors Inability/unwillingness to view situations in different ways Ÿ Acting in ingratiating ways towards the other party or the mediator


Understanding these patterns and how they play out in your life, and in struggles with others is an essential rst step to moving forward. We believe that the existence of these patterns is an important reason why people should consider mediating their disputes: The avoider avoids, and his or her interests are not protected Ÿ The accommodator accommodates, and so sacrices his or her interests Ÿ The controller controls, tramples the interests of others, and their own as well Ÿ

Mediation holds the promise that these patterns, including the triggers that the cause them, can be understood and real choices can be restored that are much healthier for all concerned.


Law as an instrument of Justice and a tool of oppression


What are Laws? The existence of laws is fundamental to a society governed by the rule of law. However, the creation and enforcement of laws does not, of itself, constitute or enable a society to be governed by the rule of law. The important distinction must be drawn between a society governed by laws and a society governed by the rule of law. A society governed by laws, without consideration and embrace of the rule of law as a guiding and underlying principle, has the potential to be a tyrannical or “Police” state. A “good” law: Ÿ Protects individual freedom; Ÿ Ensures collective security (including through the individual’s responsibility to not infringe that security through the prudent exercise of his/her freedom by reference to the freedom of others); and, Ÿ Acknowledges and protects fundamental rights. Yet clearly there are examples where laws have not met these purposes and yet have been laws enacted by elected governments. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. But are we truly living in a state so dened? ...Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the ow of social progress. - Martin Luther King Jnr Laws are the means by which political will is given expression. Thus if the political will is not just then nor will be the expression of that will. In this sense the absence of justice constitutes injustice and injustice oppresses. Similarly, a law passed for an unjust purpose will oppress. What is the Rule of Law Most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it” India is very poorly ranked in "Rule of Law Index" among 100 countries around the word. While being a largest democracy in the world, it's time we realize that massive legal justice reforms are the need of time.


Dispute System



In our society's culture there are basic agreements about cooperation and transactions between members as our social systems are ordered by threat, exchange, and integration or love. We know from our own day-to-day experiences that people fail to cooperate as often as they do cooperate. Dispute resolution is a part of every society's culture, and in each society some methods are favored over others. Each culture in the world may be unique, but underlying each culture is its own specic system that determines how to resolve disputes. But, some systems of dispute resolution lead to consistently inefcient outcomes, by encouraging and reinforcing actions that are not in the best interest of everyone involved. FICM-MCN focuses on designing dispute management and settlement systems, tailored to the situation, using best practices of conict resolution. Dispute Systems Design (DSD) is a method for resolving intractable or frequent conicts in troubled communities, organizations, businesses, or entire industries. It involves three ways of resolving disputes: by negotiating interests, by adjudicating rights, or by pursuing power options. Ideally, disputes should be resolved at the lowest level, through negotiating interests. Claims of interest focus on the desires of the actors in any given dispute. Rather than focusing on what a person can do based on their rights and power.


Actors should focus on what they would like to do based on their own interests. Interest-based claims are more negotiable, and hence less likely to become intractable. Only if interest negotiation doesn't work, should the parties try a rights-based approach. Today most disputes, even minor ones, are tried to resolve with either adversarial or sometimes using power struggles. A healthy dispute management system resolves most disputes at the interest level, fewer at the rights level, and fewest through power options. This is healthy for several reasons: Negotiating interests is less expensive than adjudicating rights or pursuing power options. Ÿ Negotiating interests results in mutually satisfactory solutions, while the other two approaches are win-lose, meaning one side wins and the other side loses. Ÿ When power-based approaches are tried, the losing side often is angry, and may try to "get back" at the other side whenever they get the chance. Ÿ Interest-based negotiation is usually less time consuming than the other approaches. Ÿ

System Design Principles Put the focus on interests This means any dispute resolution should start with a process (either direct negotiation or mediation) where the parties try to solve the problem using interest-based bargaining. This is the best way to nd a solution that satises everyone. Only when this doesn't work, do you move on to rights-based processes (such as arbitration) or power-based processes (such as elections).

Provide low-cost rights and power backups Arbitration, voting, and protests are lowcost alternatives to rights and power contests. Although they are higher in cost than negotiation, they are less costly than adjudication or violent force. Build in "loop-backs" to negotiation Rights-based and power-based strategies for resolving disputes seldom need to be played out to the end. Rather, as soon as it is clear who is going to "win," parties can return to negotiation to develop a solution which best meets their needs, as well as their rights. Build in consultation before, feedback after Increasing shared information is a basic strategy in ameliorating all conicts. Consultation and feedback mechanisms between parties provide a consistent and reliable method of sharing information. Arrange procedures in a low-to-highcost sequence Dispute-resolution systems typically have a series of steps. If one has a grievance or a conict with another person or an organization, rst you try to solve it on your own, and then you seek the help of a expert negotiator, mediator, conciliator, arbitrator or a lawyer etc. By arranging dispute-resolution procedures in a low-tohigh-cost sequence one can reduce the probability of rapid escalation. Minimizing this tendency toward rapid escalation had the added benet of reducing enmity and increasing faith in the ability of the system to resolve basic disputes.



diagnosis design implementation exit, evaluation, and diffusion

These stages are self-explanatory, but they are helpful for explaining the changing roles that third-party interveners must perform in designing new dispute-resolution systems. Focus more on the process of designing dispute-resolution systems than the content. It implies that there is no single approach to designing dispute-resolution systems; the ndings over the course of implementation should determine the specic content of each dispute-resolution system. Each system must be tailored to the groups involved. Further, it implies that a well-designed system should be self-sustaining. Once the system is in place, the process should be successful. Dispute Systems Design – Focus on Systemic Conicts We would expect conict to occur in any system, and in most systems, specic patterns of conict will recur, indicating a problem with the system itself. DSD is focused on managing disputes once they arise, but interveners should focus instead on resolving underlying systemic conicts. For example, some actions have lower costs than others. Inefcient social systems will consistently attach lower costs to actions that result in inefcient outcomes. This can be a major source of systemic conict. One goal of DSD is to attach different costs to the standard set of actions that an actor might take, so that the actor becomes more likely to engage in efcient behavior. Sometimes the existing system of costs leads to inefcient outcomes. For example, If it is easier for a worker to go on strike than to go through a grievance process, and

the likely outcome of the strike is better than that of the grievance process, then clearly the dispute-resolution system in place needs to be redesigned. The goal should be to change the costs attached to actions, such that the new process of rapid mediation becomes the most favorable option. New dispute-resolution systems should incorporate not only processes that encourage mediation, conciliation, and other interest-based dispute-resolution methods, but also ongoing processes that identify inefcient outcomes and attempt to resolve them. Dispute Systems Design – It’s Extension An effective dispute-resolution system should incorporate: Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ Ÿ


commitment to the values of fairness and freedom from reprisal; interest- and rights-based options; multiple access points; an organizational ombudsperson; wide scope; and continuous improvement via an oversight committee. responding to stakeholder interest; reecting important values; promoting the mission of the new agency; providing visible support by the organization's leadership; loop-backs forward and back between interest- and rights-based options; a system that is fair, exible, friendly, and fast; the goal of resolution at a low level; and mechanisms by which the organization can shift from conict resolution to management. it should include prevention and earlyintervention options; it should seek to build collaborative


Provide the necessary motivation, skills, and resources An alternative system can function only if people buy into it. People are creatures of habit, and this is the greatest limit to broad-based systemic change. While there may be active resistance from some groups to new dispute-resolution systems, the greater problem is spreading the skills, knowledge, and habits that reinforce the new system. It is incumbent on the elites in the conict, and third-party interveners, to provide the resources and time necessary to generate cooperation with the new system.

representatives from all stakeholder groups; Ÿ evaluation processes; Ÿ training; Ÿ a central coordinator; Ÿ alignment of the "philosophy of conict competency" with the mission, vision, values, and policies; Ÿ institutionalized incentives for effective operation; Ÿ a communication strategy; Ÿ incentives for early resolution; and Ÿ adequate resources for the system to function properly. It has also been suggested that DSD is most effective when:

Process / Stages Conict prevention, rather than conict management, is emphasized. This requires increasing the capacity of organizations to understand sources of potential conict and deal with them early, before they escalate. Ÿ Outside designers do not play too Ÿ

Stages for implementing the new disputeresolution system: strength through seven checkpoints; Ÿ




it should utilize the mediation model in order to build consensus among those involved. A dispute system should: contain options for preventing, identifying, and resolving issues; promote a culture that works to solve problems at the lowest level through direct negotiation; allow multiple access points; empower employees to select from a range of options for addressing the conict; contain effective structure and support to maintain options.

The Society goes on to identify ten other necessary elements: Ÿ Ÿ

leadership support; an oversight body composed of


Why always Litigation?

Is there Insufciency of legal remedies for dispute Resolution?

For solving clients' underlying problems and addressing underlying needs, legal disputes are a much narrower subset of actual human, social, political, and economic conicts. The legal eld's focus on "legal disputes" or cases is so narrow and explained so little that we must search for justice in a broader disciplinary framework. We must learn to analyze and understand

what conicts and disputes are about, in their full contextual complexity, before we can choose the appropriate behavioral response. Once we have decided on our goals and desired outcomes, we can seek to achieve them with a broader repertoire of processes and behaviors. Many critics of the legal system were focused not only on the increasing costs and delays of the litigation system (what I have labeled the "quantitative" approach to legal conict resolution), but on the quality of the solutions or resolutions produced by court orders or


If procedural justice is important to modern justice seekers, it is also important to recognize that particular processes affect outcomes. There can be functional variation to what fair procedures might be in any particular context. As long as all parties are given an opportunity to be heard on (or, participate in) decisions affecting them, they can create their own process or use any one of the existing hybrid processes. This is the principle of process pluralism (which is of dening importance to the modern dispute resolution movement and is what distinguishes us from more conventional jurisprudes who often still see conventional legal processes as the only way forward to substantive justice). We need practice to use conict creatively and constructively, to make 'Justice" in legal terms and to make "peace" in human terms. Conict resolution is a human skill (to be theorized about, taught, learned, and practiced) and a difcult but highly valued one at that. It is more than a single skill, constituting a multidimensional set of skills, implicating abilities to listen, articulate, advocate, empathize, analyze, facilitate, create, manage, and care about people and their problems, issues, values, and material well-being. Instead of focusing on limited legal remedies, our approach works on thinking more broadly about substantive problem solving and conict resolution in deeper and richer sociological and psychological contexts. While process pluralism allows us to choose different processes for functional or other reasons, we must also consider that the choice of a particular process will almost certainly affect the outcome we produce. To choose another process may allow for more creative, joint-gain, wealth creating, and satisfactory possibilities to emerge.

Compromise is NOT mediated or conciliated settlement. Compromise is often an unprincipled result in legal negotiations where parties or lawyers fail to explore the full panoply of their various needs and interests, including legal, economic, social, psychological, emotional, moral, political, and religious. The skilled dispute resolution professional may help uncover the needs of the client and other affected third parties. This broader, social welfare (if perhaps somewhat maternalistic) approach to determining what actually may be at issue in a dispute to go beyond the "framed” dispute to look at what the underlying conict is really about and "reframe" it. With a deeper and perhaps longer list of "needs," efcient trades continue (perhaps there are more or fewer of them), but parties (with the help of skilled mediator) attempt to negotiate for deeper and ultimately more stable satisfaction among the parties. Some legal matters are not capable of binary solutions and so in some cases compromises or negotiated resolutions are actually more 'just" than more extreme binary solutions, precisely because of their distributed "precision. While legal principles (especially statutory law, passed by legislatures for the “average," "aggregate," or "typical" situation) may serve as "general" justice, in particular cases justice may better be served by tailored "departures” from the general rule (as long as the negotiated solutions are not otherwise unlawful). Negotiated justice may, then, for the individuals involved, be more 'just" than legislated or court-ruled justice. Trades, tailor-made solutions, or contingent agreements, linking past to future in dynamic and changeable solutions, are often preferable to rigid, past-focused adjudication of "rights and responsibilities” from rigid legal principles.



India desperately needs new ways of administration of civil justice


FICM-MCN releases new international mediation procedure FICM-MCN released a new International Mediation Procedure, which may be adopted by agreement of the parties, with or without modication, before or after a dispute has arisen.

New Online Domains for the launch of more FICM Services and DR systems

The India council of FICM-MCN ADR Lawyers

The organization has developed the new services and will shortly launch these services under different domain names. Presently these domain names are targeting the same website, but gradually each website will have its unique content and followers. the web domains that will be launched shortly are:

FICM-MCN invites nominations from inhouse counsel, law rms and leading academic researchers to come together, collaborate and spearhead innovation in commercial conict management. www.

This partnership in development of the next generation of best-in-class approaches to dispute resolution is the hallmark of FICMMCN membership and enables a level of innovation and effectiveness that would otherwise be impossible.

Advertising opportunities in the Newsletter Magazine OnPointRESOLVE

Every FICM-MCN corporate member will have a seat on the Council, as do several leading law rms, neutrals and academics. Within the Council, members identify emerging issues and share approaches to taking commercial dispute resolution to the next level. The Council partners with stakeholders, within and outside, to advance work on specic projects – such as the Mediation Best Practices Guide for In-house Counsel, just one example of the power of such partnerships as a driving force in enhancing both FICM-MCN’s member offerings and dispute resolution capacity and capability around the world.

Leveraging Social Media for a greater Cause Launch of twitter FEED and other Social media assets for the furtherance of FICM-MCN Agenda.

Advertising in OnPoint RESOLVE is an excellent way to deliver your message to over one lac prospects across 20 countries in addition to users who read the newsletter online and other sources etc. To advertise to enquire about other FICMMCN marketing opportunities please contact

Inviting Regional Partners FICM-MCN invites people and organizations interested in exclusive regional partnerships. Partnership entails setup and management of regional center of FICM-MCN in your country. Interested parties may send a brief proposal indicating the interest of leading the development of FICM-MCN centers in your country.




India desperately needs new ways of administration of civil justice



Every stakeholder in our society, our government and in our legal system should understand the symbiosis of new world appropriate dispute resolution systems with the legal justice system. The Law schools must incorporate this knowledge in their curriculum and teach new generation of lawyers to discharge their obligation to serve the peace, order and good government of our nation through the administration of justice.


Every stakeholder in our society, our government and in our legal system should understand the symbiosis of new world appropriate dispute resolution systems with the legal justice system. The Law schools must incorporate this knowledge in their curriculum and teach new generation of lawyers to discharge their obligation to serve the peace, order and good government of our nation through the practice of hybrid and integrated dispute management and administration for enhancing Rule of Law and civil justice systems.


Dispute Prevention & consensual Resolution Culture is Pervading Corporate India.

Business Leaders are now waking up to the need of preventive management of conicts across all functions and business stakeholders. The companies are appointing specialized resources for this critical aspect of business management. Conicts cause an unaccounted loss to businesses which can run into millions and can be the cause of a destructive end. Business owners are allocating resources to professionally manage this crucial aspect which was earlier not the main focus. Companies operating in Indian environment have intensied their focus on driving greater usage of FICM-MCN Conict System Design and ADR rules, ADR resources, Expert Neutrals and other Dispute management services that extend well beyond arbitration and mediation to include special arbitrators for interim measures, deal facilitators, early neutral evaluation, dispute resolution boards, settlement counsel and Ombudsman services. Companies and their counsel can now include FICM-MCN into their proactive strategies to prevent and/or resolve disputes in a manner that best protects operations, customers and reputation. To know more about corporate Dispute System and ADR implementation, please contact at or call +91 8505999820


Organized independent consumer dispute redress with private companies.

The consumer Ombudsman FICM-MCN consumer ombudsman scheme provides a fast and cost effective way for the consumers to resolve their complex disputes with the companies. The ombudsman scheme combines neutral fact-nding, mediation and adjudication in various tiers. The scheme employs a multi-tiered process that involves elements of investigation and consensual dispute resolution methods. Companies can subscribe to the ombudsman service either for ‘reghting’ or ‘re-watching’ models; fullling either reactive (redress) or proactive (control) functions. The former involves ombudsmen being primarily concerned with individual dispute resolution and providing remedies that will redress individual injustice. The latter involves ombudsmen being primarily concerned with using complaints to generate systemic change and lead to improvements in service provision that can benet the public more generally. The CDOS Ombudsman services can be employed to resolve individual

disputes; promote change and improvements in services (but to varying extents); and adopt a therapeutic approach, which seeks to help aggrieved citizens and consumers better to understand the problems they have experienced. Therapeutic’ complaint handling activities effectively involve letting consumers down gently and helping them to understand why their complaint could not be upheld. The ombudsman involve in ‘expectations management’ and states that it involves reshaping consumers’ perceptions of their disputes in such as way that they feel able to move from a dispute. Self-regulatory industry ombudsman Established by agreement within an industry; appointed and reporting to an umbrella organization set up by industry (but containing mixed members); jurisdiction over consumer complaints about businesses participating in the scheme.


Corporate organizational ombudsman

Forms - Process characteristics

Established by institution or company; jurisdiction over internal workplace matters and/or external complaints by customers.



Functions The functions of consumer ombudsmen are: Ÿ







To provide independent resolution of disputes arising from contracts and transactions between consumers and private businesses an informal system to resolve complaints outside the court system and provide redress to groups or individuals To investigate and resolve complaints in an impartial way To use intelligence from complaints to raise standards To promote good practice in the sector they are overseeing and to increase consumer condence in the relevant industry To promote public and user trust in the bodies subject to investigation To provide advice and assistance to consumers in relation to their disputes, reducing the need for representation To equalize the balance of power between parties and identify, and provide special assistance to, the most vulnerable consumers to facilitate their access to redress To help consumers whose complaints are not valid understand why that is the case and help them move on from their dispute To enhance consumer condence and trust in the sectors subject to investigation




An impartial and fair process of dispute resolution, usually only available after a complaint has been made directly to a business A exible, multi-process approach drawing on consensual and adjudicative forms of dispute resolution An inquisitorial fact nding and evaluative process (largely in writing or by telephone) with rare use of oral hearings A condential investigation process which takes place in private (although outcomes may be published in anonymized or semi-anonymised form) An accessible and free process for consumers, with no requirement for them to be represented by legal advisers

Decision making characteristics Ÿ






Decisions that are binding on both parties, with no right of appeal, once accepted by consumers (but which do not constitute legal precedent) Decision making which begins by considering the legality of actions being complained about but which also features an equitable jurisdiction Decisions which consider the merits of the actions complained against in addition to the processes by which decisions were taken The use of exible remedies (usually with a nancial element) to provide fair and reasonable outcomes The use of expertise and industry knowledge to inform decision making in addition to the law The ability to facilitate, propose and impose solutions as part of their processes



TATA Housing signs up Consumer Ombudsman Scheme

Service would be free and help new-build house buyers to get faster redress for complaints

Reputed house builders are signing up to belong to the CDOS (Consumer Disputes Ombudsman Scheme in a bid to enhance the condence of house buyers in a time when the condence of house buyers is all time low due to many operators. The scheme, which will offer a quick resolution to deadlocked disputes of house buyers, would be funded by a levy on house builders, with larger ones paying more than small and medium-sized companies. People have no idea that when they buy a new home directly from the developer, they have no access to quick redress without going to court. The good news is that the scheme will provide a better Redress in the confusing state buyers face when trying to resolve building defects, not helped by a plethora of warranties, house building codes and complaints procedures. Krishan Kakkar, FICM founding president, says: “Buying a new home is stressful enough, but buying a defective one, as we heard from witnesses, can take a toll on people’s well being as they wrestle through the long and painful court procedures” One of the panel ombudsman, says: “New homes should be covered by an ombudsman Scheme. People have no idea that when they buy a new home directly from the developer, they have no access to redress.” The proposed scheme would cover the rst two years following a house purchase when house builders are liable for defects, while subsequent problems would be down to the warranty providers. The consumers always will have the option to seek court intervention once the CDOS also fails to provide adequate redress. One of the report says: “Affected home buyers are exasperated not so much by the existence of defects but by a builder’s failure or even refusal to put them right. Submissions we received described how buying a new home had been ‘the worst decision of their life’; how it was like ‘going through hell’ as the complaint passed between house builders and warranty providers; and how ghting for redress was taking a toll on their health and life”.



Inviting nominations for 120 member india council of ADR lawyers The India Council of ‘FICMMCN ADR Lawyer’ is the collective of 120 forward thinking next generation dispute resolution specialists having strong result oriented approach to an early and effective resolution of complex disputes. The India Council member lawyers follow the code of ADR Practice and are adept at analyzing each case minutely and assigning the appropriate measures of hybrid dispute resolution mechanisms. These lawyers normally do not use court litigation as a default method of dispute resolution, unless all the ADR remedies are exhausted.

Most of the Civil and Commercial disputes mainly require the use of ADR mechanisms, including but not limited to: Family Law Disputes: Property Issues; Business disputes; Real Estate; Building and Construction; Employment and Workplace; Insurance; Wills and Estates; Franchising; Debt Recovery; Partnership disputes; Joint Ventures; Copyright, Entertainment; Intellectual Property; Multi-party disputes; Community Interventions; Neighborhood disputes; Corporate; and any other eld that may require alternative dispute resolution interventions. The India Council of ADR lawyers represent the highly renounced and skilled lawyers who are result oriented in their specic area of specialization. The interest and expertise may include advising, facilitating and representing their clients on: Preventive, Therapeutic and Restorative Law Practices Ÿ Family and commercial Dispute Resolution Practice Ÿ Representing clients as lawyers / legal advisers in Mediation, Conciliation, Negotiation, Arbitration and other ADR processes Ÿ



Other specialized knowledge relevant to conict management or creative dispute resolution Processes

FICM-MCN Council of ADR Lawyers FICM-MCN Council of ADR Lawyers will be focused on facilitating highly professional, diplomatic and responsive interventions that achieve successful outcomes for clients. Services are provided to assist governments, businesses, organizations and individuals avoid disputes through planning and to resolve disputes through mediation and other forms of ADR. The goal is to serve as an accessible dispute resolution platform / institution to administer effective ADR. Our goal is to advance the preventive law practice with a primary focus on mediation and creative dispute resolution processes. “FICM-MCN ADR Lawyer” means becoming part of a leading organization invested in the work of creating a social fabric dedicated to advancing “appropriate and alternative dispute resolution”. The Traditional Lawyer / Lawyering vs. ADR Lawyer One of the most often heard complaints about lawyers is that they exacerbate conict between people – primarily due to their main focus on adversarial practice of law. Clients are more and more seeing lawyers who are skilled and also open to use other diverse mechanisms of dispute resolution. Lawyers who are open to hear and analyze and use every means to RESOLVE – EARLY AND EFFECTIVELY. Although lawyers add great value to society, the esteem in which our profession is held not only by the public, but by practitioners themselves - has declined greatly in recent years. There is a widespread sense that the

practice of law is devolving from a profession with a public calling into a business - and a business with sharp practices at that. Some lawyers, judges, and law professors have criticized law schools for failing to improve the situation or even for making it worse. Globally, big reforms have been introduced to encourage the use of mediation, conciliation and other consensual hybrid modes of dispute resolution and discourage the use of adversarial approach of litigation, which has been a favorite and default mechanism of traditional lawyers over time. Dispute Resolution (ADR) has been a widely used set of processes around the world that continues to grow as a means of resolving even the most complex, high stakes cases. Alternative dispute resolution ("ADR") is a term that includes a wide variety of processes for managing or resolving disputes that differ in kind and scope from judicial adjudication. But ADR is more than simply an alternative or corrective to the existing court structure. In many situations, ADR offers lawyers a better way to practice law, presenting opportunities for problem solving, peacemaking, and responsiveness to clients' needs and interests that do not exist in traditional legal practice. Traditional lawyers have more often ignored the theories of “therapeutic jurisprudence” and “preventive law” that guides the use of ADR in dispute prevention and management and help both lawyers and clients make better procedural choices. The ADR Advocacy and ADR Lawyering need of new world Alternatives to the court adjudication of civil and commercial disputes are a welcome corrective to the Indian justice system. ‘Appropriate’ Alternative




Proposals are invited from parties who are interested in opening the regional dispute resolution and justice facilitation centers



Upcoming training Certificate courses August - October 2018

FICM mediator Accreditation Course (Correspondence) This FICM Certicate Course on Mediation is designed to provide an in-depth knowledge of the Mediation process. Through this course participants will be able to gain a working knowledge of Mediation and acquire skills required to conduct a Mediation process. This Certicate Course on Mediation is a 5 weeks course and contains 4 Modules, 4 Role-play Exercises and 2 Assessments.

Course Format: Self-Study Correspondence Course Fee: Rs. 7,500/-

Mediation Certicate Training New Delhi, Mumbai - September 2018 A 5-day 40-hour training course. This course is designed to give individuals the skills and credentials they need to serve as mediators. The training focuses on practical mediation skills and covers areas of personal injury, employment, intellectual property, and multiparty conicts, among others. This course meets the 40-Hour Training Standards. All Course materials will be provided.

Course Format: Classroom Course Fee: Rs. 12,500/-

THE FICM ACADEMY The FICM Academy offers a number of training programs for law students, practitioners and lawyers. Programs are led by subject-matter experts and academics. having an interactive format, and provide practical understanding and application of ADR tactics. This year, FICMMCN plans to develop and present custom training designed to address specic business needs to corporate members.


TRAINING & DEVELOPMENT Alternative Dispute Resolution

Negotiation Master Class

Easing the Litigation Lifecycle


Many lawyers and professionals struggle to approach conict resolution correctly because of lack the required skills. This course outlines the diverse ADR practice prevailing in India and its utility across different settings – both domestic and international. The aim of this course is to discuss practical applicability of each Alternative Dispute Resolution technique and to create skillful negotiators, mediators and arbitrators to cater to the requirements of various segments of people both domestic and international.

COURSE OUTCOME After completing this course, learners will be acquainted with the knowledge and skills with regard to: ADR mechanism and its comparison with traditional litigation Ÿ Various ADR techniques in practice and the difference between them Ÿ Practical procedures for various ADR techniques Ÿ interface between domestic and international space in context of various ADR techniques Ÿ

COURSE OUTLINE Module 1 – Introduction to ADR Module 2 – Arbitration: Overview Module 3 – Laws Governing Arbitration Module 4 – Procedure for Arbitration Module 5 – Mediation, Conciliation and Other forms of ADR Module 6 – Sector Wise Practical Application of ADR Methods Module 7 – Conclusion Course Format: Self-Study online learning, Course Fee: Rs. 12,500/-

One-day intensive program illustrates the differences between positional and interest-based bargaining. Equally suitable for lawyers, clients or business persons, the course highlights the tensions in negotiation and stresses on the skills that foster problem-solving approaches while assuring viable outcomes. Take part in small learning groups and dynamic exercises with two-way feedback. You’ll work closely with faculty members to develop a strategy that addresses your personal negotiation challenges, and take part in intensive simulations. Identify and eliminate your weaknesses Learn how to leverage your skills in new ways Become expert at resolving and defusing conict anywhere Develop skills necessary for C-suite and upper management Master new strategies, developed by your world-renowned instructors, that most negotiators have never heard of. Course Format: Self-Study online learning Course Fee: Rs. 6,500/-

Want to know more about our Training and Certicate courses or wish to enroll in any of our forthcoming programs, Call +91 8505999819 or mail us at



FICM-MCN NEW INITIATIVES India desperately needs new ways of administration of civil justice


Calling International Businesses to join the Global Alliance Mitigate Risk of Conicts and Disputes in commercial transactions around the world.

To know more contact Sonal at or call +91 8505 999 820


Develop your safety net for doing business anywhere around the globe. You can now transact across border with more condence and certainty that you can better prevent conicts around your transactions and resolve conicts more efciently.

TWO TYPES OF MEMBERSHIP There are two types of corporate membership: (1) an introductory, annual, no-cost associate corporate membership; and (2) an annual-fee sustaining corporate membership with additional rights and benets. 1. Associate Corporate Membership

Joining the alliance is Free for businesses at the moment.

An associate corporate membership provides:

REGISTER YOUR INTEREST Register your organization’s interest in corporate membership today! Our mission is to build worlds largest alliance of members that enables them to create a security net for doing business around the globe. Let us know if you have any questions or if you wish further information by calling us at +91 8505999820 or sending us and email at Register your organization – to become an FICM-MCN Associate Corporate Member or Sustaining Corporate Member by completing the application form.

2. Sustaining Corporate Membership Sustaining corporate membership provides all of the benets of an associate corporate membership plus: An opportunity for your corporate representative to seek election to the ADRIC board of directors as one of seven corporate directors;



Student Ambassador Program


A new program is coming to campuses this September to supercharge College and University students around the world. Let's Learn, Teach, Build and Cultivate the Modern world to prevent and manage disputes and to live in peace! FICM-MCN Student Ambassador Program is a campus connect program that aims to form a network of likeminded students across India and around the world. The program facilitates and nurtures future leaders of the country and contributes to their career growth. We want to empower and groom select students around the world who will serve as Young Peacemakers community, brand evangelists and new age dispute resolution ADR experts in their respective institutions.

What you will do Ÿ Ideate on and execute innovative

campaign plans.

Creative and resourceful, Student Ambassadors lead campaigns and projects at their colleges and in their communities to encourage others to contribute to FICMMCN Agenda of Peace. Together, FICMMCN Student Ambassadors play a large role in helping to adopt new world dispute resolution measures. Educate others about FICM-MCN mission, Grow the Young Peace Makers Community! BENEFITS OF JOINING: Ÿ Ÿ Ÿ Ÿ

Ÿ Work on live marketing projects for

the cause across various specialized services. Ÿ Strategize and drive Word of Mouth in campus events and activities.


Obtain leadership roles on your campus Help grow our community (and spread our mission) around the world Receive a bunch of cool rewards and recognition opportunities Help promote the creative ways of preventing and managing conicts and resolving disputes and gain marketing experience Potential for a FICM-MCN internship Access to a network of FICM-MCN-ADR Student Ambassadors all over the world


Inviting Contributions for the upcoming edition of Onpoint RESOLVE. Do you have something to write that is challenging the status quo? We welcome writeups, articles and other material for publication that encourages and Instills change!

Committee may choose to include it in the upcoming or a future issue. Authors will be advised.

The Editor welcomes submissions of articles and research work on all ADR systems and practices. international arbitrations. Articles should not normally exceed 2500 words in length including notes. Manuscripts must be submitted in the format of MS Word together with CV.


For formatting purposes, articles must be:


Guideline for prospective Contributors OnPoint ALERT is the newsletter of FICM-MCN. Published every month, it provides articles, insights and information of interest to ADR professionals. Members and non-members may submit articles at any time. Style of articles Our readers are mediators and arbitrators who would like entertaining, interesting and informative articles from Ÿ another practitioner’s perspective. If your article is accepted, the Newsletter tted as high-resolution images.



submitted as a Word document use only a standard font such as Times New Roman or Arial No longer than 1,000 words Each submission must include (in the same document) the author’s brief byline – your name and designations plus maximum 30 words describing your organization and function, etc. If we do not receive, we will post only your name and the information we have received with your submission. a high-resolution photo, headshot (ideally minimum 300 dpi) in jpg format sent as an attachment (not embedded in your email message, thank you) to accompany your article. if using images, graphs or charts, please ensure they are submi

Dispute? Let us Help You Resolve

Many organizations simply do not have the time, resources or knowhow to recruit qualied ADR professionals, design workable systems or administer cases effectively and efciently. These organizations, nevertheless, still wish to reap the rewards of ADR. Other organizations want administration and appointment handled by a third-party neutral in order to create distance between the ADR professionals and the party paying for the ADR professional’s services, as well as to ensure that there is neither bias nor perception of bias. Let FICM-MCN help you resolve your disputes.Call us at +91 85 05 99 98 20 for more information.


Turn theory into practice. Get ahead by Completing FICM-MCN’s internship program

Internships and Voluntary work Internships

Student Ambassadors

Volunteer assignments Volunteer assignments provide interested individuals the opportunity to broaden their knowledge and experience in the promotion and awareness of dispute resolution and peace building work. Assignments are exible in timing and duration, and may be full or part-time depending on the circumstances. Typically volunteers would have signicant prior professional experience in a technical area relevant to FICM-MCN’s work, which they are interested in sharing and thus supporting our work on a voluntary basis.

How to apply Send a Cover Letter indicating your motivation, interests, and availability, along with a CV to


MEMBERSHIP Join the international dispute resolution ecosystem today.

Dierentiate Yourself

Memberships, and Partnership opportunities are available for professionals who seek to change this world with their creativity and hard work.

Learn, develop pr & Succeed. Take your ADR Career to the next level. Join FICM-MCN today. Learn more about becoming FICM-MCN Member by calling Sonali, Director, Membership & Accreditation: +91 8505999820


Join FICM-MCN ecosystem Be a part of the process of change. Engage with the new world dispute resolution and conict management system. FICM-MCN Panel of Expert Neutrals If you are a practicing mediator and want to network with other mediators, email us at or call +91 8505999820

India Council of FICM-MCN ADR Lawyers (Only for Lawyers practicing in India) If you are a practicing lawyer in India and wish to join the 120 member India Council of ADR lawyers email us at or call +91 8505999820



The FICM Academy Faculty If you want to join the growing list of training faculty of The FICM Academy email us at or call +91 8505999820 The Global Alliance for International Commercial Dispute Resolution If you are a commercial or corporate entity active in transnational business, and want to join the global alliance for an extra layer of security and a safety net for risks related to dispute resolution in cross-border international commercial transactions and contracts, email us at or call +91 8505999820

The FICM Academy (for law students, corporate and practicing professionals) If you are interested in training in negotiating skills, improving your alternative dispute resolution knowledge or developing mediation skills, email us at or call +91 8505999820 Integrated Dispute Management Group If you have a dispute anywhere in the world and seek help in resolution, domestic or cross-border, email us at or call +91 8505999820

ONE Building the global WORLD ecosystem ONE of Dispute INSTITUTION Resolution.

The world is changing faster than ever, and so is the need for a dynamic, inclusive and integrated institution with no global boundaries, no bureaucratic structure, no political inuence, An institution that brings peace and justice through the management and administration of dispute resolution.

BORN IN INDIA BONDING THE WORLD Dispute Resolution Ecosystem for the Modern world.


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Copyright 2018.

Submit an Article Are you a member of FICM-MCN? We encourage you to submit articles too! Please visit our website for our Author Guidelines or email

Federation of Integrated Conict Management (FICM) W-122, II Floor, Greater Kailash-II New Delhi 110048 All rights reserved. The material in this work is protected by copyright. Copying and/or transmitting portions or all of this work may be a violation of applicable law.

DISCLAIMER OnPoint ALERT provides information and commentary on current developments relating to dispute resolution. The authors are not engaged in rendering legal advice or other professional services by publication of this newsletter, and information contained herein should not be used as a substitute for independent legal research appropriate to a particular case or legal issue.

FICM encourages dissemination of its work and may grant permission (Expressly only on request) to copy portions for their personal, noncommercial use, without any right to resell, redistribute, or create derivative works there from. Any other copying or use of this work requires the express written permission of FICM. For permission to photocopy or reprint, please send a request with complete information to:

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