Showing posts with label Alternative Dispute Resolution. Show all posts
Showing posts with label Alternative Dispute Resolution. Show all posts

 Arbitration

In the past few decades, arbitration has become the mainstay of resolving legal disputes. Avoids the hostility as parties in arbitration encouraged likely to work together rather than escalate. Arbitration is becoming more costly as more experienced lawyers take up the cause, well-known arbitration. Arbitration is confidential in nature; it is not explicit which is provided in the legislation.
A boon or a bane to the legal system, arbitration is well established and widely used means to end disputes, a form of alternative dispute. Arbitration is a process application of judicial methods to the settlement the national as well as international disputes. International law the procedure laid down for the settlement of international disputes. Judgment approving the arbitration may contest in any of that appropriate manner. An arbitration agreement must be evidenced in writing. Courts have held that general power of attorney only acts on the behalf of the client in arbitration. Arbitration proceedings are flexible and not required to apply the rules, court held that the general power of attorney is not sufficient and the agreement to arbitrate brings an action to the court. Arbitration assures the best quality of service.

Under the article, 217arbitarators may not be contested by the method of appeal. Applicable for both domestic as well as an international award. Arbitration has exclusive jurisdiction over the matter. Litigation is a prima-facie due to the several stages that are involved in a case proceeding. Our Indian justice system is too slow, too complex, and too costly. India has a common law legal system whose infrastructure bears the influence of British colonial rule. We have borrowed the constitution and the world’s largest written constitution. Arbitration a form of alternative dispute, arbitration is legally binding on both sides and enforceable on the side.

A question arises that why arbitration is not working in India?

Non-co-operation of the judiciary is a big reason why we do not have fast arbitration in India. Arbitration is trying to wrap things in a year. Arbitration is gaining importance in India as given overstressed judicial system with the huge pendency of cases. Advocates of arbitration claim that it has benefits over litigation, arbitration can be a shorter process.

Arbitration is used in labor disputes business and consumer disputes, business, and consumer disputes as well as family law matters. In the past few decades, arbitration has become the mainstay of resolving legal disputes. Arbitration minimizes the court intervention. Arbitration in India is regulated by the arbitration and conciliation act 1996.

Arbitration in India is still not a preferred means of dispute. Effective arbitration can make India a sought-after business destination. Arbitration is a vitally important supplement to enhance doing business. Arbitration is only as good as arbitrators; an effective arbitrator process revolves around the chosen arbitrators. Arbitrators should be independent, neutral impartial, it is a quasi-judicial process. A good arbitrator displays good and effective communication skills being a flexible and good listener. Many people think it is something used by a large group. Arbitration is essentially private litigation there are several practical reasons for favoring arbitration over going to court. Arbitration is used to resolve the conflict diplomatically to prevent a more serious conformation. Arbitration assures the best quality of service.

Arbitration in which a dispute is submitted by the agreement of the party. A boon or a bane to the legal system, arbitration is well established and widely used means to end disputes, a form of alternative dispute. Arbitration is a process of the application of judicial methods to the settlement the national as well as international disputes. Under the article, 217arbitarators may not be contested by the method of appeal. Applicable for both domestic as well as an international award. Arbitration has exclusive jurisdiction over the matter. Litigation is prima-facies due to the several stages that are involved in a case proceeding. Arbitration in India has been struggled to fully take off, as opposed to international jurisdiction such as Switzerland Germany USA, etc. judges have a misplaced distrust in the ability of arbitrators and the process of arbitration, resulting in a judicial review at each step of the arbitration process.

The committee in its report suggested that various changes including the creation of an autonomous body for the grading of arbitral institutions and accreditation of immunity etc. However, the most recommended with large-scale ramifications was the proposal to set up the arbitration council of India (ACI). Recently the union cabinet approved the arbitration and conciliation amendment bill 2018 bill which contains the composition and functions of the ACI in partner 1A of the bill with the objectives of promotion of the institutional arbitration of India. There is a various function of ACI section 43(b) of the bill provides for the creation of the ACI, A body corporate, and section 43(D)(2) of the bill state that the ACI should take the several functions like- framing policies governing the grading of the arbitral institutions, recognize private institute providing accreditation of the arbitrators, etc.

A form of alternative dispute resolution ADR is a way to resolve disputes outside the courts after there, a dispute will be decided by one or more person which renders the arbitration award. This award is legally binding on both the side and enforceable in court. The Supreme court passed judgment overruling its previous position, and the government made some changes to the law, bringing on needed-air of freshness in an otherwise state and abused law. There is 25 important judgment on arbitration in 2020, there is 10 landmark judgment on arbitration by the supreme court of India in the year 2019.

Even the sun has a black spot, the coin has its two different sides, roses have thorns in the same way arbitration has some flaws, it has been witnesses that arbitration has a shorter process if the lawyers are not included then it can be less expensive. It’s always a less formal process which speeds up the process faster. Today, arbitration has become a widespread ADR procedure in the whole world, slowly became a high field of competition.

Arbitration is more rational, dispute is submitted in the form of alternative dispute resolution important elements as the applicable law. Arbitration has fewer enforcement options, the main body of law is applicable to arbitration which includes national and international law. It can be voluntary or mandatory, arbitration can come from statute or from the contract which one party imposes it is a proceeding, there are limited rights for review and appeal of arbitration. Arbitrators who determine the outcomes of the dispute are called arbitral tribunals. The overall cost of arbitration is estimated, arbitration was common in the early United States and has notable differences.

International arbitration now becomes the principal method of resolving the dispute, arbitration has now grown from a traditional dispute settlement system worldwide both for domestic and even international dispute, arbitration a legal mechanism which encourages settlement of a dispute between two-party mutually, arbitration has always been trending, present-day arbitration law a formation of promulgations and ordinance passed by the government of India. Arbitration cannot happen without the consent of the parties.

It has been observed on several occasions that arbitration is a contract based agreement arbitration consider cheaper than litigation less time to resolve a dispute more flexibility for parties in an arbitration, arbitration is faster than litigation, and not necessary to hire a lawyer to pursue a claim in arbitration and more flexible in business arbitral proceedings which are generally non-public and can be made confidential. Arbitration is the most formal alternative of litigation a private method.

IS THE VIRUS RESHAPING THE FUTURE OR ARBITRATION?

Throughout the covid 19-pandemic, there are temporary changes for courts and businesses, jurisdiction tackling this pandemic, arbitration is the ability to resolving the dispute efficiently. Arbitration proceedings have not been immune from these effects. The extra-ordinary situation and rapid spread of the virus felt over worldwide impacting. Ability to customize the process efficiently and maintain confidentiality. Related to confidentiality, cybersecurity is very crucial in arbitrary as the credibility and integrity of the dispute. It is difficult to litigate or arbitrate although both are affected by this outbreak.
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Author: Suwani Patel















Arbitration


Arbitration is a private method of dispute resolution. In arbitration parties agree to refer that dispute to an impartial tribunal consisting of one or more arbitrator, both the parties to the dispute represented by lawyers present their arguments in front of the tribunal, after listening to the arguments of both the parties the tribunal delivers an award, an award is similar to the judgment and it can be enforced anywhere in the world. 
Long before laws were established, or courts were organized, or judges formulated principles of law, men had resorted to arbitration for the resolving of discord, the adjustment of differences, and the settlement of disputes. If the course of arbitration is traced through the centuries, it will be found in the most primitive society, as well as in modern civilization. Commercial arbitration was known to the desert caravans in Marcopolo’s time and was a common practice among Phoenician and Greek traders. A boundary line in dispute between the Genoese and viturians was settled by arbitration (117 B.C.), this decision having been recorded upon a bronze tablet unearthed near Genoa. There are also instances in which a third strong power compelled other powers to resort to arbitration.

Commercial disputes among two parties are traditionally resolved by courts, this process is usually time-consuming and expensive for businesses, there was also a perception that national court in their judgments would naturally favor the domestic companies over foreign companies, so the businesses around the world started to opt for arbitration as a private and anonymous method for dispute settlement. The fundamental aspect in the arbitration is the consent of the parties, both the parties have to agree to settle a dispute through arbitration, this is usually done by including a dispute resolution clause in the contract, ’Arbitration is a private dispute settlement procedure and it is based on party autonomy, the parties are free to choose the way in which they want to arbitrate the dispute, we can select the place of arbitration, the rules of arbitration and also the substantial and procedural laws governing the arbitration.’

The advantages of arbitration are, that the parties in a dispute can mutually agree on the selection of a person as their arbitrator. An arbitration procedure can be designed to time-saving. The parties can plan the arbitration procedure to be economical as well. Arbitration can be done privately without disclosing sensitive business information to the public and government. 

In India

Arbitration in India generally has been affected and will continue to be affected prejudicially by lack of clarity and consistency as to the legal principles and standards on which awards are given, in such, arbitration is liable to be imputed. We all know that the 1996 Act was to minimize the judicial intervention in a large area but the experience of the SAGA for the past 20 years has shown the decline to easily give up the supervisory jurisdiction. The 246 law commission which led to the 2015 Act, stated in quite clear and accurate words, it says, ‘ there is major deleterious defect resulting in the further erosion of faith in arbitration presiding among individual and businesses in India, a reduction in popularity of India as a destination for international domestic arbitration increased invest a concern among domestic and foreign investors about the efficacy and speed of dispute resolution and an incidental increase in judicial back laws.’ Why we are in this mess today and how it did happen. Begin with Renusagar judgment 1994, which was under the foreign award act 1961, and under section 7(1)(b), they first introduced the concept of fundamental policy of Indian law has been a component of public policy, while doing so, the court was cautious to say, there should be narrowly considered and there is not equivalent to the violation of statute law, there should be something more than contravention of law while doing that in 1994 the court held a fair up, embodies of the fundamental policy of Indian law. To add fuel to the fire, in 2003 came the saw pipe judgment which for a long time confirmed everybody because it brought in concept very close to administrative law concepts, patent illegality, violation of substantive law as part of the arbitrate review jurisdiction.

So, I say it with regret, that there has to be a far greater sense of discipline in courts in ensuring that with the intent of doing justice in individual cases. You do not lay down the doctrine of intervention which virtually makes it impossible to have an effective arbitral process in India. It’s time to have a very close hard look at matters, it’s not going to work if we carry on as we have been doing.
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Introduction

Reliance has established itself as the most premium brand in almost all the sectors it has entered to date. Reliance enjoys great profits from telecom, petroleum, and recently from the retail industry. Moreover, in the past passing months, a great number of investors such as Google, Facebook, and Silverlake who have deep pockets have invested in Reliance Industries. 
This shows that investors have deep-rooted trust and confidence in Reliance. Along with the investment, the competition for Reliance has also increased. For instance, in the telecom industry, Airtel and VodafoneIdea are giving great competition to Reliance Jio, whereas in the retail industry, DMart, Amazon, and Walmart are giving great competition to Reliance Retail. Now, the main focus is to expand the retail industry of Reliance and the biggest retail deal of 26k crore to achieve that goal.

India’s Biggest Retail Deal

Recently Reliance has acquired Future Group’s business which is a retail and wholesale business that is commonly known as Big Bazaar, Fbb, Easyday, and Central.

The retail segment of Reliance is not available in all the cities but Big Bazaar can be found in every city and small towns. Thus, on the success of this deal Reliance Industries Limited will receive accessibility in 1800 stores nationwide and DMart will face a huge crisis. On the completion of this deal along with Big Bazaar, Fbb, Easyday, and Central there would be products of Reliance Fresh and Reliance Trends. The transaction of Reliance Industries Limited with Future Group will strengthen Reliance retail which is already the largest retail sector of India in terms of stores.

The War between Amazon and Reliance

In 2019, Amazon purchased a 49% (1500 crore) stake in Future Couponswhich is a promoter company of Future Group. After this transaction, Amazon also holds 3% stakes in Future Group. In the terms and conditions of the agreement, Amazon put forward a list of companies to whom Future Groups cannot sell its assets and one of the names of the company in that list was Reliance Industries. Thus, the condition put forward by Amazon makes the deal between Future Group and Reliance Industries void.

Amazon challenged this deal between Future Group and Reliance Industries. It took Future Group to Singapore Arbitration Forum over the Reliance Retail deal.

Singapore International Arbitration Centre (SIAC) was brought into picture because as per the deal between Amazon and Future Group it was clearly stated that in case of any dispute between them the matter will be resolved by the Singapore International Arbitration Centre (SIAC).

Singapore International Arbitration Centre (SIAC) gave the judgement in the favour of Amazon and the deal between Future Group and Reliance Industries was put on hold.

The judgement was delivered in favour of Amazon by the Singapore International Arbitration Centre (SIAC) but India has no express mechanism on following the orders of international arbitration. Thus, International Arbitration orders are not enforceable in India. Then Amazon appeals to the market regulators to accept the judgement of the Singapore International Arbitration Centre (SIAC). Further, Amazon urges Securities and Exchange Board of India (SEBI) and Competition Commission of India not to approve Reliance-Future Group deal. Securities and Exchange Board of India (SEBI) also owns the right to declare this deal valid or invalid but Competition Commission of India approved the Reliance-Future Group deal.

Arbitration and Conciliation Act, 1996 has no express provision for an interim order passed in a foreign seated arbitration. Moreover, Reliance Industries and Future Group do not comply with this judgement of Singapore International Arbitration Centre (SIAC) as it is not binding nor enforceable in Indian Courts. In this case, Amazon can file a suit in High Court under Section 9 of the Arbitration and Conciliation Act, 1996 which is for granting interim measures.

Conclusion

Thus, the biggest retail deal that happened in October 2020 in which Reliance acquired Future Group for almost a whopping Twenty-six thousand crores. But this deal was interrupted by Amazon recently as indirectly it also holds a small in Future Group. There was a condition between Amazon and Future Group that the latter cannot sell it to Reliance according to the agreement.

It is evident to all that Amazon obviously does want Reliance to take over the retail market in India. There has been a tussle ever since between Amazon, Reliance, and DMart for India’s retail and e-commerce market. Now it will be interesting to see whether this deal between Reliance and Future Group is given a green signal or not in India.

References

https://www.youtube.com/watch?v=cE5_y23MRFM&t=168s&ab_channel=FinologyLegal
https://blog.finology.in/market-news/amazon-and-future-group-on-reliance-deal
https://inc42.com/buzz/reliance-walmart-were-a-no-no-for-future-group-highlights-amazons-agreement/
https://indianexpress.com/article/explained/explained-tussle-between-future-group-amazonwhat-happens-next-6913824/
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Introduction

India is well known for its judiciary and its constitution. But when it comes to the speed and the fast decisions, somewhere the game of judiciary fades away. India is always haunted by pending cases. Coming the statistics to as an evidence to the previous statement, there are 9.2 million cases pending in the District courts, 3.7 million cases pending in the High Courts of India in states like Allahabad, Rajasthan, Madhya Pradesh, Patna, Orissa, Bombay. The total of 37.7 million cases pending including high courts, district and taluka courts across India.[1] The main reason for the pendency of the cases is the judicial vacancy. Due to judicial vacancy there are cases pending. For example, U.P where there are the greatest number of judicial vacancies, the numbers pending are highest in the Allahabad High Court, U.P. 
Arbitration has emerged as a solution for the pending cases as a dispute resolution forum. With that in the trend, also the courts, who are suffering take the favour of the arbitration procedure, they are active in the enforcement of the arbitration clauses.[2] The courts are supporting and promoting the policy of ‘minimal interference’.[3] The size of any organization does not ever stop them from having a Intellectual Property Portfolio, where everyone are involved in some type of licencing agreements. The role and indulgence of intellectual Property has been increasing in the global spectrum, as a result arbitration, due to its rapid resolution of the disputes is gaining the importance that it deserves. 

The Supreme Court in Booz-Allen & Hamilton Inc. v. SBI Home Finance Ltd. Had discussed about the dimensions of arbitrability, giving 3 facets.
1. Nature and subject matter of the dispute i.e. if can be solved by arbitral tribunals or fall under the court jurisdiction.
2. The list of disputes should include specifically the dispute to be solved by arbitration
3. Identification of the dispute in the arbitration joint list
The dispute arising out of rights in personam[4] are acceptable to be arbitrable, even if are a subset of rights in rem and not which arise out of rights in rem.[5] The primary nature of the IP rights is right in rem, with that attached is also a minute presence of right in personam (licencing agreements or enforcing IPR). The farrago continues in this matter.
April 12, 2016, Eros International Media Limited v. Telemax Links India Pvt. Ltd. Bombay High Court held that disputes arising out of breach of contractual terms of licencing or any other are arbitrable. It shouldn’t be held directly that non-arbitrability of IP rights is equal to non-applicability of all the IP disputes in arbitration. 

Similarly, October 13, 2017. Lifestyle Equities Cv vs Qdseatoman Designs Pvt. Ltd. Madras High Court observed that patent licence disputes are arbitrable, except when it is in respect to the validity of the patent. Arbitration is an effective method to resolve the disputes arising out of Intellectual Property and Standard-Essential Patent (SEP) licensing agreements. The objective of using arbitration for the objective of resolving IP disputes, is that the efficiency in terms of time period and the speed with which it resolves the dispute. 

The nature of the Intellectual Property disputes is such that they are highly technical and analytical in nature[6]. The parties in disputes are allowed to choose their arbitrators freely who will perform the arbitration process. It will have benefit of ensuring of the panel that has the knowledge of the domain of dispute. When the clauses of the selection of such arbitrators are drafted, the qualifications of the arbitrator can be included with other requirements so that the resolution process is faster and efficient.
The confidential and sensitive information which is kept secret and confidential in the arbitration process, consists of high-stake trade secrets, proprietary rights over technology or intellectual property[7]

The other side which is litigation is not trustworthy and the secrets and sensitive data is not secure. The disputes come with negative publicity, as the firms and corporates have a fundamental weapon with them which is their goodwill and reputation which is prevented from harm in arbitration. Litigation is famous for its multiple proceedings and delay in the decisions, in arbitration, a single proceeding will resolve the dispute which will increase the predictability and preparatory phase of the parties. Once the final decision is taken and awarded, the decree holder has to divert or rather concentrate on the following of the relevant award rather than other litigation process. The additionary benefit is that whenever the arbitration clause is ben drafted it should be checked for the arbitrableness of the clause.
 
The crucialness of the clauses dealing in the scope of arbitration, the legislations which control the arbitration and the qualifications, at the time of draft making of the arbitration clauses in IP and SEP licensing agreements. As held and discussed in Booz-Allen & Hamilton Inc. v. SBI Home Finance Ltd, regarding which 3 facets were discussed, and that the clauses should include, the ones which cover all the claims in the issue, as the drafting which is mediocre in its approach ends up in the hands of litigation. The sides or parties which are included in the case are free to select their rules of arbitration proceedings. This is because there are certain institutions which have specially created rules and regulation which are specifically for Intellectual property.
  1. American Arbitration Association – Resolutions of Patent Disputes | Supplementary rules[8].
  2. World Intellectual Property Organization (WIPO) - WIPO Arbitration Rules[9]
The parties are free to choose their own rules which control and procedure of the arbitration[10]
The freedom to chose your own arbitrator is helpful as the importance and requirement of the arbitrator who is well versed with IP laws, SEP and fair, reasonable and non-discriminatory (FRAND) practices.
 
The situation in which the licensee has acted beyond the limit and scope of the agreement of licencing of patent, the defence which will put will be the following:
1. Approaching Intellectual Property Appellate Board (IPAB) with the objective of the revocation petition u/s 64 (1) Indian Patent Act, 1970.
2. Filing a counterclaim in the infringement suit
The tribunal cannot decide on the defence put up; it is the IPAB which will decide the same. Regarding the counterclaim, the high court alone can be taking it into its control. This is a problem for the respondents because they would not have a wide scope, rather will have a limited scope in their defence in the arbitration. The arbitration will be superfluous even if hypothetically they get the opportunity.
There are two ideal types in the field of arbitration for India, one is of Hong Kong, the other is of Switzerland.
Hong Kong – Any dispute (infringement, ownership, validity enforceability, scope, duration, transaction, compensation) is arbitrable which is related to Intellectual Property Rights. The third parties are not subject to any awards, only the party in disputes. In case if he disputes is between a party and a third party then the award will not affect the subsequent proceedings. 

Switzerland – The capability is both, the infringement and invalidity disputes is there. The award in which it is declared that the patent is invalid then, it will be under the Swiss Institute for Intellectual Property Rights[11], the same manner as a judgment or order to the same effect. There is a practice of prejudice against the third party which was not involved in the proceedings of the arbitration.
The empirical side will be chosen by India and will boil down to the model of Hong Kong, keeping the third parties outside. 

India has no bar on the arbitrability of the disputes of the IPR. There is a surety that the IP licencing disputes are bound to arise, in such case arbitration is the most comfortable and relevant method of resolution. It has proved itself as the apposite substitute for the litigation method which has a lot of downsides. The problem of handling multiple jurisdictions is been solved by Arbitration. Though there is an option that incorporation of clause of arbitration in the licencing agreement after the dispute, it is advisable and wise to incorporate it at the time of the negotiation of the agreement. Which helps the parties to be intact to the arbitration method. As the field of arbitration, especially on the IPR side, is emerging in its full potential, countries, especially like India should try and improve and adapt to the new method of resolving disputes as India is full of talents and potential. The method of arbitration should be used more and more to improve and polish in the same, the young lawyers and the experienced policy makers can merge themselves and make this happen. 

References

[1] National Judicial Data Grid (NJDG)
[2] M/S Icomm Tele Ltd. vs Punjab State Water Supply And, 11 March, 2019 
[3] Vijay Karia & Ors. v. Prysmian Cavi E Sistemi SRL & Ors. Civil Appeal No. 1544 of 2020, decided on 13 February 2020
[4] A right which is imposed upon determinate individuals (Single person or group)
[5] A right in rem is available against the world at large
[6] https://www.wipo.int/amc/en/arbitration/why-is-arb.html
[7] https://www.natlawreview.com/article/growing-importance-international-arbitration-intellectual-property-disputes
[8]https://www.adr.org/sites/default/files/Resolution%20of%20Patent%20Disputes%20Supplementary%20Rules.pdf
[9] https://www.wipo.int/amc/en/arbitration/rules/index.html
[10] https://uk.practicallaw.thomsonreuters.com/9-502-0625?__lrTS=20171014041831054&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
[11] https://www.lexology.com/library/detail.aspx?g=5b72f5e7-1b20-45a8-9351-3df4d1f6f6f2#:~:text=Hence%2C%20an%20arbitral%20award%20declaring,order%20to%20the%20same%20effect
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MEDIATION

With India's population being 135 crore, with more than 3.5 crore cases pending from more than 10 years, there should be a more systematic legal system. Many people in India can't approach the court for justice as it is really costly legal structure. Mediation is a procedure that provide timely and cost effective access to justice for all the people disregarding the monetary condition of the respective citizens. 

They are many alternative dispute resolutions, which help the parties to solve the dispute but most of the citizen are unaware about them. the dispute resolution reduces the burden of the court. Some of them are negotiation, mediation, arbitration, and conciliation. It is a process of dispute resolution by an independent mediator that facilitates the communication and discussion to resolve the matter. In mediation both the parties mutually agree on the solution, provided by the consent of both the parties. Therefore, the process of mediation is focused forward and not backward.
In mediation process, the role of mediator is to discuss, provide concern and take out the best option out of the rest for both the parties. Mediation in Indian parties will ordinarily sign the mediation agreement with mediator which consist of some basic rules.

TYPES OF MEDIATION PROCESSES IN INDIA

In India, the mediation is done in three ways.

Mandatory Mediation- It is given in civil procedure mediation rules, 2003 in that the cases are referred from the court even if the party is not up for it.

Private Mediation- private mediation is the process where both the parties mutually select the mediator of their choice, time, place, fees and decide by their mutual consent.

Mediation Referred by Court- It always involve the disputes and conflicts whose cases are particularly selected by the court to bring the decision peacefully and beneficially for interpersonal relations in the long terms of the parties involved in case.
Mostly the mediation process is used in non-criminal and domestic disputes . It involves child custody, disagreements with neighbours, dispute between landlords, business partners and family members. It is a tool for justice, the unbiased approach of the mediator benefits both the parties and brings ‘Win-Win situation’ for both the parties with the mutual consent by negotiating and communicating.

STAGES OF MEDIATION PROCESS

1. Opening statement of mediator
2. Opening statement of parties.
3. Joint session- both the parties put their views across
4. Agenda
5. Private caucus- private session of one parties(if party want)
6. Closing (argument) offer/counter offer
7. Negotiating

7 ELEMENTS OF MEDIATION

1. Interest and Position- Interest is why you are actually negotiating, the reason behind it. Position is what the parties actually wants from the negotiation.
2. Options–Option plays a very important role in determining, the outcome of the mediation process. It is a combination of the best possible conclusion, if the party cannot reach an agreement it helps to explore what can be done further.
3. Legitimacy- There should be fairness for the allegations made and not just something that you come for negotiating. The main problem of legitimacy in mediation raises the question that why the mediation is fair as a means of settling the disputes.
4. Communication- communication is the most important element and ofcourse the obvious elements during the negotiating process. It is much like open ended questions and answers together, from both the parties for gathering information for the decision-making process.
5. Commitment -First you have to ensure that the outcome ,that parties have accepted and agreed, it should be realistic and something parties will not have to negotiate their deals again like on what is the parties level authority ,how authorised is the other party to take and to sign the commitment responsibilities. Commitment in the relation should develop strong culture to enhance party’s performance.
6. Relationship- The communication and the commitment between the parties should lead to the formation of a relationship which might be beneficial for both the parties in the future.
7. Best Alternative to a Negotiated Agreement (BATNA)-It is a common sense idea, by which you can solve the case, by taking out the odds and finding out the best alternative.

THE MAIN ADVANTAGES OF THE MEDIATION ARE 

1. Time efficient: Both the parties have win -win situation.; Mediation is time-efficient and can be completed in a couple of sessions. The majority of the disputes in private mediation can be resolved in one day or two. In the process like litigation or arbitration, it takes time. The final outcome is determined by the consent of both the parties who are negotiating.
2. Flexibility in the procedure. The flexibility inherent in the mediation process is a cynical element, in establishing the efficient path to reach settlement in the particular case. Unlike, court rules of procedure, takes a lot of time in the whole method. And mediation focuses on ending the conflict amongst all disputants.
3. Cost settlement- Mediation proceedings are settled fastly and therefore, minimizing the cost exposure normally associated with dispute resolution of the parties. The cases include some patent, information technology disputes etc.
4. Communication specialization- Communication is a necessary skill for establishing interpersonal interaction between the two parties. It is an important factor for establishing various forms of mutual relationships and consents. Effective communication is a the primary goal for mediation's positive response and reaction from the participants in the conversation. Communication is the prevention of misunderstandings as well as the easy way to overcome the barriers we face in different forms in our daily lives.
5. The process is confidential of the mediation- By law, all the communications which are conducted under the mediation umbrella are protected from disclosure in any other civil meeting, that includes pre-mediation consultations and advises and post-mediation follow-up.
6. Voluntary process- Voluntary mediation generally refers to, both parties freely chosen participation and freely made agreements and decisions by both the parties. Parties are free to decide the conclusion.
7. Feelings and interest are kept forward then evidence- Mediation process is less formal, where everyone involved must work towards the mutual goal of a peaceful resolution to an unworkable relationship. Thus, mediation works by means of mutual respect, open communication, and clear feelings regarding the case.
8. Mediation: a non-binding- It is generally conducted with a single mediator who does not judge the case but advises and provides discussion and step by step resolution of the dispute. If parties don’t like the conclusion, they can leave the mediation process at any time they want.

CONCLUSION

Mediation is the process which provides justice to citizens in of India in mild manner. In a country with moving population of more than thousand crores, it is important to provide justice to the justice seekers in an efficient and effective way. It is the an informal and flexible process. In this process there is physical and mental autonomy. It guides parties for decision process, negotiating and communication specialization. It is good to resolve the matter in friendly process without any major loss and both the parties have a win-win situation. By all these advantages, mediation as the part of Alternative Dispute Resolution, is the chief tool of justice.

REFERENCES

1. https://ametros.com/blog/the-language-of-mediation/#:~:text=Mediation%20is%20time-efficient%2C%20cost-efficient%2C%20and%20usually%20less%20stressful,person%20and%20still%20have%20control%20of%20the%20outcome
2. isbinsight.isb.edu/when-negotiations-fail-the-mediation-solution/
3. https://environmentaladr.com/environmental-mediation-vs-litigation/flexibility-key-success-mediation
4. https://www.wipo.int/wipo_magazine/en/2010/01/article_0008.html
5. www.findlaw.com/adr/mediation/mediation-vs-arbitration-vs-litigation
6. www.bing.com
7. www.applieddivorcesolutions.com/how-mediation-works/
8. https://worldmediation.org/effective-communication-in-mediation
9. https://lawlex.org/lex-pedia/mediation-a-tool-for-access-to-justice/2386
10. blog.ipleaders.in