INNOVATING JUSTICE THROUGH (SOFTWARE STIMULATED) E-NEGOTIATIONS

INNOVATING JUSTICE THROUGH (SOFTWARE STIMULATED) E-NEGOTIATIONS Adv. Rajesh, Chief Coordinator, ODR, Mediator Affair Facilitated negotiation involves the provision secure websites such as virtual collaborative workspaces or e-rooms the parties to exchange messages, share documents and engage in synchronous or asynchronous negotiations. This is a basic ODR service offered by a number of providers such as the Mediation Room. Here facilitation is offered by the technology itself and the process rules established e-room provider, rather than a human mediator. However human mediators can also use this type of software to conduct online mediation processes. Online applications specifically set up for mediators to use are referred to as integrated mediation platforms and are offered by some leading service (ODR) providers. Another example can be found in automated negotiation such as blind bidding procedures that offer positional negotiation and a formula for calculating settlements without human third-party intervention; these are available in the United States for insurance claims arising from car accidents and personal injury claims. Yet another ODR technology takes the form of negotiation support systems, which allow the manipulation of negotiation variables for participants so they can consider a range of options and alternatives, and can provide an overview of negotiation stages (in mediation) and expert advice on strategies and outcomes. Mediators are able to use this type of technology to assist parties in their negotiations. Whereas mediators are referred to as the ‘third party’, in the world of online mediation, technology is referred to as the ‘fourth party’. The concept of the fourth party suggests that technology changes the communication and power dynamics of the mediation process, opening up new and imaginative ways for mediators to intervene, and parties and lawyers to engage, in the process. It also introduces new risks for users relating to issues around security of the online platform, authenticity of online participants and what to do with a written record of a text-based ODR process. The future of online mediation will depend largely on the ability of mediators and potential users to access and accept the fourth party and specific ODR platforms. While there is still some skepticism about the ability of technology to facilitate solutions, build relationships and maintain trust in the process, it seems that an increasing number of mediators and users of mediation are open to the idea of ODR. The above are brought to my notice and I have finalised to incorporate such software MASS 1 to resolve the disputes coming under e-commerce, insurance, issues related to defaulting with financial institutions like Bank, other NBFCs and all types of low valued disputes along with MASS 2 resolving comparatively larger issues like Intellectual Property, Succession, Inheritance, family disputes etc. in the Resolution Centre of the portal www.mediatoraffair.com

TECHNOLOGY IN DISPUTE RESOLUTION

TECHNOLOGY IN DISPUTE RESOLUTION

Adv. Rajesh, Chief Coordinator, ODR, Mediator Affair

So far as most of the states in India and the countries like UAE, Qatar in Western Asia where booming MNCs, Corporations and IT companies are confronting with the challenging affair for business dispute resolution mechanism to settle the business disputes within the country and across their borders. As such when I was asked by some professionals from India to build an online segment in a portal which could cater to the needs of the business people in respect of settling their disputes, I had no second thoughts of integrating an ODR Club and ODR Resolution Center in the form e-courts in the portal www.mediatoraffair.com which would facilitate virtual ADR mechanisms using the software like teleconferencing, video-conferencing and in further make the justice possible by means of e-negotiation using self automated and stimulated software. In this context I would like to share some of the information I gathered, with you.

ODR promotes a virtual scenario to facilitate the mediator or any presiding officer interacting with the disputing parties. By formulating a technology stimulated ambience, ODR has cleared a way for bringing justice most transparently and thus winning the trust of the people.

The approach to justice will become easier and quick with the aid of technology supported ODR. A key advantage of resolving disputes through the use of cyber-mediation is that it avoids the issue of whether a particular court has jurisdiction over the dispute. Since disputants can bind themselves to resolution through an agreement, jurisdictional issues can be avoided altogether.

The claim of saving court litigation expenses used to be the primary advantage of the traditional dispute resolution. The business segments all around the world is experiencing a tough time as the result of the recession prevailing and dominating in all countries. It has become indispensable for even ordinary individuals to stabilize their financial position at this juncture. Hence to a great extent Online Dispute Resolution has become a blessing to the society so far as this method can be adopted to make the resolution process most cost effective. The online resolution mechanisms eliminate the need for physical travel which used to be long and tedious one to reach particular forum to participate in the alternative dispute resolution process. This level of convenience obviously saves both money and time.

This method invokes special attention of the business people so far as the features like convenience, transparency, competitiveness, neutrality to an extent strange to the traditional alternative dispute resolution (ADR) process. In addition ODR benefits the business community across borders and ODR is a borderless “service business” opportunity.

The parties to the dispute may be fairly relieved so far as they need not confront with each other directly. The virtual ambience facilitates the parties to enjoy a non-confrontational state of affairs so as to reach a settlement.

The willingness to integrate technology inspite of reservations about confidentiality is fueled by the belief that whatever is lost in terms of privacy is less valuable than what can be gained in terms of efficiency, transparency and convenience. So question remains answered without any second thoughts that people can forgo privacy for transparency.

CUSTODY OF CHILDREN

CUSTODY OF CHILDREN

 AMA  (Association of Mediation & Arbitration)

A Marital breakdown of a Muslim couple in Kerala after getting divorced by their religious procedure ratified by the Family Court found it rather difficult to get a right order in respect of the custody of children in the slow paced procedure in Family court, approached us and undertook that they are ready to resort to third party mediation to the effect of the custody of their children.

Now it would be ideal to disclose some things that happened incidentally during and after the process of divorce. Before getting divorce Fathima (estranged wife) took her two children from her husband’s family and later after she got married to her paternal cousin who has already been divorced because of his impotency. The separated husband Sajad and his family petitioned to their Jamaath committee and Family Court for the custody of the children. Meanwhile Sajad remarriage took place.

Both were dragged to file their claims in the Family Court. During the pendency of the case both family were guided and led to our mediation centre Association of Mediation & Arbitration (AMA).

RESOLUTIONS

Mediation is the most suitable ADR method in resolving the issue related to the custody of the children.

The significant causes for the divorce between Sajad and Fathima have to be taken into account during the Mediation. Sajad’s addiction to liquor and his lack of education are really adverse factors which to a great extent blocks the claim of Sajad over the Children’s custody

But as a father and on the base of his kid’s mother got remarried, natural law permits his claim over the children’s custody.

The relevance of Mediation is reflecting in this situation. Mediation takes charge of the conflict in a way so as to make a congenial atmosphere, for the kids growth and shaping good natured characters, should be given more priority than finding justice over the claim of respective father and wife in the Court litigation.

In the true spirit of the scientific mediation, the atmosphere in which the kids should grow physically and mentally should be taken into consideration. They are entitled to receive the love, affection and regards from their estranged parents. It is the Mediation’s prime deliberation to take care of the children’s mind not falling prey to the subjugation caused by the estrangement of their parents apart from the safety of their future life, getting adequate education, widening their though process, to love others etc.

These above suggestions raised out of the negotiations between two counsels of the husband and wife (where the spouses deliberately abstained from the proceedings and being represented by their respective legal counsels) in the presence of a skilled Mediator.

The suggestions initially not accepted by Sajad, the separated husband , but advised by the counsel and latter the mediator which made him little bit convinced and as a responsible father he agreed to sign the agreement. Fathima found the suggestions more reasonable for her and children and it was accepted without a second thought.

We will see how far Mediation would succeed in bringing the above cited prerequisites for providing, safety and sense of living, to the children?

Social relevance in respect of the resolution of such family disputes by Mediation

Social relevance in respect of the resolution of such family disputes by Mediation

Some relevant sociological aspects have to be analyzed before we go for discussion to the effect of resolution of family disputes by alternative methods.  Family disputes were very uncommon during the days of joint family systems in our country. The Karanavar ( the head of the family) or other elders of the family were authorized to act as mediators to resolve any disputes between the members of the family including couples in the particular joint family. Hence rarely disputes turned to be tragedies and most often a provision for patch up of relationships was in the offing  and the bondage among the members in respect of relationship was the amazing feature of the joint family system – we can claim the joint family system as a mighty social  set up.

But unfortunately with the fading of joint family systems and with the advent of  the nuclear family set up, which though enjoy some advantages, lack of guidance and proper supervision used to lead such set up inviting threats of strained  and broken relationships . In case of any disputes arising among the members – husband or wife or between or among children or between children and parents or between or among in-laws, the absence of such mediator really affects the present social set up.

The family disputes that used to occur as a result of the day to day transactions of the members in the family and deemed to be subject matters for the present day mediation or other ADR techniques are as follows:

1. Disputes among Husband and wife

2. Children’s education, health and welfare

3.  Contact with children (separated couples or extended families)

4.   Financial support for children (separated couples)

5.  Lack of trust

6. Parenting differences

7. Disputes while partition including Property settlement

8. Disputes on taking care of parents

9. Relationship breakdown etc..

By mediation process parties may have a lot of freedom to decide themselves to adjust their mindset in terms with the crucial phases of their future life. The process let them to decide to utilise the opportunity to unite again if everythings go well as the process grows or to seek or go for an uncontested divorce withouot ditching each other as everybody do in the family courts all over the world. The significance of mediation reflects in that of a resolution of the crisis and conflict relating to custody of children after the separation of the spouses as the interests of the children would be taken into account so as to facilitate their parents to share their positions and interests for the well being of their children in the future in the form of friends (even though no more in the role of husband and wife) though they live together as father and mother to their children.

The scientific form of mediation attempts to change disputes from “win-lose” to “win-win”. Mediation is a non- adversarial process of helping people come to agreement on issue like parenting arrangements, support of children and spouses and division of real and personal property. Mediation occurs when a neutral third-party, who has training in dispute resolution, assists the parties to the dispute and helps them to resolve the issues that are causing conflict and to make cooperative, informed decisions.

Social significance of mediation.

Family mediation is probably the most affirmed field of application of mediation. (Jones 2005;Kelly 2004). This label refers both to saveable marriages and to divorce and separation issues (Parkinson 1997;48), thus enabling family mediation to work as a way to deal constructively with conflict within a family as well as s to manage divorce and post-divorce arrangements. In practice, however, most family mediation cases refer to divorce mediation and child custody mediation. (in the post separation agreement). In comparison to the juridical system, family mediation offers swifter solutions and, most importantly, the parties’ empowerfment, as they are allowed to manage the outcome of their dispute by themselves (Bailey & Robbinson 2005) . Empowerment is often a very delicate question in divorce mediation, since parties, although they have broken their marital relationship, want to discuss the best solution possible for the future of their relationship, especially if they have children (Cigoli & Scabini 2004).

Mediation is about finding solutions. It’s about facing the issues and challenges and dealing with the practicalities of family life after separation. For example, living arrangements, co-parenting, time sharing, budgeting and parenting plans can be discussed, and options created for tem. Both parties are active in this form of ‘brainstorming’, often coming up with unique and creative outcomes that offer the very best compromise. The mediator has no prior knowledge of the parties or their dispute, and remains unbiased throughout the process.

Indeed, mediation in relation to the other ADR practices is considered to be an uique attempt to conflict resolution. While clients in negotiation finds some impasse in between during their negotiation, the stumblic blocks could be averted with the interference of somebody who is an expert to alleviate the tough situations. Hence mediation calls for a third party expert facilitates the parties to conduct free and smoth negotiations. Against Arbitration where there power vests with the third neutral party to impose a decision, Mediator assumes the delicate and discreet role of a facilitator.

Mediation for many people is strongly associated with family disputes, divorce proceedings and child care arrangements. So it’s easy to see how arguments about the welfare arrangements of a vulnerable person would sit quite comfortably within its framework.

Mediation for Franchisee Dispute

(E- Magazine managing conflicts integrated in www.mediatoraffair.com)

The reporters detailed a bunch of commercial disputes, which have been taken into account for a detailed study and we, the publication group authorised to suggest means for resolutions to that effect.  One among those disputes reported is as follows and we are delighted to put forward some pragmatic suggestions to resolve the commercial conflict.

In Olloor, popularly known as jewellers hub in Kerala within the limits of Trichur Corporation, Kerala in India one Mr. Mathew, a jeweller for his proprietary concern and brand “Daffodils” have appointed franchisees all along Kerala State. In 2012, Mr.Shashidharan hailing from Palakkad availed a franchise of the said brand and he was automatically appointed as the franchisee in Palakkad District. But unfortunately he is in the losing side to a certain extent.

Against the Franchisee Agreement executed by Mr. Mathew and Mr.Shashidharan, Mr. Mathew failed to comply with the important clauses of the same apart from breaching his assurances to the effect of promoting the franchise business. With all these reasons behind,  the franchise of Mr.Shashidharan has become a wasteful affair. After facing the wrath of losses for one year, Mr.Shashidharan approached Mr. Mathew, the franchisor to return the entire amount includes the payment towards rent to his land lord and initial investment and subsequent payments against supplying of articles as he was experiencing a heavy loss. Mr.Shashidharan alleged that Mr. Mathew has violated all the clauses to the effect of promotion and advertisement in the Franchise Agreement. Hence as such Mr.Shashidharan reiterated that so far as the agreement in fact subjected to violation, he could not proceed with the franchisee business, and he wanted the above said money back.

Mr. Mathew did n’t yield to the requests of the franchisee. He still continued promising the promotional activities including advertisements. Yet while confronting with Mr.Shashidharan in respect of the issue, he never intended to loose his money against promotional activities.

Mr.Shashidharan decided to move the court.

RESOLUTIONS

(As Suggested by Our MEDIATOR)

If Mr. Mathew and Mr.Shashidharan are trying for a Mediation for resolution of their conflict, the following may be adopted for a settlement.

·         The monthly franchisee fees has to be discontinued till a  specified time limit

·         So far there is a great extent of breach of promises and violation of clauses to the effect of promotional activities of the franchisee including advertisement, the franchisor shall provide the franchisee a 25% of the rent amount per month.

·         The franchisor should comply with all the clauses provided in the franchisee agreement.

·         The franchisor should help the franchisee in marketing the articles in the market price value.

In case these above responsibilities are taken by the franchisor (Mr. Mathew), without much liabilities he could mend his relationship with the franchisee (Mr.Shashidharan) so that they can enhance the business to a level where further derailment in respect of he franchisee relationship can be avoided.

Divorce Mediation –Myths & Truths

Adv.Meerza

Last one year I have been rigorously involved in the awareness programmes in the venues facilitated by the Residential Associations of different corporations in Cochin city, India. During my presentations I used to get opportunities to clear some of the doubts of the audience.

The first and most recurring myth that have nursed by most of the women in the society is about the domination of men in the process of mediation and disadvantages of the women in mediation. But the truth is that women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that consider non-legal factors. A woman is free to stop the mediation or refuse to sign an agreement that seems unfair to her.

Another interesting myth that the audience keep in their mind is that the longer period of the process of mediation. Even a Dick and Harry knows that mediation challenges litigation mainly in respect of time and expenses. Mediation takes less time than litigating a divorce.

Another concern among the legal professionals is that lawyers have no place in mediation. Lawyers who understand and support mediation can help mediating spouses in several ways such as by informing them of their legal rights and options, by coaching the parties through the negotiation, by coming up with creative settlement ideas, by preparing the necessary divorce paperwork once an agreement is signed or even they can act as the counsels for the parties in the respective mediation processes. Consulting lawyers can charge a reasonable hourly fee and don’t require a large retainer.

Other myth about mediation is that in mediation, the mediator is just like a judge in the trial proceedings and he decides what is fair. But it is not true. Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator’s job is to facilitate the spouses negotiate an agreement that each of them considers fair enough to accept.

So long as the mediation gets an acceptance among the public and its dominance over court litigation, there may be an automatical tendency of propagating  myths about mediation

Mediation or co-operation instead of litigation

Adv.Aliyar

Divorce invites issues like alimony, child support and the division of property and assets. These factors would take the parties to most vulnerable position as the litigation used to take weeks or even months to finalize the divorce and it may consume the substantial amount of time and money of the respective parties.

By choosing mediation, the soft pedalling of the process would help the couples as well as their children. The spouses, if patched up, can live happily without further inhibitions or if they decided to go for divorce, they can part ways in a smooth manner and reduces the amount of emotional pain they bear.

Mediation takes place over several short sessions. With the help of a neutral third party mediator, the focus of each session is on conflict resolution. Each sessions of mediation facilitate the spouses discuss the issues that led to their divorce and let it happen amicably. Unlike litigation, where each party attempts to disprove the other, mediation revolves around the best outcome for both parties.

So far as mediation let the parties enjoy freedom, the spouses have control over the process which ultimately provides them a hold over divorce and their future rather than leaving the control over to the courts.