CMM213 | Mediation

How does this course relate to the programme curriculum: Does it develop on a prior course in the programme or is it a foundational or standalone course?

The course builds on the course on Alternative Dispute Resolution in which Mediation is a part.

It is intended to be a stand-alone course (as prescribed by the Bar Council of India).

The course approaches mediation by looking at the process as a mainstream and its appropriateness, not merely as an alternative to courts, or a means to reduce pendency. The course will thus focus on plurality in resolution processes, build an understanding of the mediation process, policies governing mediation, the issues that have arisen in its regulation, and in its interaction with more institutionalised processes of dispute resolution.

Describe how you have approached the course. What have you included/excluded and why? Choice of materials: primary or secondary readings / case law;

The course starts with understanding the process of mediation and the approaches to mediation (customary, modern and designs of institutions built around the use of mediation for dispute resolution). This gives the learner both the objectives of dispute resolution in a mediation, and the processual framework that supports this, and its socio-philosophical roots.

The next segment will study policies for mediation in India – both policies across dispute sectors, and sectoral policies.

This will be followed by an examination of mediation policies in a few jurisdictions – the emphasis here will be on examining the differing approaches to regulating mediation and the examination of questions of what policy objectives and considerations influenced these approaches. These policies, together with the policies in India will be the base from which we will examine together the intersections between the mediation process and the laws, and mediation and the more public and institutionalised systems of dispute resolution. We look at aspects such as confidentiality, volition, enforcement, fairness standards for a mediated settlement agreement, standards for mediators, etc.

The next segment will be the international aspects of mediation – cross border disputes and mediation. Policies discussed will be the Singapore Convention, the Hague Convention on the Civil Aspects of International Child Abduction, and the ICSID Rules on Conciliation and Mediation.

In these discussions through the course, we will consider disputes in different sectors – matrimonial, commercial, intellectual property, insolvency disputes.

Mediation Advocacy will also be a topic covered, that examines the role and responsibilities of lawyers/ advisors in mediation.

The Mediation Bill, 2021, will be a specific area of discussion.

Reported cases relevant to each of these segments will also be discussed.

I propose to have mediation simulations for the students, which will be conducted both as fishbowl exercises, and simulation exercises on which the students will be evaluated on their understanding of the process as mediators and as parties/ counsels in a dispute.

Primary materials – legislation, case laws will be used together with articles and chapter extracts from books to supplement.

Describe your pedagogical method: lectures, Socratic discussion, seminar style discussion, response papers or group work, field work.

Seminar style discussions, exercises and simulations.