Author Archives: admin

Supreme Court while hearing the public interest litigation dismissed the contention of the petitioner and denied that it will not issue any direction for the formation of the separate bench of Supreme Court anywhere else in the country.

For the petitioners Shri M.N. Krishnamani, Senior Advocate appeared, Chief Justice of India H.L. Dattu said that “ there is already a precedent wherein we have said that one cannot seek a mandamus for the establishment of the bench of the Supreme Court.

Senior Advocate submitted that if the formation of the separate bench is not possible then the supreme court shall set up a virtual courtroom in chennai and explore the possibility of utilizing devices like tablets, iPad’s etc, so that lawyers can present their cases. While dismissing the petition, the Chief Justice of India said that “we certainly appreciate your progressive thinking, but not now”

In March this year a private bill was introduced by Mr. Vivek Gupta of Trimool Congress Party in the Rajya Sabha demanding separate bench of Supreme Court at Calcutta.
Parallel demands with respect to separate benches for the High Court’s have already been made. recently the Acting Chief Justice of Punjab & Haryana high court has constituted the committee for the establishment of the separate High Court bench for southern-western Haryana. For many years the campaign for a separate bench of Kerala High Court in the capital is going on.

In a landmark judgement in gender equality rendered by Supreme Court of India through Justice Vikramjit Sen & Justice Abhay Manohar Sapre the unwed mother must be recognized as the legal guardian of her child and under no circumstances she may be forced to disclose the name of the father.

The Supreme Court was deciding the guardianship petition/case filed by the women who challenged the statutory necessity of disclosing the name of the father with whom she never married under the Guardianship and Wards Act, 1890. She claimed that father even don’t know about the child existence. The mandatory requirement of Guardians and Wards Act and the Hindu Minority and Guardianship Act is that a notice be sent to the child’s father to obtain his consent when a petition for guardianship is moved.

The Supreme Court described the young women as “well-educated, employed gainfully and secured financially” who has refused to disclose the name of the biological father of the child. She claimed that guardianship right and reasoned that the man who is already married never showed any interest towards the child. The guardianship right shall be given to her exclusively so that her child can inherit her assets.

The bench of Justice Vikramjit Sen & Justice A.M. Sapre help that where the father does not show any concern about his child, giving him a legal acknowledgement would be an exercise in vain. The Court allowed the women to apply for guardianship without disclosing the name of the biological father and further said that there was “no need to insist on the father’s name” and that in the case of an unwed mother, her “name is sufficient”.

Special points of interest:

• If you are a mediator, learn the techniques here.
• If you a litigant, get to know how to optimize your results with the help of the mediator.
• If you want to know how the problems gets resolved, follow the stories.
• If you have no faith in ADR formulations, get you doubts busted.

The 4 Phases of Mediation

First Phase

The party who has come to mediation is most probably referred by court for exploring possibilities of settlement. The first contact must be refreshingly different. The party must experience at first hand the informal ambience that ought to be the hallmark of the mediation centre. Offer her coffee or tea. Ask if she has any particular health concerns that might require any special attention. Congratulate the party that she has arrived at the right place where she will surely find her answer to the problems. Disclose your own credentials as a mediator giving details of your experience and your own present work as different from your occupation as a lawyer. Assure the party that she can call to her assistance her own lawyer and will consult her at all times before a final decision is taken. Have a check list of all the introductory remarks that you will make that ought to include the voluntary nature of the deliberations, the liberty to the party to withdraw from negotiation, the con- fidentiality of the deliberations and the important difference of the non adversarial approach to finding an amicable settlement. It will be appropriate to even suggest that time and money which are casualties in court proceedings will be best spared in the mediation.

How to make mediation work for you

You are a party seeking for a solution. How do you max the outcome of a mediation session:

• Ask your mediator for his opinion at the private session called as caucus :Although you are under no obligation to accept his advice, recognise that his private conversations with the other side may have given him considerable knowledge about the other side’s interests. Taking advantage of that knowledge may lead to a settlement. Suppose, the builder has not delivered the building on time. You are making a claim for damages. You have claimed 5 lacs as damages. Before putting it to other, ask the mediator what he thinks about it. Probably, the other side has informed him that you were staying in another apartment you owned and you had let it out on rent and secured Rs 20000 per month as rent. The builder has delayed delivery by 12 months. If the mediator suggests 3 lacs, he bases the assessment on what you would have earned and what you have lost by the delay. You may even scale it down to Rs 2,40,000, after putting across the amount suggested by the mediator.

• Give the mediator an idea that makes it seem like that it is his idea to the other side: Suppose, you are the builder and had caused the delay. Suggest to the mediator if he may put through a suggestion that you might be prepared to find a tenant for the person who has claimed damages and waive any claim for brokerage and also waive the maintenance charges for the first year, which you are otherwise entitled to claim from other occupants, as per the building contract.

• Take a reality check: How will the other side take it? If this suggestion were to come in court, will the court accept it? Claims for damages have a sure way of reckoning and you may take counsel from your own lawyer or the mediator what the amount is likely to be.

Dealing with a hard bargainer

You may encounter sometimes parties who are tough on bargaining; persons that take hardened, inflexible stand; persons who end their statements as they begin, ‘Thus far – no further ‘types.

Remember the mediator has a job cut out. The first attitude is not to be judgmental to condescendingly suggest that there is nothing that could be done if the posturing is tough and mediation could succeed only on a policy of give and take. The technique is making the parties realize it without expressly saying.

The tough persons may begin to show impatience from the very beginning and make an opening statement that he does not have much time to waste. He cannot keep bargaining back and forth. It is best for you as a mediator to respond that you recognize his value for time and suggest that a time line ought not to be a problem and you are interested in eliciting the best proposals from both the parties within the shortest time.

The person may be worried about several constraints that operate. Maybe, he has to take the consent of someone else; maybe his boss has set a resource constraint; maybe his parents will not agree to the suggestion. Use the caucus to elicit the constraints if any and see how other’s views could be accommodated in the talks and your honest view of such a course. It will assure the party of you  earnestness in engagement.

Perhaps, he has certain hidden interests that he is not prepared to reveal. Make a calculated guess and drop a hint in your dialogue that you understand his interests and show a way of how you will meet his hidden interest.

Is he offended about the opening offer of the other party? There is nothing wrong in asking the person directly what he thought about the offer and let the other party realise that talks must take a different turn. Allow the party making the first proposal explain why he made proposal that he did and the basis for such a proposal.

Keep a record of proposals and counter proposals and identify the best offer or counter that the parties have made. The hard bargainer that the party is, he will realize that you are keeping track of all suggestions and there is no room for flippancy.

Don’t be in a hurry to close. No party is prepared to quit easy. Make the party believe that the parties have the capacity to generate their own solutions. Ask the party if he will think over and return after a week or two. Best chances are that he is mellowed the next time when he turns up.

Ehtics

We asked you what if a party at the mediation session that is mid-way asks at the end of the first day if you would professionally assist him in a case pending in the court. The answer is no. Even if the professional engagement is in respect of a case which is not connected with the problem discussed between the parties, you will compromise on your neutrality by agreeing to assist him in some other case. Itt is however important not to cold shoulder his earnest appreciation, even if it was not motivated. Explain the ethical issue involved about how it may affect the confidence of the other party and it is best left to help himself. It makes sense not to even suggest any other professional that you may know intimately for that will lead to the risk of the party coming back to you with details of the advice that he got from your friend and involve you distantly. Ensure that the other party is not kept guessing on how you responded to the party’s query. Allay all types of apprehensions by honest disclosure of the conversation so that the talks take an even course.

Case Study 1: Wife wanted to give up husband (contd.)

The lady had given her name as Swehta Tandon. The mediator asked her at the caucus what she knew about the social behaviour of her husband. She told him that had very few friends but if she had known him at all, she knew that he was close with only one colleague Mr. Mohan at the bank. That friend has come home but just only once.

What is the nature of bonding between father and the child, the mediator prodded. The lady informed that the boy is playful with his father and sticks to his father all the time when he is at home. He sleeps in the same bed with his father and she sleeps in another room. ‘Have you tried swapping places with the child?’ asked the mediator. ‘It is a big no, no, from both the father and son’, she said. ‘How does the child treat you?’ the mediator continued.

‘Initially, he was very reticent. Now, he opens up and speaks about one Laila as his closest friend in his kindergarten class with excitement. He says that she looks like me!’ At the separate meeting with the husband, the mediator asked the husband if he felt comfortable about the way he persisted with his matrimonial living with his wife. ‘Is sex the only thing in life?’ he snapped. The mediator asked mildly keeping his tone low, ‘Is it bad?’ ‘No, is that not what she willingly accepted?’ he queried. ‘But, you did not deny to your first wife, did you?’.

The husband seemed irritated. ‘Why do you bring in my life with the first wife? It is all over now. Swehta has a home now. She has a child that loves her. I don’t want her money. She can keep all her earnings herself. What else does she want? Why will she bring the issue which was settled as marriage precondition? To me, the child’s welfare is paramount’, Tandon said all at one go.

At a joint meeting again, the mediator asked them if the child would come the next time. Swehta remonstrated. ‘Bharath is too young to be involved in an adult talk’. Tandon said, ‘The boy does not even know that we have differences!’ The mediator teased in good humour, ‘should you not know who is the child’s preference among the two of you?’

Both of them were protective about their respective positions. I have no problem about the child coming, said Swehta first. Tandon also agreed, as he was preparing to leave. ‘We will see next week Monday at 4 pm.’ The mediator got up from the seat and accompanied the couple up to the door, as the two were leaving. Did the child have any role at the mediation session? Did the mediator overdo his role?

Government as a party in mediation

To be realistic, government who is a major litigant cannot be easily brought to the mediation table. The nature of dispute involving government is seldom amenable for a negotiated settlement. It is never easy for a person acting as a representative of the government to give concessions or scale up demands without involving other persons higher up in the administrative hierarchy.

The person in top echelon may never have time to spare at the mediation session. Of the subjects that could still be explored for settlement, determination of compensation for land acquisi tion could be an ideal subject but it will be better to resort to a more formal court like setting, such as Lok Adalat to make the assessment. This is one of the areas where mediation may not help. Have you had any luck with government as a party?

Special points of interest:

• Acquire new skills of mediation; if you are already one, improve!
• Share the technique employed to break the dead lock at the mediation table.
• Introspect on your performance and seek peer review.

You are among the few in India who have special skills to help others help themselves! By being mediators, you join the bandwagon of experts involved in finding lasting.

Solutions in conflict situations that people find themselves in. It is a movement not merely to complement the services that courts perform but also attempt to do where the courts are not adept at. There are inherently some areas where court interventions could never deliver enduring results. Courts’ dispensation of justice through adversarial approach leaves parties with a feeling for wanting more; thirsting for greater revenge.

As the victor licks blood, the vanquished begins a new diabolical plan to get even. Matrimonial disputes aggravate simmering discontent against each other to gigantic proportions. Commercial litigations distract persons from productive activity and parties end up depleting their resources of money and time that in the ultimate bargain, the winner is a loser and the loser, also a loser. You have been for a long time thinking of increasing your relevance in the judicial system engaged in the work of reducing disputes; lessening the quotient of discontent among litigants who want enduring results. Or, you want to improve your skills as a mediator and obtain greater success in helping people settle. You want to share the experience of your success or find answers why you could not succeed. Maybe, you are not a mediator but as a lawyer you want to find relevance at the mediation session to help your party settle for more. You want to acquire skills as a deft negotiator. Are you are a litigant and you want to know more about how to avail of the services. Here is the perfect platform to showcase your abilities; learn techniques and improve skills. Share your emotions. Write your story. Send photographs. Begin now!

How to Say No

Saying No is a big deal. You are closing an option and taking the discussion to a dead end. But sometimes, it is only way that you protect your interest. How to say it is then a technique if you

want the discussion to go on. Say it between two yeses! You are assisting a party as a lawyer at the mediation session. The father of the child seeks custody of the child from the mother whom you represent. The parents have fallen apart and the proceeding for divorce is pending. Your client, the mother of the child would not want to lose custody. First say, yes and qualify it. Say, yes, you understand that the father has also love for the child. State your position next. No, you will not just give up the child. The third step is, yes, you will consider his request for something lesser, maybe. He may visit the child on some days. Here is the tip: Say Yes to express that you understand his interest. Say no to underscore your position. Say yes to move forward with a proposal.

Test your neutrality

As a mediator, you do not wear the judge’s hat. You will not decide what is right and wrong; what is good or bad. You will, on the other hand, help the party decide what is right for her, what is wrong for him or vice versa; what is either good or bad. At the mediation table, your neutrality is at test at all times: the way you sit; the way you lean to one side; the chair you offer to parties; the time you spend for each party and the tone you employ. At a district mediation centre, there were 4 chairs. The wife had arrived with her parents. The husband had arrived with his brother. The mediator offered the chair to wife and her two parents. The husband’s brother who was elder sat. There was no chair for the husband. The husband did not complain at the mediation session but was standoffish in attitude that he displayed, while the mediation was in progress. He seemed keen to participate in the mediation just before the mediation session began when he met with the mediator outside the hall. The mediator was wondering what had gone wrong. The mediator was surprised when he was called by the district judge the next day to enquire why he had treated a party badly. Just as the mediator was wondering how the judge had any knowledge, the latter produced a letter of complaint by the husband at the mediation session about how the mediator

had insulted him by offering a chair to his father in law and made him stand all the while!

What shall be your response?

The first day’s session concluded and parties had wound up for continuation for the next week. One of the parties seemed hesitant to go out and waited a little. You ask him courteously what was the matter? He asks you if he might have a word with you. As if to allay your fear that he was not trying to ask you for some special favours, he says rather aloud to the hearing of the other side that it was nothing about the day’s proceedings. As you encourage him to continue, even as you were signaling others kindly to move off, the party tells you that he was much impressed with you as a mediator and wants to consult with you for a case which he is presently doing through another lawyer in the High Court. He asks you if he might drop in at your office at your convenience. What shall be your response? Write about what you would do

Cases fit for mediation

What types of cases are suitable for mediation?

• Family disputes including issues relating to matrimonial relationships and partition;
• Partnership disputes regarding dissolution and accounting;
• Intellectual property disputes including patent infringements and trade mark violations
• Industrial disputes – What disputes are not suitable for mediation?
• Criminal offences involving women and children that are both not amenable for plea bargaining or for being compounded;
• Heinous crimes that are offences against state
• Cases of complaints of forgeries and impersonation

What is your take on government as a party to mediation?

Case Study 1: Wife wanted to give up husband…

On a petition by the wife to the court for annulment of marriage on the ground that the marriage had not been consummated, the husband’s plea was that he was a divorcee with a child aged 5 years and the marriage itself was subsequent to an advertisement issued by him calling for responses only from a person interested in a platonic relationship with willingness to take care of child. The matter had been referred to the mediation centre. The mediator was surprised that the wife had responded to what seemed to be a crazy ad and having gone through a marriage, why she wanted a divorce on the ground of non consummation. At the mediation centre, the woman explained that she believed that her husband would not stick to such a condition and she would win him around to a normal conjugal living. The husband had a justification: he did not want his child to be treated by a step mother who may have a child through him and complicate the life of his child through his 1st wife with a sibling rivalry to cope with and having to suffer the proverbial ill treatment of the step mother. The wife was a college lecturer and the husband was

manager of a public sector bank. Both of them knew what they were doing and not persons who were gullible.

How did the problem get resolved?

What happened to the child?

contd….

Case Study 2: Advise your party

SCT was a big software company in India. It carries out extensive campus recruitments from Engineering colleges across India and spends enormous money on training them at their own academic centre to make them handle complex projects on turnkey software solutions for multinational companies in USA and Europe. Many of the trained personnel go to foreign countries for a period of 1 year, after submitting bonds to serve the company after returning to India, to run their projects at site and train local people to work the programs and fix bugs if need arises. MWE is a US based software company and employs large population of Asians trained in computer software engineering. Training them in US is getting to be a costly proposition and recruiting the persons trained by SCT seems like a viable option, if only it was able to pay up the ‘bond money’ payable to SCT and relieve the trained personnel the obligation to serve at the project sites. MWE was able to poach many employees of SCT this way by carrying out a head

hunt of persons who were at project sites. SCT suffered a great deal to supply substitutes from India for employees who were abandoning the projects. SCT sued in India for an injunction restraining MWE not to induce its employees from breaking the contract and obtained interim injunction. MWE filed an application to vacate the order contending the suit amounted to restraint against trade and hence not maintainable.

If you are a counsel for SCT, how would you take the case forward?  

If you are a counsel for MWE, what will be the options that you will be willing to explore on behalf of your client and what shall be the negotiating points?