CMM213 | Mediation

The course develops from the course on Alternative Dispute Resolution in which mediation typically forms a small part. It is intended to be a stand-alone course (as prescribed by the Bar Council of India). In the course the students will study of the process, policies governing mediation and the issues that have arisen in its regulation and in its interaction with more institutionalized processes of dispute resolution.

The course begins with understanding the process of mediation and the approaches to mediation (customary, modern and designs of policies and institutions built around the use of mediation for dispute resolution). The classes that follow look at the structure and process of mediation in detail, and the purpose behind the stages in the process of mediation. The students will attempt simulations individually and through fishbowl exercises to follow these stages, and understand important concepts used in mediation.

This is 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. This will be the base from which intersections between the mediation process and the laws, and mediation and the more public and institutionalised systems of dispute resolution will be considered. We look at aspects such as confidentiality, volition, enforcement, fairness standards for a mediated settlement agreement, ethics in mediation, appropriateness of mediation in disputes, enforcement and challenge to settlement agreements.

The final segment will be the international aspects of mediation – cross border disputes and mediation. We will look at the Singapore Convention, and related issues of private international law.

In these discussions through the course, we will consider disputes in different sectors – matrimonial, commercial, intellectual property, insolvency resolution. I propose to have mediation simulations for the students. The initial simulations will not be assessed, but later simulations will be assessed. The simulations will be followed by reflections and discussion on the experiences of mediating, representing and negotiating the dispute.

The choice of the cases and readings are meant to enable discussions and explorations among the students.

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