Lease of Immoveable Property
A lease is a transfer of a right to enjoy property for certain time against a price or rent.
It operates as a conveyance in the eyes of law meaning thereby a lessee has the rights over the property in respect of which lease is issued, however, such rights are subject to the terms and conditions of a lease.
There is no difference in the legal character of a lease and a sub-lease. A lease is generally granted by the relevant authorities for an open plot of land for residential, commercial, industrial or other purpose and on the other hand a sub-lease is generally granted in respect of premises situated in a building/complex having multiple premises and each holder of a premises gets a sub-lease to the extent of premises held by him/her.
There is no prescribed period under the law for which a lease or a sub-lease is to be granted and each and every lease or sub-lease as the case may be can be for such duration as stipulated under each of the said lease or sub-lease.
It is advisable and strongly recommended that any person acquiring rights in a property by virtue of either lease or sub-lease shall ensure that such the same is duly registered under the Registration Act, 1908. It is a mandatory requirement of the Registration Act, 1908, that any lease for a period of more than one year needs to be compulsorily registered.
TRANSFER OF PROPERTY ACT, 1882
In Pakistan the transferring of
property from one person to other,
ownership rights relating to a party by virtue of such transfer and other
matters relating thereto are governed by
a law named as the “Transfer of Property Act, 1882”
Sale of immoveable
Property
Transfer of ownership of the
immoveable property from the seller to the buyer against some valuable
consideration which is generally a price.
Sale of an immoveable property is
affected in two steps, firstly when the parties enter into an Agreement whereby
the terms and conditions under which the immoveable property is being sold and
purchased by the parties are settled and agreed upon.
It is advisable that the terms
and conditions agreed between the parties are duly recorded under a formal
written agreement and be duly signed by both the seller and purchaser and to be
attested by two witnesses. It would not be out of place to mention here that an
Agreement for sale does neither transfer the ownership of an immoveable property
nor it by itself create any proprietary or ownership rights in an immoveable
property. In other words it can be said that an Agreement for Sale is not a
title document and does not confers any title or ownership in an immoveable
property.
In order to effect ownership and
proprietary rights in an immoveable property, the second step i.e. that
execution and registration of a sale deed is essential. It needs to be borne in
mind that ownership and proprietary rights in an immoveable could only be acquired
through a registered sale deed which becomes a title documents. A sale deed
generally requires the payment of stamp duty and registration fee. In some
cases it also attracts capital value tax.
MUSLIM PROPERTY MATTERS
POWER OF ATTORNEY
(MUKHTARNAMA)- as per The Power of Attorney Act VII of 1882)
What is a Power of Attorney?
A Power of Attorney is an instrument empowering a specified person or person to act for or in the name of the person executing it.
A Power of Attorney may be executed jointly by number of person as the Principals. It may be executed in favour of one person or number of person as the attorney or attorneys.
General and Special Power of Attorney
A Power of Attorney is either General or Special.
If the appointment is made for a Specified Act or Acts, the Deed is called “Power of Attorney”. If it is made generally authorizing the Attorney to act generally or in more then one transaction for certain acts it is called “General Power of Attorney”.
Who can execute a Power of Attorney?
Any person who has the capacity to Contract can execute Power of Attorney i.e. person must be major and sound of mind.
General Principles and Rules of Construction of Power of Attorney
A Power of Attorney must be strictly construed as giving only such powers as it confer expressly or by necessary implication.
One of the most important rules of construction of Power of Attorney is that regards must be had to recitals, which as showing the scope and object of Power which control, all the general terms in the operative part of the instrument.
The General Power of Attorney does not necessarily give unlimited authority to the attorney.
Where a Special Power of Attorney confers power to a person to contract a particular suit pending in a particular court and does not expressly gives power to engage an Advocate, for other litigation than the Attorney does not have authority to engage an Advocate and sign plaints etc.
Registration of Power of Attorney
The Registration of Power of Attorney is not compulsory, yet the Courts are not bound to presume its genuineness unless it is registered.
However, it is to be executed before the “Notary Public” or any “Court”, judge, Magistrate ,Pakistan Council or vice Council or the representation of the Central Government because in that case any Court before which it is produced shall presume its genuineness under Article 95 of The Qanun-e-Shahadat Order:1984.
Duration of Power of Attorney
· When power of attorney is given for a fixed period power of attorney expires on lapse of time.
· When power of attorney is given for a specific act, on completion of such act, power of attorney terminates.
· Power of attorney terminates on the death of the principal/donor or the attorney/done.
· Power of attorney can be terminated by giving public notice of termination/revocation by the principle/donor.
Revocation
· Power of attorney can be revoked by giving public notice in newspaper
· Power of attorney is always revocable but power coupled with interest is irrevocable until the interest has been satisfied.
· When Power of Attorney is part of security for money then it is not revocable. This principle is applicable to every case where a Power of Attorney is necessary to affect any security. But this rule of common law does not apply to prevent revocation by death of principal.
· No revocation of power of attorney if given for consideration.
Who can custody be granted for?
The Court can grant custody for a minor Muslim child a guardian appointed by it.
Who is a minor?
Any person who has not completed the age of 18 years is a minor.
Who can be appointed as Guardian?
The Court appoints a Guardian taking into consideration the welfare of the minor, which includes:
· The age, sex and religion of the minor
· Character of the guardian and his nearness to kin if minor is old enough to form an opinion then his or her preference.
When is the mother entitled to custody?
Under Shia Law, the mother is entitled to custody of a male child till she attains the age of two years and a female child till she attains the age of seven years. After these ages custody belongs to the father unless she proves otherwise.
DIVORCE
WHAT IS Divorce?
“It is the legal dissolution of marriage between spouses”
What are the various
forms of Divorce?
The contract of marriage under Islamic Law may be dissolved
in any one of the following ways:
·
By the husband at his will (Talak)
·
Talak-e-Tafweez (delegated power of divorce)
·
By mutual consent of husband and wife (Mubarat)
·
Khula by wife
·
Judicial Divorce
Divorce by Talak:
Any Muslim of sound mind, who has attained puberty, may
divorce his wife where the desire without assigning any cause.
Is there prescribed for
pronouncing Talak?
·
A Talak may be effected orally by spoken words
or by a written document called a talaknama or a divorce deed.
·
However, under Shia Law. Talak must be
pronounced orally upon the wife in the presence of two witnesses. A Talak
communicated in writing is not valid unless the husband is physically incapable
of pronouncing it orally.
When does a Talak
become irrevocable?
·
Talak becomes irrevocable and complete on
expiration of the period of Iddat.
What is delegated power
of divorce (Talak-e-Tafweez)?
·
A husband may delegate his power to give divroce
to the wife, either conditionally or absolutely, for a particular period or
permanently. The wife may then pronounce divorce on herself on behalf of the
husband.
Mubarat:
Divorce by Mubarat is when there us mutual hatred. Dislike
and aversion between the husband and wife and therefore the spouses mutually
agree to terminate the marriage contract.
The wife may or may not release her dower and other rights
against the husband.
Khula:
·
Khula is when the wife approaches the court of
law for dissolution of her marriage. In such a case she agree to forgo her Mahr
and other rights, at time even return the property or other gifts received from
the husband at the time of marriage, for her release from the marital tie.
·
Wife is entitled to Khula as of right, if she
satisfies the Court that she had developed a fixed aversion towards the
husband.
She need not prove reasons justifying her aversion.
What is a Judicial
Divorce?
·
A Court may dissolve a marriage under the
Dissolution of Muslim Marriage Act, 1939 on an application by the wife on the
following grounds:
·
The whereabouts of the husband are unknown for a
period of 4 years.
·
Failure of husband to provide for maintenance of
wife for a period of two years.
·
Sentence of imprisonment of husband for a period
of seven years.
·
Failure without reasonable cause to perform
marital obligations for a period of three years.
·
Importance of husband.
·
If the husband has been insane for a period of
two years or is suffering from leprosy or a virulent venereal disease.
·
Cruelty of husband.
Notice of Talak to
Chairman Union Council under section 7 of the Muslim Family Law Ordinance,
1961:
Section 7 of the Muslim Family Law Ordinance, 1961 requires
divorce. In whatever from, to be notified to the Chairman, Local Union Council.
Contravention of this provision is punishable by fine and/or imprisonment.
Divorce shall only become effective on expiration of 90 days
from the date of such Notice. It may be noted that if the wife is pregnant at
the time of divorce, then despite expiration of 90 days, the divorce does not
become effectively until after delivery.
The Chairmen, on receiving such Notice, shall constitute an
arbitration council to attempt to bring about reconciliation between the
spouses.
Although divorce becomes effective on expiration of 90 days,
however a certificate of confirmation must be obtained from the Union Council
to avoid confusion.
Is a husband bound to maintain his wife?
• Husband has a legal, moral and social duty to provide adequate maintenance for his wife during the subsistence of their marriage.
Is this duty enforceable by Court?
• If the husband neglects or refuse to maintain his wife, without any lawful cause, then the wife may either initiate civil proceedings against him for payment of maintenance due or institute criminal action for a monthly allowance to be paid to her,
• The husband’s social status and level of legitimate financial sources are important factors for deciding the quantum of maintenance.
What is Dower?
“It is the sum which the wife is entitled to receive from the husband by virtue of the marriage contract.”
What can from the subject of Dower?
Anything over which dominion or the right of property may be exercised or anything which may be reduced in possession can form the subject of dower. It may be cash or kind.
Is there an amount specified for Dower or Mahr?
Under Shia Law, there is no fixed legal minimum.
When can Dower be fixed?
The amount of Dower may be fixed either before or at the time of the marriage.
Can the Dower amount be changed subsequently?
· Husband, at any time during the sustenance of marriage, can enhance the Dower amount fixed in the Nikahnama. However, he cannot decrease the same.
Under Shia Law, if the husband divorces the wife before consummation of marriage, the Dower is reduced by half but if the husband dies before consummation, the full Dower is payable to the wife.
Prompt and Deferred Dower
Dower is usually split into two parts:
· Prompt Dower: which is payable on demand
· Deferred Dower: which is payable on dissolution of marriage by death or divorce.
MARRIAGE
What is marriage?
“Marriage is a civil contract between the spouses solemnized according to religious and social of the parties”
Who can enter into a Contract for Marriage?
• Every Muslim of sound mind, who has attained puberty, exercising his free will, may enter into a contract for marriage.
• Marriage of a Muslim who is of sound mind and has attained puberty is void if brought about without his or her consent.
• Minor who have not attained puberty may be validly contracted in marriage by their respective guardians.
• Lunatics may be validly contracted in marriage by their respective guardians.
Registration of Marriage:
Every Marriage shall be registered with the Nikah Registrar.
Contravention is punishable with imprisonment and/or fine.
What is the effect of religious differences between parties?
• A Shia male may contract a valid marriage with a Sunni female and Shia female may contract a valid marriage with a Sunni male.
• A Shia male may contract a valid marriage with an Ahl-e-Kitab female i.e. a Christian or a Jew female but a Muslim female can only contract a valid marriage with Muslim male.
• Neither a Shia male nor a Shia female can contract a valid marriage with a Hindu.
What is inheritance?
It is the mode of transfer of property and/or the involuntary devolution of property by which the estate of deceased person is transferred to his heirs as his successors after his death.
What can be inherited?
All property, move able and immovable, ancestral and self-acquired, belonging to the the deceased may be inherited by the heirs, provided the same is free from all encumbrances. Therefore it is necessary that funeral expenses, debts (which includes dower debt i-e. Dower payable to the widow of the deceased) and the will, if any, are at the first instance satisfied before the heritable property is divided among the legal heirs of the deceased.
When can property be inherited?
• Right of inheritance is created only on the death of certain person; hence the right of the heirs comes into existence at the exact time of such death, and till then they are not entitled to any interest in the property to which they would succeed as heirs.
• In such a case, succession certificate or a latter of administration, as the case may be, is a must, which is to be issued to the legal heirs from the competent court of law. All the legal heirs would have to apply through a petition to be moved on their behalf.
• Letter of administration is required in case of immovable property and succession certificate in case of move able property.
• In case of any minor legal heir his or her share is to be deposited with the Nazir of the relevant court till such time when the minor attains majority or adulthood where after he can make an application to the Court for the withdrawal of his share.
• A child in the womb of the mother at the time of father’s death inherits and a share has to be reserved for him to which he would be entitled.
Classes of heir: Shia Laws
There are two classes of heirs, namely:
1. Shares: who are entitled to a prescribed share of the inheritance;
2. Residuary: who take no prescribed share, but succeed to the “residue” after the claims of the shares are satisfied
Who may not be legal heirs?
• Step children/step parents.
• Adopted children
• Illegitimate children
• Divorced spouses
A wife divorced by a dying husband inherits if he dies before the expiration of iddat period.
Under Shia Law, a childless widow has no share in her husband’s immoveable property but she has share in his moveable property.
A gift to a stranger is revocable any time so long as the subject of the gift exists. It is not allowed when:
It perishes or is transformed
There is a substantial change in it or has increased in value
Third party interest is created
A gift to parents, a blood relative and souses cannot be retracted after delivery of possession has been made.
Successors in interest of donor cannot revoke gift after his death.
A gift cannot be revoked when done is dead and subject matter of the gift has devolved upon his legal heirs.
GIFTS
What is a Gift?
“A Gift is transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another called the done, and accepted by or on behalf of the done”
Such acceptance must be made;
• During the lifetime of the donor
• While he is still capable of giving
If the done dies before acceptance, the gift is void.
A gift made in death-illness would be governed by law of Will.
What can be Gifted?
A gift may be made of anything over which right of property may be exercised or anything which can be reduced into possession or may be exercised as an enforceable right.
Essential qualifications of subject matter of Gift
• It must exist at the time the gift is made of anything which is to be produced in future is void.
• The donor must possess and down it. If it is not owned and possessed by the donor it cannot be gifted.
Parties to a Gift
The Donor must
• Be of the age of majority
• Be of sound mind
• Have the requisite freedom
• Have ownership of the subject matter of the disposition
The Donee:
Must be in existence at the time of gift. It includes child in a womb.
Can be any person without distinction of gender, age creed or religious faith.
Can be non-Muslim
Can be a mosque or place of religious practice as the same is a juristic person
Pre-requisites of a valid Gift
• The Donor must be an adult and sound mind and free agent.
• The subject of the gift must belong to the donor and must be in existence at the time of the gift.
• Done must be in existence at the time of the gift (including a child in womb).
Essentials of a valid Gift
• A declaration of gift by the donor
• An acceptance of gift, express or implied, by or on behalf of the done
• Delivery of possession of the donor, actual or constructive, of the subject of the gift by the donor to the donee.
Possession-fundamental element of Gifts under the Mohammedan Law
Immovable Property
• In the possession of the donor: for completion of gift requires actual physical possession
• In occupation of tenants: for completion of gift by delivery of title deeds or by requesting tenant to have all subsequent dealings with the donee.
Move able Property
• For completion of gift actual physical delivery is essential
Money
• For completion of gift actual delivery either by cash or pay order. Entry in books of accounts that’s money has been paid to donee is insufficient.
Possession
• Can be actual or constructive
• When donee is minor or a lunatic, the guardian of property of such minor or lunatic must take possession of the subject of the gift.
• There is no need for actual delivery of possession when is by parents to children or by spouses to each other.
Constructive possession shall suffice.
Is there a prescribed form for Gifts?
• There is no Mohammedan rule that a gift must be in writing.
• Oral gifts are equally.
• Oral gifts are not vitiated because of absence of a registered instrument signed by the donor and attested by at least two witnesses.
• It is advisable and strongly recommended that gift of immovable property be effected through a registered document duly registered under the Registration Act, 1908.
• If a donor imposes any condition or restriction inconsistent with full ownership, the gift is valid but the condition is invalid.
When can a gift be revoked?
• Before delivery of possession, a gift is not complete and can be easily revoked.
Muslim Personal/Family Laws and Property Matters
Muslim Personal Law
Insofar as matrimonial matters, inheritance, succession, wills and gifts are concerned, Pakistani Muslims are governed by a special set of laws called the Muhammadan Laws, where based on teachings of the Quran.
After the imposition of Shariat Act, 1937, the Shia Imami Ismaili Muslims of Pakistan are governed by Shia Muhammadan Laws. WILL (WASIYAT)
What is a Will?
...: Muslim Personal/Family Laws and Property Matters Muslim Personal Law Insofar as matrimonial matters, inheritance, succession, wills an...
WILL (WASIYAT) What is a Will? “It is the legal declaration of the intention of a testator with respect to his property which he desire ...
WILL (WASIYAT)
What is a Will?
“It is the legal declaration of the intention of a testator with respect to his property which he desire to be carried into effect after his death”
Who can make a Will?
Every Muslim of sound mind and not a minor may take a will to dispose off his property. Age of majority for the purposes of will is 18 years. In case of minor, of whose person and property, a guardian has been appointed by Court of Wards, the age of majority is deemed to be 21 years.
Under Shia Law, a will made by a person after he has done something towards commission of suicide, such as taking poison etc, is not valid.
Is there a prescribed form for Wills?
• Mohammedan Law does not have any prescribed form for a Will and such is not any legal formalities.
• It need not be in written nor it need be registered or attested.
• Even an oral will is perfectly valid.
However, the testator’s intentions with respect to his property which he desires to be carried out after his death, in whatever form they are declared, must be with sufficient clarity so as to be capable of being clearly ascertained.
Therefore, a will may be made in any manner whatsoever, provided it shows a clear intention to make it (whether such on acceptance is expressed orally or in writing) and shall take effect on acceptance, expressly or impliedly, by the legatee after the testator’s death.
What can be subject of a will?
A will may be in respect of:
• Any property or right which is capable of being transferred and is in existence at the time of testator’s death.
• Any benefit or right in such property for either a limited period or for the lifetime of the legatee.
Who can be a Legatee?
• A Will can be made for the benefit of any person or institution in existence at the time of the testator’s death.
• Invalid for an unborn child but valid for one who is in womb and is born within six months of the date of the will.
When does a Will become effective?
A will becomes effective and title to the property bequeathed is completed only with the legatee’s acceptance, express or implied, after the death of the testator.
Are there any testamentary limits?
Two-fold limitations are placed by Mohammedan Law on the power to make a will:
• Restrictions as to person to whom bequest may be made
• Restriction as to property of which bequest may be made
Therefore, a Mohammedan cannot, by will, dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts.
WILL Under Shia Law:
A testator may leave a legacy to an heir so long as it does not exceed 1/3rd of his estate. however if legacy to an to an heir exceeds 1/3rd, it is not valid unless the other heirs consent thereto.
If the bequest exceeds 1/3rd then on refusal of consent,it stands abated. As a norm, on refusal of consent, legal heirs will receive their respective shares in the deceased estate in designated proportions specified under the Mohammedan law of inheritance.
Where bequest is made of the entire property to one heir to the exclusion of the other heirs, the will be read as if it did not contain any disposition of the property.
A testator bequeath up to 1/3rd of his estate to a stranger and the same shall be valid without the consent of his legal heirs.
However a bequest in excess of 1/3rd may be validated by consent of the legal heirs.
A bequest for a pious or charitable purpose can only be made to the extent of the bequeathable 1/3rd , provided of course that the legal heirs of the testator consent otherwise.
Administrative Details
If bequest of corpus of any property is made subject the to a condition derogating from completeness of the bequest, e.g. that the legatee shall not alienate the property bequeathed, such conditions is void and the legatee will get property as if no conditions were attached to it.
A will may be altered or revoked by the testator in his lifetime.
Gift what is a Gift?
continued tomorrow....
Alternate Dispute Resolution
(ADR)
Alternate Dispute Resolution (ADR), although considered generally to be a new concept has its roots in old customs and practices. Even at present in many societies, in the absence of State Law customary enforced by council of elder govern aspects of individuals behavior and social interaction unwritten, it represents day to day practice of the people concerned and settlement of disputes by elders.
In the indo-Pak subcontinent, Alternative Dispute Resolution, is in fact centuries old and is known as the punchayiat or Jirga system in rural areas.
All disputes are brought before a committee of respectable and honourable elders, who whose decision is accepted by the parties and no party can usually afford to disagree with the decision because of social rejection by the society. Through this informal activity of justice, dispute resolution has been going on throughout Pakistan alongside the formal administration of justice through courts. Whenever an offence takes place or a dispute arises the local elders who command influence and credibility, gather and enter into intensive negotiations with the parties or amicable resolution of the conflicts. The focus is mostly on repairing the damage done and restoring relationships, personal and commercial, to their original state as far as possible.
They deal with a range of issues including conflicting claims to land and water, inheritance, alleged breaches of the honour code and intra-tribal or inter-tribal killings.
Alternate Dispute Resolution can be termed to be a rising trend of this century as it means finding domestically and internationally a quicker inexpensive and more effective system alternate to litigation which is time consuming and expensive ADR is generally classified into at least four subtypes: Negotiation, Mediation, Collaborative Law and Arbitration.
Mediation is one of the best alternates that has been in practice in the Islamic history and in Ismaili tradition for centuries. Mediation is in fact the most effective, low cost, efficient and dignified way of resolving disputes.
The mediation process is introduced by Aga Khan Development Network in 11 countries in the world and in the ismaili sect is practicing in the Northern Areas Pakistan also.
Difference between Mediation and Arbitration
Arbitration is a process by which a neutral third party or panel considers evidence presented by the parties and makes a decision which is binding on the parties according to rule, or prior agreement of the parties.
The Arbitrators are required to give an award within a time frame decided by the parties
The Arbitrators ward has to be registered in the court of law and is binding on the parties.
Mediation on the other hand, is a voluntary and flexible process where a neutral third person assist confidentially the parties towards a negotiated agreement, with parties in ultimate control of the process in reaching on a decision of their own where both the parties are in win-win situation with or without a financial cost.
The Aga Khan Shia Imami Ismaili Conciliation and Arbitration Board all over the world prefer to adopt Conciliation through Mediation for resolution of conflicts within the Jama’ati members.
Mediation
What is mediation?
Mediation is a flexible process, conducted confidentially in which a neutral persons actively assist the parties in working towards a negotiated agreement, with the parties in ultimate control of the decision to settle the dispute.
The mediation has no power to impose a settlement on the parties, who retain authority for making their own decision. The mediator is therefore responsible for the conduct of the process-while the parties control the outcome.
Fundamental Principles of mediation
Confidentiality of exchanges of information
Impartiality of the mediator
Procedural flexibility
Decision making authority rests with the parties
Voluntary participation
Decision non binding until reached an agreement
Fundamental Principles of mediation
Confidenti...: Fundamental Principles of mediation Confidentiality of exchanges of information Impartiality of the mediator Procedural flexib...
Stages of the mediation process
• Stage 1. Opening Phase (Engaging the parties in the mediation process)
• Stage 2. Exploration Phase (Identifying the issue)
• Stage 3. Bargaining Phase (Identifying and evaluating options)
• Stage 4. Concluding phase (Building and securing agreement)
Mediation stages and required skills
Stage 1 skills. Opening Phase
• Explaining the role and purpose of mediation in a language appropriate to the parties in disputes
• To explain to the parties the essential principles of mediation
• Explaining the benefits and limitations of mediation objectively
• Demonstrating impartiality, non-judgmental and non-defectively
• Facilitating understanding towards and informed choice by each party about the potentials costs and benefits of mediation
• Establishing each parties potential for commitment to the mediation process
• Allowing each party sufficient uninterrupted time to express their feelings and concerns
• Checking and conforming accuracy of information with each party
• Identifying and agreeing for each party the issues that will form the agenda for mediation
• Identifying with the parties the priority order for discussion of the agenda issues
• Exploring alternative options where mediation is found not be appropriate
Process on opening Stage mediation
• Introduction to the mediation process
• Explaining the mediation approach
• Grounds rules for the mediation process
• Explain the purpose of mediation
• Explain about the voluntary process
• Explain that the mediators are impartial
• Ensure equity
• Make the parties sure that everything discussed will be confidential
• Without prejudice
• Explain the limitations of the process what we are can do and what we can not do
• Being to clarify the needs of the parties
• Take cultural sensitivity into account
• The mediation agreement to be signed with explanation that no part of this whole process of mediation can be quoted in the court. It has legal cover.
Tools to be used in the opening stage
• Engaging the parties in the mediation process
• Active listening and understanding to the parties
• Using appropriate language
• Opening questions- tell us about the problem
• Exploring the problem with more open ended questioning
• Use close ended question for checking/clarifying facts and checking figures and dates
• Hypothetical questions for probing-getting more details of the problem
Stage 2 to be continue…..
literature: Stages of the mediation process
• Stage 1. Openin...: Stages of the mediation process • Stage 1. Opening Phase (Engaging the parties in the mediation process) • Stage 2. Exploration Phase ...
Stage 2 Skills ---Exploration
• Facilitation the appropriate transition to the stage from the previous stage from the previous stage
• Facilitating the gathering and exchanging of information
• Establishing a balanced understanding by the parties on the information obtained
• Respecting and managing differences of position
• Facilitating and managing the demonstration of emotions and feeling to allow the process to move forward
• Facilitating parties acknowledgement of each others perspectives
• Establishing common ground where agreement is possible
Process during Exploration Phase
• Exploring the problems with more open ended questions
• Understanding the parties needs and help them move from the historic past to a common vision of the future
• Give the parties time and opportunity to event out their emotions and feeling
• Writing down focal points of the issue/problem
• Ask which points they give more importance
• Private and joint meetings
• Creative and building a rapport so that they can develop confidence and trust in you and the mediation process
• Finding out the core of the problem (peeling the onion)
• In confidence, discuss the weaknesses as well as the strengths of the party’s case
• Explore the party’s perception of the case
• Engage them into discussion not interrogation
Tools to be used during Exploration Phase
• Active listening and understanding
• Effective questioning
• Clarifying
• Summarizing (reflecting/rephrasing)
• Acknowledge positions
• Future focused
Stage 3 to be continued….
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Stage 3 skills---Bargaining Phase
Facilitating the appropriate transition to option development from previous stage
• Clarifying the confidential, without prejudice and non-binding nature of option exploration
• Facilitating the parties creative development of a vide range of options
• Enabling a future focus in discussions
• Facilitating a detailed cost benefits analysis of options for each party
• Facilitating development of alternative options where progress cannot be made
Process during Bargaining Phase
• Driving the parties from their positional stand point to a principled stand point
• Keep the rapport
• From what I want to what I need position
• From past (dispute) to future (solution)
• Empathize not sympathize with the parties
• Hypothetical questions
• Avoid multiple questions
• Reality testing of options offered by the parties
Tools to be used in Bargaining Phase
• Normalizing the situation when needed
• Mutualizing help to understand
• Reality testing-checking if the option is workable/possible
• Managing/taking control of the process when necessary
• PIN (Position-Interests-Needs)
• BATNA (Best Alternate to Negotiated Agreement)
• WATNA (Worst Alternate to negotiated Agreement)
• MLANTA (Most Likely Alternate to Negotiated Agreement)
• Cost of litigation, time
• Future relationships
• Reputation
• Uncertainty
literature: Stages of the mediation process
• Stage 1. Openin...: Stages of the mediation process • Stage 1. Opening Phase (Engaging the parties in the mediation process) • Stage 2. Exploration Phase ...
Stage 2 Skills ---Exploration
• Facilitation the appropriate transition to the stage from the previous stage from the previous stage
• Facilitating the gathering and exchanging of information
• Establishing a balanced understanding by the parties on the information obtained
• Respecting and managing differences of position
• Facilitating and managing the demonstration of emotions and feeling to allow the process to move forward
• Facilitating parties acknowledgement of each others perspectives
• Establishing common ground where agreement is possible
Process during Exploration Phase
• Exploring the problems with more open ended questions
• Understanding the parties needs and help them move from the historic past to a common vision of the future
• Give the parties time and opportunity to event out their emotions and feeling
• Writing down focal points of the issue/problem
• Ask which points they give more importance
• Private and joint meetings
• Creative and building a rapport so that they can develop confidence and trust in you and the mediation process
• Finding out the core of the problem (peeling the onion)
• In confidence, discuss the weaknesses as well as the strengths of the party’s case
• Explore the party’s perception of the case
• Engage them into discussion not interrogation
Tools to be used during Exploration Phase
• Active listening and understanding
• Effective questioning
• Clarifying
• Summarizing (reflecting/rephrasing)
• Acknowledge positions
• Future focused
Stage 3 to be continued….
Images of mediation
Stage 3 skills---Bargaining Phase
Facilitating the appropriate transition to option development from previous stage
• Clarifying the confidential, without prejudice and non-binding nature of option exploration
• Facilitating the parties creative development of a vide range of options
• Enabling a future focus in discussions
• Facilitating a detailed cost benefits analysis of options for each party
• Facilitating development of alternative options where progress cannot be made
Process during Bargaining Phase
• Driving the parties from their positional stand point to a principled stand point
• Keep the rapport
• From what I want to what I need position
• From past (dispute) to future (solution)
• Empathize not sympathize with the parties
• Hypothetical questions
• Avoid multiple questions
• Reality testing of options offered by the parties
Tools to be used in Bargaining Phase
• Normalizing the situation when needed
• Mutualizing help to understand
• Reality testing-checking if the option is workable/possible
• Managing/taking control of the process when necessary
• PIN (Position-Interests-Needs)
• BATNA (Best Alternate to Negotiated Agreement)
• WATNA (Worst Alternate to negotiated Agreement)
• MLANTA (Most Likely Alternate to Negotiated Agreement)
• Cost of litigation, time
• Future relationships
• Reputation
• Uncertainty
literature and movies: Stage 3 skills---Bargaining Phase
Facilitating th...: Stage 3 skills---Bargaining Phase Facilitating the appropriate transition to option development from previous stage • Clarifying the con...
Stage 4 Skills---Concluding Phase
• Facilitating the appropriate transition to option development from previous stage
• Ensuring that all parties are committed to settling the dispute
• Identifying the criteria for the agreement
• Facilitating identification of ways to close the gape between each position of each party
• Identifying which of the identified option are suitable for agreement
• Identifying party commitment to the agreement
• Exploring potential difficulties in implementing the agreement implications for significant other parties not present at the negotiations
• Facilitating agreement on the what? How? Who? Where? When? Of agreement implementation
• Recording the agreement with and for the parties
Facilitating th...: Stage 3 skills---Bargaining Phase Facilitating the appropriate transition to option development from previous stage • Clarifying the con...
Stage 4 Skills---Concluding Phase
• Facilitating the appropriate transition to option development from previous stage
• Ensuring that all parties are committed to settling the dispute
• Identifying the criteria for the agreement
• Facilitating identification of ways to close the gape between each position of each party
• Identifying which of the identified option are suitable for agreement
• Identifying party commitment to the agreement
• Exploring potential difficulties in implementing the agreement implications for significant other parties not present at the negotiations
• Facilitating agreement on the what? How? Who? Where? When? Of agreement implementation
• Recording the agreement with and for the parties
• Documentation.
literature and movies:
Stage 4 Skills---Concluding Phase
• Facilitating...: Stage 4 Skills---Concluding Phase • Facilitating the appropriate transition to option development from previous stage • Ensuring tha...
Stage 4 Skills---Concluding Phase
• Facilitating...: Stage 4 Skills---Concluding Phase • Facilitating the appropriate transition to option development from previous stage • Ensuring tha...
