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-ALTERNATIVE DISPUTE RESOLUTION-
-INTRODUCTION-
The dispute resolution processes, which are “alternative” to the traditional
Court proceedings, are often referred to as alternative dispute resolution
processes. A method of resolving a dispute can be considered as alternative if it
resolves the dispute and provide justice, with a consensual process between the
parties to the dispute.
The present era is characterised by globalisation which has resulted in an
unprecedented interaction between various markets across the globe. t has been a
great tool for breaking economic barrier and envisioning world as a market for
trade.
!hen economies and societies integrate it indubitably leads to the rise in
various types of disputes such as"#
a$ ndustrial disputes,
b$ Commercial disputes,
c$ nternational disputes etc.
“ ubi jus ibi remedium” % This legal ma&im rightly laid down the foundation of
legal system in every human society. t means whenever any wrong is done to a
person, he has a right to approach the court of law. This legal pattern of resolving
dispute has resulted in abundance of pending cases, which rightly justifies the
clich' “justice delayed is justice denied”. The legal proceedings in a court of law get
stretched down the years consuming oodles of money and which ultimately leads to
disruption in business and career.
(ecourse to means outside the courts is prompted by the time consuming and
long drawn process before the courts, involving decision of a court, appeal to higher
courts, judicial review and revision. The search was a great success with the
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discovery of alternate forum known as Alternate )ispute (esolution, which is
commonly called by its generic acronym “A)(”.
A)( is being increasingly acknowledged in the field of law and commercial
sectors both at national and international levels. ts diverse methods have helped
parties to resolve their disputes at their own terms cheaply and e&peditiously.
n the present conte&t of market economy and of integrating ndian economy
with the world economy, it became necessary for the *uick settlement and
resolution of disputes between the parties, outside the judicial system.
+enjamin ranklin once said- “when will mankind be convinced and settle their
difficulties by arbitration”.
ADR- HISTORY AND DEVELOPMENT
The history of Alternate dispute resolution forum at international level can
be traced back from the period of (enaissance, when Catholic opes acted as
arbitrators in conflicts between /uropean countries. 0ne of the successful
e&les of the said mechanism is the international mediation conducted by former
1.2 resident 3immy Carter in +osnia. A)( has given fruitful results not only in
international political arena but also in international business world in settling
commercial disputes among many corporate houses for e.g. 2ettlement of a
longstanding commercial dispute between 4eneral 5otors Co. and 3ohnson 5atthey
nc., which was pending in 12 )istrict Court since past few years.
The biggest stepping stone in the field of nternational A)( is the adoption
of 16CT(A7 81nited 6ation Commission on nternational Trade 7aw9 model on
international commercial arbitration. An important feature of the said model is that
it has harmoni:ed the concept of arbitration and conciliation in order to designate
it for universal application. 4eneral Assembly of 16 also recommended its membercountries to adopt this model in view to have uniform laws for A)( mechanism.
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0ther important international conventions on arbitration are"#
;. The 4eneva rotocol on Arbitration clauses of ;<=>.
=. The 4eneva Convention on the e&ecution of foreign award, ;<=?
>. The 6ew @ork Convention of ;<B on the recognition and enforcement of foreign
arbitral award.
n ndia art of Arbitration and Conciliation Act, ;<< provides for
nternational Commercial Arbitration.
Another step in strengthening the international commercial arbitration is the
establishment of various institutions such as"#
A$ CC % nternational Court of Arbitration of the nternational Chamber of
Commerce.
+$ Arbitration and mediation centre of !orld ntellectual roperty 0rgani:ation.
C$ AAA % nternational centre for dispute resolution of the American Arbitration
Association and others have e&plored new avenues in the A)( field.
ADR - DEVELOPMENT IN INDIA
anchayat system is vogue in ndia from centuries. t is a process by which a
neutral third party usually a person of higher stature and reputation deemed to be
unbiased during adjudication will be rendering legally binding decision.
1nfortunately, this system has lost its credibility due to intervention of politics and
communal hatred among people.
7itigation in ndia is generally longitudinal and e&pensive. Dence, there has
been considerable amount of efforts by legislature and judiciary to make A)( more
prevalent among societies.
Legislative eforts towards ADR in India:
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n ndia credit for springing up A)( goes to /ast ndia Company. t gave the
statutory recognition to the said forum under various acts such as" +engal
(egulation Act of ;??= and +engal regulation act of ;?B; which provided parties to
submit the dispute to the arbitrator, appointed after mutual agreement and whoseverdict shall be binding on both the parties.
Alternate dispute redressal received legislative recognition in ndia, after
the enactment of Civil rocedure Code, ;B< which provided %
E 2ec >;= # reference to Arbitration in pending suit.
E 2ec >;= % >= % laid down the procedure for arbitration.
E 2ec >= % >=? % provided for arbitration without courts intervention.
EArbitration is also recogni:ed under ndian Contract Act, ;B?= as the first
e&ception to 2ection =B, which envisages that any agreement restraining legal
proceedings is void.
E The 7egal 2ervice Authorities Act, ;<B? brought another mechanism under A)(
with the establishment of 7ok Adalat system.
E The ndustrial )ispute Act, ;<F? statutorily recogni:ed conciliation as an
effective method of dispute resolution.
E ndian /lectricity Act, ;<;G and A. Co#operative 2ocieties Act, ;<F are few
more e&les in this regard.
The Arbitration Act of ;B<< was the first e&clusive legislation on
arbitration. 2ubse*uently the said act was repealed and was replaced by Arbitration
Act ;<FG. Arbitration Act of ;<FG also failed to give desired result and in reali:ing
its objective of enactment. Then various recommendations of successive 7aw
Commissions and policy of liberali:ation in the field of commerce acted as a catalyst
in the growth of A)( mechanism. After the liberali:ation of ndian economy which
opened the gates for inflow of foreign investment- 4overnment of ndia on the
16CT(A7 model enacted the Arbitration and Conciliation Act ;<< which repealed
the ;<FG Act.
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T!e "ain o#$e%tives o& t!e A%t are:-
A$ To cover international and domestic arbitration comprehensively.
+$ To minimi:e the role of courts and treat arbitral award as a decree of court.
C$ To introduce concept of conciliation.
)$ 7astly, to provide speedy and alternative solution to the dispute.
Code of Civil rocedure ;<GB carries section B< which formulates four methods to
settle disputes outside the court. These are"#
a$ Arbitration
Hb$ Conciliation
Hc$ 7ok Adalat
Hd$ 5ediation.
At the same time the Constitution of ndia puts arbitration as a )irective
rinciple of 2tate olicy. Article =Hd$ provides that the state should encourage
settlement of international disputes by arbitration.
'(di%ial efort towards ADR in India:
ndian judiciary has also played a substantial role in up gradation of A)(mechanism. The ape& court has recogni:ed the alternate forum in its various
decisions.
n 4uru 6anak oundation IJ2 (attan K 2ons, court observed that
“nterminable, time consuming, comple& and e&pensive court procedures impelled
jurists to search for an alternative forum, less formal, more effective and speedy
for resolution of disputes avoiding procedure claptrapL”
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)
The reali:ation of concepts like speedy trial and free legal aid by ape& court
in various cases has also helped in the up gradation of alternate dispute redressal
mechanism. 0ne of the biggest steps in the lines of development of the said
machinery was maintaining the validity of “fast track courts” scheme as laid downin +rijmohan vJs 10.
ast track court scheme has done wonders in disposing number of pending
cases. These courts have disposed of ?.<F lakh cases out of ;.=B lakh cases
transferred at the rate of =.G<M and recent statistics show that the number of
pending cases has reduced to lakhs.
Another major step in the growth of A)( services in ndia is the
establishment of institutions such as"
N A5 # ndian nstitute of Arbitration and 5ediation
N CA # ndian Council for Arbitration
N CA)( % nternational Centre for Alternate )ispute (esolution.
These institutions provide services of negotiation, mediation, conciliation,arbitration, settlement conferences etc. They also help in finding lacunae in e&isting
A)( laws and recommended reforms to overcome them.
INTERNATIONAL ADR FORUMS
Another step in strengthening the international commercial arbitration is the
establishment of various institutions such as"#
A$ CC % nternational Court of Arbitration of the nternational Chamber of
Commerce.
+$ Arbitration and mediation centre of !orld ntellectual roperty 0rgani:ation.
C$ AAA % nternational centre for dispute resolution of the American Arbitration
Association and others have e&plored new avenues in the A)( field.
A* T!e +er"anent Co(rt o& Ar#itration , +CA : is an international
organi:ation based in The Dague in the 6etherlands. t was established in ;B<< at
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the first Dague eace Conference. The CA encourages the resolution of disputes
that involve states, state entities, intergovernmental organi:ations, and private
parties by assisting in the establishment of arbitration tribunals and facilitating
their work. The CA is different from the nternational Court of 3ustice which ishoused in the same building, the eace alace in The Dague.
The CA is not a “court in the conventional understanding of that term, but
an administrative organi:ation with the object of having permanent and readily
available means to serve as the registry for purposes of international arbitration
and other related procedures, including commissions of en*uiry and conciliation.” t
is a permanent framework available to assist temporary arbitral tribunals or
commissions. The judges or arbitrators that hear cases are officially called
O5embersO of the Court
Dispute settlement is regarded by the World Trade Organization HWTO$ as
the central pillar of the multilateral trading system, and as the organi:ationPs
Ouni*ue contribution to the stability of the global economyO. A dispute arises whenone member country adopts a trade policy measure or takes some action that one or
more fellow members considers to a breach of !T0 agreements or to be a failure
to live up to obligations. +y joining the !T0, member countries have agreed that if
they believe fellow members are in violation of trade rules, they will use the
multilateral system of settling disputes instead of taking action unilaterally Q this
involves abiding by agreed procedures H)ispute 2ettlement 1nderstanding$ and
respecting judgments, primarily of the )ispute 2ettlement +ody H)2+$, the !T0
organ responsible for adjudication of disputes. A former !T0 )irector#4eneral
characteri:ed the !T0 dispute settlement system as Othe most active
international adjudicative mechanism in the world today.O
n ;<<F, the !T0 members agreed on the 1nderstanding on (ules and
rocedures 4overning the 2ettlement of )isputes or )ispute 2ettlement
1nderstanding H)21$ Hanne&ed to the Oinal ActO signed in 5arrakesh in ;<<F$.
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ursuant to the rules detailed in the )21, member states can engage in
consultations to resolve trade disputes pertaining to a Ocovered agreementO or, if
unsuccessful, have a !T0 panel hear the case. The priority, however, is to settle
disputes, through consultations if possible. +y 3anuary =GGB, only about ;> of thenearly >< cases had reached the full panel process.
The operation of the !T0 dispute settlement process involves the parties
and third parties to a case and may also involve the )2+ panels, the Appellate +ody,
the !T0 2ecretariat, arbitrators, independent e&perts, and several speciali:ed
institutions. The 4eneral Council discharges its responsibilities under the )21
through the )ispute 2ettlement +ody H)2+$. 7ike the 4eneral Council, the )2+ is
composed of representatives of all !T0 5embers. The )2+ is responsible for
administering the )21, i.e. for overseeing the entire dispute settlement process. t
also has the authority to establish panels, adopt panel and Appellate +ody reports,
maintain surveillance of implementation of rulings and recommendations, and
authori:e the suspension of obligations under the covered agreements. The )2+
meets as often as necessary to adhere to the timeframes provided for in the )21.
0* T!e United Nations Co""ission on International Trade Law
, UNCITRAL :- was established by the 1nited 6ations 4eneral Assembly by its
(esolution ==G HRR$ of ;? )ecember ;< Oto promote the progressive
harmoni:ation and unification of international trade lawO.
16CT(A7 carries out its work at annual sessions held alternately in 6ew
@ork City and Iienna. The methods of work are organi:ed at three levels. The first
level is 16CT(A7 itself HThe Commission$, which holds an annual plenary session.
The second level is the intergovernmental working groups Hwhich is developing the
topics on 16CT(A7Ps work program. Te&ts designed to simplify trade transactions
and reduce associated costs are developed by working groups comprising all member
2tates of 16CT(A7, which meet once or twice per year. 6on#member 2tates and
interested international and regional organi:ations are also invited and can actively
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contribute to the work since decisions are taken by consensus, not by vote. )raft
te&ts completed by these working groups are submitted to 16CT(A7 for
finali:ation and adoption at its annual session. The nternational Trade 7aw )ivision
of the 1nited 6ations 0ffice of 7egal Affairs provides substantive secretariatservices to 16CT(A7, such as conducting research and preparing studies and
drafts. This is the third level, which assists the other two in the preparation and
conduct of their work.
UNCITRAL is:
Coordinating the work of organi:ations active and encouraging cooperation
among them.
romoting wider participation in e&isting international conventions and wider
acceptance of e&isting model and uniform laws.
reparing or promoting the adoption of new international conventions, model
laws and uniform laws and promoting the codification and wider acceptance of
international trade terms, provisions, customs and practice, in collaboration,
where appropriate, with the organi:ations operating in this field.
romoting ways and means of ensuring a uniform interpretation and
application of international conventions and uniform laws in the field of the
law of international trade.
Collecting and disseminating information on national legislation and modern
legal developments, including case law, in the field of the law of international
trade.
/stablishing and maintaining a close collaboration with the 16 Conference on
Trade and development.
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5aintaining liaison with other 16 organs and speciali:ed agencies concerned
with international trade
C. The International Chamer o! Commer"e # ICC: is
the largest, most representative business organi:ation in the world. ts hundreds of
thousands of member companies in over ;BG countries have interests spanning every
sector of private enterprise.
CC has three main activities" rule setting, dispute resolution, and policy
advocacy. +ecause its member companies and associations are themselves engaged
in international business, CC has unrivalled authority in making rules that govern
the conduct of business across borders. Although these rules are voluntary, they
are observed in countless thousands of transactions every day and have become
part of international trade.
A world network of national committees in over <G countries advocates
business priorities at national and regional level. 5ore than =,GGG e&perts drawn
from CCSs member companies feed their knowledge and e&perience into crafting
the CC stance on specific business issues.
CC keeps the 1nited 6ations, the !orld Trade 0rgani:ation, and many
other intergovernmental bodies, both international and regional, in touch with the
views of international business. CC was the first organi:ation granted general
consultative status with the 1nited 6ations /conomic and 2ocial Council.
D. OTHER TREATIES
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The other treaties governing A)( in various states would include the 1nited
2tates Code Title <, The Agreement relating to the application of the /uropean
Convention on nternational Arbitration Haris, ;<=$, The /uropean Convention
providing a 1niform 7aw on Arbitration HCouncil of /urope, ;<F$. The various othertreaties enacted by the rest of the countries in the world are not included in this
list.
$INDS OF ADR SYSTEM
1*Aritration, in the conte&t of 1nited 2tates law, is a form of
alternative dispute resolution Q specifically, a legal alternative to litigation
whereby the parties to a dispute agree to submit their respective positions
Hthrough agreement or hearing$ to a neutral third party Hthe arbitratorHs$ or
arbiterHs$$ for resolution. n practice arbitration is generally used as a substitute
for judicial systems, particularly when the judicial processes are viewed as too slow,
e&pensive or biased. Arbitration is also used by communities which lack formal law,
as a substitute for formal law.
Co""er%ial and ot!er &or"s o& %ontra%t ar#itration
Agreements to arbitrate were not enforceable at common law, though once
the parties had actually submitted a pending dispute to an arbitrator- the
arbitratorPs judgment was usually enforceable. The reasoning for this was that the
power of the arbitrator arose solely from the mutual consent of the parties to his
jurisdiction- but by the time a dispute reached the point that one party wished to
take it to an arbitrator, the other often preferred to take their chances in court
instead. Thus, without the consent of both parties to his jurisdiction, the
arbitrator lacked the power to decide the case.
)uring the ndustrial (evolution, large corporations became increasingly
opposed to this policy. They argued that too many valuable business relationships
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were being destroyed through years of e&pensive adversarial litigation, in courts
whose rules differed significantly from the informal norms and conventions of
business people Hthe private law of commerce, or jus merchant $. Arbitration was
promoted as being faster, less adversarial, and cheaper.
The result was the 6ew @ork Arbitration Act of ;<=G, followed by the
1nited 2tates Arbitration Act of ;<= Hnow known as the ederal Arbitration Act$.
+oth made agreements to arbitrate valid and enforceable Hunless one party could
show fraud or unconscionability or some other ground for rescission which
undermined the validity of the entire contract$. )ue to the subse*uent judicial
e&pansion of the meaning of interstate commerce, the 1.2. 2upreme Court
reinterpreted the AA in a series of cases in the ;<BGs and ;<<Gs to cover almost
the full scope of interstate commerce. n the process, the Court held that the AA
pre#empted many state laws covering arbitration, some of which had been passed by
state legislatures to protect their consumers against powerful corporations.
2ince commercial arbitration is based upon either contract law or the law of
treaties, the agreement between the parties to submit their dispute to arbitration
is a legally binding contract. All arbitral decisions are considered to be Ofinal and
binding.O This does not, however, void the re*uirements of law. Any dispute not
e&cluded from arbitration by virtue of law Hfor e&le, criminal proceedings$ may
be submitted to arbitration.
urthermore, arbitration agreements can only bind parties who have agreed,
e&pressly or impliedly to arbitrate. Arbitration cannot bind non signatories to an
arbitration contract, even if those non signatories later become involved with a
signatory to a contract by accident Husually through the commission of a tort$.
La#o(r ar#itration
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Arbitration has also been used as a means of resolving labour disputes for
more than a century. 7abour organi:ations in the 1nited 2tates, such as the
6ational 7abour 1nion, called for arbitration as early as ;B as an alternative to
strikes to resolve disputes over the wages, benefits and other rights that workerswould enjoy. 4overnments have also relied on arbitration to resolve particularly
large labour disputes, such as the Coal 2trike of ;<G=. This type of arbitration,
wherein a neutral arbitrator decides the terms of the collective bargaining
agreement, is commonly known as interest arbitration. The 1nited 2teelworkers of
America adopted an elaborate form of interest arbitration, known as the
/&perimental 6egotiating Agreement, in the ;<?Gs as a means of avoiding the long
and costly strikes that had made the industry vulnerable to foreign competition.
5ajor 7eague +aseball uses a variant of interest arbitration, in which an arbitrator
chooses between the two sidesP final offers, to set the terms for contracts for
players who are not eligible for free agency. nterest arbitration is now most
fre*uently used by public employees who have no right to strike Hfor e&le, law
enforcement and fire fighters$.
1nions and employers have also employed arbitration to resolve employee and
union grievances arising under a collective bargaining agreement. The Amalgamated
Clothing !orkers of America made arbitration a central element of the rotocol of
eace it negotiated with garment manufacturers in the second decade of the
twentieth century. 4rievance arbitration became even more popular during !orld
!ar , when most unions had adopted a no#strike pledge. The !ar 7abour +oard,
which attempted to mediate disputes over contract terms, pressed for inclusion of
grievance arbitration in collective bargaining agreements. The 2upreme Court
subse*uently made labour arbitration a key aspect of federal labour policy in three
cases which came to be known as the 2teelworkersP Trilogy. The Court held that
grievance arbitration was a preferred dispute resolution techni*ue and that courtscould not overturn arbitratorsP awards unless the award does not draw its essence
from the collective bargaining agreement. 2tate and federal statutes may allow
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vacating an award on narrow grounds He.g., fraud$. These protections for arbitrator
awards are premised on the union#management system, which provides both parties
with due process. )ue process in this conte&t means that both parties have
e&perienced representation throughout the process, and that the arbitratorspractice only as neutrals.
'(di%ial ar#itration
2ome state court systems have promulgated court#ordered arbitration-
family law Hparticularly child custody$ is the most prominent e&le. 3udicial
arbitration is often merely advisory dispute resolution techni*ue, serving as the
first step toward resolution, but not binding either side and allowing for trial de
novo. 7itigation attorneys present their side of the case to an independent tertiary
lawyer, who issues an opinion on settlement. 2hould the parties in *uestion decide to
continue to dispute resolution process, there can be some sanctions imposed from
the initial arbitration per terms of the contract
Ar#itrators
Arbitrators have wide latitude in crafting remedies in the arbitral
decision, with the only real limitation being that they may not e&ceed the limits of
their authority in their award. An e&le of e&ceeding arbitral authority might be
awarding one party to a dispute the personal automobile of the other party when
the dispute concerns the specific performance of a business#related contract.
t is open to the parties to restrict the possible awards that the arbitrator
can make. f this restriction re*uires a straight choice between the position of one
party and the position of the other, then it is known as pendulum arbitration or
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final offer arbitration . t is designed to encourage the parties to moderate their
initial positions so as to make it more likely they receive a favourable decision.
6o definitive statement can be made concerning the credentials or
e&perience levels of arbitrators, although some jurisdictions have elected to
establish standards for arbitrators in certain fields. 2everal independent
organi:ations, such as the American Arbitration Association and the 6ational
Arbitration orum, offer arbitrator training programs and thus in effect,
credentials. 4enerally speaking, however, the credibility of an arbitrator rests upon
reputation, e&perience level in arbitrating particular issues, or
e&pertiseJe&perience in a particular field. Arbitrators are generally not re*uired to
be members of the legal profession.
To ensure effective arbitration and to increase the general credibility of the
arbitral process, arbitrators will sometimes sit as a panel, usually consisting of
three arbitrators. 0ften the three consist of an e&pert in the legal area within
which the dispute falls Hsuch as contract law in the case of a dispute over the terms
and conditions of a contract$, an e&pert in the industry within which the dispute
falls Hsuch as the construction industry, in the case of a dispute between a
homeowner and his general contractor$, and an e&perienced arbitrator.
Um%ire
The umpire is a third party chosen either by the method of the arbitral
parties or by a court to render an independent decision usually in labour disputes
when the arbitrators disagree on something. 1mpire is another word for
OarbitratorO or an arbitrator appointed to resolve arbitration when the arbitrators
canPt agree.
Pro"ee&in'(
Iarious bodies of rules have been developed that can be used for arbitration
proceedings. The two most important are the 16CT(A7 rules and the C2) rules.
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The rules to be followed by the arbitrator are specified by the agreement
establishing the arbitration.
The Convention on the (ecognition and /nforcement of oreign Arbitral
Awards provides for the enforcement of foreign arbitral awards on the territory of
the contracting parties. 2imilar provisions are contained in the earlier Convention on
the /&ecution of oreign Arbitral Awards .
2ome jurisdictions have instituted a limited grace period during which an
arbitral decision may be appealed against, but after which there can be no appeal.
n the case of arbitration under international law, a right of appeal does not in
general e&ist, although one may be provided for by the arbitration agreement,
provided a court e&ists capable of hearing the appeal.
!hen arbitration occurs under 1.2. law, either party to an arbitration may
appeal from the arbitratorPs decision to a court, however the court will generally
not change the arbitratorPs findings of fact but will decide only whether thearbitrator was guilty of malfeasance, or whether the arbitrator e&ceeded the limits
of his or her authority in the arbitral award or whether the award conflicts with
positive law. The 2upreme Court has described the standard of review as one of the
narrowest known to !estern jurisprudence. !herever so seen, arbitration may be
the best approach to the legal manners and parties involved.
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MEDIATION
Mediation, as used in law, is a form of alternative dispute resolution HA)($, a
way of resolving disputes between two or more parties with concrete effects.
Typically, a third party, the mediator assists the parties to negotiate a settlement.
)isputants may mediate disputes in a variety of domains, such as commercial, legal,
diplomatic, workplace, community and family matters.
The term OmediationO broadly refers to any instance in which a third party
helps others reach agreement. 5ore specifically, mediation has a structure,
timetable and dynamics that OordinaryO negotiation lacks. The process is private and
confidential, possibly enforced by law. articipation is typically voluntary. The
mediator acts as a neutral third party and facilitates rather than directs the
process.
5ediators use various techni*ues to open, or improve, dialogue and empathy
between disputants, aiming to help the parties reach an agreement. 5uch depends
on the mediatorPs skill and training. As the practice gained popularity, training
programs, certifications and licensing followed, producing trained, professional
mediators committed to the discipline.
U(e(
n addition to dispute resolution, mediation can function as a means of
dispute prevention, such as facilitating the process of contract negotiation.
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4overnments can use mediation to inform and to seek input from stakeholders in
formulation or fact#seeking aspects of policy#making. 5ediation is applicable to
disputes in many areas"
a"il:
renuptialJremarital agreements
inancial or budget disagreements
2eparation
)ivorce
Alimony
arenting plans Hchild custody and visitation$
/ldercare
amily businesses
Adult sibling conflicts
arentHs$Jadult children
/states
5edical ethics and end#of#life
5or67la%e:
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!rongful termination
!orkers compensation
)iscrimination
Darassment
4rievances
7abour management
+(#li% dis7(tes
/nvironmental
7and#use
Co""er%ial:
7andlordJtenant
DomeownersP associations
+uildersJcontractorsJrealtorsJhomeowners
Contracts
5edical malpractice
ersonal injury
artnerships
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Ot!ers:
o 2chool conflicts
o Iiolence#prevention
o Iictim#0ffender mediation
o 6on#profit organi:ations
o aith communities
The typical mediation has no formal compulsory elements, although some elements
usually occur"
establishment of ground rules framing the boundaries of mediation
parties detail their stories
identification of issues
clarify and detail respective interests and objectives
search for objective criteria
identify options
discuss and analy:e solutions
adjust and refine proposed solutions
record agreement in writing
The following are useful criteria for selecting a mediator"
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ersonal attributesQpatience, empathy, intelligence, optimism and fle&ibility
UualificationsQknowledge of the theory and practice of conflict, negotiation
and mediation, mediations skills.
/&perienceQ mediation e&perience, e&perience in the substantive area of
dispute and personal life e&perience
Training
rofessional background
Certification and its value
2uitability of the mediation model
Conflicts of interest
CostJfee
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3* CONCILIATION
Conciliation is an alternative dispute resolution HA)($ process whereby the
parties to a dispute use a conciliator, who meets with the parties both separately
and together in an attempt to resolve their differences. They do this by lowering
tensions, improving communications, interpreting issues, encouraging parties to
e&plore potential solutions and assisting parties in finding a mutually acceptable
outcome.
Conciliation differs from arbitration in that the conciliation process, in and of
itself, has no legal standing, and the conciliator usually has no authority to seek
evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that in conciliation, often the parties are
in need of restoring or repairing a relationship, either personal or business.
Conciliation is a proposal to be another step in the dispute resolution process that
can resolve content disputes. Conciliation works when all parties in a dispute agree
to use a conciliator, who meets with the parties separately at a Opre#caucusO. At the
pre#caucus, the conciliator discusses one#on#one with each party separately, where
the party prioriti:es a list from what is most important to least important to them.
The purpose of the pre#caucus is to help each party release their pent up concerns
enough to enable them to gain a broader perspective on the dispute. Then, the
parties meet together at a Ojoint sessionO. At the joint session, the parties discuss
directly with each other, instead of through a mediator. arties must be reminded
that the conciliator is there to help the parties take responsibility for managing
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their own conflict, rather than to judge between the merits of the position of one
party or the other.
+ecause the parties meet separately with a conciliator beforehand, they can
release any emotional attachment and any concerns about the dispute, therefore,
allowing the parties to focus on improving the content of the page at the joint
session.
Also, if the parties will have ongoing interactions, conciliation allows the parties
to become better negotiators, because the parties discuss directly with each other,
they tend to deal more effectively with conflict in future disputes.
Conciliation can defer disputes from escalating to edit warring, administrative
intervention or arbitration. The difference between conciliation and arbitration and
mediation is e&plained below.
Conciliation differs from arbitration in that the conciliation process, in and of
itself, has no legal standing, and the conciliator usually has no authority to seek
evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that in conciliation, often the parties are
in need of restoring or repairing a relationship, either personal or business.
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N89OTIATION
6egotiation is a dialogue between two or more people or parties intended to
reach a mutually beneficial outcome, resolve points of difference, to gain advantage
for an individual or collective, or to craft outcomes to satisfy various interests.
6egotiation occurs in business, non#profit organi:ations, and government
branches, legal proceedings, among nations and in personal situations such as
marriage, divorce, parenting, and everyday life. The study of the subject is called
negotiation theory . rofessional negotiators are often speciali:ed, such as union
negotiators , leverage buyout negotiators , peace negotiators , hostage negotiators , or
may work under other titles, such as diplomats, legislators or brokers
)ue to globali:ation and growing business trends, negotiation in the form of
teams is becoming widely adopted. Teams can effectively collaborate to break down
a comple& negotiation.
There is more knowledge and wisdom dispersed in a team than in a single
mind. !riting, listening, and talking, are specific roles team members must satisfy.
The capacity base of a team reduces the amount of blunder, and increasesfamiliarity in a negotiation
0arriers
)ie#hard bargainers
7ack of trust
nformational vacuums and negotiatorPs dilemma
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2tructural impediments
2poilers
Cultural and gender differences
Communication problems
The power of dialogue
E)PERT DETERMINATION
/&pert determination is a historically accepted form of dispute resolution
invoked when there is not a formulated dispute in which the parties have defined
positions that need to be subjected to arbitration, but rather both parties are in
agreement that there is a need for an evaluation. /&pert determination is a
procedure by which the parties to a dispute appoint an independent and neutral
e&pert to determine the dispute in private. 7ike arbitration, it allows trade secrets
and other sensitive information to be kept out of the public domain. The e&pert will
be a person with specialist or technical knowledge relevant to the dispute.
8ARL N8UTRAL 8;ALUATION
/arly neutral evaluation refers to a process in which an informal presentation
is made by the parties to a dispute to a neutral having respected credentials for
the purpose of obtaining an oral or written evaluation about the partiesP positions.
The evaluation may be binding or non#binding. /arly neutral evaluation is re*uired
when the dispute involves technical or factual issues that lend themselves to e&pert
evaluation. t may also be an effective alternative to formal discovery in traditional
litigation.
<8DIATION - AR0ITRATION
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t is a practice developed in Anglo#2a&on countries that consists in the
association of arbitration with mediation, in one process. t seems this process also
benefits of a positive welcome in the 6ordic countries.
n rance, to recourse into 5ed#Arb is definitely confidential. t is described as
follows"
• A mediation process and an arbitration which are simultaneously implemented
between the parties in conflict that enables to reach in all cases a solution to
the dispute" either amicably through the mediation process or by a
constraining decision with arbitration. Thus, mediation does not slow the
search for a binding solution- and arbitration, as a Osword of )amoclesO over
the heads of the parties pushes them for a negotiation both *uick and
effective during the mediation.
+ut there is no indication that companies are using this contradictory system
through the approach of the mediator, who initiates his intervention while knowinghe will eventually have to become an arbitrator within the same case.
t is therefore difficult not to consider that he will not adopt a position of
instructor Hin the sense of the judge$ during the first stage, instead of being a
mediator.
ndeed, if the mediation process fails, whatever the reason # even because of
his incompetence # the mediator becomes an arbitrator.
MINI TRIAL
A mini#trial is an alternative method for resolving a legal dispute from a
formal court trial. 5ini#trials, like mediations and arbitrations, constitute uni*ue
forms of “alternative dispute resolution” HA)($ favored by courts and litigants
alike. There has been a general increase in all forms of A)( in recent years because
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of the advantages offered" reduced cost, fast resolution, privacy, and less
adversity in effect. A mini#trial is really not a trial at all. (ather, it is a settlement
process in which the parties present highly summari:ed versions of their respective
cases to a panel of officials who represent each party Hplus a “neutral” official$ andwho have authority to settle the dispute. The presentation generally takes place
outside of the courtroom, in a private forum. After the parties have presented
their best case, the panel convenes and tries to settle the matter.
OM*UDSPERSON
An organi:ational ombudsman is a designated neutral or impartial dispute
resolution practitioner whose major function is to provide independent, impartial,
confidential and informal assistance to managers and employees, clients and other
stakeholders of a corporation, university, non#governmental organi:ation,
governmental agency or other entity. As an independent and neutral employee, the
organi:ational ombudsman ideally should have no other role or duties. This is in
order to maintain independence and neutrality, and to prevent real or perceived
conflicts of interest.
1sing an alternative dispute resolution HA)($ sensibility, an organi:ational
ombudsman provides options for people with concerns, including whistleblowers, who
seek to bring their concerns forward safely and effectively. Additionally, an
organi:ational ombudsman offers coaching on ethics and other management issues,
provides mediation to facilitate conflict resolution, helps enable safe upward
feedback, assists those who feel harassed and discriminated against. 0verall, the
organi:ational ombudsman helps employees and managers navigate bureaucracy and
deal with concerns and complaints.
T5O-TRAC= A++ROAC>
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nvolves use of A)( processes or traditional settlement negotiations in
conjunction with litigation. (epresentatives of the disputing parties who are not
involved in the litigation are used to conduct the settlement negotiations or A)(
procedure. The negotiation or A)( efforts may proceed concurrently with litigationor during an agreed#upon cessation of litigation. This approach is particularly useful
in cases when" it may not be feasible to abandon litigation while the parties e&plore
settlement possibilities- or as a practical matter, the spectre of litigation must be
present in order for the opposing party to consider or agree to an alternative
mechanism. t also is useful when the litigation has become acrimonious or when a
suggestion of settlement would be construed as a sign of weakness.
MERITS OF ADR SYSTEM
Alternative dispute resolution HA)($ procedures offer several advantages"
• A single procedure . Through A)(, the parties can agree to resolve in a
single procedure a dispute involving intellectual property that is protected in a
number of different countries, thereby avoiding the e&pense and comple&ity of
multi#jurisdictional litigation, and the risk of inconsistent results.
• arty autonomy . +ecause of its private nature, A)( affords parties the
opportunity to e&ercise greater control over the way their dispute is resolved
than would be the case in court litigation. n contrast to court litigation, the
parties themselves may select the most appropriate decision#makers for their
dispute. n addition, they may choose the applicable law, place and language of
the proceedings. ncreased party autonomy can also result in a faster process, as
parties are free to devise the most efficient procedures for their dispute. This
can result in material cost savings.
• 6eutrality . A)( can be neutral to the law, language and institutional culture
of the parties, thereby avoiding any home court advantage that one of the
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parties may enjoy in court#based litigation, where familiarity with the applicable
law and local processes can offer significant strategic advantages.
• Confidentiality . A)( proceedings are private. Accordingly, the parties can
agree to keep the proceedings and any results confidential. This allows them to
focus on the merits of the dispute without concern about its public impact, and
may be of special importance where commercial reputations and trade secrets
are involved.
• ,inality of Awards . 1nlike court decisions, which can generally be
contested through one or more rounds of litigation, arbitral awards are not
normally subject to appeal.
• /nforceability of Awards . The 1nited 6ations Convention for the
(ecognition and /nforcement of oreign Arbitral Awards of ;<B, known as the
6ew @ork Convention, generally provides for the recognition of arbitral awards
on par with domestic court judgments without review on the merits. This greatly
facilitates the enforcement of awards across borders.
A)( has been increasingly used internationally, both alongside and integrated
formally into legal systems, in order to capitalise on the typical advantages of A)(
over litigation"
2uitability for multi#party disputes
le&ibility of procedure # the process is determined and controlled by the
parties to the dispute
7ower costs
7ess comple&ity HOless is moreO$
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arties choice of neutral third party Hand therefore e&pertise in area of
dispute$ to direct negotiationsJadjudicate
7ikelihood and speed of settlements
ractical solutions tailored to partiesS interests and needs Hnot rights and
wants, as they may perceive them$
)urability of agreements
Confidentiality
The preservation of relationships and the preservation of reputations
t saves a lot of time by allowing the parties to resolve their differencesJ
disputesJ issues in a short period of time as compared to the e&cessive stint
taken by the DonSble Courts in resolving the very same issues.
n an era, like our very own, where the population is humongous, there are a
innumerable sectors from where cases and disputes arise, not all of them can
be brought to the court, as only important issues ought to be dealt with
there. The saying, “justice delayed is justice denied” can be sacked through
this system. The unnecessary burden upon the courts can be removed and
hence elongation can be avoided. 5oreover these processes can commence at
any point of time, unlike anticipating the stipulation of dates as and when
pleased by the court.
t saves a lot of money that is disbursed on lawyers and other miscellaneous
e&penses that one has to undergo in the process of litigation.
The most elementary benefit of the A)( system is saving costs, giving
control to the disputants and thus avoiding the vicious litigation process.
2uch process Hlike A)($ results in substantial savings of court fees, lawyerSs
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incentives, and other costs because they do not include time consuming and
e&pensive discovery that is *uite prevalent in different courts. 0ther such
elaborate practices are also deemed redundant.
t puts the parties in control by giving them opportunities to discuss their
case by giving them a forum to put forth their own views and thereby giving
them a chance to put themselves on a clean slate.
The parties have the opportunity to air their own views and ideas directly in
the presence of the other party. There is no mind games involved because the
victimi:ed party addresses the opposite partyJ parties directly. This process
thus provides a catharsis for the mindset of parties that can endanger a
willingness to resolve differences between them in courts. 5oreover since they
are heard in the presence of a neutral authority figure, the parties often feel
that they have had “their day in the court.”
Access to justice is much easier and much faster in case of A)(, because itallows people, who cannot afford fees or cannot afford to lose time, to
ac*uire a remedy without getting into the sweat breaking system of the
court.
eople solving their disputes through the A)( have the benefit of solving
their own cases themselves, and hence are representing themselves per se.
4enerally court litigation can be very difficult for the per se litigant, who is
unable to navigate himself through the court proceedings and trial. !ith the
downturn in the economy, studies show that fewer parties are represented
by the counsel, and that lack of representation negatively impacts the per se
litigantSs case. Thus is this manner access to justice is much faster and more
number of people are encouraged to solve the issue through A)( mechanism.
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t focuses on the issues that are important to the people instead of just
stressing upon the legal rights and obligations.
(esolutions through these systems are brief and brisk. Avoiding the
unnecessary litigated outcomes, the parties involved can just ac*uire the
result they want and are comfortable with. The >rd party involved efficiently
handles this plan. i.e. Hmediator, arbitrator, conciliator etc.$ they identify and
frame the relevant interests and issues of the parties, help them to access
the *uantity of risk, suggest relevant options and hence lead them to a
particular and appropriate solution. This is accomplished by meeting with the
parties separately and hence suggesting to them the issues upon which they
have to focus rather than just going by the rules stated in the black words on
a white paper.
t leads to more fle&ible remedies than in court, i.e. the people make
agreements that the court cannot order or enforce upon.
There must be certain cases where the arbitration is re*uired by contract.
The parties to the same can initiate proceedings to suit their needs, such as
location of arbitration, scope of discovery and the number of arbitrators
involved. 0nce the process is started, a party seeking more streamlined and
less e&pensive process will be better to achieve than in courts. The parties
can also schedule the hearing time. This can even take place in any time asdecided by the parties. 2ince one of this type can be can be conducted more
*uickly, and less e&pensively, there is less emotional burden on the individuals
involved than proceedings in a stressful trial.
t keeps the disputes that are private as the same.
There is no public announcement of the arbitrationJ mediationJ conciliation
or any of the A)( processes for that matter. The case is held in a
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confidential manner by keeping the private matters as private. ull secrecy is
maintained. !hile mediation can take place in the formal court system,
arbitration can be administered on a secretive basis. Dere the parties
involved and the arbitrator or the mediator is invited who can solve the casewithin four walls of the said arbitrationJ mediation room. They are moreover
barred from disclosing any information.
t produces good results by reducing stress upon the people and satisfying
them by giving them the desired results and by preserving good relationships
between them.
The process of litigation that is traditionally followed can be stressful and
personally e&cruciating. At the end of the litigated process the parties are
generally not in good terms with each other, and are unable to start any
relationship afresh. Dowever, in case of the resolution of disputes through
alternative means, other than litigation, the parties maintain cordial, business
and personal relations with each other. The reason of the aforementioned
fact is that the parties are given a rightful chance to e&press themselves and
are suggested remedies conse*uently, they both agree to the same by
reaching to a common conclusion. They negotiate amongst themselves or the
>rd party helps them by suggesting remedies.
There are no winners or losers here. The >rd party has no authority toimpose any advice or remedy atop the parties. The said resolutions are solely
voluntary and on the sole discretion of the parties. Dere the parties retain
their options.
A)( provides finality
n courts, during the proceedings, the parties generally have a chance to
appeal the decision of the judge or the verdict of a jury. n contrast to this,
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the grounds for court review of an award received through arbitration are
very much limited. There is lesser chance for the award of arbitration to be
challenged. t is final and binding on the parties thereof.
Time to flip the coin as we go through the demerits of the said system. The
following section of the paper will discuss the demerits of the A)( system.
DEMERITS OF ADR SYSTEM
Alternative dispute resolution system may not be suitable for each and everydispute. Agreed that cases do pile up in the DonSble Courts of law all around the
world, but the judge cannot always refer a case to arbitrationJ mediationJ
conciliation. 2ome cases are to be dealt in the court of law- there is no other
VinformalS means of solving the said cases.
!astage of timeJ money if the case is not resolved.
A recent survey done by a prominent law database website suggests that nearly
<GM of the cases, which are dealt through the A)( system, are solved but the
remainder, i.e. the remaining ten percent, of the cases go unresolved, the parties to
the unresolved cases have no choice but to file a law suit thereby wasting same,
sometimes more, amount of time and money in the proceedings of the legal system.
The possibility of bias.
The possibility of bias, though negligible, or a conflict of interest or at least the
appearance of impropriety, may arise if a neutral in A)( gets a good deal of repeat
business from the same institution.
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Compromise of Confidentiality.
rima facie, confidentiality of the proceedings seems to be a boon for such a
dispute, however, in practice, it might prove to be a double edged weapon, as it
might lead to certain difficulties and obstructions. n the proceedings
confidentiality may be difficult for the parties to use the award or any other part
of the arbitration in later proceedings.
7imited 3udicial (eview.
Another everlasting problem faced by parties taking recourse to the A)(
system is the power of limited or negligible 3udicial (eview An arbitral award is
final and binding on the parties and e&cluded to appeal to the courts in connection
with it. The court review of arbitral awards is *uite limited.
nformal, more opportunity of abuse of power.
Though very uncommon, power abuse sometimes is something to worry about incase of Alternative )ispute (esolution systems. 2ince the mediatorJ arbitratorJ
conciliator does not have to follow any formal code of prescribed te&t, he
sometimes goes out of the way to make things good or sometimes even worse for
the parties to the dispute.
7ack of power to establish legal precedents.
The remedies established, or given out to the parties in dispute, in case of
A)( cannot be binding on future cases, i.e. the remedy of one case cannot be
taken as the guiding stone for another or it, the remedy, cannot be taken as a
legal precedent.
1nfamiliarity with the procedure and 7ack of awareness.
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7ast but not the least, one of the most glaring difficulties faced by the
alternative methods of dispute resolution is that most of the people, be it the
patentee or the companies or the attorneys, are unfamiliar with the processes since
this is a fairly novel concept. t is the lack of knowledge and awareness withrespect to the various methods for dispute resolution that more often than not
discourage parties from considering this option seriously.
AR*ITRATION AND CONCILIATION ACT+ ,
ndia opened a fresh chapter in its arbitration laws in ;<< when it enacted
the Arbitration and Conciliation Act HVthe ActS or Vnew ActS$.
A. The re#;<< osition
rior to ;<<, the arbitration law of the country was governed by a ;<FG Act.
This Act was largely premised on mistrust of the arbitral process and afforded
multiple opportunities to litigants to approach the court for intervention. Coupled
with a sluggish judicial system, this led to delays rendering arbitrations inefficient
and unattractive. A telling comment on the working of the old Act can be found in a
;<B; judgment of the 2upreme Court where the judge H3ustice )A )esai$ in anguish
remarked Vthe way in which the proceedings under the H;<FG$ Act are conducted
and without an e&ception challenged in Courts, has made lawyers laugh and legal
philosophers weep.
The Arbitration and Conciliation Act, ;<< was passed on the basis of the
16CT(A7 5odel 7aw on nternational Commercial Arbitration, ;<B and
16CT(A7 Conciliation (ules, ;<BG.t had been recommended by 4eneral Assembly
of the 1nited 6ations that all countries should give due consideration to the said
5odel 7aw in view of the desirability of uniformity of the law of arbitral
procedures and the specific needs of the international commercial arbitration
practices. t has also recommended the use of the said (ules in cases where a
dispute arises in the conte&t of international commercial relations and the parties
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seek on amicable settlement of that dispute by recourse to conciliation. These rules
are believed to make a significant contribution to the establishment of a unified
legal framework for the fair and efficient settlement of disputes arising in
international commercial relations. These objectives have been laid down in thereamble to the Arbitration and Conciliation Act, ;<<.
AR0ITRATION +RO;I?ION?:
1nder the Arbitration and Conciliation Act, ;<<- “arbitration” means any
arbitration whether or not administered by a permanent arbitral institution. Thishas been discussed in 2.= of the Act, along with other definitions, which are
peculiar to the Act. 1nder the Act, written communication is delivered when it
reaches the other partySs place of business, habitual residence or mailing address.
f such an address cannot be traced recorded attempt to find out and mail to the
old address is sufficient H2.>$. n the event that either of the parties knows of a
provision from which either party derogate, or any part of the agreement has not
been complied with, if no obligation is raised to such non#compliance, it is taken that
the party has given up his right to object and that right will be waived. H2.F$ The
e&tent of 3udicial ntervention and Administrative assistance is discussed in 2s.
K of the Act.
art of the Act deals with Arbitration Agreements. 2ection ? defines an
arbitration agreement as “an agreement by the parties to submit to arbitration all
or certain disputes which have arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not.” An arbitration
agreement may be in the form of an arbitration clause in a contract or in the form
of a separate agreement and it shall be in writing. n case of a judicial application
being filed for a dispute between parties who have agreed to arbitrate, the judicial
authority may refer the case to arbitration if he feels and arbitration can take
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place even if the issue is pending before the judicial authority H2.B$. The provisions
regarding interim measures are made under 2.< of the Act.
art of the Arbitration and Conciliation Act, ;<< contains provisions
regarding the composition of an Arbitral Tribunal. The parties to an arbitrationagreement are free to determine the number of arbitrators they want and any
person, of any nationality may be appointed as the arbitrator. The parties are also
free to decide on the procedure of arbitration. n case of a “three arbitrator
approach” each party nominates an arbitrator and the two said nominees should
nominate a third arbitrator. n case either of the parties fails to nominate an
arbitrator or the two nominees does not appoint a third arbitrator in >G days the
Chief 3ustice or any other institution may on a re*uest by either party appoint the
arbitrator. 0ther provisions regarding the appointment of arbitrators have been
discussed at length under 2.;; of the Act. 1nder this Act, an arbitrator may be
challenged in case there are circumstances, which give rise to justifiable doubts
regarding his independence or impartiality, or if he does not possess the
*ualifications agreed to by the parties H2.;=$. A party who has appointed the
arbitrator may also challenge him. The parties may freely determine the procedure
for arbitration, and in the event that they do not decide such procedure, the
arbitral tribunal relating to the agreement will look into the challenge and pass an
arbitral award. n case this award is also challenged, then the court will pass a
decree H2.;>$. 2ections ;F and ; lay down provisions relating to failure or
impossibility to act by the arbitrator and the termination of mandate and
substitution of arbitrator respectively.
Chapter I of the Arbitration and Conciliation Act, ;<< deals with the
jurisdiction of arbitral tribunals. 2ection ; clearly emphasi:es that the arbitral
tribunal may rule on its own jurisdiction even with regards to any objection raised
on the validity of the arbitration agreement itself % the reason being that the
arbitration clause, a part of the agreement is treated as an independent contract
of its own. A decision by the arbitral tribunal that the contract itself is null and
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void does not render the arbitration clause as invalid. A plea that the arbitral
tribunal does not have jurisdiction cannot be raised later than after submitting the
statement of defence and this plea should be submitted as soon as the matter
alleged to be beyond the scope of its authority is raised in the arbitral proceedings.nterim measures regarding the dispute may be taken at the re*uest of a party
unless otherwise agreed by the parties.
Chapter I deals with the basic conduct of an arbitral proceeding. 2ection ;B
states that there should be e*ual treatment of parties and both parties must be
given e*ual opportunity to present the case. 2ection ;< lays down that the arbitral
tribunal is not bound by the Code of Civil rocedure, ;<GB or the ndian /vidence
Act, ;B?=. The parties are free to determine the procedure to be followed by the
arbitral tribunal in the course of proceedings. n the event that no such procedure
is established by the parties, the tribunal may follow any procedure it deems fit.
The power of the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence H2.;<$. The parties
are free to agree upon the place of arbitration or, if not determined, the power lies
with the tribunal. H2.=G$ Arbitration proceedings commence immediately after a
dispute is submitted for arbitration, unless agreed upon otherwise H2.=;$. The
language preference also lies with the parties, or the tribunal, which may use a
language it thinks fit. All documents submitted and received should be in the
language adopted in the proceedings or must be translated into it. H2.==$
2tatements of claim and defence are dealt with under 2ection =>"
H;$ !ithin the period of time agreed upon by the parties or determined by the
arbitral tribunal, the claimant shall state the facts supporting his claim, the points
at issue and the relief or remedy sought, and the respondent shall state his
defence in respect these particulars, unless the parties have otherwise agreed as
to the re*uired elements of those statements.
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H=$ The parties may submit with their statement all documents they consider to be
relevant or may add a reference to the documents or other evidence they will
submit.
H>$ 1nless otherwise agreed by the parties, either party may amend or supplementhis claim or defence during the course of the arbitral proceedings, unless the
arbitral tribunal considers it inappropriate to allow the amendment or supplement
having regard to the delay in making it.
2ection =F deals with hearing and written proceedings. t states that in the
absence of a particular clause, the arbitral tribunal shall decide whether to carry on
the proceedings orally or on the basis of documents and evidence. t also says that
the parties should be given sufficient notice of any meeting and all documents
submitted must be shown to the other party.
2ection = deals with the default of the party to claim or to respond or to
appear for the oral hearings. n the case of the former, the proceedings are
terminated by the arbitral tribunal whereas in the case of the latter two instances,
the proceedings would continue with the document evidence on hand.
The arbitral tribunal may appoint an e&pert to seek opinion, to collect
information, and to produce a report backed up by relevant documents unless
otherwise agreed by the parties. The parties may also e&amine the report,
documents with the e&pert, again unless otherwise agreed to by the parties. This is
dealt in 2ection =.
The arbitral tribunal or the party with the approval of the arbitral tribunal
may apply to the court for evidence. The court may order the evidences to be given
directly to the arbitral tribunal or it may furnish details about processes in earlier
cases of similar nature. )isregard to this order by personnel in absenting
themselves to attend to the arbitral tribunal or for any other default in producing
the relevant evidence, invites punishment and penalties. 2ection =? elaborates on
the summonses and commissions for the submission of witnesses and summonses for
submission of documents.
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5aking of arbitral award and termination of proceedings are written in the
chapter I. n this 2ection =B speaks on the rules applicable to the substance of
dispute. n other than the international commercial arbitration, the e&isting rules
of arbitration prevalent at that time are taken into account. n internationalcommercial arbitrations, the rules designated by the parties as applicable to the
substance of dispute, the substantive law of the countries and not their conflicts-
n the absence of any such specifications, the rules as circumstantially viable
and if the parties so agree, decide e& ae*uo et bono or as amiable compositor. n all
cases, the terms of the contract and the trade usages form a ground for decision
making by the arbitral tribunal. /mphasi:ing on the majority decision of the arbitral
tribunal in case there are more than one in the tribunal,
2ection =< spells that the presiding arbitrator would decide on the *uestions
of procedure.
2ection >G elaborates on the settlement, the conciliatory proceedings, the
terms agreed on, and if re*uested by the party and if there is no objection by the
arbitral tribunal, to record and issue an award on the terms agreed as per 2ection
>;. 2ection >; lists the various aspects of, and the re*uirements for, the laying
down of the terms of the award of settlement, the date and place specifications,
the monetary details, the costs and e&penses % everything pertaining to the
arbitration award.
1nder 2ection >= and >>, termination of proceedings and the corrections to
the award Hmade within >G days$ respectively. The various instances under which
the termination of proceedings occurs are for having reached a consensus or
withdrawal by either party or if the arbitral tribunal finds it unnecessary to
proceed further for reasons substantiated by the tribunal. 0nce the award is
issued and if there need be any corrections or amendment, and if within >G days, it
has been put forth to the arbitral tribunal, an amendment to the award could be
given as stated in 2ection >>.
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Chapter I encompasses 2ection >F, which covers (ecourse against Arbitral
Award. (ecourse to the court for setting aside the Arbitral award by an application
can be made only if the party to the application furnishes proof of incapacity, lack
of proper notice, not being present for the arbitral proceedings for valid reasons,and if the decisions made are beyond the scope of the submission to arbitration.
Alternatively, if the court finds the subject#matter of the dispute is not capable of
settlement by arbitration under the law, for the time being in force, or if the
arbitral award is in conflict with the public policy of ndia.
2ection > and > under Chapter I deal with inality and /nforcement of
arbitral awards. 2ection > makes it final and binding on the parties to adhere to
the arbitral award and 2ection > gives the arbitral award the power under the
code of Civil rocedure, ;<GB and in the same manner as if it were a decree of
court.
Chapter R covers 2ection >? on Appeals, the instances when appeals are
allowed and it also states that it a noting under this section shall take away any
right to appeal to the 2upreme Court. Also, there is no second appeal provision.
CONCILIATION +RO;I?ION?:
The proceedings relating to C06C7AT06 are dealt under sections ; to
B; of Arbitration and Conciliation Act, ;<<. This Act is aimed at permitting
5ediation conciliation or other procedures during the arbitral proceedings to
encourage settlement of disputes. This Act also provides that a settlement
agreement reached by the parties as a result of conciliation proceedings will have
the same status and effect as an arbitral award on agreed terms on the substance
of the dispute rendered by an arbitral tribunal.
2ection ; says that conciliation shall apply to disputes arising out of legal
relationship, whether contractual or not and to all proceedings relating thereto.
1nless any law e&cludes, these proceedings will apply to every such dispute while
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being conciliated. The parties may agree to follow any procedure for conciliation
other than what is prescribed under the ;<< Act. f any law certain disputes are
e&cluded from submission to conciliation, the third part will not apply.
According to 2ection =, a party can take initiative and send invitation toconciliate under this part after identifying the dispute. roceedings shall commence
when the other party accepts the invitation. f the other party rejects, it stops
there itself. f other party does not reply within >G days it can be treated as
rejection.
Con"iliator(a. There will be only one conciliator, unless the parties agree to two or three.
b. !here there are two or three conciliators, then as a rule, they ought to act
jointly.
c. !here there is only one conciliator, the parties may agree on his name
d. !here there are two conciliators, each party may appoint one conciliator.
e. !here there are three conciliators, each party may appoint one, and the parties
may agree on the name of the third conciliator, who shall act as presiding
conciliator.
f. +ut in each of the above cases, the parties may enlist the assistance of a suitable
institution or person.
The above provisions are contained in section > and FH;$
2ection FH=$ and proviso of the new law lay down as under"
a. arties may enlist the assistance of a suitable institution or person regarding
appointment of conciliator. The institution may be re*uested to recommend or to
directly appoint the conciliator or conciliators.
b. n recommending such appointment, the institutions etc. shall have regard to the
considerations likely to secure an Oindependent and impartial conciliatorO.
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c. n the case of a sole conciliator, the institution shall take into account the
advisability of appointing a conciliator other than the one having the nationality of
the parties.
?tages:
n sections to ?> contains provisions spread over a number of sections as
to the procedure of the conciliator. Their gist can be stated in short form.
a. The conciliator, when appointed, may re*uest each party to submit a statement,
setting out the general nature of the dispute and the points at issue. Copy is to be
given to the other party. f necessary, the parties may be asked to submit further
written statement and other evidence.
b. The conciliator shall assist the parties Oin an independent and impartial mannerO,
in their attempt to reach an amicable settlement. 2ee 2ection ?H;$ of the new law.
c. The conciliator is to be guided by the principles of Oobjectivity, fairness and
justiceO. De is to give consideration to the following matters"
i$ (ights and obligations of the parties-
ii$ Trade usages- and
iii$ Circumstances surrounding the dispute, including previous business
practices between the parties. 82ection ?H=$9.
d. De may, at any stage, propose a settlement, even orally, and without stating the
reasons for the proposal. 82ection ?HF$9.
e. De may invite the parties Hfor discussion$ or communicate with them jointly or
separately. 82ection B9.
f. arties themselves must, in good faith, co#operate with the conciliator and supply
the needed written material, provide evidence and attend meetings, 82ection ?;9.
g. f the conciliator finds that there e&ist Oelements of a settlement, which may be
acceptable to the partiesO, then he shall formulate the terms of a possible
settlement and submit the same to the parties for their observation.
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h. 0n receipt of the observations of the parties, the conciliator may re#formulate
the terms of a possible settlement in the light of such observation.
i. f ultimately a settlement is reached, then the parties may draw and sign a
written settlement agreement. At their re*uest, the conciliator can help them indrawing up the same. 82ections ?>H;$ and ?>H=$9.
Le'al E/e"t0
a. The settlement agreement signed by the parties shall be final and binding on the
parties. 8 2ection ?>H;$9.
b. The agreement is to be authenticated by the conciliator. 8 2ection ?>HF$9.
c. The settlement agreement has the same status and effect as if it were an
arbitral award rendered by the arbitral tribunal on agreed terms. 8 2ection ?F read
with section >G9. The net result is that the settlement can be enforced as a decree
of court by virtue of section >.
Role o& t!e +arties
1nder section ?=, a party may submit to the conciliator his own suggestions
to the settlement of a dispute. De at his own initiative or on the conciliatorSs
re*uest may submit such suggestions.
Con%iliator@s +ro%ed(re
The net result of section , 2ection ? H=$ and 2ection ?H>$ can be stated as
follows"
a. The conciliator is not bound by the Code of Civil rocedure or the /vidence Act.
b. The conciliator is to be guided by the principles of objectivity, fairness and
justice.
c. 2ubject to the above, he may conduct the proceedings in such manner, as he
considers appropriate, taking into account"
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i. The circumstances of the case-
ii. !ishes e&pressed by the parties-
iii. 6eed for speedy settlement.
Dis%los(re and Condentialit
a. actual information received by the conciliator from one party should be
disclosed to the other party, so that the other party can present his e&planation, if
he so desires. +ut information given on the conditions of confidentiality cannot be
so disclosed.
b. 6otwithstanding anything contained in any other law for the time being in force,
the conciliator and a party shall keep confidential Oall matters relating to the
conciliation proceedingsO. This obligation e&tends also to the settlement agreement,
e&cept where disclosure is necessary for its implementation and enforcement.
H2ection ?$.
A&mi((ion(.
n any arbitral or judicial proceedings Hwhether relating to the conciliated
dispute or otherwise$, the party shall not rely on, or introduce as evidence
i. Iiews e&pressed or suggestions made by the other party for a possible
settlement-
ii. Admissions made by the other party in the course of conciliation proceedings-
iii. roposal made by the conciliator- and
iv. The fact that the other party had indicated his willingness to accept a
settlement proposal H2ection B;$.
Parallel Pro"ee&in'(
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)uring the pendency of conciliation proceedings, a party is debarred from
initiating arbitral or judicial proceedings on the same dispute, e&cept Osuch
proceedings as are necessary for preserving his rightsO. H2ection ??$ HThere is nomention of arbitral or judicial proceedings, which are already initiated$.
Con"iliator Not to A"t a( Aritrator
1nless otherwise agreed by the parties, the conciliator cannot act asarbitrator, representative or counsel in any arbitral or judicial proceedings in
respect of the conciliated dispute. 6or can he be OpresentedO by any party as a
witness in such proceedings. H2ection BG$.
Co(t( an& De%o(it: The new law also contains provisions on certain other
miscellaneous matters, such as costs and deposit H2ection ?B and ?<$.
LO= - ADALAT
7ok Adalat is a system of alternative dispute resolution developed in ndia. troughly means OeoplePs courtO. ndia has had a long history of resolving disputes
through the mediation of village elders. The system of 7ok Adalats is based on the
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principles of the anch armeshwar of 4ram anchayats which were also proposed
by 5ahatma 4andhi. The idea of 7ok Adalat was mainly advocated by 3ustice .6.
+hagwati, a former Chief 3ustice of ndia. 7ok Adalat is a non#adversarial system,
whereby mock courts Hcalled 7ok Adalats$ are held by the 2tate Authority, )istrictAuthority, 2upreme Court 7egal 2ervices Committee, Digh Court 7egal 2ervices
Committee, or Taluk 7egal 2ervices Committee. They are held periodically for
e&ercising such jurisdiction as they determine. These are usually presided over by
retired judges, social activists, or other members of the legal profession. The 7ok
Adalats can deal with all Civil Cases, 5atrimonial )isputes, 7and )isputes,
artitionJroperty )isputes, 7abour )isputes etc., and compoundable criminal Cases.
The first 7ok Adalat was held on 5arch ;F, ;<B= in 4ujarat.
The emergence of alternative dispute resolution has been one of the most
significant movements as a part of conflict management and judicial reform, and it
has become a global necessity. (esolution of disputes is an essential characteristic
for societal peace, amity, comity and harmony and easy access to justice. t is
evident from the history that the function of resolving dispute has fallen upon the
shoulders of the powerful ones. !ith the evolution of modern 2tates and
sophisticated legal mechanisms, the courts run on very formal processes and are
presided over by trained adjudicators entrusted with the responsibilities of
resolution of disputes on the part of the 2tate. The processual formalisation of
justice gave tremendous rise to consumption of time and high number of cases and
resultant heavy amount of e&penditure. 0bviously, this led to a search for an
alternative complementary and supplementary mechanism to the process of the
traditional civil court for ine&pensive, e&peditious and less cumbersome and, also,
less stressful resolution of disputes.
The evolution of this movement was a part of the strategy to relieve heavy
burden on the Courts with pending cases and to give relief to the litigants who were
in a *ueue to get justice. The first 7ok Adalat was held on 5arch ;F, ;<B= at
3unagarh in 4ujarat the land of 5ahatma 4andhi. 5aharashtra commenced the 7ok
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6yayalaya in ;<BF. 7ok Adalats have been very successful in settlement of motor
accident claim cases, matrimonialJfamily disputes, labour disputes, disputes relating
to public services such as telephone, electricity, bank recovery cases and soon.
2ome statistics may give us a feeling of tremendous satisfaction andencouragement. 1p to the middle of last year H=GGF$, more than =GG,GGG 7ok
Adalats have been held and therein more than; million cases have been settled,
half of which were motor accident claim cases. 5ore than one billion 12 dollars
were distributed by way of compensation to those who had suffered accidents. .?
million persons have benefited through legal aid and advice.
?CO+8 AND O0'8CT
The advent of 7egal 2ervices Authorities Act, ;<B? gave a statutory status
to 7ok Adalats, pursuant to the constitutional mandate in Article ><#A of the
Constitution of ndia, contains various provisions for settlement of disputes
through 7ok Adalat.
CA?8? ?UITA0L8 OR LO= - ADALAT
7ok Adalats have competence to deal with a number of cases like"N
Compoundable civil, revenue and criminal cases.N 5otor accident compensation claims
casesN artition ClaimsN )amages CasesN 5atrimonial and family disputesN 5utation
of lands caseN 7and attas casesN +onded 7abour casesN 7and ac*uisition disputesN
+ankSs unpaid loan casesN Arrears of retirement benefits casesN amily Court casesN
Cases which are not sub#judice.
OR9ANI?ATION O LO= ADALAT:
The 2tate Authority and )istrict Authority, 2upreme Court 7egal 2ervices
Committee, Digh Court 7egal 2ervices Committee and Taluk 7egal 2ervices
Committee Hmentioned in 2ection ;< of the Act$ can organi:e 7ok Adalats at such
intervals and ermanent 7ok Adalats as may be deemed fit. /very 7ok Adalat so
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organi:ed shall consist of"Ha$ 2erving or retired judicial officers,Hb$ 0ther persons,
as may be specified.
+O58R? O LO= ADALAT:
i$ The 7ok Adalat shall have the powers of a civil court under the Code of Civil
rocedure, ;<GB, while trying a suit, in respect of the following matters"# a$ ower
to summon and enforce the attendance of any witness and to e&amine himJher on
oath.
b$ ower to enforce the discovery and production of any document.
c$ ower to receive evidence on affidavits,$
d$ ower for re*uisitioning of any public record or document or copy thereof or
from any court.
e$ 2uch other matters as may be prescribed.
ii$ /very 7ok Adalat shall have the power to specify its own procedure for thedetermination of any dispute coming before it.
iii$ All proceedings before a 7ok Adalat shall be deemed to be judicial proceedings
within the meaning of 2ections ;<>, =;< and ==B of C.
iv$ /very 7ok Adalat shall be deemed to be a Civil Court for the purpose of 2ec
;<and Chapter RRI of Cr..C.
+8R<AN8NT LO= -- ADALAT:
n =GG=, arliament brought about certain amendments to the 7egal 2ervices
Authorities Act, ;<B?. The said amendment introduced Chapter I#A with the
caption (/ 7T4AT06 C06C7AT06 A6) 2/TT7/5/6T. 2ection ==#+
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envisages establishment of O/(5A6/6T 70W A)A7AT2 H 7 A$O at different
places for considering the cases in respect of ublic 1tility 2ervices H12$. The
Central or 2tate Authorities may establish by notification, ermanent 7ok Adalats,
for determining issues in connection to ublic 1tility 2ervices.
ublic 1tility 2ervices include"
H;$ Transport service,
H=$ ostal, telegraph or telephone services,
H>$ 2upply of power, light and water to public,
HF$ 2ystem of public conservancy or sanitation,
H$ nsurance services and such other services as notified by the Central or
2tate 4overnments.
AD;ANTA98? O LO= -ADALAT
Hi$ 2peedy 3ustice and saving from the 7engthy Court rocedures " # 7ok Adalats
ensure speedier justice because it can be conducted at suitable places, arranged
very fast, in local languages too, even for the illiterates. The procedural laws and
the /vidence Act are not strictly followed while assessing the merits of the claim
by the 7ok Adalat. Dence, 7ok Adalats are also known as “eopleSs estivals of
3ustice”
Hii$ 3ustice at no cost" # 7ok Adalat is the only institutionali:ed mechanism of
dispute resolution in which the parties do not have to bear any e&penses. There is
no court fee in 7ok Adalat. f the case is already filed in the regular court, the fee
paid is refunded in the manner provided under the Court ees Act if the dispute is
settled at the 7ok Adalat.
Hiii$ 2olving roblems of +acklog Cases" # n a 7ok Adalat, if a compromise is
reached- an award is made and is binding on the parties. t is enforced as a decree
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of a civil court. An important aspect is that the award is final and cannot be
appealed, not even under Article == because it is a judgment by consent.
Hiv$ 5aintenance of Cordial (elations" # The main thrust of 7ok Adalats is
oncompromise. !hen no compromise is reached, the matter goes back to the court.
!hile conducting the proceedings, a 7ok Adalat acts as a conciliator and not as an
arbitrator. ts role is to persuade the parties to hit upon a solution and help in
reconciling the contesting differences.
CONCLU?ION
7ok Adalats, as it has been again and again iterated throughout the paper,
serve very crucial functions in a country due to many factors like pending cases,
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illiteracy etc. The 7ok Adalat was a historic necessity in a country like ndia where
illiteracy dominated about all aspects of governance. The most desired function of
7ok Adalats may seem to be clearing the backlog, with the latest report showing >
crore pending cases in ndian courts but the other functions cannot be ignored. Theconcept of 7ok Adalat has been a success in practice. 7ok Adalats play a very
important role to advance and strengthen “e*ual access to justice”, the heart of the
Constitution of ndia, a reality. This ndian contribution to world A)( jurisprudence
needs to be taken full advantage of. 5a&imum number of 7ok Adalats needs to be
organi:ed to achieve the 4andhian rinciple of 4ram 2waraj and “access to justice
for all”.
)uring the last few years 7ok Adalat has been found to be a successful tool
of alternate dispute resolution in ndia. t is most popular and effective because of
its innovative nature and ine&pensive style. The system received wide acceptance
not only from the litigants, but from the public and legal functionaries in general.
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+RACTICAL ?8??ION?
This part of the record deals with narration of the practical
sessions conducted in the class and a portrayal of the trial procedure
observed during the court visit.
1* +resentation # Tea" No: 4
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,T!e Tea": - <o!a""ed >aris!*=*?*B La6s!"i <o!anB <ini?a"(elB <ad!(s(d!anan*?B <an(* '* +la"oottil <it!(n N*?*
ACT2" # Ciril is married to 7incy aged = years in the year =GG. 7ater itwas recogni:ed that 7incy is showing deviating behaviour in her in lawSs house.
2he ran away from house at night. 7incy has filed a complaint stating that she
is tortured mentally and physically by her husband and sister in law as well as
defamed by her husband by publici:ing she is insane. 2he filed a petition for
divorce, maintenance and defamation claim. The matter is filed in the family
court which directed for mediation.
CAST0
etitioner " 7incy H7akshmi 5ohan$
Respondent : Cyril (Mohammed Harish
Counsel for etitioner " 5ini 2amuelCounsel for respondent " 5adhusudhanan 2
5ediators " 5anu 3 lamoottil K 5ithun 6 2
Pro"ee&in'(
a"il Law:
(elevant 2ections" # 2ection , 2ection K 2ection < of the amily Court Act
2ection of the amily Court Act provides provision for the 4overnment to
re*uire the association of 2ocial !elfare 0rganisation to hold the family Court to
arrive at a settlement. 2ection of the Act provides for appointment of permanent
counsellors to effect settlement in the family matters. urther 2ection < of the
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)
Act imposes an obligation on the Court to make effort for settlement before taking
evidence in the case. n fact the practice in family Court shows that most of the
cases are filed on sudden impulse between the members of the family, spouse and
they are being settled in the conciliation itself. To this e&tent the alternatedispute resolution has got much recognition in the matter of settlement of family
disputes. 2imilar provision has been made in 0rder RRR A of C..C. which deals
with family matters.
The mediators asked the petitioner to present her case
Statement ( ma&e 1 Petitioner
The following are the averments of the petitioner 7incy H7akshmi 5ohan$.
The etitioner stated that she has married to Cyril H5ohammed Darish.W.2$ on
=Gth 5ay =GG at the age of =.
The respondent is working as an e&cise nspector and he was very much
affectionate, caring and a loving husband in the beginning.
2lowly due to the ill advice of an unmarried sister, to whom he is very much
affectionate, started behaving indifferently.
De comes most of the time in the late hours during night time.
2till the petitioner likes the respondent and she believes that petitioner is also
having the same feeling.
Dence the petitioner wants an amicable settlement and she is not pressing the
divorce.
Statement( ma&e 1 Re(%on&ent #M1(el!2
The following are the statements made by me against the statements levelled
against me by the petitioner.
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.
am working as inspector of /&cise and have chaotic official duty.
2ometimes comes late night but not intentional.
deny that my sister made any harassment of the petitioner.
+efore running away during the night hours from the house, she could have
contacted him at least through phone.
agree to settle the matter and likes the company of his wife along with him
and forgives her past conduct.
deny that ever alleged the petitioner as insane.
in fact asked her about the medicines that she consumed during night time,
but the petitioner never clarifies about that.
?tate"ents "ade # %o(nsel &or 7etitioner
The counsel for petitioner stated that the petitioner has filed the petition
for divorce, maintenance K defamation after a series of settlement efforts made
by elders of both the parties and religious leaders. +ut the respondent is adamant
in his stand. The petitioner has lost all hopes of a reunion and hence she filed the
petition. +ut later she realised that life is only for once and it has to be lived with
happiness, mutual trust and co operation. Dence she is ready for a settlement.
?tate"ents "ade # %o(nsel &or res7ondent
The counsel for respondent stated that the petitioner has overstated the
facts. The respondent has neither ill treated the petitioner not harassed physically
or mentally. The respondent only clarified about the habit of consuming medicine by
the petitioner during the night hours that too hiding the fact from him. robably
the petitioner might have got the wrong impression about this as publishing her as
insane. As the petitioner herself e&pressed that life is only once and it has to be
lived with happiness, mutual trust and cooperation and is ready for a settlement his
client Hrespondent$ is also ready for an amicable settlement.
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5ediators asked both the parties for a meeting and put forward the conditions of
settlement.
T!e &ollowing are t!e ter"s %onditions o& t!e "ediation*
• The respondent should hire a house and stay with the petitioner.
• The respondent should never compel the petitioner to accompany him to
his home.
• The respondent can visit his home and meet his parents or sister.
• 2ince both the parties agreed to cohabit together, there is no *uestion of
maintenance arises.
• The respondent should make an apology the petitioner against the allegation
of the petitioner that he has publici:ed her insane.
A9R88<8NT: - The above stated terms and conditions are accepted.
7incy Cyril
H7akshmi 5ohan$ H5ohammed Darish$
Counsel for etitioner Counsel for (espondent
H5ini 2amuel$ H5adhusudhanan.2$
5ediators
H5anu 3 lamoottil$ H5ithun 6 2$
2* +ro#le" settled # t!etea" )
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The team members are
2J2ri. 2ankar ..anicker,
2ajeer I A,
2anal Wumar, 2asidharan .5,
2hairaj and
2anjeev Wumar
+ro#le" No ):
ACT2 0 TD/ CA2/" # Raviour 7ate& ndustries 7td. !as
established under the ndustrial )ispute Act which was closed down due tonon availability of raw materials. )ue to the same reason many employees are
retrenched from the industry. The +haratiya 5a:door 2angh and 6T1C
filed the suit against the industry. The retrenched employees are not paid
with compensation and the industry is not opened till the date of filing the
suit. The appeal has made to Digh Court which in further ordered for
mediation.
+etitioners:
;$ 2ri 2ajeer I A % (ep +52
=$ 2rfi 2anal Wumar % (ep 6T1C
Co(nsel &or Res7ondent Co"7an:- 2anjeev Wumar
2anjeev Wumar # /mployee of the company
2hairaj " #<ediator"# 2ri 2ankar. . anicker
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)
+ro%eedings
The mediator has allowed the both the petitioners to brief their cases.
The first petitioner alleged that reduction of e&penditure was effected for
employees of their union alone and others are considered rather with a soft
corner.
The second etitioner denied this and he repeated that employees
belonging to their union is victimised rather that the other union, +ut both of
them argued for a better package for retrenchment.
The counsel for the respondent company was asked to enhance his views.
Then the counsel for the respondent has e&plained the position
regarding the closing down of the company. De e&plained that the non
availability of the raw material, 7ate&, the company is not in a position to
continue its operation. The company could not meet even the minimum
production target and the company is belligerent even to pay the salary of
the employees. The company is forced to shut down some of its plants due to
the same reason and cut back some of its employees. t was told by the
counsel for the respondent that the retrenchment was not taken as part of
the penali:ing act and on one occasion of the company getting back to better
fiscal situation, the retrenched employeeSs cases will be well thought#out with
concern.
The mediator called for both the petitioners to have a prolific
conversation and to reach at a harmonious resolution.
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ollowing an e&tensive argument, they arrived the following agreement.
A harmony shall be made in cooperation the parties.
An end date is to be fi&ed for re#establish the workers.
Compensation is to be paid to the workers as per harmony.
The mediator has ordered that the 5ediation report will be sent to the
Donourable Digh Court of Werala for information and further
accomplishment.
3. CASE +TOO$ NOTICE AT THE
PERMANANT LO$ ADALATH AT
ERNA$ULAM
The case was called as Application 6o 0 <GJ=G; dated =<.G.=G;.
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The Complainant was 5Js Watson Traders. t was represented by the
proprietor 5.C.3olly, +anerjee (oad, Digh Court 3unction.,/rnakulum, Wochi#B=G>;.
The (espondent is the professional couriers, represented by the )irector,
3acob Iallanatt (oad, Wochi#B=G;B
An application was filed under section ==Hc$ of the 7egal services authorities
act, ;<B? by the applicant
The arguments heard are as following
;. The applicant is running business of courier service at /rnakulum which is the
only sources of earning bread.
>. The applicant entrusted with the respondent a consignment of electrical
goods to be sent back to the manufacturer A++, +angalore on =<.G.=G;> from
whom it was purchased earlier. After satisfying all the conditionsJre*uirements and
receiving ?GJ# as their charge the respondent accepted as per docket
6o.G>BB?=G dated =<.G.=G;>. The materials value of ;?FGGJ# as
declared by the applicant was also accepted.
F. The consignment was not delivered to the consignee within the agreed time.
The applicant knowing about this informed the respondent about the non delivery
through telephone and letters. The employee of the respondent agreed to
look into the matter and deliver the consignment immediately.
, The applicant believed the words of the respondent and waited in the belief
that the consignment would be delivered by the respondent as agreed by them.
The consignment has not yet been delivered to the consignee even now. The
respondent has not informed the applicant about the whereabouts of the
consignment and neither returned the consignment to the applicant if unable todeliver it to the consignee due to any reason.
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. The consignment of electrical goods was being sent to the manufacturer who
on its receipt would replace it with other goods or its value would be paid to
the applicant in accordance with the agreement with them.
?. )ue to the failure on the part of the respondent to deliver the goods the
applicant has suffered a loss of ;?,FGGJ# being the value of the electrical
goods. Aggrieved by the non delivery and delaying delivery or compensating
him the applicant caused to issue a registered lawyer notice dated G<.G.=G;F
to the respondent demanding them to deliver the consignment immediately to the
consignee or to compensate the applicant by paying G,GGGJ# being the value
of the consignment and the loss suffered by the applicant.
B. The notice was received by the respondent but they have neither sent any
reply nor complied with the re*uest in the notice. The respondent agreed to
settle the matter by compensating but did not keep the word. Their attempt
was only to prolong the matter.
<. The respondent has even though acknowledged this has in spite of all the
pleadings of the helpless applicant failed to deliver the consignment. This attitude
had caused considerable monetary loss, mental pain and suffering to this applicant.
The applicant had also spent amounts towards travelling and corresponding
e&penses in this matter.
;G. The applicant is legally entitled to get the consignment delivered or get it
returned or its value with the damage suffered. De is also entitled to and is
claiming compensation for the loss suffered due to the non delivery or return
of consignment. The applicant is also entitled to and claiming compensation for
the mental pain and suffering caused by the respondent. The applicant is
entitled and is claiming G,GGGJ# as total compensation under all the above heads.
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;;. The cause of action for filling this application arose on and after the
respondent agreed to deliver the consignment on =<.G.=G;> and on several
occasions when the applicant had informed the respondent about thedeficiency in service and on G<.G.=G;F when the applicant sent a notice to the
respondent. All the cause of action occurred within the jurisdiction of this
DonSble Authority. The applicant and the respondent are residing and
functioning at /rnakulum within the jurisdiction of this DonSble Authority.
The applicant therefore humbly pray that this DonSble orum may be pleased
to take this application by directing the respondent to pay to the applicant
G,GGGJ#Hifty thousand$ with interest at the rate of ;=M annum till payment
with cost.
)efence of the respondent courier company
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IMPLEMENTATION OF ADR
The implementation of Alternative )ispute (esolution mechanisms
as a means to achieve speedy disposal of justice is a crucial issue. The
sea#change from using litigation as a tool to resolve disputes to using
Alternative )ispute (esolution mechanisms such as conciliation and
mediation to provide speedy justice is a change that cannot be easily
achieved. The first step had been taken
in ndia way back in ;<FG when the first Arbitration Act was passed.
Dowever, due to a lot of loop#holes and problems in the legislation, the
provisions could not fully implement. Dowever, many years later in ;<<,
The Arbitration and Conciliation Act was passed which was based on the
16CT(A7 model, as already discussed in the previous section of the
paper. The amendments to this Act were also made taking into accountthe various opinions of the leading corporates and businessmen who
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utilise this Act the most. 2ufficient provisions have been created and
amended in the area of 7ok Adalats in order to help the rural and
commoner segments to make most use of this uni*ue Alternative
)ispute (esolution mechanism in ndia. Therefore, today the provisions
in ndia sufficiently provide for Alternative )ispute (esolution.
Dowever, its implementation has been restricted to just large
corporates or big business firms. 7ok Adalats, though a very old concept
in ndian 2ociety, has not been implemented to its utmost level. eople
still opt for litigation in many spheres due to a lot of drawbacks.
rovisions made by the legislators need to be utilised. This utilisation
can take place only when a definite procedure to increase the
implementation of A)( is followed. n order to have such an
implementation programme, it is necessary to analyse what the
problems are and rectify them.
Prolem( in im%lementation an& (4''e(tion(0
Any implementation is usually confronted with problems. A)( is no
e&ception to this rule.
2ome of the problems faced during implementation are enumerated as
under"
; !ttitudes" Although ndian law favours dispute resolution by
arbitration, ndian sentiment has always abhorred the finality attaching
to arbitral awards. A substantial volume of ndian case law bears
testimony to the long and ardours struggle to be freed from binding
arbitral decisions. Aided and abetted by the legal fraternity, the aim of
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every party to arbitration Hdomestic or foreign$ is" “try to win if you
can, if you cannot do your best to see that the other side cannot
enforce the award for as long as possible.”=? n that sense, arbitration
as a means of settling disputes is a failure# though it is being
increasingly regarded as a useful mechanism for resolving disputes.
= "a#yer and Client $nterests" 7awyers and clients often have
divergent attitudes and interests concerning settlement. This may be a
matter of personality Hone may be a fighter, the other a problem
solver$ or of money
>$ "egal %du&ation" 7aw schools train their students more for conflict
than for the arts of reconciliation and accommodation and therefore
serve the profession poorly.
F $mpediments to settlement" 3ust as there may be problems in the
implementation techni*ues, there are impediments even after that
stage, i.e. during the time of settlement. 2ome of them are"
oor communication
)ifferent views of facts
)ifferent views of legal outcome if settlement is not
reached
ssues of principle Constituency pressures
7inkage to other disputes
5ultiple arties" !here there are multiple parties, with
diverse interests, the problems are similar to those raised
by diverse constituencies and issue linkages.
The “3ackpot” syndrome" An enormous barrier to settlementoften e&ists in those cases where the plaintiff is confident
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of obtaining in a Court a financial recovery far e&ceeding its
damages, and the defendant thinks it is unlikely
$ $gnoran&e
$ Corruption:
?$ Though recourse to A)( as soon as the dispute arises may confer
ma&imum advantages on the parties- it can be used to reduce the
number of contentious issues between the parties- and it can be
terminated at any stage by any one of the disputing parties. Dowever,
there is no guarantee that a final decision may be reached.
B$ A)( procedures are said to be helpful in reaching a decision in an
amicable manner.
<$ A)( procedure permits parties to choose neutrals who are
specialists in the subject matter of the disputes. This does not mean
that there will be a diminished role for lawyers.
;G$ 2ince the A)( proceedings do not re*uire a very high degree of
evidence, most of the facts regarding the dispute which would have
been proved otherwise continue to be a bane in the discussion which
may lead to dissatisfaction.
;;$ n A)(, the parties can choose their own rules or procedures for
dispute settlement. Arriving at them is the major hurdle.
;=$ A)( programmes are fle&ible and not afflicted with rigorous rules
of procedure. There is, therefore, a possibility of the parties going
back on the agreed rules and programmes. This creates a delay and
slows the process of dispute resolution.
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;>$ le&ibility and unconfirmed procedures make it e&tremely difficult
to *uote and use precedents as directives.
;F$ A)( procedures were introduced to lessen the burden of the
courts. Dowever, since there is an option to appeal against the finality
of the arbitral award to the courts, there is no difference in the
burden.
All these problems are not permanent in nature. They all have
solutions. An attempt to make suggestions for the solutions of the
above listed problems has been made below. This list of suggested
solutions is merely illustrative and not e&haustive.
An insight into the advantages of conciliation and negotiation
would bring in the desired change % change of attitude. To keep active
here is awareness, by interactive communication
The other gnarling issue is corruption. To combat these two
forces, imparting knowledge is a must. )riving ignorance away would in
fact, help in curtailing corruption too. The 640s should put in their
efforts in providing a knowledge base to the needy.
The major lacuna in A)( is that it is not binding. 0ne could still
appeal against the award or delay the implementation of the award.
“3ustice delayed is justice denied.” The very essence of A)( is lost if it
is not implemented in the true spirit. The award should be made binding
on the parties and no appeal to the court should be allowed unless it is
arrived at fraudulently or if it against public policy.
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(ules of procedure are being formulated on a case by case basis
and the rules made by the parties themselves, with maybe, some
intervention of legal professionals. Dowever, a general guideline and a
stipulated format would assist in bringing clarity to the formulation of
an A)( award. This would also help in cutting down ignorance and assist
in better negotiation.
Con"l4(ion
+ecause justice is not e&ecuted speedily men persuade themselves
that there is no such thing as justice. 2haring the same sentiments,
Chief 3ustice +hagwati said in his speech on 7aw )ay, “ am pained to
observe that the judicial system in the country is on the verge of
collapse. These are strong words am using but it is with considerable
anguish that say so. 0ur judicial system is creaking under the weight
of errors.”
Arrears cause delay and delay means negating the accessibility of
justice in true terms to the common man. Countless rounds to the
Courts and the lawyersS chambers can turn any person insane.
!hen justice is getting delayed, people take it granted that there
is no such thing as justice. )elivery of justice is getting delayed due to
many reasons- one of such reasons is the phenomenal increase in the
number of cases filed in courts and Tribunals. The cases are being filed
mainly due to the defective legislations enacted hastily, arbitrary
administrative orders, increased consciousness of oneSs right and
gamblerSs instinct in a litigant due to multiplicity of appeals and
revisions provided in law.
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The aggrieved party want a decision and t!at too as E(i%6l as
7ossi#le* As t!e 7ro#le" o& over#(rdened
The disputants want a decision and that too as *uickly as possible.
As the problem of over burdened Courts has been faced all over the
world, new solutions were searched. Iarious Tribunals were the answer
to the search. n ndia, we have a number of Tribunals. Dowever, the
fact of the matter is that even after the formation of so many
Tribunals, the administration of justice has not become speedy. Thus, it
can be safely said that the solution lies somewhere else. All over the
globe the recent trend is to shift from litigation towards Alternative
)ispute (esolution. t is a very practical suggestion, which if
implemented, can reduce the workload of Civil Courts by half. Thus, itbecomes the bounden duty of the +ar to take this onerous task of
implementing A)( on itself so as to get matters settled without going
into the labyrinth of judicial procedures and technicalities. The +ar
should be supported by the +ench in this herculean task so that no one
is denied justice because of delay. t is important here to mention thestatement made by 3ohn . Wennedy in this respect" “7et us never
negotiate out of fear but let us never fear to negotiate.”
*I*LIO5RAPHY
*OO$S AND ARTICLES
;. 7aw of Arbitration A)( K Contract, ).. 5TTA7, /)T06 .
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=. 7aw of Arbitration and Conciliation ncluding other A)(s, 2.W.
Chawla
>. Denry 3 +rown and Arthur 7. 5arriott, A)( rinciples andractice, 2weet and 5a&well Hin = Iol.$
F. 6ational Alternative )ispute (esolution Advisory Council, A)(
Terminology" A )iscussion aper
. 5.A. 2ujan, “Accountability of an Arbitrator” A( =GG= 3ournal
. 4. Wrishna 5urthy and W.I. 2atyanarayana, “A)( and Arbitration
7aw in ndia”
?. ).5. opat, “7aw of Arbitration and Alternative )ispute
(esolution”
6E*SITES
;. http"JJen.wikipedia.org
=. http"JJwww.britishcouncil.orgJadr.doc
>. http"JJwww.adrgroup.co.ukJhistory
F. http"JJwww;.worldbank.orgJpublicsectorJlegalJadr
. http"JJwww;.worldbank.orgJpublicsectorJlegalJA)(
. http"JJwww.ielrc.orgJcontentJ
?. http"JJen.wikipedia.orgJwikiJArbitration
B. http"JJwww.icadr.orgJnews#speechcjhc.html
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