Alternative Dispute

Resolution
By
Anil Patel
Devika Sighdeo
Niladri Saha
Ravi kant
Sukanya Sikdar
 Mahatma Gandhi’s Views on ADR
Gandhiji said “ I realized that the true function of a
lawyer was to unite parties. A large part of my time
during the 20 years of my practice as a lawyer occupied
in bringing about private compromise of hundred of
cases. I lost nothing thereby – not even money,
certainly not my soul.”
 Concept Of ADR
 The court proceedings is the regular process taken up for
any dispute resolution.
 But there are certain alternative mechanisms available
before a full-scale court proceedings and that is the
Alternative Dispute Resolution.
 The spirit of ADR is that it emanates to find a better and
more wholesome collaborative method of resolving
disputes.
 ADR refers to the process, other than judicial
determination, in which an impartial person assists the
parties to a dispute to resolve the issues between the
parties.
 Purpose of ADR
The primary purpose of Alternative Dispute
Resolution (ADR) methods, of which arbitration is the
most popular, is to avoid going to the court. However,
intervention by courts is inevitable.
In most of the jurisdictions, the subordinate judiciary
is empowered to look into arbitration matters,
however, a number of matters reach the highest court.
India follows the same system and a large number of
arbitration matters are filed in the lower courts
 Advantages of ADR
 Faster and less expensive.
 Encourages direct participation of the parties and
discourages the implementation of complete procedural law.
 Satisfactory approach for both parties.
 Creates less ill will and improves the relationship of the
parties.
 Gives an opportunity to continue the interaction between
the parties after they have reached a settlement.
 Disadvantages of ADR
 It is criticized as rendering a “second-class justice”.
 May result in going to court
 Lack of expertise
 No enforceability
 They are private in nature and not part of a public
record, so it is not exposed to public scrutiny.
 Arbitration
Arbitration is a domestic forum other than the court
of law for determination of disputes and differences,
after hearing both the sides, in a judicial manner.
Less formal and quicker than any court.
Transparency in the decision making process of
arbitrator.
It seeks dispute as a legal analysis.
 Types of Arbitration

Domestic Arbitration
International Arbitration
Ad hoc Arbitration
Institutional Arbitration
Foreign Arbitration
Statutory Arbitration
Expedited Arbitration
Flip-Flop arbitration
 What disputes can be decided through
Arbitration?
Mostly all the disputes involving Civil Rights, which fall within the
jurisdiction of Civil Court are referable to arbitration.
The matters, which are excluded from arbitration agreements:
 Matrimonial matters and those connected with the conjugal
rights.
 Lunacy proceedings.
 Testamentary matters under the Indian Succession Act
 Insolvency proceedings, Company matters those relating to
winding up.
 Matters under Trust Act etc
 Determinations of rights and liabilities under the
Guardianship and Wards Act.
 Appointment of Arbitrator
 Procedure for appointment of arbitrator is stated in
arbitration agreement.
 Failure to appoint occurs when
A party fails to appoint within 30 days from receipt of
request to do so from other party
 Two appointed arbitrator fails to agree on third arbitrator
within 30 days of appointment.
 In case of agreement failure, appointment of one or three
arbitrator should be made upon request by a party, by the
Chief justice of High court or any one designated by High
court.
 Duties of Arbitrator

To ensure that the dispute is within the scope of arbitration

To act judicially and impartially.

He shall have no interest in the subject matter of the dispute and parties.

He shall disclose in writing any circumstances likely to give rise to doubts of
his impartiality and independence .

He shall encourage settlement by mediation or conciliation.

He shall not exceed his authority and act within the scope of the agreement.

He shall follow rules of natural justice.

He shall give a final award or if empowered give several awards and file the
award in due time.
Features of Arbitration Agreement
The arbitration agreement can be in the form of:
An arbitration clause in a contract, or
In a separate agreement.
It need not be necessarily signed by the parties.
Stamp duty is chargeable.
The parties may set out the procedure for
appointment of the arbitrators in their agreement.
By an agreement, the arbitration agreement can
be terminated.
 Legal Attributes of the Arbitration
Agreement
The arbitration agreement to be in writing.
It can have a sole arbitrator or odd no of arbitrators.
The arbitrators can be named in the agreement or nominated
in accordance with the provisions of law.
It has to be in accordance with Section 10 of the Indian
Contract Act, 1872 for being a valid contract.
The parties should intend to show interest to refer the matter
to arbitration.
Arbitration agreement to provide place of arbitration and the
substantive law applicable to the contract especially in the
International Commercial Agreement for arbitration, it is
compulsory to do so.
 The various situations as to when the
court can intervene
 When there is an agreement the court is empowered to refer
the matter to arbitration.
 It can grant interim measures.
 On the termination of the mandate of an arbitrator.
 Assist in taking evidence.
 Setting aside arbitral award.
 Enforcement of arbitral award.
 Cost of the arbitration.
 Conciliation
“ Conciliation is a process of persuading parties to reach
an agreement .”
Characteristics of conciliation
Conciliation proceeding shall have to commence
before any steps are taken for the appointment of
arbitrator.
 Need not to be contractual or prior agreement basis.
Two willing party can resolve a dispute in the presence
of conciliator.
Useful for the cases pending in courts for years.
 Role of Conciliator
Conciliation is one of the mechanisms that has to be adopted
in reaching early settlements and therefore the conciliator
has to play the role as following:
The conciliator may advise or determine the process of
conciliation whereby resolution is attempted.
Conciliator to make suggestions for terms of settlement.
Conciliator can give expert advice on likely settlement terms
and
Conciliator can actively encourage the participants to reach
an agreement.
Chief elements in Conciliation

Encouragement to visualize
options that offer solutions
 Appointment of Conciliator
 The number of conciliator to be only one, unless the parties
agree otherwise.
 If there are more than one conciliator, then as a rule they
ought to act jointly.
 If there is only one conciliator, the parties may agree on his
or her name.
 If there are two conciliators , each party can name one.
 In case of more than two conciliators, each party can name
one and may agree on the name of the third, who shall act
as a presiding conciliator.
 The parties may enlist the assistance of a suitable institution
or person to act as a conciliator.
 Even for the cases pending in the court of law, conciliator
may be appointed.
Arbitration and conciliation law in India
Arbitration and Conciliation in India is mainly
governed by the Arbitration ad Conciliation Act, 1996
The object of the Act is to consolidate and amend the
law relating to domestic arbitration, international
commercial arbitration and enforcement of foreign
arbitral awards.
Scope:
It is resorted to in relation to disputes out of legal
relationships whether contractual or not.
Proposed amendments to Arbitration
Act
 In 2001, the 176th Law Commission Report, which was
chaired by the then Law Commission Chairman Justice
B.P Reddy, had given an exhaustive set of
recommendations to overhaul the Arbitration Act.
 Arbitration and Conciliation (Amendment) Bill,
2003 was introduced in the Rajya Sabha.
The Standing Committee on Personnel, Public
Grievances, Law and Justice was of the view that the
provisions of the Bill gave room for excessive intervention
by the Courts in the arbitration proceedings.
 MEDIATION
Mediation, as used in law, is a form of ADR, is a way of
resolving disputes between two or more parties. A third
party is the Mediator. Mediation is a confidential
process and conducted privately.
Types of Mediation:
Facilitative Mediation
Evaluative Mediation
 What A Mediator Do ?
Listens to both sides attentively.
Helps them to communicate with each other.
Helps to identify the disputed issues & develop
options.
Mediation results into a satisfactory outcome without
proving right or wrong.
Meeting with mediator may be together or separately.
Contd..
Mediation may be in
Family disputes
Business disagreement
Contracts disputes
Insurance claims
Employment and environmental issues
 Negotiation
It is a sort of compromise, contemplating direct
interaction between parties.
It is of the nature of a non-binding procedure.
It is both a traditional as well as modern concept .
To be applied to any matter for a negotiated
settlement.
Thumb rule of Negotiation Process
Send signals of cooperation politely without
compromising on major issues.
Be competitive on issues necessary .
Let live and live, forgive and forget.
Clarity and consistency in approach and
predictability .
It must be used for better assimilation.
 Learning achieved
There are many legal, socio and economic problems in
ADR mechanism in India. These problems arise due to
diverse and culturally rich population of India as well
as lack of political goodwill in this regard.
To overcome these barriers Government must act
strictly and should first of all adopt 176th Law
Commission‘s Report. Coupled with this Government
at both state and Union Level must come up with
awareness programmes not only for the citizens but
also for the arbitrators.
Thank You