Alternative Dispute Resolution-Final

8/8/2019 Alternative Dispute Resolution-Final

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By

Anil Patel

Devika SighdeoNiladri Saha

Ravi kant

Sukanya Sikdar



Mahatma Gandhis Views on

ADRy 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 occupiedin bringing about private compromise of hundred of cases. I lost nothing thereby not even money,certainly not my soul.



Concept Of ADR

y The court proceedings is the regular process taken up for

any dispute resolution.

y But there are certain alternative mechanisms available

before a full-scale court proceedings and that is the

Alternative Dispute Resolution.

y The spirit of ADR is that it emanates to find a better and

more wholesome collaborative method of resolving

disputes.y 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 ADRy 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.

y 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 ADRy Fast r and l ss expensi e.

y Encour ages dir ect participation of t e parties and

discour ages t e i plementation of complete pr ocedur al law.

y Satisf actor appr oach f or oth parties.

y Cr eates less ill will and impr oves the r elationship of the

parties.

y Gives an opportunit to continue the inter action between

the parties after they have r eached a settlement.



Disadvantages of ADRy It is criticized as r endering a ³second-class justice´.

y May r esult in going to court

y Lack of expertise

y No enf or ceability

y They ar e private in natur e and not part of a public

r ecor d, so it is not exposed to public scr utiny.



Arbitrationy 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.y Less formal and quicker than any court.

y Transparency in the decision making process of arbitrator.

y It seeks dispute as a legal analysis.



Types of Arbitration

y Domestic Ar bitr ation

y Inter national Ar bitr ation

y Ad hoc Ar bitr ation

y Institutional Ar bitr ation

y For eign Ar bitr ation

y Statutor y Ar bitr ation

y

Expedited Ar bitr ationy Flip-Flop ar bitr ation



What disputes can be decided through

Arbitration?

Mostly all the disputes involving Civil ights, which f all within the

jurisdiction of Civil Court ar e r ef er able to ar bitr ation.

The matters, which are excluded from arbitration agreements:

Matrimonial matter s and those connected with the con jugal

rights. Lunacy pr oceedings.

Testamentar y matter s under the Indian Succession Act

Insolvency pr oceedings, Company matter s those r elating to

winding up.

Matter s under Tr ust Act etc Deter minations of rights and liabilities under the

Guar dianship and War ds Act.



Appointment of Arbitratory Procedure for appointment of arbitrator is stated in

arbitration agreement.

y

Failure to appoint occurs wheny A party fails to appoint within 30 days from receipt of

request to do so from other party

y T wo appointed arbitrator fails to agree on thirdarbitrator within 30 days of appointment.

y In case of agreement failure, appointment of one orthree arbitrator should be made upon request by aparty, by the Chief justice of High court or any onedesignated by High court.



Duties of Arbitratory To ensure that the dispute is within the scope of arbitrationy To act judicially and impartially.y He shall have no interest in the subject matter of the dispute

and parties.y He shall disclose in writing any circumstances likely to give rise

to doubts of his impartiality and independence .y He shall encourage settlement by mediation or conciliation.y He shall not exceed his authority and act within the scope of the

agreement.y He shall follow rules of natural justice.y He shall give a final award or if empowered give several awards

and file the award in due time.



Features of Arbitration AgreementThe ar bitr ation agr eement can be in the f or m of:

y An ar bitr ation clause in a contr act, or

y In a separ ate agr eement.y It need not be necessarily signed by the parties.

y Stamp duty is char geable.

y The parties may set out the pr ocedur e f or

appointment of the ar bitr ator s in their agr eement.

y y an agr eement, the ar bitr ation agr eement can be

ter minated.



Legal Attributes of the Arbitration

Agreement

y The ar bitr ation agr eement to be in writing.

y It can have a sole ar bitr ator or odd no of ar bitr ator s.

y The ar bitr ator s can be named in the agr eement or nominated

in accor dance with the pr ovisions of law.y It has to be in accor dance with Section 10 of the Indian

Contr act Act, 1872 f or being a valid contr act.

y The parties should intend to show inter est to r ef er the matter

to ar bitr ation.y Ar bitr ation agr eement to pr ovide place of ar bitr ation and the

substantive law applicable to the contr act especially in the

Inter national Commer cial Agr eement f or ar bitr ation, i t is

compulsor y to do so.



The various situations as to when the

court can interveney When ther e is an agr eement the court is empower ed to r ef er

the matter to ar bitr ation.

y It can gr ant interim measur es.

y On the ter mination of the mandate of an ar bitr ator.

y Assist in taking evidence.

y Setting aside ar bitr al awar d.

y Enf or cement of ar bitr al awar d.y Cost of the ar bitr ation.



Conciliation

Conciliation is a process of persuading parties to reachan agreement .

Characteristics of conciliation

y Conciliation proceeding shall have to commencebefore any steps are taken for the appointment of arbitrator.

y Need not to be contractual or prior agreement basis.

y T wo willing party can resolve a dispute in the presenceof conciliator.

y Useful for the cases pending in courts for years.



Role of Conciliator

Conciliation is one of the mechanisms that has to be adopted

in r eaching early settlements and ther ef or e the conciliator

has to play the r ole as f ollowing:

yThe conciliator may advise or deter mine the pr ocess of conciliation wher eby r esolution is attempted.

y Conciliator to make suggestions f or ter ms of settlement.

y Conciliator can give expert advice on likely settlement ter ms

and

y Conciliator can actively encour age the participants to r each

an agr eement.



Chief elements in ConciliationChief Elements of

Conciliation Pr ocesses

Identification of the

causes of disputesCr eation of options

to r esolve those disputes

Encouragement to visualizeoptions that offer solutions



Appointment of Conciliator

y The number of conciliator to be only one, unless the partiesagr ee other wise.

y If ther e ar e mor e than one conciliator, then as a r ule theyought to act jointly.

y If ther e is only one conciliator, the parties may agr ee on hisor her name.

y If ther e ar e two conciliator s , each party can name one.

y In case of mor e than two conciliator s, each party can nameone and may agr ee on the name of the thir d, who shall act

a s a pr esiding conciliator.y The parties may enlist the assistance of a suitable institution

or per son to act as a conciliator.

y Even f or the cases pending in the court of law, conciliator may be appointed.



Arbitration and conciliation law in

Indiay Arbitration and Conciliation in India is mainly

governed by the Arbitration ad Conciliation Act, 1996

yThe object of the Act is to consolidate and amend thelaw relating to domestic arbitration, internationalcommercial arbitration and enforcement of foreignarbitral awards.

y

Scope:y It is resorted to in relation to disputes out of legal

relationships whether contractual or not.



Proposed amendments to Arbitration

Acty 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.

y Arbitration and Conciliation (Amendment) Bill,2003 was introduced in the Rajya Sabha.

y The Standing Committee on Personnel, Public

Grievances, Law and Justice was of the view that theprovisions of the Bill gave room for excessiveintervention by the Courts in the arbitrationproceedings.



MEDIATIONMediation, 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.M

ediation is a confidentialprocess and conducted privately.

Types of Mediation:

y Facilitative Mediation

y Evaluative Mediation



What A Mediator Do ?y Listens to both sides attentively.

y Helps them to communicate with each other.

y Helps to identify the disputed issues & developoptions.

y Mediation results into a satisfactory outcome withoutproving right or wrong.

y Meeting with mediator may be together or separately.



Contd..Mediation may be in

y Family disputes

y Business disagreementy Contracts disputes

y Insurance claims

y Employment and environmental issues



Negotiationy It is a sort of compromise, contemplating direct

interaction between parties.

y

It is of the nature of a non-binding procedure.y It is both a traditional as well as modern concept .

y To be applied to any matter for a negotiatedsettlement.



Thumb rule of Negotiation Processy Send signals of cooperation politely without

compromising on major issues.

y

Be competitive on issues necessary .y Let live and live, forgive and forget.

y Clarity and consistency in approach andpredictability .

y It must be used for better assimilation.



Learning achievedy 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 wellas lack of political goodwill in this regard.

y To overcome these barriers Government must actstrictly and should first of all adopt 176th Law

Commissions Report. Coupled with this Governmentat both state and Union Level must come up withawareness programmes not only for the citizens butalso for the arbitrators.



Thank You

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Alternative Dispute Resolution-Final

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