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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. It has been a

great tool for breaking economic barrier and envisioning world as a market for

trade.

When economies and societies integrate it indubitably leads to the rise in

various types of disputes such as:-

a) Industrial disputes,

b) Commercial disputes,

c) International disputes etc.

“ubi jus ibi remedium” – This legal maxim rightly laid down the foundation of

legal system in every human society. It 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

cliché “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.

Recourse 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 Dispute Resolution, which is

commonly called by its generic acronym “ADR”.

ADR is being increasingly acknowledged in the field of law and commercial

sectors both at national and international levels. Its diverse methods have helped

parties to resolve their disputes at their own terms cheaply and expeditiously.

In the present context of market economy and of integrating Indian economy

with the world economy, it became necessary for the quick settlement and

resolution of disputes between the parties, outside the judicial system.

Benjamin Franklin 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 Renaissance, when Catholic Popes acted as

arbitrators in conflicts between European countries. One of the successful

examples of the said mechanism is the international mediation conducted by former

U.S President Jimmy Carter in Bosnia. ADR 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. Settlement of a

longstanding commercial dispute between General Motors Co. and Johnson Matthey

Inc., which was pending in US District Court since past few years.

The biggest stepping stone in the field of International ADR is the adoption

of UNCITRAL [United Nation Commission on International Trade Law] model on

international commercial arbitration. An important feature of the said model is that

it has harmonized the concept of arbitration and conciliation in order to designate

it for universal application. General Assembly of UN also recommended its member

countries to adopt this model in view to have uniform laws for ADR mechanism.
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Other important international conventions on arbitration are:-

1. The Geneva Protocol on Arbitration clauses of 1923.

2. The Geneva Convention on the execution of foreign award, 1927

3. The New York Convention of 1958 on the recognition and enforcement of foreign

arbitral award.

In India Part III of Arbitration and Conciliation Act, 1996 provides for

International Commercial Arbitration.

Another step in strengthening the international commercial arbitration is the

establishment of various institutions such as:-

A) ICC – International Court of Arbitration of the International Chamber of

Commerce.

B) Arbitration and mediation centre of World Intellectual Property Organization.

C) AAA – International centre for dispute resolution of the American Arbitration

Association and others have explored new avenues in the ADR field.

ADR - DEVELOPMENT IN INDIA

Panchayat system is vogue in India from centuries. It 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.

Unfortunately, this system has lost its credibility due to intervention of politics and

communal hatred among people.

Litigation in India is generally longitudinal and expensive. Hence, there has

been considerable amount of efforts by legislature and judiciary to make ADR more

prevalent among societies.

Legislative efforts towards ADR in India:

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In India credit for springing up ADR goes to East India Company. It gave the

statutory recognition to the said forum under various acts such as: Bengal

Regulation Act of 1772 and Bengal regulation act of 1781 which provided parties to

submit the dispute to the arbitrator, appointed after mutual agreement and whose

verdict shall be binding on both the parties.

Alternate dispute redressal received legislative recognition in India, after

the enactment of Civil Procedure Code, 1859 which provided –

# Sec 312 - reference to Arbitration in pending suit.

# Sec 312 – 325 – laid down the procedure for arbitration.

# Sec 326 – 327 – provided for arbitration without courts intervention.

#Arbitration is also recognized under Indian Contract Act, 1872 as the first

exception to Section 28, which envisages that any agreement restraining legal

proceedings is void.

# The Legal Service Authorities Act, 1987 brought another mechanism under ADR

with the establishment of Lok Adalat system.

# The Industrial Dispute Act, 1947 statutorily recognized conciliation as an

effective method of dispute resolution.

# Indian Electricity Act, 1910 and A.P Co-operative Societies Act, 1964 are few

more examples in this regard.

The Arbitration Act of 1899 was the first exclusive legislation on

arbitration. Subsequently the said act was repealed and was replaced by Arbitration

Act 1940. Arbitration Act of 1940 also failed to give desired result and in realizing

its objective of enactment. Then various recommendations of successive Law

Commissions and policy of liberalization in the field of commerce acted as a catalyst

in the growth of ADR mechanism. After the liberalization of Indian economy which

opened the gates for inflow of foreign investment; Government of India on the

UNCITRAL model enacted the Arbitration and Conciliation Act 1996 which repealed

the 1940 Act.

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The main objectives of the Act are:-

A) To cover international and domestic arbitration comprehensively.

B) To minimize the role of courts and treat arbitral award as a decree of court.

C) To introduce concept of conciliation.

D) Lastly, to provide speedy and alternative solution to the dispute.

Code of Civil Procedure 1908 carries section 89 which formulates four methods to

settle disputes outside the court. These are:-

a) Arbitration

(b) Conciliation

(c) Lok Adalat

(d) Mediation.

At the same time the Constitution of India puts arbitration as a Directive

Principle of State Policy. Article 52(d) provides that the state should encourage

settlement of international disputes by arbitration.

Judicial effort towards ADR in India:

Indian judiciary has also played a substantial role in up gradation of ADR

mechanism. The apex court has recognized the alternate forum in its various

decisions.

In Guru Nanak Foundation V/S Rattan & Sons, court observed that

“Interminable, time consuming, complex and expensive court procedures impelled

jurists to search for an alternative forum, less formal, more effective and speedy

for resolution of disputes avoiding procedure claptrap…”

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The realization of concepts like speedy trial and free legal aid by apex court

in various cases has also helped in the up gradation of alternate dispute redressal

mechanism. One of the biggest steps in the lines of development of the said

machinery was maintaining the validity of “fast track courts” scheme as laid down

in Brijmohan v/s UOI.

Fast track court scheme has done wonders in disposing number of pending

cases. These courts have disposed of 7.94 lakh cases out of 15.28 lakh cases

transferred at the rate of 52.09% and recent statistics show that the number of

pending cases has reduced to 6 lakhs.

Another major step in the growth of ADR services in India is the

establishment of institutions such as:

· IIAM - Indian Institute of Arbitration and Mediation

· ICA - Indian Council for Arbitration

· ICADR – International Centre for Alternate Dispute Resolution.

These institutions provide services of negotiation, mediation, conciliation,

arbitration, settlement conferences etc. They also help in finding lacunae in existing

ADR 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) ICC – International Court of Arbitration of the International Chamber of

Commerce.

B) Arbitration and mediation centre of World Intellectual Property Organization.

C) AAA – International centre for dispute resolution of the American Arbitration

Association and others have explored new avenues in the ADR field.

A. The Permanent Court of Arbitration (PCA): is an international

organization based in The Hague in the Netherlands. It was established in 1899 at

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the first Hague Peace Conference. The PCA encourages the resolution of disputes

that involve states, state entities, intergovernmental organizations, and private

parties by assisting in the establishment of arbitration tribunals and facilitating

their work. The PCA is different from the International Court of Justice which is

housed in the same building, the Peace Palace in The Hague.

The PCA is not a “court in the conventional understanding of that term, but

an administrative organization 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 enquiry and conciliation.” It

is a permanent framework available to assist temporary arbitral tribunals or

commissions. The judges or arbitrators that hear cases are officially called

"Members" of the Court

Dispute settlement is regarded by the World Trade Organization (WTO) as

the central pillar of the multilateral trading system, and as the organization's

"unique contribution to the stability of the global economy". A dispute arises when

one member country adopts a trade policy measure or takes some action that one or

more fellow members considers to a breach of WTO agreements or to be a failure

to live up to obligations. By joining the WTO, 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 — this

involves abiding by agreed procedures (Dispute Settlement Understanding) and

respecting judgments, primarily of the Dispute Settlement Body (DSB), the WTO

organ responsible for adjudication of disputes. A former WTO Director-General

characterized the WTO dispute settlement system as "the most active

international adjudicative mechanism in the world today."

In 1994, the WTO members agreed on the Understanding on Rules and

Procedures Governing the Settlement of Disputes or Dispute Settlement

Understanding (DSU) (annexed to the "Final Act" signed in Marrakesh in 1994).

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Pursuant to the rules detailed in the DSU, member states can engage in

consultations to resolve trade disputes pertaining to a "covered agreement" or, if

unsuccessful, have a WTO panel hear the case. The priority, however, is to settle

disputes, through consultations if possible. By January 2008, only about 136 of the

nearly 369 cases had reached the full panel process.

The operation of the WTO dispute settlement process involves the parties

and third parties to a case and may also involve the DSB panels, the Appellate Body,

the WTO Secretariat, arbitrators, independent experts, and several specialized

institutions. The General Council discharges its responsibilities under the DSU

through the Dispute Settlement Body (DSB). Like the General Council, the DSB is

composed of representatives of all WTO Members. The DSB is responsible for

administering the DSU, i.e. for overseeing the entire dispute settlement process. It

also has the authority to establish panels, adopt panel and Appellate Body reports,

maintain surveillance of implementation of rulings and recommendations, and

authorize the suspension of obligations under the covered agreements. The DSB

meets as often as necessary to adhere to the timeframes provided for in the DSU.

B. The United Nations Commission on International Trade Law

(UNCITRAL) :- was established by the United Nations General Assembly by its
Resolution 2205 (XXI) of 17 December 1966 "to promote the progressive

harmonization and unification of international trade law".

UNCITRAL carries out its work at annual sessions held alternately in New

York City and Vienna. The methods of work are organized at three levels. The first

level is UNCITRAL itself (The Commission), which holds an annual plenary session.

The second level is the intergovernmental working groups (which is developing the

topics on UNCITRAL's work program. Texts designed to simplify trade transactions

and reduce associated costs are developed by working groups comprising all member

States of UNCITRAL, which meet once or twice per year. Non-member States and

interested international and regional organizations are also invited and can actively
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contribute to the work since decisions are taken by consensus, not by vote. Draft

texts completed by these working groups are submitted to UNCITRAL for

finalization and adoption at its annual session. The International Trade Law Division

of the United Nations Office of Legal Affairs provides substantive secretariat

services to UNCITRAL, 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 organizations active and encouraging cooperation

among them.

 Promoting wider participation in existing international conventions and wider

acceptance of existing model and uniform laws.

 Preparing 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 organizations operating in this field.

 Promoting 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.

 Establishing and maintaining a close collaboration with the UN Conference on

Trade and development.

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 Maintaining liaison with other UN organs and specialized agencies concerned

with international trade

C. The International Chamber of Commerce (ICC): is

the largest, most representative business organization in the world. Its hundreds of

thousands of member companies in over 180 countries have interests spanning every

sector of private enterprise.

ICC has three main activities: rule setting, dispute resolution, and policy

advocacy. Because its member companies and associations are themselves engaged

in international business, ICC 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 90 countries advocates

business priorities at national and regional level. More than 2,000 experts drawn

from ICC’s member companies feed their knowledge and experience into crafting

the ICC stance on specific business issues.

ICC keeps the United Nations, the World Trade Organization, and many

other intergovernmental bodies, both international and regional, in touch with the

views of international business. ICC was the first organization granted general

consultative status with the United Nations Economic and Social Council.

D. OTHER TREATIES
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The other treaties governing ADR in various states would include the United

States Code Title 9, The Agreement relating to the application of the European

Convention on International Arbitration (Paris, 1962), The European Convention

providing a Uniform Law on Arbitration (Council of Europe, 1964). The various other

treaties enacted by the rest of the countries in the world are not included in this

list.

KINDS OF ADR SYSTEM

1.Arbitration, in the context of United States law, is a form of

alternative dispute resolution — specifically, a legal alternative to litigation

whereby the parties to a dispute agree to submit their respective positions

(through agreement or hearing) to a neutral third party (the arbitrator(s) or

arbiter(s)) for resolution. In practice arbitration is generally used as a substitute

for judicial systems, particularly when the judicial processes are viewed as too slow,

expensive or biased. Arbitration is also used by communities which lack formal law,

as a substitute for formal law.

Commercial and other forms of contract arbitration

Agreements to arbitrate were not enforceable at common law, though once

the parties had actually submitted a pending dispute to an arbitrator; the

arbitrator's 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.

During the Industrial Revolution, 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 expensive adversarial litigation, in courts

whose rules differed significantly from the informal norms and conventions of

business people (the private law of commerce, or jus merchant). Arbitration was

promoted as being faster, less adversarial, and cheaper.

The result was the New York Arbitration Act of 1920, followed by the

United States Arbitration Act of 1925 (now known as the Federal Arbitration Act).

Both made agreements to arbitrate valid and enforceable (unless one party could

show fraud or unconscionability or some other ground for rescission which

undermined the validity of the entire contract). Due to the subsequent judicial

expansion of the meaning of interstate commerce, the U.S. Supreme Court

reinterpreted the FAA in a series of cases in the 1980s and 1990s to cover almost

the full scope of interstate commerce. In the process, the Court held that the FAA

pre-empted many state laws covering arbitration, some of which had been passed by

state legislatures to protect their consumers against powerful corporations.

Since 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 "final and

binding." This does not, however, void the requirements of law. Any dispute not

excluded from arbitration by virtue of law (for example, criminal proceedings) may

be submitted to arbitration.

Furthermore, arbitration agreements can only bind parties who have agreed,

expressly 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 (usually through the commission of a tort).

Labour arbitration
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Arbitration has also been used as a means of resolving labour disputes for

more than a century. Labour organizations in the United States, such as the

National Labour Union, called for arbitration as early as 1866 as an alternative to

strikes to resolve disputes over the wages, benefits and other rights that workers

would enjoy. Governments have also relied on arbitration to resolve particularly

large labour disputes, such as the Coal Strike of 1902. This type of arbitration,

wherein a neutral arbitrator decides the terms of the collective bargaining

agreement, is commonly known as interest arbitration. The United Steelworkers of

America adopted an elaborate form of interest arbitration, known as the

Experimental Negotiating Agreement, in the 1970s as a means of avoiding the long

and costly strikes that had made the industry vulnerable to foreign competition.

Major League Baseball uses a variant of interest arbitration, in which an arbitrator

chooses between the two sides' final offers, to set the terms for contracts for

players who are not eligible for free agency. Interest arbitration is now most

frequently used by public employees who have no right to strike (for example, law

enforcement and fire fighters).

Unions and employers have also employed arbitration to resolve employee and

union grievances arising under a collective bargaining agreement. The Amalgamated

Clothing Workers of America made arbitration a central element of the Protocol of

Peace it negotiated with garment manufacturers in the second decade of the

twentieth century. Grievance arbitration became even more popular during World

War II, when most unions had adopted a no-strike pledge. The War Labour Board,

which attempted to mediate disputes over contract terms, pressed for inclusion of

grievance arbitration in collective bargaining agreements. The Supreme Court

subsequently made labour arbitration a key aspect of federal labour policy in three

cases which came to be known as the Steelworkers' Trilogy. The Court held that

grievance arbitration was a preferred dispute resolution technique and that courts

could not overturn arbitrators' awards unless the award does not draw its essence

from the collective bargaining agreement. State and federal statutes may allow
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vacating an award on narrow grounds (e.g., fraud). These protections for arbitrator

awards are premised on the union-management system, which provides both parties

with due process. Due process in this context means that both parties have

experienced representation throughout the process, and that the arbitrators

practice only as neutrals.

Judicial arbitration

Some state court systems have promulgated court-ordered arbitration;

family law (particularly child custody) is the most prominent example. Judicial

arbitration is often merely advisory dispute resolution technique, serving as the

first step toward resolution, but not binding either side and allowing for trial de

novo. Litigation attorneys present their side of the case to an independent tertiary

lawyer, who issues an opinion on settlement. Should the parties in question decide to

continue to dispute resolution process, there can be some sanctions imposed from

the initial arbitration per terms of the contract?

Arbitrators

Arbitrators have wide latitude in crafting remedies in the arbitral

decision, with the only real limitation being that they may not exceed the limits of

their authority in their award. An example of exceeding 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.

It is open to the parties to restrict the possible awards that the arbitrator

can make. If this restriction requires 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. It is designed to encourage the parties to moderate their

initial positions so as to make it more likely they receive a favourable decision.

No definitive statement can be made concerning the credentials or

experience levels of arbitrators, although some jurisdictions have elected to

establish standards for arbitrators in certain fields. Several independent

organizations, such as the American Arbitration Association and the National

Arbitration Forum, offer arbitrator training programs and thus in effect,

credentials. Generally speaking, however, the credibility of an arbitrator rests upon

reputation, experience level in arbitrating particular issues, or

expertise/experience in a particular field. Arbitrators are generally not required 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. Often the three consist of an expert in the legal area within

which the dispute falls (such as contract law in the case of a dispute over the terms

and conditions of a contract), an expert in the industry within which the dispute

falls (such as the construction industry, in the case of a dispute between a

homeowner and his general contractor), and an experienced arbitrator.

Umpire
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. Umpire is another word for

"arbitrator" or an arbitrator appointed to resolve arbitration when the arbitrators

can't agree.

Proceedings
Various bodies of rules have been developed that can be used for arbitration

proceedings. The two most important are the UNCITRAL rules and the ICSID 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 Recognition and Enforcement of Foreign Arbitral

Awards provides for the enforcement of foreign arbitral awards on the territory of

the contracting parties. Similar provisions are contained in the earlier Convention on

the Execution of Foreign Arbitral Awards .

Some jurisdictions have instituted a limited grace period during which an

arbitral decision may be appealed against, but after which there can be no appeal.

In the case of arbitration under international law, a right of appeal does not in

general exist, although one may be provided for by the arbitration agreement,

provided a court exists capable of hearing the appeal.

When arbitration occurs under U.S. law, either party to an arbitration may

appeal from the arbitrator's decision to a court, however the court will generally

not change the arbitrator's findings of fact but will decide only whether the

arbitrator was guilty of malfeasance, or whether the arbitrator exceeded the limits

of his or her authority in the arbitral award or whether the award conflicts with

positive law. The Supreme Court has described the standard of review as one of the

narrowest known to Western jurisprudence. Wherever 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 (ADR), 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.

Disputants may mediate disputes in a variety of domains, such as commercial, legal,

diplomatic, workplace, community and family matters.

The term "mediation" broadly refers to any instance in which a third party

helps others reach agreement. More specifically, mediation has a structure,

timetable and dynamics that "ordinary" negotiation lacks. The process is private and

confidential, possibly enforced by law. Participation is typically voluntary. The

mediator acts as a neutral third party and facilitates rather than directs the

process.

Mediators use various techniques to open, or improve, dialogue and empathy

between disputants, aiming to help the parties reach an agreement. Much depends

on the mediator's skill and training. As the practice gained popularity, training

programs, certifications and licensing followed, producing trained, professional

mediators committed to the discipline.

Uses
In 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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Governments can use mediation to inform and to seek input from stakeholders in

formulation or fact-seeking aspects of policy-making. Mediation is applicable to

disputes in many areas:

Family:

 Prenuptial/Premarital agreements

 Financial or budget disagreements

 Separation

 Divorce

 Alimony

 Parenting plans (child custody and visitation)

 Eldercare

 Family businesses

 Adult sibling conflicts

 Parent(s)/adult children

 Estates

 Medical ethics and end-of-life

Workplace:
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Wrongful termination

Workers compensation

Discrimination

Harassment

Grievances

Labour management

Public disputes

 Environmental

 Land-use

Commercial:

 Landlord/tenant

 Homeowners' associations

 Builders/contractors/realtors/homeowners

 Contracts

 Medical malpractice

 Personal injury

 Partnerships
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Others:

o School conflicts

o Violence-prevention

o Victim-Offender mediation

o Non-profit organizations

o Faith 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 analyze solutions

 adjust and refine proposed solutions

 record agreement in writing

The following are useful criteria for selecting a mediator:

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 Personal attributes—patience, empathy, intelligence, optimism and flexibility

 Qualifications—knowledge of the theory and practice of conflict, negotiation

and mediation, mediations skills.

 Experience— mediation experience, experience in the substantive area of

dispute and personal life experience

 Training

 Professional background

 Certification and its value

 Suitability of the mediation model

 Conflicts of interest

 Cost/fee
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3. CONCILIATION

Conciliation is an alternative dispute resolution (ADR) 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

explore 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 "pre-caucus". At the

pre-caucus, the conciliator discusses one-on-one with each party separately, where

the party prioritizes 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 "joint session". At the joint session, the parties discuss

directly with each other, instead of through a mediator. Parties 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.

Because 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 explained 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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NEGOTIATION

Negotiation 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.

Negotiation occurs in business, non-profit organizations, 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. Professional negotiators are often specialized, such as union

negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or

may work under other titles, such as diplomats, legislators or brokers

Due to globalization and growing business trends, negotiation in the form of

teams is becoming widely adopted. Teams can effectively collaborate to break down

a complex negotiation.

There is more knowledge and wisdom dispersed in a team than in a single

mind. Writing, listening, and talking, are specific roles team members must satisfy.

The capacity base of a team reduces the amount of blunder, and increases

familiarity in a negotiation

Barriers

 Die-hard bargainers

 Lack of trust

 Informational vacuums and negotiator's dilemma

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 Structural impediments

 Spoilers

 Cultural and gender differences

 Communication problems

 The power of dialogue

EXPERT DETERMINATION

Expert 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. Expert determination is a

procedure by which the parties to a dispute appoint an independent and neutral

expert to determine the dispute in private. Like arbitration, it allows trade secrets

and other sensitive information to be kept out of the public domain. The expert will

be a person with specialist or technical knowledge relevant to the dispute.

EARLY NEUTRAL EVALUATION

Early 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 parties' positions.

The evaluation may be binding or non-binding. Early neutral evaluation is required

when the dispute involves technical or factual issues that lend themselves to expert

evaluation. It may also be an effective alternative to formal discovery in traditional

litigation.

MEDIATION - ARBITRATION
 26

It is a practice developed in Anglo-Saxon countries that consists in the

association of arbitration with mediation, in one process. It seems this process also

benefits of a positive welcome in the Nordic countries.

In France, to recourse into Med-Arb is definitely confidential. It 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 "sword of Damocles" over

the heads of the parties pushes them for a negotiation both quick and

effective during the mediation.

But there is no indication that companies are using this contradictory system

through the approach of the mediator, who initiates his intervention while knowing

he will eventually have to become an arbitrator within the same case.

It is therefore difficult not to consider that he will not adopt a position of

instructor (in the sense of the judge) during the first stage, instead of being a

mediator.

Indeed, 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. Mini-trials, like mediations and arbitrations, constitute unique

forms of “alternative dispute resolution” (ADR) favored by courts and litigants

alike. There has been a general increase in all forms of ADR in recent years because
 27

of the advantages offered: reduced cost, fast resolution, privacy, and less

adversity in effect. A mini-trial is really not a trial at all. Rather, it is a settlement

process in which the parties present highly summarized versions of their respective

cases to a panel of officials who represent each party (plus a “neutral” official) and

who 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.

OMBUDSPERSON

An organizational 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 organization,

governmental agency or other entity. As an independent and neutral employee, the

organizational 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.

Using an alternative dispute resolution (ADR) sensibility, an organizational

ombudsman provides options for people with concerns, including whistleblowers, who

seek to bring their concerns forward safely and effectively. Additionally, an

organizational 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. Overall, the

organizational ombudsman helps employees and managers navigate bureaucracy and

deal with concerns and complaints.

TWO-TRACK APPROACH
 28

Involves use of ADR processes or traditional settlement negotiations in

conjunction with litigation. Representatives of the disputing parties who are not

involved in the litigation are used to conduct the settlement negotiations or ADR

procedure. The negotiation or ADR efforts may proceed concurrently with litigation

or 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 explore

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. It 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 (ADR) procedures offer several advantages:

 A single procedure. Through ADR, 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 expense and complexity of

multi-jurisdictional litigation, and the risk of inconsistent results.

 Party autonomy. Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved

than would be the case in court litigation. In contrast to court litigation, the

parties themselves may select the most appropriate decision-makers for their

dispute. In addition, they may choose the applicable law, place and language of

the proceedings. Increased 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.

 Neutrality. ADR can be neutral to the law, language and institutional culture
of the parties, thereby avoiding any home court advantage that one of the
 29

parties may enjoy in court-based litigation, where familiarity with the applicable

law and local processes can offer significant strategic advantages.

 Confidentiality. ADR 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.

 Finality of Awards. Unlike court decisions, which can generally be

contested through one or more rounds of litigation, arbitral awards are not

normally subject to appeal.

 Enforceability of Awards. The United Nations Convention for the

Recognition and Enforcement of Foreign Arbitral Awards of 1958, known as the

New York 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.

ADR has been increasingly used internationally, both alongside and integrated

formally into legal systems, in order to capitalise on the typical advantages of ADR

over litigation:

 Suitability for multi-party disputes

 Flexibility of procedure - the process is determined and controlled by the

parties to the dispute

 Lower costs

 Less complexity ("less is more")

 30

 Parties choice of neutral third party (and therefore expertise in area of

dispute) to direct negotiations/adjudicate

 Likelihood and speed of settlements

 Practical solutions tailored to parties’ interests and needs (not rights and

wants, as they may perceive them)

 Durability of agreements

 Confidentiality

 The preservation of relationships and the preservation of reputations

 It saves a lot of time by allowing the parties to resolve their differences/

disputes/ issues in a short period of time as compared to the excessive stint

taken by the Hon’ble Courts in resolving the very same issues.

 In 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. Moreover these processes can commence at

any point of time, unlike anticipating the stipulation of dates as and when

pleased by the court.

 It saves a lot of money that is disbursed on lawyers and other miscellaneous

expenses that one has to undergo in the process of litigation.

 The most elementary benefit of the ADR system is saving costs, giving

control to the disputants and thus avoiding the vicious litigation process.

Such process (like ADR) results in substantial savings of court fees, lawyer’s
 31

incentives, and other costs because they do not include time consuming and

expensive discovery that is quite prevalent in different courts. Other such

elaborate practices are also deemed redundant.

 It 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

victimized party addresses the opposite party/ 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. Moreover 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 ADR, because it

allows people, who cannot afford fees or cannot afford to lose time, to

acquire a remedy without getting into the sweat breaking system of the

court.

 People solving their disputes through the ADR have the benefit of solving

their own cases themselves, and hence are representing themselves per se.

Generally court litigation can be very difficult for the per se litigant, who is

unable to navigate himself through the court proceedings and trial. With 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

litigant’s case. Thus is this manner access to justice is much faster and more

number of people are encouraged to solve the issue through ADR mechanism.
 32

 It focuses on the issues that are important to the people instead of just

stressing upon the legal rights and obligations.

 Resolutions through these systems are brief and brisk. Avoiding the

unnecessary litigated outcomes, the parties involved can just acquire the

result they want and are comfortable with. The 3rd party involved efficiently

handles this plan. i.e. (mediator, arbitrator, conciliator etc.) they identify and

frame the relevant interests and issues of the parties, help them to access

the quantity 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.

 It leads to more flexible 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 required 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. Once the process is started, a party seeking more streamlined and

less expensive 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 as

decided by the parties. Since one of this type can be can be conducted more

quickly, and less expensively, there is less emotional burden on the individuals

involved than proceedings in a stressful trial.

 It keeps the disputes that are private as the same.


There is no public announcement of the arbitration/ mediation/ conciliation

or any of the ADR processes for that matter. The case is held in a
 33

confidential manner by keeping the private matters as private. Full secrecy is

maintained. While mediation can take place in the formal court system,

arbitration can be administered on a secretive basis. Here the parties

involved and the arbitrator or the mediator is invited who can solve the case

within four walls of the said arbitration/ mediation room. They are moreover

barred from disclosing any information.

 It 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 excruciating. 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. However, 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 express themselves and

are suggested remedies consequently, they both agree to the same by

reaching to a common conclusion. They negotiate amongst themselves or the

3rd party helps them by suggesting remedies.

 There are no winners or losers here. The 3rd party has no authority to

impose any advice or remedy atop the parties. The said resolutions are solely

voluntary and on the sole discretion of the parties. Here the parties retain

their options.

 ADR provides finality

 In courts, during the proceedings, the parties generally have a chance to

appeal the decision of the judge or the verdict of a jury. In contrast to this,
 34

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. It 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 ADR system.

DEMERITS OF ADR SYSTEM

Alternative dispute resolution system may not be suitable for each and every

dispute. Agreed that cases do pile up in the Hon’ble Courts of law all around the

world, but the judge cannot always refer a case to arbitration/ mediation/

conciliation. Some cases are to be dealt in the court of law; there is no other

‘informal’ means of solving the said cases.

 Wastage of time/ money if the case is not resolved.

A recent survey done by a prominent law database website suggests that nearly

90% of the cases, which are dealt through the ADR 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 ADR gets a good deal of repeat

business from the same institution.

 35

 Compromise of Confidentiality.

Prima 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. In the proceedings

confidentiality may be difficult for the parties to use the award or any other part

of the arbitration in later proceedings.

 Limited Judicial Review.

Another everlasting problem faced by parties taking recourse to the ADR

system is the power of limited or negligible Judicial Review An arbitral award is

final and binding on the parties and excluded to appeal to the courts in connection

with it. The court review of arbitral awards is quite limited.

 Informal, more opportunity of abuse of power.

Though very uncommon, power abuse sometimes is something to worry about in

case of Alternative Dispute Resolution systems. Since the mediator/ arbitrator/

conciliator does not have to follow any formal code of prescribed text, he

sometimes goes out of the way to make things good or sometimes even worse for

the parties to the dispute.

 Lack of power to establish legal precedents.

The remedies established, or given out to the parties in dispute, in case of

ADR 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.

 Unfamiliarity with the procedure and Lack of awareness.

 36

Last 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. It is the lack of knowledge and awareness with

respect to the various methods for dispute resolution that more often than not

discourage parties from considering this option seriously.

ARBITRATION AND CONCILIATION ACT, 1996

India opened a fresh chapter in its arbitration laws in 1996 when it enacted

the Arbitration and Conciliation Act (‘the Act’ or ‘new Act’).

A. The Pre-1996 Position

Prior to 1996, the arbitration law of the country was governed by a 1940 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

1981 judgment of the Supreme Court where the judge (Justice DA Desai) in anguish

remarked ‘the way in which the proceedings under the (1940) Act are conducted

and without an exception challenged in Courts, has made lawyers laugh and legal

philosophers weep.

The Arbitration and Conciliation Act, 1996 was passed on the basis of the

UNCITRAL Model Law on International Commercial Arbitration, 1985 and

UNCITRAL Conciliation Rules, 1980.It had been recommended by General Assembly

of the United Nations that all countries should give due consideration to the said

Model Law in view of the desirability of uniformity of the law of arbitral

procedures and the specific needs of the international commercial arbitration

practices. It has also recommended the use of the said Rules in cases where a

dispute arises in the context of international commercial relations and the parties
 37

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 the

Preamble to the Arbitration and Conciliation Act, 1996.

ARBITRATION PROVISIONS:

Under the Arbitration and Conciliation Act, 1996; “arbitration” means any

arbitration whether or not administered by a permanent arbitral institution. This

has been discussed in S.2 of the Act, along with other definitions, which are

peculiar to the Act. Under the Act, written communication is delivered when it

reaches the other party’s place of business, habitual residence or mailing address.

If such an address cannot be traced recorded attempt to find out and mail to the

old address is sufficient (S.3). In 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. (S.4) The

extent of Judicial Intervention and Administrative assistance is discussed in Ss. 5

& 6 of the Act.

Part II of the Act deals with Arbitration Agreements. Section 7 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. In 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
 38

place even if the issue is pending before the judicial authority (S.8). The provisions

regarding interim measures are made under S.9 of the Act.

Part III of the Arbitration and Conciliation Act, 1996 contains provisions

regarding the composition of an Arbitral Tribunal. The parties to an arbitration

agreement 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. In case of a “three arbitrator

approach” each party nominates an arbitrator and the two said nominees should

nominate a third arbitrator. In case either of the parties fails to nominate an

arbitrator or the two nominees does not appoint a third arbitrator in 30 days the

Chief Justice or any other institution may on a request by either party appoint the

arbitrator. Other provisions regarding the appointment of arbitrators have been

discussed at length under S.11 of the Act. Under 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

qualifications agreed to by the parties (S.12). 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. In case this award is also challenged, then the court will pass a

decree (S.13). Sections 14 and 15 lay down provisions relating to failure or

impossibility to act by the arbitrator and the termination of mandate and

substitution of arbitrator respectively.

Chapter IV of the Arbitration and Conciliation Act, 1996 deals with the

jurisdiction of arbitral tribunals. Section 16 clearly emphasizes 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
 39

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.

Interim measures regarding the dispute may be taken at the request of a party

unless otherwise agreed by the parties.

Chapter V deals with the basic conduct of an arbitral proceeding. Section 18

states that there should be equal treatment of parties and both parties must be

given equal opportunity to present the case. Section 19 lays down that the arbitral

tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence

Act, 1872. The parties are free to determine the procedure to be followed by the

arbitral tribunal in the course of proceedings. In 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 (S.19). The parties

are free to agree upon the place of arbitration or, if not determined, the power lies

with the tribunal. (S.20) Arbitration proceedings commence immediately after a

dispute is submitted for arbitration, unless agreed upon otherwise (S.21). 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. (S.22)

Statements of claim and defence are dealt with under Section 23:

(1) Within 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 required elements of those statements.

 40

(2) 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.

(3) Unless otherwise agreed by the parties, either party may amend or supplement

his 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.

Section 24 deals with hearing and written proceedings. It 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. It also says that

the parties should be given sufficient notice of any meeting and all documents

submitted must be shown to the other party.

Section 25 deals with the default of the party to claim or to respond or to

appear for the oral hearings. In 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 expert 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 examine the report,

documents with the expert, again unless otherwise agreed to by the parties. This is

dealt in Section 26.

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. Disregard 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. Section 27 elaborates on

the summonses and commissions for the submission of witnesses and summonses for

submission of documents.
 41

Making of arbitral award and termination of proceedings are written in the

chapter VI. In this Section 28 speaks on the rules applicable to the substance of

dispute. In other than the international commercial arbitration, the existing rules

of arbitration prevalent at that time are taken into account. In international

commercial arbitrations, the rules designated by the parties as applicable to the

substance of dispute, the substantive law of the countries and not their conflicts;

In the absence of any such specifications, the rules as circumstantially viable

and if the parties so agree, decide ex aequo et bono or as amiable compositor. In all

cases, the terms of the contract and the trade usages form a ground for decision

making by the arbitral tribunal. Emphasizing on the majority decision of the arbitral

tribunal in case there are more than one in the tribunal,

Section 29 spells that the presiding arbitrator would decide on the questions

of procedure.

Section 30 elaborates on the settlement, the conciliatory proceedings, the

terms agreed on, and if requested 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 Section

31. Section 31 lists the various aspects of, and the requirements for, the laying

down of the terms of the award of settlement, the date and place specifications,

the monetary details, the costs and expenses – everything pertaining to the

arbitration award.

Under Section 32 and 33, termination of proceedings and the corrections to

the award (made within 30 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. Once the award is

issued and if there need be any corrections or amendment, and if within 30 days, it

has been put forth to the arbitral tribunal, an amendment to the award could be

given as stated in Section 33.

 42

Chapter VII encompasses Section 34, which covers Recourse against Arbitral

Award. Recourse 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 India.

Section 35 and 36 under Chapter VIII deal with Finality and Enforcement of

arbitral awards. Section 35 makes it final and binding on the parties to adhere to

the arbitral award and Section 36 gives the arbitral award the power under the

code of Civil Procedure, 1908 and in the same manner as if it were a decree of

court.

Chapter XI covers Section 37 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 Supreme Court. Also, there is no second appeal provision.

CONCILIATION PROVISIONS:

The proceedings relating to CONCILIATION are dealt under sections 61 to

81 of Arbitration and Conciliation Act, 1996. This Act is aimed at permitting

Mediation 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.

Section 61 says that conciliation shall apply to disputes arising out of legal

relationship, whether contractual or not and to all proceedings relating thereto.

Unless any law excludes, these proceedings will apply to every such dispute while
 43

being conciliated. The parties may agree to follow any procedure for conciliation

other than what is prescribed under the 1996 Act. If any law certain disputes are

excluded from submission to conciliation, the third part will not apply.

According to Section 62, a party can take initiative and send invitation to

conciliate under this part after identifying the dispute. Proceedings shall commence

when the other party accepts the invitation. If the other party rejects, it stops

there itself. If other party does not reply within 30 days it can be treated as

rejection.

Conciliators
a. There will be only one conciliator, unless the parties agree to two or three.

b. Where there are two or three conciliators, then as a rule, they ought to act

jointly.

c. Where there is only one conciliator, the parties may agree on his name

d. Where there are two conciliators, each party may appoint one conciliator.

e. Where 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. But 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 63 and 64(1)

Section 64(2) and proviso of the new law lay down as under:

a. Parties may enlist the assistance of a suitable institution or person regarding

appointment of conciliator. The institution may be requested to recommend or to

directly appoint the conciliator or conciliators.

b. In recommending such appointment, the institutions etc. shall have regard to the

considerations likely to secure an "independent and impartial conciliator".

 44

c. In 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.

Stages:
In sections 65 to 73 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 request 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. If necessary, the parties may be asked to submit further

written statement and other evidence.

b. The conciliator shall assist the parties "in an independent and impartial manner",

in their attempt to reach an amicable settlement. See Section 67(1) of the new law.

c. The conciliator is to be guided by the principles of "objectivity, fairness and

justice". He is to give consideration to the following matters:

i) Rights and obligations of the parties;

ii) Trade usages; and

iii) Circumstances surrounding the dispute, including previous business

practices between the parties. [Section 67(2)].

d. He may, at any stage, propose a settlement, even orally, and without stating the

reasons for the proposal. [Section 67(4)].

e. He may invite the parties (for discussion) or communicate with them jointly or

separately. [Section 68].

f. Parties themselves must, in good faith, co-operate with the conciliator and supply

the needed written material, provide evidence and attend meetings, [Section 71].

g. If the conciliator finds that there exist "elements of a settlement, which may be

acceptable to the parties", then he shall formulate the terms of a possible

settlement and submit the same to the parties for their observation.
 45

h. On 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. If ultimately a settlement is reached, then the parties may draw and sign a

written settlement agreement. At their request, the conciliator can help them in

drawing up the same. [Sections 73(1) and 73(2)].

Legal Effect:

a. The settlement agreement signed by the parties shall be final and binding on the

parties. [ Section 73(1)].

b. The agreement is to be authenticated by the conciliator. [ Section 73(4)].

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. [ Section 74 read

with section 30]. The net result is that the settlement can be enforced as a decree

of court by virtue of section 36.

Role of the Parties

Under section 72, a party may submit to the conciliator his own suggestions

to the settlement of a dispute. He at his own initiative or on the conciliator’s

request may submit such suggestions.

Conciliator's Procedure
The net result of section 66, Section 67 (2) and Section 67(3) can be stated as

follows:

a. The conciliator is not bound by the Code of Civil Procedure or the Evidence Act.

b. The conciliator is to be guided by the principles of objectivity, fairness and

justice.

c. Subject to the above, he may conduct the proceedings in such manner, as he

considers appropriate, taking into account:

 46

i. The circumstances of the case;

ii. Wishes expressed by the parties;

iii. Need for speedy settlement.

Disclosure and Confidentiality

a. Factual information received by the conciliator from one party should be

disclosed to the other party, so that the other party can present his explanation, if

he so desires. But information given on the conditions of confidentiality cannot be

so disclosed.

b. Notwithstanding anything contained in any other law for the time being in force,

the conciliator and a party shall keep confidential "all matters relating to the

conciliation proceedings". This obligation extends also to the settlement agreement,

except where disclosure is necessary for its implementation and enforcement.

(Section 75).

Admissions.
In any arbitral or judicial proceedings (whether relating to the conciliated

dispute or otherwise), the party shall not rely on, or introduce as evidence

i. Views expressed 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. Proposal made by the conciliator; and

iv. The fact that the other party had indicated his willingness to accept a

settlement proposal (Section 81).

Parallel Proceedings
 47

During the pendency of conciliation proceedings, a party is debarred from

initiating arbitral or judicial proceedings on the same dispute, except "such

proceedings as are necessary for preserving his rights". (Section 77) (There is no

mention of arbitral or judicial proceedings, which are already initiated).

Conciliator Not to Act as Arbitrator

Unless otherwise agreed by the parties, the conciliator cannot act as

arbitrator, representative or counsel in any arbitral or judicial proceedings in

respect of the conciliated dispute. Nor can he be "presented" by any party as a

witness in such proceedings. (Section 80).

Costs and Deposit: The new law also contains provisions on certain other
miscellaneous matters, such as costs and deposit (Section 78 and 79).

LOK - ADALAT
Lok Adalat is a system of alternative dispute resolution developed in India. It

roughly means "People's court". India has had a long history of resolving disputes

through the mediation of village elders. The system of Lok Adalats is based on the
 48

principles of the Panch Parmeshwar of Gram Panchayats which were also proposed

by Mahatma Gandhi. The idea of Lok Adalat was mainly advocated by Justice P.N.

Bhagwati, a former Chief Justice of India. Lok Adalat is a non-adversarial system,

whereby mock courts (called Lok Adalats) are held by the State Authority, District

Authority, Supreme Court Legal Services Committee, High Court Legal Services

Committee, or Taluk Legal Services Committee. They are held periodically for

exercising such jurisdiction as they determine. These are usually presided over by

retired judges, social activists, or other members of the legal profession. The Lok

Adalats can deal with all Civil Cases, Matrimonial Disputes, Land Disputes,

Partition/Property Disputes, Labour Disputes etc., and compoundable criminal Cases.

The first Lok Adalat was held on March 14, 1982 in Gujarat.

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. Resolution of disputes is an essential characteristic

for societal peace, amity, comity and harmony and easy access to justice. It is

evident from the history that the function of resolving dispute has fallen upon the

shoulders of the powerful ones. With the evolution of modern States 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 State. The processual formalisation of

justice gave tremendous rise to consumption of time and high number of cases and

resultant heavy amount of expenditure. Obviously, this led to a search for an

alternative complementary and supplementary mechanism to the process of the

traditional civil court for inexpensive, expeditious 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 queue to get justice. The first Lok Adalat was held on March 14, 1982 at

Junagarh in Gujarat the land of Mahatma Gandhi. Maharashtra commenced the Lok
 49

Nyayalaya in 1984. Lok Adalats have been very successful in settlement of motor

accident claim cases, matrimonial/family disputes, labour disputes, disputes relating

to public services such as telephone, electricity, bank recovery cases and soon.

Some statistics may give us a feeling of tremendous satisfaction and

encouragement. Up to the middle of last year (2004), more than 200,000 Lok

Adalats have been held and therein more than16 million cases have been settled,

half of which were motor accident claim cases. More than one billion US dollars

were distributed by way of compensation to those who had suffered accidents. 6.7

million persons have benefited through legal aid and advice.

SCOPE AND OBJECT

The advent of Legal Services Authorities Act, 1987 gave a statutory status

to Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the

Constitution of India, contains various provisions for settlement of disputes

through Lok Adalat.

CASES SUITABLE FOR LOK - ADALAT

Lok Adalats have competence to deal with a number of cases like:·

Compoundable civil, revenue and criminal cases.· Motor accident compensation claims

cases· Partition Claims· Damages Cases· Matrimonial and family disputes· Mutation

of lands case· Land Pattas cases· Bonded Labour cases· Land acquisition disputes·

Bank’s unpaid loan cases· Arrears of retirement benefits cases· Family Court cases·

Cases which are not sub-judice.

ORGANISATION OF LOK ADALAT:

The State Authority and District Authority, Supreme Court Legal Services

Committee, High Court Legal Services Committee and Taluk Legal Services

Committee (mentioned in Section 19 of the Act) can organize Lok Adalats at such

intervals and Permanent Lok Adalats as may be deemed fit. Every Lok Adalat so
 50

organized shall consist of:(a) Serving or retired judicial officers,(b) Other persons,

as may be specified.

POWERS OF LOK ADALAT:

i) The Lok Adalat shall have the powers of a civil court under the Code of Civil

Procedure, 1908, while trying a suit, in respect of the following matters:- a) Power

to summon and enforce the attendance of any witness and to examine him/her on

oath.

b) Power to enforce the discovery and production of any document.

c) Power to receive evidence on affidavits,)

d) Power for requisitioning of any public record or document or copy thereof or

from any court.

e) Such other matters as may be prescribed.

ii) Every Lok Adalat shall have the power to specify its own procedure for the

determination of any dispute coming before it.

iii) All proceedings before a Lok Adalat shall be deemed to be judicial proceedings

within the meaning of Sections 193, 219 and 228 of IPC.

iv) Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec

195and Chapter XXVI of Cr.P.C.

PERMANENT LOK -- ADALAT:

In 2002, Parliament brought about certain amendments to the Legal Services

Authorities Act, 1987. The said amendment introduced Chapter VI-A with the

caption PRE LITIGATION CONCILIATION AND SETTLEMENT. Section 22-B

 51

envisages establishment of "PERMANENT LOK ADALATS (P L A)" at different

places for considering the cases in respect of Public Utility Services (PUS). The

Central or State Authorities may establish by notification, Permanent Lok Adalats,

for determining issues in connection to Public Utility Services.

Public Utility Services include:

(1) Transport service,

(2) Postal, telegraph or telephone services,

(3) Supply of power, light and water to public,

(4) System of public conservancy or sanitation,

(5) Insurance services and such other services as notified by the Central or

State Governments.

ADVANTAGES OF LOK -ADALAT

(i) Speedy Justice and saving from the Lengthy Court Procedures: - Lok 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 Evidence Act are not strictly followed while assessing the merits of the claim

by the Lok Adalat. Hence, Lok Adalats are also known as “People’s Festivals of

Justice”

(ii) Justice at no cost: - Lok Adalat is the only institutionalized mechanism of

dispute resolution in which the parties do not have to bear any expenses. There is

no court fee in Lok Adalat. If the case is already filed in the regular court, the fee

paid is refunded in the manner provided under the Court Fees Act if the dispute is

settled at the Lok Adalat.

(iii) Solving Problems of Backlog Cases: - In a Lok Adalat, if a compromise is

reached; an award is made and is binding on the parties. It is enforced as a decree

 52

of a civil court. An important aspect is that the award is final and cannot be

appealed, not even under Article 226 because it is a judgment by consent.

(iv) Maintenance of Cordial Relations: - The main thrust of Lok Adalats is

oncompromise. When no compromise is reached, the matter goes back to the court.

While conducting the proceedings, a Lok Adalat acts as a conciliator and not as an

arbitrator. Its role is to persuade the parties to hit upon a solution and help in

reconciling the contesting differences.

CONCLUSION

Lok 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,
 53

illiteracy etc. The Lok Adalat was a historic necessity in a country like India where

illiteracy dominated about all aspects of governance. The most desired function of

Lok Adalats may seem to be clearing the backlog, with the latest report showing 3

crore pending cases in Indian courts but the other functions cannot be ignored. The

concept of Lok Adalat has been a success in practice. Lok Adalats play a very

important role to advance and strengthen “equal access to justice”, the heart of the

Constitution of India, a reality. This Indian contribution to world ADR jurisprudence

needs to be taken full advantage of. Maximum number of Lok Adalats needs to be

organized to achieve the Gandhian Principle of Gram Swaraj and “access to justice

for all”.

During the last few years Lok Adalat has been found to be a successful tool

of alternate dispute resolution in India. It is most popular and effective because of

its innovative nature and inexpensive style. The system received wide acceptance

not only from the litigants, but from the public and legal functionaries in general.
 54

PRACTICAL SESSIONS

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. Presentation by Team No: 4

 55

(The Team: - Mohammed Harish.K.S., Lakshmi Mohan, Mini

Samuel, Madhusudhanan.S, Manu. J. Plamoottil & Mithun N.S.)

FACTS: - Ciril is married to Lincy aged 25 years in the year 2005. Later it

was recognized that Lincy is showing deviating behaviour in her in law’s house.

She ran away from house at night. Lincy 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 publicizing she is insane. She filed a petition for

divorce, maintenance and defamation claim. The matter is filed in the family

court which directed for mediation.

CAST:
Petitioner : Lincy (Lakshmi Mohan)

Respondent : Cyril (Mohammed Harish)

Counsel for Petitioner : Mini Samuel

Counsel for respondent : Madhusudhanan S

Mediators : Manu J Plamoottil & Mithun N S

Proceedings

Family Law:

Relevant Sections: - Section 5, Section 6 & Section 9 of the Family Court Act

Section 5 of the Family Court Act provides provision for the Government to

require the association of Social Welfare Organisation to hold the family Court to

arrive at a settlement. Section 6 of the Act provides for appointment of permanent

counsellors to effect settlement in the family matters. Further Section 9 of the

 56

Act imposes an obligation on the Court to make effort for settlement before taking

evidence in the case. In 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 extent the alternate

dispute resolution has got much recognition in the matter of settlement of family

disputes. Similar provision has been made in Order XXXII A of C.P.C. which deals

with family matters.

The mediators asked the petitioner to present her case

Statement s made by Petitioner

The following are the averments of the petitioner Lincy (Lakshmi Mohan).

 The Petitioner stated that she has married to Cyril (Mohammed Harish.K.S) on

20th May 2005 at the age of 25.

 The respondent is working as an excise Inspector and he was very much

affectionate, caring and a loving husband in the beginning.

 Slowly due to the ill advice of an unmarried sister, to whom he is very much

affectionate, started behaving indifferently.

 He comes most of the time in the late hours during night time.

 Still the petitioner likes the respondent and she believes that petitioner is also

having the same feeling.

 Hence the petitioner wants an amicable settlement and she is not pressing the

divorce.

Statements made by Respondent (Myself)

The following are the statements made by me against the statements levelled

against me by the petitioner.

 57

 I am working as inspector of Excise and have chaotic official duty.

 Sometimes comes late night but not intentional.

 I deny that my sister made any harassment of the petitioner.

 Before running away during the night hours from the house, she could have

contacted him at least through phone.

 I agree to settle the matter and likes the company of his wife along with him

and forgives her past conduct.

 I deny that I ever alleged the petitioner as insane.

 I in fact asked her about the medicines that she consumed during night time,

but the petitioner never clarifies about that.

Statements made by counsel for petitioner

The counsel for petitioner stated that the petitioner has filed the petition

for divorce, maintenance & defamation after a series of settlement efforts made

by elders of both the parties and religious leaders. But the respondent is adamant

in his stand. The petitioner has lost all hopes of a reunion and hence she filed the

petition. But later she realised that life is only for once and it has to be lived with

happiness, mutual trust and co operation. Hence she is ready for a settlement.

Statements made by counsel for respondent

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. Probably

the petitioner might have got the wrong impression about this as publishing her as

insane. As the petitioner herself expressed 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 (respondent) is also ready for an amicable settlement.

 58

Mediators asked both the parties for a meeting and put forward the conditions of

settlement.

The following are the terms & conditions of the mediation.

 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.

 Since both the parties agreed to cohabit together, there is no question of

maintenance arises.

 The respondent should make an apology the petitioner against the allegation

of the petitioner that he has publicized her insane.

AGREEMENT: - The above stated terms and conditions are accepted.

Lincy Cyril
(Lakshmi Mohan) (Mohammed Harish)

Counsel for Petitioner Counsel for Respondent

(Mini Samuel) (Madhusudhanan.S)

Mediators

(Manu J Plamoottil) (Mithun N S)

2. Problem settled by the

team 6
 59

The team members are

S/Sri. Sankar .P.Panicker,

Sajeer V A,
Sanal Kumar,
Sasidharan .M,
Shairaj and
Sanjeev Kumar

Problem No 6:

FACTS OF THE CASE: - Xaviour Latex Industries Ltd. Was

established under the Industrial Dispute Act which was closed down due to

non availability of raw materials. Due to the same reason many employees are

retrenched from the industry. The Bharatiya Mazdoor Sangh and INTUC

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 High Court which in further ordered for

mediation.

Petitioners:

1) Sri Sajeer V A – Rep BMS

2) Srfi Sanal Kumar – Rep INTUC

Counsel for Respondent Company:- Sanjeev Kumar

Sanjeev Kumar - Employee of the company

Shairaj : -
Mediator:- Sri Sankar. P. Panicker
 60

Proceedings
The mediator has allowed the both the petitioners to brief their cases.

The first petitioner alleged that reduction of expenditure was effected for

employees of their union alone and others are considered rather with a soft

corner.

The second Petitioner denied this and he repeated that employees

belonging to their union is victimised rather that the other union, But 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 explained the position

regarding the closing down of the company. He explained that the non

availability of the raw material, Latex, 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. It was told by the

counsel for the respondent that the retrenchment was not taken as part of

the penalizing act and on one occasion of the company getting back to better

fiscal situation, the retrenched employee’s 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.

 61

Following an extensive argument, they arrived the following agreement.

 A harmony shall be made in cooperation the parties.

 An end date is to be fixed for re-establish the workers.

 Compensation is to be paid to the workers as per harmony.

The mediator has ordered that the Mediation report will be sent to the

Honourable High Court of Kerala for information and further

accomplishment.

3. CASE ,TOOK NOTICE AT THE

PERMANANT LOK ADALATH AT
ERNAKULAM

The case was called as Application No OP 90/2015 dated 29.05.2015.

 62

The Complainant was M/s Katson Traders. It was represented by the

proprietor M.C.Jolly, Banerjee Road, High Court Junction.,Ernakulum, Kochi-682031.

The Respondent is the professional couriers, represented by the Director,

Jacob Vallanatt Road, Kochi-682018

An application was filed under section 22(c) of the Legal services authorities
act, 1987 by the applicant

The arguments heard are as following

1. The applicant is running business of courier service at Ernakulum which is the

only sources of earning bread.

3. The applicant entrusted with the respondent a consignment of electrical

goods to be sent back to the manufacturer ABB, Bangalore on 29.05.2013 from

whom it was purchased earlier. After satisfying all the conditions/requirements and

receiving ₹ 750/- as their charge the respondent accepted as per docket

No.038857206 dated 29.05.2013. The materials value of ₹ 17400/- as

declared by the applicant was also accepted.

4. 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.

5, 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 to

deliver it to the consignee due to any reason.

 63

6. 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.

7. Due to the failure on the part of the respondent to deliver the goods the

applicant has suffered a loss of ₹ 17,400/- 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 09.05.2014

to the respondent demanding them to deliver the consignment immediately to the

consignee or to compensate the applicant by paying ₹ 50,000/- being the value

of the consignment and the loss suffered by the applicant.

8. The notice was received by the respondent but they have neither sent any

reply nor complied with the request 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.

9. 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

expenses in this matter.

10. The applicant is legally entitled to get the consignment delivered or get it

returned or its value with the damage suffered. He 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 ₹ 50,000/- as total compensation under all the above heads.
 64

11. The cause of action for filling this application arose on and after the

respondent agreed to deliver the consignment on 29.05.2013 and on several

occasions when the applicant had informed the respondent about the

deficiency in service and on 09.05.2014 when the applicant sent a notice to the

respondent. All the cause of action occurred within the jurisdiction of this

Hon’ble Authority. The applicant and the respondent are residing and

functioning at Ernakulum within the jurisdiction of this Hon’ble Authority.

The applicant therefore humbly pray that this Hon’ble Forum may be pleased

to take this application by directing the respondent to pay to the applicant ₹

50,000/-(Fifty thousand) with interest at the rate of 12% annum till payment

with cost.

Defence of the respondent courier company

 65

IMPLEMENTATION OF ADR

The implementation of Alternative Dispute Resolution 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 Dispute Resolution 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 India way back in 1940 when the first Arbitration Act was passed.

However, due to a lot of loop-holes and problems in the legislation, the

provisions could not fully implement. However, many years later in 1996,

The Arbitration and Conciliation Act was passed which was based on the

UNCITRAL model, as already discussed in the previous section of the

paper. The amendments to this Act were also made taking into account

the various opinions of the leading corporates and businessmen who

 66

utilise this Act the most. Sufficient provisions have been created and

amended in the area of Lok Adalats in order to help the rural and

commoner segments to make most use of this unique Alternative

Dispute Resolution mechanism in India. Therefore, today the provisions

in India sufficiently provide for Alternative Dispute Resolution.

However, its implementation has been restricted to just large

corporates or big business firms. Lok Adalats, though a very old concept

in Indian Society, has not been implemented to its utmost level. People

still opt for litigation in many spheres due to a lot of drawbacks.

Provisions made by the legislators need to be utilised. This utilisation

can take place only when a definite procedure to increase the

implementation of ADR is followed. In order to have such an

implementation programme, it is necessary to analyse what the

problems are and rectify them.

Problems in implementation and suggestions:

Any implementation is usually confronted with problems. ADR is no

exception to this rule.

Some of the problems faced during implementation are enumerated as

under:

1) Attitudes: Although Indian law favours dispute resolution by

arbitration, Indian sentiment has always abhorred the finality attaching

to arbitral awards. A substantial volume of Indian 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
 67

every party to arbitration (domestic 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.” 27 In 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.

2) Lawyer and Client Interests: Lawyers and clients often have

divergent attitudes and interests concerning settlement. This may be a

matter of personality (one may be a fighter, the other a problem

solver) or of money

3) Legal Education: Law schools train their students more for conflict

than for the arts of reconciliation and accommodation and therefore

serve the profession poorly.

4) Impediments to settlement: Just as there may be problems in the

implementation techniques, there are impediments even after that

stage, i.e. during the time of settlement. Some of them are:

 Poor communication
 Different views of facts
 Different views of legal outcome if settlement is not

reached
 Issues of principle
 Constituency pressures
 Linkage to other disputes
 Multiple Parties: Where there are multiple parties, with

diverse interests, the problems are similar to those raised

by diverse constituencies and issue linkages.

 The “Jackpot” syndrome: An enormous barrier to settlement

often exists in those cases where the plaintiff is confident

 68

of obtaining in a Court a financial recovery far exceeding its

damages, and the defendant thinks it is unlikely

5) Ignorance

6) Corruption:

7) Though recourse to ADR as soon as the dispute arises may confer

maximum 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. However,

there is no guarantee that a final decision may be reached.

8) ADR procedures are said to be helpful in reaching a decision in an

amicable manner.

9) ADR 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.

10) Since the ADR proceedings do not require 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.

11) In ADR, the parties can choose their own rules or procedures for

dispute settlement. Arriving at them is the major hurdle.

12) ADR programmes are flexible 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.

 69

13) Flexibility and unconfirmed procedures make it extremely difficult

to quote and use precedents as directives.

14) ADR procedures were introduced to lessen the burden of the

courts. However, 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 exhaustive.

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. Driving ignorance away would in

fact, help in curtailing corruption too. The NGOs should put in their

efforts in providing a knowledge base to the needy.

The major lacuna in ADR is that it is not binding. One could still

appeal against the award or delay the implementation of the award.

“Justice delayed is justice denied.” The very essence of ADR 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.

 70

Rules 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. However, a general guideline and a

stipulated format would assist in bringing clarity to the formulation of

an ADR award. This would also help in cutting down ignorance and assist

in better negotiation.

Conclusion
Because justice is not executed speedily men persuade themselves

that there is no such thing as justice. Sharing the same sentiments,

Chief Justice Bhagwati said in his speech on Law Day, “I am pained to

observe that the judicial system in the country is on the verge of

collapse. These are strong words I am using but it is with considerable

anguish that I say so. Our 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 lawyers’ chambers can turn any person insane.

When justice is getting delayed, people take it granted that there

is no such thing as justice. Delivery 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 one’s right and

gambler’s 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 that too as quickly as

possible. As the problem of overburdened

The disputants want a decision and that too as quickly as possible.

As the problem of over burdened Courts has been faced all over the

world, new solutions were searched. Various Tribunals were the answer

to the search. In India, we have a number of Tribunals. However, 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

Dispute Resolution. It is a very practical suggestion, which if

implemented, can reduce the workload of Civil Courts by half. Thus, it

becomes the bounden duty of the Bar to take this onerous task of

implementing ADR on itself so as to get matters settled without going

into the labyrinth of judicial procedures and technicalities. The Bar

should be supported by the Bench in this herculean task so that no one

is denied justice because of delay. It is important here to mention the

statement made by John F. Kennedy in this respect: “Let us never

negotiate out of fear but let us never fear to negotiate.”

BIBLIOGRAPHY

BOOKS AND ARTICLES

1. Law of Arbitration ADR & Contract, D.P. MITTAL, II EDITION .

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2. Law of Arbitration and Conciliation Including other ADRs, S.K.

Chawla

3. Henry J Brown and Arthur L. Marriott, ADR Principles and

Practice, Sweet and Maxwell (in 2 Vol.)

4. National Alternative Dispute Resolution Advisory Council, ADR

Terminology: A Discussion Paper

5. M.A. Sujan, “Accountability of an Arbitrator” AIR 2002 Journal

6. G. Krishna Murthy and K.V. Satyanarayana, “ADR and Arbitration

Law in India”

7. D.M. Popat, “Law of Arbitration and Alternative Dispute

Resolution”

WEBSITES

1. http://en.wikipedia.org

2. http://www.britishcouncil.org/adr.doc

3. http://www.adrgroup.co.uk/history

4. http://www1.worldbank.org/publicsector/legal/adr

5. http://www1.worldbank.org/publicsector/legal/ADR

6. http://www.ielrc.org/content/

7. http://en.wikipedia.org/wiki/Arbitration

8. http://www.icadr.org/news-speechcjhc.html
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