Professional Documents
Culture Documents
GROUP 5
Academic Year
2007-2008
Semester I
Topic
ALTERNATIVE DISPUTE RESOLUTION (ADR)
Project Guide:
Prof. Ranjith Krishnan
For:
MBA
(MASTER IN BUSINESS ADMINISTRATION)
Submitted By:
COMPLAN GROUP
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CERTIFICATE
Project Guide
Prof. Ranjith Krishnan
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ACKNOWLEDGEMENT
WE express thanks to everybody who helped us by their
direct or indirect contribution have helped us in converting my
thought into reality
It is really impossible to acknowledge all the help us have
received in preparing this project. We take this opportunity to
express my gratitude towards my PROFESSOR RANJITH
KRISHNAN for her encouragement and guidance to prepare
project of ALTERNATIVE DISPUTE RESOLUTION (ADR)
FOR THE FIRST YEAR OF MASTER IN BUSINESS
ADMINISTRATION (MBA) specialization course in LN College
OF MANAGEMENT & TECHNOLOGY (2007-2008)
And, last but not least we would like to express our humble
thanks to friends and family member for their encouragement and
boosting which they have given to us.
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CONTENTS
Sr.No.
Topic
1.
2.
Introduction
Alternate Dispute Resolution- An Indian
Perspective
3.
An Overview
4.
5.
6.
7.
Impact Of ADR
Types of ADR Techniques
ADR Procedures
Key Elements to Implementing a Successful ADR
Page No.
1.
4.
6.
18.
20.
56.
58.
Program
8.
Conclusion
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Group Members
Sr.No
Name
1.
Amit Panwar
2.
Mazhar Khan
3.
Manoj Nangalia
4.
Shrikank Sharma
5.
Sarvesh Upadhayay
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INTRODUCTION
Did you know that 95 percent of all civil cases filed in court are
resolved without going to trial? Many people use processes other than
trial to resolve their disputes. These alternative processes, known as
Alternative Dispute Resolution or ADR, are typically less formal and
adversarial than trial, and many use a problem-solving approach to help
the parties reach agreement.
Although it is human nature to avoid conflict where possible, conflict is
not all bad. Conflict can be constructive and a catalyst for growth. It
also is inevitable, so the real question is how best to manage conflict. In
our world, litigation too often has been the primary game plan for
dealing with conflict. But the need for an alternative to litigation was
evident at least 150 years ago, when Abraham Lincoln said:
Discourage litigation because the nominal winner often is a loser, in
both time and money. It took a long time after President Lincolns
admonition before a new framework was constructed that recognizes
litigation is not, and should not be, inevitable. That framework is
alternative dispute resolution (ADR).
ADR is an umbrella term encompassing a range of processes that
provide alternatives to traditional litigation. ADR processes, in general, give
parties the opportunity to play a more active role in collaborating to create
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may be acceptable to the parties, the court may formulate the terms of a
possible settlement and refer the same for arbitration, conciliation, mediation
or judicial settlement.
Philosophy & Implementation in India
ADR is by no means a recent phenomenon in India, though it has been
organized and systematized, expressed in clearer terms, employed more
widely in dispute resolution in recent years than before. In earlier times,
disputes were peacefully decided by intervention of kulas (family or clan
assemblies), srenis (guilds of men following the same occupation), parishads
(assemblies of learned men who knew law) before the king came to
adjudicate on disputes. There were Nyaya panchayats at grass root level
before the advent of the British system of justice. Later on, Lok Adalats
(people's court) have provided speedy and inexpensive justice in both rural
and urban areas in India.
In India, laws relating to resolution of disputes have been amended from
time to time to facilitate speedy dispute resolution. The Judiciary has also
encouraged out of court settlements to alleviate the increasing backlog of
cases pending in the courts. To effectively implement the ADR mechanism,
organizations like ICA, ICADR were established, Consumer redressal
forums and Lok Adalats revived. The Arbitration Act, 1940 was repealed and
a new and effective arbitration system was introduced by the enactment of
the Arbitration and Conciliation Act, 1996.This law is based on the United
Nations Commission on International Trade Law (UNCITRAL) model law
on International Commercial Arbitration.
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The Legal Services Authorities Act, 1987 has also been amended from time
to time to endorse use of ADR methods. Section 89 of the Code of Civil
Procedure as amended in 2002 has introduced conciliation, mediation and
pre-trial settlement methodologies for effective resolution of disputes.
Mediation, Conciliation, Negotiation, Mini Trial, Consumer Forums, Lok
Adalats and Banking Ombudsman have already been accepted and
recognised as effective Alternative dispute resolution methodologies.
Abraham Lincoln puts the philosophy of Alternate Dispute Resolution
systems by declaring "discourage litigation; persuade your neighbours to
compromise whenever you can. Point-out to them how the normal winner is
often a loser in fees, expenses, cost and time." Further, the Constitution of
India has defined and declared the common goal for all of us as "to
secure to all the citizens of India Justice social, economic and political;
Liberty; Equality and Fraternity". ADR is a vehicle to achieve these
principles and objectives.
Alternative Dispute Resolution (ADR): An Overview
Alternative Dispute Resolution ("ADR") refers to any means of settling
disputes outside of the courtroom. ADR typically includes arbitration,
mediation, early neutral evaluation, and conciliation. As burgeoning court
queues, rising costs of litigation, and time delays continue to plague
litigants, more states have begun experimenting with ADR programs. Some
of these programs are voluntary; others are mandatory.
The two most common forms of ADR are arbitration and mediation.
Arbitration is a simplified version of a trial involving no discovery and
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Awareness of ADR through seminars, workshops and other means and its
supervised and systematic implementation should be encouraged so that its
effectiveness is proved and the message reaches a large section of
population. Also, apart from a good law that provides for resolution of
disputes, it is rudimentary to extend or create facilities, services, and
infrastructure that shall enable the implementation of such rules and lead to
effective ADR practice. Effective coordination both at operational and
structural level is a prerequisite of any successful ADR mechanism. Pre-trial
conciliation and fixing the targets for dispensation of justice are imperative
for successful implementation of any ADR mechanism. Proper training of
the Mediators, Negotiators, and Conciliators should be a mandatory
requirement for the understanding of the disputes/ cases and its efficient
handling. The specialized firms or organizations are certainly more
promising and reliable in this sphere and people choose to consult them and
engage their services for dispute resolution. There are some important
organizations making significant contribution in promoting ADR services in
India which need a special mention herein namely ICA and ICADR, the
Federation of Indian Chambers of Commerce and Industry, Indian Chamber
of Commerce, the Bengal Chambers of Commerce and Industry. The Indian
Council for Arbitration (ICA) established on April 15, 1965 provides
arbitration facilities for all types of domestic and international commercial
disputes and conciliation of international trade complaints received from
Indian
and
foreign
parties,
for
nonperformance
of
contracts
or
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FEATURES OF ADR
ADR is generally classified into at least four subtypes: negotiation,
mediation, collaborative law, and arbitration. (Sometimes a fifth type,
conciliation, is included as well, but for present purposes it can be regarded
as a form of mediation. See conciliation for further details.) The salient
features of each type are as follows:
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Advantages of ADR
ADR has its own set of advantages and disadvantages when compared
to court procedures, some of the potential advantages of using ADR:
Save Time: A dispute often can be settled or decided much sooner
with ADR; often in a matter of months, even weeks, while bringing a
lawsuit to trial can take a year or more.
Save Money: When cases are resolved earlier through ADR, the
parties may save some of the money they would have spent on
attorney fees, court costs, and experts fees.
Increase Control over the Process and the Outcome: In ADR,
parties typically play a greater role in shaping both the process and its
outcome. In most ADR processes, parties have more opportunity to
tell their side of the story than they do at trial. Some ADR processes,
such as mediation, allow the parties to fashion creative resolutions
that are not available in a trial. Other ADR processes, such as
arbitration, allow the parties to choose an expert in a particular field to
decide the dispute.
Preserve Relationships: ADR can be a less adversarial and hostile
way to resolve a dispute. For example, an experienced mediator can
help the parties effectively communicate their needs and point of view
to the other side. This can be an important advantage where the parties
have a relationship to preserve.
Increase Satisfaction: In a trial, there is typically a winner and a
loser. The loser is not likely to be happy, and even the winner may not
be completely satisfied with the outcome. ADR can help the parties
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find win-win solutions and achieve their real goals. This, along with
all of ADRs other potential advantages, may increase the parties
overall satisfaction with both the dispute resolution process and the
outcome.
Improve Attorney-Client Relationships: Attorneys may also benefit
from ADR by being seen as problem-solvers rather than combatants.
Quick, cost-effective, and satisfying resolutions are likely to produce
happier clients and thus generate repeat business from clients and
referrals of their friends and associates.
Flexibility with rules and procedures: The procedures may be
designed to suit the dispute, rather than follow the "one size fits all"
Rules of Court. A mediator assists the parties to negotiate their own
solution. An arbitrator is not bound by the Rules of Court, but must
allow the parties an equal and fair opportunity to present their cases,
and make a decision in accordance with the law governing the dispute.
Choice of decision maker: The parties choose their mediator or
arbitrator. It generally makes sense to appoint someone who knows
the business or has other relevant expertise. The parties can have an
experienced professional appointed by them mutually or an
autonomous body such as Indian Council of Arbitration, the
International Chambers of Commerce (ICC) etc.
Certainty and enforceability: An arbitral award is final and binding,
and enforceable as an Order of the Court.
Relationship: Mediation and Arbitration are less damaging to
business relationships than litigation in Courts. The procedures are
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IMPACT OF ADR
In a celebrated case, there was a dispute regarding copyright of a
photograph between a person who conceptualized and arranged for the
photograph shoot (the arranger) and the photographer who actually took
the photograph. The two went into litigation and it took years for the matter
to get resolved. His verdict was in favor of the arranger, but by then, the
photograph lost its relevance as it was taken for a specific purpose. Had this
dispute been referred to ADR, it would have been resolved much faster and
would have involved less costs and most importantly the photograph would
not have lost its relevance. For years for which the matter was in litigation,
the copyright period of the photograph was running simultaneously and this
benefit of the copyright to the author was lost. Thus, this case demonstrates
that ADR can expedite resolution of dispute and prevention of products
and/or services from losing its relevance and marketability.
ADR aims to prevent anti monopolistic activities. Lets consider an
illustration. There is dispute between a large company, which is financially
sound against a company which is financially not as sound as the large
company. It is easy for the large company to bear the rising costs of
litigation, however, it would be back breaking for the smaller company to
fight the litigation, as these litigation costs add up to its bottom line. In this
scenario, the financially stronger company tends to have an upper hand, as
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its able to afford litigation, and more often than not, will be interested in
prolonging the case in court, so that smaller company with efflux of time
and also due to rising costs of litigation will tend to lose out. Now, once this
happens, and the smaller company can virtually be wiped out of the
market, due to the reasons aforesaid. Thus, the larger company could get
inclined towards creating a monopoly and take advantage of its financials
and the situation.
ADR can considerably solve this problem, as through ADR, the matter
will be disposed off much sooner than it would do by litigation and it would
work out to be much cheaper also.
Similarly, ADR is very effective for trans-border disputes. This is all
the more because, the parties to the dispute will belong to different laws and
in litigation it becomes difficult to decide which law will apply to resolve the
dispute. Many a times even the concept of Renvoi is not able to give a
favorable solution to such issues of law. In such cases, by way of ADR and
by using principals such as lex mercatori a favorable solution to the dispute
can be arrived at.
When disputes are in litigation, money gets locked in this process,
which has an adverse affect on the economy. Thus, in view of the aforesaid
reasoning, if disputes are referred to ADR, they will not only be resolved
faster, but at much lower costs and could prevent locking of working capital
of disputing parties. For example, I was involved in arbitration (in which the
firm I work was the Counsel for the Claimant) where stakes were high and
involved voluminous documentation. Had this dispute been referred to
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Mediation
Ombuds
Peer Review
Fact Finding
Early Neutral Evaluation
Settlement Conference
Facilitation
Minitrial
Conciliation
Arbitration
1. Mediation
In mediation, an impartial person called a mediator helps the parties try to
reach a mutually acceptable resolution of the dispute. The mediator does not
decide the dispute but helps the parties communicate so they can try to settle
the dispute themselves. Mediation leaves control of the outcome with the
parties.
Mediation is presently the most popular form of ADR in use by agencies in
employment-related disputes. Mediation is the intervention in a dispute or
negotiation of an acceptable impartial and neutral third party, who has no
decision-making authority. The objective of this intervention is to assist the
parties in reaching a mutually-acceptable resolution of the issues in dispute.
A mediator makes primarily procedural suggestions regarding how parties
can reach agreement. Occasionally, a mediator may suggest some
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The mediator runs the process and the people in dispute decide what
they want to talk about
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The people in dispute work out a solution with the help of the
mediator
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time. Other panels may be formed on an ad hoc basis through some selection
process initiated by the employee, e.g., blind selection of a certain number of
names from a pool of qualified employees and managers.
4. Fact Finding
Fact Finding is the use of an impartial expert (or group) selected by the
parties, by the agency, or by an individual with the authority to appoint a fact
finder, in order to determine what the "facts" are in a dispute. The fact finder
may be authorized only to investigate or evaluate the matter presented and
file a report establishing the facts in the matter. In some cases, s/he may be
authorized to issue either a situation assessment or a specific procedural or
substantive recommendation as to how a dispute might be resolved. If used
as an ADR technique, the findings of fact must remain confidential.
5. Early Neutral Evaluation
In neutral evaluation, each party gets a chance to present the case to a neutral
person called an evaluator. The evaluator then gives an opinion on the
strengths and weaknesses of each partys evidence and arguments and about
how the dispute could be resolved. The evaluator is often an expert in the
subject matter of the dispute. Although the evaluators opinion is not
binding, the parties typically use it as a basis for trying to negotiate a
resolution of the dispute.
Early Neutral Evaluation uses a neutral or an impartial third party to provide
an objective evaluation, sometimes in writing, of the strengths and
weaknesses of a case. Under this method, the parties will usually make
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When is it used?
Facilitation can be used to avoid a dispute by providing a forum for different
points of view to be discussed. It can be used for complex planning and
environmental matters.
It can also be used where people are having difficulty working together, e.g.
in:
Clubs
Body corporates
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the dispute and can advise the parties what their rights and obligations are.
Discussions are confined to the subject matter of the dispute.
How does it work?
It is confidential
Conciliation can use for disputes where you need to uphold your rights, or
need advice on what your rights and responsibilities are, e.g.:
Work cover
Equal Opportunity
Consumer disputes
10.
Negotiation
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Property
Insurance
Family disputes
Construction
Commercial recoveries
However, in India, cases involving insolvency, matrimony, criminal
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As we have seen the different technique of adr. Let us see the most
important adr technique which is used worldwide. Those are mediation &
arbitration which are discussed in detail below:-
MEDIATION
Purpose
Case Selection/Objection
Listing of Mediators: Commission Registry of mediators
Selection of Mediators
Qualifications of Mediators
Mediation Costs
Mediation Procedure
Rules of Evidence
Discovery
Sanctions
Confidentiality
Purpose
Mediation under this section involves the confidential process by which a
neutral, acting as a mediator, selected by the parties or appointed by the
court, assists the litigants in reaching a mutually acceptable agreement. The
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Qualifications of Mediators
(A) Civil Cases: Educational Qualifications.
(1) Subject to approval by the court in which the case is pending, the
parties may agree upon any person to serve as a mediator.
(2) In civil cases, a registered mediator must be an attorney in good
standing with the Supreme Court of Indiana.
(3) To register as a civil mediator, a person must meet all the
requirements of this rule and must have either: (1) taken at least forty
(40) hours of Commission approved civil mediation training in the three
(3) years immediately prior to submission of the registration application,
or (2) completed forty (40) hours of Commission approved civil
mediation training at any time and taken at least six (6) hours of
approved Continuing Mediation Education in the three (3) years
immediately prior to submission of the registration application.
(4) However, a person who has met the requirements of A.D.R. Rule
2.5(B)(2)(a), is registered as a domestic relations mediator, and by
December 31 of the second full year after meeting those requirements
completes a Commission approved civil crossover mediation training
program may register as a civil mediator.
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(b)
(c)
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(e)
(f)
(g)
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(F) Procedure for Resolving Disputes. Any person who disagrees with a
decision of the Commission and is unable to resolve the disagreement
informally, may petition the Commission for a resolution of the dispute.
Petitions pursuant to this Section shall be considered by the Commission at
its next regular meeting, provided that the petition is received by the
Commission at least ten (10) business days before such meeting. The person
filing the petition shall have the right to attend the Commission meeting at
which the petition is considered and to present relevant evidence and
arguments to the Commission. The rules of pleading and practice in civil
cases shall not apply, and the proceedings shall be informal as directed by
the Chair. The determination of the Commission shall be final subject to
appeal directly to the Supreme Court.
(G) Confidentiality. Filings with the Commission shall be confidential.
These filings shall not be disclosed except in furtherance of the duties of the
Commission or upon the request, by the mediator involved, or as directed by
the Supreme Court.
(H) Rules for Determining Education Completed.
(1) Formula. The number of hours of continuing mediation education
completed in any course by a mediator shall be computed by:
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(a)
(b)
(c)
(2) Instruction Time Defined Instruction time is the amount of time when a
course is in session and presentations or other educational activities are in
progress. Instruction time does not include time spent on:
(a)
Introductory remarks;
(b)
Breaks; or
(c)
Business meetings
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Mediation Costs
Absent an agreement by the parties, including any guardian ad litem, court
appointed special advocate, or other person properly appointed by the court
to represent the interests of any child involved in a domestic relations case,
the court shall set an hourly rate for mediation and determine the division of
such costs by the parties. The costs should be predicated on the complexity
of the litigation, the skill levels needed to mediate the litigation, and the
litigants' ability to pay. The mediation costs shall be paid within thirty (30)
days after the close of each mediation session.
Mediation Procedure
(A) Advisement of Participants. The mediator shall:
(1) Advise the parties of all persons whose presence at mediation
might facilitate settlement; and
(2) In child related matters, ensure that the parties consider fully the
best interests of the children and that the parties understand the
consequences of any decision they reach concerning the children.
(B) Mediation Conferences.
(1) The parties and their attorneys shall be present at all mediation
sessions involving domestic relations proceedings unless otherwise
agreed. At the discretion of the mediator, non-parties to the dispute
may also be present.
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Confidentiality
Mediation shall be regarded as settlement negotiations as governed by
Ind.Evidence Rule 408. For purposes of reference, Evid.R. 408 provides as
follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept a valuable consideration in
compromising or attempting to compromise a claim, which was disputed
as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. Compromise negotiations encompass
alternative dispute resolution.
Mediation sessions shall be closed to all persons other than the parties
of record, their legal representatives, and other invited persons.
Mediators shall not be subject to process requiring the disclosure of
any matter discussed during the mediation, but rather, such matter
shall be considered confidential and privileged in nature. The
confidentiality requirement may not be waived by the parties, and an
objection to the obtaining of testimony or physical evidence from
mediation may be made by any party or by the mediators.
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ARBITRATION
Agreement to Arbitrate
Case Status During Arbitration
Assignment of Arbitrators
Arbitration Procedure
Sanctions
Agreement to Arbitrate
At any time fifteen (15) days or more after the period allowed for a
peremptory change of venue under Trial Rule 76(B) has expired, the parties
may file with the court an agreement to arbitrate wherein they stipulate
whether arbitration is to be binding or non-binding, whether the agreement
extends to all of the case or is limited as to the issues subject to arbitration,
and the procedural rules to be followed during the arbitration process. Upon
approval, the agreement to arbitrate shall be noted on the Chronological
Case Summary of the Case and placed in the Record of Judgments and
Orders for the court.
Case Status during Arbitration
During arbitration, the case shall remain on the regular docket and trial
calendar of the court. In the event the parties agree to be bound by the
arbitration decision on all issues, the case shall be removed from the trial
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calendar. During arbitration the court shall remain available to rule and assist
in any discovery or pre-arbitration matters or motions.
Assignment of Arbitrators
Each court shall maintain a listing of lawyers engaged in the practice of law
in the State of Indiana who are willing to serve as arbitrators. Upon
assignment of a case to arbitration, the plaintiff and the defendant shall,
pursuant to their stipulation, select one or more arbitrators from the court
listing or the listing of another court in the state. If the parties agree that the
case should be presented to one arbitrator and the parties do not agree on the
arbitrator, then the court shall designate three (3) arbitrators for alternate
striking by each side. The party initiating the lawsuit shall strike first. If the
parties agree to an arbitration panel, it shall be limited to three (3) persons.
If the parties fail to agree on who should serve as members of the panel, then
each side shall select one arbitrator and the court shall select a third. When
there is more than one arbitrator, the arbitrators shall select among
themselves a Chair of the arbitration panel. Unless otherwise agreed between
the parties, and the arbitrators selected under this provision, the Court shall
set the rate of compensation for the arbitrator. Costs of arbitration are to be
divided equally between the parties and paid within thirty (30) days after the
arbitration evaluation, regardless of the outcome. Any arbitrator selected
may refuse to serve without showing cause for such refusal.
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Arbitration Procedure
(A) Notice of Hearing. Upon accepting the appointment to serve, the
arbitrator or the Chair of an arbitration panel shall meet with all attorneys of
record to set a time and place for an arbitration hearing. (Courts are
encouraged to provide the use of facilities on a regular basis during times
when use is not anticipated, i.e. jury deliberation room every Friday
morning.)
(B) Submission of Materials. Unless otherwise agreed, all documents the
parties desire to be considered in the arbitration process shall be filed with
the arbitrator or Chair and exchanged among all attorneys of record no later
than fifteen (15) days prior to any hearing relating to the matters set forth in
the submission. Documents may include medical records, bills, records,
photographs, and other material supporting the claim of a party. In the event
of binding arbitration, any party may object to the admissibility of these
documentary matters under traditional rules of evidence; however, the
parties are encouraged to waive such objections and, unless objection is filed
at least five (5) days prior to hearing, objections shall be deemed waived. In
addition, no later than five (5) days prior to hearing, each party may file with
the arbitrator or Chair a pre-arbitration brief setting forth factual and legal
positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall
be served upon the opposing party or parties. The parties may in their
Arbitration Agreement alter the filing deadlines. They are encouraged to use
the provisions of Indiana's Arbitration Act (IC 34-57-1-1 et seq.) and the
Uniform Arbitration Act (IC 34-57-2-1 et seq.) to the extent possible and
appropriate under the circumstances.
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(C) Discovery. Rules of discovery shall apply. Thirty (30) days before an
arbitration hearing, each party shall file a listing of witnesses and
documentary evidence to be considered. The listing of witnesses and
documentary evidence shall be binding upon the parties for purposes of the
arbitration hearing only. The listing of witnesses shall designate those to be
called in person, by deposition and/or by written report.
(D) Hearing. Traditional rules of evidence need not apply with regard to the
presentation of testimony. As permitted by the arbitrator or arbitrators,
witnesses may be called. Attorneys may make oral presentation of the facts
supporting a party's position and arbitrators are permitted to engage in
critical questioning or dialogue with representatives of the parties. In this
presentation, the representatives of the respective parties must be able to
substantiate their statements or representations to the arbitrator or arbitrators
as required by the Rules of Professional Conduct. The parties may be
permitted to demonstrate scars, disfigurement, or other evidence of physical
disability. Arbitration proceedings shall not be open to the public.
(E) Confidentiality. Arbitration proceedings shall be considered as
settlement negotiations as governed by Ind.Evidence Rule 408. For purposes
of reference, Evid.R. 408 provides as follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept a valuable consideration in
compromising or attempting to compromise a claim, which was disputed
as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
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(F) Arbitration Determination. Within twenty (20) days after the hearing,
the arbitrator or Chair shall file a written determination of the arbitration
proceeding in the pending litigation and serve a copy of this determination
on all parties participating in the arbitration. If the parties had submitted this
matter to binding arbitration on all issues, the court shall enter judgment on
the determination. If the parties had submitted this matter to binding
arbitration on fewer than all issues, the court shall accept the determination
as a joint stipulation by the parties and proceed with the litigation. If the
parties had submitted the matter to nonbinding arbitration on any or all
issues, they shall have twenty (20) days from the filing of the written
determination to affirmatively reject in writing the arbitration determination.
If a nonbinding arbitration determination is not rejected, the determination
shall be entered as the judgment or accepted as a joint stipulation as
appropriate. In the event a nonbinding arbitration determination is rejected,
all documentary evidence will be returned to the parties and the
determination and all acceptances and rejections shall be sealed and placed
in the case file.
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Sanctions
Upon motion by both party and hearing, the court may impose sanctions
against any party or attorney who fails to comply with the arbitration rules,
limited to the assessment of arbitration costs and/or attorney fees relevant to
the arbitration process.
ADR Procedures
ADR procedures can be broadly divided into two categories namely,
adjudicatory and non adjudicatory. The adjudicatory procedures such as
arbitration and binding expert determination lead to a binding ruling that
decides the case. The non-adjudicatory procedures contribute to resolution
of disputes by agreement of the parties without adjudication such as
Negotiation, Mediation and Conciliation. Mediation is different from
Conciliation only in that in the former the neutral third party plays a more
active role in putting forward his own suggestions for the settlement of the
dispute. A brief description of few ADR procedures widely used is as
follows:
Negotiation : A non-binding procedure in which discussions between the
parties are initiated without the intervention of any third party with the
object of arriving at a negotiated settlement of the dispute.
Conciliation Mediation: A non-binding procedure in which an impartial
third party, the conciliator/mediator, assists the parties to a dispute in
reaching a mutually satisfactory and agreed settlement of the dispute.
MBA (FULL TIME)
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panel that renders its decision by awarding one and rejecting the other claim.
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CONCLUSION
The practical implementation of amicable settlements has produced
good results. Many cases have actually been solved through ADR. There is
no doubt that mediation and arbitration are the quickest and possibly the
most reliable ways for resolving commercial disputes, especially those
relating to international trade, involving technological disputes, commercial
recoveries and so on. I also believe that a partial waiver of a partys rights or
interests in any settlement process is generally better for the party than
litigation before a court of law regardless of the possibility of winning the
case through court.
ADR has an impact on economy and commerce, which in turn affects
individuals as, wells as corporate entities. Thus, options to litigation should
be considered as part of a companys policy. Arbitration and mediation as
alternatives to litigation make good business sense and that the inclusion of
arbitration and mediation clauses in their contracts will help to ensure that
disputes will be dealt with in a timely and cost effective way.
It would not be out of place to discuss, briefly, the importance of
dispute management, which is the need of the hour. If companies take more
efforts for using more precisely drafted contracts, take better measures to
ensure that their relationship and reputation are not harmed and all possible
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disputes are resolved well in time, may be across the table, then not only will
ADR succeed in its objective, but also the corporates will benefit as it will
reduce litigation costs, it will save time from that litigation and will also help
in preserving relationships.
As is said in the practical philosophy of law that lawyers are what their cases
have made them, so goes the addendum that a legal system is venerated as it
has been handled and managed in course of time. Then only a legacy is left
for the future to find it sufficiently germane to be accepted as a proposition
of inheritance. The law and legal system should appeal the reasons of
people, is not a legal principle but a common sense observation of fact. It is
this spirit that has led to the evolution of ADR Mechanisms for the
dispensation of justice with efficacy and steadfastness!
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