1

-ALTERNATIVE DISPUTE RESOLUTION-INTRODUCTIONThe 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
clich justice delayed is justice denied. The legal proceedings in a court of law get
stretched down the years consuming oodles of money and which ultimately leads to
disruption in business and career.
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

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.

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:

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.

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

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

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).

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

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 ICCs 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

12

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

13

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

15

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.

18

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:

21

Personal attributespatience, empathy, intelligence, optimism and flexibility

Qualificationsknowledge 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

23

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

25

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

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 Honble 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, lawyers

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
litigants 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 Honble 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 partys 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 conciliators
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

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
Banks 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 Peoples 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 laws 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
(Lakshmi Mohan)

Cyril
(Mohammed Harish)

Counsel for Petitioner

(Mini Samuel)

Counsel for Respondent

(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 employees 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/-

declared by the applicant was also

as

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

look into the matter

5,

and deliver the consignment immediately.

The applicant believed the words of the respondent and waited in the belief

that the
The

letters. The employee of the respondent agreed to

consignment would be delivered by the respondent as agreed by them.

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

8.

applicant.

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

the mental pain and

claiming compensation for

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

deficiency in service and on

informed the respondent about the

09.05.2014 when the applicant sent a notice to the

respondent. All the cause of action

occurred within the jurisdiction of this

Honble Authority. The applicant and the

respondent

functioning at Ernakulum within the jurisdiction of this

are

residing

and

Honble Authority.

The applicant therefore humbly pray that this Honble 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 ones right and
gamblers instinct in a litigant due to multiplicity of appeals and
revisions provided in law.

71

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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