TYPES OF ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION

Alternative dispute resolution is the procedure for settling disputes without litigation such as
arbitration, mediation,or negotiation.(ADR) procedure are less costly and more expeditious.
ADR is now an integral segment of modern practice in India. In order to accord statutory
recognition to ADR including mediation, the Law Commission in its 129th Report made
recommendation for making it obligatory for the Court to refer the dispute to ADR including
mediation for settlement.

The ADR framework in India finds statutory recognition in a two manner:

1) Under the Arbitration and Conciliation Act 1996 and
2) Under Section 89 of Code of Civil Procedure 1908 read with Order X, Rules 1A, 1B and 1C

As a part of the scheme under Section 89 of the Code, various High Courts in India framed their
own rules with respect to mediation and conciliation.The mediations and/or conciliations
happening under the aegis of the respective High Courts resort to the said rules for proper
implementation of the ADR methods.
As can be seen from the two statutes, the Act covers (a) arbitration and (b) conciliation
whereas the Code is wider in its scope and covers five kinds of ADR mechanisms one
adjudicatory – arbitration and four non-adjudicatory - (a) conciliation, (b) judicial settlement,
(c) settlement through Lok Adalat and (d) mediation.

In the modern techniques of dispute resolution of commercial conflicts, emphasis has drifted
from litigation to arbitration. As things are never static, emphasis is further sliding from
arbitration to alternative dispute resolution procedures. Apart from arbitration, which is primarily
dealt with under the Act, the other forms of ADR which are being seen as popular choices
include ‘mediation’]and ‘conciliation’. Whilst arbitration is a more formal adjudicatory process,
conciliation offers greater flexibility to the parties as it is facilitative, non-adjudicatory and yet
binding if the parties reach a settlement. Conciliation may play a pivotal role, particularly in
settling commercial disputes. It is more economic, convenient, speedy and less formal mode of
dispute resolution.

BENEFITS OF ADR: Alternative dispute resolution (ADR) gives parties in dispute the
opportunity to work through disputed issues with the help of a neutral third party. It is generally
faster and less expensive than going to court.
When used appropriately, ADR can:
Save a lot of time by allowing resolution in weeks or months, compared to court, which can take
years.
Save a lot of money, including fees for lawyers and experts, and work time lost.
Put the parties in control (instead of their lawyers or the court) by giving them an opportunity
to tell their side of the story and have a say in the final decision.
Focus on the issues that are important to the people in dispute instead of just their legal rights
and obligations
Help the people involved come up with flexible and creative options by exploring what each of
them wants to achieve and why.
Preserve relationships by helping people co-operate instead of creating one winner and one
loser.
Produce good results, for example settlement rates of up to 85 per cent.
Reduce stress from court appearances, time and cost.
Keep private disputes private - only people who are invited can attend an ADR session, unlike
court, where the proceedings are usually on the public record and others, including the media,
can attend.
Lead to more flexible remedies than court, for example by making agreements that a court
could not enforce or order (for example a change in the policy or practice of a business).
Be satisfying to the participants, who often report a high degree of satisfaction with ADR
processes.
Give more people access to justice, because people who cannot afford court or legal fees can
still access a dispute resolution mechanism.
MEDIATION
Mediation is a voluntary process in which an impartial person (the mediator) helps with
communication and promotes reconciliation between the parties which will allow them to reach a
mutually acceptable agreement. Mediation often is the next step if negotiation proves
unsuccessful.

The Process: The mediator manages the process and helps facilitate negotiation between the
parties. A mediator does not make a decision nor force an agreement. The parties directly
participate and are responsible for negotiating their own settlement or agreement.
Rules. The parties or their attorneys have an opportunity to explain their view of the dispute.
Mediation helps each side better understand the other’s point of view. Sometimes the mediator
will meet separately with each side. Separate “caucusing” can help address emotional and factual
issues as well as allow time for receiving legal advice from your attorney. Mediations are
generally held in the office of the mediator or other agreed location.
Agreements can be creative. You could reach a solution that might not be available from a court
of law. For example, if you owe someone money but don’t have the cash, rather than be sued and
get a judgment against you, settlement options could include trading something you have for
something the other wants. If an agreement is reached, it will generally be reduced to writing.
Most people uphold a mediated agreement because they were a part of making it. It can become
a contract and be enforceable. If there is no agreement, you have not lost any of your rights and
you can pursue other options such as arbitration or going to trial.

When and How Mediation Is Used: When you and the other person are unable to
negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator
who will help you and the other party explores ways of resolving your differences. You may
choose to go to mediation with or without a lawyer depending upon the type of problem you
have. You may always consult with an attorney prior to finalizing an agreement to be sure that
you have made fully informed decisions and that all your rights are protected. Sometimes
mediators will suggest that you do this. Mediation can be used in most conflicts ranging from
disputes between consumers and merchants, landlords and tenants, employers and employees,
family members in such areas as divorce, child custody and visitation rights, eldercare and
probate as well as simple or complex business disputes or personal injury matters. Mediation can
also be used at any stage of the conflict such as facilitating settlements of a pending lawsuit.
Attorneys and other professionals provide private mediation for a fee. If you have an attorney,
you can work together to select a mediator of your choice. You may want a mediator who is
knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator
in the first instance or if Early Settlement mediation has not resulted in a resolution of your
dispute. You may also find mediators or mediation services listed in the telephone directory or
available on lists provided by some courts or private professional organizations. When selecting
a mediator, you should always check their credentials and get references. Mediators qualified
under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet
statutory standards of training and experience.

Who Provides This Service: Public mediation services are available through Early
Settlement Regional Centers located statewide. A list of the regional centers can be found online
.
Characteristics of Mediation
 Promotes communication and cooperation
 Provides a basis for you to resolve disputes on your own
 Voluntary, informal and flexible
 Private and confidential, avoiding public disclosure of personal or business problems
 Can reduce hostility and preserve ongoing relationships
 Allows you to avoid the uncertainty, time, cost and stress of going to trial
 Allows you to make mutually acceptable agreements tailored to meet your needs
Can result in a win-win solution, thus Negotiation is the most basic means of settling differences.
It is back-and-forth communication between the parties of the conflict with the goal of trying to
find a solution.

CONCLUSION
The interpretation accorded by the Supreme Court to Section 89(2) (c) makes mediation a non-
binding, non-adjudicatory dispute resolution process, where a neutral third party renders
assistance to the parties in conflict to arrive at a mutually agreeable solution. To put it
differently, it refers to a voluntary and flexible negotiated conflict resolution process with the
assistance of experts. It involves a structured negotiation where the mediator listens to the
parties, ascertains the facts and circumstances as also the nature of the grievance, conflict or
dispute, encourages the parties to open up to identify the causes therefore, creates a conducive
atmosphere to enable the parties to explore various alternatives and ultimately facilitates the
parties to find a solution or reach a settlement. In short, it is a professionally and scientifically
managed negotiation process.

CASE
The confidential nature of the mediation proceedings was upheld by the Supreme Court in its
decision in Moti Ram v. Ashok Kumar (2011) 1 SCC 466 where it observed that in the event
the mediation is successful the mediator should only send the agreement executed between the
parties to the Court and not mention what actually transpired in the proceedings. However, if the
mediation is unsuccessful, the mediator is expected to send only a statement to the court
conveying the failure of the mediation proceedings.

The interpretation accorded by the Supreme Court to Section 89(2) (c) makes mediation a non-
binding, non-adjudicatory dispute resolution process, where a neutral third party renders
assistance to the parties in conflict to arrive at a mutually agreeable solution. To put it
differently, it refers to a voluntary and flexible negotiated conflict resolution process with the
assistance of experts. It involves a structured negotiation where the mediator listens to the
parties, ascertains the facts and circumstances as also the nature of the grievance, conflict or
dispute, encourages the parties to open up to identify the causes therefore, creates a conducive
atmosphere to enable the parties to explore various alternatives and ultimately facilitates the
parties to find a solution or reach a settlement. In short, it is a professionally and scientifically
managed negotiation process.
NEGOTIATION: Negotiation has been defined as any form of direct or indirect
communication whereby parties who have opposing interests discuss the form of any joint action
which they might take to manage and ultimately resolve the dispute between the parties and
besides this, Negotiations may be used to resolve an already-existing problem or to lay the
groundwork for a future relationship between two or more parties
.
The Process: You may negotiate directly with the other person. You may hire an attorney to
negotiate directly with the other side on your behalf. There are no specific procedures to follow -
you can determine your own - but it works best if all parties agree to remain calm and not talk at
the same time. Depending on your situation, you can negotiate in the board room of a big
company, in an office or even in your own living room.
Negotiation allows you to participate directly in decisions that affect you. In the most successful
negotiations, the needs of both parties are considered. A negotiated agreement can become a
contract and be enforceable.

When and How Negotiation Is Used: Most people negotiate every day. In some
circumstances you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is
the first method of choice for problem-solving and trying to reach a mutually acceptable
agreement. If no agreement is reached, you may pursue any of the other options suggested here.
This process can be appropriately used at any stage of the conflict - before a lawsuit is filed,
while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.

Characteristics of Negotiation:
 Voluntary
 Private and confidential
 Quick and inexpensive
 Informal and unstructured
 Parties control the process, make their own decisions and reach their own agreements (no
third party decision maker)
 Negotiated agreements can be enforceable
 Can result in a win-win solution
ARBITRATION
Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for
decision. And who is basically appointed by the consent of the both the parties of the dispute
under sec 11 of the Arbitration and Conciliation Act,1996. In general arbitration is of five types
i.e. Ad-hoc; Institutional; contractual; statutory; Domestic and international arbitration

The Process: Arbitration is typically an out-of-court method for resolving a dispute. The
arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one
side will prevail. Unlike a trial, appeal rights are limited.
In a more formal setting, the arbitrator will conduct a hearing where all of the parties present
evidence through documents, exhibits and testimony. The parties may agree to, in some
instances, establish their own procedure; or an administrating organization may provide
procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration
hearing is usually held in offices or other meeting rooms.
The result can be binding if all parties have previously agreed to be bound by the decision. In
that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be
reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision
may become final if all parties agree to accept it or it may serve to help you evaluate the case and
be a starting point for settlement talks.

How and When Arbitration Is Used: A common use of arbitration is in the area of labor
disputes - between fire fighters and the city in wage disputes, for example. You will usually be
represented by an attorney in arbitration.
Many contracts have clauses which require that disputes arising out of that contract be arbitrated.
You may have seen such a provision when you applied for a credit card or opened a retirement
account or other account with a stock broker. You may want to explore using this process if you
and the other side agree that the problem needs to have someone make a decision but you do not
want the expense of going through the court process. If you agree to arbitrate or sign a contract
with an arbitration clause, you should understand that the arbitrator may make the final decision
and that you may be waiving your right to a trial in court.
Who Provides This Service: Many attorneys, other professionals or professional
associations offer their services as arbitrators. Typically your attorney will select the arbitrator
based upon the particular type of the dispute. In complex and highly technical cases, often an
arbitrator who is knowledgeable in that field is chosen. Usually fees are charged.
Some courts offer court-sponsored, nonbinding arbitration and have specific procedural rules to
follow
Characteristics of Arbitration:
 Can be used voluntarily
 Private (unless the limited court appeal is made)
 Maybe less formal and structured than going to court, depending on applicable arbitration
rules
 Usually quicker and less expensive than going to court, depending on applicable arbitration
rules
 Each party will have the opportunity to present evidence and make arguments
 May have a right to choose an arbitrator with specialized expertise
 A decision will be made by the arbitrator which may resolve the dispute and be final
 Arbitrator’s award can be enforced in a court
 If nonbinding, you still have the right to a trial
Conciliation:
Conciliation is statutorily regulated by the Arbitration and Conciliation Act, 1996 but not
defined by that statute. Section 67(1) of the Act however impliedly defines “conciliation” as
assistance rendered by a conciliator or parties to a dispute, in an independent and impartial
manner, in their attempt to reach an amicable settlement of their dispute. Confidentiality of
conciliation proceedings has been statutorily guaranteed under Section 75 of the Act.
.
Conciliation is another dispute resolution process that involves building a positive relationship
between the parties of dispute; however, it is fundamentally different than mediation and
arbitration in several respects. Conciliation is a method employed in civil law countries, like
Italy, and is a more common concept there than is mediation. While conciliation is typically
employed in labour and consumer disputes, Italian judges encourage conciliation in every type of
dispute. The “conciliator” is an impartial person that assists the parties by driving their
negotiations and directing them towards a satisfactory agreement. It is unlike arbitration in that
conciliation is a much less adversarial proceeding; it seeks to identify a right that has been
violated and searches to find the optimal solution
.
Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory
common agreement. Although this sounds strikingly similar to mediation, there are important
differences between the two methods of dispute resolution. In conciliation, the conciliator plays a
relatively direct role in the actual resolution of a dispute and even advises the parties on certain
solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an
authority figure who is responsible for the figuring out the best solution for the parties. The
conciliator, not the parties, often develops and proposes the terms of settlement. The parties
come to the conciliator seeking guidance and the parties make decisions about proposals made
by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The
mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus
only on traditional notions of fault and a mediator does not assume sole responsibility for
generating solutions. Instead, a mediator works together with the parties as a partner to assist
them in finding the best solution to further their interests. A mediator’s priority is to facilitate the
parties’ own discussion and representation of their own interests, and guide them to their own
suitable solution- a good common solution that is fair, durable, and workable. The parties play an
active role in mediation, identifying interests, suggesting possible solutions, and making
decisions concerning proposals made by other parties. The parties come to mediator seeking help
in finding their own best solution.

APPLICATION AND PROCEDURE

Sec 61 of the arbitration and conciliation act of 1996 provides for the applicationand scope of
conciliaton. Section 61 points out that the process of conciliation extends,in the first place,to
disputes whether contractual or not.but the disputes must arise out of the legal relationship. It
mean be such to give one party the right to sue and to the other party the liabilites to be sued. The
process of conciliation extends,in the secound place, to all proceding realting to it.but partIIIof th
Act does not apply to such disputes as cannot be submitted to conciliation by the virtue of any
law for the time being in force.

PRINCIPLES OF PROCEDURE
 INDEPENDENCE AND IMPARIALITY: Coniliator should be independent and
impartial while resloving the dipute throgh the method of conciliation under section
67(1).
 FAIRNESS AND JUSTICE: Conciliator should be guided by the principles of fairness
and justice undre sec 67(2).

 CONFIDENTIALY: Conciliator and the parties to the disput are required to keep the
confidential matters realting to the dispute in betwwen them under sec 70.

 DISCLOUSER AND INFORMATION: When conciliator recive any information

related to any matter in repect to the dispute than he must disclouse that information to
the other party, and the purpose of this provision is to enable the other party to present an
explaination which might other party consider apporpirate under sec70.

 CO-PERATION OF THE PARTIES WITH CONCILIATORS: The part should be in

good faith to coperate with conciliators. They should submit the written materials,
provide evidence, attend meeting when conciliators request them to do so under sec71.

:
 A PROECT REPORT

ON

ALTERNATIVE DISPUTE RESOLUTION

FOR THE PARTIAL FULFILLMENT FOR THE IXTH SEMESTER

AMITY UNIVERSITY

AMITY LAW SCHOOL, LUCKNOW (UTTAR PARDEH)

SUBMITTED TO: SUBMITTED BY:

Mrs. ARPITA KAPOOR SHWETA, A8111113113

(FACULTY) JHANVEE MISHRA

A8111113070

AISHA MOONIS
 ACKNOWLDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my faculty
Mrs.Arpita Shrivastva faculty of (ARBITRATION AND CONCILIATION ACT, 1996)
of 9th semester of (ALS) department for providing her invaluable guidance, comments
and suggestions throughout the course of the project.

Lastly, I owe my sincere thanks and indebtedness to the almighty, my parents for
providing the moral support and constant encouragement without which it would not
have been impossible to complete this project.
CONTENT
 INTRODUCTION
 ADR (ALTERNATIVE DISPUTE RESSOLUTION)
 BENEFITS OF ADR

 TYPES OF ADR
 MEDIATION
 CONCILIATION
 NEGOTIATIOS
 ARBITRATION

 CASE STUDY

 CONCLUSION

 BIBLOGRAHY
CONCLUSION
Alternative dispute resolution refers to any methods used to reslove a dispute betwwen the
partieswithout resorting to “Litigation”. ADR amy make the use of third party,such as mediatore
, but it is not required. One of the benefits of alternative dispute resolution is that it reduces the
load on an overburden court system. In addition, it is often a less expensive solution of the
parties to engage some type of ADR before the matter proceed to trial. In India alternative
dispute resolution is governed under the “ ARBITRATION AND CONCILIATION ACT,1996”
which has defined some alternative solutions to resolve the dispute between the parties such as
“NEGOTIATION; MEDIATION; AND CONCILIATION. Mediation is a voluntary process in
which an impartial person (the mediator) helps with communication and promotes reconciliation
between the parties which will allow them to reach a mutually acceptable agreement. Mediation
often is the next step if negotiation proves unsuccessful. While in case of Negotiation any form
of direct or indirect communication whereby parties who have opposing interests discuss the
form of any joint action which they might take to manage and ultimately resolve the dispute
between the parties and besides this, Negotiations may be used to resolve an already-existing
problem or to lay the groundwork for a future relationship between two or more parties. And in
the case of conciliation Conciliation tries to individualize the optimal solution and direct parties
towards a satisfactory common agreement. and the conciliator plays a relatively direct role in the
actual resolution of a dispute and even advises the parties on certain solutions by making
proposals for settlement.thus while concluding we can say that ADR plays a major role in
resolving the dispute between the parties very effectively without involving them into time taken
process of litigation.
BIBLOGRAHY
 STATUTE

ARBITRATION AND CONCILIATION ACT, 1996

 WEBSITE REFERED

www.vedamasbook.com

http://en.wikipedia.org

 BOOKS
Saharay, Madhusudan, “Arbitration and Conciliation with Alternative Dispute Resolution”,
Mondaq, Mar.11, 2015