ALTERNATIVE DISPUTE RESOLUTION
Role
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Name
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Affiliation
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Principal Investigator
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Dr.Gyanendra Kumar sahu
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Asst.Professor Utkal University
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Content Reviewer
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Dr.Gyanendra Kumar sahu
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Asst.Professor Utkal University
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Description of Module
Items
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Description of Module
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Subject Name
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Law
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Paper Name
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Social Transformation and Social Engineering
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Module Name /Title
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Alternative Dispute Resolution
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Module No.
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XIII
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Alternative Dispute Resolution
A
human being is a social animal. He cannot exist in isolation. He has been
endowed by the nature, with capabilities which are unique and make him
different from rest of the animals. This man also has his needs, the most
important being his need to be in the company of his fellow human beings. It is
this interdependence, which makes humans live and associate with each other.
There is no doubt that collective living has solved many a problems. But while
living together, the individual interests of these humans definitely would come
in conflict with the interest of the others. These conflicts, are what we term
as disputes. In the present day, the Dispute Resolution Systems are divided
into two categories; the regular method of resolving of disputes (RDR- Regular
Dispute Resolution) which refers to the regular judicial setup; and alternative
way of resolving of disputes (ADRAlternative Dispute Resolution) which refers
to the four methods (Negotiation, Mediation, Conciliation and Arbitration)
created to resolve dispute outside court. Presently the ADR is the main source
of resolution of dispute in the areas of family, property, insurance and
corporate disputes.
Disadvantages
of Regular Dispute Settlement system
1.Delay
This
is a major problem which the judiciary is affected with. Once delay is caused
due to some reasons like, technicality, backlog, or lack of expertise; it leads
to increase in the expenses, which again causes backlog and overburdening of
the judiciary.
2.
Unpredictability
The fate of the parties in judicial
proceedings is in the hands of two persons; the judge and the lawyer. The
expertise of the lawyer and the understanding capacity of the judge, decides
the fate of the litigation. Therefore, the proceedings become highly
unpredictable as the procedural law is influenced by human nature. An expert
lawyer would be able to quote the set of facts in a very subtle manner and
convince the judge about the merits of his case, but a novice may fail to do
so. The facts are same but the results may be different due to difference in
expertise of the lawyers.
3.
Backlog
The
disparity between judge and population ratio, builds pressure on the judiciary.
The pressure reduces the efficiency of the Authority, thereby affecting the
efficiency of the institution as a whole. The reasons for the backlog may be
many. But the most important are technicality, delay tactics adopted by the
lawyers and clients, and less number of judges.
4.
Expensive proceedings
Justice
in not for free, and the parties have to spend a lot money to obtain it. The
expenditure includes mainly the lawyer’s fee and the court fees. However, this
is only the part of the expenses. There are expenses on logistics, like travel
to the court from the place of residence and incidental expenses, travel cost
incurred in bringing witnesses, expenses included in helping the court to find
out real facts in issue, appointment of Commissioner, Receiver etc. When these
are added to the lawyers and court fees, it makes justice prohibitive.
5.
Concentration of Work
This
drawback is not with the judiciary, but with the friend of court, the Advocate.
Even though, a fair number of advocates are practicing in the city or town, 85%
of the cases are with 15 to 20% of practicing advocates. Remaining 80% of
advocates deal with the remaining 15% of cases. This results in to
overburdening of those few practitioners and their inability to present the
case when court is ready to hear the matter. One of the main causes of
adjournment is that the lawyer is engaged in presenting a case before another
judge at the same time. The problem of concentration of work affects the speedy
disposal of cases.
Technicality
For
the Judge, it is not feasible to explain the procedure, and the advocates have
no time to explain. In the court of law, the rights of the parties are decided
in their very presence where the sad fact is that they may not have the
slightest idea about the proceedings due to the procedure which is highly
technical. Another important reason is the language of the law and the courts
which is beyond the understanding of a lay man. The lack of understanding of
the court proceedings develops suspicion in the minds of the litigants and they
express their unwillingness by disobeying the orders of the court, leading to
further litigations.
Advantages
of the ADR system.
Anyone
can easily avail ADR, Faster Remedy, No Institutional Barrier, Protect
Interest, Win – Win situation, Low cost, Greater Participation of Parties,
Problem solving.
Kinds
of ADR
Negotiation
Is
conflict bad? Would life is happier if no conflict in life exists? Though the
answer to these questions as ‘NO’ sounds strange, in reality conflicts help the
growth of the society. People differ and they use negotiation to resolve their
differences by using negotiation as a method. Imagine, if you would like to buy
a television, would you agree to the price quoted by the seller? Or would you
bargain? Is bargaining a way of negotiation and resolving the differences
between you the buyer, and the seller? The answer would be yes. Therefore,
everyone is a negotiator and every one negotiates several times in his life
time. That is the reason why negotiation is treated as the most important mode
of alternative dispute resolution. It is the primary method of resolution of
disputes. The success and failure of this mode has resulted in the development
of the more refined methods. All these refined processes have negotiation as
the foundation on which new alternatives have been added later to overcome the
defects.
Negotiation
is a process, which focuses on protection of the interests of the parties
through adjustment. This is in contrast to the approach of the judiciary which
tries to protect the right of an individual by enforcing it or ordering
compensation for it. Second important departure, is the concept of
relationship. Negotiation concentrates on protection of relationship between
the parties, for which the judiciary shows complete disregard.
Kinds
of Negotiation
i.
Informal negotiation:
It
is a direct communication between the parties. Here the intervention of a third
person or an outsider does not exist. Only the affected parties are involved in
the dialogue and discussion for the purpose of resolving the dispute. Chances
of failure of this process are high.
Advantages:
Informal
negotiations are secretive, Involvement of a third person is nil , There are no
procedural hassles during negotiation.
Disadvantages:
Interests are replaced with egos, Breaking down of negotiation leads to
additional enmity, Frequently ends with deadlock
ii.
Formal Negotiation
To
overcome the defects of the informal negotiation, a modification was introduced
and it became another genera of negotiation called the ‘formal negotiation’.
The modification is in the form of introduction of a third party as a
representative of the parties to the dispute. Each party here appoints a
negotiator, and this negotiator is supposed to negotiate on behalf of the
parties. In this process the parties remain in control of the process through
the negotiator, though they have no direct control over it. The negotiator has
to negotiate on the basis of the interests expressed to him by the party which
appoints him
Advantages:
Negotiator
can successfully avoid deadlocks, Negotiator can adopt a different approach all
together, Protection of interests reduces enmity
Disadvantages
It
may end with deadlock ,Parties may force the negotiator to take a definite
position.
Mediation
The
fundamental process in mediation is nothing but a negotiation. However,
mediation is a slightly modified version which has been developed to overcome
the defects involved with the negotiation process. “Mediation is a dispute
resolution process where the parties discuss the subject matter in presence of
the third party called mediator, who is experienced and has trust and faith of
both parties and who tries to bring out an amicable settlement between the
parties.” The above definition makes it very clear that the main difference
between negotiation and mediation is the involvement of a third person called
the Mediator. This person acts as a catalyst between the parties and tries to
achieve an amicable settlement between parties. Involvement of the third party
does not change the style of proceedings. It basically remains a negotiation,
but takes place in the presence of a third person.
Role of a Mediator
The
main role of the mediator is to avoid deadlocks. The purpose of his appointment
is to keep the parties at the negotiation table. If any party tries to break
the negotiation process, then mediator becomes active and immediately gets
involved in resolving the deadlock.
1. He
must maintain neutrality 2. He should maintain confidentiality 3. He should
separate people from the problem 4. He should motivate parties to negotiate. 5.
He needs to counsel the negotiators about the process of mediation. 6. He
should provide scope of venting emotions by the parties 7. Sometimes mediator
may act as face saver. 8. He must resist the temptation of being a via media 9.
He must help the negotiators in identifying interests.
Stages
of Mediation
1. Convening
Process – At this stage mediator makes preliminary arrangements such as the
venue for mediation and time. It is always better to select a neutral venue for
conducting mediation. Before fixing the time and venue you may need to consult
both the parties for their consent and availability.
2.
Mediator’s introduction and developing ground
rules to be followed in the Mediation. The first session of mediation involves
two important components, where in the mediator needs to introduce himself and
the procedure that is going to be followed during the mediation.
3.
Statement of problem by Negotiators. After
mediator’s introduction both the parties may be allowed to state the problem.
4.
Re-statement of the problem by
mediator – After hearing the problem from both the parties, you need to restate
the problem. Restating the problem means you are summarizing the problem.
Summarizing the problem has its own advantage. It not only shows that you have
understood the dispute between the parties, but also that if there is an thing
missing the parties would be free to add.
5.
Collection of additional
information if necessary- In case the problem explained by the parties is not
clear or more information is required to understand the dipute fully and
properly, the mediator may seek additional information or documents in support
of such dispute.
6.
Setting the agenda for Mediation –
Once the problem is clear the mediator needs to set the agenda. Setting agenda
is similar to framing issues. It is nothing but identifying the differences and
framing them in the form of issues for negotiation
7.
Facilitating negotiation – After
framing issues the mediator invites the negotiators to negotiate.
8.
Mediator generating options-
Remember the negotiation principles. Generating options is more important for a
successful negotiation. Therefore, mediator must encourage and help the parties
to generate options. He needs to play proactive role in generating options.
9.
Private meetings if necessary- In
case of necessity you may hold private meetings. Private meeting means you
could talk to only one party and request the other party to move out of the
mediation room.
10. Persuasion
to reach a settlement- The role of the mediator in mediation is not of a mute
spectator but he has to actively involve the parties to reach a settlement.
Therefore, persuasion to reach settlement does not mean that the mediator will
force the parties for settlement, but he will encourage and motivate the
parties to settle.
11. Realistic
Agreement– If the negotiation is successful and the parties reach a settlement
then the mediator should see whether the agreement is realistic. At this stage
mediator is not assessing whether the agreement between the parties is
reasonable he has to see whether it is an enforceable agreement according to
the law.
12. Summing
up and reducing the settlement into writing- Once the mediator is satisfied
that the agreement is enforceable by law then he needs to sum up the agreement
and write the same. After that he should make sure that the parties read it,
and then get their approval.
Conciliation
Conciliation
procedure Conciliation being a voluntary process, the law has taken ample care
to provide voluntariness. The involvement of the parties is taken care of in
each and every stage of the conciliation. Along with this law also has taken
care to avoid unnecessary delay tactics which parties may employ during the
conciliation process.
Appointment
The
parties have prerogative to seek appointment of the Conciliator. The
appointment can be done in consultation with both parties. In case of lack of
consensus, the parties can appoint their own conciliator. Even though law
provides for appointment of two conciliators, the spirit of the process of
conciliation and the role of conciliator makes it necessary to conduct
conciliation with only one conciliator.
Submission
of statements
Once
the appointment of conciliator is sought, he will request the parties to
provide brief written information of the dispute. This information helps him to
understand the general nature of the dispute as well as the points at issue. This
general information may be later asked to be supported by documents and other
evidences. These additional information and evidences can be used to convince
the conciliating party to reach a settlement.
Role
of the Conciliator
He
should be independent and impartial. His role is to act as a catalyst and bring
in speedy and amicable settlement among the parties. The role of the
conciliator is guided by the major principles of objectivity, fairness and
justice. While acting as conciliator he should give due regard to the rights
and obligation of the parties, usages of the trade and circumstances
surrounding the dispute. To bring in speedy settlement, the conciliator may
make a proposal of settlement. Such proposals will be kept for further
discussion. Conciliation officer is required to maintain confidentiality. Any
information disclosed to him cannot be used against the disclosing party in any
proceeding before any authority. This provision helps parties to act freely and
fairly in conciliation.
Settlement
Agreement
The settlement agreement is arrived at by the
parties with the assistance of the conciliator. Basically it is a document of
consent between parties wherein the conciliator has acted only as a
facilitator.
Arbitration
The
importance of Arbitration as a process has increased manifold due to the advent
of globalization. As the multinational and transnational companies began
investing in India, they started giving preference to the outside court
settlement in the form of arbitration. As they used these provisions
extensively, the process of Arbitration became attractive. Further, the
increased protection granted to the parties and the award pronounced by the
arbitrator due to passing of the Arbitration and Conciliation Act, 1996
encouraged the role of arbitration in settling civil disputes. Arbitration has
no resemblance with the other ADR processes. The base for all the ADR processes
has been Negotiation. But in arbitration there is no negotiation between
parties. Arbitration resembles adversarial process more. Therefore, arbitration
would be a suitable process where the parties do not wish to spend time in the
court but would like their dispute to be decided by a neutral third party. In
arbitration any dispute or difference may be referred to a third person for
determination. Therefore, we can say that arbitration is a process conducted by
a private judge appointed by the parties, who conducts hearing and decides the
dispute between the parties.
Arbitrators
should be appointed by mutual consent of the parties, and in case there is no
consensus then they may approach the court for appointment of arbitrator. The
arbitrator appointed either by the parties or by the court shall give equal
treatment and full opportunity to parties. The place of arbitration and
language to be used during the proceedings could be decided by the parties with
mutual consent. In absence of such consent the arbitrator would decide.
In
case of domestic disputes the arbitrator needs to decide the dispute in
accordance with the substantive law in force. If the dispute involves
international commercial dispute then the law of the country as agreed by the
parties would apply. In the absence of such an agreement, the arbitrator would
decide about which country’s law would apply, as he deems fit. The decision of
the arbitrator is called as ‘award’.
Arbitrator
must be neutral and shall not have any interest in either the subject matter or
any relation with parties. If his relation with parties is such that it is
likely to influence his rational decision, award given by the arbitrator in
such dispute would become invalid. Though procedural technicalities do not
apply for arbitral proceedings, arbitrator is bound to follow principles of
natural justice.
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