DIFFERENT MODES OF ALTERNATE DISPUTE RESOLUTION

by Lipika Sharma

DIFFERENT MODES OF ALTERNATE DISPUTE RESOLUTION (ADR)

There is a comprehensive range of systems to resolve different types of disputes as alternatives to traditional court litigation by reducing the burden on state courts and achieving less expensive and speedier resolution of disputes. There is no fixed form of ADR. A number of variants of the ADR themes may exist. It rather has a number of different strands, overlapping sometimes, but not always. Different ADR procedures are successfully used to preserve or enhance personal business relationships that the adversarial process might otherwise damage. A short overview of the techniques commonly used in ADR procedures are:


1. ARBITRATION

Arbitration is a process in which a dispute is taken before one or more arbitrators who make a final ruling on the case, by consent of the parties. The parties opt for a mutual dispute resolution method of preferring arbitration, rather than going to court.[1] Section 2(1)(a) of the Act states that ‘arbitration’ means any arbitration whether or not administered by a permanent arbitration institution.[2] The adjudication of disputes is a private, generally informal, and non-judicial trial procedure. The principle of arbitration includes four requirements: an arbitration agreement; a dispute; a referral to a third party for the determination; and a third party award. There are various types of arbitration like- Ad-hoc Arbitration, Domestic Arbitration, Institutional Arbitration, Statutory Arbitration, Fast track Arbitration, etc.


2. NEGOTIATION

A non-binding process in which discussions are held between the parties without any third party’s interference with the intention of arriving at a negotiated settlement of the dispute. Objectiveness and willingness on the part of all sides to reach a negotiated solution are important aspects of the negotiations. Communication is the pre-eminent mode of dispute settlement for the purpose of persuasion. It has the advantage of allowing the parties themselves to control the process and the solution in comparison with processes using mutual third parties. In India, there’s no statutory recognition to negotiation. Negotiation is self-consultation among the parties to resolve their dispute.[3] Negotiation is a mechanism that does not have set rules but which follows a predictable pattern.


3. MEDIATION

A non-binding procedure in which a neutral third party serving as a mediator seeks to promote the resolution process but cannot enforce the settlement, and the parties are free to decide on the basis of their convenience and terms. The fundamental purpose in mediation is to offer the parties an ability to communicate, discuss and explore options that are supported by an impartial third party in order to determine exhaustively whether a solution is feasible. Mediation is negotiation, with the aid of a third person. Like the arbitrator or judge, the mediator has no authority to impose an outcome on the disputing parties.


4. CONCILIATION

Conciliation is a process through which a neutral person represents the parties to a dispute that should be resolved; a relatively unstructured dispute settlement method through which a third party encourages dialogue between the parties in an effort to help them settle their differences. It comprises of an effort by a third party, chosen by the litigants, to settle them either before or after providing access to litigation (whether in court or arbitration). In addition, the effort to reconcile is focused around giving each party the different sides of the conflict, in order to persuade each party and eventually reach a solution.


5. MEDIATION ARBITRATION (MED-ARB)

A process in which the parties then decide to resolve their dispute by trying to reach a conciliation/ mediation within a reasonable period, failing which by arbitration. In the course of arbitral proceedings, this is distinct from conciliation where, if a settlement is reached, the arbitration proceedings are terminated by making an award on agreed terms.[4]

6. MEDOLA (Mediation and Last Offer Arbitration)

A binding procedure in which, if the parties fail to find consensus by mediation, a impartial party, who may be the original mediator or arbitrator, may accept the final proposals provided by the parties during mediation and make his binding decision on the basis of the offer which he deems reasonable and rational.


7. MINI- TRIAL

A non-binding process in which summaries of their cases are addressed to the disputing parties in order to allow them to determine the strengths, shortcomings and prospects of their case and then to pursue a resolution with the help of a impartial adviser.[5]


8. RENT A JUDGE

A process in which the disputing parties approach the court mutually to nominate a tribunal, normally a retired judge before whom they present their case in an informal hearing. The referee judge gives his decision which is enforceable by the court. The referee's fee is paid by the parties themselves. Therefore the phrase ‘Rent a Judge’.


9. ARBITRATION- MEDIATION

A time-limited arbitration process in which an arbitrator places his or her decision or verdict before the parties in a sealed envelope. The arbitrator’s role then changes to become that of a mediator who encourages the parties to find a negotiated solution within a fairly tight time frame. If this is good for the parties. The Judgment envelope is broken. If they lose, the envelope will be opened, and the decision must bind the parties.


10. EARLY NEUTRAL EVALUATION (ENE)

A process by which the participants seek support from an impartial third party (most frequently an advocate), who offers a non-binding yet inspired recommendation for how to settle the dispute. The parties discuss settlement proposals with the support of the expert in question, define the disputed issues and receive assistance in preparing for legal proceedings if the negotiations fail.[6]


11. FINAL OFFER ARBITRATION

It presupposes the parties will separately make an offer. So the arbitrator needs to choose one of those. This approach has been and continues to be used in the athletics environment as top-class athletes are purchased from clubs, among other things. It allows the parties attempt to have well-considered proposals because the arbitrator will not compromise but chooses the most fair bid he considers to be. The mentioned above is in no way exhaustive or definitive. The parties are also recommended to follow a variation of any of the components of more than one ADR protocol if it is deemed acceptable for settling a particular class of disputes.[7]


CONCLUSION

With the emergence of the alternative dispute settlement, the people now have a modern way to resolve their disputes. There is a growing need for dispensing justice through the processes of ADR. The ADR movement needs to be moved forward more rapidly. It would reduce the burden on the courts significantly apart from delivering immediate justice at the door-step, without requiring significant expense. When these are accomplished effectively then the goal of rendering social justice to the parties to the dispute can also be achieved.


[1] What is Arbitration?, The World Intellectual Property Organization, https://www.wipo.int/amc/en/arbitration/what-is-arb.html. [2] The Arbitration and Conciliation Act, 1996, Sec. 2(1)(a) [3] Negotiation: Mode of Alternate Dispute Redressal, Legal Service India, http://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-Dispute-Resolution.html [4] Med-Arb, Harvad School of Law, https://www.pon.harvard.edu/daily/mediation/deciding-on-arbitration-vs-mediation-try-combining-them/. [5] What’s a Mini- Trial?, Herrman & Herrman, https://www.herrmanandherrman.com/blog/whats-mini-trial/. [6] Early neutral evaluations: ENE takers?, Lexology. [7] Final offer Arbitration? A process to save money and time, Kluwer Arbitration Blog, http://arbitrationblog.kluwerarbitration.com/2019/01/25/final-offer-arbitration-a-procedure-to-save-time-and-money

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