Tag: Mediation

Alternative Dispute Resolution – Arbitration and Conciliation: Boon or Bane

February 26, 2022
/ Leave a Comment on Alternative Dispute Resolution – Arbitration and Conciliation: Boon or Bane

6 min
2 years
1,024 word

Tagged ADR, arbitration, conciliation, Mediation, Negotiation

Alternative Dispute Resolution – Arbitration and Conciliation: Boon or Bane

Alternative dispute resolution is a type of dispute resolution which offers a facility to resolve a dispute between two disputing parties outside the court. There are four methods of alternative dispute resolution.

Keywords: Arbitration, Conciliation, Alternative Dispute Resolution

Author: NEETI SOLANKI

Arbitration
Conciliation
Mediation
Negotiation

We will discuss about the first two above mentioned types i.e. Arbitration and Conciliation.

ARBITRATION

It is one of the methods of alternative dispute resolution. In which a dispute is solved between two disputing parties with the intervention of a third party known as arbitrator, outside the court. The third party is appointed by the disputing party each, in odd numbers i.e. 3,5,7,etc. Each party appoints one arbitrator and the presiding arbitrator is appointed by the arbitrators that are already chosen by the disputing parties. The group of arbitrators is called the arbitration panel. When the dispute requires the presence of an expert in the relevant field, an expert should also be appointed as an arbitrator. Arbitrators have the right to require the production of relevant evidence and documents. This whole process is governed and regulated by The Arbitration and Conciliation Act, 1996.

Advantages of Arbitration

This method of alternative dispute resolution is proven to be beneficial for both the parties and the judiciary system. As compared to court proceedings, arbitration saves a lot of time and money of the parties as the fees of arbitrators is less than that of fees charged by lawyers, advocates. It also saves the time of parties as arbitration is a faster and more convenient method than judicial proceedings. The benefit to the judicial system is that, due to the arbitration, the burden of courts is lessened.

Arbitral Award

The decision given by the arbitration panel is called an arbitral award. Arbitral award is binding on the disputing parties if accepted by the parties or unless challenged. It can be challenged on the grounds of incapacity of parties to enter into arbitration agreement, incapacity of arbitrator, either of the parties did not receive the notice of arbitration or not given equal and reasonable opportunity to present the case. If the award is inconsistent with the case, the award is against public policy, and other more grounds as prescribed under the said Act.

The panel of arbitration shall contain all the arbitrators who are independent and are likely to remain independent in the future, during the arbitration process. This process can only be adopted with the mutual consent of both the parties. It is a confidential process where the facts, figures and documents submitted with the arbitrators are safe and confidentiality is maintained by both the parties and the arbitrators. Whenever arbitration is considered, it is always pre decided and the arbitration clause is mentioned in the agreement/contract. Arbitration is the most common and the easily accepted method of alternate dispute resolution worldwide. Each country has its own set of rules and regulations for arbitration. The commonality which can be seen worldwide is that, arbitration is the method which solves the dispute outside court and it is proved to be a more efficient and effective method from that of judicial proceedings worldwide.

CONCILIATION

Conciliation is the second type of alternate dispute resolution that we will discuss. It is a method of ADR where two parties decide to submit their dispute to a third neutral to help them to come to mutual agreement. It is somewhat similar to arbitration. The main difference is, in arbitration the third party is independent and in conciliation, the third party is neutral who is known as conciliator. Like arbitration, conciliation is also governed by the The Arbitration and Conciliation Act, 1996. It is a confidential, flexible and voluntary out of the court resolution process. The world’s biggest conciliation was done by Shrimati Kokilaben Ambani for his two sons.

Decision via Conciliation

It is a very effective and efficient process which saves the time and cost of both the parties. The Conciliation method saves the parties from the hustle of going to courts and long judicial proceedings. Unlike arbitral award, the decision of conciliation is not binding unless both the parties agree and sign the decision. Once the decision is signed, it is binding on both the parties. The signed copies of the decision are provided to both the parties. The parties to the dispute choose the time of conciliation, place of conciliation, and third neutral party which decides the dispute. Conciliator tries to resolve the dispute by communicating the tension, suggesting a solution, lowering the tension, minimizing the miscommunication and helping the disputing parties to reach a mutual solution. If the facts of the case need the advice of an expert, then an expert can also be consulted.

Conclusion

From the above discussion, we conclude that arbitration and conciliation is undoubtedly a boon as it is cost effective, it saves a lot of money for the parties. It is also proved to be a faster mode of dispute resolution as compared to judicial proceedings. Benefiting both the parties and the judiciary system of the country in many ways. It lessens the burden and number of cases in the court and also resolves them faster and efficiently. It is a very easy and flexible mode of dispute resolution. Parties which are not very financially sound can also opt for arbitration and conciliation. It helps them to save the heavy fees charged by the court, lawyers and the advocates. Allowing the parties to have more control over the process and results.

This process is less stressful as compared to the lengthy process of the courts. Both the parties play a great role in shaping the process of arbitration or conciliation and its outcome. One must always mention the clause of arbitration as a dispute resolution mechanism as it is proved to be more effective. Cases which can be solved through arbitration must be definitely solved through arbitration. By doing this, the courts in India can focus and give more attention to the cases which are matters of public security and of high importance. Advantages of arbitration and conciliation are more than the disadvantages.

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Is Employing ADR Mechanism Acceptance Of Failure Of Judiciary?

Article / Law

December 24, 2021
/ Leave a Comment on Is Employing ADR Mechanism Acceptance Of Failure Of Judiciary?

6 min
2 years
1,052 word

Tagged ADR, Alternative dispute resolution, India, Law, Litigation

Is Employing ADR Mechanism Acceptance Of Failure Of Judiciary?

Is Opting for ADR acceptance of failure of Litigation Machinery

Author: Vaishnavi Mangane

Abstract –

One can imagine that all the legal disputes are battled in the courtrooms, but in reality, almost all the disputes are resolved through the method of Alternative Dispute Resolution (ADR). The method of resolving disputes without litigation can be abbreviated as Alternative dispute resolution. The ADR methods typically take any one of the three forms i.e., direct negotiation, mediation, arbitration, and Lok Adalat.

Alternative Dispute Resolution (ADR)

Regular Dispute Resolution Mechanism

The dispute mechanism is used for dispute resolution and may incorporate conciliation, conflict resolution, mediation, and negotiation. It can also be known as grievance mechanisms. The dispute mechanisms are typically non-judicial, which means they are not resolved within the court.

Need for Alternative Dispute Resolution (ADR)

Through its diverse techniques, ADR plays a significant role to deal with the situation of pendency of cases in the court of India.
The main motive is to furnish economic and political justice and to maintain coherence in the society as enshrined in the preamble.
ADR provides various scientific development techniques to decrease the burden of the courts.
ADR ensures various means of settlement including arbitration, conciliation, mediation, negotiation, and Lok Adalat’s. Here negotiation relates to self-counseling among the parties to resolve their dispute but does not hold any statutory recognition in India.
ADR has proven successful in clearing the pending cases at different levels of the Judiciary.

Complexities in regular dispute mechanism –

1. Judge population ratio.

2. Vacancy portion of the court staff.

Conveniences in ADR system –

1) No complications

2) Easy dealing of matters

3) Simplified procedure in taking assistant viz. staff, availing services of staff, etc.

Advantages of alternative dispute resolution (ADR)

I. Consumes less time to resolve the dispute as compared to courts.

II. ADR is a cost-effective method, hence saving a lot of money.

III. Since the informal ways of resolving the disputes are adopted, hence it is free from technicalities of court.

IV. ADR is an efficient way to resolve disputes, as it always provides a chance to restore back their (parties) relations through discussing their issues together on the same platform.

V. ADR avoids future consequences and helps maintain good terms between the parties.

VI. ADR helps the people to express the facts, without disclosing it to any of the courts of law.

VII. ADR works to look after the best interest of the parties.

Comparative advantages of all ADR viz. Arbitration, conciliation, mediation, Lok Adalat.

Arbitration	Conciliation	Mediation	Lok Adalat
a) It provides fairness to both parties as compared to traditional legal trials.	a) In conciliation the presence of an experienced neutral and an attorney who will provide the possible solutions to the disputes and evaluates the risks associated with continuing the dispute.	a) Mediation is an informal process that is not bound by any traditional legal formalities which are less time consuming and less costly than litigation.	a) Lok Adalat’s operate with the spirit of compromise and understanding which makes the parties feel satisfied.
b) A legal resolution here is much quicker, less formal, and flexible in scheduling than waiting for the trail date.	b) The parties will be allowed to choose their conciliator based on the criteria of the knowledge in the expertise area and availability.	b) The mediation is not a unilateral process as the settlement of disputes lie in the hands of the parties. It includes self-determination where the parties can terminate the	b) It is less expensive and delivers fast justice as any person can move to Lok Adalat’s through an application on a plain paper or by format available

		processes at any stage and can take the matter to the court.	through legal service authorities.
c) Here the cost is much reliable as it doesn’t include any expert witness nor require much legal process.	c) It has time and cost efficiency due to the flexible nature of proceedings.	c) Mediation helps the parties find realistic solutions which are not only sensible but also have long term availability.	c) Lok Adalat reduces the workload on courts and helps look after more serious matters and results in reduction of delays in higher courts.
d) The legal process of arbitration is more confidential than of the trial courts.	d) Their will be total confidentiality as agreed upon by the parties and the conciliator as well.	d) Mediation serves to reduce the level of conflicts which are already existing among them, as to avoid further more conflicts between the disputing parties.	d) It helps in direct interaction with the Judge in regards to the disputes, where on the other hand is not at all possible in regular courts of law.

Statutory base for ADR

∙ Under article 39A of constitution of India ADR also tries to achieve equal justice and free legal aid under Directive Principles of State Policy.

∙ Indian Arbitration Act, 1940.

∙ Indian Arbitration Act, 1996.

∙ Arbitration or conciliation proceedings are dealt with under the provisions of the Arbitration and Conciliation Act, 1996.

Conclusion

The regular judicial mechanism is working well but in certain special situations, as the flowing, ADR serves as a better alternative

for the simple matters where parties want to settle
where they can be driven for settlement by arranging a platform for the exchange of dialogue among them,
when matters can be settled and when the same will work as reducing the burden of the regular judicial system,
when the litigating parties wish to get speedy justice and consent to the alternative, they stand a win-win situation.

Opting ADR systems can never be considered as a failure of regular dispute resolution mechanisms. Comments in that regard do not deserve any appreciation, it is high to promote and propagate adopt ADR mechanism with which the disposal of cases and both tracks i.e., regular dispute resolution track and alternative dispute resolution track gets disposed of and the same will lead to at least less litigation society, if not a litigation-free society.

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What Is The Scope of Mediation In International Politics?

Law

January 15, 2021
/ Leave a Comment on What Is The Scope of Mediation In International Politics?

8 min
3 years
1,424 word

Tagged International Mediation, International Politics, Mediation

What Is The Scope of Mediation In International Politics?

Introduction Mediation refers to a method in which resolution of dispute between 2 parties takes place through the help of a neutral third party. It’s completely different from different ADR mechanisms as being voluntary in […]

Introduction

Mediation refers to a method in which resolution of dispute between 2 parties takes place through the help of a neutral third party. It’s completely different from different ADR mechanisms as being voluntary in nature and non binding.

Mediation could be a structured, interactive method wherein an impartial third party assists the disputing parties in resolving conflict through the utilization of specialized communication and negotiation techniques.

Mediation is a ‘party-centered’ method as it is centered primarily upon the requirements, rights, and interests of the concerned parties.

In a mediation procedure, a neutral negociant, the negotiator, helps the parties to achieve a reciprocally satisfactory settlement of their dispute. The settlement achieved is recorded as an enforceable contract between them. The negotiator uses various kinds of techniques to guide the process in a constructive direction and to assist the parties realize their best resolution.

Key features of Mediation

structured negotiation
Voluntary
non-binding
third party intervention
confidential
interest-based

Voluntary : The parties upon their will, with mutual accord enter into a mediation proceeding and thus this method is a voluntary process.
Third party intervention : The method involves a neutral third party appointed by the involved parties reciprocally. This third party assists the process and acts as a facilitator within the process.
Non-binding : The Mediation is a voluntarily entered process and the parties are not under an obligation to follow the result achieved as a result of the mediation proceedings. That is the award made by the mediator is not binding over the parties.
Confidential: the mediation proceedings are sure by the principal of confidentiality and each one the 3 parties including the negotiator are speculated to uphold such confidentiality of the knowledge of the parties.
Interest-based : it is primarily an interest based method as it secures the interests of each of the parties concerned within the method. And a choice acceptable to each is arrived upon.

Mediation Under Indian Legal System

Mediation is not dealt with in any specific act. Various acts make provisions regulating and validating the process. It is majorly dealt with under The Alternate Dispute Resolution and Mediation Rules, 2017. Various other laws also create provisions for Mediation as a means of dispute resolution between conflicting parties.

Recently, The Supreme Court has established a panel to formulate a draft for specific legislation with relevancy Mediation.

Statutory Provisions

Conciliators appointed underneath Section four the economic Disputes Act, 1947 are appointed with the duty to mediate and promote settlement of business disputes with elaborate prescribed procedures for conciliation proceedings.
In 2002, Associate in facilitate changed to the Code of Civil Procedure, 1908 (CPC) was brought in. Section eighty nine browse with Order X Rule 1A provided for reference of cases unfinished within the courts to ADR. Additionally, Order XXXIIA of the CPC recommends mediation for familial/personal relationships, because the standard judicial procedure isn’t ideally suited to the sensitive space of private relationships.
Even Section 442 of the Businesses Act, 2013, browse with the businesses (Mediation and Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National Company Law assembly and proceedings assembly.
The Micro, Small and Medium Enterprises (MSME) Development Act, 2006 mandates conciliation once disputes arise on payments to MSMEs.
More notably, family and private laws together with the Hindu wedding Act, 1955 and also the Special Marriages Act, 1954 need the court within the initial instance to aim mediation between parties.
Section 32(g) of the $64000 Estate (Regulation and Development) Act, 2016 provides for loveable conciliation of disputes between the promoters and allottees through dispute settlement forum, established by client or promoter associations.

International Mediation

Mediation is a conflict management tool used across several areas of social, economic, and political life. Within the international arena, it’s a method of assisted negotiations, whenever parties request to settle their (at times violent) conflict through negotiations in agreement with new rules in a way to resolve the initial drawback and the way to interact in higher processes.

In layman’s terms, disputes and conflicts involving multiple nations are referred to as International Disputes. A conflict or legal dispute is what the United Nations Security Council (UNSC) calls “International Disputes.” It alludes to any conflicts between countries on any fact, issue, interest or any topic in the political, philosophical or lawful field.

Types of Disputes That Can Be Resolved Through Mediation

Different types of international disputes Conflicts between nations, states, and countries can arise for a variety of reasons and most of them may be resolved through mediation. It could be related to territory, ideology, security, independence, ethnicity, culture, resources, the issue of refugees, border disputes, war, biological war, or any number of other things. The refugee crisis in Bangladesh, the Rohingya Muslim crisis, and other sensitive refugee issues have all arisen in various nations. In an effort to shorten the resolution time, the nations try to mediate such disagreements. The Chinese government has acted as a mediator in this case, helping Bangladesh and Myanmar resolve their disagreements regarding Rohingya Muslims. One of the most difficult disputes in the international arena has been border disputes. It can be on land, in the ocean, or in the air. It occurs between nations for a variety of reasons, including occupation, infiltration, smuggling, espionage, and so on.

Resolution Of International Disputes

At the international level, international law is in effect. There are primarily two main approaches to dispute resolution. One is the tranquil means including discussion, request, great workplaces, intercession, appeasement and mediation as referenced under Section VI of the Unified Countries sanction and the other is the habitual means including grievances, rebuilding, retaliation, antagonistic ban, bar, mediation, war. The goal of international law is to resolve disputes between nations peacefully. States should resolve international disputes through negotiation, investigation, mediation, conciliation, arbitration, and judicial resolution, according to the 1970 “Declaration of Principles of International Law.” When a conflict has persisted for some time but the parties are unwilling to incur additional costs, escalate the dispute, or engage in direct or indirect dialogue, and they require external conflict management, mediation can be useful in an international setting.

Key features of international mediation

An important instrument to resolve disputes.
Multi track diplomacy.
More centered towards management of the conflict than towards the resolution of a similar.
Different from other kinds of mediation because the peace of two nations depends on the method.

Instances of International Mediation – Historically

Countries Acting As Mediators

Tashkent Declaration: The USSR mediated the 1966 Tashkent declaration. India and Pakistan were at odds over the Kashmir issue. India and Pakistan were able to reestablish friendly relations as a result of the declaration.
Accord in Alger: This agreement was reached in 1975, and Algeria acted as a mediator to help Iran and Iraq settle their border disputes. Additionally, Algeria facilitated the United States and Iran to reach an agreement in Algiers to end the hostage situation in Iran.
Accord of Acta De Brasilia: The Acta De Brasilia agreement was signed in 1998 between Ecuador and Peru. In it, the United States, Brazil, Chile, and Argentina acted as mediators to bring peace and protect the environment.
Conflict between Arabs and Israelis: In the year 2020, the United States served as a mediator in a mediation case to resolve the Arab-Israeli conflict.

International Organizations Acting As Mediators

In the dispute between Thailand and the Philippines over tuna exports, the parties preferred mediation and consultations facilitated by the European Union Trade Commissioner to the adjudicative approach taken by the World Trade Organization Dispute Settlement Body.
The International Institute for Sustainable Development (IISD) took the premeditative step of conducting independent third-party research to prevent any disagreements that might arise as a result of climate change due to water scarcity in Palestine, Israel, Lebanon, Syria, and Jordan.
The United Nations-led international communities used mediation to ensure peaceful interaction and coexistence in the face of multiple conflicts in the international environment in 2019.
In the Gambia, there was an association by the Unified Countries, the AFRICAN association, and neighbors’ nations to forestall a significant political emergency through intercession. This was also common in Sudan, Iran, and other nations, to name a few.

In 1948, the overall Assembly appointed a negotiator in Palestine.
In the winter and spring of 1949 a later appointee was able to conclude peace agreements between Israel and also the four close Arab states.
Several commissions appointed by the safety Council and by the overall Assembly have had intercession functions: as an example,
- the commission on country
- the India-Pakistan commission
- the Palestine conciliation commission
- the commission on Korea.

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