1. DISCOVER . LEARN . EMPOWER
Techniques
of ADR
INSTITUTE- UILS
DEPARTMENT OF LAWS
BBA LLB AND B.COM LLB
SUBJECT- Clinical - I- Alternative Dispute
Resolution
CODE- LLT-414
Name of the Faculty : PUNEETISH KAUR
2. • Space for visual (size 24)
2
Clinical – I -
Alternative
Dispute
Resolution
CO
Numb
er
Title Level
CO1 The students will understand the Meaning of
Arbitration
Rememb
er
CO2 The students will understand the
conciliation
Understa
nd
Co3 The students will understand the mediation Understan
d
Co4 The students will understand the Lok Adalat Understan
d
Course Outcome Will be covered in
this lecture
5. Techniques of ADR
1. Negotiation
2. Mediation
3. Conciliation
4. Arbitration
5. Gram Nyayalayas
6. Lok Adalat
7. Family Courts
8. Plea Bargaining
9. Ombudsman
6. Introduction
• Section 89 of the Civil Procedure Code provides for
the settlement of disputes outside the Court.
• It is based on the recommendations made by the
Law Commission of India and Malimath
Committee.
• recommended to make it obligatory for the Court
to refer the dispute, after issues are framed, for
settlement either by way of Arbitration,
Conciliation, Mediation, Judicial Settlement
through Lok Adalat.
7. • The procedure in Alternative Dispute Resolution
System combines two or more well-established
procedures.
• The ADR procedure is divided into two categories.
Adjudicatory and non-adjudicatory. The arbitration
is adjudicatory process whereas the conciliation,
mediation and negotiations are non-adjudicatory
processes
8. Arbitration
• Not defined in Arbitration and conciliation Act, 1996.
• The entire law of Arbitration is based on UNICITRAL
model Law.
• Arbitration is the means by which the parties to a
dispute get the matter settled through the intervention
of an agreed third party.
• Arbitration, a form of alternative dispute resolution
(ADR), is a technique for the resolution of disputes
outside the courts, where the parties to a dispute refer
it to one or more persons – arbitrators, by whose
decision they agree to be bound.
9. • Conditions:-
a. There should be an arbitration clause in the
agreement to resolve disputes.
b. There is a arbitral disputes between 2 or more parties
c. Dispute is referred to 3rd person other than a court of
competent jurisdiction.
d. Persons or persons constituting arbitration are under
obligation to resolve the dispute/difference in a
judicial manner- that is by hearing both the parties.
10. • Arbitration can be either voluntary or mandatory.
• Of course, mandatory Arbitration can only come
from s statute or from a contract that is voluntarily
entered into, where the parties agree to hold all
existing or future disputes to arbitration, without
necessarily knowing, specifically, what disputes will
ever occur.
• Arbitrator: The Arbitrator always acts like a Judge.
He discharges quasi-judicial functions. He must act
honestly and impartially.
11. • The following are the different kinds of Arbitrations found in India:
• a. Ad-hoc Arbitration – One in which there is no institution to administer the arbitration.
• Therefore, they largely regulate there own procedure.
• Do it yourself Arbitration.
• b. Institutional Arbitration – Usually administered by an arbitral institution.
• THEY Expect from the institution certain services in connection with organization and
supervision of the proceedings.
• They charge a price to render these services.
• Services rendered by these tribunals:-
1. Setting the Arbitration in motion.
2. Fixing and supervising time limits
3. Premises
4. Support staff
5. Notifying the Award etc.
12. • c. Statutory Arbitration – Imposed on the parties
by operation of law.
• Obligatory, binding on parties
• Examples: HW
• d. Foreign Arbitration – Proceedings are conducted
in a place outside India.
13. Scope of Arbitration:
• “Arbitrability” – It is one of the matters which involve the simple question . What type of issues cannot be
submitted to Arbitration.
• Though Supreme Court did not enunciate any exhaustive list for the subject matters outside the ambit of
arbitrability, some of the well recognized examples of non-arbitrable disputes in India are:
• § Disputes relating to rights and liabilities which give rise to or arise out of criminal offences;
• § Matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights.
• § Guardianship matters
• § Insolvency and winding up matters
• § Testamentary matters (grant of probate, letters of administration and succession certificate)
• § Eviction or tenancy matters governed by special statutes
• § Matters related to mortgage
• § Industrial Disputes
• § consumer disputes
• Actionable torts
14. Poll or MCQ
• What are the essential of Arbitration?
1. There should be an arbitration clause in the
agreement to resolve disputes.
2. Dispute is referred to 3rd person other than a court
of competent jurisdiction.
3. All of the Above
15. • The decision of the Arbitrator is binding on the
parties
• True
• False
16. Conciliation
• The conciliation is a non-binding procedure in
which an impartial and neutral third party assists
the disputing parties to reach a mutually
satisfactory and agreed settlement of the dispute.
• Conciliation is an alternative dispute resolution
process whereby the parties to a dispute use a
conciliator, who meets with the parties separately
in order to resolve their differences.
17. • Voluntary Conciliation- In this method parties can
voluntarily participate in the process of conciliation
for resolving their dispute.
• Compulsory Conciliation- If parties do not want to
take the opportunity of voluntary conciliation then
they can go for compulsory conciliation. In this
method, if the parties do not want to meet the
other party to resolve the dispute then the process
is said to be compulsory. This method is commonly
used in labour cases.
18. 1. Arbitration and Conciliation Act,1996 ( Section 61-
81)
2. CPC,1908- Section 89
3. Industrial Disputes Act (Section 12)
4. Family Courts Act, 1984
5. Hindu Marriage Act, 1955
Non- Binding Process upon the parties.
19. • The conciliation means an 'assisted bargaining
process' between the two.
• The Conciliator has no power of decision.
• The conciliation stresses the power of diplomacy
and of mental acuteness as contrasted with the
judicial process and decision making aspect of
adjudication and arbitration.
• The conciliation process requires involvement of
Conciliator who is knowledgeable and experienced
person.
22. Mediation
• Mediation is an Alternative Dispute resolution where a third neutral
party aims to assist two or more disputants in reaching agreement.
• It is an easy and uncomplicated party centered negotiation process
where third party acts as a mediator to resolve dispute amicably by
using appropriate communication and negotiation techniques.
• THE PROCESS OF MEDIATION WORKS IN VARIOUS STAGES. THESE ARE:-
• Convening the Mediation Process- Reference to ADR by the Court,
Preparation for Mediation,
• Initiation of the Mediation Process- Introduction,Opening statement
• Setting the Agenda- setting down the order in which negotiation is to
proceed
• Facilitation of Negotiation and Generation of Options- Joint Sessions and
Separate sessions.
• Settlement
• Closure
23. • At the commencement of mediation process, the
mediator shall ensure the parties and their counsels
should be present.
• Initially in the opening statement he furnishes all the
information about his appointment and declares he
does not have any connection with either of parties
and has no interest in the dispute.
• In the joint session, he gathers all the information,
understand the fact and issues about the dispute by
inviting both the parties to present their case and put
forward their perspective without any interruption. In
this session, mediator tries to encourage and promote
communication and manage interruption and
outbursts by the parties.
24. • Next is separate session, where he tries to understand the
dispute at a deeper level, gathers specific information by
taking both the parties in confidence separately.
• Mediator asks frequent questions on facts and discusses
strengths and weaknesses to the parties of their respective
cases.
• The parties negotiate through the mediator until a solution
mutually acceptable to all the parties involved. The
mediator directs the parties to a solution which he believes
will satisfy the underlying interests of the parties.
• In case negotiations fail, the case is sent back to the referral
court.
25.
26.
27. Negotiation
• Negotiation is also a form of dispute resolution, but
there is no third party to adjudicate the matter,
therefore the parties work together to find a
mutually acceptable solution or a compromise.
• The parties may choose to be represented by their
attorneys during their negotiations.
• Negotiation is not statutorily recognized in India.
• There are no set rules for conducting a negotiation.
28. • Essentials of negotiation-
• The Essential steps required for a negotiation to be
successful are as follows:-
• A. The voluntary consent of both the parties to
negotiate with each other.
• B. The dispute concerns both parties in such a way that
the parties are dependent on each other.
• C. The parties should have wiliness to settle the
dispute.
• D. The dispute should be negotiable.
• In certain cases, there is a sense of urgency and
deadlines in the disputes relating to negotiations.
29. • Negotiation is a strategic discussion that resolves
an issue in a way that both parties find acceptable.
In a negotiation, each party tries to persuade the
other to agree with his or her point of view.
• Negotiation is a process of discussion between two
or more disputants, who seek to find out a
common solution for a common problem, one that
meets their needs and of interests.
30. • Best Alternative to Negotiated Agreement (BATNA)
• It is the best possible outcome both the party come up with
or has in mind. Its suitable situation as each party thinks
about their most favorable scenario looks like.
• Most Likely Alternative to Negotiated Agreement
(MLATNA)
• For a successful negotiation the result always lies in the
middle, mediator after considering both the parties comes
up with most likely outcome. Here result is not always in the
middle but little left or right of the center depending on
negotiation situation.
• Worst Alternative to Negotiated Agreement (WATNA)
• It the worst possible outcome a party has in their mind for
what could happen during negotiation.
31. Types
• MARITAL DEADLOCK
• BUSINESS NEGOTIATION
• CONTRACT BASED NEGOTIATIONS
• INTERNATIONAL NEGOTIATIONS
32. Lok Adalats
• Lok Adalat is one of the alternative dispute redressal
mechanisms, it is a forum where disputes/cases
pending in the court of law or at pre-litigation stage are
settled/ compromised amicably.
• Lok Adalats have been given statutory status under the
Legal Services Authorities Act, 1987.
• Under the said Act, the award (decision) made by the
Lok Adalats is deemed to be a decree of a civil court
and is final and binding on all parties and no appeal
against such an award lies before any court of law.
33. • Nature of Cases to be Referred to Lok Adalat
• 1. Any case pending before any court.
• 2. Any dispute which has not been brought before
any court and is likely to be filed before the court.
• Provided that any matter relating to an offence not
compoundable under the law shall not be settled in
Lok Adalat.
34. • Powers of Lok adalat
• Lok Adalats at various levels plus their composition
• Conclusion
35. Gram Nyalalayas
• Panchayati Raj or self government at the village
level is a revolutionary process.
• The Gram Nyayalayas Act, 2008 has been enacted
to provide for the establishment of the Gram
Nyayalayas ( Village Courts) at the grass roots level
for the purpose of providing access to justice to the
citizens at their door steps.
• Objective is to provide inexpensive justice to
people in rural areas at their doorsteps.
36. • Some features:-
a. A Gram Nyayalaya is established for every Panchayat at
intermediate level or a group of contiguous Panchayats at
intermediate level in a district.
b. A Grama Nyayalaya is a mobile court and exercises
the powers of both Criminal and Civil Courts. Gram
Nyayalaya try criminal cases, civil suits, claims or disputes
which are specified in the First Schedule and the Second
Schedule to the Act.
Example:- Offences not punishable with death, imprisonment
for life or imprisonment for a term exceeding two years.
Civil and Property suits such as use of common pasture,
water channels, farms, right to draw water from a well or
tube well etc.
37. • The primary focus of the Gram Nyayalaya is to bring
about conciliation between the parties.
• The judgment and order passed by the Gram Nyayalaya
is deemed to be a decree.
• A Gram Nyayalaya is not be bound by the rules of
evidence provided in the Indian Evidence Act, 1872
but is guided by the principles of natural justice and
subject to any rule made by the High Court.
• An appeal against a judgement of the Gram Nyayalaya
is taken forward as follows:
• Session Courts in case of criminal case
• District courts in case of civil cases
38. Ombudsman
• The forum of Ombudsman decides the cases
between citizens and government agencies.
• A Ombudsman is generally a independent and
nonpartisan officer of the legislature
• . He supervises the administration and deals with
specific complaints from the public against
administrative injustice and maladministration.
• An ombudsman proposes solutions to specific
complaints against government agencies.
39. • The Lokpal and Lokayukta Act, 2013 provided for
the establishment of Lokpal for the Union and
Lokayukta for States.
• These institutions are statutory bodies without any
constitutional status.
• They perform the function of an "ombudsman” and
inquire into allegations of corruption against
certain public functionaries and for related matters.
40. Plea Bargaining
• It refers to a person charged with a criminal
offence (accused) negotiating with the prosecution for
a lesser punishment than what is provided in law by
pleading guilty to a less serious offence.
• It primarily involves pretrial negotiations between the
accused and the prosecutor. It may involve bargaining
on the charge or in the quantum of sentence.
• Objective:-
A. To reduce the undesirable orders for other side.
B. Most of the criminal courts are overburdened.
41. • Provision in India:
Plead Guilty: There has always been a provision in
the Code of Criminal Procedure (CrPC) for an
accused to plead ‘guilty’ instead of claiming the
right to a full trial, but it is not the same as plea
bargaining.
• Plea Bargaining: Plea bargaining was introduced in
2006 as part of a set of amendments to
the CrPC as Chapter XXI-A, containing Sections
265A to 265L.
42. • Cases for which the plea bargaining is allowed
are limited.
Only someone who has been charged for an offence
that does not attract the death sentence, life sentence
or a prison term above seven years can make use of
the scheme under Chapter XXI-A. It is also applicable to
private complaints of which a criminal court has taken
cognisance.
• Other categories of cases that cannot be disposed of
through plea bargaining are those that involve
offences affecting the “socio-economic conditions” of
the country, or committed against a woman or a child
below the age of 14.
43. • Favour:
• This ensures speedy trial, ends uncertainty over
the outcome of criminal cases, saves litigation
costs and relieves the parties of anxiety.
• It would also have a dramatic impact on conviction
rates.
• Prolonged imprisonment of undertrials without
any progress in the case for years
and overcrowding of prisons
44. • Against :
• eople who are pushed to plea bargain are those who do not
have the wherewithal to arrange for bail.
• Even courts are also very particular about the voluntary
nature of the exercise, as poverty, ignorance and
prosecution pressure should not lead to someone pleading
guilty of offences that may not have been committed.
• it may hamper the victim’s right to fair trial, involvement of
coercion by the investigating agencies and corruption in the
process.
• Some argue that it is against Article 20 (3) of the
Constitution which provides immunity to an accused
against self-incrimination.
45. Family Court
• Objective:
• An Act to provide for the establishment of Family
Courts with a view to promote conciliation in, and
secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected
therewith.
• Procedure:
• to assist and persuade the parties in arriving at a
settlement in respect of the subject-matter of the suit
or proceeding and for this purpose a Family Court may,
subject to any rules made by the High Court, follow
such procedure as it may deem fit.
46. Conclusion:
• In the next units, we will study all these techniques of
ADR in detail.
• The Mechanism of Alternative Dispute Resolution
System consists of various alternative techniques and
different forums viz. arbitration, conciliation,
mediation, negotiations and Lok Adalat.
• India is poor country and majority of the litigants are
poor and with rural backgrounds.
• The Mechanism of ADR System is a viable substitute
and an effective instrument in providing speedy, cheap
and timely justice Xo the litigants. It has various
advantages
47. REFERENCES (size:44)
• Anupam Kurlwal, An Introduction to Alternative Dispute Resolution (Central Law
Publications; Second edition edition (2014)
• S.C. Tripathi, Alternative Dispute Resolution System, (Allahabad , Central Law Publications,
2014)
• https://shodhganga.inflibnet.ac.in/bitstream/10603/127847/12/07_chapter%202.pdf
• https://blog.ipleaders.in/adr-alternative-dispute-
resolution/#:~:text=Alternative%20Dispute%20Resolution%20mechanism%20provides,me
diation%2C%20negotiation%20and%20lok%20Adalat.
• https://blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution/#Cons_of_ADR
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