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techniques of ADR- With Polls.pptx

  1. 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. 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
  3. 3. Introduction Poll Whether a mandate for ADR has been given under our constitution ? 1. Yes 2. No
  4. 4. Techniques of ADR
  5. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 15. • The decision of the Arbitrator is binding on the parties • True • False
  16. 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. 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. 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. 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.
  20. 20. Poll/MCQ • Is conciliation a binding Process on Parties? • Yes • No
  21. 21. 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
  22. 22. • 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.
  23. 23. • 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.
  24. 24. 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.
  25. 25. • 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.
  26. 26. • 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.
  27. 27. • 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.
  29. 29. 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.
  30. 30. • 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.
  31. 31. • Powers of Lok adalat • Lok Adalats at various levels plus their composition • Conclusion
  32. 32. 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.
  33. 33. • 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.
  34. 34. • 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
  35. 35. 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.
  36. 36. • 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.
  37. 37. 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.
  38. 38. • 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.
  39. 39. • 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.
  40. 40. • 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
  41. 41. • 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.
  42. 42. 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.
  43. 43. 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
  44. 44. 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 47
  45. 45. THANK YOU For queries Email: puneetish.e8246@cumail.in@ gmail.com