ADR Notes

Unit1: History, evolution

Unit 2: Negotiation

Unit 3: Mediation

Unit 4: Arbitration & Conciliation (procedure)

Unit 5: Miscellaneous

(8 Standard/Landmark cases)

Need for ADR (not to replace the legal system, but to supplement it
further)

Conflict vs Dispute (conflict is just a verbal form of expression, dispute is

when there is a legal claim over a subject matter)

TEAM Assessments:

1) Negotiation
2) Mediation
3) Arbitration

Simulations based on the above types.

UNIT-1 Introduction and Evolution

Evolution of ADR:

Systems of ADR was already present in the society. It just did not have a
formal name for that system. However, this system was very prevalent in
the society. Law was lived, not learned.

The Bhradarnayaka Upanishad:

Types of Arbitral Bodies:

1. The Puga
2. The Sreni
3. The Kula

The arbitral bodies, called panchayats dealt with a variety of issues such
as contracts, matrimonial disputes.
Later came the Muslim rule in India, which introduced certain laws.
Hedaya was one such law. Tahkeem was arbitration. Kazee was an official
judge for such matters.

Next came up the East India Company, Arbitration as a form of conflict

resolution gained popularity. The British Administration brought with it the
laws governing arbitration. Implemented first in the towns of Calcutta,
Bombay, and Madras.

Pre-independence of India:

The Bengal Regulations of 1772 and 1781.

Arbitration judgement binding on the parties. These Acts remained in

force until the enactment of CPC.

The Indian Arbitration Act of 1899.

Arbitration (Protocol and Convection) Act passed in accordance with the

Geneva convention.

The Arbitration Act of 1940.

The arbitral award passed must be approved by a court of law. Only then
would it have a binding force on the parties.

Therefore, it actually undercut the objectives of arbitration which was

intended to be a process free of court intervention.

The UNCITRAL (United Nations Commission on International Trade Law)

along with certain other bodies met for a consultative meeting on the
interest of International Commercial Arbitration. The full text of the model
law was adopted on 21st June 1985 by UNCITRAL.

This model law has been adopted by India almost in its entirety in The
Arbitration and Conciliation Act, 1996.

What does ADR do exactly?

ADR brings to:

1) The negotiable table

2) Identifying problems
3) Establishing issues
4) Deciding the outcome of process
5) Making the process and outcome

However, there is no control over the outcome of the decision of the

settlement.

2 Core methods of Dispute Resolution

 1) Inquisitorial
2) Adversarial

Adversarial:

Parties present their cases against each other. The judge acts as a neutral
referee. The whole process depends on evidence and arguments
presented by the parties.

The parties control the evidence.

The court cannot call for evidence on its own.

Witnesses are produced by the parties.

The judge’s role is passive and limited to adjudicating based on presented

materials.

Features:

1. Strong emphasis on lawyers’ advocacy skills.

2. The judge cannot go beyond what is presented.
3. Oral evidence and cross-examination play a major role.
4. Precedents (previous judgements) are binding.

Inquisitorial:

The Judge taken an active role in investigating the facts. The judge may
call and question witness, even if parties do not want to.

Parties do not control the process fully.

The judge guides the process to find the truth.

Less emphasis on oral cross-examination.

Features:

1. The judge can collect evidence independently.

2. Focus is on finding factual truth rather than just winning the
arguments.
3. Less use of precedents; judges decide each case on its merits.

Participative method (ADR):

Many disputes do not require establishing “guilt”. To find amicable

solutions, compensate, and restore peace. ADR mechanisms (like
mediation and conciliation) often adopt participative elements. Crimes
which are compoundable can be resolved outside the court.

Detailed Comparison Table

Adversarial:

1. A contest between prosecution and defense.

2. Parties decide what evidence to bring.
3. Judge is passive, acts as a referee.
4. Precedents are binding.
5. Advocates play an active role.
6. Judge do not manage case timelines.
7. Case often delayed by adjournments.
8. Emphasis on oral testimony and cross-examination.
9. Weak case management by judges.

Inquisitorial:

1. Court actively investigates facts.

2. Judge determines evidence and witnesses.
3. Judge is active, leads fact-finding.
4. Little reliance on precedent.
5. Advocates have a passive role.
6. Judges manage and expedite cases.
7. Designed to ensure speedy justice.
8. Emphasis on documents and real facts.
9. Strong case management by judges.

Different types of ADRs:

1. Negotiation
2. Mediation
3. Conciliation
4. Arbitration
5. Lok Adalat

Lok Adalat:

A forum where cases or disputes are pending in court or which are at a

pre-litigation stage or not yet brought before a court, which can be
compromised or settled amicably.

According to the SC- Lok Adalat prevailed in ancient India (Panchayat).

Lok-People, Adalat-Court.

The main objective of the Lok Adalat is to reduce the burden of the Courts.
Lok Adalat- inexpensive and quick relief.
1st Lok Adalat camp was organized in Gujarat in 1982. It proved to be very
successful in reaching a settlement quickly. Lok Adalat was given statutory
status under the Legal Services Authorities Act, 1987.

The provisions of the Act:

1. Lok Adalats are organized at – State/District/Taluk Legal Services

Authorities or SC/HC Legal Services Committee.
2. At such intervals and placed and for exercising such jurisdiction and
for such areas as it thinks fit.
3. It shall consist of such a number of serving or retires judicial officers
and other persons of the area as may be specifies by the agency
organizing the ok Adalat.
4. The chairman is usually a Judicial Officer. And an advocate, social
worker as members.

Jurisdiction:

1. Any case pending before any court or any matter which is falling
within the jurisdiction of any court and.
2. Matters which are not before such a court.
3. Offences - non-compoundable under any law - are outside the
jurisdiction of Lok Adalat.
4. Any case pending before the court- can be referred to the Lok Adalat
for settlement if:
i) Parties agree to settle the dispute in the Lok Adalat.
ii) One of the parties makes the application to the court.
iii) Court is satisfied that the Lok Adalat can take cognizance of a
matter.
5. In case of a pre-litigation dispute - matter can be referred to Lok
Adalat by the agency organizing the Lok Adalat.
6. Lok Adalat has the same powers as the Civil Courts under the CPC,
1908.

An award of Lok Adalat shall be deemed to be a decree of a Civil Court or

an order of any other Court. Every award made by the Lok Adalat shall be
final and binding on all the parties. No appeal shall lie to anu court against
the award of Lok Adalat in exercise of their right to litigate.

Benefits:

1. No court fees and

2. If court fees are paid already, the amount shall be refunded if the
dispute is settled at the Lok Adalat.
3. Procedural flexibility and speedy trial of the disputes – no strict
application of CPC and Evidence Act.
Types of Lok Adalat:

i) National Lok Adalats: on a single day, in all courts(SC to Taluk

levels)
ii) State Lok Adalats: on particular sets of days, Daily LA, Mobile LA,
Mega LA.
iii) Permanent Lok Adalats: Legal Services Authorities Act of 1987.

Advantages of ADR:

1. Less burden on Courts. (Behram Work bank case)

i) Divert suitable disputes away from the court.
2. Confidentiality of the parties is protected in the ADR system.
3. ADR system preserves the relationship rather than destroy it
completely.
4. The litigation system actually makes you lose much more than what
is compensated by the Court. Therefore, it is not completely
foolproof.
5. It is easier to dispose of the cases. The jurisdiction of the court is
limited, but the ADR system can take up cases as, and which is
brought before it.
6. It is versatile in all cases and need not be confined to one particular
case or field only.
7. Time efficiency and speedy trial of the case.
8. Simple and informal for trial of cases before it.
9. Flexibility of choosing as to who shall be the third party for
mediation or conciliation. Making it more efficient as and when
required.
10. The ability of the party to speak up for themselves is allowed
in the ADR systems, but not in the open court.
11. The reputation of the parties is maintained as it is and is not in
dispute between the parties.
12. Compliance to the ADR is generally by the parties itself. As
both have them agreed to the decided outcome. However, in the
litigation system, the compliance by the parties is forced.

Disadvantages of ADR

1. Precedents are not valued the same as in litigation.

2. The benefit is only for the parties who approach the ADR, however,
in litigation, it is not the same case.
3. The imbalance of the parties is a problem to the parties, as they are
the one who will suffer in the end. Parties may choose to bring any
person as they wish to.
4. Equal bargaining power is missing.
 5. The role of courts is for deterrence and not for compromise. In ADR,
it is not deterrence, but rather only compromise and settlement. The
wrong may be committed again by the parties.
6. Whatever is decided in ADR system is not publicly disclosed and
therefore, there is no proper deterrence provided by the ADR.
7. Huge population of the people cannot be made as parties in the
ADR. Multi-party settlement. It becomes difficult for the parties to
reach a settlement.
8. Fast track Courts established by the government is set aside. Judicial
reforms are brought into the society, however, such reforms are not
brought into the ADR system and therefore, such reforms, unless
applied, are rendered useless.
9. Deliberate defaults are not entertained by the ADR system.
10. Parties can deliberately hide facts before the ADR system and
thereby get a favorable decision.
11. In ADR system, the parties may be forced to settle for less
when actually they are entitled for more. Factors which may be
considered such as financial pressure, urgency and other factors as
such.
12. Interim orders can be given in litigation system, but not in
ADR system. No injunctive relief is possible.
13. It may be considered as inferior to the proper litigation
system. Therefore, the parties may require that litigation itself is the
process for resolving the disputes.

Suitability of ADR disputes:

Types of disputes

1. Property
2. Matrimonial
3. Industrial
4. Petty cases
5. & many others

However, not all disputes can be referred to only one type of ADR system.
It must be divided properly.

There are certain steps to be followed:

1. Suitability of the ADR system. (factors like time, disposal rate)

i. Recognition of the dispute.
ii. Selection of the most probable and best ADR for the dispute
at hand.
 iii. Certain lines of enquiry must be followed. Whether the
dispute is bona fide or not? Certain tests must be followed
and looked into. As to whether there is a conflict or dispute?
iv. Anticipated lines of enquiry cannot be allowed. There must
be a legal claim which has been violated.
2. Nature and type of dispute in question.
i. Check whether the dispute is false, frivolous or of any other
kind.
ii. Whether the dispute is integrative or distributive? (when both
parties require the benefit, it is integrative; when parties
require a win-lose situation, it is a distributive).
iii. Whether the dispute is simple or complex? Both can be taken
up by the ADR system.
iv. Nature of relation between the parties must be looked into.
Based on the relation between the parties, the ADR system
can be looked into.
v. Whether the dispute occurs once or recurring in nature, then
it is not required to be settled in ADR system.
vi. A new dispute not encountered before must require careful
handling before the parties. If there is a chance of
settlement, only then it is applicable for the parties to come
to a beneficial agreement.
vii. Check whether the court or the system has the pecuniary
jurisdiction to decide upon the matter so brought before it.
viii. Based on the goals or expectations of the parties, the ADR
system can be chosen perfectly.
3. Change in nature of party goals.
i. Parties may change the outcome of the dispute altogether.
As the process goes on, the mindset of the parties may
change and therefore, may require the mediator to change
the outcome or the decision thereof.
ii. However, if the goals itself change and then the parties
require a different form of resolution altogether, then the
resolution mechanism must change.
iii. Courts themselves direct the case to the ADR system before
trying the case so as to make it easier for the parties to
resolve the dispute altogether.
4. Relationship between the parties.
i. Choose the ADR as per the requirement of the parties.
Mediation for divorce and partition suits.
ii. Sometimes, it is only a therapeutic requirement of the parties
to vent their anger on each other. Therefore, it is the ADR
system that will take care of their problems.
UNIT-2 Negotiation

Meaning and significance of Negotiation:

Even in history, disputes have been resolved in different ways: power

based, rights based, interest based depending on the stages of social
development.

1. Power based (earlier societies): disputes settled by strength, force

and dominance. No formal rules and laws. Survival of the fittest.
2. Right based (developing societies): organized societies and
governance. Resolved by law, rights, and social norms. Authoritative
person or body decides the dispute. Focuses on who is right and not
mutual satisfaction.
3. Interest based (modern societies): cooperation and dialogue.
Underlying interest and needs and. Not power or strict rights.
Voluntary and participative process.

Modern dispute management emphasizes interest-based process.

Negotiation:

It is a process of discussion and communication,

Between two or more parties,

With the aim of reaching an agreement or resolving a dispute.

It involves identifying common interests,

Exploring potential solutions and,

finding compromises that satisfy all parties involved.

When a dispute arises between two parties, they sit together and discuss
it with open mind without a third-party intervention between them.

It is done so that the parties themselves can find a solution for their own
needs and interests.
Meaning:

It is primarily a common means of securing one’s expectations from

others.

Ginny Pearson Bames says Negotiation is a resolution of a disagreement

using give and take within the context of a particular relationship.

It involves sharing ideas and information and seeking a mutually

acceptable outcome.

The Pepperdine University of USA has defined negotiation as,

It is a communication process used to put deals together or resolve

conflict. It is voluntary, non-binding process in which the parties control
the outcome as well as the procedures.

In simple terms, negotiation is a discussion between two or more people

or groups who are trying to solve a problem or reach an agreement.

Essentials:

i. Listening
ii. Give and take
iii. Compromise

Nature of Negotiation:

1. Interpersonal or intergroup process. (between individuals,

companies, countries)
2. Expectation of give and take. (concessions)
3. Interlocking goals. (need each other but do not want the exact same
thing)

Types of Negotiation outcomes:

1. Win-Lose
2. Win-Win

Approaches used by disputants:

1. Force the other side

2. Modify positions
3. Invent a solution

Mutual adjustments in negotiation:

1. Adjust their demands

2. React to the other party moves
3. Influence each other’s outcome

Exchange of information and concessions:

 1. Sharing information
2. Making proposals
3. Accepting or rejecting offers
4. Making concessions
5. If one party never compromises, negotiations may fail. (deadlock)

Definition of negotiation:

P.C. Rao (Secretary General, ICADR):

It means a non-binding procedure in which discussions between the

parties are initiated without the intervention of a third party in the dispute
settlement process.

Key features of Negotiation:

1. Voluntary process
2. No third-party intervention
3. Non-binding
4. Based on discussion
5. Involves compromise
6. Can be win-win or win-lose

In summary it can be said that-

It is a process where people talk, adjust, compromise, and bargain to

reach a solution beneficial to all.

Stages of Negotiation:

1. Planning and preparation.

i. Framing the problem
ii. Determining the negotiation agenda (List of all the issues)
iii. Agreeing the negotiation procedure
iv. Prioritizing parties’ goals
v. Sequencing the issues
vi. Consulting with constituents
vii. Defining specific targets
viii. Packaging issues
ix. Developing supporting facts
x. Assessing other party’s needs and interests
2. Opening.
i. Polite language
ii. Reputation is of great matter
iii. Embarrassing the other party must be avoided
iv. Effect of humiliation should be avoided
3. Bargaining.
i. Definition of negotiation’s scope
 ii. Creating a schedule for it
iii. Interested parties are identified and consulted with
iv. Present their case with no interruption
v. Ask questions as to understand the interests of the other party
vi. Listening to the other party and not hear them
vii. Clarification of goals
viii. Negotiating towards a win-win situation
ix. Agreement
x. Implementation of action
4. Closure and implementation.

Advantages of Negotiation:

1. Party-based dispute resolution

i. Only parties are involved
ii. Excludes other parties
iii. Private and secret process
iv. Process’s content, duration, venue, and other factors
2. Freedom of parties
3. Consent of parties
4. No third-party intervention
5. Comfortable process
6. Improvement in relations

Disadvantages of Negotiation:

1. Unfair outcome when there is a power imbalance.

2. Stage of impasse or deadlock.
3. Waste of time in case of deadlock or impasse.
4. Back away from the negotiation process at any given point of time.
5. Not all parties can be brought for negotiation, multiple stakeholders
in negotiation.

In conclusion, negotiation is a very good process for solving the disputes,

but it has to be kept in mind of the different stakeholders and factors in
the process. Therefore, it is recommended to proceed very carefully with
the negotiation process.

Styles of Negotiation

Thomas-Kilmann model

1. Competition
2. Collaboration
3. Compromise
4. Accommodation
 5. Avoidance

The negotiation style is reflected in

1. Communication skills
2. Interpersonal behavior of negotiators
3. Language
4. Voice tones
5. Choices
6. Listening behavior
7. Non-verbal gestures and
8. Judgement (way in which you take a call based on how you think of
something)

Styles:

1) Competitive style:
Competitive personalities are result driven. They are focused and
assertive (confident and forceful) in their communication and often
aggressive. Competitive negotiators are strategic thinkers therefore
have very little time for pleasantries. Tactics used may be as to
make extreme offers, pressure tactics, withhold information, and
leverage power to gain the upper hand in the negotiation.
2) Collaborative style:
Not result driven but rather looks into the goal of both the parties in
the negotiation. Creative solution is to be looked into. Choice of
language and respect to the parties.
3) Compromise style:
Where one party compromises his own interest to benefit the other
party. Due to any external reasons such as relations and having any
other benefits. Either party is satisfied by the outcome.
4) Accommodation style:
Almost the same as compromise style of negotiation but here the
party itself is interested in accommodating the other party for the
reason of relations between the parties.
5) Avoidance style:
When the parties are not interested in appearing for the negotiation
for the reason that it is of a petty issue. Therefore, parties do not
appear itself.

Class by Dr. Manojkumar: ADR & CPC

The relation between ADR and CPC is Section 89 of CPC. The Judge
recommends the case for ADR when it comes before the court. In 1908,
the CPC only gave priority to Arbitration alone, and it gave or favored the
British more. Later, The Arbitration Act was passed in 1940. Section 89 of
CPC was repealed. From 1940 to 1996, The Arbitration Act was the main
law governing ADR. Later, The Arbitration and Conciliation Act, 1996 was
passed. However, in between this, in 1988, there were many disputes
regarding the tenancy under The Rent Act. However, only arbitration was
given importance and not for mediation and conciliation.

The Supreme Court made some recommendations as to refer matters to

ADR. Therefore, section 89 was again brought into the CPC as an
amendment in 1999. It was not enforced as there were some draftsman
errors. This amendment was challenged before the Supreme Court by the
Advocates, as they were under the fear of being jobless. Salem Bar
Association v. UOI was the case and challenged the amendment. Supreme
Court did not entertain the matter and upheld the constitutional value of
Section 89 of the CPC.

However, there were some draftsman errors in the CPC amendment. As

this was the case, it was not possible to give effect to the amendment.
Supreme Court appointed a committee headed by Jagganath Rao. They
found out the errors of section 89. To look into the report of the
committee, another case was constituted in 2005. Salem bar association
v. UOI (2nd case). SC issued some guidelines to give effect to Section 89. It
also directed the HCs of the State to frame Mediation Rules and establish
a Mediation centers. Direction to all HC to prepare a list of mediators who
have undergone training for 40 hours. They were empaneled as
mediators. Another direction was given that in certain civil disputes,
matters have to refereed to ADR mandatorily.

Under Section 89 of the CPC, the Subsection (1) of it had many

interpretational errors. The Judge had to check whether there was an
element of settlement between the parties and then refer the matter to
ADR. However, this was the job of a Mediator and not a Judge. Therefore,
confusion arose as to what exactly to be done by a Judge.

Under Subsection (2) of Section 89, clauses (c) & (d) were having a
different interpretation altogether. Judicial settlement was made through
the authority of the Court, but the section said that the Judicial Settlement
was to be made by a person or authority to which it was referred. Clause
(d) says that Court shall effect a compromise, it is fit to be called as
judicial settlement. Therefore, the clauses had to be interchanged in order
to make it enforceable. SC made sure to resolve the anomalies present in
the Act. They interchanged the definitions.
As far as Subsection (1) was concerned, Judge had to just record 2 or 3
sentences by the parties and if found that the matter could be settled by
ADR, the Judge shall refer the matter to it. This was the meaning referred
to in Subsection (1) of Section 89 and no other meaning was to be
interpreted.

Apart from section 89 of CPC, there are certain other provisions of the CPC
which provided for the same. Order X, Rule 1A,1B, and 1C were added to
the amendment. After referral of the matter, what could be the possible
recourses available, this was given under Rule 1A, 1B and 1C of the CPC.

Order XXXII A, Rule 3; duty of the Courts to reach settlement in family

disputes and not go for adjudication.

Order XXXVII, Rule 5B; duty of the Court to assist the parties to arrive at a
settlement in a suit between the government or the State.

Order XV A, Case management Hearing is a stage of the civil suit where

the time period of the stages of suit are determined by the court by calling
the parties before it. Check possibility of settlement between the parties.

Afcons Infrastructure Ltd. Vs Cherian Varkey Construction Company Ltd.

Court clarifies the Section 89 of CPC and also gives a list of cases suitable
for ADR. This is an illustrative list given by the Court.

UNIT 2 Conti……

Approaches to Negotiation:

1. Distributive (Adversarial or Right-based approach) (win or lose)

(competitive style of negotiation)
2. Integrative (collaborative or Interest-based approach) (win-win)
(collaborative style of negotiation)

Features of distributive approach:

1. High opening demand

2. Threats, tension & pressure
3. Stretching the facts
4. Sticking to positions
5. Being tight lipped
6. Want to outdo; outmanoeuvre the other side
7. Want clear victory

Disadvantages of such approach:

 1. Confrontation leads to rigidity
2. Limited analysis of merits of dispute
3. Limited development of alternative solution
4. Hard to predict the outcome
5. Blind to joint gains
6. Threaten their future relations
7. Have impasse and increased costs

Qualities of a Negotiator:

1. To cultivate and analyze BATNA

2. To negotiate the process
3. To build rapport
4. Listen actively
5. To ask good questions (open ended, probing and clarifying
questions)
6. Search for smart trade-offs
7. To be aware of anchoring bias
8. Multiple equivalent offers simultaneously (MESO)
9. Plan for the implementation stage

Skills of Negotiator:

1. Ability to prepare and plan

ZOPA- Zone of possible Agreement
2. To set objectives and assess them constantly
Ideal goal
Target goal
Walk away point
3. To do research and collect the details
4. To devise appropriate concessions
5. To perform under pressure
6. Sensitive towards the other party’s needs
UNIT 3 Mediation

Resolving disputes humanely

A comprehensive exploration of mediation as an alternative dispute

resolution method that focuses on resolution rather than victory,
preserving relationships while delivering justice efficiently.

What is mediation?

It is a voluntary and non-binding method of dispute resolution in which a

neutral third party, called a mediator, assists disputing parties in reaching
a mutually acceptable settlement.

In simple terms: Mediation is assisted negotiation.

Under Section 3(h) of the Mediation Act, 2023, mediation is defined as a

process where parties attempt to reach amicable settlement with
assistance of a mediator who has no authority to impose settlement.

Private Caucus: Mediator only with a single party

Joint Caucus: Mediator with both parties

The Mediator’s role:

He serves as a neutral facilitator who:

1. Facilitates open and honest communication between parties.

2. Clarifies misunderstandings and miscommunications,
3. Helps explore creative solutions and alternatives.
4. Creates a safe space for dialogue.
5. Guides the process while parties retain control.

The decision is always made by the parties themselves.

What a Mediator does not do?

1. Does not decide who is right or wrong.

2. Does not impose a judgement.
3. Does not pass an award.
 4. Has no adjudicatory power.

Five essential features of Mediation:

 Voluntary
 Confidential
 Neutral third party
 Party autonomy
 Flexible procedure

Core advantages of Mediation:

1. Reduces court burden

2. Saves significant time
3. Cost effective
4. Preserves relationships

Other advantages:

5. Confidentiality protection
6. Enhanced party autonomy
7. Emotional healing

Qualities and role of a Mediator:

1. Courtesy
2. Respect
3. Good listening (Active/Projective listening)
a) Marginal listening – Pretend to listen
b) Evaluative listening – Listening to judge
c) Projective (empathic) listening – Listening to understand
4. Empathy
5. Sympathy/Sensitivity
6. Emotional stability
7. Integrity
8. Trustworthiness
9. Straight talk (facilitative and evaluative role) (shift according to the
role required)
10. Wisdom (experience + judgement+ practical intelligence)
11. Flexibility
12. Expertise
13. Vigour (energy to keep the process moving)
14. Perseverance (not giving up during an impasse)
15. Patience (allowing emotional ventilation)
16. Availability (being accessible and committed)
17. Impartiality (equal treatment in procedure)
18. Neutrality (no vested interest in outcome)
 19. Feedback (adjusting styles based on responses)

Role of Mediator:

1. Impartiality
2. Confidentiality
3. Build trust
4. Encourages open communication
5. Handling difficult situations
6. Alternative solutions available
7. Voluntary settlement

Code of conduct for mediators:

1. Avoid conflict of interest

2. Awareness about competence
3. Impartiality
4. Make sure about free volition of parties
5. Strict confidentiality
6. Keep parties duly protected
7. Encourage parties to converse with each other
8. Settlement must be voluntary
9. Interest of third parties to be protected
10. Commitment to truthfulness and trustworthiness

STAGES OF MEDIATION

There are four functional stages of mediation process:-

1. Introduction and opening statement

2. Joint Session/caucus

3. Separate Session/caucus

4. Reaching a settlement

5. Closing

Types of Mediation:

1. Facilitative Mediation: The most traditional approach, where a

neutral mediator helps parties communicate, identify interests, and
reach their own voluntary agreement without offering advice or
pressure.
2. Evaluative Mediation: The mediator focuses on the legal strengths
and weaknesses of each party's position, often suggesting or
proposing concrete solutions to reach a settlement.
 3. Transformative Mediation: Focuses on resolving the conflict by
empowering the parties to understand each other's needs and
interests, aiming for a shift in their relationship rather than just a
quick settlement.
4. Med-Arb (Mediation-Arbitration): A hybrid process where parties first
try to resolve disputes through mediation. If that fails, they move to
binding arbitration to reach a final decision.
5. Court-Mandated/Annexed Mediation: A judge orders the parties to
engage in mediation, often to speed up litigation, reduce court
costs, and find a swift resolution.
6. Online Mediation (e-Mediation): Mediation conducted virtually, which
is highly convenient and suitable for situations where parties cannot
be in the same location.
7. Interest-Based Mediation: Similar to facilitative, this method focuses
heavily on identifying the underlying needs, interests, and creative
solutions outside traditional legal frameworks.

UNIT 4 Arbitration and Conciliation

The Arbitration and Conciliation Act, 1996

Section 3 Communication

Section 4 Waiver of right to object

If a person does not object to any deviation from this Act, then he waives
his right to object subsequently.

Section 5 Extent of Judicial Intervention

Only when the Act allows it. Judicial intervention is permissible. Principle of
minimal court intervention. (Section 8,9,11,27,34,37)

Section 6 Administrative assistance to arbitration

Section 7 Arbitration agreement

It is the founding stone of any agreement.

Substantive requirement(prescribed by law) and form requirement(certain

other requirements). It needs to fulfill both.

1. Unconditional intention to arbitrate

2. Contract Act needs to be fulfilled
3. Business relationship between the parties/ defined legal relationship
4. Claim is arbitrable. (a crime cannot be arbitrated)

Agreement to contain any of the following forms:

 1. Written in document and signed by parties.
2. Even communication is enough with different forms. (letter, telex,
telegram)
3. An exchange of statements and defense.
4. Reference by incorporation or recognition.

Section 8 Power to refer matter to arbitration when there is an arbitration

clause.

Judicial authority to refer the matter to arbitration as and when agreement

states.

Certain limitations:

1. Existence of a valid agreement.

2. That no steps have been taken prior to filing of section 8 application.

30 days time period to respond or the party can move forward with
section 11 application. Appointment of sole arbitrator.

Section 9 Interim measures, etc., by Court

Any measures by the party to be taken should be applied to the court.

Only then can the interim relief be granted.

Phases of Arbitration:

1. Pre-arbitration (till the time arbitration tribunal is constituted)

2. During arbitration
3. Post-award

Three test to follow for interim measures:

1. There is a prima facie case

2. Irreparable injury or harm
3. Balance of convenience

Section 11 Appointment of Arbitrator

Section 12 Grounds of challenge

Section 13 Procedure for challenge

Jurisdiction of Arbitral Tribunal

Section 16 Competence of Arbitral Tribunal to rule on jurisdiction

Section 17 Interim measures ordered by Arbitral Tribunal

Section 18 Equal treatment of parties (Equality of parties)

Section 19 to 27: Process of Arbitration

Section 28 Rules applicable to substance of dispute:

The parties can choose as to which law is applicable to their dispute

according to domestic or international dispute. Or the Arbitrator can
decide upon the grounds of equity and fairness.

Section 29A Time period of Arbitration

Within 12 months from date of presentation of pleadings

Section 34 Application for setting aside arbitral award

7 grounds

Conciliation

Features:

1. Voluntary process
2. Non-binding
3. Confidential
4. Flexible
5. Neutral third party
6. Focus on settlement

Significance:

1. Saves time and cost

2. Preserves relationship
3. Flexible
4. Confidentiality
5. Reduces burden on the courts

Advantages:

1. Simple and informal process

2. Cost effective
3. Time serving
4. Confidentiality
5. Flexible
6. Mutually acceptable solution
7. Reduces workload of courts

Disadvantages:

1. No binding decision
2. Risk of delay
3. Confidentiality limits transparency
Process of Conciliation:

1. Initiation
2. Appointment of conciliator
3. Submission of statements
4. Preliminary meetings
5. Joint meetings
6. Drafting settlement agreement
7. Legally enforceable and binding settlement
8. Termination of proceedings

Types of conciliation:

1. Voluntary conciliation
2. Court Induced
3. Compulsory
4. Mediation Induced
5. Facilitative
6. Evaluated conciliation

Sections

61 to 81

Important Questions

UNIT 1:

1. Different mechanisms of ADR

2. Note on Section 89 of CPC
3. Advantages and disadvantages of ADR system.

UNIT 2:

1. Stages of Negotiation
2. Skills required for effective negotiation
3. Qualities of a Negotiators

UNIT 3:

1. Stages of mediation
2. Mediator’s code of conduct
3. Types of mediation

UNIT 4:

1. Qualities and roles of conciliator

Section 61 to 81 of the Act. (Roles)

 a. Section 64 to 66 (Administrative role)
b. Section 67(1) (Facilitative role)
c. Section 67 (2) and (3) (Advisory role)
d. Section 70 (Drafting role)
Qualities (Section 65 and 70) (same as mediator)
2. Procedure of conciliation as under the Act
Proceedings:
Sections 62, 64, 65, 69, 62(2),76, 73, 77, 70

3. Arbitration Agreement
Arbitration:
Section 7 (1) (3) and (4)
Definitions
Section 89 of CPC
Non arbitrable disputes
Section 16
Section 8 (reference)
Group of companies’ doctrine

4. Stages of Arbitral Procedures

Proceedings:
Section 21, 10-15, 20-22, 23, 24, 17, 28-31, 31A, 34 and 36

Quick Notes:

Section 61 to 81 of the Act. (Roles)

e. Section 64 to 66 (Administrative role)

f. Section 67(1) (Facilitative role)
g. Section 67 (2) and (3) (Advisory role)
h. Section 70 (Drafting role)

Qualities (Section 65 and 70) (same as mediator)

Proceedings:

Sections 62, 64, 65, 69, 62(2),76, 73, 77, 70

Arbitration:
Section 7 (1) (3) and (4)

Definitions

Section 89 of CPC

Non arbitrable disputes

Section 16

Section 8 (reference)

Group of companies’ doctrine

Proceedings:

Section 21, 10-15, 20-22, 23, 24, 17, 28-31, 31A, 34 and 36