2. Types of ADR methods
A. Arbitration
Where two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons in a judicial manner, that is, after recording evidence, the agreement is called an Arbitration Agreement. When, after a dispute has arisen, it is put before such person(s), the procedure is called as 'Arbitration', and the decision made is called "award". The person conducting the Arbitration proceeding is called an Arbitrator. The Arbitrator is appointed by the parties to the dispute and in case of any dispute about the appointment of the Arbitrator, the Court may be asked to appoint an Arbitrator. Where there is more than one Arbitrator the leading Arbitrator is called an Umpire, who is responsible for conducting the proceedings.
The number of arbitrators can only be in odd number. The decision in such cases is decided by the majority of arbitrators,
Arbitration is a method whereby parties can resolve their disputes privately. In this mechanism parties can refer their case to an Arbitral Tribunal where arbitration proceedings are conducted.
Arbitration is preferred over traditional litigation because Arbitration is generally less expensive than litigation. It provides for faster resolution of dispute through flexible time schedule and simpler rules. A Court is burdened with a number of cases taken up for hearing every day. An arbitrator conducts only the proceedings referred to him by the parties.
Arbitration offers advantages that cannot be provided by litigation in courts. In many cases, a big advantage is that the Arbitrator or Arbitral Tribunal is an expert in the field of the dispute so the proceedings can be conducted without the intervention of lawyers or any other representative in an expeditious manner.
Disputes in trade, rent of properties, partition of properties, partition of partnership firms and various consumer disputes can be resolved this way.
Arbitration is preferred over traditional litigation because Arbitration is generally less expensive than litigation. It provides for faster resolution of dispute through flexible time schedule and simpler rules. A Court is burdened with a number of cases taken up for hearing every day. An arbitrator conducts only the proceedings referred to him by the parties.
Arbitration offers advantages that cannot be provided by litigation in courts. In many cases, a big advantage is that the Arbitrator or Arbitral Tribunal is an expert in the field of the dispute so the proceedings can be conducted without the intervention of lawyers or any other representative in an expeditious manner.
Disputes in trade, rent of properties, partition of properties, partition of partnership firms and various consumer disputes can be resolved this way.
B. Conciliation
'Conciliation' is a process in which a third party assilts the parties to resolve their dispute by agreement. The person assisting the parties is called Conciliator.
The Conciliator is appointed by the consent of both the parties to the dispute.
A Civil Court may also refer both the parties to the dispute to a Conciliator, A Conciliator may do so by expressing an opinion to the parties about the merits of the dispute to help the parties to reach a settlement. Conciliation is a compromise settlement between the parties with the assistance of a Conciliator.
The Conciliator does not take any decision on the dispute before him. No evidence is recorded by the Conciliator nor are any arguments heard. Both the parties may discuss their respective points of view and with the help of the Conciliator resolve their differences, The proceedings before the Conciliator are confidential and do not have any bearing on the proceedings before the Court or before the Arbitrator regarding the dispute.
Conciliation is a voluntary and non binding process in comparison to Arbitration and Litigation in courts. Any party may terminate the conciliation proceedings at any time without assigning any reason.
The other important difference is that the parties control the process and outcome of the dispute. In the case Arbitration and litigation in Courts the parties have no role in the decision of the case by the Court or in the making of the Award by the Arbitrator. The Conciliator solemnly urges the parties for an amicable reconciliation.
C. Mediation
'Mediation' is a process for resolving the dispute with the aid of an independent third person that assists the parties in dispute to reach a negotiated resolution.
'Mediation' is the acceptable intervention into a dispute of a third party that has no authority to make a decision. The person conducting the mediation
process is called a Mediator. The mediation process, like the Conciliation process is voluntary and is one more alternate way of resolving a dispute.
The Mediation proceedings are confidential, whether or not it results in the settlement and resolution of the dispute.
A Mediator assists the parties to reach an agreement for resolving the dispute.
He/ She does not express his/ her opinion on merits of the dispute. On the other hand a Conciliator may express an opinion about the merits of the dispute to the parties.
In both processes, a third party is appointed to assist the parties to reach a settlement of their dispute. His/her function is only to try to break any deadlock and encourage the parties to reach an amicable settlement. A Mediator does not determine a dispute between parties.
D. Negotiation
'Negotiation' is another form of ADR of resolving the disputes. The parties agree upon a course of action and bargain for advantage. Sometimes they try to adopt a creative option that serves their mutual interests. And because of its mutual advantages, people negotiate in almost all walks of life from home to the Court room. It is most common form of resolving a dispute and this process solves most disputes if negotiation fails, it is necessary to seek assistance of a neutral third party to reach a solution. Negotiation bargaining is a process in which both the parties cooperate and seek a solution which is beneficial to both sides. If and when negotiation succeeds, the parties sign a settlement agreement incorporating the terms and conditions of the agreement.
Our legal procedures also provide for settling criminal cases. However, the Court allows for settlement in criminal cases which are mostly trivial in nature.
These cases are governed under section 320 of the Code of Criminal Procedure, 1973 and the cases settled under this provision are termed as compounded. The code specifies a category of cases which can be compounded. Code of Criminal Procedure, 1973 governs the procedure to be adopted in criminal cases Yet another provision available is Plea Bargaining under section 265 A of the Code of Criminal Procedure, 1973. Under this provision if the accused is willing to plead guilty for the fence alleged, and expresses his/her willingness to compromise the case with the victim then he/she can be allowed to do the same but only with the consent of the Court. All these provisions have been provided for to ease the work load of the Courts and speedy disposal of cases.
E. Lok Adalat
'Lok Adalat' is yet another form of ADR created as per the requirements of people in particular areas. Camps of Lok Adalat were initially started at Gujarat in 1982 and now they have been extended to all over India. The main purpose of establishment of Lok Adalats is to diminish the heavy burden of pendency of cases in the Courts which were of petty nature. The seekers of justice are in millions and it is becoming rather a heavy burden on the courts to dispose off such matters keeping in view the ever increasing litigation.
Lok Adalats are organized with financial assistance from the Government and monitored by the Judiciary. Lok Adalats have set conciliation process in motion in India. Lok Adalats have assumed statutory recognition under the Legal Services Authority Act, 1987. The Section 19 of Legal Services Authorities provides for organization of Lok Adalats. Furthermore, it has the jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute. Every award of the Lok Adalat shall be deemed to be a decree of a civil court, or as the case may be, an order of any other civil court. Where a compromise is or settlement is arrived at, by Lok Adalat, the court fee paid in such cases shall be refunded. Similar is the condition in cases settled in the mediation cell referred through courts.
Lok Adalats is the most popular of Alternative Dispute Resolution (ADR)
Techniques. Lok Adalats are providing less expensive and speedy Justice. Lok Adalats have assumed statutory recognition under the Legal Services Authority Act. 1987
