LLB(HONS)

Second Year-4th Semester Subject Code- H3L2023 Total Credits:4

Subject Subject Name: ALTERNATE DISPUTE T/L/ L T/ P/R C

Code: RESOLUTION ETL S.Lr

H3L2023
Prerequisite : to understand the judicial delay T 3 1 - 4
and arrears are the greatest form of causality in
adversarial process

L : Lecture, T : Tutorial,SLr : Supervised Learning, P: Project, R : Research, C :

Credits, T/L/ETL :Theory / Lab / Embedded Theory and Lab

OBJECTIVES

The Objective of the courses is to train the students to understand the judicial delay and arrears
are the greatest form of causality in adversarial process. Adjudication through Court of Law are
high in terms of time, expense and damage to relationships. With the introduction of Section 89,
CPC and amendment in the Arbitration and Conciliation Act 1996 in 2015andsetting up of in -
house mediation centers focus is shifting on non coercive and consensualprocesses of Mediation
and Conciliation is the fastest growing dispute resolution remedy worldwide. Mediation and
Conciliation shall provide for a Win-Win situation for the parties to thedispute, as the resolution
takes place with the characteristic of amicability, peacefulness and mutual settlement between
parties thus finality, without intervention of the Court. There is a need of blending judicial and
non-judicial dispute resolution mechanism and bring mediation a primary method of resolution
of dispute to the center of the Indian Judicial System. The subject is old but needs reassurance
and learned in theory and practice, to be looked upon more as primary option than as Alternate
dispute resolution (ADR) mechanism. This course will be learned under two basics. First, the
theoretical understanding of the concepts and, the ethical and legal provisions relating to,
mediation and conciliation. Secondly, the course is geared to train the students in the practical
skills required to effectively participate and practice, mediation and conciliation processes.

COURSE OUTCOMES (Cos)

Students completing this course were able to

CO1 To have an elementary understanding of the Law on the subject and the precedents laid
down by court annexed mediation in India and abroad are exhaustively dealt with.

CO2 To develop and understand the nature of dispute, conflicts and make choice of appropriate
settlement technique toand resolve them.

CO3 To develops basic ability to analyse and advice the identification of real needs and
 interests resolves the disputes without undergoingarduous trial procedures.

CO4 To understand and enhance the practical skills apart from theory, in long run shall
reduce backlog anddocket explosions before the Court of Law.

CO5 To understand, prepare and present an engaging informative presentation on a

chosen area ofADR that expands upon the core themes of the course.

Mapping of Course Outcome with Program Outcome (POs)

Cos/POs PO1 PO2 PO3 PO4 PO5 PO6 PO7 PO8 PO9 PO10 PO11 PO12

CO1 1 - 1 1 1 1 - - 2 - - -

CO2 1 - 1 1 1 1 - - 2 - - -

CO3 - 1 - - - - 1 1 1 1 1 1

CO4 2 3 2 2 2 2 3 3 1 3 3 3

CO5 3 3 3 3 3 3 3 3 2 3 3 3

COs/PSOs PSO1 PSO2 PSO3

CO1 1 3 3

CO2 1 3 3

CO3 - 3 3

CO4 2 1 1

CO5 3 - -

3/2/1 Indicates Strength Of Correlation, 3 – High, 2- Medium, 1- Low

Category Basic Engg.Science Humani Program Program Open Practical/P Internship Internship
Sciences ties Core Elective Elective roject s/T s/T
&social echnical echnical
Science Skills Skills

✔
COURSE OUTLINE
MODEL I: Introduction: Nature and Scope of Conflict and Disputes:

a) Causes for conflict, Kinds of conflict, Escalation and De-escalation of conflict. Dispute as a
manifestation or starting point of conflict. The role of Law and Society in ensuring settlement of disputes
and effective conflict resolution.

b) Negotiation, Mediation, Arbitration and Adjudication: scope and relative merits. Limitations of the
adversarial process and need for consensual resolution. Mediation as the preferred ADR mode.
c) Pendency of cases in India, its causes and consequences. The need for Alternative Dispute
Resolution. Mediation as a flexible, timely, cost-effective mode of alternative disputeresolution.

MODEL II: Alternative Dispute Mechanism and Arbitration Agreement and Procedure

a) Alternative Dispute Resolution – Definition, Scope and Genesis

b) Overview of Alternative Dispute Resolution Process -Arbitration, Mediation, Conciliation,

Lok Adalat and Judicial Settlements

c) Evolution of the concept of ADR with historical prospective -Position of ADR in Ancient India,
Position of ADR in Mughal period, Position of ADR during British Period, Position after
Independence
d) Agreement based and Court annexed ADR processes - Arbitration and Conciliation Act 1996and
Amendments in 2015 and 2019
e) Arbitrability and Non-Arbitrability of Disputes – Interim Measures by Court and Arbitral Tribunal
f) Arbitration Agreement/Clause – Arbitration Procedure– Arbitration& Mediation Process – MED-
ARB-MED - Decision/Award/Settlement

MODEL III: ADR: Characteristics and Conceptual Analysis:

a) Definitions and key characteristics, Fastest growing ADR mode. Nature of mediation as voluntary,
consensual, non-coercive, confidential and risk-free. Parties retain control of the process.
b) Problem-defining, Problem-solving and settlement stages. Opening round, joint sessions and private
caucus. Gathering information, analysing issues and interests, generating options and proposals,
resolving disagreements, reaching agreement.
c) Facilitative, Evaluative and Transformative Mediation. Role of the Mediator as a neutral facilitator,
impartial moderator, trusted interlocutor but never a legal advisor.

MODEL IV: Contemporary Trends

a) Emerging Trends – Institutional Arbitrations - Online Dispute Resolution

b) Dispute Resolution – Sector Specific ADR

MODEL V: Negotiations and Conciliations, Mediation and Procedure, InternationalCommercial
Arbitration
a) Geneva Convention on Enforcement of Foreign Arbitral Awards
b) New York Convention on Enforcement of Foreign Arbitral Award
c) New Delhi International Arbitration Centre Ordinance Role of Courts in Arbitration
d) Meaning, features, theories and types of Negotiations and Conciliations

e) Appointment, Role and qualities of Negotiator and Conciliator

f) Process of Negotiations and Conciliations.

g) Meaning, Definition, theories and techniques of mediation, Court-annexed mediation

h) Mediation process - Skills of a mediator Institutionalized mediation - Specialization sectors for

mediation practice in India and Globally Models
i) Drafting in Mediation – International

j) Mediation and Singapore Convention

a) Confidentiality extends to all case info, identity of parties, proposals and offers made
by parties,confidential revelations during private sessions, terms of the settlement and all case-
related documents

MODEL VI: Drafting Settlement and Agreements

a) Identifiable parties, unambiguous terms, clear language, specific outcomes, measurable
commitments, provision for monitoring implementation and accepted mode for resolving future
conflicts.

b) Enforceability of arbitral agreements under Section 36 of the Arbitration and Conciliation Act of
1996. Court decree for court-annexed mediation settlements. Vitiating factors: fraud, coercion,
corruption, incapacity of a party or the settlement being contrary to public policy or Indian law. Need
for Mediation-specific legislation to regulate and give legal sanctity to mediated settlements.

MODEL VII: Hybrids UNCITRAL and ICT Enabled ADR

a) Arbitration and Conciliation Act, 1996 read with Information Technology Act, 2000 and Indian
Evidence Act, 1872. And its advantages
b) Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018. Speedy settlement of
commercial cases through mediation. Settlement enforceable as deemed arbitral award (under Section
30(4) of Arbitration and Conciliation Act,1996)
c) UNCITRAL Model Law on International Commercial Mediation and International Settlement
Agreements Resulting from Mediation, 2018; MODELed Nations Convention on International
Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation). Mediation
training and skill development, international accreditation and development of global mediation
standards.
Recommended Reading:
Books:

1. R.S. Bachavat : Law of Arbitration & Conciliation Act, Vol – I & II; LexisNexis Butter Worth, 5th
Edition (2013)
2. Sriram Panchu ,Mediation Practice & Law: The Path to Successful Dispute Resolution, LexisNexis
( 2015)
3. Mediation and Conciliation Project Committee, Supreme Court of India, Mediation Training Manual
of India,(available at.https://main.sci.gov.in/pdf)
4. Roger Fisher, William Ury and Bruce Patton,Getting to Yes: How to Negotiate Agreement Without
Giving In, RHUK (2011)
5. Anuroop Omkar and Kritika Krishnamurthy ,The Art of Negotiation and Mediation - A Wishbone,
Funnybone and a Backbone, Lexis Nexis (2015)

6. Rahul Banerjee and Amita Chatterjee, Indian Philosophy and Meditation: Perspectives on
Consciousness (Routledge Studies in Asian Religion and Philosophy) Routledge (2015)
7. Joel Lee and The HweeHwee ,An Asian Perspective on Mediation Singapore. Academy ( 2009)
(available at. http://www.review.upeace.org/pdf )
8. Christopher Moore,The Mediation Process: Practical Strategies for Resolving Conflict, Wiley,
(2014)
9. Ramin Jahanbegloo, Introduction to Non-Violence, Red Globe Press (2014)
10. Madhusudan Saharay, Text Book on Arbitration & Conciliation with Alternative

11. Dispute Resolution, 4th ed., Universal Law Publishing 2017.

12. N. V. Paranjpe, Law Relating to Arbitration and Conciliation in India, 7th ed., CentralLaw Agency,
2016.
13. Avtar Singh, Law of Arbitration and Conciliation, 10th ed., Lucknow 2013

14. Malika Taly, Introduction to Arbitration, Eastern book Company, 2015

Further Reading:
1. Vishnu Warrier, Arbitration, Conciliation and Mediation, Lexis Nexis, 2015

2. K.V. Satyanarayana, Law of Arbitration and Conciliation in India, Asia Law House,2017

3. Anirban Chakraborty, Law and Practice of Alternative Disputes Resolution in India,Lexis Nexis,
2016
4. Ashwinie Kumar Bansal, Abritration and ADR, 5th ed, Universal law Publication2016

5. ShriramPanchu, Mediation Practice and Law- the Path to successful DisputeResolution 2nd ed,
Lexis Nexis 2015
6. Anuroom Omkar and Kritika Krishnamurthy, the Art of Negotiations and Mediation,Lexis Nexis
2015.
 Learning Out Come:
After completion of the course students will be able to –Appreciation of the social relevance of ADR
Mechanism
1. Understanding of the theoretical models of dispute resolution and capacity toanalyse their
operation in both legal and social context

2. Development of basic mediation skills, including communication, analysis andissue

identification
3. Sophisticated understanding of the ethical and legal ethical issues surroundingdispute resolution
models and practice
4. Prepare and present an engaging informative presentation on a chosen area ofADR that expands
upon the core themes of the course.

Reports:
1. 222nd Report of the Law Commission of India on “Need For Justice- Dispensation Through ADR,
etc.” (2009).
2. 246th Report of the Law Commission of India on Amendments To The Arbitration And Conciliation
Act 1996 (2014)

Key Cases:
1. Afcons Infrastructure v Cherian Varkey., (2010) 8 SCC 24

2. National Insurance Co. Ltd. v BogharaPolyfab Pvt. Ltd., (2009) 1 SCC 267.(p.65)

3. ONGC Limited Vs Western Geco International Limited (2014) 9 SCC 263.

Further Reading:
Books:

1. P. C. Markanda, Law relating to Arbitration and Conciliation. LexisNexis, ISBN – 8180388131,

India; 8 th Edn. (2013)
2. O.P. Malothra, The law and practice of Arbitration & Conciliation ,2nd edn, LexisNexis
Butterworths , New Delhi (2006)
3. P.C. Rao & William Sheffield, ed., Alternative Disputes Resolution- What it is and how it works?
,Universal Law Publishing Co. Pvt. Ltd., New Delhi, (2006).
4. P.C. Markanda, Law relating to Arbitration and Conciliation, 7th edn., LexisNexis Butterworths,
Nagpur, (2009)
5. Basu. N.D, Law of Arbitration and Conciliation( 9th edn., Universal Law Publishing Co. Pvt. Ltd.,
New Delhi, 2000).
6. G.K.Kwatra , The Arbitration and Conciliation Law of India, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, (2000).
7. Surendra Malik, Supreme Court on Arbitration, Eastern Book Co, Lucknow, (2003).
8. A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration, Student
Edition, Sweet and Maxwell, London, (2003).
 Journal/ Article:
1. Annual Survey of Indian Law, (ILI, New Delhi).Cases for Guidance
2. Need for Alternatives to the Formal Legal System (Special Address by Muralidhar S., International
Conference on ADR, Conciliation, Mediation and Case Management Organised By the Law
Commission of India at New Delhi on May 3-4, 2003)p.01
3. ‘Comparison of Adjudication with ADR’, Mediation Training Module of India Chapter 4 (2011) SC
of India,p.08
4. ‘Development of Mediation in India’, Mediation Training Module of India Chapter 1 (2011) SC of
India,p.11