PROFESSIONAL

PRACTICE ASSIGNMENT

NAME : MEGHA MADHU

VIII SEM B
USN: 4SN16AT036
ASSIGNMENT
1)Write short notes on Alternate dispute resolution methods.
2)Write short notes on:
a)Arbitration
b)Conciliation
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution includes alternative methods of helping people resolve legal problems before going to court. There is an
involvement of an independent third person, called a “neutral” who tries to help resolve or narrow the areas of conflict in ADR.  Alternate
Dispute Resolution means the wide variety of methods by which conflicts and disputes are resolved other than through litigation. Alternative
Dispute Resolution refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation,
negotiation, conciliation, mediation, and arbitration. The most common types of Alternative Disputes Resolution is Mediation. mediation is an
amicable settlement of disputes with the involvement of a neutral third party who acts as a facilitator and is called a ‘Mediator”. ADR is usually
less formal, less expensive and less time-consuming than regular trial. ADR can also give people more opportunity to determine when and how
their dispute will be resolved. Alternative Dispute Resolution is of two historic types. First, methods for resolving disputes outside of the official
judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. ADR includes informal tribunals,
informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both
binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal
mediative process is referral for mediation before a court appointed mediator or mediation panel. Classic informal methods include social
processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences
between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the
application of the procedure.
Types of ADR
There are four forms of ADR:
• Mediation
• Arbitration
• Negotiation
• Conciliation
ARBITRATION
• 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. It is a resolution technique in which a
third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable.
CONCILIATION
• 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. They do this by lowering tensions, improving communications, interpreting issues, providing
technical assistance, exploring potential solutions and bring about a negotiated settlement. Conciliation is a voluntary proceeding, where the
parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the
time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will
when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and /or personal
interests. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing
parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement.
Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by
targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator
does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties.
The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the
disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country .
MEDIATION
• Mediation settlement is a voluntary and informal process of resolution of disputes. It is a simple, voluntary, party centered and structured
negotiation process, where a neutral third party assists the parties in amicably resolving their disputes by using specified communication and
negotiation techniques. Mediation is a process where it is controlled by the parties themselves. The mediator only acts as a facilitator in
helping the parties to reach a negotiated settlement of their dispute. The mediator makes no decisions and does not impose his view of what
a fair settlement should be. In the mediation process, each side meets with a experienced neutral mediator. The session begins with each side
describing the problem and the resolution they desire – from their point of view. Once each sides’ respective positions are aired, the mediator
then separates them into private rooms, beginning a process of “caucus meeting” and thereafter “joint meetings with the parties”. The end
product is the agreement of both the sides. The mediator has no power to dictate his decision over the party. There is a win – win situation in
the mediation.
NEGOTIATION
• The simplest form of alternative dispute resolution. Where both parties have a dispute they can negotiate a solution themselves. There is
no third party of middle man who facilitates the resolution process or imposes a resolution. Negotiation can also be defined as: a non-
binding procedure involving direct interaction of the disputing parties where in a party approaches the other with the offer of a
negotiated settlement based on an objective assessment of each others position.
Advantages of ADR                                             
Alternative dispute resolution (ADR) procedures have several advantages:
• Reduced time in dispute- It takes less time to reach a final decision.
• Reduced costs in relating to the dispute resolution- It requires less money i.e. it is cheap.
• Flexibility-Parties have more flexibility in choosing what rules will be applied to the dispute. They have the freedom to do so.
• Produce good results- settlement rates of up to 85 percent.
• Improved satisfaction with the outcome or manner in which the dispute is resolved among disputants.
• Increased compliance with agreed solutions.
• A single procedure– Parties can agree to resolve in a single procedure a dispute involving intellectual property.
• Party autonomy- Because of its private nature, ADR affords parties the opportunity to exercise greater control over the way their dispute
is resolved than would be the case in court litigation. In contrast to court litigation, the parties themselves may select the most
appropriate decision-makers for their dispute. In addition, they may choose the applicable law, place and language of the proceedings.
Increased party autonomy can also result in a faster process, as parties are free to devise the most efficient procedures for their dispute.
This can result in material cost savings.
• Neutrality– ADR is neutral to the law, language and institutional culture of the parties, thereby avoiding any home court advantage that
one of the parties may enjoy in court-based litigation.
• Confidentiality- ADR proceedings are private. Thereby, the parties can agree to keep the actions confidential. This allows them to focus
on the merits of the dispute without concern about its public impact.
• Finality of Awards- Unlike court decisions, which can generally be contested through one or more rounds of litigation, arbitral awards are
not normally subject to appeal.
• Enforceability of Awards- The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958,
known as the New York Convention, generally provides for the recognition of arbitral awards on par with domestic court judgments
without review on the merits. This greatly facilitates the enforcement of awards across borders.
• Preserves relationship- Helps people cooperate instead of creating one winner or one loser.
Disadvantages of ADR
• Some disadvantages of alternative dispute resolution are:
• It can be used as a stalling tactic.
• Parties are not compelled to continue negotiations or mediation.
• Does not produce legal precedents.
• Exclusion of pertinent parties weakens final agreement.
• Parties may have limited bargaining power. Parties do not have much of a say.
• Little or no check on power imbalances between parties.
• May not protect parties’ legal rights.
• Your case might not be a good fit– Alternative dispute resolutions resolve only issues of money or civil disputes. Alternative dispute
resolution proceedings will not result in injunctive orders. They cannot result in an order requiring one of the parties to do or cease doing a
particular affirmative act.
• There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a
resolution.
• Arbitration decisions are final. With few exceptions, the decision of a neutral arbitrator cannot be appealed. Decisions of a court, on the
other hand, usually can be appealed to a higher court.
• Participation could be perceived as weakness. While the option of making the proceeding confidential addresses some of this concern,
some parties still want to go to court “just on principle.”
Goals of ADR
• To dismiss court congestion and to prevent unnecessary cost and delay.
• To grow community involvement in the dispute resolution process.
• To enable access to justice.
• To offer more effective dispute resolution.
• Minimizing the number and frequency of disputes.
• Saving costs on handling disputes .
• Achieving results that are stable and enforceable.
• Maintaining good relationships with stakeholders.
• Developing processes that are flexible enough to handle a range of dispute types in an appropriate manner.
ARBITRATION
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. It is a resolution technique in which a third party reviews the evidence in the case and imposes a
decision that is legally binding for both sides and enforceable. There are limited rights of review and appeal of Arbitration awards. Arbitration can be either voluntary or
mandatory. Of course, mandatory Arbitration can only come from 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.
The advantages of Arbitration can be summarized as follows: -
•a) It is often faster than litigation in Court.
•b) It can be cheaper and more flexible for businesses.
•c) Arbitral proceedings and an arbitral award are generally nonpublic, and can be made confidential.
•d) In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the competent Court will be automatically
applied.
•e) There are very limited avenues for appeal of an arbitral award.
•f) When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed as one cannot choose judge in litigation.
However, there are some disadvantages of the Arbitration, which may be summarized as follows: -
•a) Arbitrator may be subject to pressures from the powerful parties.
•b) If the Arbitration is mandatory and binding, the parties waive their rights to access the Courts.
•c) In some arbitration agreements, the parties are required to pay for the arbitrators, which add an additional cost, especially in small consumer disputes.
•d) There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned.
•e) Although usually thought to be speedier, when there are multiple arbitrators on the penal, juggling their schedules for hearing dates in long cases can lead to delays.
•f) Arbitration awards themselves are not directly enforceable. A party seeking to enforce arbitration award must resort to judicial remedies.
CONCILIATION
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. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential
solutions and bring about a negotiated settlement. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve
their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings
are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their;
commercial, financial and /or personal interests. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations
between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement.
Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent
issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator does not decide for the parties, but strives to
support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they
arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration
award and is legally tenable in any court in the country . Most commercial disputes, in which it is not essential that there should be a binding and enforceable
decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial
relationships.
The following types of disputes are usually conducive for conciliation:
• commercial,
• financial,
• family,
• real estate,
• employment, intellectual property,
• insolvency,
• insurance,
• service,
• partnerships,
• environmental and product liability.
• Apart from commercial transactions, the mechanism of Conciliation is also adopted for settling various types of disputes such as labour disputes, service
matters, antitrust matters, consumer protection, taxation, excise etc.