ALTERNATIVE DISPUTE RESOLUTION SYSTEM
No |
Particulars |
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UNIT - I |
1 |
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2 |
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3 |
Other Methods both formal and informal - like arbitration, conciliation, negotiation, mediation etc. |
4 |
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5 |
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6 |
International commitment domestic needs |
7 |
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8 |
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UNIT - II |
9 |
Arbitration meaning of Arbitration ; Attributes of arbitration |
10 |
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11 |
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12 |
|
13 |
Arbitration agreement and its drafting appointment of arbitration |
14 |
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15 |
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UNIT - III |
16 |
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17 |
Different kinds of conciliation - facilitative, evaluative court - annexed |
18 |
Voluntary and compulsory |
19 |
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20 |
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21 |
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22 |
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23 |
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24 |
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25 |
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26 |
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UNIT - IV |
27 |
|
28 |
Different styles of negotiation |
29 |
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30 |
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31 |
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32 |
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UNT-V |
33 |
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34 |
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35 |
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36 |
|
37 |
|
38 |
ALTERNATIVE DISPUTE RESOLUTION SYSTEM
UNIT - I
Introduction:-
Alternative methods of dispute resolution, popularly known as ADR are necessary. As an alternative to existing methods of dispute resolution such as litigation, conflict, violence and physical fights or rough handling of situations. It is a movement with a drive from evolving positive approach and attitude towards resolving a dispute. Since disputes are inevitable, there is an urgent need to find a quick and method of resolution.
Dispute blocks development, disturbs the peaceful conduct of human life and hence dispute sustained without resolution develops into a conflict beyond control under normal circumstances.
All government, indeed every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter, said Edmond Burke in a speech in the House of Commons, on conciliation with the American Colonies as far back as 1775.
Dr.Dasarathi Rangacharya, a famous poet who translated Divine Vedas into colloquial telugu language says, life is nothing but adjustment or 'Adjustment itself is life'.
ADR is not an answer only for the international commercial transactions, state, private or foreign corporation business firms, inter-corporation conflict or inter-country dispute, but also for solving problems of middle class society and conflicts among the poor or conflicts of rich with the poor. ADR should be the solution for social peace.
The role of arbitration as one of the ADR methods is now more complex with complicated laws, court interpretations, former judge impositions and interventions of the judiciary at every possible stage of the process despite the reforms in arbitration law. The arbitration part of Arbitration and Conciliation Act 1996 was in use more; conciliation part of it is yet to take off. However most of these times, ADR means only arbitration, which is akin to litigation, almost fraught with similar problems and adversities. On the line of continuum of ADR, arbitration is nearer to traditional and adversarial litigation process than a friendly resolution process. Negotiation by the parties themselves is the primary method a dispute has to be addressed with, and if any alternative to it is required it must be 'conciliation' or 'mediation'. Parties who are unable to solve their problems may seek assistance of an expert or subject specialist or an elderly personality, who with honest, neutral, and impartial facilitating service help achieve the resolution. Negotiation and conciliation are the best, inexpensive, informal and autonomous methods of resolution. One may find some variables of these mechanisms but they are basically built on these two foundations. Even during arbitration, the parties can move on to choose conciliation, if they settle it there is no need to come back to arbitration except for a few formalities. These two reflect self-determination of the parties in tackling their own problems instead of handing over the power to impose a decision on either a private or state authority. Finding fault and guilt may be unnecessary in 90 per cent of disputes, which tend to complicate the issue and block sources of solution. Thus, disputants may opt for resolution by their own consensual processes. Only methods, where the consent of parties has a significant role, are negotiation and conciliation.
Need for Alternative dispute resolution - Reasons for finding alternatives
1. Weight of pendency
The need for finding alternative arises due to the working of the present system of administration of justice, which is crumbling under the weight of the pending cases. It is estimated that the number of cases pending all over country, in all categories of courts, is a staggering 2.5 crores. Out of these, 36 lakhs cases are pending in High Courts alone, virtually obstruction the justice system.
It is pertinent to note that posts of judges of various High Courts are very often vacant; these constitute 20 per cent of the total number of High Court judges in the country. If these posts are not filled immediately, more cases will remain undecided.
2. State conflicting with the citizen
The government is the biggest litigant in the country. According to a rough estimate, around 70 per cent of all cases are either agitated by the state, or appealed by it. The state fights cases against citizens at the cost of citizens. The officers neither allow the cases to get resolved, nor withdraw the same, as they have vested interest in pendency. Very often the state refuses to refrain from filing an appeal from the judgments even after they are confirmed by second appellate court in favour or the citizen. The government does not function in favour of citizens. It is a gross injustice that contributes towards delay in the delivery of justice, and consequently prevents the judiciary from rendering justice much needed in disputes
3. Other reasons
Jurists have suggested a reduction in the number of holidays of courts, and an increase in the working days of the courts. At present, the courts are working for 210 to 230 days every year, with a fairly long summer vacation. If courts work for longer hours and days, litigation can be brought under control.
4. Adjournments
Unnecessary adjournments also extend the life of litigation. The process of adjournment, on frivolous grounds, is one of the major reasons for increase in delay. While there is a very good understanding between the courts and advocates, the same does not exist between the clients and the courts. In the process, the interests of litigants suffer, and judiciary fails to render justice to the aggrieved. There is a need to evolve a set of guidelines for granting adjournments, and a framework for the settlement of dispute should also be designed.
5. Concentration of work
Another serious problem is the concentration of work with a few senior advocates who may wield influence over the outcome of adjudication. The ministry of law and justice together with Supreme Court should curb this practice and reduce the pendency of litigation to help restore the confidence of people in the judiciary.
EFFORT TO REFORM
1. Provision for Arbitration and Conciliation
If the dispute is referred to arbitration or conciliation, the provisions of the Arbitration and Conciliation Act 1996 will apply as if the proceedings were referred under that Act. Where the dispute is referred to a Lok Adalat, provisions of Legal Services Authorities Act 1987 will apply.
Order X of the CPC has also been amended which says that the court shall direct the parties to opt for either mode of settlement outside the court as specified in section 89(1), and then fix the date of appearance before such forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.
2. Reforms in methods of trial
The new amendment reformed the process of trial, which would reduce the delay very effectively. Most of the time is consumed in summoning the witnesses, and recording the examination in chief. The defendant or the other party usually takes a longer time for cross-examining, and again the re-examination takes some more weeks. In order to do away with this time consuming processes, the amendment provided for the proof of facts by presentation of an affidavit. This means the party or witness need not be present in the court of law for chief examination. Even for the cross-examination and re-examination, the court is empowered to appoint a commission, who will record the deposition, which forms part of the record of the court.
3. Changes in pleadings
1) The plaint has to be submitted to the court in duplicate. Where the plaint is admitted, the court has to hand over the summons to the plaintiff for serving them on defendants. Plaintiff has to send those summonses to defendants along with a copy of plaint.
2) The court may direct the plaintiff to furnish as many copies of plaint as the number of defendants, within two days from the date of such defendants. Where on the day so fixed, it is found that the summons pay the court fee or any changes for service of summons, the court has to make an order that the suit be dismissal.
3) Where a plaintiff relies upon a document in his possession or power, in support of his claim, plaintiff has to produce that document in court along with a copy thereof. If such a document is not filed with the plaint, the court will not consider it as evidence at the hearing. Similarly, the defendant also has to produce the document he is relying upon. If not, it will be allowed to be received in evidence on his behalf.
4) The parties have to produce, on or before the settlement of issues, all the documentary evidence in original where copies thereof have been filed along with plaint or written statement.
4. Service of summons
One of the major causes of delay is the difficulty in service of summons. It is practically impossible to gain the proof of service as the other party always tries to avoid the summons. Amendments of this aspect have widened the scope of reaching the other party with there copy of plaint.
Court may direct the plaintiff to adopt any method of service such as, registered post, acknowledgement due, speed-post, or by such courier service as may be approved by the High Court. This rule includes facilities like fax message, e- mail service or any other means as the High Court may prescribe.
5. Restriction on adjournments
CPC amendment Act 1999 made it obligatory for the courts to record reasons for granting adjournment. This measure will restrain the courts from freely ageing with the request to postpone hearing or any other procedure of trial for a different date. Mere excuses or repeated reasons cannot be given for adjournments, as the court has to record the reason. There is also an express limitation on the number of adjournments. The court is empowered to impose higher costs while granting the adjournment. It may direct the party seeking adjournment to pay costs occasioned by such adjournment.
6. A rigid time-frame
The CPC Act 1999 has provided much awaited, time frames for hearing of civil suits. At several stages of the trial, time limits have been prescribed. Summons to defendant include a direction that the defendant has to appear and answer the claim within thirty days from the date of the institution of the suit. Usually the courts used to take a minimum of three months of the first date of appearance of the defendant, from which date another six months or more used to be consumed for just filing of vakaltnama and written statement. With this provision, the plaintiff can expect to receive a reply to his plaint within a month. The code imposes to this thirty days time frame for filing the written statement. If the defendant appeared at the presentation of the plaint and admitted the claim of plaintiff, the court need not is summons. If the defendant failed to reply within prescribed time, he can be allowed to file the same within thirty days from the date of service of summons, or any other day within that time as ordered by the court.
7. Framing of issues
Earlier court had power to adjourn the framing of the issues to any future day. Under the amended code of CPC says that the court can not adjourn to a day later than seven days. Framing of issues is another stage where delay is experienced. With the enactment of this provision, a court cannot defer framing is issues beyond a week.
8. Summons to witnesses
Within fifteen days after the settlement of issues, parties have to submit the list of witnesses whom they propose to call to give evidence, or produce documents. After such submission, the parties have to obtain summons from the court within five days.
9. Decree and copy of judgment
Every endeavor shall be made to ensure that the decree is drawn up as expeditiously as possible and, within fifteen days from the date on which the judgment is pronounced. According to Code, an appeal may be preferred against the decree without filing a copy of the decree. Instead of certified copy, the copy of judgment made available by the court will be treated as the decree.
10. Security for stay
Securing an interim injunction became very easy in a civil court, which caused a serious dent in the credibility of the administrative system of judiciary. Amending the rules under order XXXIX, CPC amendment Act 1999 provided that while granting a temporary injunction to restrain such act or to make such order for the purposes of staying and preventing the wasting, damaging, alienation, sale removal or disposition in the suit, the court shall relation to any property, under disposition in the suit, the court shall direct the plaintiff to give security or otherwise as the court thinks fit.
11. Register of appeal
The CPC amendment Act 1999 has made it obligatory for the courts to entertain the memorandum of appeal, and register it in a book of appeal kept for that purpose.
Rule 11 A, inserted by the amendment Act of 1976, stipulates that the appeal shall be heard as expeditiously as possible, and endeavor shall be made to conclude such hearing within sixty days from the date on which memorandum of appeal is filed.
12. No further appeals
Section 110 A of the Code was amended to exclude further appeals from the judgment, decision or order of single judge of a high court either in appeal, or in a writ petition.
Section 102 was also amended top remove the second appeal from any decree, when the amount or value of the subject matter of the original suit does not exceed Rs. 25000.
13. Enlargement of time
Section 148 provided a general power to the court to enlarge any fixed time for doing any act. Court may, from time to time, grant some more time to do such act beyond the permitted period. According to amended section 148, such enlargement shall not exceed thirty days in total.
14. Attachment
In execution of decree, section 60 of the code provided for attachment. Under exceptions to that section, certain things were excluded from attachment. Originally, first Rs. 400 salaries were excluded from attachment. That amount has been enhanced to Rs. 1000. In other words, first Rs 1000 of the salary and two thirds of the remainder cannot be attached.
CPC amendment Act 1999 has enhanced certain pecuniary requirements under several provisions in accordance with increased inflation tendencies.
Criticisms against Changes
Followings are the features of the CPC amendment Act 1999.
1. Appeals made costly
Though the said amendment Act being in many positive changes to curtail the delay in dispensation of justice, it has certain very strong negative factors affecting the interests of clients at the appellate stage. If the said Act is brought into force, there can be no appeals from the orders disposing writ petitions by single judge courts of high courts.
The amendment Section 100A of CPC specifically removes the scope for second appeal from an order by a single judge bench of high court, notwithstanding any thing contained in any letters patent Act for any high court, or in any other instrument having the force of law, or in any other law for the time being in force.
The lawyers were apprehensive of the drastic consequences of the amended Section 100A, which prohibited no further appeal on the judgment by a single judge of the high court in which case, on a single judge's order, one would have to approach the Supreme Court, thereby proving to be a costly exercise for the litigants. Further in respect of section 102, the declaratory and title relief less than Rs. 10000 would be very much affected.
2. Commissions for examining witnesses
Many doubts were expressed at the attempt to examine the witnesses, for cross-examination, by the commissions comprising advocates, to minimize the wastage of courts time in waiting for the opportunity to examine and cross-examine the witnesses. Although the motive is laudable, there were apprehensions that such a change would result in taking out the case record of the court, which may lead to temperament of recording the witnesses, examination through commissions has revealed some drawbacks.
There are several reasons for the delay. Some of the reasons are as follows:
1) The commissions did not examine the witnesses on appointed date hence reports were delayed.
2) Commission was not present on the fixed date.
3) There was no co-operation between advocates and parties.
4) The commission has no power to disallow the inadmissible evidence and irrelevant evidence.
5) Witnesses did not turn up on the appointed date.
6) It became an expensive procedure and poor litigants could not afford the costs of the commission.
7) Record of the case in the hands of commission had a risk of being tampered with.
Delay in dispensation of justice at different stages of trial
1. Delay at the service Stage
Most of the time of there court and the parties is wasted in reaching the defendant, and making an effective service of summons and his presence possible at the hearing. In this context it should be noted that the bailiff is required to maintain a diary that has to be verified by his superior.
Service of summons can be delayed by non-payment of process fees, on which reason the suit can be dismissed under order 9, rule 2 of CPC. Suit can be also dismissed for non-payment of process fees for summoning the witnesses under order 17, rule 3 of CPC. Inclusion of registered post in the approved processes of summons of service was also suggested. It also incorporates a provision that plaintiff could take up the responsibility of serving summons to that plaintiff could take up the responsibility of serving summons to defendant with his own interest, along with the process initiated by the court.
2. Indifferent handling of issues
It was noticed that framing of issues was treated as a mere routine affair. The court gave a date for framing issues, on which day, parties or their counsel invariably remain absent, as it was felt that it was the duty of the court to frame issues. Both the parties and the judges did not realize the importance of the same. There was and is, therefore, a callous and indifferent handling of this important stage of the suit. Parties and advocates must be present on the fixed date, and discuss and arrive at issues. The judge, on the other hand, has to elicit truth and narrow down real controversy between the parties. This also provides an occasion to decide the future dates of trail, and other related aspects. By avoiding wrong framing of issues, one can reduce the proof as well. Wrong framing of issues result in unnecessary burden on the parties to bring evidence to prove their contentions on those issues.
3. Hearing
A day to day hearing must be preferred in each case, immediately after the commencement of trial. The parties must come to an understanding on what day they would start adducing the evidences. The court should also divide the cases, before it, as short and long causes depending on the complexity of issues, and fix a suitable day for hearing. Delayed and piecemeal hearing or examination of witnesses results in many problem.
Ex: Judge may not have the advantage of the continuity of the case, disjoined examination of witnesses may make the counsel to repeat the questions, or forget the past record. If both the parties examine all the witnesses on the same day, it will be a great relief to parties, their counsels and judge.
4. Delay at the argument stage
There is a lot of gap between the conclusion of evidence and the arguments. Generally the hearing of arguments should begin immediately after both the parties adduce all the evidence.
5. Promoting Research in the field of legal service.
It is evident that the present system does not provide for any kind of legal service to the poor and needy. Legal aid and lok adalat are new areas of legal service which came to stay as useful institutions. There may be further scope for inventing new methods of legal service. The Authority must promote research into this aspect. Simplification of law, easy spread of legal awareness, translating the law into regional languages, using information technology to spread legal literacy, introducing court annexed dispute resolution processes, plea bargaining in civil cases, assisting the parties to compound and settle certain criminal offence which are compoundable in nature are the areas where the focus of study is required.
6. Funding specific schemes to various voluntary social service institutions:
The Central Authority must provide grant-in-aid for specific schemes to various voluntary organizations in the field of social service, and provide funds to the state and district level authorities.
7. Enlisting the Support of Voluntary Social Welfare Institutions:
People's participation is very important for success of such programmes. One way of involving the people is enlisting the support of NGO's and other social welfare institutions.
8. Formulating norms to guide the State in encouraging voluntary organizations:
So far the courts laid down certain norms for legal aid programmes. The Authority has to work on this aspect exclusively and evolve the rules and norms to guide the state in encouraging voluntary organizations.
9. Doing every thing necessary for ensuring commitment to fundamental duties of citizens:
On the lines of Universal Declaration of Human Rights, which
listed out certain duties, the Constitution (42nd Amendment) Act
1976 created fundamental duties, which are generally not enforceable. The Legal
Services Authorities Act envisages a duty on the Authority to do necessary
things to enforce these duties abiding by the Constitution, following the noble
ideals of freedom struggle, defending the country and rendering national
service. Protecting integrity, sovereignty, promoting brotherhood, renouncing
the practices which are derogatory to the dignity of women, preserving the rich
heritage and culture, protecting the environment, abjuring violence, and
striving towards excellence in all spheres of individual and collective activities
so that the nation constantly rises to higher levels of endeavor and
achievement are the fundamental duties of citizen.
10. Utilisation of funds:
The authority has to supervise the proper utility of the funds for given purposes through state and district authorities.
11. Performing the function of coordinator and monitor:
The Central Authority has to act as coordinator and monitor functions of state and district authorities, Supreme Court Legal Services Committee, the High Court Legal Service Committees, Taluk Committees and voluntary social services agencies.
State and district authorities have been provided by s 7 of the Act with almost similar functions within their sphere of power and scope of territorial limits. One of the specific functions is to conduct the lok adalats including lok adalats for high court cases, to undertake preventive strategic legal aid programmes. Similarly, the authorities at district and taluk levels also have to organize the lok adalats and perform other functions.
Each lok adalat has to be presided over by judicial and non-judicial members. The award of lok adalat is deemed to be a decree of civil court and without provision for appeal. For the purpose of determination, the lok adalat will have powers of civil court and its proceedings are deemed to be judicial proceedings within the jurisdiction of civil and criminal courts, revenue courts or any tribunal. At the national level, the National Legal Services Authority decides the policy for the nation, while at state level, there is State Legal Services Authority. The Supreme Court Legal Services Committee and High Court Legal Services Committee will promote the lok adalats. Provisions are made to constitute Legal Services Committees at district and taluk level as well. All these authorities are empowered to organize lok adalats to determine and arrive at a compromise or settlement between the parties to a dispute in respect of cases pending before or falling within the jurisdiction of the respective courts.
POWERS OF LOK AADALAT
According to section 22, lok adalats have been conferred power of the civil court under the CPC in respect of matters such as:
a) Summoning and enforcing the attendance of any witness and examining him on oath.
b) Discovery and production of any documents.
c) Reception of evidence on affidavits, (i) hearing of the suit and examination of witnesses, (ii) affidavits: power to order any point to be proved by affidavit as per o XIX of CPC.
d) Requisitioning of any public record or document or copy of such record or document from any court or office and such other matters as may be prescribed.
e) Court may send for papers from its own records or from other courts.
f) Lok adalat can specify its own procedure under s 22(2).
Causes of delay at the pre-argument stage
Where advocates are not prepared to argue on that particular day, they may waste valuable time of the court. On many occasions advocates argue for their clients to impress upon him that the advocate possesses high caliber.
The reasons for delay at this stage may be several
1) Non-preparation on the part of advocate.
2) Advocates trying to please their clients.
3) Lengthy arguments for hours and days together.
4) Unnecessary citation of cases.
5) Reading lengthy passages.
Judges may take a lot of time with a view to write long judgments with some extra jurisprudence. Reserving an order even on a small matter like bail is unnecessary. Problem of delayed judgment is summing serious proportions. The time lag between arguments and judgment range from 12 to 15 months. A presiding officer hearing arguments in different cases without delivering judgments in any case, will be a futile exercise. Such judgment will not inspire any confidence in its correctness for following reasons.
1) Arguments can be forgotten.
2) Judge has to depend only on his notes, and not on personal memory of arguments.
3) Evidences are not fresh in memory.
4) Personal observations may go out of mind.
5) Judge has to wholly depend on material before him.
5. Delay in execution
It has been that judgment-debtor adopts various dilatory tactics to avoid execution, which may result in inconvenience to the other party.
Order 21 of CPC is the lengthiest, laying down detailed steps to be taken for executing decrees. Order 21 has been the despair of an honest litigant and haven for unscrupulous judgment-debtor, as it gives full scope for raising technical objections and application of tricks of the trade.
6. Affidavit of assets
Where a judgment debt remains unpaid for a certain period, the decree holder under order 21, rule 41 may apply to the court for an order to call upon judgment debtor to make an affidavit of his assets. This is a good measure to force the judgment-debtor either to reveal the assets, which he may not do, or to pay the decree amount. If he files a false affidavit omitting an asset, he may have to face the risk of other people claiming it as their own. Parties do not frequently use this provision. However, the executing court cannot order the judgment-debtor to file an affidavit of his assets on its own, ie, suo moto. It can order so only on an application by the party. There should be a provision, and authority for the court to order is suo moto.
7. Arrears in High Courts
The high courts have original civil jurisdiction, and extraordinary original jurisdiction derived from number of sources like constitution, CPC, letters patent Act, and other laws. High courts can hear a case when transferred by the Supreme Court, or transferred on application by the parties under the provisions of CPC.
8. Delays in appeals
Of late, judicial delay has assumed gigantic proportions. This has subjected our judicial system, as it must, to severe strain. It has shaken in some measures the confidence of the people in the capacity of the courts to redress their grievances, and to grant adequate and timely relief.
An appeal generally could lie from trial court can be taken only on questions of facts and law. A second appeal to high court can be taken only on questions of law. Letters patent appeal is allowed to division bench, except where such appeals have been abolished, from a single judge decision. Further, there also exists right of appeal to Supreme Court under Article 136 of the Constitution, and section 109 of CPC.
9. Curtailing second appeal
CPC amendment Act 1999 has introduced following two provisions for preventing some second appeals.
1. Section 100A was amended to exclude further appeals the judgment, decision of a single judge of a High Court either in appeal, or in a writ petition.
2. Section 102 was also amended to remove the second appeal from any decree, when the amount or value of the subject matter of the original suit does not exceed Rs. 25000.
There were some suggestions for deletion of Articles 132 to 134A of the Constitution, and the jurisdiction of Supreme Court. The power of Supreme Court under the constitution should be limited to Articles 32,131, 135, 137,138,139, 139A.
In the procedural rules there are several stages which cause delay, which, inter alia, includes:
1) Delay in making available certified copies of the judgment or decree to enable filing of an appeal.
2) Delay in security and registration of the appeal.
3) Delay in preliminary hearing
4) Delay in preparation of notice of appeal and its service.
5) Delay in preparation of paper books for the use in court.
6) Delay in final hearing.
Where the High Court can interfere only where the subordinate court has:
1) Exercised the jurisdiction not vested in it by law.
2) He failed to exercise a jurisdiction so vested.
3) With material irregularities.
4) Has acted in the exercise of its jurisdiction illegally.
10. Restriction on revision
While exercising powers of revision under Section 115 of CPC, the high court cannot reverse or vary any order except where the order, if it had been made in faviour of the party applying for revision, would have finally disposed of the suit or other proceedings. According to newly added sub section 3 to section 155, a revision will not operate as a stay of sui8t except where it was stayed by the high court. It is intended to remove the delay causing interference by the appellate court, and made it clear that a mere admission would not operate as stay of suit.
11. Restricting appeals to Supreme Court
The Supreme Court of India has a very wide original and appellate jurisdiction. It is submitted that the jurisdiction of the Supreme Court should be confined to judgment, decree or final order passed by a High Court in civil proceedings. If in the opinion of the Supreme Court the case involves a substantial question of law of exceptional importance as to the application or interpretation of constitution, or any other law, and that question in the national interest needs to be decided by the Supreme Court, or that in a criminal proceeding High Court has no appeal reversed an order or acquittal of an accused person and sentenced him to death, or has withdrawn for trial before itself any case from any court subordinate to its authority, and has in such trial convicted the accused person and sentenced him to death.
12. Pruning the jurisdiction of Supreme Court
Another significant suggestion is that the jurisdiction of the Supreme Court be pruned by conflicting it to Articles 32 and 136 with the above suggested amendment. This means that under Article 136, the Supreme Court could deal with only appeals from the High Courts, and not any other court or tribunal. Those appeals should involve questions relating to the application or interpretation of the constitution, which in the national interest call for pronouncement of Supreme Court.
In the absence of constitutional question, the jurisdiction of the Supreme Court shall not be invoked; the high courts could be final in their authority within the territories of the state.
13. Powers of Supreme Court
The Supreme Court on India has wide-ranging functions. Its powers include:
1) Enforcement of the fundamental rights in its original jurisdiction.
2) It has original jurisdiction in disputes arising between the centre and states or between states.
3) It has jurisdiction to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
4) Under the Supreme Court has the power to entertain appeal from high court in a criminal proceeding.
5) Any other power regarding matter specified in union list.
6) Power in respect of writ jurisdiction in matters other than fundamental rights.
7) Power to inquire into, and decide upon disputes relating to the election of the president and vice-president.
8) Advisory jurisdiction.
9) Power to withdraw to itself certain cases pending before a high court.
While interpreting section 89 of CPC, the Supreme Court said that if elements of settlement exist, then the parties would be made to consider those and opt for one or the other of the four ADR modes specified in section 89, and if the parties do not agree, the court shall refer them to any resolution process. Generally the ADR is consensual and depends purely on consent or choice of the parties.
Once they approach the court, by filing a plaint, it is for the court to select proper method of dispute resolution, of course, after giving an opportunity for being heard, to the claiming parties. If the parties are willing to take to any of four ADR modes, there is no problem. Even if they do not agree, the court has power to impose any method.
Settlement of disputes outside the court
1. Where it appears to the court that exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and given them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for
a. Arbitration
b. Conciliation
c. Judicial settlement including settlement through Lok Adalat
d. Mediation
2. Where a dispute has been referred
1) For arbitration or conciliation, the provisions of the arbitration and conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.
2) To Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub section 91) of section 20 of the Legal Service Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat.
3) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be services authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act.
d) For mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.
1) Direction of the court to opt of any one mode of alternative dispute resolution. After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified sub section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be oped by the parties.
2) Appearance before the conciliatory forum or authority-where a suit is referred under point no.1, the parties shall appear before such forum or authority for conciliation of the suit.
3) Appearance before the court consequent to the failure of efforts of conciliation-where a suit is referred under point 1, and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter future, then, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.
4) Some doubt as to a possible conflict has been expressed in view of use of the word may in section 89 when it stipulates that the court may reformulate the terms of a possible settlement and refer the same for and use of the word shall in order X, point 1 when it states that the court shall direct the parties to the suit to opt either mode of settlements outside the court as specified sub section (1) of section 89.
5) As can be seen from section 89, its first part uses the word shall when it stipulates that the court shall formulate terms of settlement. The use of the word may in later part of section 89 only relate to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the section and if the parties do not agree, the court shall refer them to one or other of the said modes.
Section 89 uses both the word shall and may whereas order X, Rule 1A uses the word shall but on harmonious reading of these provisions it becomes clear that the sue of the word may in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of section 89.
As can be seen from section 89, its first part uses the word shall when it stipulates that the court shall formulate terms of settlement. The use of the word may in later part of section 89 only relate to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the section and if the parties do not agree, the court shall refer them to one or other of the said modes.
Section 89 uses both the word shall and may where order X, 1A uses the word shall but on harmonious reading of these provisions it becomes clear that the use of the word may in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of section 89.
One of the modes to which the dispute can be referred is Arbitration section 89(2) provides that where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for Arbitration or Conciliation were referred for settlement under the provisions of 1996 Act. Section 8 of the 1196 Act deals with the power to refer parties to Arbitration where there is Arbitration agreement.
A doubt has been expressed in relation to clause (d) of section 89 (2) of the code on the question as to finalization of the terms of the compromise. The question is whether the terms of compromise are to be finalized by or before the mediator or by or before the court.
The question also is about the payment made and expenses to be incurred where the court compulsorily refers a matter for conciliation mediation. Considering large number of responses received by the committee to the draft rules it has suggested that in the event of such compulsory reference to conciliation or mediation procedures if expenditure on conciliation or mediation is borne by the government, it may encourage parties to come forward and make attempts at conciliation or mediation. On the other hand, if the parties feel that they have to incur extra expenditure for restoring to such ADR modes, it is likely to act as a deterrent for adopting these methods. The suggestion is laudable. The Central Government is directed to examine it and if agreed, it shall request the planning commission and finance commission to make specific financial allocation for the judiciary for including the expenses involved for mediation or conciliation under Section 89 of the code. In case, central government has any reservation, the same shall be placed before the court within four months.
With a view to enable the court to refer the parties to conciliation or mediation, where parties are unable to reach a consensus on an agreed name, there should be a panel of well trained conciliation or mediation to which it may be possible for the court to make a reference. It would be necessary for the High Courts and district courts to take appropriate steps in the direction of preparing the requisite panels.
It seems clear from the report that while drafting the model rules, after examining the mediation rules in various countries, a fine distinction is tried to be maintained between conciliation and mediation, accepting the views expressed by British author Mr. Brown in his work on India that in conciliation there is little more autonomy and conciliation can suggest some terms of settlement too.
When the parties come to a settlement upon a reference made by the court for mediation, as suggested by the committee that there has to be some public record of the manner in which the suit is disposed of and, therefore, the court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be passing of a decree; there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to implement even without decree. In such eventuality, nothing prevents them in informing the court that the suit, may be dismissed as a dispute has been settled between the parties outside the court.
Regarding refund of the court fee where the matter is settled by the reference to one of the modes provided in section 89 of the Act, it is for the state governments to amend the laws on the lines of amendment made in governments can consider making similar amendments in the state court fee legislations.
The draft rules have been finalized by the committee. Prior to finalization, the same were circulated to the high courts, subordinate courts, the Bar Council of India, state Bar Councils and the Bar associations, seeking their responses. Now, it is for the respective high courts to take appropriate steps for making rules in exercise of rule making power subject to modifications, if any, which may be considered relevant.
Based on their nature and basic character the system of adversarial, inquisitorial dispute resolution differs on many points. But it cannot be said that they are three separate parallel lines. They can by synchronized to reach the goal, where parties set themselves free and informal.
In adversarial style, the disputants necessarily deny the claim or allegation of each other, irrespective of it being incontrovertible truth. Formally forces them to contradict each other. In civil cases, pleadings differ in diametrically opposite direction making it very difficult to identify the real issues to be adjudicated upon. In criminal cases charges are framed on the one handed the accused provides arguments or explanation to dispute each and every contention, or piece of evidence on the other. Except allotting time and supervising the conduct, the court has no major role in trial. If parties fail in their responsibilities the presiding officer has very less to do.
Though critics plead a pro-active role for every magistrate, he is more or less prisoner of rules and formalities and dependant on the adversaries almost totally. The role of presiding officer in inquisitorial mechanism is much wider. The judge can script a more active role for self to find out facts about the terms referred. In the third mechanism, the negotiators or parties themselves take part in process of arriving at the decision. They script the rules and regulations if any required, and decide the process as well. The level of formality is reduced and more free and innovative ideas may increase in field of participative resolution.
Issues are discussed and narrowed down by the parties themselves. Filing of charges is the starting point of trial while the reference of terms set the process in inquisitorial method.
The adversarial mechanism is rigid and formal as law prescribes the rules much earlier to the origin of the dispute and judicially has to meticulously have the power to relax the rules of procedure and evidence. Neither fixed rules nor procedures can bind the process of ADR system. Mediator or facilitators develop their own rules depending upon the need and the demand of the context.
While ADR need no witnesses or evidence to establish contentious issues, the trial needs the disputants to come up to court with their own lists of witnesses and documents. The judge in inquisitorial commission can go beyond the list of the parties and call for any information or witness and if need be, go to any place to ascertain the facts. There should be examination-in chief and cross-examination of the witnesses in the presence of the other party in adversarial, i.e., traditional trials, examination-in-chief and cross-examination depends upon the discretion of commission chairman not mandatory to have either chief examination or cross-examination, the discretion rests with the parties.
The trial involves process of adjudication, where charges have to be tried and guilt has to be proved, while the commission of inquiry, which is a fact finding process, where the issues are inquired into rather than tried to prove or disprove. Individual guilt or innocence is not important for fact-finding missions. In case of ADR it is totally different. It is problem-solving process. If the parties prefer fact finding or adjudication, their rights and interests might be adversely affected.
The parties control the process through the advocates and their tactics in adjudication process. However, after a stage the clients lose control. The commission has a major role in fact finding and the parties do not have any significant say. In ADR always, and by all means, it is the parties who decide a every thing including walking out of the process or successfully reaching a settlement. The trial is rigid and formal, and in inquisitorial system the inquiry is formal but not rigid. The rigidity as an attitude of the parties' may effect the process in ADR but the process is not rigid.
The trial ends with a formal legally binding judgment or decree which is binding and enforceable. The inquiry comes to a close with a report, but not a judgment, or an observation, which has just recommendatory value. The efforts to ADR need not culminate into any such formal resolution or award or report. Without their being a formal instrument, there could be a settlement to be performed or completed settlement. At the most it may result in a signed agreement or immediate payment of money or tendering an apology etc.
Some of the primary ADR techniques used by Government and industry include the followings:
1) Arbitration is one of the oldest forms of ADR
Arbitration involves a formal adversarial hearing before a neutral, called the arbitrator, with a relaxed evidentiary standard. The arbitrator is usually a subject matter expert. An arbitrator or an arbitration panel of two or more arbitrators serves as a "private judge" to render a decision based on the merits of the dispute. Arbitration decisions can be binding or non-binding.
2) Conciliation
Conciliation is a process in which a third party, called a conciliator, restores damaged relationships between disputing parties by bringing them together, clarifying perceptions, and pointing out misperceptions. The conciliator may or may not be totally neutral to the interests of the parties. Successful conciliation reduces inflammatory rhetoric and tension, opens channels of communication and facilitates continued negotiations. Frequently, conciliation is used to restore the parties to a pre-dispute status quo, after which other ADR techniques may be applied. Conciliation is also used when parties are unwilling, unable, or unprepared to come to the bargaining table.
3) Convening serves primarily to identify the issues and individuals with an interest in a specific controversy. The neutral, called a convener, is tasked with bringing the parties together to negotiate an acceptable solution. This technique is helpful where the identity of interested parties and the nature of issues are uncertain. Once the parties are identified and have had an opportunity to meet, other ADR techniques may be used to resolve the issues.
4) Early Neutral Evaluation involves an informal presentation by the parties to a neutral with respected credentials for an oral or written evaluation of the parties' positions. The evaluation may be binding or non-binding. Many courts require early neutral evaluation, particularly when the dispute involves technical or factual issues that lend themselves to expert evaluation. It may also be an effective alternative to formal discovery in traditional litigation.
5) Facilitation improves the flow of information within a group or among disputing parties. The neutral, called a facilitator, provides procedural direction to enable the group to effectively move through negotiation towards agreement. The facilitator's focus is on the procedural assistance to conflict resolution, compared to a mediator who is more likely to be involved with substantive issues. Consequently, it is common for a mediator to become a facilitator, but not the reverse.
6) Fact-Finding or Neutral Fact-Finding is an investigative process in which a neutral "fact finder" independently determines facts for a particular dispute usually after the parties have reached an impasse. It succeeds when the opinion of the neutral carries sufficient weight to move the parties away from impasse, and it deals only with questions of fact, not interpretations of law or policy. The parties benefit by having the facts collected and organized to facilitate negotiations or, if negotiations fail, for traditional litigation.
7) Interest Based Negotiation or Interest Based Bargaining is an established negotiating technique through which the parties meet to identify and discuss the issues at hand to arrive at a mutually acceptable solution. It is a positive effort by the parties to collaborate, rather than compete, to resolve a joint dispute. The focus of negotiations is on common interests of the parties rather than their relative power or position. The goal is to reduce the importance of how the dispute occurred and create options that satisfy both mutual and individual interests. Interest based negotiations are also referred to as "principled" or "win-win" negotiations. This informal process is one of the most fundamental methods of dispute resolution, offering parties maximum control over the process. It does not necessarily require the use of neutrals.
8) Litigation, although not an ADR technique, is intertwined with ADR.
Not every case can or should be settled. However, each case proceeding toward litigation benefits by an evaluation for resolution. Consideration of using ADR techniques for resolving an aspect of a case such as merit, quantum, attorney fees, or future obligations is common.
9) Masters or Special Masters are neutrals appointed by a court in accordance with judicial rules. The master assists the parties to manage discovery, narrow issues, agree to stipulations, find facts, and, occasionally, reach settlement. In non-jury actions, the court may accept the master's findings of fact.
10) Mediated Arbitration
It is a combination of mediation and arbitration. Initially, a neutral third party mediates a dispute until the parties reach an impasse. After the impasse, a neutral third party issues a binding or non-binding arbitration decision on the cause of the impasse or any unresolved issues. The disputing parties agree in advance whether the same or a different neutral third party conducts both the mediation and arbitration processes. Use of the same person for both processes creates a problem when the mediator turned arbitrator must ignore previously acquired confidential information.
11) Mediation involves a neutral, called a mediator, who assists the parties in negotiating an agreement. The mediator serves as an "agent of reality" to help the parties frame the issues, structure negotiations, and recognize self interests as well as the interests of the other side. Mediators may be, but are not necessarily, subject matter experts concerning the substantive issues in dispute. The parties may meet with the mediator together or individually as the circumstances dictate. A meeting between one party and the mediator, called a caucus, allows the party to privately express emotions and core interests. These private sessions avoid alienation between the parties that might otherwise inhibit open communications. Mediators are not vested with any decision making authority and cannot impose resolution on the parties; the parties make decisions them. However, the mediator, like a facilitator, serves as the proponent of the process to keep discussions moving on track.
12) Minitrial is a misnomer.
This technique provides for a summary presentation of evidence by an attorney or other fully informed representative for each side to decision makers, usually a senior executive from each side. After receiving the evidence, the decision makers privately discuss the case. "Minitrial" is not a small trial; it is a sophisticated and structured settlement technique used to narrow the gap between the parties' perceptions of the dispute and which "facts" are actually in dispute. This hybrid technique can occur with or without a neutral's assistance, but neutrals frequently facilitate the processes for presentation of evidence and discussion among the decision makers, and serve as a mediator to reach a settlement. Mini-trials can be more expensive than most other ADR techniques because the cost of presenting even summary evidence to senior executives is high. Therefore, this process is generally reserved for significant cases involving potential expenditure of substantial time and resources in litigation.
13) Ombudsman (Ombudsperson) is an organizationally designated person who confidentially receives, investigates, and facilitates resolution of complaints. The ombudsman may interview parties, review files, and make recommendations to the disputants, but normally is not empowered to impose solutions. Ombudsmen often work as management advisors to identify and recommend solutions for systemic problems in addition to their focus on disputes from individual complainants.
14) Partnering is a preemptive technique to avoid disputes before they arise by building a strong relationship between parties. The goal is for the parties to avoid a major dispute, or alternatively, minimize disruptive impact, by focusing on the development of a cooperative working relationship rather than an adversarial one. Partnering is a relatively new hybrid form of dispute resolution.
15) Peer Review Panels or Dispute Resolution Panels use groups or panels to conduct fact-finding inquiries, assess issues, and present a workable resolution to resolve disputes. In workplace personnel disputes the panel is generally composed of knowledgeable employees and supervisors. Panels may be standing groups or formed ad hoc from a pool of qualified employees and supervisors. In contract disputes, the panel is often composed of two or more neutral subject matter experts selected by the disputing parties. Decisions of the panel may or may not be binding, depending on the advance agreement of the parties. This method attempts to resolve disputes at their inception to avoid traditional litigation.
16) Private Judging, also called "rent-a-judge", is an approach midway between arbitration and litigation in terms of formality and control of the parties. The parties typically present their case to a judge in a privately maintained courtroom with all the accouterments of the formal judicial process. Private Judges are frequently retired or former "public" judges with subject matter expertise. This approach is gaining popularity in commercial situations because disputes can be concluded much quicker than under the traditional court system.
17) Settlement Conference is an ADR technique either permitted or required by statute in many jurisdictions as a procedural step before trial. An assigned or jointly selected "settlement judge" typically applies mediation techniques to strongly suggest a specific settlement range based on his or her assessment of the case. However, these judges play a much stronger authoritative role than mediators since they also provide the parties with specific substantive and legal information.
18) Summary Jury Trial is a formal but abbreviated trial involving a presentation by the disputing parties to a panel of jurors. This process "reality tests" the case with a non-binding jury verdict to encourage the parties to negotiate for a settlement based upon their new assessment of litigation risk.
19) Hybrid ADR
It is any creative adaptation of ADR techniques for dispute resolution. ADR has found its niche as an adjunct to traditional litigation because of the financial and emotional cost as well as the other aggravations of formal litigation. Processes leading to less litigation cost or risk may be considered ADR, regardless of the labels used to identify them. The distinguishing characteristic is that the techniques enable parties to acquire sufficient information to evaluate litigation risk and voluntarily negotiate resolution directly with each other. The techniques can be applied in any sequence as long as the parties are moving in good faith toward resolution of all or part of a dispute. Identical fact patterns with different parties may be resolved through different techniques and, conversely, identical parties with different fact patterns may successfully apply the same ADR techniques.
Followings are the advantages of ADR
1. It can be used at any time, even when a case is pending before a court of law, though recourse to ADR, as soon as the dispute arises, may confer maximum advantages on the parties.
2. It can be used to reduce the number of contentious issues between the parties, and it can be terminated at any stage by any one of the disputing parties.
3. It can provide a better solution to dispute, more expeditiously, and at less cost than litigation.
4. It helps in keeping the dispute a private matter and promotes creative and realistic business solutions, since the parties are in control of the ADR proceedings. ADR procedures take only a day or a few days to arrive at a settlement.
5. ADR programmes are flexible and not afflicted with rigors of rules of procedure.
6. The freedom of the parties to litigant is not affected by ADR proceedings. Even a filed ADR proceedings is never a waste either appreciate each other's case better.
7. ADR can be used with or without a lawyer.
8. ADR procedures help in the reduction of work-load of the courts and thereby help them to focus attention on the cases which ought to be decided by courts.
9. ADR procedures permit parties to choose neutrals who are specialists in the subject-matter of the dispute. This does not mean that there will be a diminished role for lawyers. They will continue to play a central role in ADR process; however, they will have to adapt their role to ADR requirement.
Disadvantages of ADR
Followings are the disadvantages of ADR
1. The unfamiliarity of process is a hampering factor. It is, therefore, imperative that dispute resolution procedure is incorporated into the contracts, which govern relationships between the parties.
2. ADR is a difficult task despite co-operation, because of unequal bargaining power, as the weaker party may need court's protection.
3. Lack of familiarity, another demanding aspect is investment of time and energy in an ADR process.
4. Generally the legal community and disputing parties try to compare ADR procedure with judgments delivered by the courts, and reject the former as having several drawbacks. Although inordinate delay is a consistent complaint with the courts of law, it is considered a preferable route because there is a possibility of obtaining an urgent ex-parte from doing some kind of act, which will be binding on the other party, which, perhaps, gives the concerned party scope for strengthening their interests.
5. Whereas, ADR process is slow, as that requires consent of other party, and the settlement might not result in a binding solution.
6. ADR is pertinent to note that the contesting claimants would use the court litigation as a strategy to know the strength or otherwise of the other party through pleadings, and then decide to go for ADR if the case of the opposite party is strong, and a settlement would be beneficial in such circumstances.
7. The ADR serves no purpose where the parties require establishing a particular right, or requiring a precedent from an authority by way of determining the case in desired manner.
8. ADR, unless both the parties are equally interested in settlement, is not quick or cheap. This may happen if parties and their lawyers are interested in using the settlement process as strategy, and are not sincere about settling the issues for their own reasons. Thus, weak parties might prefer ADR to litigation in order to secure a settlement which may not reflect the merits.
Meaning
The poor and resource less persons need justice, they require for that, an access to justice. Mere recognition of tights does not help them, without providing for necessary infrastructure to secure them justice whenever needed. Even if the infrastructure is created, if he does not get legal aid to reach it, the purpose of entire justice system suffers a defeat. One of the attributes of civilized society is accessible and available justice mechanism whenever rights are violated.
It was introduced in 1982. The first lok adalt was originated on 14 March 1982 at Junagadh in Gujarath. Maharastra commence lok nyayalaya in 1984, and subsequently, and gradually the movement spread in Uttear Pradesh, orissa, Assam, kerala, Bihar, Haryana, DElthi, Pondicherry, Mizoram. The lok adalat is Andhra Pradeesh was first organized in Visakhapatnam on 15 December 1985.
Three significant reports advocating an informal system of dispute resolution including Nyaya Panchayats, legal aid camps and mobile courts from the background of the lok adalat. They are report of Gujarat legal aid committee 1971, report on procedural justice 1973 by VR Krishna Iyer J, Equal justice and social report 1977 by PN Bhagawati and VR Krishna Iyer JJ. Since Nyaya Panchayats and mobile courts could not be set up due to involment of state support and infrastructural aspects, the two doyens of justice collected their strength from non-state organizations and social action groups to organize legal aid camps, which in no time spread all over Tamil Nadu, Kerala Gujarat, Orissa, Utter Pradesh, Maharastra and Rajastan and Andhra Pradesh. In these states, constitution of Legal Aid Boards marked the beginning of the movement.
Legal Service Authority
The Legal Service Authority Act 1987, which received the assent of the President on 11 October 1984, was brought into force on 19 November 1995 after an amendment in 1994. The need for institutionalizing the lok adalat and providing for legal sanctity and authority to continue the movement was felt and the Act of 1987 was passed.
Objectives
The object of the Act, as stated in its preamble, is to constitute legal service authorities to provide free and competent legal services to weaker section of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Act also provides for organization of lok adalats to secure that the operation of the legal system promotes justice on basis of equal opportunity.
Authorities under law
The Act created National State and District Legal Service Authorities with the power to organize lok adalats.
The Central Authority constituted by the central government is called the National Legal Service Authority and consists of the chief justice of India as the patron-in-chief, a serving or retired judge of the Supreme Court, as the executive chairman, and other members as prescribed by the central government. The central can appoint member, secretary and other required number of officers and employees. The central authority can constitute a Supreme Court legal service committee.
Function of National Legal Service Authority
1. Making legal services available
The prime task is to lay down policies and principles and to frame effective and economic schemes for the purpose of making legal services available.
2. Promotion of justice
It is the duty of the state to mitigate the sufferings of the poor and weaker sections that are deprived of all opportunity and elevate them to dignified levels. This is the concept of social justice. Social justice litigation or helping the poor and weak to secure the enforcement of their rights is the real legal aid. The Act requires the authority to take necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections. There is a need for training the social workers in legal skills.
3. Spreading legal literacy and awareness
Rule of law is meaningless when majority of the people are not aware of their rights. Ignorance of law is no defense and law presumes every one to know the law. But it is a reality that the people do not know the law, nor do they have any access to knowledge of the law. The Act requires the authority to take appropriate measures for spreading legal literacy and legal awareness among the people and more so among the privileges guaranteed by various laws and schemes. The central authority must organize legal aid camps for people in villages and labour colonies.
4. Encouraging settlement of disputes by way of negotiation, arbitration and conciliation through lok adalat.
The very purpose of this law is to provide legal status to the institution of lok adalat, which is the facilitating center for conciliation or negotiation and arbitration, etc, to secure speedier remedy to their problems. Lok adalat is a tool through which the poor can secure justice and relief without waiting for a long time and spending huge amounts of money. It is an effective alternative dispute resolutions agency.
Permanent lok adalats
Lok adalat is a very useful experiment that succeeded in clearing long pending cases. That success is one of the main reasons for contemplating to transform occasional, specific or special lok adalats into a permanent institution. With the character of court-annexed alternative dispute resolution centre, providing for consensus dispute resolution process, the permanent lok adalat would be a welcome step. The legal service authority Act was amended in July 2002 and the Supreme Court found its earliest opportunity to hold it constitutionally valid. The bar council of India opposed this change and the structuring of the permanent lok adalats.
Legal service authority Act was passed in 1987 to provide free legal services to weaker sections of society and to ensure that they are not denied justice by reason of economic or other disabilities.
Object of the amendment 2002 - salient features of the Amendment
1. Providing for permanent Lok adalat of a chairman who is or has been a district judge or additional district judge or has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services.
2. The permanent Lok adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water, postal, telegraph or telephone services, supply or power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries and insurance services.
3. The pecuniary jurisdiction of the permanent lok adalat shall be up to Rs. 10 lakhs. It can be increased by the Central Government. It shall have no jurisdiction in respect of any matter relating to an offence not compoundable under any law.
4. It also provides that before the dispute is brought before any court, any party to the dispute may make an application to the permanent lok adalat for settlement of the dispute.
5. Where it appears to the permanent lok adalat that there exists elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach to the agreements, the permanent legal service authorities shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the permanent legal service authorities shall decide the dispute on merits.
6. Every award made by the permanent lok adalat shall be final and binding on all parties to thereto and shall be a majority of persons constituting the permanent lok adalat.
Eligibility
Section 12 of the Legal Service Authorities Act entitles every person
a) Who as to file or defend a case to legal services, of that person belongs to scheduled caste or tribe,
b) A victim of trafficking in human beings or beggar,
c) A women or child,
d) A person with disability,
e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, cast atrocity, flood, drought, earthquake or industrial disaster,
f) An industrial woman,
g) In custody, including custody in a protective home, juvenile home, psychiatric hospital or psychiatric nursing home,
h) A person who had in receipt of annual income less than Rs. 9000 if the case is before Supreme Court, and if the case is before a court other than the Supreme Court and less than Rs. 12000 or such other higher amount as prescribed by the government.
No legal services in certain cases
1) Proceedings wholly or partly in respect of
a) Defamation
b) Malicious prosecution
c) A person charged with contempt of court proceedings and
d) Perjury
2) Proceedings relating to any election
3) Proceedings incidental to any proceedings referred to in sub regulations (1) and (2)
4) Proceedings in respect of offences where the fine imposed is not more than 50 rupees.
5) Proceedings in respect of economic offences and offences against social laws, such as, protection of civil rights Act 21955, and the Immoral Traffic Act 1956, unless in such cases the aid is sought by the victim, provided that the Chairman may, in appropriate case, grant legal services even in such proceedings.
6) Where a person seeking legal services
a. Is concerned with the proceedings only in representative or official capacity
b. Is formal party to the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation.
Modes of legal service
The legal services include the following
1) Payment of court fees, process fees and all other charges,
2) Charges for drafting, preparing and filing of any legal proceedings,
3) Cost of obtaining and supply of certified copies of judgments, orders and other documents in legal proceedings,
4) Cost of preparation of paper book and expenses incidental thereto for use in legal proceedings.
ADR in Criminal cases
One of the reasons attributes to the huge increase in the number of pending cases in High Courts is that the vacancies for judges were not filled in time. The member of cases pending trial in the 12378 district and subordinate courts, in the country, is estimated to be about two crores or more. Of the 122205 posts of judges and magistrates in these courts, 1500 are vacant.
Constitutional obligation
The preamble of the constitution enjoins the state to secure social, economic and political justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This directive principle of state policy directed the state to strive for reducing inequalities amongst groups of people in different areas. Article 38(1) says that the state shall secure that the operation of the legal system promotes justice. To ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Need for a fair judge-population ratio
The law commission of India has repeatedly recommended an increase in the judge population ratio. However, the same has not been accepted by the government. The 20th law commission report stated:
If legislative representation can be worked out, as pointed out earlier, on the basis of population and if other services of the state bureaucracy, police, etc, can also be similarly planned, there is no reason at all for the non-extension of this principle to the judicial services. It must also be frankly stated that while population may be a demographic unit, it is also a democratic unit. In other words, we are talking of citizens with democratic rights including the right to access to justice which is the duty of the state to provide.
The 20th law commission report, while recommending the five-fold increase in judicial strength, at all levels of the Indian judiciary, from 10.5 to 50 judges per million of population, also pointed out how India's judge-population ratio stands in poor contrast when compared with several other countries.
Fast track courts scheme
Under the fast track court scheme, a sum of Rs 502.90 crores was sanctioned as up gradation grant for judicial administration for five years till 2005. at present, there are 1.8 lakh under-trial in jails, on whose maintenance the government was spending about Rs 361 crores a year at the rate of Rs 55 per person, per day, in prison. About two crore cases were expected to be disposed by 2005. If successfully implemented it would entail substantial saving in jail expenditure, besides addressing a serious human rights problem.
Increase rate of Acquittals
Apart from under-trail and pendency problems, the increasing rates of acquittals and falling convictions have become causes of serious concern. The reasons foe acquittal are manifold like lack of sufficient evidence, hesitation of witnesses to turn to courts, etc. The acquittals constitute more than 90 per cent of cases in crimes.
To administer the rule of law and justice, certain necessary steps need to be taken by the state. In case of civil matters there are alternate options available such as alternate dispute resolution mechanisms, thus there is a procedure by which pendency of cases can be tackled. However such a facility is not available in administration of criminal justice. There is a need to evolve an alternative approach of resolving criminal cases in a constructive manner. Although, there are very few alternatives to prosecution in a criminal trial, however, the pre-trial processes of investigation and prosecution can be rationalized, and alternatives founds to prolonged trial procedures, compounding of offences of loss serious nature and plea bargaining are some areas, which can help to speed up the trial and increase the conviction.
Compounding of offences: need to reframe section 320 of Cr.PC
Section 320 of criminal procedure code provides for compounding of offences. Part one gives a list of offences which can be compounded without the consent of the court, while the second part provides for compounding of serious offences with the court's permission. Some examples of compoundable offences are causing hurt, wrongful restraint, criminal trespass; adultery, enticing defamation, criminal intimidation and act caused by making a person believe that he will be an object of divine displeasure.
The second part deals with relatively serious offences that can be compoundable with the court's permission. Section 381 talks about theft by clerk or servant of property in possession of master, where the value of the stolen property does not exceed Rs 250. as per section 320(2) the court's permission has to be obtained to compound the offence. There are various other provisions in the IPC that require that permission by the court be taken to compound the offence. There is a need to widen the scope of compounding offences with provision of details for procedure, principles and safeguards to reduce the burden of prosecution and the trauma of trial.
An offence falls beyond the scope of compounding, and where the trial is necessitated the accused must get a favorable and fair opportunity to voluntarily plead guilty but with certain safeguards.
UNIT-II
ARBITRATION
Like most Indian laws, the law relating to arbitration in India is also based on the English Arbitration Law. The English merchants and traders referred their trade and commercial disputes for settlement to persons called arbitrators who were specially selected for the purpose. Initially, the Arbitration Act of 1697 was enacted in England to resolve the dispute relating to personal chattels or personal wrongs or real estate of the disputant merchants and traders. Besides, the Common law Procedure Act, 1854 also contained some provisions relating to arbitration with a view to making the award more binding upon the parties and ensuring its legal enforcement. These statutes were subsequently replaced by the Arbitration Act, 1889 which repealed all the earlier English enactments relating to arbitration.
In India, the first statutory enactment on arbitration law was the Indian Arbitration Act, 1899, which was modeled on the English Arbitration Law, 1889. Prior to this enactment, the Bengal Regulation of 1772 provided that the parties to a dispute relating to accounts etc. shall submit their cause to arbitration, the award of which shall become a decree of the court. Further changes were made in the arbitration law by the Regulations of 1781 and 1782 which provided that an arbitration award could be set aside on the proof of gross corruption or partiality on such assertions being made by at least two credible witnesses on oath. The arbitrators were to be appointed by the parties of their own choice and their decision was final and binding on the parties except in case of partiality or misconduct on the part of arbitrators. Regulation of 1787 empowered the court to refer disputed matters to arbitration with the consent of the parties.
The operational part of the arbitration law was made more effective by the Bengal Regulation, 1793 which provided that the Court could refer matters and suit relating to accounts, partnership debts, non-performance of contracts etc. to arbitration where the value of suit did not exceed two hundred sikkas (i.e. rupees). The Regulation also laid down the procedure to the followed in conducting arbitration proceedings. The provisions relating to arbitration proceedings contained in the Regulation of 1793 were extended to the territory of Banaras by the Regulation o f1795. These were made further applicable to the Province of Oudh by the Regulation of 1803.
The Governments of Madras and Bombay also conferred certain powers on the Panchayats to settle disputes by arbitration by the Madras Regulation of 1816 and Bombay Regulation of 1827 respectively.
Consequent to the enactment of the Code of Civil Procedure, 1859, the provisions relating to arbitration were incorporated in Chapter VI of the Code. However, these were not applicable to the Non-Regulation Provinces and the Presidency Small Cause Courts, as also the Supreme Court of Calcutta, Madras and Bombay. The Code of Civil Procedure, 1859 was subsequently repealed and replaced by the Act of 1882 which was further replaced by the Code of Civil Procedure, 1908. The Indian Arbitration Act, 1899, however, continued to be applied only to matters which were not before a court of law for adjudication.
It was in 1940 that the Indian law on arbitration was consolidated and redrafted in the form of Arbitration Act, 1940 on the pattern of the English Arbitration Act, 1934. While the English Arbitration Act, 1934 was subsequently modified by the Act of 1950 followed by the Arbitration Act of 1979, the Indian Arbitration Act, 1940 remained in force until it as replaced by the new Arbitration and Conciliation Act, 1996.
The globalisation of trade and commerce and the need for effective implementation of economic reforms during the preceding decade necessitated re-drafting of the Indian Arbitration Act of 1940 was a view to ensuring smooth and prompt settlement of domestic as well as international commercial disputes. The Law Commission of India, in its 76th Report in November, 1978 had already recommended the need for updating the Arbitration Act 1940 to meet the new challenges of the modern developing economy of the country. Besides, several other representative bodies of trade and industry and legal experts also proposed drastic changes in the existing arbitration law which suffered from several lacunae and defects. As a result of these demands, the Arbitration and Conciliation Bill, 1996 was promulgated by the President to meet and needs of business community for speedy settlement of commercial disputes. Since the Parliament could not pass the Bill within the stipulated time, the ordinance had to be re-promulgated twice until it was finally passed as the Arbitration and Conciliation Act, 1996 which received the assent of the President of India on 16th August, 1996. The Act has been brought into effect from 25th January, 1996, the day the relevant Ordinance was passed. It may be stated that arbitration which had lost its sanctity as an alternative dispute resolution system was gradually being substituted by have now been statutorily by the Arbitration and Conciliation Act of 1996 (Act 26 of 1996).
The working of Arbitration Act of 1996 over the years has shown that it does not sufficiently fulfill the requirements of domestic as well as international arbitrations in certain specific areas. Therefore, the Government of India has introduced the Arbitration and Conciliation (Amendment) Bill, 2003. The Amendment Bill inter-alia seeks to empower arbitral tribunals to issue effective interim measures at par with the authority of Court and provide for an effective mechanism of carrying them out. For this purpose the existing Sections 9 and 17 of the Act are proposed to be drastically amended and two new sections namely Sections 24-A and 24-B are being inserted from providing an efficacious mechanism of imparting interim measures. These changes sought to be brought about by the proposed Amendment Bill would go a long way in increasing the efficacy of arbitral tribunal in effective adjudicating the matters brought before it.
Meaning of Arbitration
It means any arbitration whether or not administered by permanent arbitral institution. Section 2 (1) (a) of Arbitration and conciliation Act 1996 says arbitration means it is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.
Dispute
Dispute means contention and that it arises where the contention is made. It is said that dispute means the matter or question in dispute.
Dispute of Civil nature
Whatever be the type of dispute, the matter in dispute must be of civil nature. Matters of criminal nature cannot be referred to arbitration. Generally matters of a criminal nature which cannot be compromised can not be referred to arbitration. But in cases where the injured party has a remedy by civil actions as well and by criminal prosecution, a reference to arbitration can be made. Thus compoundable cases may be referred to arbitration. Disputes under section 145 Cr.P.C says regarding disputes as to possession is a civil nature and may be referred to arbitration.
Subjection to this restriction, any matter of civil nature can be referred to arbitration. Disputes relating to property, ownership or tenancy claims for damages howsoever arising, partnership matters, disputes between an institution, like a company, and its members, can be referred to arbitration. But some matters involving a special type of jurisdiction cannot be so referred.
Ex: Matters involving insolvency or probate jurisdiction or those involving breach of a trust created for a public purpose under Section 92 of the Code of Civil Procedure cannot be referred, for they involve public consequences and not merely adjudication of rights between private individuals.
Following matters are refer to Arbitration
1. Torts matters
The Arbitrator can decide matters connected with the contract.
2. Contracts of apprenticeship
Contracts of apprenticeship being for the benefit of minors, if they contain an Arbitration clause it will also be binding upon the minors.
3. Assignment
When a contract is assignable, the benefit of an arbitration clause contained in it is assignable as part of the contract.
4. Legal Representative
Section 2 (1) (g) of the Arbitration and Conciliation Act 1996 provides that the Arbitration agreement is enforceable by or against the legal representatives of the deceased party provided that the right to sue under the cause of action survives.
Matters excluded from Arbitration
1. Government contract some matters were excluded from the purview of arbitration.
2. Excluded all criminal matters from Arbitration.
1. Service of communications
a) The communication must be in writing
1. Unless otherwise agreed by the parties, any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address.
2. If none of the places referred to in clause (1) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.
3. The communication is deemed to have been received on the day it is so delivered.
Arbitration may broadly be categorized into (1) Ad hoc and Institutional Arbitration (2) Domestic and International Arbitration and (3) Foreign Arbitration.
The parties have the option to seek recourse to Adhoc arbitration or Institutional arbitration depending on their choice and convenience.
Ad hoc Arbitration
Ad hoc Arbitration reference to an arbitration where the procedure is either agree upon by the parties or in the absence of an agreement the procedure is laid down by the arbitral tribunal. Thus it is an arbitration agreed to and arranged by the parties themselves without seeking the help of any arbitral institution. In Ad hoc arbitration, if the parties are not able to nominate arbitrator/ arbitrators by consent, the appointment of arbitrator is made by the Chief Justice of a High Court (in case of domestic arbitration) and by the Supreme Court (in case of international arbitration) or their designate. The fees to be paid to the arbitrator is agreed to by the parties and the arbitrator concerned.
Institutional Arbitration
In an institutional arbitration it may stipulate in the arbitration agreement that in case of dispute or differences arising between them, they will be referred to a particular institution such as Indian Council of Arbitration (ICA) or International Chamber of Commerce (ICC), Federation of Indian Chamber of Commerce and Industry (FICCI); Would Intellectual Property Organisation (WIPO) etc. All these institutions have framed their own rules of arbitration which would be applicable to arbitral proceedings conducted by these institutions.
Domestic Arbitration
Domestic arbitration takes place in India when the arbitration proceedings, the subject matter of the contract and the merits of the dispute are all governed by the Indian Law; or when the cause of action for the dispute arises wholly in India or where the parties are otherwise subject of Indian Jurisdiction.
International Arbitration
International Arbitration can take place either in India or outside India in cases where there are ingredients of foreign origin relating to the parties or the subject-matter of the dispute. The law applicable may be Indian law or foreign law depending on the agreement between parties in this regard. The definition of International Arbitration is given in Sec. 2 (1) (f) of the Arbitration and Conciliation Act, 1996.
Foreign Arbitration
A foreign arbitration is an arbitration which is conducted in a place outside India, and the resulting award is sought to be enforced as a foreign award.
Section 7)1) of the arbitration and conciliation 1996 Act provides that Arbitration agreement. It means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
The followings are essential elements of Arbitration Agreement
1. Agreement to be in writing
Section 7 (3) of the Act says that an Arbitration agreement shall be in writing. An oral agreement to submit a dispute to Arbitration is not binding. If the agreement is in writing it will bind, even if some of its details are filled in by oral understanding. It is not necessary that the agreement should be on a formal document, not it is necessary that the agreement should be signed by both or either orally. It is sufficient that the written agreement has been orally accepted by the parties or that one has signed and the other has accepted.
2. No prescribed form of agreement
An Arbitration clause is not required to be stated in any particular form. If the intention of the parties to refer the dispute to arbitration can be clearly ascertained from the terms of the agreement, it is immaterial whether or not the expression Arbitration or Arbitrator has been used. An Arbitration clause may be incorporated into an writing contract by specific reference to it. Section 7 (5) of the Act says that the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make the Arbitration clause a part of the contract.
3. Through telex and fax
An agreement by telex has been held to be an agreement in writing. A faxed copy of the charter party containing an Arbitration clause and signed by both parties was produced. That was sufficient to establish existence of the Arbitration agreement.
A charter party agreement need not be in writing and signed by both parties. It can as well be made out from the acts of the parties to the agreement by way of their exchange of letters and information through fax, e-mails, etc.
4. Exchange of letters
A letter was sent by one party to the other suggesting settlement of disputes, if any, through Arbitration. The other party accepted the same. This exchange of letters was held to have constituted an Arbitration agreement.
Nature of dispute
Disputes which can be referred to Arbitration are:
1. Present or future referred to Arbitration
All matters of a civil nature with a few exceptions, whether they relate to present or future disputes, may form the subject of reference but not a dispute arising from and founded on an illegal transaction.
2. In respect of a defined legal relationship, whether contractual or not:
Section 7(1) of the Arbitration and Conciliation Act, 1996 requires that the dispute must be in respect of a defined legal relationship whether contractual or not. Matters of moral or spiritual relations are not6 fit subjects for Arbitration. If a contract is not enforceable for want of legal relationship, the question or Arbitration in respect of such a contract would not arise.
Clause of special jurisdiction
Whether the law has given jurisdiction to determine, certain matters to specified tribunals only, such matters cannot be referred to Arbitration.
a) Insolvency Proceedings
b) Probate Proceedings
c) Suit under Section 92 of CPC
d) Proceedings for appointment of guardian
e) Matrimonial clauses - except settlement of terms of separation or divorce
f) Industrial dispute
g) Title of immovable property in a foreign country
h) Claim for recovery of octroi duty
Section 11 of the Arbitration and Conciliation Act of 1996 provides that:
1. A person of any nationality may be Arbitration, unless otherwise agreed by the parties.
2. The parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators.
3. In Arbitration with three Arbitrations, each party shall appoint one Arbitrator, and the two appointed Arbitrators shall appoint the third Arbitrator who shall act as the presiding Arbitrator.
4. If the appointment procedure in sub-section (3) of the Act applies
a) A party fails to appoint an Arbitrator fail to agree on the third Arbitrator within thirty days from the other party.
b) The two appointed Arbitrators fail to agree on the third Arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
5. Failing any agreement referred to in sub-section (2), in an Arbitration with a sole Arbitrator, if the parties fail to agree on the Arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall made4, upon request of a party, by the Chief Justice or any other person or institution designed by him.
6. Where, under an appointment procedure agreed upon by the parties
a. A party fails to act as required under that procedure
b. The parties, or the two appointed Arbitrators, fail to reach an agreement expected of them under that procedure.
c. A person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
7. A decision on a matter entrusted by sub-section (4) or sub-section (5) or (6) to the Chief Justice or the person or institution designated by him is final.
8. The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to:
a) Any qualifications required of the Arbitrator by the agreement of the parties
b) Other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
9. In the case of appointment of sole or third arbitrator in an international commercial Arbitration, the Chief Justice of India or the person or institution designated by him may appoint an Arbitrator or a nationality other than the nationalities of the parties where the parties belong to different nationalities.
10. The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or (5) or (6) to him.
11. Where more than one request has been made under sub-section (4) or (5) or (6) of the Chief Justice different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.
12. Where the matters referred to in sub-section (4), (5), (6), (7), (8) and (10) arise in an international commercial Arbitration, the reference to Chief Justice in those sub-sections shall be construed as a reference to the Chief Justice of India.
Where these matters referred to Arbitration, the reference to Chief Justice in those sub-sections shall be construed as reference to the Chief Justice of the High Court within whose local limits the Principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the court referred to in that clause, to the Chief Justice of that High Court.
Number of Arbitrators
The Act of 1940 "Arbitration and Conciliation" section 10 provides that number of Arbitrators.
1. The parties are free to determine the number of Arbitrators, provided that such number shall not be an even number.
2. Failing the determination referred to in sub-section (1), the Arbitration Tribunal Shall Consist of a sole Arbitrator.
Sole Arbitrator
If the parties want more than one Arbitrator, they will have to expressly so provide in the agreement, otherwise the reference is to be a sole Arbitrator appointed with the consent of the parties. Where the opposite party declined to give consent even after second notice, the court would get the power on the application of the other party to appoint an Arbitrator. Under the Arbitration and Conciliation Act of 1996, the matter has to be referred to the Chief Justice.
Agreement for even number
The parties are free to determine the number of Arbitrators. Section 10 (1) also adds t6hat such number shall not be an even number. Where the party's do not determine the number, a presumption of law arises that the Arbitral Tribunal shall consist of a sole Arbitrator. An agreement is not be invalidated simply because it provides for appointment of an even number of Arbitrators.
Section 10 of the Arbitration and Conciliation Act, 1996 provides that the number of Arbitrators shall not be an even number.
If the parties provide for appointment of only two Arbitrators, that does not mean that the agreement becomes invalid. If the two Arbitrators agree and give a common award there is no frustration of the proceedings. In such a case their common opinion would have prevailed, even if the third Arbitrator, presuming there was one, had differed, thus, there would be no waste of time, money and expense if a party, with open eyes, agrees to go to Arbitration of two persons and then participates in the proceedings.
Agreements for more than two Arbitrators
By agreements parties may provide for appointment of 5 to 7 Arbitrators. If they do not provide for a procedure for their appointment or there is failure of the agreed procedure, then Section 11 does not contain any provision for such a contingency.
Appointment of interested person
Any person may be appointed as an Arbitrator, even if he is personally acquired with the subject-matter of the reference or has interest and, if this fact is known to both parties, it is no objection to his appointed. Where the parties voluntarily agreed through tender documents for appointment of Arbitrator so appointed was under the influence of the appointing authority was held to be not tenable.
Appointment of named Arbitrator
Section 11(2) says that where the agreement itself specifies the Arbitrator, it is obligatory upon the court, should it decide to refer the matter, to refer it only to the Arbitrators named in the agreement. It is not open to the court to ignore such an Arbitration clause and appoint another person as an Arbitrator. Where the named Arbitrator refuses of fails to act or where the agreement does not name any Arbitrator and the parties also do not agree upon an Arbitrator, there only the court gets the power to appoint an Arbitrators.
Failure of named Arbitrator to act
Section 11(6) says that a works contract carried the clause to the effect that any dispute should be decided by the commissioner. The court said that this had the effect of being an Arbitration clause irrespective of the fact that the word Arbitrator or Arbitration were not used in the clause.
Direction to named Arbitrator
Where the agreement was to get the dispute settled by referring to the executive director of the corporation, but he gave no response to the invocation of his jurisdiction and the aggrieved party approached the Chief Justice for an appointment, it was held that no compelling circumstances existed to justify an appointment outside the terms of the agreement.
Appointment where Arbitrator mot named
Differences between the parties arose in the performance of a sale and purchase transaction. There was an Arbitration clause in the contract, but the name of the Arbitrator was not mentioned. It was held that a sole Arbitrator could be appointed under Section 11(5) of the Arbitration and conciliation Act of 1996.
Appointment by Chief Justice
Section 11(6) of the Act says that the expression Chief Justice in this connection virtually means the court because in most cases the Chief Justices have authorized Civil Judges. The reason for the provision is to ensure that the appointment is made by a person occupying a high judicial office, who would naturally act with due care and caution to make certain that a competent, independent and impartial Arbitrator is appointed.
In the three cases mentioned in the section the Chief Justice gets the power to appoint an Arbitrator. They are:
1) Where the parties fail to appoint or concern in the appointment of an Arbitrator or Arbitrators.
2) Where the two appointed Arbitrators fail to appoint or concern in the appointment of the presiding Arbitrator.
3) Where the person or institution designed by the parties for appointment fails to act.
Presiding Arbitrator
Where the Arbitrator clause clearly provided that in the case of a failure of the two Arbitrators appointed by the parties to reach a consensus on the appointment of presiding Arbitrator, the same "shall be appointed by the Council of IRC", it was held that one party could not compel the other to agree for a retired Supreme Court judge or Chief Justice of a High Court.
Delay in appointment by Chief Justice
The Supreme Court has observed that Arbitration proceedings must be expedited. An application for appointment, in this case, remained pending before the Chief Justice for ever two years. Normally, such an application has to be disposed of most expeditiously. The parties agreed before the Supreme Court that it would be more expedite for the Supreme Court itself to appoint an Arbitrator so that further delay could be avoided. The Supreme Court said that it would in the interest of justice to appoint a sole Arbitrator. The limitation period of 30 days provided in Section 11(4) and (5) of the Act.
Thirty days notice
Section 11(4) and (5) of the Act says before asking the Chief Justice to act in the matter, a thirty clear days notice should be given to the other party to concern in the appointment and if the fails to do so then an application can be made to Chief Justice. The Chief Justice will also give an opportunity to the other party to explain his position. There is an obligation on the part of the Chief Justice to issue notice to the opposite party when he is moved under Section 11 for giving opportunity of being heard, which is a must. It is an application of the doctrine of acting fairly.
Appointment of presiding Arbitrator
1) In the absence of an agreed procedure, where the Arbitration has to be by three Arbitrators, each party has to appoint one Arbitrator. The two appointed Arbitrators have to appoint a third Arbitrator who will act as the Presiding Arbitrator.
2) Where the two appointed Arbitrators fail to agree on the third Arbitrator within 30 days from the date of their appointment, a party may make a request to the Chief Justice. The appointment will then be made by the Chief Justice or his nominee.
3) In case of an agreed procedure, the two appointed Arbitrators fail to reach an agreement expected of them under the agreed procedure, a party may make a request to the Chief Justice or his nominee to take necessary measures unless the agreement on the appointment procedure provides for some other means for securing the appointment.
4) Where the Arbitrators appointed by the parties failed to agree on presiding Arbitrator as per the terms of the Agreement, the Supreme Court appointed a sole Arbitrator with the consent or the parties.
Meeting of Arbitrators for appointing third Arbitrator
One of them is that such appointment need not be in writing. It is not necessary that the two Arbitrators should hold a meeting for taking a decision in the presence of each Arbitrator should hold a meeting for taking a decision in the presence of each other after making joint deliberations
The requirement of law is satisfied if appointment is:
1) Actually made
2) Is made on the basis of prior consultation between the two original Arbitrators
3) Information as to appointment is communicated by both or either to the parties.
Appointment of new Arbitrator
The power to appoint a new substitute Arbitrator arises in circumstances. Under Section 13 of the Act says that the offence of an Arbitrator may become vacated if his appointment was challenged and the challenge being successful, he either withdraw or had to bow out.
Under Section 14 of the Act says that the mandate of an Arbitrator terminates if he becomes unable to perform his functions de jure or de facto, or for some reasons fails to act without undue delay or he either withdraws from his office or the parties agree to terminate his mandate. If any dispute occurs about the matter of de jure or de facto inability or failure to act without undue delay, the same can be decided by the court on the application of a party.
Appointment of three or more Arbitrators
Section 10 of the Act provides that the parties are free to determine the number of Arbitrators, the only restriction being that such number is not to be an even number.
Section 11 of the Act provides that where the agreement is for Arbitration by three Arbitrators, each party is to appoint one Arbitrator and the two appointed Arbitrators are to appoint a third Arbitrator who is to act as the presiding Arbitrator. An agreement for appointment of two Arbitrators, one by each party, and for appointment of an umpire by the two Arbitrators which practice was in existence before the 1996 Act came into force, has been held to be valid under the new Act also.
Presiding Arbitrator
Section 11(3) of the Act says that the failing any agreement in an Arbitration with three Arbitrators, each party shall appoint one Arbitrator, and the two appointed Arbitrators shall appoint the third Arbitrator who shall act as the presiding Arbitrator.
Where there agreement provides for Arbitration by three Arbitrators, each party can appoint only one Arbitrator. The two appointed Arbitrators would then appoint a third one to be designated as the presiding Arbitrator. The Arbitrators will be bound to appoint the presiding Arbitrator in accordance with the parties' intention.
Removal of Arbitrator
Section 12 of the Arbitration and Conciliation Act says that following grounds for removal of Arbitrator
1. Misconduct
Misconduct is the one of the reason for removing Arbitrators.
Pratt v/s Swanmore Builders Ltd and Baker
In this case, the Arbitrator was nominated by the President of the Institute of Arbitrators. The dispute was about a building contract. The challenge was on the ground of delay and misconduct. The facts raised were that the Arbitrator took no steps to ascertain what the scope of the Arbitration Agreement between the parties was; he demanded $3000 from the builders as security for the final award, which they were unable to pay; he then made further orders for payment by both parties, $500 as security fir the Arbitrator's fee and expenses, and $500 as security for the cists of reference; that he made various mistakes in sending to Miss Pratt a copy of an important letter which he had received from the builders and which contained incorrect and incomprehensible expressions and lastly, that he ordered the Arbitration to proceed without any security unmindful of the fact that it would make the proceedings a wasted effort as the builders had already indicated to Miss Pratt that they would go into liquidation if she won the award.
She applied for removal of the Arbitrator. The court had to consider whether the Arbitrator had misconduct himself of the proceedings. The court pointed out that the word misconduct in this context did not have any moral significance but was used in a technical sense as denoting irregularity. It is distinct from error which is not only normal in human affairs but also an occupational hazard.
2. Destruction of Confidence
Confidence is very important factor for deciding the case.
In Modern Engg Ltd v/s C. Miskin and Sons Ltd
In this case arose out of a construction contract. Modern engineering were the nominated sub-contractors for the erection of the steel work. After the completion of the work Miskin claimed from them damages for delay and defective work. Modern Engg relied on the certificate issued by the architect to the effect that the sub-contractor ought reasonably to have been completed by a certain date and they had done so. M raised the point but did not press it because he thought that the question whether the architect's certificate could be reopened should be decided after ME had made their submissions. The Arbitrators, without waiting for ME's arguments issued an interim award that M could reopen the certificate.
Finally court held that the Arbitrator had misconducted the proceedings, for he had decided a matter against a party without having heard him; it was clearly a breach of natural justice.
3. Personal knowledge not to be used for ousting competent evidence
Arbitration is that it can be conducted by a person who is an expert on the subject-matter of dispute it would not permit him to use his personal knowledge to supersede other competent evidence. That may amount to misconduct justifying his removal.
4. Exorbitant remuneration
Powers of Arbitrators
Under Section 13 of the Act says powers of Arbitrators
1. The power to administer oath to parties and witnesses appearing before him.
2. In reference to questions of law, he had the power to refer the matter for the opinion of the court or he could write his award in terms of a reference to the court on a point of law so that the court's opinion would finally decide the matter.
3. He had the power to rectify any clerical error or mistake arising from any accidental slip or omission.
4. He had the power to rectify any clerical error or mistake arising from any accidental slip or omission.
5. He had the power to administer such interrogatories to the parties as may in his opinion be necessary.
Form and contents of award
Section 13 of the Act provides that followings are the form and contents of award.
1) An Arbitral award shall be made in writing and shall be signed by the members of the Arbitral Tribunal.
2) In Arbitral proceedings with more than one Arbitrator, the signatures of the majority of all the members of the Arbitral Tribunal shall be sufficient so long as the reason for any omitted signature is stated.
3) The Arbitral award shall state the reasons upon which it is based, unless:
a) The parties have agreed that no reasons are to be given
b) The award is an Arbitral award on agreed terms under Section 10 of the Act.
4) The Arbitral award shall state its date and the place of Arbitration as determination in accordance with Section 20 and the award shall be deemed to have been made at that place.
5) After the Arbitral award is made, a signed copy shall be delivered to each party.
6) The Arbitral Tribunal may, at any time during the Arbitral proceedings, make an interim award on any matter with respect to which it may make a final Arbitral award.
7) a) Unless otherwise agreed b y the parties, where and in so far as an Arbitral award is for the payment of money, the Arbitral Tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
8) b) A sum directed to be paid by an Arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment.
9) Unless otherwise agreed by the parties:
a) The costs of Arbitration shall be fixed by the Arbitral Tribunal.
b) The Arbitral Tribunal shall specify:
1. The party entitled to costs
2. The party who shall pay costs
3. The amount of costs or method of determing that amount,
4. The manner in which the costs shall be paid.
Reasons for award
An Arbitrator was not obliged to give reasons for his award except when he was required to do so by:
1. The Arbitration agreement
2. The reference or deed of submission
3. The statute governing the Arbitration
Section 31 of the Act says that an Arbitral Tribunal must state reasons for its award except:
Date and place of award
The Arbitral award to state the date of award that the date on which it is signed, and the place of Arbitration determined. An award is sustainable where it is the result of a decision arrived at through joint deliberations. It is not necessary that such deliberations can be done through any mode of communication. The fact that the Arbitrators signed their award on different dates and at different places could not be taken to mean that they did not deliberate jointly.
Interim Award
Section 2(1)(c) of the Act provides that interim award. Section 31(6) empowers the Arbitral Tribunal to make an interim award. The interim award can be on any matter with respect to which the Tribunal can make a final award. But some exceptional circumstances Arbitrator can make an interim award without proper hearing.
The court said that in a dispute arising out of a building contract where the respondent raises matters of defense or set off the Arbitrator may make an interim award without a full hearing, but only in exceptional circumstances where he can properly find that he is not satisfied that the defence or set off is made in good faith or where on the respondent's own figures there is a sum properly due to the claimant. In all other cases, the Arbitrator must have a proper hearing.
Requirements of valid award
1. Must conform to submission
The Arbitrator should conform to the terms of the agreement under which he is appointed and is supposed to function. He has no authority to arbitrate that which is not submitted to him.
2. Must be certain
The award must be certain in its operative particulars.
Ex: There must be certainty as to the party who has to perform, who has to receive the payment, the time and mode of payment, and the amount payable. An award which says that A or B shall do a certain act, or that the money shall be paid by some or one of the several named persons on demand, has been held to be bad for uncertainty.
3. Must be consistent and not vague
An award may be set in terms of alternatives. An award directed the party to do one of two things. One of the alternatives was uncertain and impossible, but the other was certain and possible. The award was held to be valid and binding. The award should be consistent in all its terms. An inconsistent award is as bad as an uncertain one.
4. Must be complete and final
The Arbitrator should finally dispose of the matter before him and not leave it a part of the way.
In Dresser v/s Finnis
In this case, a dispute arose as to the merchantable quality of sleepers delivered under a contract which required sound merchantable sleepers. It was referred to Arbitration to decide whether they were of merchantable quality and, if not, what allowance should be made. The award found that some sleepers were merchantable and some not and directed that the buyer should dispose of them and the selling broker should certify the difference in amount realized by the unmerchantable and merchantable sleepers and that amount the seller should pay. The award was held to be bad for want of finality.
Termination of proceedings
The Arbitral Tribunal may terminate the proceedings for following grounds, those are:
1. Section 32 of the Act says that the Arbitral proceedings shall be terminated by the final Arbitral award or by an order of the Arbitral Tribunal.
2. The Arbitral Tribunal shall issue an order for the termination of the Arbitral proceedings where-
a) The claimant withdraws his claim, unless the respondent objects to the order and the Arbitral Tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute.
b) The parties agree on the termination of the proceedings
c) The Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
3. The mandate of the Arbitral Tribunal shall terminate with the termination of the Arbitral Tribunal.
Automatic termination
The Arbitral proceedings stand automatically terminated when the final Arbitral award is made.
In N.B.P Developments v/s Buildko and Sons
In this case, where the contract under which Arbitration arose is assigned to another person on an assignment takes place by reason of takeover of the concern, it becomes the duty of the assignee to give notice to the Arbitrator, within a reasonable period, that he has succeeded to the rights of the previous party to the Arbitration. His failure to do so would bring the Arbitration agreement to an end.
Termination by Tribunal
An order for the termination of Arbitral proceedings has to be passed by the Arbitral Tribunal in the following cases:
When the claimant withdraws his claim. But an order will not be passed if the respondent objects and has a legitimate interest in obtaining a final settlement of the dispute.
a. When the parties agree to the termination.
b. When the continuation of the proceedings has become unnecessary or impossible.
Every termination is not award
Every kind of termination of proceedings by the Arbitral Tribunal does not result in an award. This distinction is material because it is only an award which an challenged under Section 34 of the Arbitration and Conciliation Act of 1996.
Corrections, interpretation and additional award
Section 33 of the Act provides that the following circumstances may make corrections interpretation and also addition to award.
1) Within thirty days from the receipt of the Arbitral award, unless another period of time has been agreed upon by the parties.
a) A party, with notice to the other party, may request the Arbitral Tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award.
b) If so agreed by the parties, a party, with notice to the other party, may request the Arbitral Tribunal to give an interpretation of a specific point or part of the award.
2) If the Arbitral Tribunal considers the request made to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall from part of the Arbitral award.
3) The Arbitral Tribunal may correct any error of the type on its own initiative, within thirty days from the date of the Arbitral award.
4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the Arbitral award, the Arbitral Tribunal to make an additional Arbitral award as to claims presented in the Arbitral proceedings but omitted form the Arbitral award.
5) If the Arbitral Tribunal considers the request made to justified, it shall make the additional Arbitral award within sixty days from the receipt of such request.
6) The Arbitral Tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional Arbitral award.
7) Section 31 of the Arbitration and Conciliation Act shall apply to a correction or interpretation of the Arbitral award or to an additional Arbitral award made under this section.
Additional award
Where some claim referred to the Arbitral Award is omitted from consideration in the Arbitral award, a party may, make a request to the Arbitral Tribunal to make an additional award with respect to such claim. Such request can be made under notice to the other party. This request can be made subject to any agreement between the parties on the point. Request should be made within thirty days of the receipt of the award.
Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation.
Arbitration
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator - reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.
Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.
Conciliation
Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
UNIT III
Meaning
Part III of the Arbitration and Conciliation Act of 1996 define conciliation. It means "the settling of dispute without litigation. Conciliation is a process by which discussion between parties is kept going through the participation of a conciliator.
Number and Qualification of Conciliators
Section 63 of the Act fixes the number of conciliators. There shall be one conciliator. But the parties may be their agreement provide for two or three conciliators. Where the number of conciliators is more than one, they should as a general rule act jointly.
Appointment of Conciliators
Section 64 of Act provides three rules for the appointment of conciliators:
1) If there is one conciliator in a conciliation proceeding, the parties may agree on the name of a sole conciliator.
2) If there are two conciliators in a conciliation proceeding, each party may appoint one conciliator.
3) If there are three conciliators in a conciliation proceeding, each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator.
Stages of conciliation
Procedure of conciliation
1. Commencement of conciliation proceedings
Section 62 of the Act says that the conciliation proceedings are initiated by one party sending a written invitation to the other party to conciliate. The invitation should identify the subject of the dispute. Conciliation proceedings are commenced when the other party accepts the invitation to conciliate in writing. If the other party inviting conciliation does not receive a reply within thirty days from the date he sends the invitation or within such period of time as is specified in the invitation, he may elect to treat this as rejection of the invitation to conciliate. If he so elects he should inform the other party in writing accordingly.
2. Submission of statements to conciliator
Section 65 of the Act says that the conciliator may request each party to submit to him a brief written statement. The statement should describe the general nature of the dispute and the points at issue. Each party should send a copy of such statement to the other party. The conciliator may require each party to submit to him a further written statement of his position and the facts and grounds in its support. It may be supplemented by appropriate documents and evidence. The party should send a copy of such statements, documents and evidence to the other party. At any stage of the conciliation proceedings, the conciliator may request a party to submit to him any additional information which he may deem appropriate.
3. Conduct of conciliation proceedings
Section
69 (1) and section 67(3) of the Act says that the conciliator may invite the
parties to meet him. He may communicate with the parties orally or in writing.
He may meet or communicate with the parties together or separately.
In the conduct of conciliation proceedings, the conciliator has some freedom. He may conduct them in such manner as he may consider appropriate. But he should take into account the circumstances of the case, the express wishes of the parties, a party request to be heard orally and the need to speedy settlement of the dispute.
4. Administrative assistance
Section 68 facilitates administrative assistance for the conduct of conciliation proceedings. Accordingly, the parties and the conciliator may seek administrative assistance by a suitable institution or the person with the consent of the parties.
Followings are the qualities of conciliators
1. Independent and impartiality
The conciliator should be independent and impartial. He should assist the parties in an independent and impartial manner while he is attempting to reach an amicable settlement of their dispute.
2. Fairness and justice
The conciliator should be guided by principles of objectivity, fairness and justice. He should take into consideration, among other things, the rights and obligations of the parties, the usages of the trade concerned, and the circumstances surrounding the dispute, including any previous business practices between the parties.
3. Confidentiality
The conciliator is duly bound to keep confidential all matters relating to the conciliation proceedings. When a party a party gives information to the conciliator on the condition that it kept confidential, the conciliator should not disclose that information to the other party.
4. Disclosure of information
When the conciliator receives information about any fact relating to the dispute from a party, he should disclose the substance of that information to the other party. The purpose of this provision is to enable the other party to present an explanation which he might consider appropriate.
5. Cooperate with clients
Conciliator should in good faith cooperate with the parties. They should give the copy of every proceeding.
6. He must follow the legal formalities
A conciliator should never allow conciliation proceedings before him to constitute a mere formality or a step on road to arbitration. He must be able to offer to the parties' inducements that will persuade them to prefer a settlement with his assistance and to make serious efforts to reach agreement.
6. Ability
Because of the nature of his work a conciliator must have the ability to get along well with the people. He must be, to a certain extent, a specialist in human relations- in the relations between the parties when they come face-to-face, and in his own relations with them. He must be honest, polite, of persuasion, including a good command of language and facility of expression and should be able to communicate with the parties in language they understand.
7. He conduct meetings
Since a conciliator has to deal with different persons and has to preside over their joint meetings in conciliation proceedings, he not only needs skill an ability to guide and control their joint discussions but must also give an impression of expression, responsibility, clear-headphones and mature judgment. He must be to show others that he possession enough common sense and practical-mindedness.
8. He has friendly nature with his clients
A conciliator should have a friendly personality, sense of humour, especially for re leaving tensions of joint discussions. A special alacrity f mind will enable him to grasp quickly and analyze rapidly the main elements of controversy.
9. He has knowledge about rules and regulations
A conciliator should be fully familiar with the law and regulations concerning industrial relations and the settlement of industrial disputes. He should be familiar with the industrial relations system, e.g., the development and structure of trade union and employers' associations; the prevailing methods of collective bargaining; negotiating procedures and practices; the operation of agreed negotiating bodies set up by the parities; the main causes and patterns of disputes; knowledge of personnel management, functioning of trade union within undertakings, grievance and disciplinary procedures and joint consultancy machinery.
Settlement of dispute
The role of conciliator is to assist the parties to reach an amicable settlement of the dispute. He may at any stage of the conciliation proceedings make proposals for the settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of reasons. Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator the suggestions for the settlement of the dispute.
When it appears to the conciliator that there exist elements of a settlement likely to be accepted by the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations. If the parties reach agreement on the settlement of a dispute, a written settlement agree will be drawn up and signed by the parties in drawing up the settlement when the parties have signed the settlement agreement, it becomes final and binding on the parties and persons claiming under them respectively. The conciliator shall authenticate the settlement agreement and furnish its copy to each of the parties.
Where the conciliator held some meetings with the parties and drew up the settlement agreement by him secrecy and sent it to the court in sealed cover.
Restrictions on role of conciliator
Section 80 of the Act says restrictions on role of conciliator.
1) It prohibits the conciliator to act as an Arbitrator or as a representative or counsel of a party in any Arbitral or judicial proceedings in respect of a dispute which is subject of the conciliation proceedings.
2) It prohibits the parties to produce the conciliator as a witness in any Arbitral or judicial proceedings.
Section 76 of the Act says there are four way of the termination of conciliation proceedings.
1. The conciliation proceedings terminate with the signing of the settlement agreement by the parties. Here the date of termination of conciliation proceedings is the date of the settlement agreement.
2. The conciliation proceedings stand terminated when the conciliator declares in writing that further efforts at conciliation are no longer justified. Here the date of termination of conciliation proceedings is the date of the declaration.
3. The conciliation proceedings are terminated by written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated. Here the date of termination of conciliation proceedings is the date of the declaration.
4. The conciliation proceedings are terminated when a party declares in writing to the other party and the conciliator, that the conciliation proceedings are terminated. Here the date of termination of conciliation proceedings is the date of the declarations.
The conciliator must do the following duties: those are
Powers of Conciliation officer
Section 11 of the Mediation and Conciliation Act says that the powers of the conciliation officers.
1) A conciliation officer may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.
2) A conciliation officer shall be deemed to be a public servant within the meaning of Section 21 of Indian Penal Code 1860.
3) A conciliation officer is not a labour court to tribunal. He has no powers of court. But he has certain powers of civil court under CPC, for the following purpose.
a) He way enforces the attendance of any person for the purpose of examination of such person.
b) He may call for and inspect any documents which he has ground for considering g is pending before conciliation.
4) While the conciliation proceeding are pending before a conciliation officer, pertaining to a dispute between the employers and the employees, the conditions of service, etc, shall remain unchanged. Section 33 of this Act provides these important rights to the workers and power to conciliation officer.
5) The conciliation officer to make a complaint in writing, in prescribed manner, to Arbitrator labour court, tribunal or national tribunals, as the case may be, against an employer, who contravenes the provisions of Section 33.
6) No person employed in a public utility service shall go on strike in breach of contract, during the pendency of any conciliation proceedings before a conciliation officer and seven days after conclusion of such proceedings. No employer carrying on any public utility service shall lockout any of his workmen during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
The parliament passed Family Courts Act in 1984 to address the problem of domestic dispute, not to adjudicate the issues or to punish the culprits, but to achieve a settlement of the domestic problems.
Section 9(1) says that the family court shall endeavor in the first instance, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the proceedings, where it is possible to do so consistent with the nature and circumstances of the case.
Section (2) says that in addition to the general power to adjourn the proceedings, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a settlement, if it appears to the Family Court that there is a reasonable possibility of settlement.
It is the statutory duty cast upon that part of the family courts to conciliate the problem and reconcile the differences and settle family problems to protect the institution of family.
Under order XXXIIA CPC, the proceedings relating to matters concerning to family are to be held in camera and the court is to make all efforts in arriving at a settlement in respect of the subject matter of the dispute and the court is also entitled in such suits or proceedings to secure the services of any person or women for the purpose of assisting the court. Before enhancement of the Family Courts Act the suits and proceedings relating to matters concerning the family were provided for in by order XXXII-A of CPC and were to be dealt by regular civil court.
In camera proceedings are provided to help the settlement of disputes. Object of the Family Court is to decide the dispute realign to family without going into the technicalities of admissibility of evidence, rules of procedure etc. some times the recoding of evidence also may not be considered necessary for ascertaining a fact or even ascertaining a fact may not be essential for resolving disputes. However the parties must get a chance to present their case and plead for their requirements. The family court has all powers and validity of a court, but the duties and performance approach will be slightly difference only for the purpose of settling the issue.
Section 13 says that the parties to a dispute shall not have right to be represented by the legal practitioner. If the court considers necessary, in the interest of justice, the court may seek assistance of a legal expert as amicus curiae. Legal practitioners are not totally prohibited. Their necessity is reduced to facilitate face-to-face negotiations between the disputing parties.
If the case requires or the party wants legal assistance form a practitioner, court may provide for it. The party will get an opportunity to apply for legal assistance and if the court grants it, the other party will get principles of natural justice, if not the civil procedure rules.
Amicus curiae are a friend of court who voluntarily helps the court or renders assistance on the instruction of the court with regard to double or mistaken facts or legal issues. The Act tried to do away with the possible ills associated with paid legal assistance and provide a less problematic or less expensive, or less adversarial procedure to decide the issues of family relations.
The objects statement of the Act emphasizes on the need for conciliation to achieve socially desirable results and to avoid adherence to rigid rules of procedure and evidence. The law commission in its 59th report in 1974 stressed the need of adopting conciliatory approaches to make reasonable efforts at settlement before commencement of trial of family issues. The commission was recommending an approach radically different from civil proceedings in family matters. Neither the regular courts nor family courts made better use of conciliatory approach in resolving disputes, mostly because of lack of time, preparation, motivation, on the part of courts.
Family court has to deal with matters relating to every matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of the minor, maintenance, including the proceedings under order IX of the Cr.P.C
First and foremost obligation of the family court is to try for reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal, and the rigid rules of procedure will not apply.
Section 6 of the Act impose an obligation on the state government to determine the number and categories of counselors, officers and other employees required to assist a family court in the discharge of its function and provide the family court with such counselors, officers and other employees, as it may think fit.
Section 9 imposes an obligation, to persuade the parties, in arriving at a settlement for the dispute and for that purpose the court can adjourn proceedings. Section 10 relaxes the procedures considerably as far as the matters before the family courts are concerned.
Under amended Hindu Marriage Act 1955, the approach of the courts towards family dispute is different from that of other ordinary civil proceedings. Conciliation is preferred as the first resort by the courts. Another important feature is that speedy trial is prescribed as a preferred mode of resolution of disputes.
Section 23(2) says that before proceedings to grant any relief under Hindu Marriage Act, it shall be the duty of the court, in the first instance, in every case where it is possible to do so, consistently with nature and circumstances the parties. Reconciliation cannot be resorted to when the relief of divorce is claimed, based on grounds of conversion, unsound mind, virulent disease, venereal disease, renouncing the world by entering religious order, missing for seven years.
Hindu Marriage Act 1955 was amended in 1976 wherein it provided for in camera proceedings, under section 22, if desired by the parties and imposed a prohibition on publication of family proceedings except the judgment of the High Court or Supreme Court printed or published with the previous permission of the court.
The Hindu Marriage Act 1955 was amended in 1976 wherein in provided for in camera proceedings, under section 22, if desired by the parties and imposed the High Court or Supreme Court printed or published with the judgment of permission of the court. If any person prints or publishes any matter in conservation of the provisions of section 22(1) he shall be punishable with fine, which may extend to 1000 rupees. Section 21B is added to added to facilitate day-today hearing, of marriage disputes, for quick disposition. Six months is prescribed as time for conclusion.
Section 10 A deals with voluntary reference of disputes to Arbitration before referring to labour court or tribunal, by a written agreement. The parties may also refer the matter to a presiding officer as per the agreement. The Arbitration or Arbitrators shall have to investigate the dispute and submit to the appropriate government the Arbitration award signed by the Arbitrator or all the Arbitrators, as the case may be.
Board of conciliation and reference of disputes
The board of conciliation was in existence, as investigation machinery, to deal with the problems of industry since 1929. Section 2(c) Industrial Dispute Act gave a statutory authority to this board, which is to be constituted by a notification. Section 5 says it will have a Chairman and two or four other members, as the appropriate government thinks fit. The chairman shall be an independent person and other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of the party. If any fails to make a recommendation as aforesaid, within the prescribed time, the appropriate government shall appoint such persons as it thinks fit to represent the party.
Section 10 empowers an appropriate government to make a reference of disputes to the board of conciliation, courts or tribunals. The government, by order in writing, if it is of opinion that any industrial dispute exists or is apprehended, can refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry, or refer to a labour court for adjudication, or tribunal for adjudication.
Powers and procedures
Section 11 deals with procedures and powers of conciliation officers, boards, courts and tribunals. The Act empowers every board of conciliation with the powers of a civil court. Therefore every board shall have the powers to enforce attendance of any person and examine him on oath, compel the production of documents and material objects, issuing commission for the examination of witnesses, in respect of such others matters as may be prescribed. Every board proceedings shall be deemed to be judicial providing within the meaning of Sections 193 and 228 of the Indian Penal Code 1860. All the members of the board shall be deemed to be public servants.
Duties of the board of conciliators
Section 13 prescribed certain duties for the board. When a dispute is referred to the board it has to try to achieve settlement and investigate the same. It has to induce the parties to reach an agreement. If settlement is arrived at, it has to send a report to the appropriate government with memorandum of settlement. If not, failure reports have to be sent. It has to submit the report within two months. The report shall be in writing and signed by all members of the board.
Prohibition of strike during conciliation
Section 23 prohibits strikes and lockouts during the pendency of the conciliation proceedings before the board and seven days after the conclusion of such proceedings. Strike commended during such pendency and without notice is treated as illegal strike.
Investigation into fact: Enquiry committees
The government may constitute enquiry committees to conduct investigation, either with the consent of parties or without it, to ascertain the problem and discover the facts. The appearance of witnesses before the enquiry committee is compulsory.
Court of inquiry
Section 6 refers to court of inquiry to investigate facts and not to decide the course of settlement. The parties may, jointly or separately, refer any matter relating to dispute to a court of inquiry. Generally the whole dispute shall not be referred to the court of inquiry, only a related topic, which requires further investigation, as to facts, can be referred. This court of inquiry was also given the power of entering any premises, enforcing attendance of any person and examining him, compelling production of document, issuing commission for examination of witnesses, reception of evidence taken on affidavit, appointing assessors and granting an adjournment. It has to find out certain facts and report within six months of appointment.
Conciliatory officer's efforts
The conciliatory officer may hold a meeting of the representatives, of both the parties, jointly or of each party separately. In the first instance usually a joint meeting is held as it provides an opportunity to the parties to face each other and put forward their respective viewpoints on the general issues and merits of the dispute in presence of each other. At the first meeting, with the parties, the conciliation officer may make sure that the representatives of the parties, appearing before him, have been duly authorized. Section 36(1) of the Industrial dispute Act, deals the persons who are empowered to represent the parties. No party to a dispute shall be entitled to be represented by a legal practitioner. A limited number of workmen may be permitted by the conciliation officer to attend the conciliation meetings apart from the union representatives. Presence of such workmen is usually helpful, particularly when union officials, who may be outsiders, are not fully familiar with the matters raised in the disputes. An employer, of workmen, may take a legal practitioner, to the conciliation proceedings, which will not act on their behalf but will be available for consultation and advice.
The conciliation officer, can do all such things as he thinks fit for purpose of inducing the parties to come to a fair and amicable settlement of the dispute. When the settlement is reached, the conciliation officer is required to report the same to the appropriate government, and officers authorized in that behalf, along with a copy of the memorandum of the settlement arrived at. The conciliation officer sends a failure report, detailing the steps taken by him for ascertaining the facts and circumstances relating to the dispute and also for bringing about a settlement of the dispute, together with a full statement of such facts and circumstances.
UNIT - IV
Meaning
The parties to a dispute can, on their own motion, start a process of negotiations through correspondence or through one or two mediators with a view to finding a mutually acceptable solution of the problem.
There are provisions in the Civil Procedure Code under which the courts have to the parties all the facilities of bringing about a compromise settlement. A compromise agreement is submitted for approval of the court. If the court approves the compromise, a consent decree would be passed. The decree has a binding effect. It constitutes res judicata. The counsels of the parties play in the process of compromise the role or mediators.
The party proposing compromise may expressly make his negotiation or letter to be "without prejudice". It means without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted, a complete contract is established, and letter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given.
Essentials of negotiation
1) It is a communication process
2) It resolves conflicts
3) It is a voluntary exercise
4) It is a non-binding process
5) Parties retain control over outcome and procedure
6) There is a possibility of achieving wide ranging solutions, and of maximizing joint gains.
There is a link between the purpose and strategies of negotiation. The negotiator should keep in mind the purpose and aims of his effort so that he adopts an appropriate strategy. If that is the aim of negotiation, the disputants have to place a high value for retaining the relationship. There are five different kinds of negotiation, those are:
1. Avoidance
For some, dispute is a risk to be avoided under any circumstances. The negotiator who avoids conflict loses his claim for value in preference to maintaining valuable relationships, he positively responds to the interests and concerns of the opposite party. Thus the disputant is not assertive in such a case. He is also not interested in cooperating with the other. He neither pursues his interest nor the interests of the other. In this process issues are not at all addressed, they are either ignored or postponed or the party simply withdraws from the conflict. This approach is adopted by people who want to avoid risks.
2. Accommodator
The dispute who decides to sacrifice his interests in favour of the other party is called accommodator. He does not assert like the avoiding disputant but is cooperative.
3. Competitor
As negotiation is a mixture of competing interests, the party in dispute who wants to protect his interest through negotiated means is called competitor. A competing negotiator is opposed to an accommodating negotiator. He always ascertains his rights and interests at the cost of that of the opponent. He exerts all means for achieving his purpose even at the cost of the other's interests, rights and benefits.
4. Compromiser
A negotiator who has a compromising nature is interested in finding out some sort of solution. The compromiser is place4d somewhere between assertive and cooperative parties. He values expediency and may be willing to accept partial solutions so long as both sides are at least minimally satisfied. This often results in splitting the differences, exchanging concessions or seeking middle ground rather than spending time and effort the order of preference, he is placed in the middle. This indicates that the negotiator is at times competitor, works also as accommodator, collaborates to some extent and then avoids the dispute at a particular point of time. He equally values issues, justice and his own interests, placing importance to other's interests. He is in the middle point of every kind of negotiating strategy and mostly successful as he imbibes in himself every kind of strategic negotiating quality. The compromise, it operates as a successful measure when every other method fails.
5. The collaborator
Collaboration is the most useful strategy. Collaboration leads to a real win situation for both the parties. Collaborator is one who gives as much importance to the issue and his own interests as that of the other.
The collaborator works with the opposite party to find ways by which both parties can achieve their goals. In pursuance of these goals one has to look beyond the issues and limitations within which generally every negotiator works. They have to brainstorm new ways. This strategy requires a lot of hard work, exercise, patience, deep insight and creative thinking to solve the problems in an unusual way where gains are improved beyond foreseen results.
Negotiation power can be defined as the ability of the negotiator to influence the behaviour of another. A number of aspects and qualities of negotiating power that have been identified are:
1) Negotiating power is relative between the parties.
2) Negotiating power changes over time.
3) Negotiating power is always limited.
4) Negotiating power can be either real or apparent.
5) The exercise of negotiation power has both benefits and costs.
6) Negotiating power is enhanced by legal support, personal knowledge, skill, resources and hard work.
7) Negotiation power is increased by the ability to endure uncertainty and by commitment.
8) Negotiating power is enhanced by a good negotiating relationship
9) Negotiating power exists to the extent that it is accepted.
10) Overall problem-solving negotiation structure.
Sometimes negotiation may be unsuccessful because of the following reasons:
1. Communication failure
A skilled person any be needed to restore the broken communication.
2. Poor negotiating skills
Even inn this occasion parties need the assistance from a person having a neutral approach to couch skills, additional training may also be needed.
3. Lack of information
Accurate information helps to overcome obstacles actual or illusory.
4. Differing legal perspectives
The parties differ not to issues but on their understanding of the problem.
5. Inappropriate representatives
In case of a personality conflict, that causes failures, the remedy is to change representatives.
6. Need for authoritative ruling
Where ever precedent set by an authority is required, there negotiation may not work; hence, it should be avoided.
7. Negotiator's reluctance to agree
Negotiator may be reluctant to reveal a bargaining position, or party might have made unreasonable demands.
8. Unwillingness to concede
If negotiator feels that he would lose negotiation, then he might defer it or extend it.
Characteristics of negotiation
By nature it is a voluntary communication process. Its purpose is to achieve a deal or agreement, or to resolve conflict. Its procedure is as evolved by the parties. The basis of negotiation is agreement, or consensual, or voluntary understanding of the parties. The parties retain control over procedure and outcome. The solutions are neither fixed, nor limited, they are of wide range. And the result is possibility of maximizing joint gains.
The process of negation works only when:
1. The parties are willing to co-operate and communicate to meet their goals.
2. The parties can mutually benefit or avoid harm by influencing each other.
3. The parties know that they have time constrains.
4. The parties realize that any other procedure will not produce desired outcome.
5. The parties can identify the issues required to be sorted out.
6. The parties also agree that their interests are not incompatible to each other.
7. The parties knew that it is preferable to participate in private co-operative process, rather than go through severe external constraints like loss of reputation, excessive cost, and possibility or adversarial decision.
Negation depends on the following factors
1. Goals and interests of the parties.
2. Perceived interdependence between the parties
3. History that exists between the parties.
4. Personalities of the people involved.
5. Persuasive ability of each party.
Negotiation power sources
1) Negotiation involves two or more parties who need (or think they need) each others involvement achieving a desired outcome. There is a common interest that connects the parties.
2) The parties start with different opinions or objectives. It is these differences that prevent agreement.
3) The parties are willing to co-operate and communicate to meet their goals.
4) The parties can mutually benefit or avoid harm by influencing each other.
5) The parties realize that any other procedure will not produce desired outcome.
6) The parties think that negotiation is the best way to resolve their differences.
7) They also think that they may be able to persuade the party to modify their original position.
8) Even if they do not get their ideal outcome, both retain the hope of an acceptable outcome.
9) Each has some influence real or assumed over the others actions. If one party is completely powerless, negotiation will have little point for the other.
10) The negotiation process itself involves interaction between people. This interaction might be in person, by telephone, letter etc. or it might use a combination, because it is personal, emotions and attitudes will always be important.
Conditions for Negotiation
A variety of conditions can affect the success or failure of negotiations. The following conditions make success in negotiations more likely:
1. Identifiable parties who are willing to participate:
The people or groups who have a stake in the outcome must be identifiable and willing to sit down at the bargaining table if productive negotiations are to occur. If a critical party is either absent or is not willing to commit to good faith bargaining, the potential for agreement will decline.
2. Interdependence:
For productive negotiations to occur, the participants must be dependent upon each other to have their needs met or interests satisfied. The participants need either each other's assistance or restraint from negative action for their interests to be satisfied. If one party can get his/her needs met without the cooperation of the other, there will be little impetus to negotiate.
3. Readiness to negotiate:
People must be ready to negotiate for dialogue to begin. When participants are not psychologically prepared to talk with the other parties, when adequate information is not available, or when a negotiation strategy has not been prepared, people may be reluctant to begin the process.
4. Means of influence or leverage:
For people to reach an agreement over issues about which they disagree, they must have some means to influence the attitudes and/or behavior of other negotiators. Often influence is seen as the power to threaten or inflict pain or undesirable costs, but this is only one way to encourage another to change. Asking thought-provoking questions, providing needed information, seeking the advice of experts, appealing to influential associates of a party, exercising legitimate authority or providing rewards are all means of exerting influence in negotiations.
5. Agreement on some issues and interests:
People must be able to agree upon some common issues and interests for progress to be made in negotiations. Generally, participants will have some issues and interests in common and others that are of concern to only one party. The number and importance of the common issues and interests influence whether negotiations occur and whether they terminate in agreement. Parties must have enough issues and interests in common to commit themselves to a joint decision-making process.
6. Will to settle:
For negotiations to succeed, participants have to want to settle. If continuing a conflict is more important than settlement, then negotiations are doomed to failure. Often parties want to keep conflicts going to preserve a relationship (a negative one may be better than no relationship at all), to mobilize public opinion or support in their favor, or because the conflict relationship gives meaning to their life. These factors promote continued division and work against settlement. The negative consequences of not settling must be more significant and greater than those of settling for an agreement to be reached.
7. Unpredictability of outcome:
People negotiate because they need something from another person. They also negotiate because the outcome of not negotiating is unpredictable. For example: If, by going to court, a person has a 50/50 chance of winning, s/he may decide to negotiate rather than take the risk of losing as a result of a judicial decision. Negotiation is more predictable than court because if negotiation is successful, the party will at least win something. Chances for a decisive and one-sided victory need to be unpredictable for parties to enter into negotiations.
8. A sense of urgency and deadline:
Negotiations generally occur when there is pressure or it is urgent to reach a decision. Urgency may be imposed by either external or internal time constraints or by potential negative or positive consequences to a negotiation outcome. External constraints include: court dates, imminent executive or administrative decisions, or predictable changes in the environment. Internal constraints may be artificial deadlines selected by a negotiator to enhance the motivation of another to settle. For negotiations to be successful, the participants must jointly feel a sense of urgency and be aware that they are vulnerable to adverse action or loss of benefits if a timely decision is not reached.
9. No major psychological barriers to settlement:
Strong expressed or unexpressed feelings about another party can sharply affect a person's psychological readiness to bargain. Psychological barriers to settlement must be lowered if successful negotiations are to occur.
10. Issues must be negotiable:
For successful negotiation to occur, negotiators must believe that there are acceptable settlement options that are possible as a result of participation in the process. If it appears that negotiations will have only win/lose settlement possibilities and that a party's need will not be met as a result of participation, parties will be reluctant to enter into dialogue.
Strategies of negotiation
The followings are strategies of negotiation
1. Adversarial strategy
This win-lose approach occurs when someone intends to achieve his objective at the expense of a perceived adversary. The participants are viewed as adversaries and the goal is victory for each party. A good negotiator is hard on the problem and on the person. The negotiation strategy is to distrust others, dig-in the negotiator's bottom-line, demand one-sided gains as a price of agreement, and search for single answers acceptable to the negotiator, insist on the negotiator's position, try on win the contest of will, apply pressure. The negotiator takes extreme initial positions. He has limited authority for giving concessions. He uses various tactics including emotional maneuvers. He is reluctant in giving concessions, and generates maximum pressure on the other side.
2. Characteristics of the adversarial strategy
1) Seeks to maximums gain without regard to how other participants fare, to win as much as can be won by agreement.
2) Covert all interests into tangible, measurable terms, typically money or units of production.
3) Conflict over limited resources.
a) Making adversarial negotiation
The other method of dispute resolution is adversarial negotiation, to be adverse means being competitive. It has its own advantages and strategic applications. A disputant may make effective initial offers and stick to the stand taken by him in the beginning itself. Any number of offers or counter offers may be made only to justify his initial position and keep him in competition with others. The disputants neither try to justify the initial concessions announced and may nor alter their frame of reference even under severe the options which are otherwise numerous and imaginative. The result may be both ways, it could be positive or totally out of reach for the competitive party. If settlement is not reached, it may lead to an impasse or there may be a failure to reach agreement.
b) Acceptance as a strategy
In an adversarial strategy and competitive style, the parties generally adopt a acceptance policy to gain a level playing field for taking the negotiation process on expected lines. This process is useful in negotiating substantive issues. But at the same time they may cause breakdown while bargaining issues. If there is no reciprocity, it results in one-sided understanding. In non-substantive issues, the competitive moves do not yield the required results and are thus not advisable.
c) Bargain to distribute
Depending on approach, style and strategy, bargaining takes a definite shape. Bargaining for the value that is fixed and perceived as available is one level, making a sincere effort to enhance the value and aim at more value than what could be expected under ordinary circumstances is the next level.
The former considered a 'distributive' and the latter integrative bargaining. As the expressions suggest, parties share what is interests, increase the possible benefits, and wait for right opportune moment and stake claim for enhanced benefits, in an imaginative manner in the later. If distributive bargaining reflects the haste of the parties to settle and close the dispute with whatever is available as benefit, the integrative bargain consume a lot of time.
If the issues are not substantive and parties do not attach great value to future cooperative relations, distributive bargaining is the best method. Whereas, for their parties who need further cooperation and have enough courage to continue to forge alliances with the opposite party, with a clear vision for future prospects, integrative bargain works out best.
d) Significance of opening offer in negotiation
As the opening offer is a significant phase that sets stage for ultimate settlement, the parties either try to make a calculated move or allow the other party to make it. In distributive bargaining who opens first is also decided at the initial stages, as this decides the offer of the defendants. An experienced negotiator can guess the result and its utility from the first move of the other party. Then begins the settlement continuum, the range within which there is possibility of solution. Each party has his own range of success within which he wants to locate his settlement, which is called reservation figure. This denotes the range of each bargain according to is own estimate.
e) Negotiation dance
When series of concessions, offered by each party in the negotiation, reach reasonable proximity, with a hope of meeting point, the zone of agreement begins. The zone of agreement is a range where the possibility of agreement between two parties, according to their own estimates, is denoted. This can be well illustrated by a negotiation for purchase of second hand car.
f) Zones of assessment
According to assessment of the parties, the opening offer puts every solution at a zone, which could be impossible zone breaking the process at initial level itself., or reasonable zone or negotiable zone, or zone of agreement etc. thus the opening offer may fall in different zones, depending upon its nature. The offers may be reasonable, credible or u favorable. An offer in the zone of agreement means that it is acceptable to both the parties. The most unreasonable offer in the opening stage may end the negotiation at an unfavorable note.
g) Opening offer Acts as anchoring
A party enters negotiation zone with a frame of reference. The frame of reference is the psychologically settlement area of decision. For negotiation to go on, their will be always an effort to change that frame of reference. Without altering the frame, there is no progress in the process of bargaining. Negotiator should affect the frame of reference of opponent by emphasizing now the opponent will gain by settling.
Negotiation is a mind game and anchoring reflects mindset of one party with which he tries to read the mind of the other party. Then the strategy would be to have a very positive frame of reference and of course, the anchors continually monitor his own frame of reference as well as strategically reframe it to suit the changing frame of the opposite party. One must be ready to abandon discredited path, evaluate alternate paths in terms of future costs and not their past, and should never justify past actions.
h) Winner's curse
It occurs when the opponent quickly accepts an offer. The person who made the offer could regret having made it and repents then fact that it had been accepted. Hence before an offer is made the negotiator has to be aware of the consequences of its acceptance and then proceed. Negotiator should include all potential issues within a bargaining frame of reference. The linking issues results in multiple simultaneous distributive negotiations.
i) Tactics of negotiation
Negotiation is a matter of strategy. The opening offer sets the course for strategic moves of each party. Manipulating an opponent's frame of reference is an example of a negotiating tactic increases the success range. Bargaining theorists identified a wide variety of tactics.
j) Mind game in positional bargaining
After understanding the impact of moves and counter moves, the negotiator may or may not continue the process till he feels that he achieved satisfactory result.
k) Merits and drawbacks of adverse negotiation
Thus positional bargaining, that is adverse negotiation, has advantages as well as short comings. It is compatible with other competitive activities and does not require much preparation. Being an easy process coupled with the fact that outcome can be predicted, with some degree of accuracy, it can be adopted on a day to day bargaining. But it may overlook certain needs and interests which are not reflected in original claims of parties. The substantial issue, in positional bargaining, is usually money, it concentrates on distributing it, and there is less possibility of addressing other concerns of the disputants. If positional bargaining is accompanied with threats and aggression, it may give rise to further conflicts and future relations of the disputing parties might get adversely affected, thus affecting the negotiation process.
Stages of Negotiation
Stage 1
Evaluate and Select a Strategy to Guide Problem Solving
1) Assess various approaches or procedures--negotiation, facilitation, mediation, arbitration, court, etc.--available for problem solving.
2) Select an approach.
Stage 2
Make Contact with Other Party or Parties
1. Make initial contact in person, by telephone, or by mail.
2. Explain your desire to negotiate and coordinate approaches.
3. Build rapport and expand relationship
4. Build personal or organization's credibility.
5. Promote commitment to the procedure.
6. Educate and obtain input from the parties about the process that is to be used.
Stage 3
Collect and Analyze Background Information
1. Collect and analyze relevant data about the people, dynamics and substance involved in the problem.
2. Verify accuracy of data.
3. Minimize the impact of inaccurate or unavailable data.
4. Identify all parties' substantive, procedural and psychological interests.
5.
Stage 4
Design a Detailed Plan for Negotiation
1. Identify strategies and tactics that will enable the parties to move toward agreement.
2. Identify tactics to respond to situations peculiar to the specific issues to be negotiated.
Stage 5
Build Trust and Cooperation
1. Prepare psychologically to participate in negotiations on substantive issues. Develop a strategy to handle strong emotions.
2. Check perceptions and minimize effects of stereotypes.
3. Build recognition of the legitimacy of the parties and issues.
4. Build trust.
5. Clarify communications.
Stage 6
Beginning the Negotiation Session
1. Introduce all parties.
2. Exchange statements which demonstrate willingness to listen, share ideas, show
3. penness to reason and demonstrate desire to bargain in good faith.
4. Establish guidelines for behavior.
5. State mutual expectations for the negotiations.
6. Describe history of problem and explain why there is a need for change or agreement.
7. Identify interests and/or positions.
Stage 7
Define Issues and Set an Agenda
1. Together identify broad topic areas of concern to people.
2. Identify specific issues to be discussed.
3. Frame issues in a non-judgmental neutral manner.
4. Obtain an agreement on issues to be discussed.
5. Determine the sequence to discuss issues.
6. Take turns describing how you see the situation. Participants should be encouraged to tell their story in enough detail that all people understand the viewpoint presented.
7. Use active listening, open-ended questions and focusing questions to gain additional information.
Stage 8
Uncover Hidden Interests
1. Probe each issue either one at a time or together to identify interests, needs and concerns of the principal participants in the dispute.
2. Define and elaborate interests so that all participants understand the needs of others as well as their own.
Stage 9
Generate Options for Settlement
1. Develop awareness about the need for options from which to select or create the final settlement.
2. Review needs of parties which relate to the issue.
3. Generate criteria or objective standards that can guide settlement discussions.
4. Look for agreements in principle.
5. Consider breaking issue into smaller, more manageable issues and generating solutions for sub-issues.
6. Generate options either individually or through joint discussions.
7. Use one or more of the following procedures:
8. Expand the pie so that benefits are increased for all parties.
9. Alternate satisfaction so that each party has his/her interests satisfied but at different times.
10. Trade items that are valued differently by parties.
11. Look for integrative or win/win options.
12. Brainstorm.
13. Use trial and error generation of multiple solutions.
14. Try silent generation in which each individual develops privately a list of options and then presents his/her ideas to other negotiators.
15. Use a caucus to develop options.
16. Conduct position/counter position option generation.
17. Separate generation of possible solutions from evaluation.
Stage 10
Assess Options for Settlement
1. Review the interests of the parties.
2. Assess how interests can be met by available options.
3. Assess the costs and benefits of selecting options.
Stage 11
Final Bargaining
1. Final problem solving occurs when:
2. One of the alternatives is selected.
3. Incremental concessions are made and parties move closer together.
4. Alternatives are combined or tailored into a superior solution.
5. Package settlements are developed.
6. Parties establish a procedural means to reach a substantive agreement.
Stage 12
Achieving Formal Settlement
1. Agreement may be a written memorandum of understanding or a legal contract.
2. Identify "what ifs" and conduct problem solving to overcome blocks.
3. Establish an evaluation and monitoring procedure.
4. Formalize the settlement and create enforcement and commitment mechanisms.
5. Judicial review
UNIT-V
MEDIATION
It contemplates the appointment and intervention of neutral third person who helps the parties to reach a negotiated settlement. He does not have the power to adjudicate or impose an award. It is conducted on a confidential basis and without prejudice to the legal rights and remedies of the parties. The process may have to pass through several stages like preparation, joint sessions, private meetings and final result.
A Mediator may adopt either a facilitative of evaluative approach. Mediators try to avoid opinions and judgments. They rather facilities and encourage parties to open up their communications and disclose their interests and priorities. In this process the mediator gets the opportunity of locating the points of difference and the area of controversy or dispute. He may then help the parties to bridge the gap between them.
Basic rules of Mediation
It is the parties to prescribe their own rules and other terms subject to which their dispute is to be mediated. It may be difficult for the parties to settle such terms in advance. It may have to be done at the meeting with the mediator. But even so it may be difficult to foresee all the eventualities and provide for them.
A mediator needs to develop several abilities: 2) ethics 3) emotional intelligence 4) subject matter expertise 5) decisiveness.
1. Attentiveness
The most important ability for a mediator is to pay attention. One eminent historian has written that our entire society suffers from attention deficit. The plain and awful truth is that people do not pay attention. They live their lives in information overload, thinking about what to do or say next.
The word "attend" comes from the Latin attendere to bend to, notice. Attend has a number of meanings including
1) To be present at
2) To accompany
3) To take care of minister to, devote one's services to
4) To wait upon
5) To take charge of
6) To listen to
7) To apply oneself
8) To pay attention: listen or watch attentively
9) To be present.
If a mediator did literally nothing else but pay attention, the results would be remarkable.
Attention is an interesting quality. It can be fixed or floating. It can be focused or scattered. It can concentrate on one thing, or several things or many things. It can take in many things at once. A person who practices paying attention will find it is ability easily developed, and will greatly increase one's awareness of what is going on.
Paying attention, properly understood, is not terribly hard work but on the contrary, has a light and airy quality. For example, a person absorbed in a book or a movie or a piece of music or a football game is paying close attention, but without a great deal of effort. It is easy to pay attention when one is interested in the subject matter.
The opposite of attention is distraction.
Disorder is complex; order is simple. Parties in conflict are entangled in complexity. The job of the mediator is disentanglement and simplicity.
2. Ethics
Ethical means:
1) Pertaining to or dealing with morals or the principals of morality; pertaining to right and wrong in conduct.
2) In accordance with the rules or standards for right conduct or practice, especially if the standards of a profession: "it is not considered ethical for physicians to advertise." Synonym: moral, upright, honest, righteous, virtuous, honorable. The subject of ethics concerns itself with action, with right or wrong conduct. Perhaps many people may not think much about ethical implications, as such, as they go about their daily business, but in fact, every day contains choices and decisions that implicate one and other people. Maybe some are more conscious than others about consequences: nonetheless, all choices and decisions have consequences, and this is the subject of ethics.
Because ethics concerns itself with right action, it pertains to the mediator who has a duty to be impartial as between the parties. Mediators are also called "neutrals", but, although that word has stuck, it does not successfully describe the function of a mediator.
"Impartial" is a different word with a different meaning. It means: "not partial or biased; fair; just: 'an impartial judge.'" Yet a judge has the responsibility of judgment, of deciding in favor of one side; the judge may be impartial at the beginning of a case, but is entirely partial by the end. That is the function of a judge, but not a mediator. As used in connection with mediation, "impartiality" suggests full yet even-handed involvement, giving as much assistance as ethically possible to all sides in the conflict. Of course, the question always is: How much is ethically possible? That is why the distinction between evaluative and facilitative mediation is not merely a matter of style. A facilitative mediator has made the choice not to evaluate for the parties, while an evaluative mediator is willing to state an opinion. Such decisions necessarily involve considerations of right or wrong conduct in the context of mediation, that is to say, ethics.
3. Emotional Intelligent
The heart has its reasons that reason does not comprehend, Pascal's famous aphorism, is the subject of the study of emotional intelligence.
The phrase "emotional intelligence" refers to an ability that is not much prized, and certainly not taught, in our society and educational systems, though it certainly should be. There are some excellent books on the subject. The phrase itself is something of a deliberate oxymoron, because the emotions are normally distinguished from the activity of the intelligence, but it expresses the need to relate empathetically to what is being communicated by another person, including the emotional drives underlying such communication.
The mediator is not a therapist, and is not trying, generally speaking, to achieve a breakthrough in openness, except for those mediators who regard themselves as transformational, and their mediations are generally designed to take a good deal longer than a regular mediation. Where parties have come together to talk about their differences, and negotiate a solution, the mediator is only interested in achieving enough honest communication between them that they can achieve the result that they came for.
4. Subject matter expertise
Subject matter expertise is something that can be learned by a mediator, by which is meant expertise in the subject matter of the particular dispute.
Ex: construction, and family relationships, childcare, commercial relationships, contracts, labor relations, environmental, governmental, tort, contract, and so on. Some parties, in choosing a mediator, deliberately seek some subject matter experience, and therefore, as a matter of marketing, it may be helpful for a mediator to acquire and therefore be able to advertise certain subject matter expertise.
However, it will be found that, once the mediator has mastered or become proficient in the craft of mediation, that the skills can be applied across a wide variety of subject matters. Some people always insist on choosing a retired judge, because judges have experience in the conduct of trials, even though a judge may know less than the attorneys - this is because attorneys nearly always specialize, whereas judges, once they are on the bench, take a random variety of cases that come before them.
The particular expertise of an experienced judge is in predicting the likely of a case. But if a mediator wishes to mediate in the area of, say international relations or environmental controversies, then in order to acquire business, it will probably be necessary to acquire some expertise in the subject matter, in order to be able to present credentials that will serve to enforce credibility.
5. Decisiveness
Decisiveness is essential in a mediator, because she cannot allow a mediation to wallow for any great length of time, without the parties becoming impatient, except in those relatively uncommon instances where the mediation is designed to be "transformational" and partakes of many of the qualities of therapy. The mediator has to decide, generally, who to speak to, when to speak to them, what to say to them, how much to allow them to say, because she has an obligation to create a momentum and keep it going. There is a purpose in view, and there is generally a time limit, and unless the parties feel they are making some progress, they are likely to be discouraged and the mediation may fail to achieve its purpose, which is to affect resolution.
In summary, these five qualities are skills that can be learned and developed. They are basic yet profound. Attentiveness is the foundation of communication skills, but must be combined with decisiveness because it is up to the mediator to make things happen. Action must happen but it must be right action, which is the subject of ethics. The mediator must develop sensitivities that are not accessible to pure reason, and this is the subject of emotional intelligence. The mediator must be able to talk the same language as the disputants, which means some subject matter expertise.
The scarcity of these qualities is why the mediation is happening at all. The mediator supplies what is missing to enable the disputants to settle their dispute and move on with their lives.
It has been said that people get attached to their problems and conflicts, but the reality of conflict was never better expressed than by General William Tecumseh Sherman: "War is hell," and it is a service to people to help them find resolution.
The Mediator is
trained to facilitate the communication process between the parties by
skillfully navigating through difficult and highly emotional issues, bringing
an independent perspective to the table in a safe, supportive and confidential
environment. The mediator acts impartially, assisting the parties both jointly
and separately to reach consensus. One of the mediator's strengths is the
ability to create a more productive discussion than the parties could have had
by themselves. Using a variety of communication strategies and facilitation techniques,
the mediator helps the parties determine facts; keep focused and generate
options to assist them in finding a solution. Often the mediator has a lot of
background knowledge of the issues and type of dispute.
The mediator's role includes
1) Facilitating structured communication between the parties
2) Assisting the parties to work out what the dispute is about by isolating the issues involved.
a) Encouraging co-operative problem-solving and discouraging the parties from taking entrenched positions.
b) Helping to determine where the parties have common, compatible and conflicting interests and where appropriate, selectively sharing such information with the other parties.
3) Systematically exploring issues and mutually beneficial solutions by focusing on the interests and personal needs of all parties;
4) Generating options that meet the needs and interests of all parties in an effort to resolve the dispute;
5) Managing and making decisions about the process to achieve a 'win-win' outcome for all parties.
Although mediators may at times provide ideas, suggestions, or even formal proposals for settlement depending on what has been agreed, the mediator principally acts as a "process person," and helps the parties set an agenda, identify and reframe the issues, communicate more effectively, find areas of common ground, negotiate fairly, and hopefully, reach an agreement. A successful mediation
Effort has an outcome that is agreed to and owned by the parties themselves. The Mediator does not decide the outcome of the dispute or impose any binding decisions. Most agreements are compromises and parties do not always get everything they would ideally like. A successful outcome will be an agreement that all parties can live with and abide by. The mediator will not advise on the solution or encourage or coerce a party to accept a particular solution; provide legal advice or advice on legal avenues available to the parties or on the prospects of success.
Characteristics of Mediator
1. The patience of Job.
2. The sincerity and bulldog characteristics of the English.
3. The wit of the Irish.
4. The physical endurance of a marathon runner.
5. The broken field dodging abilities of a halfback.
6. The guile of Machiavelli.
7. The personality-probing skills of a good psychiatrist.
8. The confidence-retaining characteristics of a mute.
9. The hide of a rhinoceros.
10. The Wisdom of Solomon.
11. Demonstrated integrity and impartiality.
12. Basic knowledge and belief in the negotiation process.
13. Firm faith in voluntarism in contrast to dictation.
14. Fundamental belief in human values and potential, tempered by ability to assess
15. Personal weakness as well as strengths.
16. Hard-nosed ability to analyze what is available in contrast to what might be desirable.
17. Sufficient personal drive and ego, qualified by willingness to be self-effacing.
Essential characteristics of mediation process
The followings are the characteristics of mediation process
1. Voluntary
It is voluntary process.
2. Collaborative
The dispute parties are encouraged to work together to solve their problems and to reach, what they perceive to be, the best agreement.
3. Controlled
Parties have total command over process and decision. They have complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed forcibly on anyone.
4. Controlled
Mediation is confidential, to the extent parties desire and agree, be that by statute, contract, rules of evidence or privilege. Mediation discussions and all materials developed for mediation are not admissible in any subsequent court or other contested proceedings, except for a finalized and signed mediated agreement. The mediator is obliged to describe any exceptions to this general confidentiality if mediation. Confidentiality in mediation may be waived in writing, although the mediator may retain his or her own ability to refuse to testify in any contested case. The extent of confidentiality for any caucus meetings should also be defined.
5. Informal
The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually accepted experts can be retained. Such jointly obtained expert information can be designed as either confidential to mediation or, as the parties desire, as admissible in any subsequent contested proceedings. Expert advice is never determinative are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought, is ultimately a decision of each mediation participant.
6. Impartial and neutral
The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in mediation. The mediator is ethically obliged to acknowledge any subsequent bias on major issues in discussion. The mediator's role is to ensure that parties reach agreement in a voluntarily and informed manner, and not due to coercion or intimidation.
7. Self-responsible
Research has proved that having actively resolved their own conflict, the likelihood of compliance by the parties dramatically elevates due to the process of mediation.
The above qualities explain the role of the mediator, in settling the disputes, in a consensual and impartial manner. Mediation is accepted as the most viable process of resolving a conflict between two parties before any other legal process is opted for, for settling the dispute. As this is known as assisted negotiation or structured negotiation, it is basically a necessary assistance to the negotiators who are the parties themselves. The mediator facilitates, renders assistance, gives advise if necessary, presents options available, analyses the strategies, suggests strategies to be adopted, details the issues to be settled, drafts the agreement sentences so that the parties do not find any difficulty in agreeing with them and finally authorities the settlement.
Conduct of mediation agreement
At the end of a successful session of mediation, there may be a need for writing an agreement on the issues that were mediated upon. It is not necessary that the every mediation would lead to formal agreement. It is possible that party enforces the result of mediation immediately after conclusion or that the parties may bridge their differences therefore ruling out the necessity of formal agreement. It is impossible to have a standard format for agreement, in a mediation process, which is dynamic by nature.
The seven dimensions of writing mediation agreements
1. Accurate identity of parties
The mediator's obligation is, first and foremost, to clarify the capacity of the parties. A limitation in capacity may not reveal itself until a later stage in the mediation. Occasionally, such a limitation may warrant a brief hiatus in the mediation process. The mediator must investigate this representative's position within and even prior to the conflict. It is important to ask these questions in a straightforward, non-judgmental manner, as opposed to stating the questions in a manner that arouses suspicion. It is a good idea to precede, or elucidate the questions with a clarifying comment.
2. Reflecting the framework of the agreement
The agreement must reflect the essential elements of process that lead to a conclusion. A framework is necessary, not only in order to define the main points of the conflicts but to maintain the relations between the parties. The framework contains the basic points of the dispute that created the need for mediation.
The framework must be introduced at the very beginning of the formulation of the mediation agreement. The purpose of the framework is merely to outline the central and relevant points in dispute, to highlight the mutual interest of both parties to resolve it, and to include a general statement that resolution has been reached. All this should be stated simply and factually without entering into the details of the conflict itself. To be omitted at this stage is the history of the details of the conflict itself. To be omitted at this stage is the history of the details of the conflict and all the details. It is valuable to be clear about what is being dealt with right at the beginning.
The framework is short and to the point, containing all the facts, to which both the parties already concur. The framework is separate from the complete agreement, which will emerge only as the mediation process continues.
a) The circumstance or catalyst of the present conflict. Often this is a misunderstanding or existing dispute.
b) A statement that both parties have a common interest in resolving the conflict.
c) A statement that the mediation agreement will be a by product of the present mediation process.
3. Priority of Interests after identifying topics
In a dispute, the issue must be put in context, not only of the parties and the mediators, but of the law and existing practices. It is important to establish a hierarchy of points in the dispute. When writing the agreement, the most difficult, more contentious, issues should be dealt with first.
In a mediation process, the mediator enables the parties to understand and realize their respective interests; it becomes the mediator's job to crystallize what is most important to them, in order to rank the points in the dispute. A ranking may become clear in conjunction with interim agreements; the parties themselves reach, as mediation proceeds.
4. Interim agreement
During the course of mediation, various solutions come up. These may reflect agreement among the parties themselves, or, the parties may express the ways in which they want the dispute to be resolved. All such suggestions and declarations should be agreed to in writing as they are vital. It is possible to configure a provisional agreement making use of them. They become the concrete material that the parties discuss as potential resolutions and are a powerful tool in furthering the resolution of the dispute.
5. Revisions
Revisions to a provisional agreement, requested by the parties, give the mediator an important tool, an understanding of the parties underlying intentions toward each other, and of how they feel about the mediation process thus far.
Throughout the drafting of the agreement it is important to constantly revise to view the agreement as fluid until it is final. Formulation of the revisions is best done at a separate meeting with each party individually. Only afterwards should both parties meet to decide which clauses should be incorporated into a final agreement.
6. Reading the agreement in open
The mediator must be certain that each of the parties has read the agreement separately, if the deem it necessary. Subsequently, the agreement should be read while both parties are present, in order to confirm the accuracy of the read while both parties are present, in order to confirm the accuracy of the settlements agreed upon. During the reading, after each section, the mediator should affirm that both parties understand the provisions in the same way and that there is a meeting of the minds.
It should be clear to the parties that this is the critical time to decide whether they will terminate the dispute by agreeing to sign the final agreement and comply with it.
7. Ceremonial signing
This is final step brings the process full circle and its purpose is twofold.
The parity's signature to the agreement now ensures that the agreement's status becomes that of a binding legal document and can be approved by a court of law.
Advantages of mediation
Followings are the advantages of mediation
1. Free
The first advantage is that mediation is available at no cost to the parties. As the mediation process is now being institutionalized and made professional, requires expenditure of a minimum amount of money, comparatively, it could work out to be much cheaper, in cost, than arbitration. It is advised that the parties and mediator arrive at a decision, at the outset, regarding the cost and fees, so that it does not become a cause of fresh dispute. Legal or other representation is optional but not required. Mediation is generally less expensive as compared to the expense of litigation. Mediation often provides a more timely way of resolving disputes.
2. Fair and neutral
Being a joint decision the parties have an equal say in the process and decide settlement terms, not the mediator alone. There is no determination of guilt or innocence in the process.
3. High rate of compliance
Compliance to agreement reached in a mediation process is largely because of the workable and implementable nature of those decisions as well as the fact that the same includes the interests of both the parties.
4. Comprehensive and customized agreements
Mediator settlements are able to address both legal as well as other related issues to the dispute. Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.
5. Confidentiality
The arbitration and conciliation Act specifically provide for confidentiality of information disclosed during the mediation process. All parties to the dispute sign a confidentiality agreement, even otherwise parties may agree on privacy and confidentiality of the process and result.
6. Avoids litigation
Besides costing less than a law suit, the mediation avoids the uncertainty of judicial outcome.
7. Fosters cooperation
Mediation fosters a problem solving approach to complaints and workplace disruptions are reduced.
8. Improves communication
Mediation provides a neutral and confidential setting where both parties can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions.
9. Tailor made solutions
A neutral third party assists the parties in reaching a voluntary, mutually beneficial resolution.
10. Personal empowerment
People who negotiate their own settlements often feel more powerful than those who use lawyers to represent them. Mediation negotiation can provide a forum for learning about and exercising personal power or influence.
11. Preservation of ongoing relationship
A mediation settlement that addresses all parties' interests can often preserve relationship in ways that would not be possible in a win or lose decision making procedure.
12. Everyone wins
Several surveys and studies in US showed that almost all respondents and all disputant parties who used mediation would use it again if offered. Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.
The followings are the different models of mediation proceedings
1. Therapeutic mediation
Stephen R Marsh, discussed various models of mediation. In the class of therapeutic mediation, he explained Transformative mediation. Mediation is a quasi-religious endeavor wherein participants are transformed in their human relationships by the dual processes of negotiation and empowerment, which explains transformative mediation. The mediation process teaches the employees how to better relate to each other and to solve their own conflicts without recourse to a mediator.
2. Facilitative mediation
Another model of mediation explained by L Boule is facilitative mediation. It is basically need based mediation, which is an analytical event where the parties explore their essential needs and how to best meet them rather than how to achieve realization of positions. L Boule refers to this as facilitative mediation.
3. Evaluative mediation
Mediation is a bottom-line evaluative process similar to non-binding arbitration. It is the most historically common parties being the model where there were three mediators, one a plaintiff's attorney, one a defense attorney, and one a lay person, who heard both the sides, evaluated the case, explained their evaluations to the parties, and then attempted to help the parties negotiate a final settlement based on the evaluations. This model is not being practiced now and condemned by many.
4. Directive mediation
Mediation is a directive process. Without going into excessiv4e detail, some cultural groups are incapable of perceiving mediation as anything else, regardless of what is really happening, even with scripted role-plays. Many consumers hope for this type of mediator, regardless of what their attorneys, scholars or others think they should need or what.
5. Classic mediation
Mediation is a facilitative reconciling process whereby, in a face-to-face setting, with the help of a neutral, parties explore their conflicts and misunderstanding and come to reconciliation.
6. Pure process mediation
Mediation is a neutral intermediary process. This method is also known as pure process mediation and the mediator's skill set and background knowledge are seen as generally inconsequential. It is what mediation has become in almost area where mediators are paid to mediate.
There are two styles of mediation.
1. Facilitative Mediation
A facilitative mediation is described as rights-based. In facilitative mediation, the neutral mediator focuses more on the process than on the content of the mediation. He facilitates more meetings, more communications and corrects misunderstandings.
2. Evaluative Mediation
Evaluative mediator focuses on the substance of the case, studies the competing rights of the parties and opens up options for their decision.
Mediator's orientation is both evaluative and facilitative with both board and narrow perspectives. Board evaluative or narrow evaluative orientations deal with the problem in different perspectives. Depending on the definition of issues, by the mediator, the mediation process is either narrow or a board facilitative mediation.
1. Convener
The mediator may assist in contacting the other party or parties to arrange for an introductory meeting.
2. Educator
The mediator educate the parties about the mediation process, other conflict resolution alternatives, issues that are typically addressed, options and principles that may be considered, research, court standards, etc.
3. Communication facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.
4. Translator
When necessary, the mediator cam help by rephrasing or reframing communications so that they are better understood and received.
5. Questioner and clarifier
The mediator suggests procedures for making progress in mediation discussions, which may include cause meetings, consultation with outside legal counsel and consultation with substantive experts.
6. Counselor
The mediator may exercise his or her discretion to play devil's advocate with one or both parties as to the practicality of solutions they are considering or the extent to which certain options are consistent with participant's stated goals, interests and positive intentions.
7. Catalyst
By offering options for considerations, stimulating new perspectives and offering reference points for consideration, mediator serves as a stimulate for the parties reaching agreement.
8. Responsible record holder
The mediator manages and keeps track of all necessary information, drafts the parties' agreement, and may assist the parties to implement their agreement.
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