Various forms relating to ADR

Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes arbitration, mediation, negotiation, and conciliation. Arbitration is the settlement of a dispute by the decision not of a court of law but of one or more persons called arbitrators which is executable as a decree of the court. Arbitration is the process by which parties voluntarily agree to refer a future or a present dispute to an individual or individuals who after hearing submissions from the parties will issue a legally binding decision determining the issues between the parties of liability and quantum of damages or giving other specific remedies. Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. Mediation comprises of an act of bringing two states, sides or parties in a dispute closer together towards an agreement through alternative dispute resolution (ADR). It is a dialogue in which a (generally) neutral third party, the mediator, using appropriate techniques, assists two or more parties to help them negotiate an agreement, with concrete effects, on a matter of common interest. In India prior to 1996 Arbitrations were governed by Arbitration and Conciliation Act of 1940. The New Act was passed in 1996 which brought changes in the said law in India. The Arbitration and Conciliation Act, 1996 governs the arbitration procedures in India. The Arbitration and Conciliation Act, 1996 is based on the model law drafted by the United Nations Commission on International Trade Laws (UNCITRAL), both on domestic arbitration as well as International Commercial Arbitration. Sec.2(1)(a) of the Act provides that an arbitration covers any arbitration whether it is administered by any permanent arbitral institution or not. The foundation of arbitration is the arbitration agreement between the parties to submit to arbitration all or certain disputes which arise or which may arise between them during the commercial transaction. Chapter II of the Indian Arbitration Act deals with the provisions regarding arbitration agreement. The provision of arbitration can be made at the time of entering the contract itself or the dispute can be referred to arbitration after the dispute has arisen. Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. AGREEMENT OF REFERENCE TO SOLE ARBITRATOR This deed of agreement made on this ____ day of ________, 20--, between: 1. _______________, aged about __ years s/o _______________, r/o _________________, hereinafter called the 1st party. 2. ________________, aged about __ years s/o __________________, r/o ________________, hereinafter called the 2nd party.

as common Arbitrator and have proposed to enter into this Agreement for reference of the disputes to the sole arbitration of the said Mr. 3.. NOW THIS DEED OF AGREEMENT WITNESSES AS UNDER: 1... A of ………. …………………. 4.. AGREEMENT OF REFERENCE TO COMMON ARBITRATOR THIS AGREEMENT is made at . to the Party of the Second Part on the terms and conditions therein mentioned. AND WHEREAS both the parties have agreed upon to refer the dispute to one arbitrator duly appointed by the both parties.... Name…………….. residing at ……….. AND WHEREAS disputes have therefore arisen between the parties hereto regarding the interpretation of certain provisions of the said agreement and also regarding the quality of construction and delay in the work. 2. .. being run by the parties. AND WHEREAS the Party of the Second Part has commenced the construction of the building according to the plans sanctioned by the...………. residing at …………………. That both the parties have agreed upon to appoint _______ s/o ___________ r/o ______________________ as arbitrator. day of . Sd/-……….... between Mr. entered into between the parties hereto the Party of the First Part entrusted the work of constructing a building on his plot of land situated at. B of ……….. Municipal Corporation and has completed the construction to the extent of the 1st floor level.1st party Address…………. …………………. That this deed shall be confined only up to the dispute of the management of the firm. Witnesses: 1.. AND WHEREAS the Party of First Part has made certain payments to the Party of the Second Part on account but the Party of the Second Part is pressing for more payments which according to the Party of the First Part he is not bound to pay and... therefore the work has come to a standstill. Architect. day of ………….2nd party Address………….WHEREAS the first and second parties have some dispute regarding management of the partnership business. 2.. Sd/-………. That both the parties appoint ___________ as arbitrator. AND WHEREAS the said agreement provides that in the event of any dispute or difference arising between the parties the same shall be referred to arbitration of a common arbitrator if agreed upon or otherwise to two Arbitrators and the Arbitration shall be governed by the provisions of the Arbitration & Conciliation Act.. hereinafter referred to as the Party of the First Part and Mr. AND WHEREAS the parties have agreed to refer all the disputes regarding the said contract to Mr…. 1996. WHEREAS by an Agreement (Building contract) dated the . this . Name……………. That the arbitrator will go through the partnership deed and decide the dispute between the parties under the provision of the partnership deed.. hereinafter referred to as the Party of the Second Part.

. Whether the Party of the Second Part has delayed the construction. e. That the following points of dispute arising out of the said agreement dated. A . All other claims of one party against the other party arising out of the said contract up to now. The points of dispute are:a.. The said Arbitrator shall make his Award within a period of four months from the date of service of a copy of this agreement on him by any of the parties hereto provided that. Subject to the provisions of the Arbitration & Conciliation Act 1996 the award will be binding on the parties hereto. c. 8. or question which may at any time arise between the parties hereto or any person claiming under them. in the presence of: 1. 1996. The said Arbitrator shall give hearing to the parties either personally or through their respective Advocates but the Arbitrator will not be bound to take any oral evidence including cross examination of any party or person. to another arbitrator to be agreed upon between the parties or failing agreement to be nominated by…………or. The Arbitrator will not make any interim award. The said Arbitrator shall allow the parties to file their respective claims and contentions and to file documents relied upon by them within such reasonable time as the Arbitrator may direct. 3. SIGNED by the within named Signed by the within named Mr. 5. IN WITNESS WHEREOF the parties have put their respective hands the day and year first hereinabove written... 6. are hereby referred to the sole arbitration of the said Mr. b.. 9. 2. 386 d. The Arbitrator will have full power to award or not to award payment of such costs of and incidental to this arbitration by one party to the other as he may think fit. 4. Whether the Party of the Second Part has carried out the work according to the sanctioned plans and specifications.. the Arbitrator will have power to extend the said period from time to time with the consent of both the parties.NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:1. etc. Every dispute. 7. Whether the Party of the Second Part is overpaid for the work done up to now. 2. touching or arising out of or in respect of this agreement (deed) or the subject matter thereof shall be referred to the arbitration of XY. in the presence of: Mr.. B…. for his decision and award. difference. The Arbitration shall subject to what is herein provided be governed by the provisions of the Arbitration and Conciliation Act. failing agreement to two arbitrators one to be appointed by each party to the difference (whether consisting of one or more than one person) and in case of difference of opinion between them to an umpire appointed by the said two . or if he shall be unable or unwilling to act. MODEL ARBITRATION CLAUSES IN AN AGREEMENT i. Whether Party of the First Part is bound to make any further payment over and above the payments made up to now for the work actually done.

Where Mediator has already been identified Agreement to Mediate Disputes . 1996 as at present in force. the conciliation shall take place in accordance with the Arbitration and Conciliation Act. or in respect of any defined legal relationship associated therewith. the mediator(s) will facilitate discussions.. shall be referred to the arbitration of…………failing him to any other arbitrator chosen by the partners in writing. The parties further agree to share equally the costs of the mediation. MODEL MEDIATION CLAUSES 1. the parties agree to participate in mediation in accordance with the mediation procedures of -------------------. negotiations and procedures but will not offer independent analyses. agreement. operation. "If any dispute arises between the parties out of or relating to this contract.) for arbitration as provided in Rules framed by the said Chamber (or Association) for the purpose. and the dispute is not resolved by . Where Mediator has not been identified in advance of dispute Agreement to Mediate Disputes . In the event of any dispute. "Where. Mediation involves no formal court procedures or rules of evidence. 2. the same shall be referred to the Chamber of Commerce………. If the parties shall fail to arrive at an agreement." 2. which costs will not include costs incurred by a party for representation by counsel at the mediation.In the event a dispute shall arise between the parties to this [contract. the conciliator shall be appointed by_________ (the name of any person or institution). difference or question arising out of or in respect of this agreement or the commission of any breach of any terms thereof or of compensation payable thereof or in any manner whatsoever in connection with it. ii. or out of this Agreement. or effect of any clause in this deed or any other difference arising between the partners. and the mediator does not have the power to render a binding decision or force an agreement on the parties. opinions or judgments. (or the Association of………. The decision of such an arbitrator shall be binding on the partners. or umpire as the case may be) shall be final and binding on the parties. in the event of a dispute arising out of or relating to this contract. MODEL CONCILIATION CLAUSES 1. The conciliation shall be conducted in accordance with the Rules of Conciliation under the Arbitration and Conciliation Act. All disputes arising between the partners as to the interpretation. transaction. the parties agree to refer the same to sole conciliator for amicable settlement. The parties agree to share equally in the costs of the mediation. etc. The conciliator shall be appointed by the parties by mutual consent.In the event that any dispute arises between the parties in relation to this Agreement. which cannot be mutually resolved.before pursuing other remedies. The decision or award so given shall be binding on the parties hereto. the parties wish to seek an amicable settlement of that dispute by conciliation. iii.arbitrators before entering on the reference and the decision of the arbitrator ( or such arbitrators. 1996. In mediation. The mediation shall be administered by the offices of ----------------------. Mediation involves both sides of a dispute meeting with each other and an impartial mediator to attempt to reach a voluntary and mutually satisfactory agreement that resolves the dispute.].

Mediation is voluntary All parties here state their good intention to complete their mediation by an agreement. for appointment of a mediator. administrative or other contested proceeding. The parties and the mediator understand and agree as follows: 1. 2. and a mediation session must take place within [30] days after the date that such notice is given. hereinafter referred to as “Mediator”. The parties further agree to not call the mediator to testify concerning the mediation nor to provide any materials from the mediation in any court or other contested proceeding between the parties. if the mediator feels that an impasse has been reached. any draft resolutions and any unsigned mediated Agreements shall not be admissible in any court. The parties must jointly appoint a mutually acceptable mediator. which costs will not include costs incurred by a party for representation by counsel at the mediation. however. The parties further agree that their participation in mediation is a condition precedent to any party pursuing any other available remedy in relation to the dispute. Confidentiality It is understood between the parties and the mediator that the mediation will be strictly confidential. with the mediator's concurrence. MEDIATION AGREEMENT This is an Agreement between ------------------.negotiation. any party may apply to the ------------.as Mediator for their negotiations. The parties also understand that the mediator may suspend or terminate the mediation. The parties also understand that the mediator has an obligation to work on behalf of all parties and that the mediator cannot render individual legal advice to any party and will not render remedy nor arbitrate within the mediation. If the parties are unable to agree upon the appointment of a mediator within [7] days after a party has given notice of a desire to mediate the dispute. The .(an organisation for mediation) or person agreed to by the parties in writing. The parties understand that the mediator’s objective is to facilitate the parties themselves reaching their best agreement. The parties understand that mediation is an agreement-reaching process in which the mediator assists parties to reach an agreement in a collaborative. Any party to the dispute may give written notice to the other party of his or her desire to commence mediation. consensual and informed manner. to enter into mediation with the intent of resolving all issues regarding ------------------------------. to determine the scope of the mediation and this will be accomplished early in the mediation process. It is. The parties understand that mediation is not a substitute for independent legal advice. Mediation discussions. Nature of Mediation The Parties hereby appoint and retain --------------.and --------------. Scope of Mediation The parties understand that it is for the parties. the parties agree to submit the dispute to mediation. The parties further agree to share equally the costs of the mediation. if the mediator feels that the mediation will lead to an unreasonable result. It is understood that the mediator has no power to decide disputed issues for the parties. or if the mediator determines that he can no long effectively perform his facilitative role. 3. understood that any party withdraw from or suspend the mediation process at any time. for any reason or no reason. Only a mediated Agreement signed by any parties may be so admissible. 4.

research issues. prepare draft and final Agreements and do such other . The mediator will seek to affirmatively reveal any operative biases and will disclose any and all prior contacts with the parties and their legal counsel. in which case all such meetings and discussions shall be confidential between the mediator and the party. 5. unless the parties agree otherwise. Mediator Impartiality and Neutrality The parties understand that the mediator must remain impartial throughout and after the mediation process. Mediation Fees The parties and the mediator agree that the fee for the mediator shall be Rupees ----per hour for time spent with the parties and for time required to study documents. All parties also understand and agree that the mediator may have private meetings and discussions with any individual party. 6. telephone call. the mediator will not champion the interests of any party over another in the mediation nor in any court or other proceeding. Thus.mediation is considered by the parties and the mediator as settlement negotiations. correspond. The mediator is to be impartial as to party and neutral as to the results of the mediation.