ADR or alternative dispute resolution is very popular term in India because we

know there are serious backlog of cases pending in the Indian courts both are
the supreme court another high court level. Which means today if you have
dispute and you want to go to a court it may take you forever before the final
decision comes out.

People are getting extremely frustrated by this entire process and off course
there are many people who are thinking a direction of how to resolve this
backlog of cases but what we do in mean the time? So today if you have
dispute which is absolutely hot and simmering what are your option?

Now there four legal terms which have legal implications. All these are four
different types of adr mechanisms.

1- Negotiation
2- Mediation
3- Conciliation
4- Arbitration

Alternative to what? Well alternative to the court system and what are these?
These are dispute resolution mechanism. So simply put if you are an individual
today who has a legal issue with another party, what are the options that you
have if you don’t want to take your dispute to a proper court of law.

These adr mechanism shows how similar or dissimilar are these adr
mechanism to its parallel which is a court system. While negociation is very
unlike to a proper court system and arbitration looks the most similar to it but
off course all these play outside the court system.

Lets briefly understand what these four diff. terms means.

1- Negotiation is a process where parties have a dispute decide to come

together and they decide to a try and resolve the the dispute by means
of mutual negotiation. They can or they can not emulates their choice
where they appoint and an independent person as a negotiator. even
when a negotiator is appointed the negotiator plays a miniscule rule in
trying to get the parties to a common understanding but a negotiation
in anyway is not govern by the law. Its entirely the descration of paties
how they want to conduct the proceedings and where they want to
 conducted . offcourse it may required some professional expertise in
ensuring that the parties put their emotions aside and just focus on core
of the dispute.
2- Mediation-if the parties thinks that they cant just resolve the dispute by
themselves or by this largely independent individual they may decide to
go for mediation. Mediation is a process where the parties decide to
appoint an independent third person who is an individual as a mediator.
The mediator will try and speak to both the side of the parties
independently and then a mediator will also bring the parties together
to try and resolve the dispute. The mediator and the parties together
may lay down the rules of procedure that they want to be bound by.
The diff btw negotiation and mediation is that in the mediation the third
person who is the mediator plays a relatively and comparetively much
more than active role in trying to solve the dispute. At the end of
mediation the parties may draw which call a settlement and parties may
put sign on it.
Usually court enforced
Trained mediators in mediation sell – aim to settlement not deciding like
arbitrators
Does not affect the court proceeding- failed or success of mediation is
known by the court . mediation will try and settle and if the case will be
success then this report send to the court and court record this
statement. If its not successful then starts the court proceedings.
Very effective in solving the pendency issue
Lok adalats was formed. Its nothing as but the court which are
responsible to deal with a large no of pending cases but under an act
that is the legal service authority act of 1987.

Conciliation and arbitration have been recognise by the Indian law and
we have an act for it which is called the Arbitration and Conciliation act
of 1996.
Now this act lays down for the first time and therefore consider to be
leap as for area of India’s concern it lay specifically steps of what needs
to happen it says that well in a conciliator may require to first that the
parties submit to the conciliator written proceeding of what is a state?
What is the dispute that they have?
The conciliator may also require the parties to submit exact issues which
are act dispute between the parties. Once that happens the conciliator
can take everything on records and start speaking to the parties.
The conciliator ‘per say’ is not bound by the Indian evidence act or civil
proceeding courts
The conciliator however can lay down some rules for the effective
function of proceedings.
However the parties may still feel that the outcome of conciliation
proceeding does not have a kind of binding value which means well for
lot of practical purposes it could look like a waste of time if the parties
want a binding agreement , its best that they go for that’s called an
arbitration.
In arbitration which is a recognized way of ADR in India. Parties decide to
nominate or appoint arbitrator they can either mutual agree or one
individual who serves as an arbitrator or they may both appoint one
person each who together than appoint an third arbitrator.
Now once a parties decided well as part of contract there is a breach of
either side resulting in a dispute the parties agree or intent to refer their
matter to or an arbitration instead of resolving a court of law
They can either be a proper arbitration agreement than the parties can
drawn or they can just be an arbitration clause
In the contract that governs the parties in either of the cases. The
moment is a dispute if one of the party to have an arbitration
agreement or a clause in their contract. The court will refuse the matter
and court will say if the party is intended to refer a dispute to an
arbitration then an arbitration is a right forum for the parties to resolve
their matter. The parties may send notice to another party and request
that they appoint their arbitrator in the earliest possible time frame and
once that takes place then the future proceedings are govern by the
arbitration act very lays down what will be difference steps and how the
matter will proceed. Once the arbitrator goes his order then the
arbitration it has binding value and it will be recognize by all the courts
in India.
 No agreement pre dispute-In conciliation there is no agreement before
the disput. After the dispute taking place the parties have decided to go
to the adr
Its related with industrial disputes, trade union disputes and labour
related disputes.
Aim is to settle the case but the diff is conciliator is not able to enforce
Existing.

ARBITRATION AND CONCILIATION AMENDMENT BILL 2018

Arbitration literally means that settlement of disputes so its basically a process

by which a dispute settle between the two parties and how is this settlement
mad this two parties who are involved in dispute will come into a mutual
contract and this contract will be facilitated by a third party and this third
party shall be a neutral person without having any bias for any of this two
parties and this third party known as the arbitrator for example person A and
B are the two person or companies or two firms and they have a dispute
between these two people so A and B is involved in a dispute and there will be
a another person that is C so C is the third person or a third party and C will not
be biased towards A or B so we can say that C is a neutral person having no
favour for A or B or and we have seen that is the dispute between A and B and
solving this dispute is known as arbitration. And how is this dispute solve this is
solve by coming into a contract which is mutually agreed by both A and B and
who will facilitate is contract? C will facilitate and C is a third party having no
favourism of A or B and this will b known as the arbitrator the person who
facilitates the contract to a settle dispute between two entities or two persons
and why is arbitration important? helps to persons to come to a conclusion or
settlement dispute without going or legal proceeding so legal proceedings are
time consuming and involve many complications so without going for legal
proceeding dispute can be solved between two persons through arbitrator or
this process is known as arbitration.

Let us see an example X and Z are two persons X is a female and Z is a male and
they are married so in this example they need a mutual divorce and after the
divorce the personal position investments etc. should be divided among this
wife and husband this wife and husband has two options one is to approach
the court of law so what is problem with going for legal procedure it will take a
lot of time the complicated procedure has to be undergone etc.so preferably
what can action do they can go for a arbitration which means that an arbitrator
or a third party can solve the dispute between the husband and wife in the
case of division of as such of property or personal belongings and this third
party will come up with contract which will be acceptable for both the
husband and the wife and if the husband and a wife agrees to the contract its
called arbitration the settlement of disputes takes place.

There will be a legal dispute between x and y then they can refer this case to
an arbitrator. Anybody can become an arbitrator if its is mutually selected
person or agreeable by x and y. arbitrator technically is not a judge although or
he is working or delivering justice.

single arbitrator is called as sole arbitrator(possibility of bias) or you can have

as called as an arbitration penal or more than one arbitrator and it should be in
a odd no of arbitrators mr x choose one arbitrator a1 and mr y choose another
one a2 and then a1 and a2 make a3 with together then its called principle
arbitrator. For inc the chance of fairness

Invoke the arbitrator clause-arbitration agreement existing and future dispute

now you cant go to court.

Excluding the court

It can be a formal or informal- Bcz actually there not strictly followed
procedural laws its non technical. its also very formal.its a complete principle
of natural justice are followed .

Procedure has been decided with mutual understanding like meeting fee etc
has been decided.

Arbitral award- arbitrator give his judgement . arbitral award is have the same
binding effect the decree of court. Arbitrator can enforces. this arbitral award
will be send through the court and through was civil court.

You can be appeal under arbitration and conciliation act 1996 but have very
less no of grounds like principle of natural justice not be followed that unfair or
its against a public policy of india. 99 percent commercial agreements involve
in arbitration.

Why should the gov. promoting arbitration bcz its very fast very economical
and still has binding effect.