1. Discuss briefly the concept of Alternative Dispute Resolution.

Ans: Alternative dispute resolution refers to any methods used to resolve a

dispute between parties without resorting to litigation. It may make use of a

third party, such as a mediator, but it is not required. ADR is basically an

attempt to devise machinery which should be capable of providing an

alternative to the conventional methods of resolving disputes. It offers to

resolve matters of litigants, whether in business causes or otherwise, who are

not able to start any process of negotiation and reach any settlement.

The Acts which deal with Alternative Dispute Resolution are Arbitration and

Conciliation Act, 1996 and the Legal Services Authorities Act, 1987.

Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration

proceedings to take place in accordance with the Acts stated above.

ADR first started as a quest to find solutions to the perplexing problem of the

ever increasing burden on the courts. It was an attempt made by the legislators

and judiciary alike to achieve the “Constitutional goal” of achieving Complete

Justice. Alternative Dispute Resolution in India was founded on the

Constitutional basis of Articles 14 and 21 which deal with Equality before Law

and Right to life and personal liberty respectively.

ADR also tries to achieve the Directive Principle of State Policy relating to

Equal justice and Free Legal Aid as laid down under Article 39-A of the

Constitution.
There are many benefits of alternative dispute resolution in civil law. ADR can

be used to resolve virtually any disagreement, including those between

neighbors, business partners, and labor unions, as well as family law matters.

ADR is useful in solving issues related to breach of contract, wage negotiations,

property matters, and libel or slander. While alternative dispute resolution

in criminal law has been used for some time in other countries, it is a relatively

new concept in the U.S. The use of plea bargaining may be considered a type

of ADR, reducing the burden on the criminal justice system by allowing

offenders to agree to a punishment that is agreeable to all. With a steep increase

in white collar crime over the past few decades, the court system is making

greater use of certain types of alternative dispute resolution. Because of the

need to ensure the rights of an individual accused of a crime are protected, it is

thought to be unlikely that the use of ADR in criminal matters will become as

widely accepted as in civil matters. In family law matters, from divorce to child

custody, all parties are encouraged to reach their own solutions through the use

of any of the types of alternative dispute resolution. By eliminating the need for

a trial, the stress and expense for all parties can be greatly reduced. Settlement

conferences and mediation are common methods used to reach an agreement as

to the division of marital property and debt, and such an agreement may

include all issues, include those related to the children.

WHY ADR?
Alternative Dispute Resolutions are increasingly being utilized in disputes that

would otherwise result in litigation, including high-profile labor disputes,

divorce actions, and personal injury claims.

2.Discuss the advantage and limitation of Alternative Dispute Resolution.

Ans: ADVANTAGES:

 Reduced time in dispute- It takes less time to reach a final decision.

 Reduced costs in relating to the dispute resolution- It requires less

money i.e. it is cheap.

 Flexibility-Parties have more flexibility in choosing what rules will be

applied to the dispute. They have the freedom to do so.

 Produce good results- settlement rates of up to 85 percent.

 Improved satisfaction with the outcome or manner in which the dispute

is resolved among disputants.

 Increased compliance with agreed solutions.

 A single procedure[4]– Parties can agree to resolve in a single procedure

a dispute involving intellectual property.

 Party autonomy- Because of its private nature, ADR affords parties the

opportunity to exercise greater control over the way their dispute is

resolved than would be the case in court litigation. In contrast to court

litigation, the parties themselves may select the most appropriate

 decision-makers for their dispute. In addition, they may choose the

applicable law, place and language of the proceedings. Increased party

autonomy can also result in a faster process, as parties are free to devise

the most efficient procedures for their dispute. This can result in

material cost savings.

 Neutrality– ADR is neutral to the law, language and institutional culture

of the parties, thereby avoiding any home court advantage that one of

the parties may enjoy in court-based litigation.

 Confidentiality- ADR proceedings are private. Thereby, the parties can

agree to keep the actions confidential. This allows them to focus on the

merits of the dispute without concern about its public impact.

 Finality of Awards- Unlike court decisions, which can generally be

contested through one or more rounds of litigation, arbitral awards are

not normally subject to appeal.

 Enforceability of Awards- The United Nations Convention for the

Recognition and Enforcement of Foreign Arbitral Awards of 1958,

known as the New York Convention, generally provides for the

recognition of arbitral awards on par with domestic court judgments

without review on the merits. This greatly facilitates the enforcement of

awards across borders.

 Preserves relationship- Helps people cooperate instead of creating one

winner or one loser.

 A jury is not involved. Juries are unpredictable and often damage awards

are based solely on whether they like the parties or are upset at one party

because of some piece of evidence such as a photo that inflames the

passion of the jury. Juries have awarded claimants damages that are well

above what they would have received through alternative dispute

resolution; and they have also done the opposite.

 Select your own Arbitrator or Mediator. The parties can often select the

arbitrator or mediator that will hear their case, typically selecting

someone with expertise in the substantive field involved in the dispute.

The arbitrator (or panel members) need not even be an attorney. In this

way the focus can be on the substantive issues involved rather than on

technical procedural rules. In normal litigation, the parties cannot select

the judge, and the judge and/or jury may often need expert witnesses to

explain extremely complex issues. The greater the expertise of the

arbitrator, the less time that needs to be spent bringing him up to speed.

 Party participation. ADR permits more participation by the litigants.

ADR allows the parties the opportunity to tell their side of the story and

have more control over the outcome than normal trials overseen by a

judge. Many parties desire the opportunity to speak their piece and tell

their side of the story in their own words rather than just through

counsel.

DISADVANTAGES:
 It can be used as a stalling tactic.

 Parties are not compelled to continue negotiations or mediation.

 Does not produce legal precedents.

 Exclusion of pertinent parties weakens final agreement.

 Parties may have limited bargaining power. Parties do not have much of

a say.

 Little or no check on power imbalances between parties.

 May not protect parties’ legal rights. The rights of the parties may not be

protected by alternative dispute resolution.

 Your case might not be a good fit[5]– Alternative dispute resolutions

resolve only issues of money or civil disputes. Alternative dispute

resolution proceedings will not result in injunctive orders. They cannot

result in an order requiring one of the parties to do or cease doing a

particular affirmative act.

 There are limits to the discovery process– You should also be aware that

you are generally preceding without the protections offered parties in

litigation, such as those rules governing discovery. Courts generally

allow a great deal of latitude in the discovery process, which you will

not have in an alternative dispute resolution.

 There is no guaranteed resolution. With the exception of arbitration,

alternative dispute resolution processes do not always lead to a

resolution.
  Arbitration decisions are final. With few exceptions, the decision of a

neutral arbitrator cannot be appealed. Decisions of a court, on the other

hand, usually can be appealed to a higher court.

 Participation could be perceived as weakness. While the option of

making the proceeding confidential addresses some of this concern,

some parties still want to go to court “just on principle.”

 The case might not be a good fit-Alternative dispute resolutions

generally resolve only issues of money or civil disputes. There are limits

to the discovery process-One should also be aware that he is generally

proceeding without the protections offered parties in litigation, such as

those rules governing discovery.

3.Discuss the development and origin of online dispute resolution.

Ans: Online Dispute Resolution in India is a process by which the ease and the

benefits of alternative dispute resolution in India are enhanced by allowing the

parties to settle the dispute at the comfort of their home. The proceedings are

made available online and the agreement and evidence are also made online.

The issue of territorial jurisdiction is not a matter of consideration where the

arbitration clause specifies the same unless it refers to the methods of

alternative dispute resolution in India or Online Dispute Resolution in India.

In case the parties belong to different States or even cities, the online mode will

enable the parties to actively participate without much hassle and also

drastically reduces the issues of territorial jurisdiction, travel, paperwork and

prompts towards digitization in the judicious process of dispute resolution.

the United Nations Commission on International Trade Law (UNCITRAL) has

adopted the UNCITRAL Model Law on International Commercial Arbitration in

1985. The UNCITRAL has also adopted the UNCITRAL Conciliation Rules in

1980. The General Assembly of the United Nations has recommended the use of

the said Model Law and Rules in cases where a dispute arises in the context of

international commercial relations and the parties seek an amicable settlement of

that dispute by recourse to conciliation. India has also incorporated these

uniform principles of alternative dispute resolution in the Arbitration and

Conciliation Act, 1996 that was amended in the year 2015. The Arbitration Act

provides for alternative dispute resolution mechanisms like arbitration,

conciliations etc for national and international stakeholders.

Nevertheless, the Arbitration Act has still not considered the use of information

and communication technologies (ICT) for dispute resolution in the desired

manner. For instance, online dispute resolution (ODR) is still missing from the

Indian scenario despite the Arbitration Act. Perry4Law Organisation

(P4LO) has been advocating use of ODR in India since 2004. We have also been

managing the exclusive Techno Legal Centre of Excellence for online Dispute

Resolution in India (TLCEODRI) since 2012.

The main objective of TLCEODRI is to promote and use ODR in India for

various dispute resolution purposes. After 13 years of dedicated services and

efforts, we can safely claim that ODR would see active use in the coming years

in India. To help national and international ODR stakeholders, TLCEODRI has

also drafted an “ODR Clause” that they can use in their agreements, contracts,

etc. We have also launched a dedicated blog for ODR training along with

an ODR discussion forum where techno legal aspects would be discussed for the

first time in ODR’s history. ODR experts and specialists wishing to enroll with

TLCEODRI can also see the empanelment procedure in this regard. Above all,

TLCEODRI has launched the first ever techno legal ODR portal of India that is

covering vast dispute resolution fields. The portal is known as Online Disputes

Resolution & Cyber Arbitration Portal of TLCEODRI where ODR is used to

resolve dispute of national and international stakeholders.

Online Dispute Resolution deals with the followings:

1. All kinds of commercial disputes such as disputes with co-founder,

partners, investors, VCs, suppliers, distributors, professionals, customers

and so on.

2. Consumer related disputes like defective goods, deficiency of service,

refund etc.

3. Land-related disputes such as inheritance, partition, landlord-tenant,

joint development of property etc.

4. Intellectual property matters such as trademark, copyright, patent,

designs etc.
 5. Matters relating to E-Commerce Website such as online defamation,

unauthorized use of brand name, the customer(s) dispute resolution

forum etc.

6. Employment related disputes such as protecting confidential information,

competition, breach of contract and the like.

7. International Commercial Arbitration: International commercial

arbitrationcan be the biggest winner by using cyber arbitration and ODR

in India. This is more so on the fields of cross border technology

transactions and cross border e-commerce transactions. TLCEODRI has

been working in this direction for the past few years and international

e-commerce and technology companies can have a firsthand experience

of the same here. Interested national and international stakeholders

can contact us in this regard and avail the techno legal cyber arbitration

and ODR services of TLCEODRI.

8. PPP Based ODR Models: Indian government would encourage public

private partnership (PPP) based ODR and cyber arbitration models in

the year 2017. This is natural as Indian government is yet to brace ODR

and cyber arbitration.

4.Explain the object of Arbitration and Conciliation Act 1996.

Ans: The Arbitration and Conciliation Act, 1996 improves upon the previous

laws regarding arbitration in India namely the Arbitration Act, 1940, the

Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards

(Recognition and Enforcement) Act, 1961.Further, the new statute also covers

conciliation which had not been provided for earlier.The Act also derives

authority from the UNCITRAL Model law on International Commercial

Arbitration and the UNCITRAL rules on conciliation.The Model law on

International Commercial Arbitration was framed after taking into

consideration provisions regarding arbitration under various legal systems.

Thus, it is possible to incorporate the model law into the legal system of

practically every nation.The Act of 1996 aims at consolidating the law relating

to domestic arbitration, international commercial arbitration, enforcement of

foreign arbitral awards and rules regarding conciliation.

The main objectives of the Act are as follows:

 To ensure that rules are laid down for international as well as domestic

arbitration and conciliation.

 To ensure that arbitration proceedings are just, fair and effective.

 To ensure that the arbitral tribunal gives reasons for its award given.

 To ensure that the arbitral tribunal acts within its jurisdiction.

 To permit the arbitral tribunal to use methods such as mediation and

conciliation during the procedure of arbitration.

 To minimise the supervisory role of courts.

  To ensure that an arbitral award is enforceable as a decree of the court.

 To ensure that the result of conciliation proceedings may be treated as

arbitral awards on agreed terms.

 To treat awards given in a foreign country to which any one of the two

international conventions apply as followed by India as being a foreign

arbitral award.

5.“The alternative to litigation is Arbitration.” Critically examine the

statement.

Ans: Arbitration is a procedure in which a dispute is submitted, by agreement

of the parties, to one or more arbitrators who make a binding decision on the

dispute. In choosing arbitration, the parties opt for a private dispute resolution

procedure instead of going to court. The are many advantages to arbitration:

 the process can be tailored to suit parties’ particular needs

 arbitrators can be chosen for their expertise

 it is confidential

 it can be speedier and cheaper than court

 there are limited grounds of appeal

 arbitral awards are binding and enforceable through the courts.

 Arbitration can only take place if both parties have agreed to it. In the

case of future disputes arising under a contract, the parties insert an

arbitration clause in the relevant contract. An existing dispute can be

referred to arbitration by means of a submission agreement between the

 parties. In contrast to mediation, a party cannot unilaterally withdraw

from arbitration. Under the WIPO Arbitration Rules, the parties can

select a sole arbitrator together. If they choose to have a three-member

arbitral tribunal, each party appoints one of the arbitrators; those two

persons then agree on the presiding arbitrator. Alternatively, the Center

can suggest potential arbitrators with relevant expertise or directly

appoint members of the arbitral tribunal. The Center maintains an

extensive roster of arbitrators ranging from seasoned dispute-resolution

generalists to highly specialized practitioners and experts covering the

entire legal and technical spectrum of intellectual property.

 In addition to their selection of neutrals of appropriate nationality,

parties are able to choose such important elements as the applicable law,

language and venue of the arbitration. This allows them to ensure that

no party enjoys a home court advantage. The WIPO Rules specifically

protect the confidentiality of the existence of the arbitration, any

disclosures made during that procedure, and the award. In certain

circumstances, the WIPO Rules allow a party to restrict access to trade

secrets or other confidential information that is submitted to the arbitral

tribunal or to a confidentiality advisor to the tribunal.

 Under the WIPO Rules, the parties agree to carry out the decision of the

arbitral tribunal without delay. International awards are enforced by

national courts under the New York Convention, which permits them to
 be set aside only in very limited circumstances. More than 140

States are party to this Convention.

6. Analyze the system of Lok Adalat with special reference to family

disputes.

Ans: The concept of Lok Adalat is an innovative Indian contribution to the

world jurisprudence. The introduction of Lok Adalats added a new chapter to t

he justicedispensation system of this country and succeeded in providing a

supplementary forum to the victims for satisfactory settlement of their disputes.

This system is basedon Gandhian principles. It is one of the components of

ADR systems. In ancient timesthe disputes wer

e used to be referred to “panchayat” which were established at villagelevel.

Panchayat’s used to resolve the dispute through arbitration. It has proved to be

a very effective alternative to litigation. This very concept of settlement of

disputethrough mediation, negotiation or through arbitral process known as

decision of "Nyaya-Panchayat" is conceptualized and institutionalized in the

philosophy of Lok Adalat. It involves people who are directly or indirectly

affected by dispute resolution

and the term "Adalat" means court. India hasa long tradition and

history of such methods being practiced in the society at grassroots level.

ORIGIN

The concept of Lok Adalats was pushed back into oblivion in last few

centuries before independence and particularly during the British regime. Now,
this concepthas, once again, been

deep roots in Indian legalhistory and its close allegiance to the culture and

perception of justice in Indian ethos.Experience has shown that it is one of the

very efficient and important ADRs and mostsuited to the Indian environment,

culture and societal interests. Camps of Lok

Adalats were started initially in Gujarat in March 1982 and now it has been ext

endedthroughout the Country.

The advent of Legal Services Authorities Act, 1987 gave a statutory status to

Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the

Constitution of India, contains various provisions for settlement of disputes

through Lok Adalat. It isan Act to constitute legal services authorities to

provide free and competent legalservices to the weaker sections of the society

to ensure that opportunities for securing justice are not denied to any citizen by

reason of economic or other disabilities, and toorganize Lok Adalats to secure

that the operation of the legal system promotes justiceon a basis of equal

opportunity. Even before the enforcement of the Act, the conceptof Lok Adalat

has been getting wide acceptance as People's Courts as the very namesignifies.

Settlement of disputes at the hands of Panchayat Heads or tribal heads wasin

vogue since ancient times. When statutory recognition had been given to Lok

Adalat,it was specifically provided that the award passed by the Lok Adalat

formulating theterms of compromise will have the force of decree of a court

which can be executed asa civil court decree. The evolution of movement

called Lok Adalat was a part of thestrategy to relieve heavy burden on the
Courts with pending cases and to give relief tothe litigants who were in a queue

to get justice. It contains various provisions for settlement of disputes

settlement of disputes through Lok Adalat. It is an act to constitute legal

servuces authorities to provide free and competent legal services to the weaker

sections of the society to ensure that opportunities for securing justice are not

denied to any citizen by reason of economic or other disabilities, and to

organize Lok Adalats to secure that the operation of the legal system promotes

justice on the basis of equal opportunity.

Lok Adalats have competence to deal with a number of cases like:路

Compoundable civil, revenue and criminal cases.

- Motor accident compensation claims cases

-Partition Claims

-Damages Cases

-Matrimonial and family disputes-

-Mutation of lands case

-Land Pattas cases·

-Land Pattas cases·

-Land Acquisition Disputes

-Bank’s unpaid loan cases

-Arrears of retirement benefits cases.

-family court cases

-cases which are not sub-judice

7. Analyse and discuss the court centred Mediation in India.

Ans: Mediation, Conciliation and Arbitration, in their earlier forms are

historically more ancient than the present day Anglo-Saxon adversarial system

of law. Various forms of mediation and arbitration gained a great popularity

amongst businessmen during pre-British Rule in India. The Mahajans were

respected, impartial and prudent businessmen who used to resolve the disputes

between merchants through mediation. They were readily available at business

centres to mediate the disputes between the members of a business association.

The rule in the constitution of the Association made a provision to dismember a

merchant if he resorted to court before referring the case to mediation. This was

a unifying business sanction. This informal procedure in vogue in Gujarat, the

western province of India, was a combination of Mediation and Arbitration,

now known in the western world, as Med-Arb. This type of mediation had no

legal sanction in spite of its wide common acceptance in the business world.

The East India Company from England gained control over the divided Indian

Rulers and developed its apparent commercial motives into political aggression.

By 1753 India was converted into a British Colony and the British style courts
were established in India by 1775. The British ignored local indigenous

adjudication procedures and modeled the process in the courts on that of British

law courts of the period. However, there was a conflict between British values,

which required a clear-cut decision, and Indian values, which encouraged the

parties to work out their differences through some form of compromise. The

British system of justice gradually became the primary justice delivery system

in India during the British regime of about 250 years. Even in England it was

formed during a feudal era when an agrarian economy was dominant. While

India remained a colony, the system thrived, prospered and deepened its roots

as the prestigious and only justice symbol. Indigenous local customs and

community-based mediation and conciliation procedures successfully adopted

by business associations in western India were held to be discriminatory,

depriving the litigants of their right to go to courts. The British Courts

gradually came to be recognized for its integrity and gained peoples'

confidence. Even after India's independence in 1947, the Indian Judiciary has

been proclaimed world over as the pride of the nation.

The concept of mediation received legislative recognition in India for the first

time in the Industrial Disputes Act, 1947. The conciliators appointed under

Section 4 of the Act are " charged with the duty of mediating in and promoting

the settlement of Industrial disputes." Detailed procedures were prescribed for

conciliation proceedings under the Act. Arbitration, as a dispute resolution

process was recognized as early as 1879 and also found a place in the Civil

Procedure Code of 1908. When the Arbitration Act was enacted in 1940 the
provision for arbitration originally contained in Section 89 of the Civil

Procedure Code was repealed. The Indian Legislature made headway by

enacting The Legal Services Authorities Act, 1987 by constituting the National

Legal Services Authority as a Central Authority with the Chief Justice of India

as its Patron-in-Chief. The Central Authority has been vested with duties to

perform, inter alia, the following functions: -

* To encourage the settlement of disputes by way of negotiations, arbitration

and conciliation.

* To lay down policies and principles for making legal services available in

the conduct of any case before the court, any authority or tribunal.

* To frame most effective and economical schemes for the purpose. To utilize

funds at its disposal and allocate them to the State and District Authorities

appointed under the Act.

* To undertake research in the field of legal services.

* To recommend to the Government grant-in-aid for specific schemes to

voluntary institutions for implementation of legal services schemes.

* To develop legal training and educational programmes with the Bar Councils

and establish legal services clinics in universities, Law Colleges and other

institutions.
* To act in co-ordination with governmental and non-governmental agencies

engaged in the work of promoting legal services. ation is conducted by a

neutral third party- the mediator.

The mediator remains impartial, independent, detached and objective

throughout the mediation process. In mediation, the mediator assists the parties

in resolving their dispute. The mediator is a guide who helps the parties to find

their own solution to the dispute. The mediator's personal preferences or

perceptions do not have any bearing on the dispute resolution process. 1.7 In

Mediation the mediator works together with parties to facilitate the dispute

resolution process and does not adjudicate a dispute by imposing a decision

upon the parties. A mediator's role is both facilitative and evaluative. A

mediator facilitates when he manages the interaction between the parties,

encourages and promotes communication between them and manages

interruptions and outbursts by them and motivates them to arrive at an amicable

settlement. A mediator evaluates when he assists each party to analyze the

merits of a claim/defence, and to assess the possible outcome at trial. The

mediator employs certain specialized communication skills and negotiation

techniques to facilitate a productive interaction between the parties so that they

are able to overcome negotiation impasses and find mutually acceptable

solutions. Mediation is a private process, which is not open to the public.

Mediation is also confidential in nature, which means that statements made

during mediation cannot be disclosed in civil proceedings or elsewhere without

the written consent of all parties. Any statement made or information furnished

by either of the parties, and any document produced or prepared for / during

mediation is inadmissible and non-discoverable in any proceeding. Any

concession or admission made during mediation cannot be used in any

proceeding. Further, any information given by a party to the mediator during

mediation process, is not disclosed to the other party, unless specifically

permitted by the first party. No record of what transpired during mediation is

prepared. Any settlement reached in a case that is referred for mediation during

the course of litigation is required to be reduced to writing, signed by the

concerned parties and filed in Court for the passing of an appropriate order. A

settlement reached at a pre-litigation stage is a contract, which is binding and

enforceable between the parties. In the event of failure to settle the dispute, the

report of the mediator does not mention the reason for the failure. The report

will only say "not settled". The mediator cannot be called upon to testify in any

proceeding or to disclose to the court as to what transpired during the

mediation.