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ADRS exam - Alternative dispute resolution system

Llb 3 years (Karnataka State Law University)

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1. Difference between ADR and the judicial system

A comparative study of or difference between judicial adjudication, Arbitration
and Conciliation

Alternative dispute resolution

Alternative dispute resolution is any means used to resolve a conflict other than through
litigation. Examples include negotiation, facilitated discussion and mediation.
Key features
Allows for a custom-made win-win outcome on all or part of the issues
Focuses on consensus-building and is future-oriented
Aims to determine the parties’ interests
Involves the participation of a neutral and impartial alternative dispute resolution practitioner,
selected or agreed upon by all parties, to facilitate participants’ negotiations and discussions
Voluntary participation, except where court-appointed, and participants can withdraw from
process at any stage
Usually informal, less structured and flexible
Emphasizes mutuality over self-interest and reconciliation over termination
Considerations
Parties actively participate in the process, define the issues and retain control of the outcome;
they have the final say, not the alternative dispute resolution practitioner
Discussions, negotiations and documentation are confidential, unless otherwise required by
law, and do not form part of the public record
Allows for direct communication between participants in a non-confrontational setting to
identify the true issues and cause of the dispute
Each party has the opportunity to describe the situation from his or her perspective, needs and
interests without the restrictions of the civil rules
Requires commitment; outcome also requires good-faith participation by all participants; time
and money will be wasted if the intention to collaborate is not present
Alternative dispute resolution process can be scheduled at the convenience of participants and
practitioner
Allows for creative discussion of options and a wider range of possible outcomes, such as
better understanding of others’ perspective and change in practice or process
Outcome depends on settlement authority of the participants
Allows for the preservation of business relationships
Parties reserve the right to litigate, if they are unhappy with the process or do not reach
agreement, they can walk away or proceed to litigation

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If a mutually acceptable resolution is reached, the agreement can result in a legally binding
settlement agreement
Litigation
Litigation is the act or process of bringing about or contesting a claim (that is, using the
traditional court system).
Key features
May result in an “all-or-nothing” decision
Focuses on the facts and is past-oriented
Aims to determine the parties’ legal rights
Determines winners and losers
Usually involves a judge who is appointed by the court to determine the outcome based on
the law and legal precedents
Mandatory participation once legal action is initiated
Formalized and highly structured
Costly and long delays
Considerations
Communication usually occurs through lawyers
Results cannot be predicted; responsibility for decision rests with a court-appointed third
party
Decisions rendered can act as precedent in future similar cases
Provides public record of evidence and a decision supported by reasons that may be subject
to appeal
Usually requires more resources (more costly, more witnesses, experts and preparation time)
and a longer wait time for resolution
When quick action is necessary, the courts can provide emergency rulings, such as
injunctions, which are not always possible in alternative dispute resolution processes
Ensures a decision; even in cases where the dispute involves a non-negotiable issue
Focuses on determining what is legal and what is not
Provides authority on issues that involve a breach of law or statute interpretation
Ideal for cases that have implications for a wide range of individuals outside of the immediate
localized dispute or where parties want to have a third party be responsible for the decision

Arbitration

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Arbitration is in private as opposed to being in public. An impartial professional is instructed

to make a decision on the dispute. This in turn means that it can be quicker for cases to be
resolved. However the arbitrator’s time is paid for by the parties unlike a Judge.
There are also limited grounds to appeal the arbitrator’s decision and the arbitrator has the
power to order costs.
The parties have to agree to arbitration. It is therefore often found in international overseas
contracts as it allows the parties to agree a neutral venue and mechanism for dispute
resolution at the outset.
Adjudication
Adjudication is widely recognised as being a “pay now argue later” mechanism for resolving
disputes. Adjudication is most often used for resolving construction disputes as the parties to
a construction contract cannot contract out of it.
Whilst it can be extended, the adjudication is generally a 28 day procedure which is started
by a party serving a Notice. There are strict limits to comply with when dealing with an
adjudication.
Generally an adjudicator has no power to award costs unless the parties have otherwise
agreed.
Adjudication awards are enforced by the Courts. The idea behind adjudication proceedings is
that it is designed to protect cash flow for businesses by preventing one party from
withholding payments for significant periods of time. Adjudication however, does not finally
dispose of the matter.
The adjudicator’s decision often last until practical completion, at which point it can be
arbitrated or litigated if not accepted. Generally, adjudication is appropriate for dealing with
claims relating to:-
Interim payments
Extensions of time for completion of works
Delay and destruction of works

2. Difference between Procedural law and substantive law

WHAT IS PROCEDURAL LAW?

Procedural law is the body of law that deals with the technical aspects, such
as duties and procedures for obtaining redress for a wrong. Procedural law is the rules of
conducting a legal action.
In simple terms, procedural law specifies the process that each case must go
through. It comprises the rules by which a court hears and determines what happens in civil,
lawsuit, criminal or administrative proceedings.

EXAMPLES:
Administrative Procedure

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Appellate Procedure
Criminal Procedure
Evidence
Civil Procedure

Case laws:
Shiv Bhagwan Moti Ram Saraoji vs Onkarmal Ishar Dass And Ors.
AIR 1952 Bom 365, (1952) 54 BOMLR 330
In Shiv Bhagwan Moti Ram Saraoji’s case (supra) the Bombay High Court has
held procedural laws to be in force unless the legislatures expressly provide to the contrary.
JUDGEMENT: The court observed that “… Now, I think it may be stated as a general
principle that no party has a vested right to a particular proceeding or to a particular forum,
and it is also well settled that all procedural laws are retrospective unless the Legislature
expressly states to the contrary. Therefore, procedural laws in force must be applied at the
date when a suit or proceeding comes on for a trial or disposal…”
Substantive law:
WHAT IS SUBSTANTIVE LAW?
Substantive law is that body of law that handles the legal relationship
between individuals, or between individuals and the state. It also defines types of crimes and
their severity.
In simple terms, substantive law is the set of laws that governs how
members of a society are to behave.
EXAMPLES:
Agency
Contract
Criminal Law
Partnership
Torts

DIFFERENCE BETWEEN PROCEDURAL LAW AND SUBSTANTIVE LAW:

Differences in Structure and Content: If a person is accused and undergoing a trial,
substantive law prescribes the punishment that the under-trial will face if convicted.
Substantive law also defines the types of crimes and the severity depending upon factors such
as whether the person is a repeat offender, whether it is a hate crime, whether it was self-
defense etc. It also defines the responsibilities and rights of the accused.
Procedural law, on the other hand, provides the state with the machinery to enforce the
substantive laws on the people. Procedural law comprises the rules by which a court hears
and determines what happens in civil or criminal proceedings. Procedural law deals with the
method and means by which substantive law is made and administered.
Powers of Substantive vs. Procedural Laws: Substantive law is an independent set of laws
that decide the fate of a case. Procedural laws on the other hand, have no independent
existence.
Therefore, procedural laws only tell us how the legal process is to be executed, whereas
substantive laws have the power to offer legal solution.

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Differences in Application:Procedural laws are applicable in non legal contexts, whereas

substantive laws are not.
the essential substance of a trial is underlined by substantive law, whereas procedural law
chalks out the steps to get there.
Example:
An example of substantive law is how degrees of murder are defined. Depending upon the
circumstances and whether the murderer had the intent to commit the crime, the same act of
homicide can fall under different levels of punishment. This is defined in the statute and is
substantive law.
Examples of procedural laws include the time allowed for one party to sue another and the
rules governing the process of the lawsuit.

DIFFERENCE BETWEEN PROCEDURAL LAW AND SUBSTANTIVE LAW:

BASIS:
PROCEDURAL LAW:
SUBSTANTIVE LAW:
Definition

Powers

Application

Regulation

0• Deals with and lays down the ways and means by which substantive law can be
enforced.
1• No independent powers

2• Can be applied in non legal contexts

3• By statutory law

0• Deals with those areas of law which establish the rights and obligations of individuals ,
what individuals may or may not do.
1• Independent powers to decide the fate of a case
2• Cannot be applied in non legal contexts

3• By Act of Parliament or government implimentation

3. Adversarial system and inquisitorial system

Adversarial system and Inquisitorial system..

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With the family justice system under review and the present government's realisation that
the current court process creates more problems than it solves especially in marriage
related cases, divorce and custody of children's new power struggle is emerging which is
cutting down the present judicial system and trying to replace it with a new system I.e
Inquisitorial system..
What is an Inquisitorial system??
This system was started for the first time in Britain and at present it is very much alive in
the whole of Europe, South America and Asia. The Law Commission even in India has
suggested for an entire change in criminal justice system.
*The Inquisitorial was first developed by the Catholic church during the renewal
period .England adopted the method of adjudication by requiring the witnesses and
defendants to take an Inquisitorial oath administered by the Judge Who then questioned
the witnesses and swore to truthfully answer all questions asked of him or her .The
system fluoride in England into the 16th century when it became infamous for its use in
the court of the star chamber ; a court reserved for complete contested cases under the
reign of king Henry the V111th the power of the star chamber was expanded and the
court used torture to compel the taking of Inquisitorial oath .The star chamber was
eventually eliminated as repugnant to the basic liberty and England gradually moved
towards an Adversal system
*After French Revolution a more refined version of the Inquisitorial system developed in
France and Germany from there it spread to rest of the continental Europe and many
African South American countries. This system is now more widely used than the
Adversial system. Some of the countries like Italy are using a blend of Adversial and
Inquisitorial elements in their court systems.
*English dictionaries describe it as a method of legal practice where the court or a part of
the court is actively involved in investigating the facts of the case, as opposed to an
Adversial system where the role of the court is primarily that of an impartial references
between the prosecution and the defence.
*It is the method of Legal practise in which the Judge endeavours to discover facts while
simultaneously representation the interest of the state in the trial .
*The focus in this system is on judge his obligations are greater and he is no longer a
passive observer of the proceedings. He is an active member of entire fact finding
process.
*The Judge in the Inquisitorial system to lead questions or questioning of witnesses. this
will reduce the level of conflicts between the two parties.
*The opposite party advocates who normally control the court in the Adversial system
will have limited role to play in the Inquisitorial system
*This is an welcome change which all of us are waiting for because the common man and
the people in general have lost faith in the present court system.
*The court procedure in this system varies from one country to another the most
Inquisitorial system provide a full review of a case by an appeal court. In civil suits under

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either of the system the defendant or the respondent may be required to testify .The most
striking different between the two system can be found in the criminal trial .In most
Inquisitorial systems, a criminal or an accused doesn't have to answer questions about the
crime itself but may be required to answer all other questions at trials .many of the
questions will concern to the history of the criminals.
*The Accused in an Inquisitorial system has to first testify himself. He is allowed to see
the government cases before testifying and he is usually very eager to give the story of his
side.
*The Accused is not presented guilty in this system., unless there is strong evidences
indicating the guilt and the trials would last for many months because the presiding judge
gathers evidence in a series of hearing. The decision in an Inquisitorial criminal trial is
made by 'collective vote 'of a certain number of professional judge and a small group of
assessors (They are persons selected at random from the general public), neither the
prosecution nor the accused will have an opportunity to question these assessors.
generally, the judges will vote at the end the assessors have to vote first. A 2/3rd majority
is usually required to convict an accused.

What is Adversary System?

*Adversarial system used in common law jurisdiction s such as England.
The Oxford Dictionary defines the word 'adversary' as one’s opponent in a contest,
conflict, or dispute. It is a legal system in which cases brought before the court are
presented by two opposing sides before a panel of individuals which will include a judge
and jury that their version of the facts is the most convincing .the representatives from
each party take opposing positions to debate and argue their case, the judges role is to
uphold principles of fairness and equality and to remain neutral until the very end when
he gives judgment
*Common law countries commonly use an adversary system and the roots of the system
are quite ancient
*In This system both the parties have to present evidences and witnesses to support their
positions
The opposing side can cross examine witnesses, analyse the evidence and challenge
arguments made before the court. The goal of the process is to present all the facts of the
case for the benefits of the Judge and jury, who shift through the material to decide what
happened and who if any should be held responsible.
*The judge and the jury are expected to remain impartial and they will be using their own
exercise which are designed to eliminate people who might have a bias in the case .The
whole idea is that by presenting the context to people without an interest in the outcome.
People can receive fair trial because the fact will be evaluated objectively. In reality the
situation in an adversary system can be much more, in the sense clarity could be brought
in every situation that is contested before court of law.
*In an Adversarial system the accused is not required to testify himself

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*it doesn’t require the presumption of innocence.

4. What are the different procedure to be followed while conducting on Arbitral

proceeding or Explain the conduct of Arbitral proceedings under the new Act.

Ans. Conduct of arbitral proceedings

• Equal treatment of parties— The parties shall be treated with equality and each party shall
be given a full opportunity to present his case.
• Determination of rules of procedure—
1. The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908)
or the Indian Evidence Act, 1872 (1 of 1872).
2. Subject to this Part, the parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting its proceedings.
3. Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to
this Part, conduct the proceedings in the manner it considers appropriate.
4. The power of the arbitral tribunal under sub-section (3) includes the power to determine
the admissibility, relevance, materiality and weight of any evidence.
• Place of arbitration—
1. The parties are free to agree on the place of arbitration.
2. Failing any agreement referred to in sub-section (1), the place of arbitration shall be
determined by the arbitral tribunal having regard to the circumstances of the case, including
the convenience of the parties.
3. Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless
otherwise agreed by the parties, meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for inspection of
documents, goods or other property.
• Commencement of arbitral proceedings—
• Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular
dispute commence on the date on which a request for that dispute to be referred to arbitration
is received by the respondent.
• Language—
1. The parties are free to agree upon the language or languages to be used in the arbitral
proceedings.
2. Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine
the language or languages to be used in the arbitral proceedings.

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3. The agreement or determination, unless otherwise specified, shall apply to any written
statement by a party, any hearing and any arbitral award, decision or other communication by
the arbitral tribunal.
4. The arbitral tribunal may order that any documentary evidence shall be accompanied by a
translation into the language or languages agreed upon by the parties or determined by the
arbitral tribunal.
• Statements of claim and defence—
1. Within the period of time agreed upon by the parties or determined by the arbitral tribunal,
the claimant shall state the facts supporting his claim, the points at issue and the relief or
remedy sought, and the respondent shall state his defence in respect of these particulars,
unless the parties have otherwise agreed as to the required elements of those statements.
2. The parties may submit with their statements all documents they consider to be relevant or
may add a reference to the documents or other evidence they will submit. 3. Unless otherwise
agreed by the parties, either party may amend or supplement his claim or defence during the
course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to
allow the amendment or supplement having regard to the delay in making it.
• Hearings and written proceedings—
1. Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold
oral hearings for the presentation of evidence or for oral argument, or whether the
proceedings shall be conducted on the basis of documents and other materials: Provided that
the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a
request by a party, unless the parties have agreed that no oral hearing shall be held.
2. The parties shall be given sufficient advance notice of any hearing and of any meeting of
the arbitral tribunal for the purposes of inspection of documents, goods or other property.
3. All statements, documents or other information supplied to, or applications made to the
arbitral tribunal by one party shall be communicated to the other party, and any expert report
or evidentiary document on which the arbitral tribunal may rely in making its decision shall
be communicated to the parties.
• Default of a party—
• Unless otherwise agreed by the parties, where, without showing sufficient cause—
1. the claimant fails to communicate his statement of claim in accordance with sub-section
(1) of section 23, the arbitral tribunal shall terminate the proceedings;
2. the respondent fails to communicate his statement of defence in accordance with sub-
section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating
that failure in itself as an admission of the allegations by the claimant;
3. a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral
tribunal may continue the proceedings and make the arbitral award on the evidence before it.
• Expert appointment by arbitral tribunal—

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1. Unless otherwise agreed by the parties, the arbitral tribunal may—

• appoint one or more experts to report to it on specific issues to be determined by the arbitral
tribunal, and
• require a party to give the expert any relevant information or to produce, or to provide
access to, any relevant documents, goods or other property for his inspection.
2. Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after delivery of his written or oral report, participate
in an oral hearing where the parties have the opportunity to put questions to him and to
present expert witnesses in order to testify on the points at issue.
3. Unless otherwise agreed by the parties, the expert shall, on the request of a party, make
available to that party for examination all documents, goods or other property in the
possession of the expert with which he was provided in order to prepare his report.
• Court assistance in taking evidence—
1. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the
court for assistance in taking evidence.
2. The application shall specify—
• the names and addresses of the parties and the arbitrators; • the general nature of the claim
and the relief sought;
• the evidence to be obtained, in particular,—
• the name and address of any person to be heard as witness or expert witness and a statement
of the subject-matter of the testimony required; • the description of any document to be
produced or property to be inspected.
3. The court may, within its competence and according to its rules on taking evidence,
execute the request by ordering that the evidence be provided directly to the arbitral tribunal.
4. The court may, while making an order under sub-section (3), issue the same processes to
witnesses as it may issue in suits tried before it.
5. Persons failing to attend in accordance with such process, or making any other default, or
refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the
conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and
punishments by order of the court on the representation of the arbitral tribunal as they would
incur for the like offences in suits tried before the court. 6. In this section the expression
“Processes” includes summonses and commissions for the examination of witnesses and
summonses to produce documents.
5. Define an Award. What are the components of a valid Arbitral award or explain
the term award and also the different procedure laid down by passing an award.

Ans. Arbitration Award is a determination on the merits by an arbitration tribunal in

arbitration, and is analogous to the judgment in the Court of Law.

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According to the Arbitration and Conciliation Act, 1996 an Arbitral Award:

• Shall be in writing;
• Shall be signed by members of Arbitral Tribunal;
• Shall state the reasons on which the Award is based;
• Date and place of arbitration;
The Act provides that after passing the Award, a signed copy of the Award shall be
delivered to each party. The Tribunal if required can also pass an interim arbitral
award.

Correction and Interpretation of Arbitral Award- Section 33 of the Act deals with the
correction and interpretation of Arbitral award. It provides that the Tribunal may
correct the award within 30 days from the receipt of award. If the Tribunal finds the
request for correction to be reasonable, then it shall make a correction or
interpretation of a specific point or part of the award within 30 days of the receipt of
request. However, if the Tribunal deems it necessary it can also extend the period of
time within which it will make correction in the Award or interpretation of the Award.

Enforcement of Arbitral Award– Section 36 of the Act provides that if the time for
making application to set aside an award under Section 34 has expired or the
application has been refused then the Award shall be enforced under the Code of Civil
Procedure in the same manner as a decree of a Court.

SETTING ASIDE OF ARBITRAL AWARD

Section 34 of the Act provides for setting aside of an Arbitral Award by the Court.
The Act provides a comprehensive list of circumstances under which an Arbitral
Award can be set aside by the Court and they are:
0. The party is under some incapacity;
0. Arbitration agreement between the parties is not valid;
0. Lack of notice of appointment of arbitrator or of holding of arbitral
proceeding;
0. Arbitral award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration or it contains decisions on matters
beyond the scope of submission of arbitration;
0. Composition of arbitral tribunal or arbitral procedure was not in
accordance with the agreement of the parties;
0. The Court finds that the subject matter of the dispute is not capable of
settlement by arbitration under the Law;
0. The Award is in conflict with the Public Policy
6. Write a short note on the following: grounds for challenge, termination of
mandate or substitution of Arbitrator, jurisdiction, settlement

13) Write a short note on the following

A) Grounds for challenge (Section 12)

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Section 12(1) When a person is approached by in connection with his possible

appointment as an arbitrator, he shall disclose in writing any circumstances likely to give
rise to justifiable doubts as to his independence or impartiality.
As per the object of this section 12(1) a prospective arbitrator is duty bound to disclose
his antecedent which is likely to affect his role as an arbitrator.
Section 12(2) lays down duty of an arbitrator since he has been appointed as an arbitrator
and throughout the arbitral proceeding if any circumstances mentioned in section 12 (1)
arise, to be disclosed in writing to the parties, unless the parties have already informed the
arbitrator.
Section 12(3) provides grounds for challenging the arbitrator: -
a) the circumstances exist that give rise to justifiable doubts as to his independence or
impartiality, or
b) he does not possess the qualification as per the agreement between the parties.
Thus, sub-section (3) averts the flimsy ground to challenge by providing good reasonable
grounds to challenge the arbitrator.
In Jiwan Kumar Lohia V. Durga Dutt Lohia, the Supreme Court of India said, that "
Reasonable apprehension of bias in the mind of a reasonable man can a be a good ground
for the termination of the mandate of an arbitrator".
Section 12(4) A party may challenge an arbitrator appointed by him,or in whose
appointment he has participated, only for reasons of which he becomes aware after the
appointment has been made.
B) Termination of mandate or substitution of Arbitrator ( section 15)
1) Termination of mandate of arbitrator
Section 15(1) provides two additional grounds for termination of arbitrator's authority.
These grounds are:-
a) that the arbitrator has withdrawn himself from office for any reason,or
b) that the parties have consented to each other to terminate arbitrator's authority.
(2) Substitution of Arbitrator:- Where the mandate of an arbitrator terminates, a substitute
arbitrator shall be appointed according to the rules that were applicable to the
appointment of the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under
subsection (2)any hearings previously held may be repeated at the discretion of the
arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal
made prior to the replacement of an arbitrator under this section shall not be invalid solely
because there has been a change in the composition of arbitral tribunal.
C) JURISDICTION OF ARBITRAL TRIBUNALS

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16. Competence of arbitral tribunal to rule on its jurisdictional. -

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and for
that purpose, -
(a) An arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract; and (b) A decision by the arbitral tribunal
that the contract is null and void shall not entail ipso jure the invalidity of the arbitration
clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than
the submission of the statement of defence; however, a party shall not be precluded from
raising such a plea merely because that he has appointed, or participated in the
appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raise as
soon as the matter alleged to be beyond the scope of its authority is raised during the
arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or
subsection (3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section
(3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the
arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application forgetting aside
such an arbitral award in accordance with section 34.

D) Settlement. –
(1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to
encourage settlement of the dispute and, with the agreement of the parties; the arbitrat
tribunal may use mediation, conciliation or other procedures at any time during the
arbitral proceedings to encourage settlement.

(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitrat award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and
shall state that it is an arbitrat award.
(4) An arbitrat award on a-reed terms shall have the same status and effect as any other
arbitral award on the substance of the dispute.

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7. What are the different types of disputes suitable for Concilliation? When can be
the process of Concilliation can be terminated?

Ans. What is conciliation?

Conciliation is the method of settling a dispute in which an impartial third party tries to get
the disputing parties to reach an agreement.

Who conducts conciliation?

Conciliator: A conciliator is a person who brings the disputing parties to harmony.

What are the different types of conciliation?

 Facilitative conciliation- here, the conciliator merely facilitates and provides a
platform for the parties in reaching a settlement.
 Evaluative conciliation: in this type of conciliation, the conciliation assesses the case
and provides an opinion.
 Voluntary conciliation: here the parties have an option to choose conciliation as one
of the methods to settle a matter. They voluntarily agree to take up conciliation.
 Compulsory conciliation: in this type of conciliation, the parties are forced to take up
conciliation as a legal obligation.

What are the duties of a conciliator?

The following are some of the most important duties that a conciliator has to perform. He has
to be:
 Impartial
 Independent
 Encourage useful discussions for possible settlement
 Establish good relationship with the parties
 Maintain confidentiality.

What are the different types of disputes suitable for conciliation?

 Commercial disputes
 Employment and labour disputes
 Consumer disputes
 Family disputes.
What are the advantages of conciliation?
 The process is private so no risk of damage to reputation.

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 The parties reserve the right to go to court if they are not happy with the
outcome.
 It is cheaper than taking the dispute to the court.
 The process is informal so parties should not feel out of their comfort zone.
 The process is flexible with a time and date set to suit the parties.

What is the role of a conciliator in conciliation?

The conciliator has to play a limited role. His duty is to bring the parties together and
ensure they settle the matter in an amicable way. He should be:
 A leader
 Facilitator
 A Communication link
 Advisor
 Innovator

8. Define Mediation. What are the qualities of a good mediator? Or who is a

Mediator? What are the qualities, duties and responsibilities of a Mediator?
What are the different strategies or what are the different approaches (different
modes) to mediation

Mediation is a process in which the mediator, an external person who is neutral to the
dispute works with the parties to find a solution which is acceptable to all of them.
Qualities

Alertness

The mediator must be alert on several levels while mediating. He must concentrate on the
information being provided by the source and be constantly evaluating the information for
both value and veracity. Simultaneously, he must be alert not only to what the party says but
also to how it is said and the accompanying body language to assess the party’s truthfulness,
degree of cooperation, and current mood. He needs to know when to give the party a break
and when to press the party harder. In addition, the Mediator constantly must be alert to his
environment to ensure his personal security and that of the parties.

Patience and Tact

The Mediator must have patience and tact in creating and maintaining rapport between
himself and the party, thereby enhancing the success of the process. Displaying impatience
may:

 Encourage a difficult party to think that if he remains unresponsive for a little longer,
the process will end.
 Cause the party to lose respect for the Mediator, thereby reducing the Mediator’s
effectiveness.

Credibility

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The Mediator must provide a clear, accurate, and professional product and an accurate
assessment of his capabilities. He must be able to clearly articulate complex situations and
concepts. The Mediator must also maintain credibility. He must present himself in a
believable and consistent manner, and follow through on any promises made as well as never
to promise what cannot be delivered.

Objectivity and Self-control

The Mediator must also be totally objective in evaluating the information obtained. The
mediator must maintain an objective and dispassionate attitude regardless of the emotional
reactions he may actually experience or simulate during a questioning session. Without
objectivity, he may unconsciously distort the information acquired. He may also be unable to
vary his questioning and approach techniques effectively. He must have exceptional self-
control to avoid displays of genuine anger, irritation, sympathy, or weariness that may cause
him to lose the initiative during questioning but be able to fake any of these emotions as
necessary. He must not become emotionally involved with the party.

Adaptability

A Mediator must adapt to the many and varied personalities which he will encounter. He
must also adapt to all types of locations, operational tempos, and operational environments.
He should try to imagine himself in the party's position. By being adaptable, he can smoothly
shift his questioning and approach techniques according to the operational environment and
the personality of the party.

Perseverance

A tenacity of purpose can be the difference between a Mediator who is merely good and one
who is superior. A Mediator who becomes easily discouraged by opposition, noncooperation,
or other difficulties will not aggressively pursue the matter to a successful conclusion or
exploit leads to other valuable information.

Appearance and Demeanor

The Mediator's personal appearance may greatly influence the conduct of any mediation and
attitude of the party toward the Mediator. Usually an organized and professional appearance
will favorably influence the party. If the Mediator's manner reflects fairness, strength, and
efficiency, the party may prove more cooperative and more receptive to questioning.

Initiative

Achieving and maintaining the initiative are essential to a successful questioning session just
as the offensive is the key to success in combat operations. The Mediator must grasp the
initiative and maintain it throughout all questioning phases. This does not mean he has to
dominate the party physically; rather, it means that the Mediator knows his requirements and
continues to direct the collection toward those requirements.

Trust

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One can work as a mediator so long as he or she enjoys the trust of the parties. Appointment
of arbitrators can be fixed by an agreement between the parties; parties have no choice in
choosing their judge but the parties can pick a mediator only when they have a trust in the
mediator or they have a reason to believe that they can trust him.

Neutrality

One can work as a mediator so long as he or she enjoys the trust of the parties. Appointment
of arbitrators can be fixed by an agreement between the parties; parties have no choice in
choosing their judge but the parties can pick a mediator only when they have a trust in the
mediator or they have a reason to believe that they can trust him.
Confidentiality
One of the reasons that the parties opt for mediation is that they do not either want to wash
dirty linen in public or if it is a trade dispute they don’t want others to know their trade
secrets or they know that adjudication of dispute in the open forums like court may lead to
their making their financial condition public. The parties to the dispute approach the mediator
with the hope that what ever would come to the knowledge of mediator during the
proceedings will remain with him only.
Look dignified; dress appropriately
It is the appearance of the mediator, which conveys the first impression to the parties. They
should have a feeling that they are dealing with a person who is here to do business. He is
serious about his job. If the conduct of the mediator is not dignified he is not likely to earn the
respect of the parties. It is the respect for the mediator, which builds the trust of the parties in
the mediation. Yet it is important he should not sit with a stiff neck with a detached look, so
as to convey that he is indifferent to what is going around him.
Dressing up is yet another aspect of looking dignified. One, however, needs to be careful that
he is not overdressed as overdressing itself creates barriers of its own in the effective flow of
information between the mediator and the parties.
Punctuality
Traditional litigation is not only time consuming but also in such litigations the adhering to
schedules is very difficult. Most of the people who opt for mediation do so because they feel
that the mediation will yield early results. There object of coming for mediation would be
defeated if it becomes an equally time consuming process.
Knowledgeable
There can be situations like in the case of community mediations where it may not be
necessary for a party to be educated. It is sufficient that he/she can understand the legitimate
concerns of the parties. In case of, however, court annexed mediations or the mediations,
which have pronounced legal consequences, it is desirable and sometimes also necessary that
he should have some legal background or exposure. Once the negotiations are over a
mediator is required to help the parties draw the terms of settlement. These settlements
should be such that they would not fall apart once they are tested on the touchstone of law.
Duties

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• Confidentiality

• Neutral / fair

• To avoid conflict of interest

• To make reasonable inquiry

• To conduct the mediation in accordance with code of mediation procedure

Responsibility
Convener
The mediator may assist in contacting the other party(ies) to arrange for an introductory
meeting.
Educator
The mediator educates 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.
Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.
Translator
When necessary, the mediator can help by rephrasing or reframing communications so that
they are better understood and received
Questioner and Clarifier
The mediator probes issues and confirms understandings to ensure that the participants and
the mediator have a full understanding.
Process Advisor
The mediator comes to be trusted to suggest procedures for making progress in mediation
discussions, which may include caucus meetings, consultation with outside legal counsel and
consultation with substantive experts.
Angel of Realities
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 participants' stated goals, interests and positive intentions.
Catalyst
By offering options for considerations, stimulating new perspectives and offering reference
points for consideration, mediator serves as a stimulant for the parties reaching agreement.

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Responsible Detail Person

The mediator manages and keeps track of all necessary information, writes up the parties'
agreement, and may assist the parties to implement their agreement.

9. What is Negotiation? What are the different types of Negotiation or what are the
different styles of Negotiation?

0• NEGOTIATION

1• What is negotiation?
2• Negotiation has been defined as any form of direct or indirect communication whereby
parties who have opposing interests discuss the form of any joint action which they
might take to manage and ultimately resolve the dispute between them through mutual
concern.

3• Characteristics of a negotiation

4• Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process

5• Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation

is reached by the parties together without recourse to a third-party neutral.
6• Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the
subject matter, timing and location of negotiations.

7• Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They

can range from two individuals seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
8• Flexible: The scope of a negotiation depends on the choice of the parties. The parties
can determine not only the topic or the topics that will be the subject of the negotiations,
but also whether they will adopt a positional-based bargaining approach or an interest-
based approach.

9• Types of negotiation

Distributive negotiation & Integrative negotiation

Distributive negotiation: - The most distributive feature is that it operates under a zero Sum
game. Each person in the negotiation defense ultimate point where the settlement will be
made .
Example:- the sale of clothes where the buyer and the seller do not know each other. There is
no relationship all that matters is the price and each side haggles for the best deal. One party
gain is loss to other.
10• Integrative negotiation

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11• Integrative negotiation:- parties co-operate to achieve maximize benefits by integrating

their interest both parties involve in negotiation process jointly look at the problem try to
search for alternatives and try to evaluate then and reach a mutually acceptable decision
or solution.

12• Role of counsel in negotiation

0• The role of Justice counsel in a negotiation will vary with the circumstances and the
mandate of the negotiating team. The extent to which Justice counsel will participate in
the negotiations will depend on a variety of factors, including whether or not legal issues
or issues of mixed fact and law are at stake as well as whether the client department
needs or simply wants Justice counsel to participate actively in the negotiation. For
example, counsel with Legal Services Units work with their clients and on their behalf
and help represent their views in a variety of situations,
1• When negotiating on behalf of the client, counsel must ensure that there is no divergence
between his or her negotiating stance and the mandate of the client. This is best done
through following the client's instructions and providing frequent updates to the client.
At other times, client departments may ask the Justice counsel to participate as a member
of the negotiating team

2• While the role of counsel will depend on the circumstances surrounding the negotiations,
she or he is always bound by the principles of professional ethics. For example when
acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and
must represent the client resolutely, honourably and within the limits of the law.
Although no two negotiations are identical, counsel must apply these principles of
professional responsibility in each situation.
13• Elements of negotiation
14• Negotiation involves three basic elements
15• Process :- this refers to how parties negotiate the context of the negotiation the tactics
used by the parties and the sequence and stages in which all of this play out.
16• Behavior :- this refers to relationship among this parties and the communication process
style adopted by the parties.
17• Substance :- the substance refers to what the artist negotiate oh the agenda the issues the
options and the agreement reached at the end.
18• Reasons for negotiation
19• To reach agreement
20• To make a point
21• To settle an argument
22• To compromise
23• To beat the opposition

10. Salem Advocate Bar Association Vs Union of India

SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU V. UNION OF INDIA

THE CASE THAT CHANGED THE COURSE OF CIVIL LITIGATION IN INDIA

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Facts
The legislature in 1999 and 2002 came up with the amendments to the Civil Procedure Code,
changing the nature of the statute.
These amendments provided for reforms which if uniformly
implemented could further the aim of justice as envisaged by our
Constitution makers. However, the practicability of the
amendments was questioned and a report for the same was
drafted. This report was challenged in the Supreme Court of India,
in the case of
Salem Advocates Bar Association
v.
Union of India.
The court affirmed the amendments and upheld the report. The
decision was appreciated by both academicians and scholars.
However, despite the judgment bringing a change in civil litigation
in India, it also suffered from certain flaws.

Provisions Involved:-
•

Section 26(2) of the Civil Procedure Code

•

Rule 15(4) and Order VI read with Rule 15 of the Civil

Procedure Code
•

Order XVIII, Rule 4 of the Civil Procedure Code

•

Order VIII, Rule 1 of the Civil Procedure Code

•

Order VI, Rule 17 of the Civil Procedure Code

•

Section 35 of the Civil Procedure code.

Section 148 of the Civil Procedure Code.

Section 80 of the civil procedure code.
Section 89 of the civil procedure code.

Brief facts

o A committee was formed to ensure that the 1999 and 2002

Amendments to the Civil Procedure Code are effectively
implemented and result in quicker dispense of justice.
o

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The report was submitted in three parts,

(a)

Consideration of various grievances

(b)

Draft Rules for ADR and mediation

(c)

Case management conferences

o

The validity of this report and the amendments was

challenged before the Court, in the matter.
Main Issue-
I.

Whether the 1999 and 2002 Amendments to the Civil

Procedure Code were constitutionally valid?
Arguments/ Pleadings
The case in depth discussed the report put forward. The report
was classified into three parts, each one of them was discussed in
great lengths.
Report One-
•

The Report discussed Section 26(2) and Rule 15(4) to

Order VI, wherein it was contended that filing of an
affidavit is illegal and unnecessary as there exists a
requirement of filing verification.
•

Another contention by the parties was that there is a

conflict between Order XVIII, Rule 5(a) and (b) and Order
XVIII, Rule 4. The conflict here, was that Order XVIII, Rule
5 provides for recording of evidence by the Court itself in
appealable cases. However, Rule 4 and 19 of the same
order enable the commissioner to record the statements in
any case, notwithstanding any situation. Therefore, it
appeared as if the latter provision overrode the former.

Bharati Law Review, Jan. – Mar., 2016 274

•

The report dealt with a very niche area in Court

proceedings i.e. service of summons through courier. It
was contended that the courier’s report about the

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defendant’s refusal to accept service is likely to lead to

serious malpractice

The parties also raised a contention with respect to the

costs in a suit. It was contended that unscrupulous parties
take advantage of the fact that either there is no awarding
of costs by the Court or nominal costs are awarded on the
unsuccessful parties. It was submitted that only costs
which are reasonably incurred by successful parties
should be granted.
•

Section 80 of the Civil Procedure Code, was also brought

into discussion wherein it was contended that prior notice
should be served to the government before filing of a suit
unless the matter is urgent and in need of an interim
order.

Section 148 of the Civil Procedure Code, was also

mentioned wherein the power of Court to enlarge time was
discussed. Reliance was placed on the case of
Mahanth
RamDas
v.
Ganga Das,
2
and it was submitted that
extension should be provided if the act could not be
provided within 30 days for reasons beyond the control of
the party but not for acts where the Limitation Act
provides for limits.

Report Two-
•

The main contention by the parties in this part of the

report was with respect to Section 89 of the Code i.e.
settlement of disputes outside Courts. The said Section
provides the discretion to the Court as to if it deems fit,
that certain elements can be settled between the parties,
then the Court shall formulate those terms and send them
for observation by the parties. However, there existed an
ambiguity with respect to the applicability of the
Arbitration and Conciliation Act
3
and the CPC

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simultaneously. Relying on the case of

P Anand Gajapathi
Raju
v.
P.V.G. Raju,
4
it was contended that if reference is
made to arbitration under Section 89, the Arbitration Act
will apply from the stage after reference and not before.

Further, it was also submitted that even if the arbitration

or any other proceeding is not successful, the Court would
not be barred to try the suit afterwards.
Report Three-
This report dealt with introduction of case flow management and
model rules. Model high court rules were provided for, which
contained various regulations provided by the Committee.
Analysis-
Salem Advocate Bar Association
v.
Union of India,
is a landmark
judgment of the Supreme Court of India which has been relied by
Courts and tribunals in over 700 judgments. The judgment is in
furtherance to the aim of speedy justice and effective functioning
of the judiciary. The judgments amounts to a good law and is
unlike the usual kind, as it does not feature opinions of every
judge as is witnessed in most of the judgments. The judgment has
its commendable features but also has certain shortcomings, all of
which are discussed in detail below.

The judgment is commendable for certain aspects which are

discussed below-
1.

No denial of justice on procedural grounds

The judgment allowed for acceptance of the proposal of adducing
evidence at a later stage in trials mostly when certain evidence not
known to the parties earlier emerges. Such an act of the court
furthers its aim of justice instead of denying it on procedural
grounds.
2.

Deterrence from misuse of Court proceedings

The judgment needs to be appreciated for its stance on serving of
summons. The court upheld the contention, that in cases of
summons being served through courier and not being delivered,
both the parties have to sign an undertaking that if such a claim

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by them is false then they will be charged for perjury and

contempt of court. This step, acts as a deterrent against
misleading the Court, as the parties are aware of the risk and
have willingly signed it. Further, the concept of awarding costs
reasonably keeping in mind the position of the parties and the
course of litigation, is commendable in itself as the idea that the losing parties in every
circumstance have to bear the cost, will be
negated. It will further lead to no frivolous claims being raised by
any party, as they will be aware that they will be penalized for the
same. The report has also taken into account various unforeseen
circumstances that may come up before a party, providing for
various extensions in form of time, so as to prevent denial of
justice merely on procedural rigmaroles.
3.

Case Flow Management

This judgment has also been revered for its idea of introduction of
case management flow in the Indian judiciary. Case flow
management despite being a nascent concept in India, is of
central focus in the administration of judiciary in countries like
the United States of America.
5
Case flow management primarily
includes number of processes, starting from filing of disposition to
the dismissal or trial.
6

However, the judges keeping in mind the diversity and difference

in the administration of courts in India provided for a modified
version of this feature. One such noteworthy modification was the
division of cases in three tracks i.e. track one, two and three. The
basis for such division seems to be the amount of time taken by
the judge generally to decide such cases, keeping in view the
subject matter in each case. Further, the judgment also provides
the judges with discretion to categorise the matter accordingly
and also change the track keeping in view the status of the case.
Such a modification provides for speedy disposal of cases and also
gives the litigant an assurance of his case status. Further, it
minimises the bureaucracy which the procedural rigmarole brings
in with it.
4.

Improvisation in Cause List of the Court

A common practice that prevails in the courts is of listing the
cases to be heard in the cause list of the court. However, not even
half of them are heard by the court on the allotted date. This
problem is not just restricted to India as a similar instances
occurred in the Court of Hong Kong, where more than a 1000
cases were listed to be heard in a span of 3 days.
In order to tackle such a problem, the Court has accepted the

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proposal that listing of cases should be based on reasonable

estimate time i.e. the number of cases that can be reasonably
heard in a day. Further, another proposal put forward was that
every cause list should be first listed before a senior officer of the
court, who shall review it before it is released.

11. Gurunanak Foundation Vs Ratan Singh and Sons 1981 AIR 275

In this particular case dispute had arisen between the parties with regard to a building
contract dated 4th April 1972. An application for the appointment of an arbitrator in terms of
Clause 47 of the arbitration agreement was filed before the Delhi High Court. The Delhi High
Court by an order dated August, 14th 1974 appointed II respondent Sri M. C Nanda, retired
chief engineer, as the sole arbitrator.
The appellant moved once again to the court for the removal of the arbitrator and
appointment of another person in his place. The petition was dismissed, but by an appeal on
special leave to the supreme court made by an order that was with the consent of the parties,
III respondent Shri U. P Mallick, retired chief engineer, was appointed as the sole arbitrator.
III respondent acting on the advice tendered by the officer of the supreme court filed the
award in the Delhi High Court and inform the parties. The first respondent moved to the
supreme court seeking a declaration that the award had to be filed in the Supreme court and
for the direction that the award had to be collected from the Delhi High Court and filed
before the Supreme court. The appellant filed the counter affidavit and contested that Delhi
High Court is the court where the award had to be filed.

This being the facts of the case, what was more important in this case was the observation
made by the Supreme court with regard to the functioning of courts in general in India. The
Supreme court made an observation that the common man has lost faith in the Judiciary for
the following reasons that :
1)It is a very long and tedious process.
2)Expensive in nature
3) Difficult procedure to be followed
4) There are a lot of backlog of cases pending
5) The difficulty in understanding the court procedure because of low legal literacy rate
6) Time consuming process and have to wait for a very long time

It is because of these reasons that the Supreme court made a suggestion that it would be
better for the parties to refer the matter to Alternative Dispute Resolution so that the entire
process becomes easy.
It was in this case that the seeds of ADR or another word Alternative Dispute Resolution was
sown. In today's time at present we find the litigants to be happy to approach either
mediation, negotiation, arbitration, conciliation or Lok Adalat etc., for speedy disposal of
cases.

Thus the Supreme court directed the first respondent to approach the registrar of Delhi High
Court to collect the award along with the record of proceedings.

12. Ranji Dayawala and Sons Pvt Ltd Vs Invest Import 1981 AIR 2085

Alternative Dispute Resolution System

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Case Name
RAMJI DAYAWALA & SONS (P) LTD(petitioner)
Vs.
INVEST IMPORT(Respondent)
Facts of the case
The appellant (plaintiff), a private limited company, a
labour contractor, entered into a sub-contract with the
respondent (defendant), a Yugoslavia based company which in
turn had entered into a contract with the State Electricity
Board for setting up a power station. The sub-contract dated
July 10, 1961 between the appellant and the respondent
incorporated an agreement to refer all the disputes arising
out of the sub-contract to arbitration by the International
Chamber of Commerce in Paris with the application of
Yugoslav materials and economical law. In carrying out the
work undertaken under the sub-contract,the appellant claimed
that it carried out some extra work for which it was
entitled to recover extra amounts from the respondent, and
as the claims were not satisfied or met with by the
respondent, the appellant filed a civil suit on the original
side of the High Court for recovery of the amount.

Judgement
The Single Judge granted the petition of the respondent and stayed further
proceedings in the suit filed by the appellant, and vacated the ad interim
injunction granted in favour of the appellant.
The appellant preferred two appeals. One against the order of the single Judge
granting stay of the suit of the appellant and the other against the order vacating
the ad interim injunction. A Division Benchof the High Court dismissed both the
appeals by a common judgment holding that there was a valid subsisting
arbitration agreement between the parties and that it was binding on both. It also
held that the claims made by the appellant in the suit arose out of the sub-contract
which included the arbitration agreement and, therefore, the appellant must be
bound by the bargain undertaken by him. It negatived the appellant's contention

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that on the facts and circumstances of the case discretionary relief of

grant of stay of suit would cause irreparable hardship and deny justice.
In appeal to this Court against the order of stay ofthe suit granted by the High
Court, it was contended on behalf of the appellant:
(1) there was no concluded arbitration agreement between the parties to refer
the disputes arising out of the sub-contract dated July 10, 1961 to arbitration
and, therefore, the suit cannot be stayed;
(2) even if the Court came to the conclusion that there was such a subsisting
arbitration agreement between the parties, prayer for stay having been made
under section 51 of the
Code ofn Civil Procedure and/or undernsectionn34 of the Arbitration Act, 1940,
read with Section 151 CPC, the Court should not enforce it in its discretionary
jurisdiction as it would result in miscarriage of justice;
(3) in view ofthe provisions contained in the Arbitration (Protocol and
Convention) Act, 1937 the Court could not invoke its inherent jurisdiction under
section 151 CPC and the Special Act would not assist the respondent as the case
was not covered by its provisions. It was also contended that the undermentioned
circumstances when properly evaluated would unmistakably indicate that the
instant case is not a fit case in which the Court should decline to adjudicate upon
the dispute brought to it by granting stay in favour of the respondent

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