ALIGARH MUSLIM UNIVERSITY

IST GCT -ASSIGNMENT

OF

ALTERNATIVE DISPUTE REDRESSAL

on

An attempt to achieve constitutionaL

goal of complete justice.

SUBMITTED BY ; SHAH FAISAL

ROLL NO ; 16 BALLB 106
EN –ROLL ; GI -1851

SUBMITTED TO:

DR. SYED ALI NAWAZ ZAIDI

 INDEX

 Introduction

 Constitutional foundation

 Basic principle of ADR

 Problem in litigation

 Merits of ADR

 Disputes resolution

 Negotiation

 Mediation
Introduction-

            The Alternative Dispute Resolution mechanisms evolved to provide complete justice to

the persons in conflicts and legal disputes. It is a voluntary process gaining legal recognition over
a period of time. The ADR is at present a movement all over the world to find an answer to never
ending litigation and never reaching solutions, which is a global phenomenon. The society, state
and the party to the dispute are equally under an obligation to resolve the dispute before it
disturbs the peace in the family, business community, society or ultimately the humanity as a
whole. Because in a civilized society the rule of law should prevail and principles of natural
justice should apply and complete justice should result.
 
 
Constitutional Foundation
These principles do have constitutional foundation. The Article 21s and 14 of
Constitution of India embody these principles of natural justice and rule of law. These Articles
incorporate substantial and procedural due process. Fairness when accused is deprived of liberty
Article 211.  Absence of discriminatory class legislation article 142.

 
Two basic principle of ADR 
The sole basis of ADR is founded in two basic principles. They are:
1. Nemo judex in causa sua(no one should be made a judge in his own cause) (rule against bias)
and

2. audi alterum partem (hear the other side)

 
The enemy of justice is the Bias, which is of four kinds: 1-pecuniary interest or
2.personal interest,a) by blood relation or b) marital relations, c) friendship, 3. Hostility
4. Official Bias, 5. Subject Matter Bias
 
Rule of fair hearing
No one can be deprived of his vested right or be punished without having been given
opportunity to offer an explanation. Every person has a Right to notice,  a Right to present cases
and evidence and a right to rebut adverse evidence, no evidence should be taken on the back of
other party.
 
Audi alteram partem
 
The maxim in its wider import means that the Report of the enquiry to be shown to the
other party, reasoned decisions or speaking orders should be given and very importantly, there

1
Right to life and personal liberty
2
Right to equality
should be institutional decisions, OR ONE WHO DECIDES MUST HEAR. It is a rule against
dictation.
The Notice must be adequate. The Art 22(5) makes every person entitled to know
reasons, and to represent, which is again supported by another Art 311(2) which protects the
rights of employees in government by providing procedural safeguards as an exception to
doctrine of pleasure indicating the powers of the President or Executive.
 
Procedural due process

These two principles are embodied in all procedural laws like Cr.P.C. and Civil
Procedure Code. The Notice, summons, exchange of information in the shape of pleadings,
discovery proceedings, fixing issues, examination of witnesses, arguments and judgments are the
explanations of the expanding need for giving notice to the parties to disputes. The Procedural
due process is must in resolving disputes, whether in litigative or alternative methods. 
 
Problems in Litigation

Then these procedural safeguards and natural principles of justice when enforced by the
state resulted in severe problems in resolving the litigation. They are: 1. Inordinate delay, 2.
Escalating costs, 3. Mounting arrears, 4. Pervasive corruption, 5. Inequities in system.
 

Merits of ADR, mediation

 
   Not just another mechanical process of Dispute Resolution
   Not just an activist legal aid philosophy
   It will promote rule of law in society
 Promote people’s participation
   Promote self-reliant development
   Create legal awareness and respect for rights of others
 

Dispute Resolution
 
 The Dispute Resolution is of two kinds - Litigative and non-litigative
   Non-litigative is the future dispute resolution mechanism.
   It involves collection of strategies outside usual processes of litigation
 Because the Perils of litigation are: litigation is expensive, open, uncertain as to time and
decision, denies parties control in resolving
   And finally the lawsuit is dreaded beyond sickness & death
 

Creative Dispute Resolution

 It can be formal or informal, whatever you can do to stay out of court
   like open door policy or mass tort claim settlement protocol
   arbitration, negotiation and mediation grown and blended into dozens of variations
 early neutral evaluation, summary jury trial, minitrial, med-arb, court annexed processes
 

such as judicially hosted settlement, judicial arbitration, temporary judging

Negotiation
•         It is a communication process
•         voluntary
•         non-binding
•         control over procedure and outcome
•         wide range of possible solutions, maximise joint gains
•         quick, inexpensive, private, less complicated
 
Negotiation is possible..
•         where parties must cooperate to meet goals
•         parties can influence each other to act in ways that provide mutual benefit or avoidance of
harm
•         parties are affected by time constraints
•         parties can identify and agree on issues
•         interests not entirely incompatible
•         external constraints (reputa, cost, risk of adversarial decision) encourage ADR
 
The Negotiation works when
a)     The parties are willing to cooperate and communicate to meet their goals,
b)     The parties can mutually benefit or avoid harm by influencing each other
c)      The parties know that they have time constraints
d)     The parties realize that any other procedure will not produce desired outcome
e)     the parties can identify on what issues require to be sorted out
f)        the parties also agree that their interests are not incompatible to each other
g)     the parties knew that it is preferable to participate in private cooperative process
rather than go through severe external constraints like loss of reputation, excessive
cost, and possibility of adversarial decision
 

 
The Needs of Good Negotiator:

A good negotiator should know his subject intimately, should become expert, manifest a

sense of personal integrity, should know how to exploit power. The negotiation is combination of

all skills, and continuous practice of those skills3.

 

Do’s
The ‘do’s for the negotiator are as follows:

 What do you want to achieve?

 Check your assumptions- are they wrong?

 Stick to facts, research and collect data. Brainstorm (generating lots of ideas without

evaluating them) may generate data.

 Define the issues, Decide on your position

 Determine your position, opponents needs and determine your strategy.

How to make concessions

Though the negotiation means series of concessions and mutual respect of interests there

is a method for making those concessions. They are:

a)     Start out tough, and weaken systematically

b)     Make smaller concessions than opponent

c)      Avoid making frequent concessions unless it is absolutely necessary

d)     Curb the instinct to be excessively friendly

e)     Retain sufficient ground for a final commitment.

3
https://adrr.com/adr4/ADR-Constitution.htmaccesed at 18/11/20
Mediation

•         Negotiation facilitated by a third party

•         private, voluntary, informal and nonbinding cost effective
•         various forms of mediation
•         provide environment for constructive communication
•         in early colonial America, M was dominant DR, Child custody and visitation are
mediated even now in many states
 
What is mediation?
The mediation is a process, a facilitation, an empowerment. The core value in
mediation is that the process provides the parties with an opportunity to negotiate,
converse and explore options aided by a neutral third party, the mediator, to
exhaustively determine if a settlement is possible. It is a process of empowerment of
the parties to control their destiny in their dispute.
Mediation involves a determination of interests – the interests of the parties. A
concept frequently not found in the litigator’s lexicon, interests are the needs, wants,
and desires that are of importance to the parties – the answer to the question “what is
this dispute really all about for you?” To get there, mediation provides a forum for
principled negotiations. These negotiations may at times become frustrating and
troubling, but with the mediator’s help the parties keep moving forward. Principled
negotiations stimulate exploration of settlement alternatives and an opportunity to
evaluate those alternatives, weighing them against the likely outcome of going to trial
and viewing proposals through the lenses of reality. Mediation - compared to
litigation, trial and appeal – is a veritable bullet train to certainty and finality. If the
dispute settles at the mediation, it settles on a basis acceptable to the parties; the
specter of trial is removed; and, the threat of being tied up on appeal is eliminated.

Strategies and Methods:

1. Seating the participants: in proximate distance with the mediator.

2. Opening Statement of Mediator
3. Introduction of Participants
 4. Commend them for willing to cooperate
5. Explain mediation process and goals
6. Establish ground rules for confidentiality -caucusing
7. Manner for presenting arguments,
8. Finally obtain joint agreement to begin.
9. Collect opening statement of parties
10. Organize composite list of issues, written submissions, opening statements are important.

 
Role of mediator: Mediation is accepted as the most viable process of resolving a
conflict between two parties before any legal or physical conflict is opted for settling the score
for any kind of problem. The major difficulty is getting the parties to agree to prefer the
mediation as the process for resolving their problems. As this is known as assisted negotiation or
structured negotiation, it is basically a necessary assistance to the negotiators who are the parties
themselves. From the voluntary submission to the drafting of settlement agreement, the parties
have a major role in  mediation rather than the role of mediator himself. The mediator facilitates,
renders assistance, gives advise if necessary, presents options available, analyses the strategies,
suggests strategies to be adopted, hammers out the issues to be settled, drafts the agreement
sentences so that the parties do not find any difficulty in agreeing with them and finally
authorizes the settlement. The mediator does not settle. He will not give an award like an
arbitrator. He also does not prefer to adjudicate the issues. He will also not prescribe the
procedure. He does not examine the witnesses and insist on the production of evidence etc.

Convening for Mediation: The mediator may have to plan very carefully the best
strategy to bring the parties to the table of discussion. If one of the parties not ready to send
invitation to the other, it is for the provider to initiate an invitation to the parties. If the parties are
rigid about going to the opponent, it is for the provider to find a suitable seat of negotiation in his
presence or absence, which does not create problems for either of the parties. Whether the initial
meeting should be between himself and one of the parties separately or a joint meeting with both
the parties? It is the question to be decided depending upon the circumstances and attitudes of the
parties.

Flexible Process: There is no rigid frame work of rules for mediation. It is a very flexible
process. A person who is acceptable to both the parties would serve as mediator. He is perceived
as neutral capable of understanding the issues of their dispute and knowledgeable enough about
the mediation processes along with sense of time and attitude to resolve the problems. 
It is important to decide on the cost of the mediation at the beginning itself. The Mediator
should indicate the possible cost and obtain the consent of parties to share the cost equally. If not
the cost of mediation would become an issue of  conflict to be mediated between the mediator
and the party.
Arbitration & Conciliation Act:
          
  Now, the proceedings relating to CONCILIATION are dealt under sections 61 to 81 of
Arbitration and Conciliation Act, 1996. This Act is aimed at permitting Mediation conciliation or
other procedures during the arbitral proceedings to encourage settlement of disputes. This Act
also provides that a settlement agreement reached by the parties as a result of conciliation
proceedings will have the same status and effect as an arbitral award on agreed terms on the
substance of the dispute rendered by an arbitral tribunal.
 
To which disputes:
            Section 61 says that conciliation shall apply to disputes arising out of legal relationship,
whether contractual or not and to all proceedings relating thereto.  Unless any law excludes,
these proceeding will apply to every such dispute while being conciliated. The parties may agree
to follow any procedure for conciliation other than what is prescribed under the 1996 Act. If any
law certain disputes are excluded from submission to conciliation, the third part will not apply.