BARRIERS TO RESOLUTION OF DISPUTE

1) Strategic Barriers:
Negotiation is compared to making a pie and dividing the pie. Conflict resolution affects the size
of the pie. And who gets what size? Litigation can shrink the pie – that is costs, time,
relationship, priorities, needs etc. Negotiation can create values and enlarge the pie. On the
other side, distributive aspects can create deadlocks. For example, A has 10 apples and B has 10
oranges. [Assume that no other apples and oranges are available in the market. A hates apples
but loves oranges. B loves both equally. If A tells B about it and asks oranges for exchange, B will
do strategic bargaining and would say he also likes oranges, though it is not true. B will offer one
orange for say 5 apples. But if A tells his interest in oranges to a Mediator in a private caucus
and asks him not to disclose it to B, favourable solution can be reached faster and beneficial to
both. Thus a mediator helps in overcoming strategic barriers by inducing the parties to reveal
information about their underlying interests, needs, priorities and expectations.

2) Principal and Agent Barriers:

Incentives for an agent negotiating for the principal may induce behaviour that fail to serve the
interests of the principal. A Mediator involves the parties directly and tackles this barrier. A
mediator helps in overcoming Principal-Agent barriers by bringing real decision maker Principal]
to the table and help him understanding his own interests.

3) Cognitive or Perceptive Barriers:

Each party has its own perception or feelings over an issue. Parties fight [gamble a litigation] to
avoid loss. They settle to receive a gain. For example, there are two gates in this hall, and the
organizers declare that those who exit from North Gate will get Rs. 1,000/- each and out of
these who exit from South Gate randomly selected few, say two, will get Rs. 5,000/- each.
Which gate will most of the people select? Usually people do not gamble for a gain. This is
called Risk Aversion. Now let us change the game. Organizers announce that those who go out
of the North Exit will each pay Rs. 1,000/- and out of those who exit out of the southern Gate,
randomly selected few, say two, will pay Rs. 5,000/- each. Which gate most people will select
for exiting? - Usually people gamble to avoid loss. - Sure loss [No] - Possibility to avoid loss [Yes]
Mediator takes parties from loss aversion to risk aversion. Thus a mediator helps in overcoming
cognitive barriers by emphasizing potential gains and de-emphasizing or dampening the losses.

4) Psychological Barriers (Reactionary Devaluation):

“If only we could settle for Rs. 10 lakhs, I would put an end to it”. Next day the other side offers Rs.
10 lakh. “No, no! They must know something we do not know”. Or “If it is a good settlement for
them, it cannot be good settlement for us.” Concessions offered are rated lower than concessions
that are withheld. A mediator helps in overcoming psychological barriers or reactive devaluation by
owning the source of the proposal.

Limitations of Alternative Dispute Resolution:

Numerous disadvantages are blocking the approach of winning dispute resolution and often
distressing both parties attitude to reconcile for a comprised decision some of the disadvantages
are:
(a) Uneven Negotiating Command

In convinced situations, one side is capable to have power over the other. For that reason, a
noteworthy discrepancy of power exists. E.g.: Employment and annulment cases, making the courts
an improved alternative for a weak party.

(b) Short of Legal Expertise:

Where an argument involves complicated legal points a mediator or arbitrator is doubtful to have
the same legal proficiency and knowledge as a judge. The dispute can be of a range of situations
such as viable conflicts, social conflicts, legal conflicts, and many others which necessitate dedicated
mediators. Most of the cases, the mediator does not acquire a judge's perspective.

(c) No Organization of Specific mock-up :

It is not easy to envisage the conclusion of a dispute determined through ADR as there is no method
of precedent. Therefore, it is easier to get evidence from the other party in a lawsuit. Short of
system fallout in the restricted prediction of outcomes.

(d) Enforceability:

Usually, ADR is not lawfully compulsory making any award complicated to implement Legal
arbitration has some kind of course of action for internal appeals, which enables the assessment as
an obligatory and only issue to the assessment of Court.
(e) Required Court Action:

The arbitrator’s verdict can necessitate a court action if one of the parties declines to acknowledge
the arbitrator's conclusion. This would not only generate pandemonium but also an obligatory
review by the court. Thus, ADR occasionally elevates the question of biasness of the arbitrator’s
pronouncement. Also, there is a very flawed panorama for judicial assessment of an arbitrator’s
decision.

(f) Limits Discovery Process:

ADR normally happening without the fortification obtainable parties in litigation, such as those rules
administrated during innovation. Courts commonly allocate an enormous arrangement of leeway in
the sighting procedure, which is not vigorous in substitute dispute resolution.

Conclusion

India is touching the ray of light of judicial equal opportunity. The ADR system acts as an underneath
agent to step up the ladder of justice for all. The ADR association needs to be approved onward with
superior alacrity. This will significantly condense the load on the courts separately from providing
instantaneous justice at the door-step, without the sizeable cost being caught up. If they are
productively given consequence then it will accomplish the goal of interpretation social justice to the
parties to the dispute.

SANA PARVEEN

202457

SECTION D