Alternative Dispute Resolution


Legal meanings
 Adjudication-

to make an official decisions about who is right in a disagreement between two persons or groups by court  Arbitration- the official process of settling an argument or a disagreement by some body who is not involved  Efficacy – the ability of some thing producing the results that was wanted or intended

Legal meanings
 Dispute

– an argument or disagreement between two people  Litigation – the process of making or defending a claim in a court of law  Trial – a formal examination of evidence in a court of law by a judge and often a jury, to decide if somebody accused of a crime is guilty or not. Ex murder trial

 Is

defined as a collective description of methods of resolving dispute otherwise than through the normal trial process  ADR’s are usually understood as being references to some form of mediation by a third party


Arbitration  2. Conciliation  3. Mediation  4. Negotiation
 1.

1. 2.


It is faster and less expensive They are more co-operative and less competitive than adverse court based methods like litigation The relationship between the parties ultimately improve, rather than worsen

1. 2. 3.

Second class justice Encourages compromise Settlements are private and not public

 Under

mediation, a mediator facilitated the parties to reach an out come that satisfies them rather than one aimed at proving some one right or wrong  Through mediation parties can be in a position to work together to reach a solution , which can be amicable to both of them


mediator is expected to be an unbiased and impartial person, working with out slang and prejudice  Every one in mediation gets satisfied with the out come because of its win-win situation  Mediation can be in the matters of family disputes, business disagreements, employment and environmental issues

1. 2. 3. 4.

Tends to be less formal and quicker than going to the courts There is transparency in decision making process The award of arbitration may not be final too Disputes involving the question of morality, public policy, status and religious rights are beyond the arbitration proceedings


2. 3. 4. 5. 6.

All disputes are referable to arbitration, however the following, which calls for adjudication. Matrimonial, conjugal rights Industrial disputes Testamentary matters under succession act Insolvency , dissolution, winding up under companies act Criminal proceedings

1. 2. 3. 4. 5. 6. 7. 8. 9.

Domestic arbitration International arbitration Ad Hoc arbitration Institutional arbitration Statutory arbitration Expedited arbitration Hybrid arbitration Flip-flop arbitration Court annexed arbitration

 The

parties to a contract may either enter into a separate arbitration agreement or may agree upon an arbitration clause in the main contract/ agreement it self . Not necessarily signed by both the parties

 Means

bringing the opposing parties or individuals into an undisputed territory of harmony. The conciliator may have an advisory role on the content of the dispute or the out come of its resolution , but not a determinative role

 Conciliation

proceedings shall have to commence before any steps are taken for the appointment of arbitrators. After the appointment of arbitrators there is no question of appointing conciliators

Elements of conciliation process
1. 2. 3.

Identification of the causes of disputes Creation of options to resolve those disputes Encouragement to visualize options that offer solutions

Arbitration vis-à-vis conciliation

Unlike an arbitrator, conciliator does not give a decision, but his main function is to induce the parties themselves to come to settlement. An arbitrator is expected to give a hearing to the parties but a conciliator does not engage in any formal hearing though he may informally consult the parties separately or together . The arbitrator is vested with the power of final decision and in the a sense it is his contribution that becomes binding.

Mediation vis-à-vis conciliation
 Mediation

is a purely facilitative process, where as conciliation may comprise a mixture of different process including facilitation and advice

Characteristics of conciliation
1. 2. 3. 4.

Need not be contractual or any prior agreements between parties Two willing parties can at any stage go for concentrators It can be resorted even after litigation Most useful for the cases have been pending in courts for years together

 It

is a sort of compromise, contemplating direct interaction between parties. In this process one party approaches the other party in dispute with an offer of a negotiated settlement , which is of the nature of an nonbinding procedure

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