Lecture 5 - Common Methods of The ADR and Differences

Topic 1 - Alternative models of Dispute Settlement
Lecture 5
Common methods of the ADR and their brief introduction, role,
characteristics and difference between each other vis-à-vis
principles for resolving disputes
Mr. Abhishek Kaushik

Co-Faculty
The ADR processes mentioned in the present lecture are not exhaustive
but only summarizes the relevant one. The students are to examine the
text book and reading material for better understanding.
A. Negotiation
• Communication for the purpose of persuasion
• Age old mode of dispute resolution
• Not conducted with the assistance of a third party
• Based on dialogue and bargain
• Requires bilateral communication, mutual accommodation, good faith and trust
• Requires Objectivity and willingness
• Those who work in negotiation professionally are called negotiators
• Professional negotiators are often specialized
B. Expert Determination
• Adjudicatory form of ADR (unless agreed otherwise)

• Expert of the industry is chosen as neutral third party.
• Such Expert adjudicates the dispute on merits
• Generally, commercial contracts have clauses for option of Expert
determination in case disputes were to arise
C. Mediation
• No comprehensive legislation
• Section 89 of the CPC recognizes mediation as ADR
• Facilitated negotiation
• Third party assist channelizing towards an acceptable resolution
• The parties themselves determine the conditions settlements
• Structured process where a Mediator uses appropriate techniques and/or skills to
open and/or improve dialogue between disputants, aiming to help the parties reach
an agreement (with concrete effects)
• Can be Pre-litigation and also after it has begun
• Involves different stages viz. introduction, joint session, caucus, agreement, etc
D. Conciliation
• Strikingly similar to mediation.
• Distinction – the role of the neutral party.
• Conciliator - enables and steers the disputant parties.
• Sec 89 CPC-Any party to litigation can request for conciliation.
• One conciliator is preferred but two or three are also allowed. In case of multiple
conciliators, all must act jointly.
• If a party rejects an offer to conciliate, there can be no conciliation.
• Governed by the provisions of Part III of the Arbitration and Conciliation Act, 1996.
• Conciliation settlement agreement is deemed to be an arbitral award on agreed terms
and is per se executable as a decree of the civil court.
E. Lok Adalat:
• Constituted under National Legal Services Authority Act, 1987
• "People's court”
• Based on Gandhian principles.
• Usually presided by retired judge, social activists, or members of legal profession.
• No authority in non-compoundable offences.
• No court fee and no rigid procedural requirement
• Parties can directly interact with the judge, which is not possible in regular courts.
• Pending litigations are transferred (voluntary and non voluntary)
• If no compromise - matter goes back to the court.
• If compromise - binding and enforced as a decree.
• An important aspect is that the award is final and cannot be appealed, not even
under Article 226 because it is a judgement by consent.
• All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok
Adalat is deemed to be a Civil Court.
F. Permanent Lok Adalats
• Permanent pre litigation ADR.
• For disputes pertaining to public utility services.
• Any party to a dispute may, at the pre litigation stage, make an application for the
settlement of the dispute.
• If matter not settled mutually – the dispute is decided on merits.
• Award must be passed, either on the basis of a mutual settlement or on merits.
• Award is deemed to be a decree of a civil court and is final and binding.
G. Arbitration
• Covered under Arbitration and Conciliation Act, 1996 Act

• Adjudication by third neutral third party i.e. the arbitrator (or the arbitral
tribunal)
• Decision on merits of the dispute- final and binding.
• Unlike litigation, arbitration is consensual and the existence of an arbitration
agreement is a condition precedent for the initiation of the arbitral process.
• Once the parties enter the arbitral process they cannot unilaterally opt out of
the same and must suffer a binding decision on merits.
H. Mini Trial
• A tribunal comprising of the senior officers of the disputant parties and one or
more third party neutrals
• Material placed for consideration and arguments are advanced
• Decision by the tribunal either forms terms of settlement or acts as basis of
negotiation
• Sometimes a neutral may act as mediator as well
I. Med-Arb
• Hybrid ADR process

• Mediation and arbitration
• Demerit- A mediator may get influenced if he needs to adjudicate
• Merit- The Arbitrator knows each aspect clearly
READING MATERIAL
1. Para 26 to 45 of the aforementioned decision

i.e. Afcons Infrastructure Ltd v Cherian Varkey
Construction Co (P) (2010)8 SCC 24 from SCC
ONLINE
2. page 16 to 26 and 27 to 38 of the book by Dr

Anupam Kurnawal, Central publication
Acts and provisions mentioned in the lecture

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Topic 1 - Alternative models of Dispute Settlement

Mr. Abhishek Kaushik

• Adjudicatory form of ADR (unless agreed otherwise)

• Covered under Arbitration and Conciliation Act, 1996 Act

• Hybrid ADR process

1. Para 26 to 45 of the aforementioned decision

2. page 16 to 26 and 27 to 38 of the book by Dr

Acts and provisions mentioned in the lecture

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