Consentia on Multidisciplinary Research

ADDITIONAL DISPUTE RESOLUTION: AN ASPIRING ALTERNATIVE

DEFINITION

“Alternative dispute resolution” (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia[1]) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.

 OVERVIEW

Alternative Dispute Resolutions (“ADR”) are alternative methods that; an independent, objective and impartial third party provides the parties of the legal dispute to reach an agreement about the dispute by bringing them together and communicating with each other. ADR have come up as an option for providing cost and time efficiency as compared to the judicial proceedings before state courts and for averting the disadvantages of the latter. ADR are optional dispute resolution proceedings and methods as compared to proceedings before State Courts. ADR aims simpler and faster resolution of the disputes without impairing the judicial sovereignty of the state. The main difference between proceedings before State Courts and the ADR is that ADR as a rule is not binding for the parties so concerned unless otherwise decided by the same. The procedures in ADR are not limited in number and type; each country may choose a method of ADR or create ADR method by taking their social and economic circumstances and facts into consideration. Arbitration, Conciliation, Mediation, Mooting, Early Neutral Evaluation (ENE), Fact Finding Method and Med- Arb are widely used dispute resolution methods. Settlement conferences may be either mandatory or voluntary. In all types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a “settlement officer” to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial.

BRIEF HISTORY

Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts. For example, the Civil Rights Act of 1964 outlawed “discrimination in employment or public accommodations on the basis of race, sex, or national origin.” Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors. Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.  Some of the senior judiciary in certain jurisdictions are strongly in favour of the use of mediation to settle disputes.

BASIC ADR PROCESSES

Today, ADR is used to settle a variety of disputes in American institutions, including the family, churches, schools, the workplace, government agencies, and the courts. ADR is not widely used in cases of intractable conflict until those conflicts seem to become ready for resolution. This sometimes happens when the conflict reaches a hurting stalemate – a situation where it becomes clear that neither side can win; yet, they are being substantially hurt by continuing the struggle. Ripeness is crucial for ADR processes to work effectively, and ADR has been used in appropriate cases. International mediation has been used to resolve difficult international and ethnic conflicts, with varying degrees of success. Consensus building has become a popular process for dealing with public-policy disputes, especially intractable environmental disputes.

GENERAL ADVANTAGES AND DISADVANTAGES OF ADR

For many reasons, advocates of ADR believe that it is superior to lawsuits and litigation. First, ADR is generally faster and less expensive. It is based on more direct participation by the disputants, rather than being run by lawyers, judges, and the state. In most ADR processes, the disputants outline the process they will use and define the substance of the agreements. This type of involvement is believed to increase people’s satisfaction with the outcomes, as well as their compliance with the agreements reached. Most ADR processes are based on an integrative approach. They are more cooperative and less competitive than adversarial court-based methods like litigation. For this reason, ADR tends to generate less escalation and ill will between parties. In fact, participating in an ADR process will often ultimately improve, rather than worsen, the relationship between the disputing parties. This is a key advantage in situations where the parties must continue to interact after settlement is reached, such as in child custody or labor management cases. ADR does have many potential advantages, but there are also some possible drawbacks and criticisms of pursuing alternatives to court-based adjudication. Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides “second-class justice.” It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly “win” a case because of the cooperative nature of ADR. Similarly, critics believe that ADR encourages compromise. Compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputants. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny. This could be cause for concern in some cases. Like, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market.

DIFFERENT TYPRES OF ALTERNATIVE DISPUTE RESOLUTION

While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the pre-eminent mode of dispute resolution. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.

Following are the different types of ADR :

  1. Arbitration:

Arbitration, a widely used form of ADR, is a kind of dispute resolution method that the disputes arising between the parties are resolved by the arbitrators appointed by them instead of state’s legal bodies. Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes. In 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was drafted to aid in the enforcement in domestic courts of awards granted in foreign countries. As of August 2007, there were 142 countries participating in the convention. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[2] In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either “binding” or “nonbinding.”

Cases for Which Arbitration May Be Appropriate

Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate

If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator’s award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties

  1. Mediation:

Mediation, a wide applicable form of ADR, is a method in which the mediator provides better communication between the parties of the dispute. The mediator does not guide or direct the parties, or gives an advice or gives a binding decision like an arbitrator or a judge. The mediator only contents with asking directive questions to the parties’ better communication with each other. In case an agreement is not reached at the end of mediation process, the information and documents obtained from the deliberations cannot be used as evidence in a possible, future lawsuit. Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide gamut of case-types ranging from juvenile felonies to federal government negotiations. Mediation has also become a significant method for resolving disputes between investors and their stock brokers. In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.

Cases for Which Mediation May Be Appropriate

Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner

 Cases for Which Mediation May Not Be Appropriate

Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

  1. Conciliation:

Conciliation is a form of ADR in which an objective third party provides different solution offers which will take form according to the circumstances of the dispute and aims to provide the parties to reach an agreement as per one of these offers after negotiations and deliberations. In conciliation, the resolution of the dispute by the parties themselves is the essential point. In opposition to the mediation method, conciliation is based on right and rightfulness and the history of the dispute is taken into consideration. At the same time, conciliation method is less flexible than mediation method and is mostly based on provisions of law. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process allows parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties’ legal positions, but also their; commercial, financial and / or personal interests.

 

Main benefits of Conciliation:

  • Conciliation ensures party autonomy – The parties can choose the timing, language, place, structure and content of the conciliation proceedings.
  • Conciliation ensures the expertise of the decision maker – The parties are free to select their conciliator. A conciliator does not have to have a specific professional background. The parties may base their selection on criteria such as; experience, professional and / or personal expertise, availability, language and cultural skills. A conciliator should be impartial and independent.
  • Conciliation is time and cost efficient – Due to the informal and flexible nature of conciliation proceedings, they can be conducted in a time and cost-efficient manner.
  • Conciliation ensures confidentiality – The parties usually agree on confidentiality. Thus, disputes can be settled discretely and business secrets will remain confidential.
  • Conciliation offers a more flexible alternative to arbitration as well as litigation, for resolution of disputes in the widest range of contractual relationships, as it is an entirely voluntary process.
  • In conciliation proceedings, the parties are free to withdraw from conciliation, without prejudice to their legal position, at any stage of the proceedings.
  • The matter is settled at the threshold of the dispute, avoiding protracted litigation efforts at the courts. As conciliation can be scheduled at an early stage in the dispute, a settlement can be reached much more quickly than in litigation.
  • Parties are directly engaged in negotiating a settlement.
  • The conciliator, as a neutral third party, can view the dispute objectively and can assist the parties in exploring alternatives which they might not have considered on their own.
  • Creative solutions to special needs of the parties can become a part of the settlement.
  • Confidentiality is maintained throughout the proceedings with respect to information exchanged, the offers and counter offers of solutions made and the settlement arrived at. Information disclosed at a conciliation meeting may not be divulged as evidence in any arbitral, judicial or other proceeding.
  1. Negotiation:

Negotiation is a type of ADR which is generally referred to initially in case of a dispute and it covers all methods of ADR. This type of ADR aims for the parties to settle the dispute between the same by negotiating and deliberating with each other with the attendance of their attorneys if needed, without intervention of any third party. Negotiation is a kind of ADR method that each party tries to obtain a benefit for themselves at the end of the process by persuading the other party to act in the way the former desires.

Negotiation tactics

Tactics are always an important part of the negotiating process. But tactics don’t often jump up and down shouting “Here I am, look at me.” If they did, the other side would see right through them and they would not be effective. More often than not they are subtle, difficult to identify and used for multiple purposes. Tactics are more frequently used in distributive negotiations and when the focus in on taking as much value off the table as possible. Many negotiation tactics exist.

Below are a few commonly used tactics:

  • Auction: The bidding process is designed to create competition.[3] When multiple parties want the same thing, pit them against one another. When people know that they may lose out on something, they will want it even more. Not only do they want the thing that is being bid on, they also want to win, just to win. Taking advantage of someone’s competitive nature can drive up the price.
  • Brinksmanship: Brinkmanship is a type of “hard nut” approach to bargaining in which one party pushes the other party to the “brink” or edge of what that party is willing to accommodate. One party aggressively pursues a set of terms to the point at which the other negotiating party must either agree or walk away. Successful brinksmanship convinces the other party they have no choice but to accept the offer and there is no acceptable alternative to the proposed agreement.[4]
  • Bogey: Negotiators use the bogey tactic to pretend that an issue of little or no importance to him or her is very important.[5] Then, later in the negotiation, the issue can be traded for a major concession of actual importance.
  • Defence in Depth: Several layers of decision-making authority is used to allow further concessions each time the agreement goes through a different level of authority.[6] In other words, each time the offer goes to a decision maker, that decision maker asks to add another concession in order to close the deal.
  • Deadlines: Give the other party a deadline forcing them to make a decision. This method uses time to apply pressure to the other party. Deadlines given can be actual or artificial.
  • Flinch: Flinching is showing a strong negative physical reaction to a proposal. Common examples of flinching are gasping for air, or a visible expression of surprise of shock. The flinch can be done consciously or unconsciously.[7] The flinch signals to the opposite party that you think the offer or proposal is absurd in hopes the other party will lower their aspirations.[8] Seeing a physical reaction is more believable than hearing someone saying, “I’m shocked.”
  • Good Guy/Bad Guy: The good guy/bad guy approach is typically used in team negotiations where one member of the team makes extreme or unreasonable demands, and the other offers a more rational approach.[9] This tactic is named after a police interrogation technique often portrayed in the media. The “good guy” will appear more reasonable and understanding relative to the “bad guy” and therefore, easier to work with. This tactic is easy to spot because of its frequent use.
  • Highball/Lowball: Depending on whether selling or buying, sellers or buyers use a ridiculously high, or ridiculously low opening offer that will never be achieved. The theory is that the extreme offer will cause the other party to reevaluate his or her own opening offer and move close to the resistance point (as far as you are willing to go to reach an agreement).[10] Another advantage is that the person giving the extreme demand appears more flexible he or she makes concessions toward a more reasonable outcome. A danger of this tactic is that the opposite party may think negotiating is a waste of time.
  • The Nibble: Nibbling is asking for proportionally small concessions that haven’t been discussed previously just before closing the deal.[11] This method takes advantage of the other party’s desire to close by adding “just one more thing.”
  • Snow Job: Negotiators overwhelm the other party with so much information that he or she has difficulty determining which facts are important, and which facts are diversions.[12] Negotiators may also use technical language or jargon to mask a simple answer to a question asked by a non-expert.
  1. Early Neutral Evaluation (ENE):

Early Neutral Evaluation is a method which is mostly used in the beginning of the dispute. In ENE, to enable the concerned parties to render a decision regarding the procedure necessary for resolution of the dispute via providing information by an experienced and objective third party to the parties of the dispute. In neutral evaluation, each party gets a chance to present the case to a neutral person called an “evaluator.” The evaluator then gives an opinion on the strengths and weaknesses of each party’s evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator’s opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.[13] Early neutral evaluation involves the use of a neutral third party evaluator to assess the strengths and weaknesses of the positions of each party to a dispute. Early neutral evaluation is a type of alternative dispute resolution (ADR). The process of early neutral evaluation is similar regardless of whether it is conducted by court order or by agreement. The process begins with the appointment of an evaluator. The evaluator is usually an experienced attorney with substantial experience in the subject matter involved in the dispute.  The evaluator conducts an informal meeting with the parties and their attorneys. At the meeting, each side presents its evidence and legal arguments to the evaluator and the opposing side. The evaluator helps the parties identify areas of agreement and focus the issues that remain for resolution. After hearing each party’s evidence and legal arguments, the evaluator prepares a written evaluation of the likely outcome of each party’s claims and defenses and an estimate of the damages that may be recovered. The written evaluation is confidential and may not be introduced into evidence at trial in the event that the case does not settle.  Once the evaluator has prepared a written evaluation of the case, the evaluator presents the written evaluation to the parties. At this point, the evaluator’s role may become similar to a mediator. The evaluator may set another meeting with the parties to discuss the evaluation and to provide the parties with an opportunity for settlement negotiations. The evaluator may meet with parties, jointly or separately, to assist the parties in finding common ground for settlement. Alternatively, if settlement appears unlikely, the evaluator may assist the parties in narrowing the issues for trial and in identifying issues for which additional discovery may be needed. This function can be useful in helping the parties avoid additional costs involved in conducting unnecessary discovery or litigating undisputed facts or issues. Early neutral evaluation is a useful ADR technique to help litigants assess the strengths and weaknesses of their respective cases. Early neutral evaluation can provide a “reality check” for litigants that can result in substantial reduction in litigation costs and expenses by providing guidance as to whether to settle or litigate a case.[14]

Cases for Which Neutral Evaluation May Be Appropriate

Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages.

Cases for Which Neutral Evaluation May Not Be Appropriate

Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.

Early Neutral Evaluation Procedures

ENE-1. Initiation of Early Neutral Evaluation

ENE-2. Appointment of the Evaluator

ENE-3. Qualifications of the Evaluator

ENE-4. Submission and Exchange of Initial Written Statements

ENE-5. Evaluation Session

ENE-6. The Evaluation

ENE-7. Confidentiality

ENE-8. Applications to Court and Limitation of Liability

  1. Fact-Finding Method:

Fact-finding is a research method that aims to determine and clarify the dispute. Even if the dispute cannot be resolved with this method, it has its own complementary role for the other alternative dispute resolution methods such as arbitration, mediation etc. When the parties have an uncompromising attitude, the fact-finder becomes a part of the dispute and prepares a comprehensive report indicating negative prospects of the dispute for the parties. In this method, generally, as fact-finder, an attorney, experienced in the legal field the dispute is related to, is appointed. Fact finding is the purpose of ascertaining facts. Facts are pieces of information about the world that can be independently verified by generally accepted research methods as reliable, sound bases for decision making and dispute resolution. Facts may involve technical questions, as well as factual questions involving the law. In some cases factual questions can be answered with absolute certainty. In other cases, however, there are large elements of uncertainty. While some of these uncertainties can be reduced through more intricate fact-finding efforts, there are often other uncertainties which cannot be eliminated by any reasonable amount of analysis. In these cases, decisions will have to be made and disputes resolved on the basis of incomplete information.  The goal of fact-finding efforts is to incorporate as much reliable information as possible into the dispute resolution process. Joint fact-finding can help the parties resolve factual disagreements in ways which are acceptable to all parties. This technique requires the parties to collaborate in the joint design and oversight of the fact-finding process, and it usually involves the hiring of experts who then work on behalf of and under the joint direction of the parties.

  1. MED-ARB:

Med-Arb method is a combination of mediation and arbitration that aims to resolve the dispute via arbitration when the dispute between the parties cannot be resolved via mediation. This method is applied to when the rapid resolution of the dispute is sought. Med-arb, a combination of mediation and arbitration is a short-hand reference to the mediation-arbitration procedure. In med-arb procedure, the parties to a dispute mutually agree to mediate the dispute with an undertaking that, if the issues are not settled through the mediation then they will resolve the dispute by arbitration. They also agree that the same person will act both as mediator and arbitrator. The med-arb process includes the standard procedures of a basic mediation without pleadings, discovery, subpoenas, and the other formalities that are common to binding arbitration.[15] A hybrid mediation-arbitration approach called med-arb combines the benefits of both techniques. In this increasingly popular process, parties first attempt to collaborate on an agreement with the help of a mediator. If the mediation ends in impasse, or if issues remain unresolved, the parties can then move on to arbitration. The mediator can assume the role of arbitrator (if qualified) and render a binding decision quickly, or an arbitrator can take over the case after consulting with the mediator. In med-arb, parties first attempt to hammer out a collaborative agreement, working together and in private sessions with a mediator or “med-arbiter,” a neutral third party trained in med-arb. In most cases, the med-arb process turns into a successful mediation with no need for arbitration. The threat of having a third party render a decision in a binding arbitration often inspires disputants to work extra hard in mediation to come to an agreement. Med-arb can be especially effective when you’re under time pressure, as in a labor dispute, and when you need to work with the other party in the future. And if you hire one person as mediator and arbitrator, you save time and money by eliminating the need to strat arbitration from square one if mediation fails.[16]

Advantages of Med-Arb

The major advantage of Med-Arb is that the arbitration process will only be required to handle the unresolved issues, if any, after the mediation session has been concluded. It is widely recognized that the most expensive part of an arbitration or litigation is the discovery process in presenting your case to the arbitrator or judge. Many issues may be settled through mediation without the time and expense that would be required to present them properly to an arbitrator, judge or jury. It thus becomes far less costly to prepare for an arbitration that involves only a few of the original disputed issues.[17] The success of mediation relies heavily on both parties having full confidence in the mediator and a belief that there will be a special privacy and trust between themselves and the mediator. In the mediation process, it is not uncommon for a party to confide certain confidential, private or privileged information to the mediator that they would not have disclosed to an arbitrator, judge or jury. When Med-Arb form one is utilized, there is a possibility that the unresolved items might have been settled during the mediation if, in fact, the parties had completely confided in the mediator and had not held back information on those issues. As a result, it is generally recommended to utilize the second form of Med-Arb; having a separate mediator and a separate arbitrator. If cost and time are very important and/or if the issues are not complicated; form one utilizing the same person as both the mediator and arbitrator should be considered.

  1. Facilitation

Facilitation involves providing procedural assistance to disputing parties to resolve issues in controversy.  It involves using an intermediary to enable the parties to work together to resolve disputes. The actions of the facilitator are designed to improve communication, encourage informal discussion, improve relationships, and build trust. The objective is to create a climate in which the parties may more easily reach a mutually agreeable settlement. The facilitator is a neutral third party who assists the parties in resolving their differences themselves. Generally, the facilitator conducts meetings and coordinates discussions. Although a facilitator may perform some of the same functions as a mediator, the facilitator generally does not become as involved in the substantive issues as does a mediator. Instead, the facilitator works to create a problem-solving atmosphere for the parties.

  1. Mini-Trial

Mini-trial is a structured settlement process in which attorneys for each side make summary presentations of their case before senior officials of each party who are authorized to negotiate a settlement. A neutral advisor sometimes presides over the proceeding and, if asked to do so, renders an advisory opinion. Following these presentations, the officials seek to negotiate a settlement, with or without the assistance of the neutral. The assumption underlying this process is that if the decision-makers themselves are fully informed as to the merits of their respective cases, they will be prepared to engage in meaningful settlement discussions. The mini-trial serves to abbreviate the usual dispute process by putting the decision-making responsibility back in the hands of senior managers.

  1. Partnering

Partnering is the process by which contracting parties are encouraged to change from their traditional adversarial relationships to a more cooperative, team-based approach to prevent disputes from arising in the first place. By taking steps at the outset of a project to change the adversarial posturing, to recognize common interests, and to establish an atmosphere of trust and frankness in communications, partnering helps develop a cooperative management team. While the partnering principle can apply to any working relationship, it is most commonly used in large construction projects. This is because these projects typically present management with formidable challenges. Each party, the owner/agency and the contractor, generally has its own management team and its own set of project goals and priorities. This fosters an adversarial relationship and inhibits the free flow of information. With communication strained, project delays, cost overruns, disputes, and litigation are possible. Partnering creates an owner/contractor relationship based on cooperation and achieving mutually beneficial, jointly defined goals and objectives. It is the product of a change in attitude among the parties rather than a formal contract. By drawing on the strengths of each organization, the parties seek to avoid disputes, improve communication, promote quality and efficiency, and improve long-term relationships.

ADR IN INDIAN LEGISLATURE

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach.

Arbitration and Conciliation Act, 1996

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.

Promulgated initially as an Ordinance, this Act (the 1996 Act) consolidates and streamlines the law relating to Arbitration in India by bringing under one statute the various provisions relating to arbitration which were earlier spread over three separate Acts. It is drafted on the lines of the UNCITRAL Model Arbitration Law and the UNCITRAL Conciliation Rules and for the first time statutorily recognizes conciliation by providing elaborate rules of engagement.

The Code of Civil Procedure (CPC)

For the last several decades, India’s court system has suffered from an overwhelming backlog of cases. An average civil case takes almost a decade to be adjudicated. In 1996, the Indian Legislature recognized that, in order to lessen the burden on the courts by introducing a more efficient case management system, mediation/conciliation would have to be integrated as a dispute resolution option in appropriate civil and commercial matters. As a consequence, in 2002, the CPC was amended to make ADR an integral part of the judicial process. In terms of the newly inserted section 89 of CPC, if it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

Lok Adalat

Etymologically, Lok Adalat means “people’s court”. India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences.

While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] 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. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.[18]

ADR IN DIFFERENT COUNTRIES

Iceland

The Saga of Burnt Njal is the story of a mediator who was so successful that he eventually threatened the local power structure. It ends in tragedy with the unlawful burning of Njal alive in his home, the escape of a friend of the family, a mini-war and the eventual ending of the dispute by the intermarriage of the two strongest survivors. It illustrates that mediation was a powerful process in Iceland before the era of kings.

Roman Empire

Latin has a number of terms for mediator that predate the Roman Empire. Any time there are formal adjudicative processes it appears that there are informal ones as well. It is probably fruitless to attempt to determine which group had mediation first.

Sub-Saharan Africa

Before modern state law was introduced under colonialism, African customary legal systems mainly relied on mediation and conciliation. In many countries, these traditional mechanisms have been integrated into the official legal system. In Benin, specialised tribunaux de conciliation hear cases on a broad range of civil law matters. Results are then transmitted to the court of first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries.[19]

Pakistan

The relevant laws (or particular provisions) dealing with the ADR are summarised as under:

  • 89-A of the Civil Procedure Code, 1908 (Indian but amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
  • The Small Claims and Minor Offences Courts Ordinance, 2002.
  • Sections 102–106 of the Local Government Ordinance, 2001.
  • Sections 10 and 12 of the Family Courts Act, 1964.
  • Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
  • The Arbitration Act, 1940 (Indian).
  • Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
  • Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
  • Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
  • Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)
  • Arbitration (International Investment Disputes) Act, 2011
  • Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011

CONCLUSION

The importance of family involvement, recognition and empowerment for the family, a focus on strengths, and the collaboration in all these pieces create an ideal environment for successful resolutions. The processes allow the participants to collaborate. This is a big change from the traditional roles of the legal professionals and the family and allows everyone to focus on timely decisions that are in the best interests of the child. This helps the children, the family, the professionals and the court. These benefits make ADR an essential tool in child custody, child welfare and delinquency cases. The current adversarial legal systems that surround families need to be changed to reflect the importance of family, the strengths and benefits of families and how the system can support children safely within their families. Lawyers need to be better informed to make contextual child centered decisions with input from the child. Until such time as the courts involved in these cases truly appreciate and incorporate the contributions of the families and all the professionals, start to help parties to work collaboratively to keep children safe and out of foster care, and strive to offer families appropriate and timely services, the system will continue to fail families. ADR works through confidentiality, listening skills, collaboration, problem solving, information exchange and a future focus. ADR should have a larger role in the UNLV Recommendations, just as it should have a larger role in all court systems that impact children and families.

[1] Australian Securities and Investments Commission – Complaints resolution schemes. Asic.gov.au. Retrieved on 2013-07-14.

[2] http://www.law.cornell.edu/wex/alternative_dispute_resolution

[3] Gates, Steve (2011). The Negotiation Book. United Kingdom: A John Wiley & Sons Ltd, Publication. p. 240. ISBN 978-0-470-66491-9.

[4] Goldman, Alvin (1991). Settling For More: Mastering Negotiating Strategies and Techniques. Washington, DC: The Bureau of National Affairs, Inc. p. 83. ISBN 0-87179-651-1.

[5] Lewicki, R.J.; D.M. Saunders, J.W. Minton (2001). Essentials of Negotiation. New York: McGraw-Hill Higher Education. p. 82. ISBN 0-07-231285-8.

[6] Gates, Steve (2011). The Negotiation Book. United Kingdom: A John Wiley & Sons Ltd, Publication. p. 246. ISBN 978-0-470-66491-9.

[7] Coburn, Calum. “Neutralising Manipulative Negotiation Tactics”. Negotiation Training Solutions. Retrieved 1 October 2012.

[8] Gates, Steve (2011). The Negotiation Book. United Kingdom: A John Wiley & Sons Ltd, Publication. p. 245. ISBN 978-0-470-66491-9.

[9] Lewicki, R.J.; D.M. Saunders, J.W. Minton (2001). Essentials of Negotiation. New York: McGraw-Hill Higher Education. p. 81. ISBN 0-07-231285-8.

[10] Lewicki, R.J.; D.M. Saunders, J.W. Minton (2001). Essentials of Negotiation. New York: McGraw-Hill Higher Education. p. 81. ISBN 0-07-231285-8.

[11] Lewicki, R.J.; D.M. Saunders, J.W. Minton (2001). Essentials of Negotiation. New York: McGraw-Hill Higher Education. p. 82. ISBN 0-07-231285-8.

[12] Lewicki, R.J.; D.M. Saunders, J.W. Minton (2001). Essentials of Negotiation. New York: McGraw-Hill Higher Education. p. 86. ISBN 0-07-231285-8.

[13] http://www.courts.ca.gov/3074.htm

[14] http://www.legalsource360.com/index.php/alternative-dispute-resolution-the-process-of-early-neutral-evaluation-1341/

[15] http://definitions.uslegal.com/m/med-arb/

[16] http://www.pon.harvard.edu/daily/mediation/med-arb-an-effective-tool-for-resolving-disputes/

[17] http://www.constructiondisputes-cdrs.com/about%20MEDIATION-ARBITRATION.html

[18] http://www.ficci-arbitration.com/htm/whatisconcialation.htm

[19] Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on ADR in Africa

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