Module – 1 An Overview of National and International

Initiatives
(i) Alternative of Dispute Resolution (ADR)
• INTRODUCTION - Alternative dispute resolution (ADR) is designed to settle
disputes outside of the courtroom with the help of an impartial third party.
This path is generally accessible after efforts between the client and the
insurer to resolve any differences between themselves fails and reaches an
impasse.
• CONCEPT - The concept of Alternative Dispute Resolution (ADR) denotes
the process in which disputes are addressed and settled outside of the
courtroom. In a more detailed language, ADR refers to the ways in which
disputes are resolved without litigation. These ways may involve
negotiation, arbitration, or mediation. The processes of ADR are generally
more expeditious and less pricey. As a matter of fact, ADR is used in
disputes, which have the potential of leading to litigation. Such disputes
may involve labor disputes, personal injury accusations, and divorce
actions.
Unlike traditional litigation, the procedures of ADR are generally
collaborative, letting the parties realize each other’s perspectives. ADR even
lets the parties analyze and suggest creative solutions, which a typical
courtroom does not permit to impose legally.
• NEED - ADR offers to resolve the case quickly without much delay and
incurs less expenses. ADR allows the parties to work together with a
neutral arbitrator or mediator so that the dispute can resolved quickly and
the transacting parties are satisfied by the conclusion.
• AMICABLE SETTLEMENT OF DISPUTES - ADR provides for a friendly
settlement of disputes. In business it is a prudent approach to have a
competitor not a rival. It is clear that a healthy competition brings
improvement and it’s also cost effects cost of service or commodities in
every sphere.
• SPEEDY DISPOSAL OF TRIAL - ADR provides for speedy disposal of trials.
Unlike litigation process in ADR there is no scope of adjournment or stay
order.
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• ECONOMICAL SETTLEMENT OF DISPUTES - Unlike litigation process where
huge expenses are incurred to pay the advocates and other people involved
in the trial, in ADR it is not the case and minimum amount of money is
required.
• TIME SAVING MANAGEMENT - In ADR the dispute is resolved without
following the cumbersome procedure of ordinary litigation that’s why ADR
is also known as dispute management.
• LEGAL RECOGNITION - This system has been recognized in the Indian
Statutes. For instance- now the Civil Procedure Code,1908, Order 32-A, Rule
3 contains scope for compromise and the decree evolved from that
compromise is not appealable. Notably, section 12 of the Industrial Disputes
Act, 1947 contemplated provisions for conciliation as pre-requisite for any
pressure tactics/collective bargaining.
• ADVENT OF MULTINATIONAL CORPORATIONS - A number of multinational
corporations are coming to invest and establish their business. These
businesses have dynamic approach in their business activities. Therefore, in
case of disputes they should be provided with such a mechanism which can
resolve their dispute immediately and without delays.

(ii) AN OVERVIEW OF NATIONAL AND INTERNATIONAL INITIATIVES IN INDIA -

• ICC
https://www.investopedia.com/terms/i/international-chamber-of-
commerce-icc.asp
• UNCITRAL
https://www.investopedia.com/terms/u/united-nations-commission-on-
international-trade-law-uncitral.asp
• ICSID
https://icsid.worldbank.org/about

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(iii) ARBITRATION AND CONCILIATION ACT, 1996
a. GENERAL PROVISIONS - The main objectives of the Act are as follows:
• To ensure that rules are laid down for international as well as domestic
arbitration and conciliation.
• To ensure that arbitration proceedings are just, fair and effective.
• To ensure that the arbitral tribunal gives reasons for its award given.
• To ensure that the arbitral tribunal acts within its jurisdiction.
• To permit the arbitral tribunal to use methods such as mediation and
conciliation during the procedure of arbitration.
• To minimise the supervisory role of courts.
• To ensure that an arbitral award is enforceable as a decree of the court.
• To ensure that the result of conciliation proceedings may be treated as
arbitral awards on agreed terms.
• To treat awards given in a foreign country to which any one of the two
international conventions apply as followed by India as being a foreign
arbitral award.
b. DEFINITIONS -
• ARBITRATION - Arbitration is a procedure in which a dispute is submitted,
by agreement of the parties, to one or more arbitrators who make a binding
decision on the dispute. In choosing arbitration, the parties opt for a private
dispute resolution procedure instead of going to court.
• CONCILIATION - Conciliation is an alternative dispute resolution process
whereby the parties to a dispute use a conciliator, who meets with the
parties both separately and together in an attempt to resolve their
differences.
Conciliation differs from arbitration in that the conciliation process, in and
of itself, has no legal standing, and the conciliator usually has no authority
to seek evidence or call witnesses, usually writes no decision, and makes
no award.
Arbitration is a dispute settlement process in which a impartial third party
is appointed to study the dispute and hear both the party to arrive at a
decision binding on both the parties. Conciliation is a method of resolving
dispute, wherein an independent person helps the parties to arrive at
negotiated settlement.

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c. RECEIPT OF WRITTEN COMMUNICATIONS -
1. Unless otherwise agreed by the parties -
(a.) Any written communication is deemed to have been received if it is
delivered to the addressee personally or at his place of business, habitual
residence or mailing address, and
(b.) If none of the places referred to in clause(a) can be found after making
a reasonable inquiry, a written communication is deemed to have been
received if it is sent to the addressee's last known place of business,
habitual residence or mail* address by registered letter or by any other
means which provides a record of the attempt to deliver it.
2. The communication is deemed to have been received on the day it is so
delivered.
3. This section does not apply to written communications in respect of
proceedings of any judicial authority.
d. WAIVER OF RIGHT TO OBJECT - A party who knows that any provision of
the applicable arbitration law from which the parties may derogate or any
requirement under the arbitration agreement has not been complied with
and yet proceeds with the arbitration without stating his objection to such
non-compliance without undue delay or, if a time-limit is provided
therefore, within such period of time, shall be deemed to have waived its
right to object.
http://www.koveglobal.com/waiver-of-right-to-object-in-arbitral-
proceedings/
e. EXTENT OF JUDICIAL INTERVENTION - Section 5 Of Arbitration and
Conciliation Act, 1996; “Notwithstanding anything contained in any other
law for the time being in force, in matters governed by this Part, no judicial
authority shall intervene except where so provided in this Part.”
f. ADMINISTRATIVE ASSISTANCE - Section 68 in the Arbitration and
Conciliation Act, 1996; In order to facilitate the conduct of the conciliation
proceedings, the parties, or the conciliator with the consent of the parties,
may arrange for administrative assistance by a suitable institution or
person.

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g. ARBITRATION AGREEMENT - Section 7 in the Arbitration and Conciliation
Act, 1996;
(1) In this Part, “arbitration agreement” means an agreement by the parties
to submit to arbitration all or certain disputes which have arisen or which
may arise between them in respect of a defined legal relationship, whether
contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in
a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence
of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement if the contract is in writing
and the reference is such as to make that arbitration clause part of the
contract.
h. POWER TO REFER PARTIES TO ARBITRATION WHERE THERE IS AN
ARBITRATION AGREEMENT - Section 8, A judicial authority before which an
action is brought in a matter which is the subject of an arbitration
agreement shall, if a party so applies not later than when submitting his
first statement on the substance of the dispute, refer the parties to
arbitration.
https://ibclaw.in/section-8-power-to-refer-parties-to-arbitration-where-
there-is-an-arbitration-
agreement/#:~:text=%E2%80%9CA%20judicial%20authority%20before%20w
hich,refer%20the%20parties%20to%20arbitration.%E2%80%9D

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i. INTERIM MEASURES BY COURT - Under the New Act 1996, Section 9
empowers the court to order a party to take interim measure or protection
when an application is made. Besides this Section 17 gives power to the
Arbitral Tribunal to order interim measures unless the agreement prohibits
such power.
Interim Relief under Section 9 - A plain reading of the section 9 indicates
that a party may before or during the arbitral proceedings or at any time
after making of the arbitral award but before it is enforced in accordance
with Section 36, may apply, to the court for interim measure of protection.
Prayers for interim measures of protection may include:
– Appointment of a guardian for a minor or person of unsound mind
– Preservation or interim custody or sale of goods, if goods are of perishable
nature
– Securing the amount of claims
– Allowing inspection or interim injunction or appointment of receiver
– Any other relief’s as the court may in its discretion may deem proper
considering the circumstances of the case.

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MODULE - 2 Composition of Arbitral Tribunal
(i) COMPOSITION - It consists of one or more arbitrators that adjudicate
and resolve the dispute and provide an arbitral award. The Indian Council
of Arbitration has provided a set of rules known as the 'Rules of Arbitration'
that are to be abided by the parties undergoing the arbitration process as
well as the arbitrators.
(ii) JURISDICTION - The arbitral tribunal takes its jurisdiction to decide a
particular dispute from the agreement between the parties. An arbitral
tribunal does not get its jurisdiction from any legislation.
(iii) CONDUCT OF ARBITRAL PROCEEDING -
Arbitration is a procedure in which a dispute is submitted, by agreement of
the parties, to an arbitrator or to a tribunal of several arbitrators who give
a decision on the dispute that is binding on the parties.
Section 21 of the Act provides the rules which govern the commencement
of arbitral proceedings. It gives freedom to the parties to agree and
determine when the arbitration proceeding can officially commence. But in
the absence of such an agreement or where the parties fail to arrive at an
agreement, the arbitral proceedings can commence when one party issues
a notice to the other party, in writing, showing its intention to refer the
dispute to arbitration.
So in respect of a particular dispute, the arbitral proceeding commences on
the date on which a request for that dispute to be referred to arbitration
is received by the other party. In order to determine the date of receipt, the
provisions of Section 3 of the Act must be looked into.
(iv) SETTLEMENT - Settlement agreements are not specifically defined in the
context of international arbitration. However, they may be described as
legally binding agreements between two or more parties which seek to
resolve disputes in a mutually acceptable manner. Settlement agreements
may be negotiated by the parties themselves, or can be facilitated by formal
procedures such as mediation.
Both the ICSID and UNCITRAL Arbitration Rules contemplate parties settling
a dispute before the arbitral award is issued. In such cases, parties may
request the tribunal to discontinue proceedings and record the settlement
in the form of an arbitral award.
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(v) FORM AND CONTENTS OF ARBITRAL AWARD -
1. An arbitral award shall be made in writing and shall be signed by the
members of the arbitral tribunal.
2. For the purposes of sub-section(1), in arbitral proceedings with more than
one arbitrator, the signatures of the majority of all the members of the
arbitral tribunal shall be sufficient so long as the reason for any omitted
signature is stated.
3. The arbitral award shall state the reasons upon which it is based, unless—
(a) the parties have agreed that no reasons are to be given,
(b) or the award is an arbitral award on agreed terms under section 30.
4. The arbitral award shall state its date and the place of arbitration as
determined in accordance with section 20 and the award shall be deemed
to have been made at that place.
5. After the arbitral award is made, a signed copy shall be delivered to each
party.
6. The arbitral tribunal may, at any time during the arbitral proceedings,
make an interim arbitral award on any matter with respect to which it
may make a final arbitral award.
7. (a) Unless otherwise agreed by the parties, where and in so far as an
arbitral award is for the payment of money, the arbitral tribunal may
include in the sum for which the award is made interest, at such rate as it
deems reasonable, on the whole or any part of the money, for the whole or
any part of the period between the date on which the cause of action arose
and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award
otherwise directs, carry interest at the rate of eighteen per centum per
annum from the date of the award to the date of payment.
8. Unless otherwise agreed by the parties —
(a) the costs of an arbitration shall be fixed by the arbitral tribunal;
(b) the arbitral tribunal shall specify –
• the party entitled to costs,
• the party who shall pay the costs,
• the amount of costs or method of determining that amount, and

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• the manner in which the costs shall be paid.
Explanation - For the purpose of clause(a), “costs” means reasonable costs
relating to –
• the fees and expenses of the arbitrators and witnesses,
• legal fees and expenses, any administration fees of the institution
supervising the arbitration, and
• any other expenses incurred in connection with the arbitral proceedings
and the arbitral award.
(vi) TERMINATION OF PROCEEDINGS - Section 32, Arbitral proceedings can
also be terminated by an order of the Tribunal, which order can only be
passed when the claimant withdraws the claim or when the parties agree
on the termination of the proceedings or when the Tribunal finds that
continuation of proceedings has become unnecessary or impossible.
(vii) CORRECTION AND INTERPRETATION OF AWARDS -
(1) Within thirty days from the receipt of the arbitral award, unless another
period of time has been agreed upon by the parties -
(a) a party, with notice to the other party, may request the arbitral tribunal
to correct any computation errors, any clerical or typographical errors or
any other errors of a similar nature occurring in the award;
(b) if so agreed by the parties, a party, with notice to the other party, may
request the arbitral tribunal to give an interpretation of a specific point or
part of the award.
(2) If the arbitral tribunal considers the request made under sub-section (1)
to be justified, it shall make the correction or give the interpretation within
thirty days from the receipt of the request and the interpretation shall
form part of the arbitral award.
(3) The arbitral tribunal may correct any error of the type referred to in
clause (a) of sub-section (1), on its own initiative, within thirty days from
the date of the arbitral award.
(4) Unless otherwise agreed by the parties, a party with notice to the other
party, may request, within thirty days from the receipt of the arbitral
award, the arbitral tribunal to make an additional arbitral award as to
claims presented in the arbitral proceedings but omitted from the arbitral
award.

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(5) If the arbitral tribunal considers the request made under sub-section (4)
to be justified, it shall make the additional arbitral award within sixty days
from the receipt of such request.
(6) The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, give an interpretation or make an
additional arbitral award under sub-section (2) or sub-section (5).
(7) Section 31 shall apply to a correction or interpretation of the arbitral
award or to an additional arbitral made under this section.
(viii) ADDITIONAL AWARD - an additional award is an award which the
tribunal, by its own initiative or on the application of a party makes in
respect of any claim which was presented to the tribunal but was not
resolved under the principal award.
An additional award is a type of award which is given after the principal
award has been delivered. Generally, it is considered as an award that
contains all the corrections and interpretations of the provisions provided
in the principal award. But to acquire an additional award one has to write
to the tribunal requesting to schedule a further hearing.
The reason behind asking for an additional award is human fallibility which
may constitute omissions, ambiguities or mistakes. Just like court
judgements, arbitral awards are subject to such defects which can be
corrected by the arbitrators.
Usually, an award when it is given by the arbitrator or tribunal is a final
award which means it is unambiguous and has dealt with all the issues
which make it functus officio. Now functus officio means when an award
is given by the tribunal it is considered as final award and is subject to
limited exceptions for the correction and interpretation of the awards.

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MODULE – 3 Recourse against Arbitral Award
(i) Application for setting aside Arbitral Award
To ascertain the proper conduct of the arbitration proceedings, the law
allows certain remedies against an arbitral award. An aggrieved party may
resort to the law Court for setting aside the arbitral award on certain
Grounds mentioned under Arbitration and Conciliation Act, 1966.
Grounds – Section 34 of the Arbitration and Conciliation Act provides the
provisions of certain specific grounds on the basis of which an arbitral
award rendered in India can be set aside. They are-
• Incapacity of a party while making an application to enter the agreement.
• Arbitration agreement not being valid under the law.
• Parties were not given proper notice of the appointed Arbitrators or the
Arbitral Tribunal.
• Nature of dispute not capable of settlement by arbitration.
• Composition of the arbitral award was not in accordance with the
agreement of parties.
• The Arbitral award is in the violation of the public policy of a state.
• The Arbitral award deals with a dispute not falling within the terms of
submissions to an arbitration.
https://blog.ipleaders.in/what-is-the-application-for-setting-aside-the-
arbitral-awards/?amp=1
(ii) Finality and enforcement of Arbitral Award
Arbitral Award- Finality [Section 35]
It is provided under section 35 of the Arbitration and Conciliation Act, 1996
that the award after an arbitration proceeding shall be binding on the
parties to the proceedings.
When an arbitral award is made it is in totality concerning all the
dimensions and implies that no more steps can be further taken by the
arbitral tribunal. The award has a binding effect on the parties.
An award by an arbitral tribunal is final when:
• The Period that is provided to make an appeal challenging the award in
the court expires;
• And in circumstances when a party has filed an application in the court
challenging the award and the same gets rejected.

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Arbitral Award – Enforcement [Section 36]
Section 36 of the Arbitration and Conciliation Act, 1996 after the 2015
Amendment Act, provides that when the time period that is provided for
making an application in the court for setting aside an arbitral award has
expired the award of the arbitral tribunal will have an effect of a decree of
a court and shall be enforced in the same way. (As per the provisions of
Code of Civil Procedure of 1908).
If a party challenges the award of an arbitral tribunal (under section 34 of
the Arbitration Act) by filing an application for the same in the court, just
because he has applied would not set aside the arbitral award. The award
will be set aside only when the court orders so.
The court may put a stay on the arbitral award if it is satisfied that the
award is against the principles of justice. The court shall record its reason
for doing so.
(iii) Appealable orders
https://www.advocatekhoj.com/library/bareacts/arbitrationandconciliatio
n/37.php?Title=Arbitration%20and%20Conciliation%20Act,%201996&STitle=
Appealable%20orders
(iv) Miscellaneous
https://ibclaw.in/judicial-outlook-of-the-miscellaneous-provisions-under-
the-arbitration-regime-by-arihant-singh
(v) Deposits
https://www.advocatekhoj.com/library/bareacts/arbitrationandconciliatio
n/79.php?Title=Arbitration%20and%20Conciliation%20Act,%201996&STitle=
Deposits
https://www.icaindia.co.in/icanet/rules/commercialarbitration/arbitration
&conciliation/chapter1f.htm
(vi) Lien on Arbitral Award and Deposits as to costs
The sole purpose of the principle of ‘lien on arbitral award’ is to protect the
rights of the arbitrators to receive their fees and other costs before the
physical copies of the arbitral award are handed over to the parties. In fact,
as apparent from the scheme of the Act, Section 39 of the Act balances the
rights of the arbitrators as well the parties, by ensuring a mechanism for
payment of unpaid fees and costs without hampering the on-going

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proceedings but restricting both the award-holder5 and award-debtor6
from availing remedies under Section 36 (enforcing the arbitral award) and
Section 34 (challenging the arbitral award) respectively until the dues of
the arbitrators are cleared by the parties.
(vii) Arbitration agreement not to be discharged by death of party thereof
• An arbitration agreement shall not be discharged by the death of any party
thereto either as respects the deceased or as respects any other party, but
shall in such event be enforceable by or against the legal representative of
the deceased.
• The mandate of an arbitrator shall not be terminated by the death of any
party by whom he was appointed.
• Nothing in this section shall affect the operation of any law by virtue of
which any right of action is extinguished by the death of a person.
(viii) Provisions in case of insolvency
https://www.advocatekhoj.com/library/bareacts/arbitration/41.php?Title=A
rbitration%20Act,%201940&STitle=Provisions%20in%20case%20of%20insolv
ency#:~:text=(1)%20Where%20it%20is%20provided,relates%20to%20any%2
0such%20dispute.
(ix) Jurisdiction, Limitations, Enforcement of certain Foreign Awards
Jurisdiction – As per the new Act, the application for enforcement of a
foreign award will now only lie to High Court. The conditions for
enforcement of foreign awards under the Geneva Convention are provided
under Section 57 of the Arbitration and Conciliation Act, 1996.
Limitations – The Supreme Court has, in its recent judgment of Government
of India v. Vedanta Limited & Ors., settled the law relating to limitation for
filing petitions for enforcement and execution of foreign awards in India.
The Court held that petitions seeking enforcement/execution of foreign
awards are required to be filed within three years from the date when the
right to apply accrues and in the event there is any delay in filing such
petitions, the same can be condoned under Section 5 of the Limitation Act,
1963 (“Limitation Act”).
Enforcement – As per the new Act, the application for enforcement of a
foreign award will now only lie to High Court.

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Once an application for enforcement of a foreign award is made, the other
party has the opportunity to file an objection against enforcement on the
grounds recognized under Section 48 of the Act.
https://www.mondaq.com/advicecentre/content/3100/Enforcement-of-
Foreign-Awards-in-
India#:~:text=As%20per%20the%20new%20Act,Section%2048%20of%20the
%20Act.

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MODULE – 4 Techniques of ADR
(i) Negotiation/Consultation
Perhaps the most common and straightforward form of ADR, negotiation is
a process whereby the parties and their legal advisors seek to resolve the
dispute by reaching an agreement either through written correspondence
or a meeting between all concerned. Negotiations can take place on a
“without prejudice” basis. This means that any statements made by either
side seeking to settle the dispute cannot later be submitted to court so as
to be used against another party in determining the dispute. Negotiation
and settlement tends to be more cost effective than court proceedings or
a protracted dispute.
A negotiation is a process of meetings deliberately convened to reach
agreement on a particular issue. A consultation process is a more open-
ended set of conversations or meetings, with the objective of exchanging
ideas and opinions (without formally coming to an agreement).
(ii) Mediation
Mediation is a similar process to negotiating a settlement at a meeting.
The key difference between negotiation and mediation is that the latter is
conducted with the assistance of a third party mediator. The mediator is a
specially trained professional who is jointly appointed by the parties to
assist them in resolving the dispute. The mediator may also be a lawyer or
a professional practicing in the same field as the dispute (for example: a
structural engineer may be acting as a mediator in a dispute relating to
defective building works). Regardless of their background, the mediator’s
task is to attempt to broker a settlement between the parties, and will not
favour one party over another. The cost of mediation is generally in the
region of a few thousand pounds and can be a swift, economic, method of
ADR, provided all parties enter it in the spirit of compromise and are willing
to settle.
(iii) Good offices
https://viamediationcentre.org/readnews/MzI2/Good-Offices-as-a-
peaceful-means-of-settling-
disputes#:~:text=’Good%20Offices’%20is%20a%20procedure,negotiation%20
to%20form%20the%20terms

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(iv) Conciliation
Conciliation is an alternative dispute resolution (ADR) process whereby the
parties to a dispute use a conciliator, who meets with the parties both
separately and together in an attempt to resolve their differences. They do
this by lowering tensions, improving communications, interpreting issues,
encouraging parties to explore potential solutions and assisting parties in
finding a mutually acceptable outcome.
• Nature – Conciliation is an alternative out-of-court dispute resolution
instrument. Like mediation, conciliation is a voluntary, flexible,
confidential, and interest based process. The parties seek to reach an
amicable dispute settlement with the assistance of the conciliator, who
acts as a neutral third party.
• Scope – Conciliation is defined as a process with the help of which an
effort is made to resolve disputes without resorting to the traditional form
of litigation in courts. In order words, it is the process of adjusting or
settling disputes in a friendly manner through extra judicial means. It may
be defined as a procedure through which individuals or persons are
appointed by the aggrieved parties with mutual consent with the help of
an agreement to bring about a settlement of the dispute between the
parties in question through concord or by using of the indistinguishable
techniques which are persuasive in nature.
• Methods – Conciliation is an alternative dispute resolution method in
which an expert is appointed to resolve a dispute by convincing the parties
to agree upon an agreement. That decision made by the arbitrator is binding
in the same way as a court decision. However, a conciliator has no right to
enforce his decisions.
The objective of the conciliation proceedings is to reach upon mutual terms,
speedy and cost-effective settlement of the dispute. Section 62 discuss the
initiative of conciliation will start when one party will send Written
Invitation to conciliate upon the matter to the other party. There will be
the commencement of procedure if the other party accepts the invitation
in writing to conciliate. If the other party rejects the invitation or the party
who is willing for the conciliation does not get a reply from the other party
within Thirty days then it will be treated as a Rejection of the Invitation.

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Section 65 explains the submission of the statements of both the parties
to the conciliators. Each party should submit a brief written statement
regarding dispute as requested by the conciliator. The statement should
describe the general nature of the dispute and the points of issue. Each
party should send a copy of their statement to the other party. The
conciliator can also ask for the submission of written statements which
includes issues of the parties, grounds of settlement etc. These statements
must be supplemented by evidence, documents or visual representation.
The copy of the same statement must be sent to the other party.
Conciliator can also request for additional documents whenever he needs
them. According to Section 67(3) and 69(1), the conciliator can set up
meetings for the parties or he can meet parties together or separately. The
place of meeting can be decided by parties or conciliators. He can also
communicate with the parties orally or in written form. He must also
consider the party’s expressed wishes like quick settlement of the case
which also depends upon the circumstances of the case.
(v) Legal Services – Meaning and scope in Legal Aid and Advice
The definition of legal service has been given under section 2(1)© of the
Legal Service Act, 1987, which is as – “Legal service includes rendering of
any service in the conduct of any other proceedings before any court or
other authority or tribunal and the giving of any advice of any legal
matter.”
Literally, legal service means help or assistance or free service in the field
of law. The apex court has categorically stated in its various decisions that
legal aid is not a charity but it is a duty of a welfare state.
Scope – Free legal services entail the provision of free legal aid in civil and
criminal matters for those poor and marginalized people who cannot afford
the services of a lawyer for the conduct of a case or a legal proceeding in
any court, tribunal or before an authority.
Provision of free legal aid may include:
a. Representation by an Advocate in legal proceedings.
b. Preparation of pleadings, memo of appeal, paper book including printing
and translation of documents in legal proceedings.
c. Drafting of legal documents, special leave petition etc.

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d. Rendering of any service in the conduct of any case or other legal
proceeding before any court or other Authority or tribunal and;
e. Giving of advice on any legal matter.
Free Legal Services also include provision of aid and advice to the
beneficiaries to access the benefits under the welfare statutes and schemes
framed by the Central Government or the State Government and to ensure
access to justice in any other manner.
(vi) Lok Adalats
Lok Adalat (People’s Court) is a Statutory Organisation under the Legal
Services Authorities Act, 1987, and was created as an alternative dispute
resolution mechanism used in India. It is a forum where cases pending on
panchayat, or at a pre-litigation stage in a court of law, are settled. Under
this Act, the award (decision) made by the Lok Adalats is deemed to be a
civil court case and is final and binding on all parties. No appeal against
such an award lies before any court of law. If the parties are not satisfied
with the award of the Lok Adalat (though there is no provision for an appeal
against such an award), they are free to initiate litigation by approaching
the court of appropriate jurisdiction.
• Nature – Lok Adalat is one of the alternative dispute redressal
mechanisms, it is a forum where disputes/cases pending in the court of law
or at pre-litigation stage are settled/ compromised amicably. Lok Adalats
have been given statutory status under the Legal Services Authorities Act,
1987.
• Scope – 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, as the scope for compromise through an
approach of give and take is high in these cases.
• Procedure – Lok Adalats have been given statutory status under the Legal
Services Authorities Act, 1987. Under the said Act, the award (decision)
made by the Lok Adalats is deemed to be a decree of a civil court and is
final and binding on all parties and no appeal against such an award lies
before any court of law. If the parties are not satisfied with the award of
the Lok Adalat though there is no provision for an appeal against such an
award, but they are free to initiate litigation by approaching the court of

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appropriate jurisdiction by filing a case by following the required procedure,
in exercise of their right to litigate.
• Functioning – A Lok Adalat is considered as one of the substitute dispute
redressal mechanisms. National Legal Services Authority organisation in
parallel with other Legal Services Institutions conducts Lok Adalats. It is a
forum where cases or disputes incomplete in the court of law are
compromised and conducted cordially. The Lok Adalats are mainly formed
to fulfil the promise and assurance given by the preamble of the Indian
Constitution– securing Justice – social, economic and political of every
citizen of India.
Functioning of Lok Adalat –
• The Lok Adalat comprises of chairman, two members, and one social
worker.
• The chairman must and should be a sitting or retired judicial officer.
• The other two members of the Lok Adalat committee should be a lawyer
• The Chairman and the Members of Permanent Lok Adalat guide the parties
to resolve the dispute.
• The Lok Adalat does not decide the dispute so mentioned at its own
instance, rather the same would be decided on the basis of the compromise
between the parties.
• The members shall oblige the parties in a sovereign and impartial manner
in their attempt to reach a cordial settlement of their dispute.
• There is no payable fee amount to the court when a dispute is filed in a
Lok Adalat.
• If a dispute remains pending in the court of law that is referred to the Lok
Adalat and is settled later, the court fee originally paid in the court on the
petition is also reimbursed back to the parties

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MODULE – 5 ADR and different types of Dispute
(i) Application of ADR methods (except Arbitration and Conciliation) in
different types of disputes:
• Commercial and Financial Disputes
Mediation - Mediation is one of the ancient methods of dispute resolution.
It is a voluntary settlement of dispute resolution through the assistance of
a neutral third party called Mediator. Section 89 of the Civil Procedure Code
1908 recognizes mediation as one of the methods of settlement of dispute
outside the Court. Civil Procedure - Mediation Rules, 2003 covers various
provisions for Mediation. Rule 4 dealt with the qualification of mediators
and Rule 11 talks about procedure of mediation. Rule 12 says the mediator
is not bound by Indian Evidence Act, 1872 and Civil Procedure Code, 1908
but guided by the principle of fairness and justice, have regard to the rights
of the parties, usage of the trade if any and nature of the dispute. Unlike
Arbitration Mediation is a less formal process. Role of the Mediator is to
facilitate voluntary resolution of the dispute by the parties, and
communicate the view to each party to other, assist them in identifying
issues, reduce misunderstandings, clarifying priorities, exploring areas of
compromise and generating options in an attempt to solve the dispute,
emphasizing that it is the responsibility of the parties to take decision
which affects them provided he shall not impose any terms of settlement
on the parties. The parties in Mediation can hire an experienced ADR Lawyer
or other experienced Mediation professional to represent them during
Mediation. Since Mediation is less formal and voluntary, parties can place
their issues and various alternative solutions and can reach a mutual
settlement through a structured negotiation. Following are different types
of Mediation Mandatory Mediation – the Example of Mandatory mediation
in Family Law disputes. Court Ordered Mediation – As per section 89 of the
Civil procedure Code, the court can refer certain disputes for mediation.
Private Mediation- In the Case of Private Mediation, corporate, Government
Departments and any member of the general public can hire qualified people
as Mediators for settlement of their disputes.
Negotiation – Negotiation is more flexible compared to the above three
methods of ADR. It is a cooperative problem-solving method without the
assistance of a third party unlike other methods of ADR. It doesn’t mean

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that parties cannot avail the services of professional negotiators, they can
avail the services of professional negotiators to represent them while
negotiating. The success of negotiation depends abound on the preparation,
planning and bargaining skills of the parties. In negotiation, parties are free
to determine the procedure, place, and language of negotiation. There is no
need for a third party to assist the negotiation like in other methods
discussed above. It is the parties of the dispute who delve into their
differences, suggest possible alternatives and discuss the problems
profoundly to iron out the differences and reach a settlement.
Following are the important steps in the negotiation –
1. Make proper planning for a negotiation.
2. Define the terms of differences and various alternatives of each party.
3. Clarification and justification of the proposal made by each party.
4. Bargaining
5. Problem-solving
6. Closure and Implementation.

• Family and Matrimonial Disputes

Just like the diversity in causes of disputes, the settlement models are also
varied. Alternative Dispute Resolution encompasses a wide array of
practices, which are directed towards a cost-effective and quick resolution
of disputes. ADR, as the name suggests, is an alternative to the traditional
process of dispute resolution through courts. It consists of a set of
practices and techniques to resolve disputes outside the courts.
Since it actively involves parties themselves to settle their disputes, it
results in the amicable settlement of disputes, which is not possible
generally through courts. Hence, these practices are escape routes from the
tiresome adjudication process. Many of such practices have evolved to
settle the disputes with minimum adverse impact on the relationship
between the parties. Mahatma Gandhi has said, “I realized that the true
function of a lawyer was to unite parties.”
Hence, the role of lawyers in promoting non-adversarial dispute settlement
mechanisms is undoubtedly very significant. The ADR techniques mainly
include arbitration, conciliation, mediation, and negotiation. In India, Lok

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Adalat stands as another additional form of ADR mechanism, which
combines different techniques like conciliation, mediation, and negotiation.
Mediation involves the amicable settlement of disputes between the
parties with the help of a mediator. The task of the mediator is to bring
the parties together to the process of amicable settlement of their
disputes. A mediator would influence the parties to cut down their demands
with a view to reaching a mutually acceptable solution. Hence, the
mediator plays the role of a facilitator in attaining cooperation between
the parties to the dispute. Mediation lays emphasis on the parties’ own
responsibilities for making decisions that affect their lives instead of a
third party judging the fate of parties to the dispute.
Negotiation closely resembles mediation. However, it is more often referred
to as a method wherein the parties to the dispute themselves would settle
their disputes. The negotiation process provides the parties an opportunity
to exchange ideas, identify the irritant points of differences, find a solution,
and get a commitment from each other to reach an agreement.
Lok Adalat is a unique system developed in India.
It means people’s court. It is a forum where voluntary effort at bringing
about a settlement of disputes between the parties is made through
conciliatory and persuasive means. It encompasses negotiation, mediation
and conciliation as tools to settle disputes between the parties. Lok Adalats
have been given the powers of a civil court under the Code Civil Procedure.
All families at certain times experience difficulties which can be named as
a family dispute. Similar controversies range from matters similar as
controversies between husband and woman, relationship breakdowns,
children’s interest, monetary support for children and property agreement.

• Labour and Industrial Disputes

Use of ADR in labour disputes may be helpful for speedier and effective
settlement of dispute without hampering the relations of persons employed
in industry. Because of the various benefits and characteristics of ADR
system, even international institutions like UN and ILO are promoting the
use of ADR in labour disputes. ADR may not produce the result in each case,
but it will definitely be helpful in reducing the disputes. Therefore in

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country like India, wherein, courts are over burdened with thousands of
cases, and majority of labour class is poor (especially in unorganized sector)
there is strong case for enhanced use of ADR mechanism for resolution of
labour disputes.
Collective Bargaining is a technique by which dispute as to conditions of
employment, are resolved amicably, by agreement, rather than by coercion.
The dispute is settled peacefully and voluntarily, although reluctantly,
between labour and management.12 In the context of present day
egalitarian society, with its fast changing social norms, a concept like
‘collective bargaining’ is not a capable of a precise definition. The content
and Scope collective bargaining also varies from country to country.
Broadly Speaking Collective bargaining is a process of bargaining between
employers and workers, by which they settle their disputes relating to
employment or non-employment , terms of employment or conditions of
the labour of the workman, among themselves, on the strength of the
sanctions available to each side .13 Occasionally, such bargaining results in
an amicable settlement, arrived at voluntarily and peacefully , between the
parties. But quite often, the workers and employers have to apply sanctions
by resorting to weapons of strike and lockouts, to pressurize one another,
which makes both the sides aware of the strength of one another and that
finally forces each of them to arrive at a settlement in mutual interest . It
is thus the respective strength of the parties which determine the issue,
rather than the wordy duals which are largely put on for show, as an
element of strength in one party is by the same token, an element of
weakness in another.
The final outcome of bargaining may also depend upon the art, skill and
dexterity of displaying the strength by the representatives of one party to
the other.
Negotiation: Negotiation is one of the principal means of settling labour
disputes. However, due to lack of trust between the employers and
workmen or their trade unions or inter-rivalry of the trade unions and the
employers being in a commanding position, many a time negotiations fail.
Through Amendment in the Act by Act 46 of 1982 Chapter II B providing for
reference of certain individual disputes to Grievance Settlement Authority
has been inserted in the Act. Under this Chapter, Section 9© has made it
obligatory for the employers to make provision for Grievance Settlement
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Authority for settlement of industrial disputes connected with an
individual workman employed in an establishment in which fifty or more
workmen are employed or have been employed on any day. In the preceding
twelve months. This amendment however even inspite of having been made
twenty one years back has not seen the light of the day.

• Consumer Disputes
Alternative dispute resolution (ADR) implies privately addressing any issues
out of the court with the help of an unprejudiced dispute resolution body.
Settling consumer disputes this is simpler, quicker and more affordable
than going to court.
https://viamediationcentre.org/readnews/MzI3/Alternative-Dispute-
Resolution-in-Consumer-
Disputes#:~:text=Alternative%20dispute%20resolution%20(ADR)%20implies,
affordable%20than%20going%20to%20court

• Accidents Claims
https://viamediationcentre.org/readnews/MzQ0/Arbitration-in-Car-
Accident-injury-claims

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