ALTERNATIVE DISPUTE RESOLUTIONS (ADR)
The Indian Arbitration and Conciliation Act, (Amendment) 2019 the governing arbitration statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.
Previous statutory provisions on arbitration were contained in three different enactments, namely, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 and also the Acts of 1937 and 1961.
ADR involves following kind of services :
Arbitration is a form of alternative dispute resolution (ADR), used in place of litigation (going to court) in the hope of settling a dispute without the cost and time of a court cage Litigation is a court-based process that involves a decision that is binding on both parties and a process of appealing the decision.
The differences between arbitration and litigation involve the processes themselves and the result of decisions on the disputes. Both are formal processes, but arbitration in many cases is less costly and results in shorter settlement times.
Mediation is an informal and flexible dispute resolution process. The mediator's role is to guide the parties toward their own resolution. Through joint sessions and separate caucuses with parties, the mediator helps both sides define the issues clearly, understand each other's position and move closer to resolution of their dispute
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.
At Dr. Khattri & Associates, our team of best arbitration lawyers provide various legal services under the law of arbitration. Below are the same listed :
Application before the High Court for appointment of arbitrator;
Petition before the court seeking Interim relief before or at the stage of arbitration proceedings;
Petition under section 34 of Arbitration Act, 1999 seeking set aside of the award;
Execution petition seeking realization of the arbitration award before civil court.
Appear before arbitrators across the country;
Arbitration in Commercial disputes
Domestic and International Arbitration
Enforcement of Awards in India and outside India
Types of ADR
The most common forms of ADR for civil cases are conciliation, mediation, arbitration, neutral evaluation, settlement conferences and community dispute resolution programs.
Facilitation is the least formal of the ADR procedures. A neutral third-party works with both sides to reach a resolution of their dispute. Facilitation assumes that the parties want to reach a settlement. The negotiation is done through telephone contacts, written correspondence, or via e-mail. Facilitation is sometimes used by judges at settlement teleconferences exploring alternatives to taking the dispute to trial.
Mediation is more formal but still leaves control of the outcome to the parties. An impartial mediator helps the parties try to reach a mutually acceptable resolution to the dispute. The parties control the substance of the discussions and any agreement reached. A typical session starts with each party telling their story. The mediator listens and helps them identify the issues in the dispute, offering options for resolution and assisting them in crafting a settlement.
Mediation can take many forms, depending on the needs of the parties, such as:
Face to face – parties directly communicate during the process,
Shuttle – the mediator separates the parties and shuttles between each one with proposals for settlement,
Facilitative – the mediator helps the parties directly communicate with each other, or
the mediator makes an assessment of the merit of the parties’ claims during separate meetings and may propose terms of settlement.
When Should You Use Mediation?
Mediation should be considered when the parties have a relationship they want to preserve. So when family members, neighbors or business partners have a dispute, mediation may be the best ADR procedure to use. Mediation is also effective when emotions may get in the way of a solution. A mediator can help the parties communicate in a non-threatening and effective manner.
Mediation is available to the parties at any point in the litigation process including through the appeal.
Arbitration is the most formal of the ADR procedures and takes the decision making away from the parties. The arbitrator hears the 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 usually relaxed. Each party can present proofs and arguments at the hearing. There isn’t, however, any facilitation discussion between the parties. Unlike other forms of ADR, the award is often supported by a reasoned opinion (though the parties can agree that no opinion will issue).
Arbitration can be “binding” or “non-binding.” Binding arbitration means the parties have waived their right to a trial, agree to accept the arbitrator’s decision as final and, usually, there is no right of appeal of the decision. If there is a binding arbitration clause in a contract, the matter must proceed to arbitration and there is no trial.
Non-binding arbitration means the parties can request a trial if they don’t accept the arbitrator’s decision. Some courts will impose costs and fines if the court decision is not more favorable than that awarded in arbitration. Non-binding arbitration is increasingly rare.
When Should You Use Arbitration?
Arbitration is good for cases where the parties want a third person to settle the dispute but want to avoid the cost of money and time that accompanies a court trial. It is also appropriate where the parties want a decision maker experienced in the subject of the dispute.
ADR provides a viable option for those who prefer to stay out of court and has many potential advantages for most litigants, including:
Less emotional stress
Flexibility with rules and procedures
Control over the results