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DISSERTATION
ON
MECHANISMS OF ADR

“STUDY ON ALTERNATIVE DISPUTE RESOLUTION”

SUBMITTED BY:

SAJJAN KHATANA
ENROLLMENT NO: - 220LLM008

GUIDED BY: -
PROF. MR. VIPUL GAUR

IN PARTIAL FULFILLMENT FOR THE AWARD OF THE

MASTER OF LAW DEGREE – LLM

SUSHANT UNIVERSITY
(SECTOR 55, GOLF COURSE ROAD, GURGAON, HARYANA-122003)
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DECLARATION

I, SAJJAN KHATANA certify that the work contained in this thesis is my own
honest work done under the guidance of PROF. MR. VIPUL GAUR for the
period from February, 2023 to May, 2023 at Sushant University, School of Law.
I have not submitted the matter contained in this dissertation anywhere else for
the award of any other title/diploma. I declare that I have faithfully
acknowledged, and referenced the researchers wherever their work has been
cited in the text and text of the thesis. I further confirm that I have not
deliberately picked up other people's work, paragraphs, text, data, results, etc.
reported in journals, books, magazines, reports, etc. or available on websites and
have not included them in this dissertation and cited as my own work. Each
such context was listed with the author's name.

SAJJAN KHATANA

Place: - GURGAON

Date: 16-05-2023
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SUSHANT UNIVERSITY
SECTOR-55, GOLF COURSE ROAD, GURGAON, HARYANA-122003

CERTIFICATE

This is to certify that the Dissertation titled “MECHANISMS OF ALTERNATE

DISPUTE RESOLUTION” submitted by “SAJJAN KHATANA” as a part of 1 year

Master of Law Degree -LLM Program at SUSHANT UNIVERSITY is a record of bonafide

work carried out by him under our guidance.

The content included in the Dissertation has not been submitted to any other University or institution for

accord of any other degree or diploma.

Prof. MR. VIPUL GAUR

(Guide Name)
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ACKNOWLEDGMENT

My deepest sense of gratitude to all the persons who have been my constant
support, source of encouragement and inspiration and have helped me in
successfully compiling and completing this Report in time bound submission.

I take profound sense of pride to convey my gratefulness towards my mentor

PROF. MR. VIPUL GAUR as his help and guidance has made this
dissertation possible.

I would also like to thank my professors, my family and my friends for being a
fountain of love and support me at the time of drafting of this report. Great deal
of appreciation goes to the contribution of my faculty members. I am also
thankful to the Head of the Department of Law.

Last but not the least I am extremely grateful to the vehement support and
research assistance of Indian Law Institute and Indian Society of International
Law. Without their research guidance and their library access this dissertation
would have been an unachievable dream.
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CONTENTS

Chapter 1

1.1 The first chapter deals with concept and meaning of Alternative dispute
resolution in India.
1.2 Historical background of alternative dispute resolution.
1.3 The chapter then moves into definition of ADR and statutory definition
of ADR.
1.4 The chapter then handle the nature of the alternative dispute resolution.
1.5 The Commission’s approach to alternative dispute resolution, in
particular mediation and conciliation and the role of the courts in
encouraging parties to agree solutions.
1.6 The chapter lays down the components of alternative dispute resolution

Chapter 2

2.1 Kinds of Alternative dispute resolution: -

 ARBITRATION: -General provisions of arbitration, Arbitration

agreement, composition of arbitral tribunal, making of arbitral
award and termination of proceedings.
 CONCILIATION: -Meaning of Conciliation, application and
scope of conciliation, commencement of conciliation
proceedings, number of conciliators, appointment of conciliators,
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Role of conciliator, settlement agreement, termination of

conciliation proceedings.
 MEDIATION: -Meaning of mediation, Appointment of
mediator/conciliator, Panel of mediators/conciliators,
Qualifications of persons to be empanelled under Rule 3,
Disqualifications of persons, Duty of mediator/conciliator of
disclose certain facts, Procedure of mediation/conciliation,
Settlement Agreement.
 NEGOTIATION: -Meaning of Negotiation, Types of
negotiation- distributive, integrative, and bad faith negotiation.
 LOKADALAT: Concept of Lok Adalat,
Nature of Cases to be Referred to Lok Adalat,
Levels and Composition of Lok Adalats.

Chapter 3

3.1 This chapter lays down the several advantages of Alternative dispute
resolution over litigation

3.2Need for alternative dispute resolution in India,

3.4Definition of statutory mediation and conciliation.

3.5Distinguish between Arbitration and conciliation.

Chapter 4

4.1The fourth chapter is about Role of Alternative dispute resolution.

4.2Principles of the Alternative dispute resolution.

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4.3 Concept of alternative Dispute Resolution under constitution.

Chapter 5

5.1 This chapter lays down the Latest cases upon the Alternative Dispute
Resolution

Chapter 6

6.1. This Chapter deals with judicial response of alternative dispute resolution.

6.2. Remedial measures and Suggestions

6.3 Conclusions

Bibliography
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LIST OF ABBREVIATION

NLSA.........................................................National Legal Services Authority

ADR…...……………….………………….…Alternative Dispute Resolution

AT……………………………………………………………Arbitral Tribunal

EMD …………………………………………European Mediation Directive

EFA..........................................................................Enforcement of Foreign
Awards

MED-ARB………………………………………………………Mediation-
Arbitration

NEPCA………………………………………………Nepal Council of
Arbitration

NJA………………………………………………National Judicial Academy

NJC………………………………………………Neighbourhood Justice Centre

No. ………………………………………………Number

ODR………………………………………………On-line Dispute Resolution

P. ………………………………………………Page
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PDRC………………………………………………Primary Dispute Resolution

Centre

PHILJA………………………………………………The Philippine Judicial

Academy

PMC………………………………………………………Philippine Mediation
Centre

PP. …………………………………………………………….………Pages

SAARC………………………………………………South Asian Association

for Regional Co-operation.

Sec. ………………………………………………Section
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TABLE OF CASES

 National Thermal Power ... vs Singer Company and Ors on 7 May,

1992, AIR 998, 1992 SCR (3) 106
 MMTC Limited vs Sterlite Industries (India) Ltd on 18 November,
1996
 Myers v Nottingham City Council 2601136/15
 Mist v Derby Community NHS Trust UKEAT/0170/15
 Uttam Singh Duggal& Co. Ltd. vs Union of India (UOI) And Ors. on
20 March, 1998, Equivalent citations: 72 (1998) DLT 798
 Lalit Kumar V. Sanghavi, Arising out of Special Leave Petition
(Civil) No.4267 of 2013
 Haresh Dayaram Thakur v. State of Maharashtra and Ors
 Tata AIG General Insurance Co vs Mrs. Bandana Devi on 25
February, 2010
 M/S. Afcons Infra. Ltd. & Anrvs M/S Cherian Varkey Constn ... on
26 July, 2010.
 Dinesh Kumar vs Balbir Singh and Ors. on 12 September, 2007, AIR
2008 HP 59, 2008 I ShimLC 54
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Chapter 1

CONCEPT & MEANING OF ALTERNATIVE

DISPUTE RESOLUTION IN INDIA

Introduction:

Alternative dispute resolution (ADR; known in some countries such as India,[1]

as external dispute resolution) involves dispute resolution processes and
techniques that serve as a means for disputing parties to reach an agreement
without litigation. It is an umbrella term for the ways in which parties can settle
disputes with (or without) the help of a third party.

Alternative Dispute Resolution (ADR) is a term that refers to several different

methods of resolving disputes outside of traditional legal and administrative
forums. These philosophically similar methodologies, which include various
types of arbitration and mediation, have surged in popularity in recent years as
companies and courts have become extremely frustrated with the cost, time and
emotional costs associated with resolving disputes through conventional legal
channels.

Despite historical opposition to ADR by many popular parties and their

advocates, ADR has gained wide acceptance in recent years both among the
general public and among lawyers. Indeed, some courts now require parties to
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resort to some form of alternative dispute resolution, usually mediation, before

allowing the parties' cases to proceed (the European Mediation Directive (2008)
expressly provides for so-called 'compulsory' mediation; that is that
participation is mandatory, not that settlement must be achieved through
mediation). In addition, parties to M&A transactions are increasingly turning to
ADR to resolve post-acquisition disputes.

The growing popularity of ADR can be explained by the growing caseload of

traditional courts, the perception that ADR brings lower costs than litigation, a
preference for confidentiality, and the desire of some parties to have more
control over the selection of an individual or individuals to decide their dispute.
[3] Some of the senior judges in certain jurisdictions (which include England
and Wales) strongly support this (ADR) use of mediation to settle disputes.[4]

Analysts also watch the rise of ADR methods to change attitudes within the US
court system. Business Horizons contributor Stephen L. Hayford noted that until
the 1980s, "attempts by business firms to avoid litigation ... were frustrated by
the courts' longstanding hostility to any device that infringed their jurisdiction."
However, during the 1980s, Hayford noted that a new body of case law
emerged which endorsed the use of binding arbitration clauses in commercial
contracts between companies, business partners, employees and employers, etc.
This body of law continued to develop in the late 1990s. For example, the
Alternative Dispute Resolution Act of 1998 expanded ADR mechanisms
throughout the federal district court system. As Simeon Baum stated in the CPA
Journal, "the law recognizes that ADR, when properly adopted, practiced, and
administered, can not only save time and money and reduce litigation burden,
but also "provide a number of benefits, including greater party satisfaction,
 P a g e | 14

innovative methods of resolution disputes and greater efficiency in reaching

settlements.”

Today, legal and corporate acceptance of ADR as a legitimate means of

resolving commercial disputes is reflected in the language of commercial
contracts. ADR contingencies have become a standard feature in many contracts
between companies and their employees, partners, customers and suppliers. As
noted by the U.S. News & World Report, "virtually every state has
experimented with some form of ADR". With the growth of ADR has come a
growing number of organizations and associations that aim to assist commercial
entities in using these alternative dispute resolution methods.

Although certain ADR techniques are well established and frequently used—for
example, mediation and arbitration—
alternative dispute resolution has no fixed definition. The termalternative disput
e resolution includes a wide range of processes, many with little in commonexc
ept that each is an alternative to full-blown litigation. Litigants, lawyers, and jud
ges areconstantly adapting existing ADR processes or devising new ones to mee
t the unique needsof their legal disputes. The definition of alternative dispute res
olution is constantly expandingto include new techniques.

HISTORICAL BACKGOUNND OF ALTRNATIVE DISPUTE

RESOLUTION

Out-of-court dispute resolution is not new; Societies around the world have
long used non-judicial, indigenous methods to resolve conflicts. What is new
is the extensive promotion and dissemination of alternative dispute resolution
models, the wider use of court-related alternative dispute resolution and the
 P a g e | 15

increasing use of alternative dispute resolution as a tool to realize broader

goals than the resolution of specific disputes.

The system of alternative dispute resolution is not a new experience even for
the inhabitants of this country. It has been prevalent in India since time
immemorial. Legal history shows that for centuries people have
experimented with procedures to make it easy, cheap, reliable and convenient
to get justice.

Proceeding for justice testifies to the social consciousness of the people.

Wherever law is the measure of society's progress. The ancient dispute
resolution system made a significant contribution to the resolution of disputes
between families, social groups and minor business and property disputes.
The leading role was played by village-level institutions where disputes were
resolved by elders, including Village Councils (popularly called Panchayats),
an informal form of mediation. In earlier days, disputes hardly reached the
courts. Decisions made by the Elder Council were respected by all.
Subsequently, however, good was followed by destruction, the system itself
lost its impression due to the intervention of political and communal
elements.

POSITION OF ADR IN ANCIENT INDIA: -

It is generally assumed that the commonly prevailing system of government

in ancient India was monarchy and that instances of republic were either
 P a g e | 16

exceptions or deviations. This view is based on the seeming perception that

ever since there were kings in ancient India, the system of monarchy was
there.3

At the beginning of the Vedic age, people did not have a settled life and were
nomadic, but with the development of agriculture, people began to settle in
groups. 4 The first Indian civilization arose in the Indus Valley about 2,600
years before Christ. In fact, it spanned modern India and Pakistan. In 6,500
BC, people started farming in this area. In 5500 BC they invented ceramics.
Around 2,600 BC, a prosperous agricultural society arose. Farmers used
bronze tools. They grew wheat, barley and peas. They also raised cattle, goats
and sheep. Water buffaloes were used to pull carts. People passed on cotton
and traded with other cultures such as present-day Iraq. Some people from
the Indus Valley began to live in cities.5 The people from the Indus Valley
were most likely Dravidians who may have been pushed into southern India
when the Aryans, with their more advanced military technology, began
migrating into India around 2000 BC.

Although the Indus Valley script remains undeciphered to this day, numerous
seals discovered during excavations, as well as sculptures and pottery, not to
mention the ruins of many Indus Valley cities, have allowed scholars to
construct a reasonably plausible account of the Indus Valley Civilization.6

3 http://www.samarthbharat.com/files/republic.pdf
4 http://www.culturalindia.net/indian-history/ancient-india/ancient-government.html
5 http://www.localhistories.org/india.html

The Harappans may have developed the first democracy. Very little evidence
of a king has been found in the Indus Valley, except for one white priest-king
 P a g e | 17

idol and a silver crown; it is not enough to show that the "kingdom" was the
rulers. Instead, the empire was divided into regions with half a dozen cities
acting as capitals and ruled by a group of people. Archaeologist Jonathan
Mark Kenoyed has speculated that Harappan rulers were traders, ritual
specialists, and individuals in control of important resources, rather than just
one social group controlling the rest. However, from the construction of the
cities, it appears that there were certain social strata, as the citadel is usually
20 feet higher than the middle and lower city. The decline of the Indus
Valley Civilization saw the arrival of the Aryans in India. From their original
settlements in the Punjab region, they gradually began to penetrate eastward,
clearing dense forests and establishing "tribal" settlements along the Ganges
and Yamuna plains between 1500 BC and 800 BC. By 500 BC, most of
northern India was settled and cultivated, facilitated by growing knowledge
of the use of iron tools, including bullock-drawn ploughs, and spurred by a
growing population that provided voluntary and forced Labor. As riverine
and inland trade flourished, many cities along the Ganges became centres of
trade, culture, and luxury.

Growing populations and overproduction provided the basis for the

emergence of independent states with shifting territorial boundaries that often
resulted in disputes. In earlier times, disputes were resolved peacefully by the
intervention of kulas (family or clan gatherings), srenis (guilds of men
practicing the same profession), parish priests (assembly of learned men who
knew the law), before the king came to decide the disputes. The political
system of the Aryans in their early days here was wonderfully complex, if
quite ingenious. They hung out together in small village settlements (which
later grew into kingdoms) and the basis of their political and social
organization was, not surprisingly, the clan or kula. This society was
 P a g e | 18

somewhat militant in nature and was very much a patriarchal society, the man
of the house was expected to keep his flock under control. Groups of kulas
together formed a Grama or village headed by a Gramina. Many villages
formed another political unit called Visya, headed by Visyapati. The Visyas in
turn gathered under Jana ruled by a Rajana or king. However, the exact
relationship between grama, visya and Jana has not been clearly defined
anywhere.
In ancient India there were several degrees of arbitration, such as the Puga or
council of persons who belonged to different sects and tribes but lived in the
same locality; Sreni or gatherings of traders and artisans belonging to different
tribes but somehow connected with each other, Kulas or groups of persons
bound together by family ties. From early times the decisions of Panchayats
were accepted as binding. According to Colebrook (an English scholar and
commentator on ancient Hindu law), panchayats were various systems of
arbitration subordinate to regular courts of law. The decision of the Kula or
kinship group was subject to revision by the Sreni, who in turn could be
revised by the Puga. The decision of the Puga could be appealed to the
Pradvivac and finally to the sovereign and the prince. In ancient times, Kula,
sreni and Gana were the three types of folk courts, each more important than
the last. When and where these three failed to do proper justice, the king or his
officers were to intervene. Unfortunately, Sukra does not explain the nature of
the above three types of judgments. But on the evidence of the Mitakshara it
can be said that the kula court consisted of a group of close or distant relations.
It is important to note that in ancient India, joint families were the order of the
day and were usually very large. So, if there was a disagreement or dispute
between two family members, it was usually settled by her elders. If they
failed to reach any compromise, the sreni or guild courts intervened. Sreni, or
guilds, became a prominent feature of commercial life in ancient India from
500 B.C.
 P a g e | 19

DEFINITION AND STATUTORY DEFINITION OF ALTERNATIVE

DISPUTE RESOLUTION

Settlement of disputes through reference to a third party is a part of the

volkgiest of India since times immemorial. It has undergone a phenomenal
metamorphosis, growing from the stage of village elders sitting under a banyan
tree and resolving disputes to the stage of gaining a statutory recognition. India
has put in place a progressive piece of legislation which is essentially based on
the Model Law and the UNCITRAL Arbitration Rules. The Parliament enacted
the Arbitration and Conciliation Act of 1996 with a view to making arbitration
less technical and more useful and effective, which not only removes many
serious defects of the earlier arbitration law, but also incorporates modern
concepts of arbitration. What it now needs is inculcation of the culture of
arbitration within the bar, the bench and the arbitral community.

“I realized that the true fiction of a lawyer was to unite parties… A large part of
my time during the 20 years of my practice as a lawyer was occupied in
bringing out private compromise of hundreds of cases. I lost nothing thereby-
not even money, certainly not my soul.”

– Mahatma Gandhi

ADR is not immune to criticism. Some saw it as a waste of time; others

recognize the risk that it will only be brought to see what the minimum offer is
that the other side would accept.[3] Delaying cases in court, for whatever
reason, has really defeated the purpose for which people go to court. to the
courts with a request for redress. In many parts of India, rapid development has
meant increased caseloads for already overburdened courts, further leading to
notoriously slow decision-making. As a result, ADR mechanisms have become
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more important for businesses operating in India and for those doing business
with Indian firms.[1] Alternative dispute resolution (hereinafter referred to as
ADR) is therefore necessary as a replacement for existing methods of dispute
resolution, such as litigation, conflict, violence and physical altercations.

STATUTORY DEFINITION

The Code of Civil Procedure of 1859 dealt with arbitration in suits in its
sections 312 to 325, while sections 326 and 327 provided for arbitration without
judicial intervention. The Civil Procedure Code (Act 5 of 1908) repealed the
Act of 1882. The Civil Procedure Code of 1908 provided that cases must be
encouraged to submit to alternative dispute resolution under Article 89(1).

Courts are required by the First Amendment, Order XXXII A, Rule 3, to

endeavour to assist the parties in the first instance in reaching a settlement of the
subject matter of the action.[8] The second schedule dealt with arbitration in
court disputes, briefly providing for arbitration without court intervention.
Order I, Rule 1 of the Schedule says that if in any dispute all the parties shall
agree that any matter in dispute between them shall be submitted to arbitration,
they may at any time before the judgment is pronounced; ask the court to issue a
preliminary ruling. In a way, this schedule supplemented the provisions of the
1899 Arbitration Act.

NATURE OF ALTERNATIVE DISPUTE

RESOLUTION

Alternative dispute resolution (ADR) is generally classified into at least four

types: negotiation, mediation, collaborative law, and arbitration. (Sometimes
a fifth type, conciliation, is included as well, but for present purposes it can be
 P a g e | 21

considered a form of mediation. ADR can be used alongside existing legal

systems such as Sharia courts in common law jurisdictions such as the UK.

ADR traditions vary somewhat by country and culture. There are significant
commonalities that justify a main topic, and the differences of each country or
region should be delegated to subpages. ADR is of two historical types. First,
ways to resolve disputes outside official judicial mechanisms. Second, informal
methods associated with or associated with official judicial mechanisms. In
addition, there are stand-alone or independent methods such as mediation
programs and ombuds offices within organizations. The methods are similar,
whether they are hinged or not, and generally use similar tools or skill sets,
which are essentially subsets of negotiation skills.

ADR includes informal tribunals, informal mediation processes, formal

tribunals and formal mediation processes. The classic formal court forms of
ADR are arbitration (both binding, advisory or non-binding) and private judges
(either alone, in panels, or in summary jury trials).

The classic formal mediation process is referral to mediation before a court-

appointed mediator or mediation panel. Structured transformative mediation, as
used by the US Postal Service, is a formal process. Classic informal methods
include social processes, referrals to informal authorities (such as a respected
member of a business or social group), and intercession. The main differences
between formal and informal processes are (a) the reliance on judicial process
and (b) the possession or absence of a formal structure for applying the process.

For example, free negotiation is just using tools without any process. Labor
arbitration bargaining is the use of tools in a highly formalized and controlled
environment.

THE COMMISSION APPROACH TO

ALTERNATIVE DISPUTE RESOLUTION
 P a g e | 22

In preparing its Consultation Paper and this Report, the Commission ‘s

approach is based on the key objective that civil disputes are resolved in a way
that meets the needs of the parties and conforms to fundamental principles of
justice. This objective involves several related issues, which the Commission
described in the Consultation Paper and reiterates here to underline its overall
approach to ADR, notably mediation and conciliation.

1. The role of the courts in encouraging parties to agree solutions: -

Clearly, from one perspective, the word "alternative" refers to looking

outside the courtroom environment to resolve some disputes. In this regard,
the Commission fully supports the long-standing approach of the legal
profession and the courts that, where appropriate, parties involved in civil
disputes should be encouraged to explore whether their dispute can be
resolved by agreement, either directly or with the assistance of a mediator or
conciliation body third parties, rather than resorting to a formal "winner
versus loser" court decision. This happens every day in the courts, in family
disputes, in large and small commercial claims, and in boundary and other
property disputes between neighbors.3 In this regard, there are strong reasons
to support and encourage parties to reach a settlement by agreement,
especially in disputes, where emotional issues are combined with legal ones,
provided that this alternative process meets basic principles of justice.
2. Delays in the court process and the development of ADR: -

In addition to the recognition by the legal profession and the courts that some
disputes can be in addition to the recognition by the legal profession and the
courts that some disputes can be better resolved by agreement rather than
court decision, the emergence in Ireland (and internationally) of alternative
dispute resolution processes has also been associated with real problems of
 P a g e | 23

delays in the court system. An undoubted advantage of mediation and

conciliation is the ability to get speedy access to a process that may produce a
satisfactory outcome for the parties in a short space.

THE COMPONENTS OF THE ALTERNATIVE DISPUTE

RESOLUTION

1. Arbitration: -

The process of arbitration can start only if there exists a valid Arbitration
Agreement between the parties prior to the emergence of the dispute. As per
Section 7, such an agreement must be in writing. The contract, regarding which
the dispute exists, must either contain an arbitration clause or must refer to a
separate document signed by the parties containing the arbitration agreement.
The existence of an arbitration agreement can also be inferred by written
correspondence such as letters, telex, or telegrams which provide a record of the
agreement. An exchange of statement of claim and defence in which existence
of an arbitration agreement is alleged by one party and not denied by other is
also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the
other party does not cooperate, the party can approach the office of Chief
Justice for appointment of arbitrator. There are only two grounds on which a
party may challenge the appointment of an arbitrator – reasonable doubt as to
the arbitrator's impartiality and the arbitrator's lack of proper qualifications as
required by the arbitration agreement. The sole arbitrator or panels of arbitrators
so appointed constitute the Arbitration Court. Except for some preliminary
measures, there is very little room for judicial intervention in arbitration. The
arbitral tribunal has jurisdiction over its own jurisdiction. Therefore, if a party
 P a g e | 24

wants to challenge the jurisdiction of the arbitration court, it can only do so

before the court itself. If the tribunal rejects the application, there is little a party
can do to go to court after the tribunal has made an award. Section 34 provides
certain grounds on which a party may appeal to the Chief Civil Court of original
jurisdiction to set aside the award. After the deadline for filing an appeal to
annul the award or in case of rejection of such an appeal, the award is binding
for the parties and is considered a decision of the court.

2. Conciliation: -

Conciliation is a less formal form of arbitration. This process does not require
an existence of any prior agreement. Any party can request the other party to
appoint a conciliator. One conciliator is preferred but two or three are also
allowed. In case of multiple conciliators, all must act jointly. If a party rejects
an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of
the dispute and the points at issue. Each party sends a copy of the statement to
the other. The conciliator may request further details, may ask to meet the
parties, or communicate with the parties orally or in writing. Parties may even
submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may
draw up the terms of settlement and send it to the parties for their acceptance. If
both the parties sign the settlement document, it shall be final and binding on
both.
Note that in USA, this process is similar to Mediation. However, in India,
Mediation is different from Conciliation and is a completely informal type of
ADR mechanism.
 P a g e | 25

3. Mediation: -

Mediation, a form of alternative dispute resolution (ADR) or "reasonable

dispute resolution", aims to help two (or more) disputants reach an agreement.
The parties themselves determine the terms of any settlement reached – rather
than accepting something imposed by a third party. States, organizations,
communities, individuals or other representatives who have a vested interest in
the outcome can join disputes (as parties). Mediators use appropriate techniques
and/or skills to open and/or improve dialogue between disputing parties in order
to help the parties reach an agreement (with concrete effects) on the disputed
matter. Usually, all parties must consider the mediator to be impartial.

Disputants can use mediation in a variety of disputes, such as commercial, legal,

diplomatic, employment, community and family matters. A third-party agent
can make contracts and mediate between (say) unions and corporations. When a
Labor union goes on strike, a dispute arises and the corporation hires a third
party to intervene in an attempt to settle the contract or agreement between the
union and the corporation.

4. Negotiation: -

Negotiation is a dialogue intended to resolve disputes, to produce an agreement

upon courses of action, to bargain for individual or collective advantage, or to
craft outcomes to satisfy various interests. It is the primary method of
alternative dispute resolution.
Negotiation occurs in business, non-profit organizations, government branches,
legal proceedings, among nations and in personal situations such as marriage,
divorce, parenting, and everyday life. The study of the subject is called
negotiation theory. Those who work in negotiation professionally are called
 P a g e | 26

negotiators. Professional negotiators are often specialized, such as union

negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators,
or may work under other titles, such as diplomats, legislators or brokers.

Chapter 2

KINDS OF ALTERNATIVE DISPUTE

RESOLUTION

 Arbitration

 Conciliation

 Mediation
 P a g e | 27

 Negotiation

 Lok Adalat
 P a g e | 28

ARBITRATION

GENERAL PROVISIONS OF ARBITRATION: -

Definitions. - (1) In this Part, unless the context otherwise requires, -

(a) “Arbitration” means any arbitration whether or not administered by

permanent arbitral institution;

(b) “Arbitration agreement” means an agreement referred to in section 7;

(c) “Arbitral award” includes an interim award;

(d) “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators;

(e) “Court” means the principal Civil Court of original jurisdiction in a district,
and includes the High Court in exercise of its ordinary original civil jurisdiction,
having, jurisdiction to decide the questions forming the subject-matter of the
arbitration if the same had been the subject-matter of a suit, but does not include
any civil court of a grade inferior to such principal Civil Court, or any Court of
Small Causes;
 P a g e | 29

Arbitration, a form of alternative dispute resolution (ADR), is a technique for

the resolution of disputes outside the courts. The parties to a dispute refer it
to arbitration by one or more persons (the "arbitrators", "arbiters" or "arbitral
tribunal"), and agree to be bound by the arbitration decision . A third party
reviews the evidence in the case and imposes a decision that is legally binding
on both sides and enforceable in the courts.[1]

ARBITRATION AGREEMENT: -

(1)(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 1 [including communication through electronic means]
which provide a record of the agreement; or FOOTNOTE1. Ins. by Act 3 of
2016, s. 3 (w. e. f. 23-10-2015).

(c) An exchange of claim and defence in which the existence of the agreement
is alleged by one party and not denied by the other.

(5) There 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.
 P a g e | 30

“National Thermal Power ... vs Singer Company and Ors on 7 May, 1992,
AIR 998, 1992 SCR (3) 106”

The National Thermal Power Corporation (the 'NTPC') appeals from the
judgment of the Delhi High Court in FAO (OS) No. 102/90 dismissing the
NTPC's application filed under sections 14,30 and 33 of the Arbitration Act,
1940 (No. X of 1940) to set aside an interim award made at London by a
tribunal constituted by the International Court of Arbitration of the International
Chamber of Commerce (the "ICC Court") in terms of the contract made at New
Delhi between the NTPC and the respondent the Singer Company (the 'Singer')
for the supply of equipment, erection and commissioning of certain works in
India. The High Court held that the award was not governed by the Arbitration
Act, 1940; the arbitration agreement on which the award was made was not
governed by the law of India; the award fell within the ambit of the Foreign
Awards (Recognition and Enforcement) Act, 1961 (Act 45 of 1961) (the
'Foreign Awards Act'); London being the seat of arbitration, English Courts
alone had jurisdiction to set aside the award; and, the Delhi High Court had no
jurisdiction to entertain the application filed under the Arbitration Act, 1940.
The NTPC and the Singer entered into two formal agreements dated 17.8.1982
at New Delhi. The General Terms and Conditions of Contract dated 14.2.81 (the
'General Terms') are expressly incorporated in the agreements and They state:

"The laws applicable to this Contract shall be the laws in force in India. 1 The
Court of Delhi shall have exclusive jurisdiction in all matters arising under this
Contract." (7.2) The General Terms deal with the special responsibilities of
foreign contractors and Indian contractors. The Singer being a foreign
contractor, is governed by the provisions relating to the foreign contractors. The

1
https://indiankanoon.org/doc/633347/
 P a g e | 31

General Terms further provide for The NTPC and the Singer entered into two
formal agreements dated 17.8.1982 at New Delhi. The General Terms and
Conditions of Contract dated 14.2.81 (the 'General Terms') are expressly
incorporated in the agreements and they state:

"The laws applicable to this Agreement are the laws in force in India. The
Courts of Delhi shall have exclusive jurisdiction over all matters arising out of
this Agreement." (7.2) The General Conditions deal with the special obligations
of foreign suppliers and Indian suppliers. The singer as a foreign supplier is
governed by the provisions relating to foreign suppliers. The general conditions
further regulate the resolution of disputes by amicable means, otherwise by
arbitration. Clause 6 of Article 27 of the General Conditions deals with
arbitration in relation to an Indian supplier and Article 7 of the said Article deals
with arbitration in relation to a foreign supplier. The latter provision states:
"27.7. In the case of a foreign supplier, the arbitration shall be conducted by
three arbitrators, each of whom shall be appointed by the owner and the
supplier, and the third shall be appointed by the president of the International
Chamber of Commerce.”, Paris. Except as provided above, the International
Chamber of Commerce Cancellation and Arbitration Rules shall apply to such
arbitrations. The arbitration will take place at the locations designated by the
arbitrators."

In respect of the Indian supplier, clause 6.2 clause 27 states that the arbitration
shall be conducted in New Delhi in accordance with the provisions of the
Arbitration Act, 1940. It reads: "27.6.2. The arbitration shall be conducted in
accordance with the provisions of the Indian Arbitration Act, 1940 or any
statutory modification thereof. The place of arbitration shall be New Delhi,
India." Settlement of disputes by amicable means, otherwise by arbitration,
where the Supreme Court has ruled that the proper law of the arbitration
 P a g e | 32

agreement is "usually" the proper law of the contract expressly chosen by the
parties. The court clarified that where the parties had expressly agreed on the
proper law of the contract but had not designated the proper law of the
arbitration agreement, "The contract, including the arbitration clause, shall be
governed by Indian law, although in certain respects the conduct of arbitration
may be exercised by foreign procedural law and the competent courts of that
country." it should be noted that the court stated that in "exceptional cases"
expressly designated the proper law of the contract may not be the proper law of
the arbitration agreement, even if the court did not elaborate on what
exceptional circumstances were involved. This judgment has been cited with
approval in several cases under the 1940 and 1996 Acts. Examples are
Sumitomo MANU/MH/0085/1996, Sumitomo v. ONGC AIR 1998 SC 825,
Eitzen Bulk A/S v. Ashapura Minechem Limited AIR 2011 Guj 13 and Aastha
Broadcasting Network Limited v. MANU/ Thaicom Public Company Ltd.
/4410/2011. In NTPC v. Singer, it was held:

"In the absence of an express choice of law governing the contract as a whole or
the arbitration agreement as such, there may be a presumption that the law of
the country where the arbitration is arranged is the proper law of the arbitration.
agreement. But that's just a rebuttable assumption." Therefore, if neither the
regular contract law nor the regular law of the arbitration agreement is chosen, it
would be considered that the seat of the arbitration would be the arbitration law.
This does not mean that where the governing law of the contract is expressly
chosen, the governing law of the arbitration agreement would still be the law of
the seat of the arbitration.

COMPOSITION OF ARBITRAL TRIBUNAL: -

 P a g e | 33

Number of arbitrators. – (1) The parties are free to determine the number of
arbitrators, provided that such number shall not be an even number.

(2) Failing the determination referred to in sub-section (1), the arbitral tribunal
shall consist of a sole arbitrator. 11.

Appointment of arbitrators. – (1) A person of any nationality may be an

arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6),
the parties are free to agree on a procedure for appointing the arbitrator or
arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with

three arbitrators, each party shall appoint one arbitrator, and the two appointed
arbitrators shall appoint the third arbitrator who shall act as the presiding
arbitrator.

(4) If the appointment procedure in sub-section (3) applies and- (a) A party fails
to appoint an arbitrator within thirty days from the receipt of a request to do so
from the other party; or (b) The two appointed arbitrators fail to agree on the
third arbitrator within thirty days from the date of their appointment, The
appointment shall be made, upon request of a party, 1 [the Supreme Court or, as
the case may be, the High Court or any person or institution designated by such
Court];

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a

sole arbitrator, if the parties fail to agree on the arbitrator within thirty days
from receipt of a request by one party from the other party to so agree the
appointment shall be made, upon request of a party, by the Chief Justice or any
person or institution designated by him.
 P a g e | 34

(6) Where, under an appointment procedure agreed upon by the parties,— (a) a
party fails to act as required under that procedure; or (b) the parties, or the two
appointed arbitrators, fail to reach an agreement expected of them under that
procedure; or (c) a person, including an institution, fails to perform any function
entrusted to him or it under that procedure, a party may request 1 [the Supreme
Court or, as the case may be, the High Court or any person or institution
designated by such Court] to take the necessary measure, unless the agreement
on the appointment procedure provides other means for securing the
appointment. 2 [(6A) 2The Supreme Court or, as the case may be, the High
Court, while considering any application under sub-section (4) or sub-section
(5) or sub-section (6), shall, notwithstanding any judgment, decree or order of
any Court, confine to the examination of the existence of an arbitration
agreement. (6B) The designation of any person or institution by the Supreme
Court or, as the case may be, the High Court, for the purposes of this section
shall not be regarded as a delegation of judicial power by the Supreme Court or
the High Court.]

(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-

section (6) to 3 [the Supreme Court or, as the case may be, the High Court or
the person or institution designated by such Court is final and no appeal
including Letters Patent Appeal shall lie against such decision].

1 [(8) The Supreme Court or, as the case may be, the High Court or the person
or institution designated by such Court, before appointing an arbitrator, shall
seek a disclosure in writing from the prospective arbitrator in terms of sub-
section (1) of section 12, and have due regard to— (a) any qualifications
required for the arbitrator by the agreement of the parties; and (b) the contents
of the disclosure and other considerations as are likely to secure the

2
Subs. by Act 3 of 2016, s. 6, for “the Chief Justice or any person or institution designated by him” .2. Ins. by s.
6, ibid.). 3. Subs. by s. 6, ibid., for “the Chief Justice or the person or institution designated by him is final”
 P a g e | 35

appointment of an independent and impartial arbitrator.] (9) In the case of

appointment of sole or third arbitrator in international commercial arbitration 2
[supreme court or a person or institution designated by that court] may appoint
arbitrators of a nationality other than that of the parties if the parties belong to
different nationalities. 3 [(10) The Supreme Court or the High Court, as the case
may be, may make such scheme for the disposal of matters conferred by
subsection (4) or subsection (5) as the said court thinks fit. or subsection (6)
thereto.] (11) Where more than one application under subsection (4) or
subsection (5) or subsection (6) has been made to the presidents of different
courts. Only the High Courts or their nominees have jurisdiction to decide the
application, 4 [various High Courts or their nominees, the High Court or its
nominee to whom the application was first made] under the relevant subsection.
5 [(12) (a) Where the matters referred to in paragraphs 4, 5, 6, 7, 8 and
paragraph 10 arise in an international commercial arbitration, a reference to “the
Supreme Court or, as the case may be, the High Court” in these subsections
shall be construed as a reference to "High Court"; and (b) If the matters referred
to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other
arbitration, a reference to “the Supreme Court or the High Court as the case may
be” in these subsections shall be construed as a reference to the "Supreme
Court" within whose local limits the principal civil court referred to in clause (e)
of sub-section (1) of section 2 is situated and, if the High Court is itself a court
referred to in that provision, to that High Court .] 6 [(13) An application made
under this section for the appointment of an arbitrator or arbitrators shall be
disposed of by the Supreme Court or the High Court or by the person or
institution appointed by such court, as the case may be, as expeditiously as
possible and endeavours shall be made to dispose of the matter within sixty
days. from the date of service of notice on the opposite party. 3(14) For the
purpose of determination of the fees of the arbitral tribunal and the manner of its
payment to the arbitral tribunal, the High Court may frame such rules as may be

3
Subs. by s. 6, ibid., for sub-section (10)
 P a g e | 36

necessary, after taking into consideration the rates specified in the Fourth
Schedule.4 Explanation.—For the removal of doubts, it is hereby clarified that
this sub-section shall not apply to international commercial arbitration and in
arbitrations (other than international commercial arbitration) in case where
parties have agreed for determination of fees as per the rules of an arbitral
institution.5]

MMTC Limited vs Sterlite Industries (India) Ltd on 18 November, 1996

J U D G M E N T J.S. VERMA, J.:

The point involved for decision is, the effect of The Arbitration
and Conciliation Acts 1996 (for short "New Act") in the present case on the
arbitration agreement made prior to the commencement of the New Act. Clause
VII of the agreement dated December 14, 1993 between the parties is, as under:

"VII. In the event of any question or dispute arising under or out of or

relations to the construction, meaning and operation or effect of this
agreement or breach thereof, the matter in dispute shall be referred to
arbitrator. Both the parties shall nominate one Arbitrator each and the
arbitrators shall appoint an umpire before proceeding with the reference.
The decision of arbitrators or in the event of their not agreeing the
decision of the umpire will be final and binding on the parties.6

(Emphasis supplied) Sterlite Industries (India) Ltd., - respondent, claimed that it

had not received certain dues under the contract from the appellant - MMTC
Ltd. and, therefore, it invoked the above arbitration clause in the agreement
between them by a letter dated January 19, 1996 which was received by the
MMTC Ltd. on January 31, 1996 on February 7, 1996 the respondent appointed
Shri M.N. Chandurkar, a former Chief Justice of Madras High Court, as its
arbitrator. The MMTC Ltd. claimed that arbitration could not be resorted to and,
therefore, it did not name its arbitrator. The Sterlite Industries (India) Ltd. filed
an application in the Bombay High Court for appointing an arbitrator in
accordance with the New Act.7

Before the High Courts learned counsel for the MMTC Ltd. contended that the
arbitration clause was not attracted but this objection was rejected. The other
4
Subs. by s. 6, ibid., for “the Chief Justice of India of India or the person or institution designated by him”
5
Ins. by s. 6, ibid.
6
The Arbitration and Conciliation Acts 1996
7
Subs. by s. 6, ibid., for sub-section (12)
 P a g e | 37

contention on behalf of the MMTC Ltd. was that the arbitration agreement
provided for the appointment of two arbitrators while Section 10 (l) of the New
Act does not envisage the appointment of an even number of arbitrators. The
High Court by its order dated 28.6.1996 rejected the contention and gave time
to the MMTC Ltd. till July 5, 1996 to appoint an arbitrator. It further held that
in the event of the MMTC Ltd. failing to name its arbitrator, the arbitrator
appointed by Sterlite Industries (India) Ltd. would be the sole arbitrator
under Section 10 (2) read with Section ll (5) of the New Act. Time for
appointment of the arbitrator was later extended. The MMTC Ltd. has in the
meantime appointed Shri S.N. Sapra. a former Judge of the Delhi High Court as
its arbitrator. Hence this appeal by special leave.

The contention of the learned Attorney General on behalf of the appellant is that
an arbitration agreement providing for the appointment of an even number of
arbitrators is not a valid agreement because of Section 10(1) of the New Act;
and, therefore the only remedy in such a case is by a suit and not by arbitration.
For this reason, he urged, that sub-section (2) of Section 10 is not attracted since
there is no failure to deter-mine the number of arbitrators according to sub-
section (1) Another argument of the learned Attorney General was that Section
10 is a departure from para 2 of the First Schedule of the Arbitration Act, 1940
(for short 1940 Act), which reads as under:

"2. If the reference is to an even number of arbitrators the arbitrators shall

appoint an umpire not later than one month from the latest date of their
respective appointments."

In reply Shri Dave, learned counsel for the respondent contended that there is no
such inconsistency between Section 10 of the New Act and the corresponding
provision in the 1940 Act, both being substantially the same. Learned counsel
contended that the provisions of the New Act must be construed to promote the
object of implementing the scheme of alternative dispute resolution; and the
New Act must be construed to enable the enforcement of the earlier arbitration
agreements. It was urged that each of the parties having nominated its arbitrator,
the third arbitrator was required to be appointed according to Section 11 (3) and
the failure to do so attracts the consequential results under the New Act.
Learned counsel contended that the provision for number of arbitrators is a
machinery prevision and does not affect the validity of the arbitration agreement
which is to be determined according to Section 7 of the New Act.

Some provisions of the New Act may now be referred. Section 2 (b) defines the
'arbitration agreement' to mean an agreement referred to in section 7. Section
7 deals with arbitration agreement, Section 10 with the number of arbitrators
and Section 11 with the appointment of arbitrators. Sections 7, 10 and the
 P a g e | 38

relevant part of section 11 are as under. In view of the fact that each of the two
parties have appointed their own arbitrators, namely, Justice M.N. Chandurkar
(Retd.), and Justice S.P Sapra (Retd.) Section 11 (3) was attracted and the two
appointed arbitrators were required to appoint a third arbitrator to act as the
presiding arbitrator failing which the Chief Justice of the High Court or any
person or institution designated by him would be required to appoint the third
arbitrator at required by section 11 (4)(b) of the New Act Since the procedure
prescribed in Section 11 (3) has not been followed the further consequences
Provided in section 11 must follow.

Accordingly, we direct that the Chief Justice of the High Court is to appoint the
third arbitrator under Section (4)(b) of the New Act in view of the failure of the
two appointed arbitrators to appoint the third arbitrator within thirty days from
the date of their appointments. Direction given by the Chief Justice of the High
Court is substituted to this effect.

The appeal is disposed of accordingly. No costs.

MAKING OF ARBITRAL AWARD AND

TERMINATION OF PROCEEDING

Rules applicable to substance of dispute. –

(1) Where the place of arbitration is situated in India, -

(a) In an arbitration other than an international commercial arbitration, the

arbitral tribunal shall decide the dispute submitted to arbitration in accordance
with the substantive law for the time being in force in India;

(b) In international commercial arbitration, - (i) The Arbitral tribunal shall

decide the dispute in accordance with the rules of law designated by the parties
as applicable to the substances of the dispute; (ii) Any designation by the p
parties of the law or legal system of a given country shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that country
 P a g e | 39

and not to its conflict of laws rules; (iii) Failing any designation of the law
under clause (a) by the parties, the Arbitral tribunal shall apply the rules of law
it considers to be appropriate, given all the circumstances surrounding the
dispute.

(2) The arbitral tribunal shall decide ex aequoet bono or as amiable

compositeur only if the parties have expressly authorised it to do so.

(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to the
transaction.

CONCILIATION

MEANING OF CONCILIATION: -

Conciliation is a less formal form of arbitration. This process does not require
an existence of any prior agreement. Any party can request the other party to
appoint a conciliator. One conciliator is preferred but two or three are also
allowed. In case of multiple conciliators, all must act jointly. If a party rejects
an offer to conciliate, there can be no conciliation.

1. Myers v Nottingham City Council 2601136/15

The two Claimants were given notice of redundancy on 11 March 2015, to

expire on 8 June. On 3 June they both sent the necessary information to Acas to
will begin early conciliation proceedings and received a certificate of early
conciliation proceedings on July 3. The claims were presented to the tribunal on
6 October 2015. The respondent argued that the claims were presented out of
time because the period spent in the early conciliation procedure before the date
 P a g e | 40

of dismissal should not be included in the calculation of the extension and that if
this five-day period was not taken into account, then the last the day for
submitting claims was October 2. The employment judge ruled that the claims
were brought in time. The purpose of early conciliation proceedings was to
settle more disputes before they reached employment tribunals.

Using the same reasoning as Chandler vs. Thanet Borough Council (2014),
another tribunal decision, the employment judge considered the Government's
guidance (see here) which states that 'submitting an early conciliation form to
Acas 'stops the clock' on the time period for you to submit your claim. This
means that the time limit for all claims subject to early conciliation will be three
months plus the time Acas conciliates”. On this basis, the Employment Judge
decided that the entire early conciliation period should be taken into account
and that the claims were timely.

Mist v Derby Community NHS Trust UKEAT/0170/15

Mrs Mist was employed by Derby Hospitals NHS Foundation Trust (the
hospital trust). In January 2014, the hospital trust decided to transfer the
contract for the services on which Mrs Mist spent most of her time to Derby
Community Health Services NHS Trust (the community health trust). Mrs Mist
asked for information about her future employment and confirmation that she
would transfer under TUPE without success.

She resigned without notice on 10 April and contacted Acas to start early
conciliation against “the Royal Derby Hospital”. An early conciliation
certificate in that name was issued on 3 June and on 4 July she brought several
tribunal complaints against a hospital trust, correctly named, but it was clear
from the body of her complaints that she believed there had been a relevant
change in the provision of services to a community health trust. The
Employment Tribunal accepted the claim even though the name on the early
 P a g e | 41

conciliation application is different from the name on ET1. Ms Mist applied to

add the Community Health Trust (or, as she incorrectly called it, "New Holme
Hospital") as a second respondent in September 2014.

The employment tribunal allowed her to add the community health trust as a
second respondent, but the claim against it was then struck out, with the judge
ruling that it would have been reasonably practicable for Ms Mist to include it at
the time of the original claim and she was now out of time. The EAT (HHJ
Eady) stated that the overriding consideration should be the relative unfairness
to each party in allowing or refusing the amendment. The Tribunal focused on
the absence of an explanation from Ms Mist and did not properly balance the
relative disadvantages of the parties. The prejudice against the community
health trust was in fact limited to the failure to meet the time limit; whereas Ms
Mist would be denied the right to bring a claim against the transferee in the
event of a TUPE transfer.

The EAT held that the employment tribunal had a discretion to accept the claim
despite the differences between the potential respondent's name on the EC
certificate and those appearing in ET1 under rule 12(2A) of the Employment
Tribunal Rules of Procedure. A trading name might be sufficient when
providing the name and address of a potential respondent to Acas. There was no
requirement for Mrs Mist to make a second application for early conciliation, as
the application to join the community health trust as second respondent was an
amendment to her existing claim and did not require a further EC notification.
The EAT considered that this approach was also consistent with the
Employment Tribunal Rules of Procedure.

APPLICATION AND SCOPE OF ADR: -

 P a g e | 42

(1) Save as otherwise provided by any law for the time being in force and unless
the parties have otherwise agreed, this Part shall apply to conciliation of
disputes arising out of legal relationship, whether contractual or not and to all
proceedings relating thereto.

(2) This Part shall not apply where by virtue of any law for the time being in
force certain disputes may not be submitted to conciliation.

COMMENCEMENT OF CONCILIATION
PROCEEDINGS: -

(1) The party initiating conciliation shall send to the other party a written
invitation to conciliate under this Part, briefly identifying the subject of the
dispute.

(2) Conciliation proceedings shall commence when the other party accepts in
writing the invitation to conciliate.

(3) If the other party rejects the invitation, there will be no conciliation
proceedings.

(4) If the party initiating conciliation does not receive a reply within thirty days
from the date on which he sends the invitation, or within such other period of
time as specified in the invitation, he may elect to treat this as a rejection of the
invitation to conciliate and if he so elects, he shall inform in writing the other
party accordingly.

Uttam Singh Duggal& Co. Ltd. vs Union of India (UOI) And Ors. on 20
March, 19981.
 P a g e | 43

This judgment will dispose of the objections filed by the respondent Union of
India under Sections 16, 30 and 33 of the Arbitration Act, 1940 against the
Award dated August 11, 1995.

2. The brief facts of the case are that the claimants entered into an Agreement
with the respondent Union of India for construction of Main Athletic Stadium at
Lodhi Road Complex, New Delhi-SH: Structural RCC Framework Group-I vide
Agreement No. EE/CI/AG/80-81/I. The disputes and differences arose between
the parties and Mr. S.S. Juneja, Arbitrator in the Ministry of Urban Affairs and
Employment New Delhi was appointed by the Chief Engineer (NDZ) I CPWD,
New Delhi under his letter No. 4(32)83-A&C(NDZ) dated July 15, 1991 as Sole
Arbitrator to decide and make the Award regarding the disputes falling within
the purview of Clause 25 of the Agreement executed between the parties. The
claimants filed the statement of claims containing 14 claims and the respondents
filed the counter statement of facts along with three counter-claims while
repudiating the contentions raised in the claims statement.

3. The learned Counsel for the respondents has only impugned the findings in
respect of the Award for claims 1, 2, 3, 8 & 13. Awards in respect of Claims 6
and 7 were not challenged and Claims 4 and 5 were not pressed at the time of
arguments and, therefore, it will not be necessary to deal with the same:

The above plea is of no consequence in the facts of the present case as the
amount has been awarded in favour of the claimants on the basis of use of
additional set of centering and shuttering which had to be arranged to ensure
completion of work within the stipulated period. The Arbitrator considered the
pleas of the parties and the respondents also had invited decision on the same
and claimed compensation in their counter claims. The findings as recorded by
the learned Arbitrator which have been already referred to in the earlier part of
the judgment will nowhere indicate that the plea that the matter was not
 P a g e | 44

arbitrable was even remotely raised before him and on the contrary, the decision
in this regard was invited.8For the aforesaid reasons, the objections filed by the
respondents are dismissed and the Award dated August 11, 1995 is made Rule
of the Court and decree in terms of the same is passed. The petitioners shall also
be entitled to interest at the rate of 12 percent per annum from the date of decree
till realisation. There will be no order as to costs.

NUMBER OF CONCILIATORS: -

(1) There shall be one conciliator unless the parties agree that there shall be two
or three conciliators.

(2) Where there is more than one conciliator, they ought, as a general rule, to act
jointly.

APPOINTMENT OF CONCILIATORS: -

(1) Subject to sub-section (2), -

(a) In conciliation proceedings with one conciliator, the parties may agree on
the name of a sole conciliator;

(b) In conciliation proceedings with two conciliators, each party may appoint
one conciliator;

(c) In conciliation proceedings with three conciliators, each party may appoint
one conciliator and the parties may agree on the name of the third conciliator
who shall act as the presiding conciliator.

8
https://indiankanoon.org/doc/1421752/
 P a g e | 45

(2) Parties may enlist the assistance of a suitable institution or person in

connection with the appointment of conciliators, and in particular, -

(a) A party may request such an institution or person to recommend the names
of suitable individuals to act as conciliator; or

(b) The parties may agree that the appointment of one or more conciliators be
made directly by such an institution or person: Provided that in recommending
or appointing individuals to act as conciliator, the institution or person shall
have regard to such considerations as are likely to secure the appointment of an
independent and impartial conciliator and, with respect to sole or third
conciliator, shall take into account the advisability of appointing conciliators of
a nationality other than the nationalities of the parties

ROLE OF CONCILIATORS: -

(1) The conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement of their dispute.

(2) The conciliator shall be guided by principles of objectivity, fairness and

justice, giving consideration to, among other things, the rights and obligations
of the parties, the usages of the trade concerned and the circumstances
surrounding the dispute, including any previous business practices between the
parties.

(3) The conciliator may conduct the conciliation proceedings in such a manner
as he considers appropriate, taking into account the circumstances of the case,
the wishes the parties may express, including any request by a party that the
conciliator hear oral statements, and the need for a speedy settlement of the
dispute.
 P a g e | 46

(4) The conciliator may, at any stage of the conciliation proceedings, make
proposals for a settlement of the dispute. Such proposals need not be in writing
and need not be accompanied by a statement of the reasons therefor.

SETTELMENT AGREEMENT: -

(1) When it appears to the conciliator that there exist elements of a settlement,
which may be acceptable to the parties, he shall formulate the terms of a
possible settlement and submit them to the parties for their observations. After
receiving the observations of the parties, the conciliator may reformulate the
terms of a possible settlement in the light of such observations.

(2) If the parties reach agreement on a settlement of the dispute, they may draw
up and sign a written settlement agreement. If requested by the parties, the
conciliator may draw up, or assist the parties in drawing up, the settlement
agreement.

(3) When the parties sign the settlement agreement, it shall be final and binding
on the parties and persons claiming under them respectively.

(4) The conciliator shall authenticate the settlement agreement and furnish a
copy thereof to each of the parties.

TERMINATION OF CONCILIATION
PROCEEDINGS: -
 P a g e | 47

(a) By the signing of the settlement agreement by the parties on the date of the
agreement; or

(b) By a written declaration of the conciliator, after consultation with the

parties, to the effect that further efforts at conciliation are no longer justified, on
the date of the declaration; or

(c) By a written declaration of the parties addressed to the conciliator to the

effect that the conciliation proceedings are terminated, on the date of the
declaration; or

(d) By a written declaration of a party to the other party and the conciliator, if
appointed, to the effect that the conciliation proceedings are terminated, on the
date of the declaration.

Lalit Kumar V. Sanghavi, Arising out of Special Leave Petition (Civil)

No.4267 of 20131. Aggrieved by an order dated 24th September, 2010 in
Arbitration Application No. 44/2008 on the file of the High Court of Bombay,
the instant SLP is filed by the two children of the applicant (hereinafter referred
to as “the original applicant”) in 1 Page 2 the above-mentioned application. The
SLP is filed with a delay of 717 days. Therefore, two IAs came to be filed, one
seeking substitution of the legal representatives of the deceased appellant and
the other for the condonation of delay in filing the SLP. 2. The 1st respondent is
the brother of the original appellant and the other respondents are the children
of another deceased brother of the original applicant. Respondents are served
and they have contested both the IAs. 3. Accepting the reasons given in the
applications, we consider it appropriate to apologize for the delay in preferring
an immediate SLP and also to replace the original appellant (already deceased)
with his legal representatives. Both IAs are enabled. Delay tolerated.
Substitution allowed. Leave granted. It is an undisputed fact that the parties are
 P a g e | 48

carrying on some business in the name and style of a partnership established

under the partnership agreement dated October 20, 1962. The partnership
agreement provided for the resolution of disputes arising between the partners
touching on partnership matters through arbitration. Due to some disputes
between partners (the details of which are not necessary for this purpose), the
original applicant filed arbitration application No. 263/2002 pursuant to § 11 of
the Arbitration and Conciliation Act of 1996 (hereinafter referred to as the
"Arbitration Act").”, for short) before the Chief Justice of the High Court of
Bombay which was disposed of by an order dated 21.2.2003 by the learned
Judge of the High Court of Bombay who was nominated as Chief Justice under
the Act. The relevant part of the order reads as follows: “Whereas the appellant
respondent no.1 has appointed two arbitrators, Justice H. Suresh, a retired judge
of this court is hereby appointed as the presiding arbitrator. An arbitral tribunal
so constituted to adjudicate all disputes, including claims and counterclaims of
the parties arising out of the controversy. In the event that the respondents do
not cooperate in the matter of the appointment of the third arbitrator, the
applicant will first carry the implemented part of the final award in office, the
request will be dealt with accordingly." The chairman of the arbitrator informed
the appellants by his resolution of October 29, 2007 that the arbitration
proceedings were terminated. We believe that the complainant's fear that they
will be left without redress is unfounded. 17. The petitioners are free to
approach the competent court for a decision of the legality of the termination of
10 Page 11 the mandate of the arbitral tribunal which in turn is based upon an
order dated 29th October, 2007 by which the arbitral proceedings were
terminated. 18. The appeal is dismissed.

MEDIATION

MEANING OF MEDIATION: -
 P a g e | 49

Mediation, as used in law, is a form of Alternative Dispute Resolution (ADR), a

method of resolving disputes between two or more parties with specific effects.
Usually a third party, a mediator, helps the parties negotiate a settlement.
Litigants can mediate disputes in a variety of areas such as commercial, legal,
diplomatic, employment, community and family matters.

The term "mediation" generally refers to any instance where a third party helps
others reach an agreement. More specifically, mediation has a structure,
schedule, and dynamism that "regular" negotiation lacks. This process is private
and confidential, possibly required by law. Participation is usually voluntary.
The mediator acts as a neutral third party and facilitates rather than directs the
process. Mediation is becoming a more peaceful and internationally recognized
solution to end conflict. Mediation can be used to resolve disputes of any scale.

APPOINTMENT OF MEDIATOR/CONCILIATOR: -

Rule 2: (a) Parties to a suit or other proceeding may agree on the name of the
sole mediator/conciliator for mediating between them.

(b) Where, there are two or more sets of parties and are unable to agree on a
sole mediator/conciliator, the Court may ask each party to nominate the
mediator/conciliator or may nominate/appoint the mediator/conciliator, as it
deems fit.9-(c) Where parties agree on a sole mediator/conciliator under clause
(a) or where the mediator/conciliator is nominated/appointed by the court under
clause (b), the mediator/conciliator need not necessarily be from the panel of

9
http://www.latestlaws.in/bare-acts/alternative-dispute-resolution-laws/
arbitration-and-conciliation-act-1996/mediation-conciliation-rules2004/
 P a g e | 50

mediators/conciliators referred to in Rule 3 nor bear the qualifications referred

to in Rule 4 but should not be a person who suffers from the disqualifications
referred to in Rule 5.

PANEL OF MEDIATORS/CONCILIATORS: -

RULE 3: (a) The High Court shall, for the purpose of appointing the
mediator/conciliator between the parties in suits or proceedings, prepare a panel
of the mediators/conciliators and put the same on the Notice Board within thirty
days of coming into force of these Rules, with copy to the High Court Bar
Association.

(b) The District & Sessions Judge shall, for the purpose of appointing the
mediator/conciliator to mediate between the parties in the suits or proceedings
prepare a panel of the mediators/conciliators within a period of thirty days of
the commencement of these rules and shall submit the same to the High Court
for approval. On approval of the said panel by the High Court, with or without
modification, which shall be done within thirty days of the submission of the
panel by the District & Sessions Judge, the same shall be put on the Notice
Board.

(ii) Copies of the said panel referred in clause (i) shall be forwarded to all the
Subordinate Courts by the District & Sessions Judge and to the District Bar
Associations.

(c) The consent of the persons whose names are included in the panel shall be
obtained before empanelling them.
 P a g e | 51

(d) The panel shall contain Annexure giving details of the qualifications of the
mediators/conciliators and their professional or technical experience in different
fields.

(e) The panel of mediators/conciliators appointed under Clause (a) and clause
(b) (i) shall normally be for a period of three years from the date of appointment
and further extension of the panel of mediators/conciliators or any
mediator/conciliator shall be at the discretion of the High Court or the District
& Sessions Judge with the prior approval of the High Court, as the case may be.

RULE4: QUALIFICATIONS OF PERSONS TO BE

EMPANELLED UNDER RULE 3.
The following persons may be enlisted in the panel of mediators/conciliators
under Rule 3, namely: -

(a)

1. Retired Judges of the Supreme Court of India;

2. Retired Judges of the High Courts;

3. Retired District & Sessions Judges or retired Officers of Delhi Higher

Judicial Service;10

4. District & Sessions Judge or Officers of Delhi Higher Judicial Service.

(b) Legal practitioners with at least ten years standing at the Bar at the level of
the Supreme Court or the High Court or the District Courts.

http://www.latestlaws.in/bare-acts/alternative-dispute-resolution-laws/arbitration-and-conciliation-
10

act-1996/mediation-conciliation-rules2004/
 P a g e | 52

(c) Experts or other professionals with at least fifteen years standing.

(d) Persons who are themselves experts in the mediation/conciliation.

RULE 5: DISQUALIFICATIONS OF PERSONS.

The following persons shall be deemed to be disqualified for being empanelled

as mediators/conciliators:

(a) any person who has been adjudged as insolvent or persons

(i) against whom criminal charges involving moral turpitude are framed by a
criminal court and are pending; or

(ii) persons who have been convicted by a criminal court for any offence
involving moral turpitude.

(b) any person against whom disciplinary proceedings have been initiated by
the appropriate disciplinary authority which are pending or have resulted in a
punishment.

(c) any person who is interested or connected with the subject-matter of

dispute(s) or is related to any one of the parties or to those who represent them,
unless such objection is waived by all the parties in writing.

(d) any legal practitioner who has or is appearing for any of the parties in the
suit or in other proceedings(s).

(e) such other categories of persons as may be notified by the High Court.
 P a g e | 53

RULE 8: DUTY OF MEDIATOR/CONCILIATOR

TO DISCLOSE CERTAIN FACTS: -

(a) When a person is approached in connection with his proposed

appointment as mediator/conciliator, he shall disclose any circumstance likely
to give rise to a reasonable doubt as to his independence or impartiality.

(b) Every Mediator/conciliator shall from the time of his appointment and
throughout continuance of the mediation/conciliation proceedings, without
delay, disclose to the parties, about the existence of any circumstance referred to
in Clause (a).

RULE 10: PROCEDURE OF

MEDIATION/CONCILIATION.

(a) The parties may agree on the procedure to be followed by the

mediator/conciliator in the conduct of the mediation/conciliation proceedings.

(b) Where the parties do not agree on any particular procedure to be

followed by the mediator/conciliator, the mediator/conciliator shall follow the
procedure hereinafter mentioned, namely: -

(i) he shall fix, in consultation with the parties, a time schedule, the dates and
the time of each mediation/conciliation session, where all parties have to be
present;
 P a g e | 54

(ii) he shall hold the mediation/conciliation at the place prescribed by the High
Court or the District & Sessions Judge or the place where the parties and the
mediator/conciliator jointly agree;

(iii) he may conduct joint or separate meetings with the parties;

(iv) each party shall, ten days before a session, provide to the
mediator/conciliator a brief memorandum setting forth the issues, which
according to it, need to be resolved, and its position in respect to those issues
and all information reasonably required for the mediator/conciliator to
understand the issue; such memoranda shall also be mutually exchanged
between the parties. However, in suitable/appropriate cases, the period of ten
days may be curtailed in the discretion of the mediator/conciliator;

(v) each party shall furnish to the mediator/conciliator such other Information as
may be required by him in connection with the issues to be resolved.

(c) Where there is more than one mediator/conciliator, the mediator/conciliator

nominated by each party may first confer with the party that nominated him and
thereafter interact with the other mediator/conciliator, with a view to resolve the
dispute(s).

RULE 24: SETTLEMENT AGREEMENT.

(a) Where an agreement is reached between the parties in regard to all the issues
in the suit or proceeding or some of the issues, the same shall be reduced to
writing and signed by the parties or their constituted attorney. If any counsel
has represented the parties, the conciliator/mediator may obtain his signature
also on the settlement agreement.
 P a g e | 55

The agreement of the parties so signed shall be submitted to the

mediator/conciliator who shall, with a covering letter signed by him, forward
the same to the Court in which the suit or proceeding is pending.11

Where no agreement is arrived at between the parties, before the time limit
stated in Rule 18 or where, the mediator/conciliator is of the view that no
settlement is possible, he shall report the same to the Court in writing.

NEGOTIATION

MEANING OF NEGOTIATION: -

Negotiation is a dialogue between two or more people or parties intended to

reach a beneficial outcome over one or more issues where a conflict exists with
respect to at least one of these issues. This beneficial outcome can be for all of
the parties involved, or just for one or some of them.

It is aimed to resolve points of difference, to gain advantage for an

individual or collective, or to craft outcomes to satisfy various interests. It is
often conducted by putting forward a position and making small concessions to
achieve an agreement. 12

The degree to which the negotiating parties trust each other to implement the
negotiated solution is a major factor in determining whether negotiations are
successful. In many cases, negotiation is not a zero-sum game, allowing for
cooperation to improve the results of the negotiation.13

http://www.latestlaws.in/bare-acts/alternative-dispute-resolution-laws/arbitration-and-conciliation-
11

act-1996/mediation-conciliation-rules2004/
12
https://en.wikipedia.org/wiki/Negotiation

13
Sycara, Katia; Gelfand, Michele J.; Abbe, Allison, eds. (2013). Models for intercultural collaboration
and negotiation
 P a g e | 56

TYPES OF NEGOTIATION: -

Negotiation can take a wide variety of forms, from a trained negotiator acting
on behalf of a particular organization or position in a formal setting to informal
negotiations among friends. Negotiation can be compared to mediation, where a
neutral third party listens to each side's arguments and tries to help create an
agreement between the parties. It can also be compared to arbitration, which is
similar to court proceedings. In arbitration, both parties argue about the merits
of their case and the outcome is decided by the arbitrator. This bargaining is
also sometimes called positional or hard bargaining.
Negotiation theorists generally distinguish between two types of negotiation.
Different theorists use different labels for the two general types and distinguish
them in different ways.
Distributive negotiation: -

Distributive bargaining is also sometimes called positional or hard bargaining

and attempts to distribute a "fixed pie" of benefits. Distributive bargaining
operates under zero-sum conditions, meaning that any gain by one party is at the
expense of the other, and vice versa. For this reason, distributive bargaining is
also sometimes called win-lose because it is assumed that one person's gain
results in another person's loss. Examples of distributive bargaining include
negotiating prices in the open market, including negotiating the price of a car or
house. In distributive bargaining, each side often takes an extreme position
because it knows it will not be accepted—and then uses a combination of
trickery, bluffing and brinkmanship to advance as little as possible before
reaching an agreement. Distribution bar gainers conceive of negotiation as a
 P a g e | 57

process of distribution and fixed amount of value.[2] Distributive bargaining

often involves people who they have never had a previous interactive
relationship and are not likely to do so again, in the near future.
In a distributive approach, each negotiator fights for the largest possible piece
pies, so it may be quite appropriate - within certain limits - to take into account
the other side as an adversary rather than a partner and to take it somewhat
harder line.[3]

Integrative negotiation: -

Integrative negotiation is also called interest-based, merit-based, or principled

negotiation. It is a set of techniques that attempts to improve the quality and
likelihood of negotiated agreement by taking advantage of the fact that different
parties value different outcomes differently. While distributive bargaining
assumes that there is a fixed amount of value (a "fixed pie") to be divided
between the parties, integrative bargaining often attempts to create value during
the negotiation process ("widen the pie").

Integrative negotiation often involves higher levels of trust and rapport building.
It can also involve creative problem solving that aims to achieve mutual gains.
It is also sometimes called win-win negotiation.

In an integrative approach, as opposed to a distributive approach, the parties try

to find an arrangement that is in the best interests of both parties. A good deal is
not the one with the maximum profit, but the one with the optimal profit. The
gains in this scenario are not at the expense of the other, but with it.[3]

A common negotiation technique in integrative negotiations involves trading

one favour for another, commonly referred to as logrolling. It focuses on the
fundamental interests of the parties rather than their arbitrary starting positions,
approaches negotiation as a shared problem rather than a personalized battle,
 P a g e | 58

and insists on adherence to objective, principled criteria as the basis for

agreement.[2]

FOOTNOTEhttps://en.wikipedia.org/wiki/Negotiation

Perspective taking in integrative negotiation can be helpful for a few reasons,

including that it can help self-advocating negotiators to seek mutually beneficial
solutions, and it increases the likelihood of logrolling (when a favour is traded
for another i.e. quid pro quo). Social motivation can increase the chances of a
party conceding to a negotiation. While concession is mandatory for
negotiations, research shows that people who concede more quickly, are less
likely to explore all integrative and mutually beneficial solutions. Therefore,
conceding reduces the chance of an integrative negotiation.[4]

However, negotiators need not sacrifice effective negotiation in favour of a

positive relationship between parties. Rather than conceding, each side can
appreciate that the other has emotions and motivations of their own and use this
to their advantage in discussing the issue. In fact, perspective-taking can help
move parties toward a more integrative solution. Fisher et al illustrate a few
techniques that effectively improve perspective-taking in their book Getting to
Yes, and through the following, negotiators can separate people from the
problem itself.

 Put yourself in their shoes – People tend to search for information that
confirms his or her own beliefs and often ignore information that contradicts
prior beliefs. In order to negotiate effectively, it is important to empathize
with the other party's point of view. One should be open to other views and
attempt to approach an issue from the perspective of the other.
 Discuss each other's perceptions – A more direct approach to understanding
the other party is to explicitly discuss each other's perceptions. Each
 P a g e | 59

individual should openly and honestly share his or her perceptions without
assigning blame or judgement to the other.
 Find opportunities to act inconsistently with his or her views – It is possible
that the other party has prior perceptions and expectations about the other
side. The other side can act in a way that directly contradicts those
preconceptions, which can effectively send a message that the party is
interested in an integrative negotiation.
 Face-saving – This approach refers to justifying a stance based on one's
previously expressed principles and values in a negotiation. This approach to
an issue is less arbitrary, and thus, it is more understandable from the
opposing party's perspective.[5]

Additionally, negotiators can use certain communication techniques to build a

stronger relationship and develop more meaningful negotiation solution.

 Active listening – Listening is more than just hearing what the other side is
saying. Active listening involves paying close attention to what is being said
verbally and nonverbally. It involves periodically seeking further
clarification from the person. By asking the person exactly what they mean,
they may realize you are not simply walking through a routine, but rather
take them seriously.
 Speak for a purpose – Too much information can be as harmful as too little.
Before stating an important point, determine exactly what you wish you
communicate to the other party. Determine the exact purpose that this shared
information will serve.[5]
Bad faith: -

When a party pretends to negotiate, but secretly has no intention of

compromising, the party is considered negotiating in bad faith. Bad faith is a
concept in negotiation theory whereby parties pretend to reason to reach
 P a g e | 60

settlement, but have no intention to do so, for example, one political party may
pretend to negotiate, with no intention to compromise, for political effect. [6][7]

Bad faith negotiations are often used in political science and political
psychology to refer to negotiating strategies in which there is no real intention
to reach compromise, or a model of information processing.14 The "inherent bad
faith model" of information processing is a theory in political psychology that
was first put forth by Ole Holsti to explain the relationship between John Foster
Dulles' beliefs and his model of information processing.[9] It is the most widely
studied model of one's opponent.15A state is presumed implacably hostile, and
contra-indicators of this are ignored. They are dismissed as propaganda ploys or
signs of weakness. Examples are John Foster Dulles' position regarding the
Soviet Union, or Hamas's position on the state of Israel.[10][neutrality is disputed]

LOK ADALAT

CONCEPT OF LOK ADALAT: -

NALSA along with other legal service institutions conduct Lok Adalats. Lok
Adalat is one of the alternative dispute redressal mechanisms, it is a forum
where disputes/cases pending in court or at the pre-litigation stage are amicably
settled/compromised. Lok Adalats have been given statutory status under the
Legal Services Authorities Act, 1987. Under the said Act, an award (decision)
made by Lok Adalats is deemed to be a decree of a civil court and is final and
binding on all parties and such award cannot be appealed in any court. If the
14
Sycara, Katia; Gelfand, Michele J.; Abbe, Allison, eds. (2013). Models for intercultural collaboration
and negotiation

15
https://en.wikipedia.org/wiki/Negotiation
 P a g e | 61

parties are not satisfied with the award of the Lok Adalat, though there is no
provision for appeal against such award, but they can initiate litigation by
approaching a court of competent jurisdiction by filing a suit as per the required
procedure, in exercise of their right to litigate.

There is no court fee for filing a case in Lok Adalat. If the matter pending
before the court is referred to the Lok Adalat and is subsequently disposed of,
the court fee originally paid in court for the complaints/petition is also refunded
to the parties. The persons who decide cases in Lok Adalats are called members
of Lok Adalats, they have only the role of statutory conciliation bodies and no
judicial role; therefore, they can only persuade the parties to come to a
conclusion for out-of-court settlement in the Lok Adalat and will not pressure or
compel any of the parties to compromise or settle cases or matters, directly or
indirectly.

The Lok Adalat shall not decide the matter so referred at its own instance,
instead the same would be decided on the basis of the compromise or settlement
between the parties. The members shall assist the parties in an independent and
impartial manner in their attempt to reach amicable settlement of their dispute.16

Tata AIG General Insurance Co vs Mrs. Bandana Devi on 25 February,

2010 Learned counsel for the petitioners submitted that the order, passed by the
Permanent Lok Adalat, Jamshedpur, dated 2nd January, 2008 in Permanent Lok
Adalat Case No. 132 of 2007, which is at Annexure 6 to the memo of petition,
is under challenge, in this writ petition. Learned counsel for the petitioners
submitted that the Permanent Lok Adalat has not power, jurisdiction and
authority to adjudicate the dispute between the parties and never any consent,
much less in writing, has been given by the petitioners for deciding the dispute,

http://nalsa.gov.in/lok-adalat
16
 P a g e | 62

on merits by the Permanent Lok Adalat, Jamshedpur. The role of the Permanent
Lok Adalat is of a conciliator and not of an adjudicator. It is also vehemently
submitted by the learned counsel for the petitioners that the requirements, as per
Sub-Section (7) of Section 22-C of the Legal Services Authority Act, 1987, has
also not been complied with, as per the decision rendered by a Division bench
of this Court in the case of Bharat Sanchar Nigam Limited V. State of
Jharkhand & anr., as reported in 2008(3) J.L.J.R. Page-513. It has also been
submitted by the learned counsel for the petitioners that there is also a decision,
rendered by this Court in the case of Eastern-Central Railway &anr. V. Ashok
Kumar Verma & Ors., as reported in 2009(4) J.L.J.R. Page-129, wherein also, it
has been decided that unless a consent is given in writing by both the parties,
the Permanent Lok Adalat has not power, jurisdiction and authority to decide of
the dispute between the parties pursuant to § 22-C, paragraph 8 of the Legal
Services Office Act of 1987. Even otherwise, also in the facts of the case under
discussion, right from the written statement, paragraph 2 et seq., submitted by
the current petitioners in Permanent Lok Adalat case no. .132 of 2007, the claim
of the petitioners was denied and the jurisdiction of the Permanent Lok Adalat
was also denied and therefore in view of the above decisions and having regard
to the provisions of the Legal Services Authority Act, 1987, the impugned order
passed by the Permanent Lok Adalat, Jamshedpur , dated 2nd January, 2008 in
Permanent Lok Adalat Case No. 132 of 2007, deserves to be quashed and set
aside.2. I have heard the learned counsel for the respondents who submitted that
the present petitioners who are the original respondents in Permanent Lok
Adalat Case No. 132 of 2007 never objected when the decision on merits was
passed by the Permanent Lok Adalat and therefore the decision passed by the
Permanent Lok Adalat is Lok Adalat, Jamshedpur, in accordance with the
provisions of the Legal Services Authority Act, 1987. Even otherwise, there is
no illegality pointed out by the petitioners in the impugned order passed by the
 P a g e | 63

Standing Lok Adalat, Jamshedpur and therefore this Writ Petition deserves to be
dismissed.

3. After hearing the learned counsel for both the parties and looking into the
facts and circumstances of the case, I hereby set aside and set aside the
impugned order passed by the Permanent Lok Adalat, Jamshedpur, dated 2nd
January, 2008 in Permanent Lok Adalat Case No .132 of 2007, particularly for
the following facts and reasons: As a result of the cumulative effect of the above
facts, reasons and judgments, I hereby set aside and set aside the impugned
order passed by the Permanent Lok Adalat, Jamshedpur, dated 2nd January,
2008 in the case of Permanent Lok Adalat No. 132 of 2007 (Annexure 6 to
Petition Report). The respondent is free to approach the appropriate court or
forum for redressal of grievances. How and when the respondent approaches the
person in question court/forum for redressal of her grievances, the period
consumed in pursuing the Permanent Lok Adalat Case and in this writ petition,
will be sympathetically considered for condoning the delay, in view of Section
14 of the Indian Limitation Act, 1963.17

5. This writ petition is, accordingly, allowed and disposed of.18

Dinesh Kumar vs Balbir Singh and Ors. on 12 September, 2007

Equivalent citations: AIR 2008 HP 59, 2008 I ShimLC 54

JUDGMENT Rajiv Sharma, J.

17
https://indiankanoon.org/doc/1256677/

18
(D.N. Patel, J) A.K. Verma/
 P a g e | 64

1. A challenge has been laid to the order dated 19.4.2003 passed by the
Permanent Lok Adalat, Kangra at Dharamshala in MACP No. 10-G/2002.

2. The brief facts necessary for the adjudication of this petition are that the
petitioner was driving his tempo bearing No. HP-20-5587 on 13.11.2001 and
was proceeding from Kaloha to Pragpur. Bus bearing registration No. HP-55-
3486 (M/s. Sayal Bus Service) came from Pragpur side and dashed against the
tempo resulting in grievous injuries to the petitioner. The accident took place
around 10.30 A.M. He was firstly taken to hospital at Dehra (District Kangra)
and thereafter underwent treatment in Bharaj Nursing Home, Jallandhar Road,
Hoshiarpur. He remained indoor patient in Bharaj Nursing Home with effect
from 13.11.2001 to 17.11.2001 and also underwent surgical operation costing
Rs. 80,000/-. He filed a petition before the Motor Accident Claims Tribunal-1,
Kangra at Dharamshala in the month of January, 2002 claiming the
compensation for the grievous injuries received in the accident resulting in
fracture of right Tibia and many other injuries. He had claimed in all Rs. 3 lakhs
towards compensation.

3. Respondents No. 1 and 2 had filed detailed reply to the claim petition and had
admitted that the bus was insured with New India Insurance Company Limited,
Branch Office Dev Pal Chowk, Hamirpur i.e., respondent No. 3. The respondent
No. 3 had also filed separate reply and in preliminary objection it has denied
that the bus bearing No. HP-55-3486 was insured with it. The objection was
also taken with regard to the validity of the driving licence of the petitioner
besides the objections of invalid certificate of registration. The learned Motor
Accident Claims Tribunal issued notices to the respondents on 28.2.2002. The
Motor Accident Claims Tribunal, Kangra at Dharamshala has passed the
following order on 19.2.2003:

19.2.2003: Present: Sh. K.C. Sharma, Counsel for the applicant.

 P a g e | 65

Sh. M.G. Thakur, Counsel for the respondents No. 1 and 2.

Ms. Sangeeta Gautarh, Counsel for the respondent No. 3. Accordingly, the writ
petition is allowed. The order dated 19.4.2003 passed by the Permanent Lok
Adalat is set aside. The matter is remanded back to the learned Motor Accident
Claims Tribunal, Kangra at Dharamshala with the directions to decide the same
on its own merits within a period of three months from the date of receipt of
record along with copy of this judgment In view of the facts and circumstances
of the case and the manner in which the matter has been compromised by the
functionary of respondent No. 3-company, a costs of Rs. 11,000/- is imposed
upon the Divisional Manager of the New India Assurance Company Limited on
whose statement the matter was compromised. The respondent No. 3 will
ensure that the cost is recovered from the Divisional Manager. To avoid further
delay the parties are directed to appear before the learned Motor Accident
Claims Tribunal, Kangra at Dharamshala on 13.10.2007

Reply filed and copies supplied. Counsel for the parties made oral submissions
that this case be placed before the Lok Adalat as there is every likelihood of
compromise.19 Heard. Allowed. Be placed before the Lok Adalat on 21.3.2003.

Sd/-

Motor Accident Claims Tribunal (II) Kangra at Dharamshala.

4. The matter was thereafter listed on 21.3.2003 before the Permanent Lok
Adalat at Dharamshala. Order dated 21.3.2003 reads thus:

21.3.2003: Present: Sh. K.C. Sharma, Advocate, Counsel for the applicant.

19
https://indiankanoon.org/doc/1524620/
 P a g e | 66

Sh. M.G. Thakur, Counsel for the respondents No. 1 and 2.

Ms. Sangeeta Gautam, Counsel for the respondent No. 3.

Further time sought for conciliation. Allowed. Be listed before next Lok Adalat
on 19.4.2003, when parties to appear in person.

NATURE OF CASES TO BE REFERED TO LOK

ADALAT: -

1. Any case pending before any court.

2. Any dispute which has not been brought before any court and is likely to be
filed before the court.

Provided that any matter relating to an offence not compoundable under the law
shall not be settled in Lok Adalat.

Which Lok Adalat to be Approached

As per section 18(1) of the Act, a Lok Adalat shall have jurisdiction to
determine and to arrive at a compromise or settlement between the parties to a
dispute in respect of -

(1) Any case pending before; or

 P a g e | 67

(2) Any matter which is falling within the jurisdiction of, and is not brought
before, any court for which the Lok Adalat is organised.

Provided that the Lok Adalat shall have no jurisdiction in respect of matters
relating to divorce or matters relating to an offence not compoundable under
any law.

How to Get the Case Referred to the Lok Adalat for Settlement

(A) Case pending before the court.

(B)Any dispute at pre-litigative stage.

The State Legal Services Authority or District Legal Services Authority as the
case may be on receipt of an application from any one of the parties at a pre-
litigation stage may refer such matter to the Lok Adalat for amicable settlement
of the dispute for which notice would then be issued to the other party.

LEVELS AND COMPOSITION OF LOK ADALAT: -

At the State Authority Level -

The Member Secretary of the State Legal Services Authority organizing the Lok
Adalat would constitute benches of the Lok Adalat, each bench comprising of a
sitting or retired judge of the High Court or a sitting or retired judicial officer
and any one or both of- a member from the legal profession; a social worker
engaged in the upliftment of the weaker sections and interested in the
implementation of legal services schemes or programmes.

At High Court Level -

 P a g e | 68

The Secretary of the High Court Legal Services Committee would constitute
benches of the Lok Adalat, each bench comprising of a sitting or retired judge
of the High Court and any one or both of- a member from the legal profession; a
social worker engaged in the upliftment of the weaker sections and interested in
the implementation of legal services schemes or programmes.

At District Level -

The Secretary of the District Legal Services Authority organizing the Lok
Adalat would constitute benches of the Lok Adalat, each bench comprising of a
sitting or retired judicial officer and any one or both of either a member from
the legal profession; and/or a social worker engaged in the upliftment of the
weaker sections and interested in the implementation of legal services schemes
or programmes or a person engaged in para-legal activities of the area,
preferably a woman.

At Taluk Level -

The Secretary of the Taluk Legal Services Committee organizing the Lok
Adalat would constitute benches of the Lok Adalat, each bench comprising of a
sitting or retired judicial officer and any one or both of either a member from
the legal profession; and/or a social worker engaged in the upliftment of the
weaker sections and interested in the implementation of legal services schemes
or programmes or a person engaged in para-legal activities of the area,
preferably a woman.

National Lok Adalat

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National Level Lok Adalats are held for at regular intervals where on a single
day Lok Adalats are held throughout the country, in all the courts right from the
Supreme Court till the Taluk Levels wherein cases are disposed of in huge
numbers. From February 2015, National Lok Adalats are being held on a
specific subject matter every month.

Permanent Lok Adalat

The other type of Lok Adalat is the Permanent Lok Adalat, organized under
Section 22-B of The Legal Services Authorities Act, 1987. Permanent Lok
Adalats have been set up as permanent bodies with a chairman and two
members for providing compulsory pre-litigative mechanism for conciliation
and settlement of cases relating to Public Utility Services like transport, postal,
telegraph etc. Here, even if the parties fail to reach to a settlement, the
Permanent Lok Adalat gets jurisdiction to decide the dispute, provided, the
dispute does not relate to any offence. Further, the Award of the Permanent Lok
Adalat is final and binding on all the parties. The jurisdiction of the Permanent
Lok Adalats is up to Rs. Ten Lakhs. Here if the parties fail to reach to a
settlement, the Permanent Lok Adalat has the jurisdiction to decide the case.
The award of the Permanent Lok Adalat is final and binding upon the parties.
The Lok Adalat may conduct the proceedings in such a manner as it considers
appropriate, taking into account the circumstances of the case, wishes of the
parties like requests to hear oral statements, speedy settlement of dispute etc.

Mobile Lok Adalats

 P a g e | 70

Mobile Lok Adalat are also organized in various parts of the country which
travel from one location to another to resolve disputes in order to facilitate the
resolution of disputes through this mechanism.20

As on 30.09.2015, more than 15.14 lakhs Lok Adalats have been organized in
the country since its inception. More than 8.25 crore cases have been settled by
this mechanism so far.

Chapter 3

ADVANTAGES OF ALTERNATIVE DISPUTE

RESOLUTION OVER LITIGATION.

Advantages to Arbitration: -

1. More flexibility. In the case of arbitration, the parties have far more
flexibility to select what procedural and discovery rules will apply to their
dispute (they can choose to apply relevant industry standards, domestic law, the
law of a foreign country, etc.).

20
http://nalsa.gov.in/lok-adalat
 P a g e | 71

2. Select your own Arbitrator or Mediator. The parties can often select the
arbitrator or mediator that will hear their case, typically selecting someone with
expertise in the substantive field involved in the dispute. The arbitrator (or panel
members) need not even be an attorney. In this way the focus can be on the
substantive issues involved rather than on technical procedural rules. In normal
litigation, the parties cannot select the judge, and the judge and/or jury may
often need expert witnesses to explain extremely complex issues. The greater
the expertise of the arbitrator, the less time that needs to be spent bringing him
up to speed.

3. A jury is not involved. Juries are unpredictable and often damage awards are
based solely on whether they like the parties or are upset at one party because of
some piece of evidence such as a photo that inflames the passion of the jury.
Juries have awarded claimants damages that are well above what they would
have received through alternative dispute resolution; and they have also done
the opposite.

http://shodhganga.inflibnet.ac.in/bitstream/10603/44117/8/08_chapter%202.

4. Expenses are reduced. Attorneys and expert witnesses are very expensive.
Litigating a case can easily run into the tens of thousands of dollars. Alternative
dispute resolution offers the benefit of getting the issue resolved quicker than
would occur at trial – and that means less fees incurred by all parties.

5. ADR is speedy. Trials are lengthy, and in many states and counties it could
take years to have a case heard by a judge or jury. Appeals can then last months
or years after that. In a matter of hours, an arbitrator often can often hear a case
that otherwise may take a week in court to try with live witnesses. With
arbitration, the evidence can be submitted by documents rather than by
 P a g e | 72

testimony presented through witnesses. ADR can be scheduled by the parties

and the panelist as soon as they are all able to meet together.

6. The results can be kept confidential. The parties can agree that information
disclosed during negotiations or arbitration hearings cannot be used later even if
litigation ensues. The final outcome can also be made private if the parties so
stipulate and agree. On the other hand, most trials and related proceedings are
open to the public and the press.

7. Party participation. ADR permits more participation by the litigants. ADR

allows the parties the opportunity to tell their side of the story and have more
control over the outcome than normal trials overseen by a judge. Many parties
desire the opportunity to speak their piece and tell their side of the story in their
own words rather than just through counsel.

8. Fosters cooperation. ADR allows the parties to work together with the neutral
arbitrator or mediator to resolve the dispute and come to a mutually acceptable
remedy.

9. Less stress. ADR is often less stressful than expensive and lengthy litigation.
Most people have reported a high degree of satisfaction with ADR.

10. Conclusion. Because of these advantages, many parties choose ADR (either
mediation or arbitration) to resolve disputes instead of filing or even proceeding
with a lawsuit after it has been filed. It is not uncommon after a lawsuit has
been filed for the court to refer the dispute to a neutral before the lawsuit
becomes too costly. ADR has also been used to resolve disputes even after trial,
while an appeal is pending.
 P a g e | 73

11. Sample subject matters. Some examples of disputes that can be settled by
ADR include but are not limited to:

 Business disputes- contracts, partnerships, ownership

 Property / Land use disputes- property transfers, boundaries, easements
 Family disputes- divorce, property, custody, visitation, support issues
 Consumer / Collection disputes- repairs, services, warranties, debts, loans
 Employment disputes- employment contracts, terminations, non-compete
 Landlord/tenant disputes- evictions, rent, repairs, security deposits
 Neighbourhood disputes / Relational disputes or other civil or personal
conflicts
 Personal Injury disputes / Insurance disputes- accidents, coverage,
liability issues21

NEEDS FOR ALTERNATIVE DISPUTE

RESOLUTION IN INDIA: -

A consequence of the judicial model is that the solution may not be well
adapted to the needs and interests of the parties. The range of remedies available
to the court is limited. An apology or admission of guilt may not be accepted.
The court is not in a position to try to save the relationship, whether business or
domestic. The court's decision is also binary in nature, one is right and the other
is wrong. This polarizes the parties, creates a need for self-justification, and
escalates the dispute—into an emotionally charged process. ADR offers
efficiencies and can increase the quality of dispute resolution by allowing for a
wider range of outcomes and greater client participation. Alternative dispute

21
http://albrightstoddard.com/advantages--adr/
 P a g e | 74

resolution is growing nationwide, providing individuals and businesses with

cheaper and faster ways to resolve disputes. Our courts follow the adversarial
method of adjudication, which uses a neutral decision-maker (judge) to decide
disputes after they are aired by opponents in contested proceedings. In contrast,
alternative dispute resolution methods are generally considered to be less
adversarial and achieve faster results because a neutral person can help
formulate the outcome during the process.

The basic difference between adversarial and non-adversarial dispute resolution

is as follows: In an adversarial system, the dispute wins, the other party must
lose, and disputes are resolved by a third party by applying some legal principle.
on the other hand, in the case of alternative dispute resolution, all parties can
benefit from a creative solution to which each agrees and the situation is unique
and therefore need not follow any general principle except to the extent that the
parties accept it.The parties know the facts and where their economic interests
lie far better than any adjudicating tribunal. The settlement created by the
parties clearly sets out their respective rights and obligations, is binding on both
parties and is enforceable. It is important to distinguish between binding and
non-binding forms of alternative dispute resolution. Negotiation, mediation and
conciliation are non-binding forms and depend on the willingness of the parties
to reach a voluntary agreement. Referee programs can be binding or non-
binding. Binding arbitration creates a third-party decision that the parties must
abide by even if they disagree with the outcome, similar to a court decision.
Non-binding arbitration creates a third-party decision that the parties can reject.
It is also important to distinguish between mandatory processes and voluntary
processes. Some court systems require the parties to negotiate, conciliate,
mediate, or adjudicate before a lawsuit is filed. Alternative dispute resolution
processes may also be required as part of a prior contractual agreement between
the parties. In voluntary processes, the submission of a dispute to the ADR
process depends entirely on the will of the parties.
 P a g e | 75

This therefore explains the need for ADR in India. In a country that aims to
protect the socio-economic and cultural rights of its citizens, it is extremely
important to dispose of cases expeditiously in India as the courts alone cannot
handle the huge backlog of cases. This can be effectively achieved through the
application of alternative dispute resolution mechanisms. These are the reasons
for introducing ADR in India. Human ingenuity in the field of law has given
birth to various alternative dispute resolution systems that have deviated from
the traditional, time-tested and well-established system and procedure of the
courts. The purpose of ADR is to promote amicable/satisfactory resolution of
disputes and litigation through voluntary settlement procedures.

A dispute between two or more parties is usually based on different perceptions

of rights/obligations and expectations between individuals or societies. The
ultimate goal of ADR systems is to resolve disputes and reach consensus – a
mutually acceptable agreement that takes into account the interests of all parties
involved. 10Alternative Dispute Resolution, with its operational mechanics
revolving around informal discussion and exchange of ideas as well as listening
to the other, provides a greater opportunity for everyone to realize where the
right, claim or responsibility lies.

STATUTORY DEFINITION OF MEDIATION: -

It has been suggested that the term mediate is derived from the Latin word
"mediare", meaning "to be in the middle". However, as mediation continues to
develop in this jurisdiction - ... there is less agreement on what constitutes
mediation. This may be due in part to the expansion of mediation into new areas
of dispute and the increasing involvement of individuals from other professions.
The Commission is aware that the term mediation can have different meanings
depending on the context in which it is used and whether the emphasis is on
process or outcome. Menkel-Meadow describes 8 different conceptual
 P a g e | 76

approaches to mediation Boulle describes 4 models; Riskin has a "grid" of

mediating orientations; and Alexander presents 6 contemporary practical
models of mediation in his metamodel. Sourdin suggested that mediation cannot
be defined, with different forms of processes used in different jurisdictions and
subject areas, the primary difference being the role of the mediator. Despite this
latter argument, the Commission believes that mediation should have a statutory
definition in Ireland. As suggested by the Commission in its consultation
document, creating clear and consistent definitions of the more commonly used
ADR terms would serve several important functions. As the Australian National
Alternative Dispute Resolution Advisory Committee has noted: “Inconsistent
use of ADR terminology and principles potentially affects consumers,
prescribers, assessors, researchers, policy makers, courts and tribunals, all of
whom need consistent and accurate information about ADR. As a result, it is
likely that many disputes that could be effectively resolved through ADR are
litigated in courts and tribunals.

STATUTORY DEFINITION OF CONCILIATION: -

As the Commission noted in its Consultation Paper provision for conciliation

can be found in a number of legislative acts and statutory instruments, but they
do not provide any definition for the term conciliation. 22 In its Consultation
Paper, the Commission provisionally recommended that: when provision for
conciliation is made in legislative form, it should be defined as an advisory,
23
consensual and confidential process, in which parties to the dispute select a
neutral and independent third party to assist them in reaching a mutually

22
In evaluative mediation the third party plays a more advisory role in assisting in the resolution of the disputes.
The mediator allows the parties to present their factual and legal arguments. After evaluating both sides, he or
she may then offer his or her own assessment of the dispute or put forward views about the merits of the case or
particular issues between parties. This form of mediation mirrors conciliation.
23
For example, the Rules of the Superior Courts (Commercial Proceedings) 2004 and the Rules of the Superior
Courts (Competition Proceedings) 2005 expressly mention both mediation and conciliation, but do not provide
any definitions of the terms. It must be assumed that those drafting the 2004 and 2005 Rules intended them to
have different meanings.
 P a g e | 77

acceptable negotiated agreement.24 2.41 The 2002 UNCITRAL Model Law on

International Commercial Conciliation defines conciliation as: ―… a process,
whether referred to by the expression conciliation, mediation or an expression
of similar import, whereby parties request a third person or persons (―the
conciliator‖) to assist them in their attempt to reach an amicable settlement of
their dispute arising out of or relating to a contractual or other legal relationship.
The conciliator does not have the authority to impose upon the parties a solution
to the dispute. ‖58

DISTINGUISH BETWEEN ARBITRATION, AND

CONCILIATION: -

1. Arbitration refers to a method of resolving industrial disputes, wherein the

management and the labour present their respective positions to the neutral
third party, who takes a decision and imposes it. Conciliation is a method of
resolving the dispute, wherein an independent person, who meet the parties
jointly and severally and helps them to arrive at negotiated settlement or
resolve their differences.

2. The decision made by the arbitrator is acceptable to the parties concerned.

On the other hand, the conciliator does not have the right to enforce his
decision.

3. Arbitration requires a prior agreement between parties known as arbitration

agreement, which must be in writing. As against this, the process of
conciliation doesn’t require any prior agreement.

4. Arbitration is available for the current and future disputes whereas the
conciliation can be adopted for existing disputes only.

24
LRC CP 50-2008 at 2.129
 P a g e | 78

5. Arbitration is like a courtroom proceeding, wherein witnesses, evidence,

cross-examination, transcripts and legal counsel are used. On the contrary,
Conciliation is an informal way of resolving disputes between the
management and labour.25

Chapter 4
ROLE OF ALTERNATIVE DISPUTE
RESOLUTION: -

1. save a lot of time by allowing resolution in weeks or months, compared to

court, which can take years.
2. save a lot of money, including fees for lawyers and experts, and work time
lost.
3. put the parties in control (instead of their lawyers or the court) by giving
them an opportunity to tell their side of the story and have a say in the final
decision.
4. focus on the issues that are important to the people in dispute instead of just
their legal rights and obligations help the people involved come up
with flexible and creative options by exploring what each of them wants to
achieve and why.
5. preserve relationships by helping people co-operate instead of creating one
winner and one loser.
6. produce good results, for example settlement rates of up to 85 per cent.

25
http://keydifferences.com/difference-between-arbitration-and-
conciliation.html#ixzz4feloqyFP
 P a g e | 79

7. reduce stress from court appearances, time and cost.

8. keep private disputes private - only people who are invited can attend an
ADR session, unlike court, where the proceedings are usually on the public
record and others, including the media, can attend.
9. lead to more flexible remedies than court, for example by making
agreements that a court could not enforce or order (for example a change in
the policy or practice of a business).
10.be satisfying to the participants, who often report a high degree of
satisfaction with ADR processes.
11. give more people access to justice, because people who cannot afford court
or legal fees can still access a dispute resolution mechanism. 26

PRINCIPLES OF ALTERNATIVE DISPUTE RESOLUTION: -

It is widely accepted that ADR methods are guided by some of the following
principles:

 Voluntary participation
 Timely resolution
 Good faith
 Confidentiality
 Self determination

Voluntary participation:

26
http://www.localcourt.justice.nsw.gov.au/Pages/adr/benefits_adr.aspx
 P a g e | 80

It is human nature to fear the unknown. As a member of your

condominium community, you are uniquely positioned to share information and

ideas about mediation and other alternative dispute resolution processes. A
newsletter article, presentations at meetings, and other media will gently
introduce both the process and the community's commitment to it long before
there is a dispute. People who are familiar with the principles of mediation,
even if they lack experience with the process, will be much more willing to try
it.

Timely solution:

We all know the damage that can be done when a dispute is allowed to simmer
for too long. The motivation to solve begins to wane; bad feelings start to
solidify. Property managers are the guardians of timely dispute resolution! Do
you have what it takes to solve problems as they arise and before they break
out? If not, consider asking a local mediator or dispute resolution professional
to come out and train your frontline professionals on how to resolve disputes in
a timely manner. Also check with your real estate company. Maybe they already
offer this training.

Good faith:

In many disputes, one side often has little incentive to come to the proverbial
"negotiation table." Most of the time, it is an unmotivated party, the board of
directors and/or the property manager. After all, the owner of the unit is the one
who has to comply with the declarations, rules and regulations! The company
pays lawyers to help with these things. Why should we "negotiate"? This
scenario presents a common obstacle to dispute resolution. Good faith holds that
where both individual and altruistic (or community) interests coexist, altruistic
interests should dominate. While the board or property management team may
 P a g e | 81

not be motivated by self-interest to invest in the early resolution process, a

strong commitment to the overall well-being of the community as a whole
should prevail.

Confidentiality:

Confidentiality can be a difficult principle to master, especially in the early days

of a conflict. Condominium communities are inherently dynamic, and the words
"community" and "communication" have common roots. Disputants, especially
if they are also residents, are often tempted to share stories and experiences out
loud. While this is normal, a little discretion can go a long way! While not
everyone will follow this principle, adopting the principles of confidentiality
and discretion prevents disputes from being judged in the court of public
opinion.

Self-determination:

The principle of self-determination speaks of the party's ability to choose what it

considers an appropriate way of dealing with coercion. As helpful as coercive
dispute resolution options (i.e., litigation) may seem, they fall back on giving all
parties to a dispute the choice to resolve their issues on their own terms. While
the Condominium Act requires that a specific process be attempted in most
cases, none of these necessarily preclude earlier informal attempts to find
common ground and meaningful solutions. Research has shown that solutions
created by the parties themselves, as opposed to those imposed on them, lead to
more permanent solutions that require less follow-up enforcement.

CONCEPT OF ALTERNATIVE DISPUTE

RESOLUTION UNDER CONSTITUTION: -
 P a g e | 82

The Alternative Dispute Resolution mechanisms evolved to provide complete

justice to the persons in conflicts and legal disputes. It is a voluntary process
gaining legal recognition over a period of time. The ADR is at present a
movement all over the world to find an answer to never ending litigation and
never reaching solutions, which is a global phenomenon. The society, state and
the party to the dispute are equally under an obligation to resolve the dispute
before it disturbs the peace in the family, business community, society or
ultimately the humanity as a whole. Because in a civilized society the rule of
law should prevail and principles of natural justice should apply and complete
justice should result.

Rule of Law

It is the fundamental need of democracy to secure the rule of law.

La Principe legalite= governance not by persons but by principles. It is the
dynamic concept of supremacy of law, i.e., law rules, it imposes negative
constraints on government action and also an affirmative duty of fairness, and in
the context of judiciary, rule of law means independent judiciary.

Principles of Natural Justice: -

The Rule of law and principles of natural justice are inherently related to
each other. It is protection from excesses of power by the authorities or who are
in a commanding position. It means fairness, equity and equality,
reasonableness. It is also called natural law.

Constitutional Foundation: -
 P a g e | 83

These principles do have constitutional foundation. The Article 21s and

14 of Constitution of India embody these principles of natural justice and rule of
law. These Articles incorporate substantial and procedural due process. Fairness
when accused is deprived of liberty Article 21. Absence of discriminatory class
legislation article 14

Two BASIC PRINCIPLES: -

The sole basis of ADR is founded in two basic principles. They are:
1. Nemo judex in causa Sua= no one should be made a judge in his own cause
(rule against bias) and 2. Audi alterum partem (hear the other side)

The enemy of justice is the Bias, which is of four kinds: 1-pecuniary

interest or 2. personal interest, a) by blood relation or b) marital relations, c)
friendship, 3. Hostility4. Official Bias, 5. Subject Matter Bias

Rule of fair hearing: -

No one can be deprived of his vested right or be punished without having
been given opportunity to offer an explanation. Every person has a Right to
notice, a Right to present cases and evidence and a right to rebut adverse
evidence, no evidence should be taken on the back of other party.

Audi alteram partem: -

The maxim in its wider import means that the Report of the enquiry to be
shown to the other party, reasoned decisions or speaking orders should be given
and very importantly, there should be institutional decisions, OR ONE WHO
DECIDES MUST HEAR. It is a rule against dictation.
 P a g e | 84

The Notice must be adequate. The Art 22(5) makes every person entitled
to know reasons, and to represent, which is again supported by another Art
311(2) which protects the rights of employees in government by providing
procedural safeguards as an exception to doctrine of pleasure indicating the
powers of the President or Executive.

Procedural due process: -

These two principles are embodied in all procedural laws like Cr. P.C.
and Civil Procedure Code. The Notice, summons, exchange of information in
the shape of pleadings, discovery proceedings, fixing issues, examination of
witnesses, arguments and judgments are the explanations of the expanding need
for giving notice to the parties to disputes. The Procedural due process is must
in resolving disputes, whether in litigative or alternative methods.

Problems in Litigation: -
Then these procedural safeguards and natural principles of justice when
enforced by the state resulted in severe problems in resolving the litigation.
They are:
1. Inordinate delay,
2. Escalating costs,
3. Mounting arrears,
4. Pervasive corruption,
5. Inequities in system.

Merits of ADR, mediation: -

 Not just another mechanical process of Dispute Resolution

 Not just an activist legal aid philosophy
 It will promote rule of law in society
 P a g e | 85

 Promote people’s participation

 Promote self-reliant development
 Create legal awareness and respect for rights of others

Dispute Resolution: -
The Dispute Resolution is of two kinds - Litigative and non-litigative
 non-litigative is the future dispute resolution mechanism.
 It involves collection of strategies outside usual processes of
litigation
 Because the Perils of litigation are: litigation is expensive, open,
uncertain as to time and decision, denies parties control in resolving 27

CHAPTER 5

CASES RELATED TO
ALTERNATIVE DISPUTE
RESOLUTION

1. M/S. Afcons Infra. Ltd. &Anrvs M/S Cherian Varkey

Constn ... on 26 July, 2010
Author: R.V. Raveendran

27
https://adrr.com/adr4/ADR-Constitution.htm
 P a g e | 86

Bench: R.V. Raveendran, J.M. Panchal

Leave granted. The general scope of Section 89 of the Code of Civil Procedure
(`Code' for short) and the question whether the said section empowers the court
to refer the parties to a suit to arbitration without the consent of both parties,
arise for consideration in this appeal.

2. The second respondent (Cochin Port Trust) entrusted the work of

construction of certain bridges and roads to the appellants under an agreement
dated 20.4.2001. The appellants sub-contracted a part of the said work to the
first respondent under an agreement dated 1.8.2001. It is not in dispute that the
agreement between the appellants and the first respondent did not contain any
provision for reference of the disputes to arbitration.

3. The first respondent filed a suit against the appellants for recovery of
Rs.210,70,881 from the appellants and their assets and/or the amounts due to
the appellants from the employer, with interest at 18% per annum. In the said
suit an order of attachment was made on 15.9.2004 in regard to a sum of
Rs.2.25 crores. Thereafter in March 2005, the first respondent filed an
application under section 89 of the Code before the trial court praying that the
court may formulate the terms of settlement and refer the matter to arbitration.
The appellants filed a counter dated 24.10.2005 to the application submitting
that they were not agreeable for referring the matter to arbitration or any of the
other ADR processes under section 89 of the Code. In the meanwhile, the High
Court of Kerala by order dated 8.9.2005, allowed the appeal filed by the
appellants against the order of attachment and raised the attachment granted by
the trial court subject to certain conditions. While doing so, the High Court also
directed the trial court to consider and dispose of the application filed by the
first respondent under section 89 of the Code.28
28
https://indiankanoon.org/doc/1875345/
 P a g e | 87

4. The trial court heard the said application under section 89. It recorded the fact
that first respondent (plaintiff) was agreeable for arbitration and appellants
(defendants 1 and 2) were not agreeable for arbitration. The trial court allowed
the said application under section 89 by a reasoned order dated 26.10.2005 and
held that as the claim of the plaintiff in the suit related to a work contract, it was
appropriate that the dispute should be settled by arbitration. It formulated
sixteen issues and referred the matter to arbitration. The appellants filed a
revision against the order of the trial court. The High Court by the impugned
order dated 11.10.2006 dismissed the revision petition holding that the apparent
tenor of section 89 of the Code permitted the court, in appropriate cases, to refer
even unwilling parties to arbitration. The High Court also held that the concept
of pre-existing arbitration agreement which was necessary for reference to
arbitration under the provisions of the Arbitration & Conciliation Act, 1996
(`AC Act' for short) was inapplicable to references under section 89 of the
Code, having regard to the decision in Sukanya Holdings (P) Ltd. v. Jayesh H.
Pandya &Anr. 29The said order is challenged in this appeal.

5. On the contentions urged, two questions arise for consideration:

(i) What is the procedure to be followed by a court in implementing section

89 and Order 10 Rule 1A of the Code?

(ii) Whether consent of all parties to the suit is necessary for reference to
arbitration under section 89 of the Code?

6. To find answers to the said questions, we have to analyse the object, purpose,
scope and tenor of the said provisions. The said provisions are extracted below:

"89. Settlement of disputes outside the court. - (1) Where it appears to the
Court that there exist elements of a settlement which may be acceptable

[2003 (5) SCC 531].

29
 P a g e | 88

to the parties, the Court shall formulate the terms of settlement and give
them to the parties for their observations and after receiving the
observations of the parties, the Court may reformulate the terms of a
possible settlement and refer the same for -

(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.

(2) where a dispute has been referred -

(a) for arbitration or conciliation, the provisions of the Arbitration

and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings
for arbitration or conciliation were referred for settlement under the
provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in
accordance with the provisions of sub-section (1) of section 20 of the
Legal Services Authority Act, 1987 (39 of 1987) and all other provisions
of that Act shall apply in respect of the dispute so referred to the Lok
Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable
institution or person and such institution or person shall be deemed to be
a Lok Adalat and all the provisions of the Legal Services Authority Act,
1987 (39 of 1987) shall apply as if the dispute were referred to a Lok
Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties
and shall follow such procedure as may be prescribed."
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Order 10 Rule 1A. Direction of the Court to opt for any one mode of
alternative dispute resolution. --After recording the admissions and
denials, the Court shall direct the parties to the suit to opt either mode of
the settlement outside the Court as specified in sub-section (1) of section

89. On the option of the parties, the Court shall fix the date of appearance
before such forum or authority as may be opted by the parties.

Order 10 Rule 1B. Appearance before the conciliatory forum or authority.

--Where a suit is referred under rule 1A, the parties shall appear before
such forum or authority for conciliation of the suit.

Order 10 Rule 1C. Appearance before the Court consequent to the failure
of efforts of conciliation. --Where a suit is referred under rule 1A and the
presiding officer of conciliation forum or authority is satisfied that it
would not be proper in the interest of justice to proceed with the matter
further, then, it shall refer the matter again to the Court and direct the
parties to appear before the Court on the date fixed by it.

In the light of the above discussion, we answer the questions as follows:

(i) The trial court did not adopt the proper procedure while enforcing
Section 89 of the Code. Failure to invoke Section 89 suomoto
after completion of pleadings and considering it only after an application
under Section 89 was filed, is erroneous.

(ii) A civil court exercising power under Section 89 of the Code cannot
refer a suit to arbitration unless all the parties to the suit agree for such
reference.30

Consequently, this appeal is allowed and the order of the trial court
referring the matter to arbitration and the order of the High Court
affirming the said reference are set aside. The Trial Court will now
consider and decide upon a non-adjudicatory ADR process.
30
https://indiankanoon.org/doc/1875345/
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Haresh Dayaram Thakur vs. State of Maharashtra and Ors. while dealing with
the provisions of Sections 73 and 74 of the Arbitration and Conciliation Act
1996 in paragraph 19 of the judgment as expressed by the court held that -19. It
is clear from the above legal provisions that a conciliator is a person who is
supposed to help the parties settle disputes between them amicably. To this end,
the Magistrate has wide powers to decide on the procedure to be followed,
unfettered by procedural law such as the Civil Procedure Code or the Indian
Evidence Act, 1872. When the parties are able to settle the dispute between
them by mutual agreement and the Magistrate seems , that there is an element of
settlement that may be acceptable to the parties, should proceed in accordance
with the procedure set forth in 73, formulate the terms of the settlement and
forward them to the parties for their comments; and the final step which the
Magistrate has to take is to frame the settlement in the light of the comments
made by the parties on the terms formulated by him. A settlement becomes
effective only when the parties write up a settlement agreement or ask a
magistrate to prepare it and attach their signatures to it. Pursuant to paragraph 3
of 73, the settlement agreement signed by the parties is final and binding on the
parties and persons making claims under it. It therefore follows that a successful
conciliation procedure ends only when the settlement agreement signed by the
parties enters into force. It is such an agreement that has the status and effects of
the legal sanction of an arbitral award according to 74".

JUDICIAL RESPONSE TOWARDS

ALTERNATIVE DISPUTE RESOLUTION: -

Judicial effort towards ADR in India:

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Indian judiciary has also played a substantial role in upgradation of ADR

mechanism. The apex court has recognized the alternate forum in its various
decisions.

In In Guru Nanak Foundation V/S Rattan & Sons court observed that
“Interminable, time consuming, complex and expensive court procedures
impelled jurists to search for an alternative forum, less formal, more effective
and speedier for resolution of disputes avoiding procedure claptrap…”
The realization of concepts like speedy trial and free legal aid by apex court in
various cases has also helped in the upgradation of alternate dispute redressal
mechanism. 31One of the biggest steps in the lines of development of the said
machinery was maintaining the validity of “fastrack courts” scheme as laid
down in Brijmohan v/s UOI.

Fastrack court scheme has done wonders in disposing number of pending cases.
These courts have disposed of 7.94 lakh cases out of 15.28 lakh cases
transferred at the rate of 52.09% and recent statistics show that the number of
pending cases has reduced to 6 lakhs. Another major step in the growth of ADR
services in India is the establishment of institutions such as: · IIAM - Indian
Institute of Arbitration and Mediation, ICA - Indian Council for Arbitration,
ICADR –32These institutions provide services of negotiation, mediation,
conciliation, arbitration, settlement conferences etc. They also help in finding
lacunae in existing ADR laws and recommended reforms to overcome them.

At International Level: -

Guru Nanak Foundation V/S Rattan & Sons

31

International Centre for Alternate Dispute Resolution.

32
 P a g e | 92

The history of Alternate dispute resolution forum at international level can be

traced back from the period of Renaissance, when Catholic Popes acted as
arbitrators in conflicts between European countries. One of the successful
examples of the said mechanism is the international mediation conducted by
former U.S President Jimmy Carter in Bosnia. ADR has given fruitful results
not only in international political arena but also in international business world
in settling commercial disputes among many corporate houses for e.g.
Settlement of a longstanding commercial dispute between General Motors Co.
and Johnson Matthey Inc., which was pending in US District Court since past
few years.

The biggest stepping stone in the field of International ADR is the adoption of
UNCITRAL [United Nation Commission on International Trade Law] model on
international commercial arbitration. An important feature of the said model is
that it has harmonized the concept of arbitration and conciliation in order to
designate it for universal application. General Assembly of UN also
recommended its member countries to adopt this model in view to have uniform
laws for ADR mechanism.

REMEDIAL MEASURES

There are a number of dispute resolution models designed to reduce hostile

behaviour. They are based on a comprehensive description of alternative dispute
resolution and include negotiation, adjudication, mediation, conciliation, dispute
review panels and mini-courts. There are some differences in definition, so what
might be called mediation in one country might be called conciliation in
another, but the difference is not important to this principle. In this context, both
litigation and arbitration are contradictory.
 P a g e | 93

Alternative Dispute Resolution (ADR) refers to techniques used to resolve

disputes that are an alternative to litigation, our legal system's traditional
method of formally resolving disputes. The primary alternatives to litigation
include negotiation, mediation, arbitration, med-arb (which combines mediation
and arbitration), mini-court, and summary jury trials. The limitations of our
traditional court process provide reasons to consider another method of dispute
resolution. A court is a good forum for adjudication if there is a question of
public policy or a need to establish a legal precedent that will affect future
cases. However, the court is a public forum where negative publicity can be
generated, regardless of the merits of the case, simply because a medical
malpractice claim has been filed.

On the other hand, ADR privatizes the dispute. ADR often shortens the time
frame for reaching a final decision and is generally less expensive than
litigation. Another advantage of ADR is the possibility for the parties to choose
a person who will act as a mediator or arbitrator. The parties may choose a
person or group of experts with special expertise in the issues involved in the
dispute. A 1992 General Accounting Office study of medical malpractice
litigation found that arbitration took less time than litigation, was effective in
compensating more plaintiffs for their injuries, and resulted in awards were
lower and more consistent.1 In spite of the advantages of ADR, it is still not
widely used. An important reason for its limited use is that the attorneys often
control when ADR is used, and insurers and attorneys have a certain comfort
level with the traditional litigation process. The Institute for Civil Justice
studied arbitration practices in California. It found that 91% of hospitals and
physicians did not use an arbitration agreement. The principal reason cited by
physicians was that they were unfamiliar with them. Other providers felt that an
arbitration agreement set the "wrong tone" in working with a new patient. In
addition, medical malpractice insurer and provider group preferences seemed to
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have a significant impact on whether arbitration agreements were used. Among

providers insured by carriers who encouraged arbitration, 50% of managed care
physicians used arbitration agreements.33

As development projects have become larger and more complex over the last
three or four decades, the incidence of disputes and their complexity have both
increased. Whether the disputes flow from inadequacies in briefing,
inadequacies in the procurement processes or inadequacies in the management
of the construction process itself, they are often so complex that few, it any,
individuals can comprehend a dispute entirely.

The fact that a dispute arises indicates that the parties to the dispute are in
conflict. Attempts to resolve the dispute which strengthen the conflicting
positions of the parties are likely to be counter-productive, especially if they
become excessively legalistic. Difficulties flow from the inherent complexity of
the documentation and from the inevitability that no documentation can ever be
absolutely complete and unambiguous, and from the behaviour of advocates and
experts (see FlDIC Policy Statement on Experts). These difficulties tend to
delay the execution of remedial measures, often leading to increased cost and
the waste of resources, to the detriment of both the client and society. There are
cases in which judicial methods may be more appropriate than consensual, such
as a case where a legal or engineering impasse has been reached. Whilst,
litigation and arbitration are methods which provide a final and binding result, it
should be emphasised that the outcome of mediation or conciliation may be
more compelling if a settlement agreement can be reached between the parties

33
https://www.ahcmedia.com/articles/46261-alternative-dispute-resolution-a-
remedy-for-malpractice-disputes
 P a g e | 95

which can be enforced by the courts in the event of subsequent default.

SUGGESTIONS

The evolution of ADR mechanisms was not of that much success. Thereby, the
trend is the imposition of responsibility and duty on Court

i) Courts are authorized to give directives for the adoption of ADR mechanisms
by the parties and for that purpose Court has to play important role by way of
giving guidance. Power is also conferred upon the courts so that it can intervene
in different stages of proceedings. But these goals cannot be achieved unless
requisite infrastructure is provided and institutional frame work is put to place.

ii) The institutional framework must be brought about at three stages, which are:

Awareness: It can be brought about by holding seminars, workshops, etc. ADR

literacy program has to be done for mass awareness and awareness camp should
be to change the mindset of all concerned disputants, the lawyers and judges.

Acceptance: In this regard training of the ADR practitioners should be made by

some University together with other institutions. Extensive training would also
be necessary to be imparted to those who intend to act as a facilitator,
mediators, and conciliators. Imparting of training should be made a part of
continuing education on different facets of ADR so far as judicial officers and
judges are concerned.

Implementation: For this purpose, judicial officers must be trained to identify

cases which would be suitable for taking recourse to a particular form of
ADR. [36]
 P a g e | 96

iii) ADR Mechanisms to be made more viable: The inflow of cases cannot be
stopped because the doors of justice cannot be closed. But there is a dire need to
increase the outflow either by strengthening the capacity of the existing system
or by way of finding some additional outlets.

iv)Setting up of Mediation Centres in all districts of each state with a view to

mediate all disputes will bring about a profound change in the Indian Legal
system. These Mediation centres would function with an efficient team of
mediators who are selected from the local community itself.

v) Not many Indians can afford litigation. This kind of state of affairs makes
common people, especially rural people, cynical about judicial process. We
must take the ADR mechanism beyond the cities. Gram Nyayalaya should
process 60 to 70 percent of rural litigation leaving the regular courts to devote
their time to complex civil and criminal matters.

vi) More and more ADR centres should be created for settling disputes out-of-
court. ADR methods will achieve the objective of rendering social justice to the
people, which is the goal of a successful judicial system.

vii) The major lacuna in ADR is that it is not binding. One could still appeal
against the award or delay the implementation of the award. “Justice delayed is
justice denied.” The very essence of ADR is lost if it is not implemented in the
true spirit. The award should be made binding on the parties and no appeal to
the court should be allowed unless it is arrived at fraudulently or if it against
public policy.
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CONCLUSION

The above procedures and techniques are the most commonly used ADR
methods. In each method, negotiation plays an important role, whether primary
or secondary. However, there are countless other ADR methods, many of which
modify or combine the above methods. For example, it is not uncommon for
disputants to begin negotiations with an early neutral assessment and then move
to non-binding mediation. If mediation fails, the parties may proceed to binding
arbitration. The goal of each type of ADR is for the parties to find the most
efficient way to resolve their dispute without resorting to litigation. The process
has been criticized as a waste of time by some legal observers, who believe that
the same amount of time could be spent handling claims in civil court, where
negotiation also plays a significant role and litigants are protected by a series of
formal rights, procedures, and rules. However, many participants in
unsuccessful ADR proceedings find it useful to determine that their disputes
cannot be settled before litigating.

Despite its success over the past three decades, ADR is not the right choice for
all disputes or all legal disputes. Many individuals and entities still resist ADR
because it lacks the substantive, procedural and evidentiary protections
 P a g e | 98

available in formal civil litigation. For example, ADR parties typically waive
their rights to object to evidence that might be considered inadmissible under
court rules. Hearsay evidence is a common example of evidence that is
considered by parties and mediators in ADR forums, but which is generally
excluded from civil proceedings. If a disputant believes that he would be
sacrificing too many rights and protections by waiving the formalities of civil
litigation, ADR will not be a suitable method of dispute resolution.

BIBLIOGRAPHY

REFERENCE BOOKS:

 Johari’s: Arbitration and Conciliation Act, 1996

 Federal Judicial Centre, Manual for Litigation Management and Cost
and Delay Reduction (1992)
 Steven W Hays and Cole Blease Graham, Jr. (eds.) Handbook of
Court Administration and Management, Marcel Dekker. Inc (1993)
 Bagdan, Michael, Comparative Law, Kluwer and Taxation Publisher,
(1994).
 Bennett, Mark D. et al., The Art of Mediation, NITA, (1996).
 Brown, Gordan W. et al., Business Law, Ninth Edition, New York:
Clencoe, (2001).
 Christie, Daniel J. et al., Peace, Conflict and Violence: Peace
Psychology for the 21st Century, New Jersey: Prentice Hall, (2001).
 Moore, Christopher W., The Mediation Processes: Practical
Strategies for Resolving Conflict, San Francisco: Jossey-Bass
Publishers, (1986).
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 Morrison, W.J. et al., English Legal System, University of London,

(2003).
 Murry, John S., Notes for The Teachers to Processes of Dispute
Resolution: The Role of Lawyers, Second Edition, New York: The
Foundation Press, (1996).
 Nolan-Haley, Jacqueline M., Alternative Dispute Resolution, West
Publishing Co., (1992).
 Rao, P.C.et al., Alternative Dispute Resolution, Universal Law
Publisher, (2004).
 Rau, Alan Scott et al., Mediation and other Non-Binding ADR
Processes, Second Edition, New York: Foundation Press, (2002).
 Schuttz, David, Encyclopaedia of America Law, Facts on File, Inc,
(2002).
 Shaw, Malcolm N., International Law, Fourth Edition, Cambridge
University Press, (1997).
 Supreme Court of Nepal, Justice in Nepal, (1981).
 Sutton, David St. John, Russell on Arbitration, 21st Edition, London:
Sweet & Maxwell, (1997).

INTERNET SOURCES:
 www.google.com
 www.indiankanoon.com
 www.manupatralegalsearch.com
 www.legaleagle.com
 www.Easternlaw.com
 www.answers.com
 www.wikipedia.com
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ARTICLES
Daniel Marcus and Jeffrey M. Senger, “ADR and the Federal Government:
Not Such Strange Bedfellows After All” (Vol.66) 2001 Missouri Law
Review709
David W. Rivkin, “ADR For Small and Medium-Sized Enterprises” (2000)
Donna Stienstra, “Core Issues to Address in Designing a Mediation
Program”
Carlos G. Gregorio, “Case Management and Reform in the Administration
of Justice in Latin America”
David Barker, “Remedies Outside the Court System”,
http://www.law.uts.edu.au/~davidb/bl-5a.html

NEWSPAPERS/NEWS

Kantipur TV News, Feb. 2, 2006.

Kantipur, Feb. 19, Nepali Daily, Kathmandu.

Spotlight, Vol. 20, No. 9, August, 2000, The National Newsmagazine

The Gorkhapatra, Sept. 1, 2005, Nepali Daily, Kathmandu.

The Himalayan Times, March 10, 2004, English Daily, Kathmandu.

The Kathmandu Post, May 9, 2004, English Daily, Kathmandu.

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