ADR AND TYPES OF DISPUTES

Shirin Razdan, BBA LLB Sem 6

Introduction
Alternative Dispute Resolution (ADR) is a technique to resolve disputes and
disagreements between the parties by arriving at an amenable settlement
through negotiations and discussions.

It is an attempt to establish an alternative mechanism other than the traditional

methods of dispute resolutions. The ADR mechanism offers to facilitate the
resolution of matters of business issues and the others where it has not been
possible to initiate any process of negotiation or arrive at a mutually agreeable
solution.

In India, ADR is established on the basis of Article 14 (Equality before law)

and Article 21 (Right to life and personal liberty) under the Constitution of
India. The Directive Principles of State Policy (DPSP) of Equal justice and free
legal aid as engraved in Article 39-A of the Indian Constitution can also be
achieved by the ADR.

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Types of ADR Mechanisms
1. Arbitration

Arbitration in India is governed by The Arbitration and Conciliation Act,1996.

The number of arbitrators and their appointments are defined in
Sections 10 and 11 of the Act. The parties are allowed to ascertain the number of
arbitrators.

Under this form of Alternative Dispute Resolution mechanism, both the parties
involved in the dispute, choose the person to hear and determine their dispute
through a consensus. The objective of arbitration is to arrive at a fair resolution
through an unbiased tribunal speedily and in a cost-effective manners.

Arbitration in India is often used in commercial disputes, construction disputes,

and international disputes. The process is typically confidential, less formal than
court proceedings, and allows parties to choose their arbitrators.

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Types of ADR Mechanisms

2. Conciliation

Conciliation is the adjustment and settlement of a dispute in a friendly, co-

operative and harmonizing manner. It is a discretionary and non-binding
technique of dispute resolution where an unbiased third party assists in
settling disputes between the parties.

Part III of the Arbitration and Conciliation Act, 1996 deals with
conciliation. The provisions of this chapter applies to all conciliation
proceedings of disputes rising from legal relations, irrespective of the fact,
they are contractual in nature or not.

The process of conciliation starts by one party sending an invitation in

writing to another party to conciliate an issue, identifying the substance of
the dispute. If the other party agrees then the conciliation process can
commence.

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Types of ADR Mechanisms
3. Mediation

It is a voluntary and informal process for the resolution of disputes. The process of
mediation is somewhat akin to a negotiation. The mediators enable the parties to
listen to one another, mitigate risks and resolve the disputes between them
harmoniously.

Mediator in this case has the position of an unbiased and independent third party that
aids the parties in amicably resolving their dispute. It is a discretionary, co-operative
and responsive process.

In Mediation, the parties make decisions. The mediators cannot impose their
judgement on the parties, but they can recommend and help the parties to reach a
mutually accepted agreement. Mediators may convene joint meetings or can meet
with the disputed parties together or separately and can suggest some possible
solutions, provide options to compromise or provide suggestions and guidance, but
they cannot enforce their views or try to solve the dispute by force.

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Types of ADR Mechanisms
4. Negotiations

It is the most common method of alternative dispute resolution. A

non-binding procedure in which discussions between the parties are
initiated without the intervention of any third party with the object of
arriving at a negotiated settlement to the dispute.

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.

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 Applicability of ADR in different types of Disputes
1. Family Disputes
Family disputes take place usually when members of the family have different
views or perspectives that clash with each other. Owing to emotions, family
members often misunderstand each other and jump to the wrong conclusions.
Conflicts in such matters can result in disagreements and family quarrels.

Mediation is the most common method of solving family disputes where a

neutral person facilitates the process. Families are usually encouraged to go for
mediation instead of approaching the family courts.

Divorce and
Inheritance Elder Care
Separation

Family Extended
business and family Child Custody
partnerships conflicts

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 Applicability of ADR in different types of Disputes
2. Commercial Disputes

A commercial dispute usually arises as part of a defined deal or transaction that has taken place between business entities.
Arbitration is commonly used due to its flexibility and confidentiality, making it suitable for complex financial matters .

Disputes between the Construction disputes,

Contractual disputes,
shareholders, directors, Professional and including contractual,
includingg breaches and
and other ranking business commercial negligence building, and regulatory
lack of delivery
entities issues

Reputation management,
including countersuits,
Patent and Intellectual
Partnership disputes defamation, Non-
Property disputes.
Disclosure Agreement
breach.

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 Applicability of ADR in different types of Disputes
3. Industrial Disputes

Industrial disputes are created because of differences that arise between Economic
the employers and the employees or between the employer and the
workmen or among the workmen. Conciliation and mediation play • Disputes relating to wages,
crucial roles in resolving conflicts between employers and employees, bonuses, allowances, etc.
promoting constructive dialogue, and achieving fair settlements

Industrial disputes can be in the following types: Non-economic

•Strikes
•Lockouts • Disputes relating to ill-treatment
•Picketing of the workmen, workmen
•Gherao (to surround) discipline, victimization of the
workmen, political factors, etc.

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 Applicability of ADR in different types of Disputes
4. Property Disputes

Disputes relating to property usually arise because of claims from legal family members, co-owners, neighbours, landlords, and
tenants, etc. Property disputes are very common in India. Some common property disputes in India are shown below as:
•Disputes regarding title of the property.
•Disputes involving the title of the property.
•Disputes relating to the transaction of property between builders and buyers.
•Inherited properties disputes.

Negotiation allows parties to discuss their issues directly and come to an agreement without involving a third party. It's often
used in property disputes to settle matters like lease agreements, property sales, and contract disputes.

Conciliation involves a neutral third party who helps parties reach a resolution by facilitating communication and suggesting
solutions. It can be beneficial in complex property disputes where emotions are high, such as family property disputes or
community association disputes.

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Conclusion

Flexibility ADR provides flexible approaches to resolving disputes, allowing

parties to tailor solutions to their specific needs.

Efficiency ADR typically offers faster resolution compared to traditional litigation,

reducing the time and costs involved.

Preservation of ADR methods focus on collaboration and mutual agreement, helping

parties maintain relationships, which is especially crucial in disputes
Relationships involving families, neighbors, or business partners.
Some ADR methods, like arbitration, allow parties to select decision-
Specialization makers with expertise in the subject matter, ensuring that disputes are
resolved by knowledgeable professionals.

Cost- ADR is often more cost-effective than litigation, as it typically involves

Effectiveness fewer formal procedures and legal fees.

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Thank You

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