Arbitration & ADR Services

Arbitration and Alternative Dispute Resolution (ADR)

ADR is an essential tool in India for addressing the issue of cases that are still pending in Indian courts. Alternative Dispute Resolution procedures assist in simplifying the Indian legal system and give the Indian judiciary a scientific foundation. ADR offers a variety of dispute resolution methods, including negotiation, mediation, arbitration, conciliation, and Lok Adalat. Although there is no official definition of negotiation in India, it is understood here to be the process of the parties working through their differences by self-counselling.

• Alternative Dispute Resolution (ADR) is the process by which issues between the parties are resolved amicably or with minimal litigation and without the involvement of judicial institutions.
• Any type of disagreement, including commercial, industrial, familial, and civil conflicts, can be resolved through alternative dispute resolution (ADR) when parties are unable to negotiate a settlement.
• An unbiased third person is typically used in ADR to facilitate communication, conflict resolution, and discussion between the parties.
• It is a technique that enables individuals and groups to uphold social order and cooperation and offers the chance to lessen conflict.

Alternative Dispute Resolution (ADR) Mechanisms

• Alternative Dispute Resolution (ADR) is a non-adversarial dispute resolution process that entails collaborating to identify the best option for all parties.
• While offering the parties a thorough and satisfying process, alternative dispute resolution (ADR) can significantly reduce the volume of litigation in court.

Important Provisions Related To ADR

• Suppose it appears that the parties have agreed to settle the matter outside of court. In that case, the court may refer the matter to Lok Adalat, Arbitration, mediation, or conciliation under Section 89 of the Civil Procedure Code of 1908.
• The Legal Services Authority Act of 1987 and the Arbitration and Conciliation Act of 1996 are the statutes that address alternative dispute resolution.

Types of ADR

Arbitration

• The arbitration procedure is impossible without a formal arbitration agreement in existence prior to the occurrence of a dispute. The parties must abide by the arbitrator's decision, which is referred to as an "Award." Arbitration aims to provide a fair and just out-of-court dispute settlement.
• Any party to a contract that has an arbitration clause may invoke it either personally or through their authorized agent, who will then submit the dispute for arbitration by the terms of the arbitration clause. Here, the term "arbitration clause" refers to a clause specifying the process, language, number of arbitrators, and location of the arbitration if a dispute arises between the parties.
• The matter is presented to an arbitral tribunal, which issues a ruling (an "award") that is essentially binding on the parties. It is less formal and generally follows the rules of evidence than a trial.
• To initiate arbitration proceedings, the applicant first submits a statement of claim detailing relevant facts and other remedies. The application must be submitted with a certified copy of the arbitration agreement.
• The claimant describes the facts supporting his case and the remedies he seeks from the defendant in a written statement of claim that is submitted to the court or tribunal for judicial determination and sent in duplicate to the defendant.
• The procedure of selecting the panel of arbitrators to hear a dispute involves the parties receiving lists of prospective arbitrators.
• Later, there is the 'Discovery' hearing preparation process, which involves the exchange of papers and information. The parties meet in person to conduct the hearing and present the arguments and supporting facts for their respective positions.
• Following interrogating the witnesses and presenting the evidence, the arbitrator issues a legally binding "Award" to the parties.
• The other party may ask the court to refer the case to the arbitration tribunal by agreement under Section 8 of the Arbitration and Conciliation Act of 1996 if one party ignores the arbitration agreement and files a lawsuit in civil court rather than through arbitration. The matter will be assigned to arbitration if the courts find the application and certified copy of the arbitration agreement satisfactory.

Mediation

• A third party serves as a mediator in this simple party-centered negotiation procedure, which uses effective communication and negotiating techniques to settle disputes amicably. The parties have complete control over this procedure.
• The mediator's sole purpose is to assist the parties in resolving their conflict. The mediator does not impose his opinions or determine a just settlement. The mediator must guarantee that all parties and their solicitors are present before the mediation process may begin.
• First, he gives all the information regarding his appointment in the opening speech and says he has no affiliation with either party or stake in the issue.
• By inviting both parties to present their cases and put up their perspectives without interruption during the joint session, he gets all the information and gains an understanding of the facts and problems surrounding the disagreement. The mediator strives to moderate the parties' interruptions and outbursts during this session while fostering and promoting conversation.
• The next step is a separate session where he attempts to comprehend the disagreement at a deeper level and gets particular information by speaking alone with both parties.
• The mediator begins articulating concerns for resolution and coming up with solutions for settlement after listening from both sides.
• When mediation negotiations fail to produce an agreement, the mediator may employ several Reality Check techniques, such as:
• Examining the alternative outside of mediation—specifically, litigation—and talking about the repercussions of failure to settle, such as how it would affect the parties' relationships or businesses, might be useful to the parties and mediator.
• The mediator explains the parties' perspectives on the potential results of the dispute. The mediator can also help the parties and their attorneys accurately understand the best, worst, and most likely outcomes of the dispute through litigation. This will enable the parties to acknowledge reality and develop reasonable, comprehensible, and workable proposals.

Conciliation

• It is the process of assisting the parties in reaching a mutually agreeable conclusion whereby the parties to the disagreement use a conciliator who meets with the parties separately to resolve their conflict.
• The conciliator meets with each party separately to ease tension, improve communication, and interpret the situation to facilitate a negotiated settlement. Prior consent is not required, and parties who do not want to mediate cannot be forced to do so. In that respect, it is distinct from arbitration.
• A formal invitation to mediate under this section must be sent to the opposing party by the party launching the process and succinctly describing the disagreement.
• The aforementioned clause makes it clear that a conciliation agreement must be a temporary agreement reached only after a disagreement. The parties may also participate in a conciliation process while the arbitration is ongoing (section 30). A non-binding process where a conciliator, or unbiased third party, helps the parties to a dispute come to a mutually accepted resolution.
• A less formal variation of arbitration is conciliation. The proposals of the conciliator are open for acceptance or rejection by the parties. However, the conciliator's settlement agreement will only be final and binding if both parties approve it.

Lok Adalat

• The Lok Adalat, sometimes known as the "People's Court," is presided over by an active or retired judge, a social activist, or a member of the legal profession. Lok Adalats are held regularly to exercise this authority by the National Legal Service Authority (NALSA) and other Legal Services Institutions.
• Any disagreement that has not been filed before a court of law or any case that is currently proceeding in a regular court might be referred to Lok Adalat. The process moves quickly since there are no court fees and a strict procedure is followed. The court fee initially paid in the court when the petition was filed is also reimbursed to the parties if any subject currently under consideration in court is referred to the Lok Adalat and resolved later.
• Direct communication between the parties and the judge is available, which is not possible in conventional courts. Whether a case that has been pending in ordinary court for a long time can be transferred to Lok Adalat depends on the parties' agreement.
• The people making the decisions merely serve as statutory conciliators; they can convince the parties to settle their differences in the Lok Adalat rather than in a court of law. Upon receiving a request from one of the parties at the pre-litigation stage, the Legal Services Authorities (State or District), as the case may be, may refer such matter to the Lok Adalat, for which notice would then be given to the other party.
• The emergence of voluntary organizations known as Lok Adalats (Peoples' Courts) is an intriguing aspect of the Indian legal system. The Lok-Adalat's decision cannot be challenged in court.

Importance of ADR In India

• ADR plays a vital role in India in dealing with the problem of cases that are pending in Indian courts.
• Alternative Dispute Resolution mechanisms give the Indian judiciary scientifically established tools that lighten the courts' load.
• Arbitration, conciliation, mediation, negotiation, and Lok Adalat are just a few of the different techniques of dispute resolution offered by ADR. Negotiation in this context refers to self-counselling between the parties to settle their issue; nevertheless, there is no legal definition of negotiation in India.
• The object of ADR is to uphold the preamble-guaranteed social, economic, and political justice as well as the integrity of the society.
• ADR has been effective in reducing the backlog of cases at various levels of the judiciary; in the previous three years, Lok Adalats alone has resolved more than 50 lakh cases annually on average. However, it appears that people are unaware that these techniques are available.
• The National and State Legal Services Authorities should make more information on these available so that potential litigants will consider them as their first course of action.

We help you with

• Helping businesses and individuals draft arbitration clauses for contracts, which outline the process for resolving disputes through arbitration.
• Providing legal representation during arbitration proceedings, including selecting arbitrators and preparing cases.
• Assisting clients in enforcing arbitration awards through the legal system, if necessary.
• Offering mediation services and representing clients in mediation proceedings to help them reach mutually acceptable solutions to disputes.
• Providing advice and guidance on alternative dispute resolution methods, including arbitration, mediation, negotiation, and conciliation.
• Evaluating the suitability of ADR methods for specific disputes or contractual arrangements.
• Developing comprehensive strategies for resolving disputes, whether through arbitration, mediation, negotiation, or litigation.
• Conducting risk assessments to help clients make informed decisions regarding dispute resolution.
• Reviewing existing contracts to ensure they contain suitable arbitration or ADR clauses.
• Ensuring that arbitration and ADR processes comply with relevant laws and regulations.
• Providing guidance on international arbitration matters, including cross-border disputes.