Introduction:
Conflict among humans are common rather it is an inevitable part of our life which generally causes due to disagreement with one’s opinion that may be cultural, personal or professional or other, that further give birth to Dispute.
We may be having disputes concerning family matters or in work life or may be while mere passing the street but thanks to our sense of logic and justice we can resolve them amicably and certainly avoid such possible conflicts.
Naturally in the event of conflict we are suggested to have court assistance but with the development of Alternative Disputes Resolution (hereafter “ADR”) there evolved certain dispute resolution technique /modes that results in much simpler, faster and peaceful solution than the court remedy.
The foremost techniques of ADR is Negotiation. It is the most advantageous technique/mode that certainly provide high level privacy of disputes. As there are only disputing parties are involve and no third person can have a access to interefere in this method, it gives a lot scope to sit and make up the differences. The best part of negotiation is that even if it is not successful the parties may always take recourse of other modes such as Mediation which is nothing but an assisted negotiation, conciliation and Arbitration. While as of yet the arbitration and conciliation derives legal force from the Arbitration and Conciliation Act, 1996, mediation from section 89 of CPC 1908 although it lack full fledged legislation. Despite the legislative scheme the practice of ADR in india is voluntary.
This article focuses upon certain practices and scheme of ADR in india in the form of question and answer format realted to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for the better understanding to commoners and budding ADR practitioners.
A. Is there statutory framework for ADR in india?
Yes, ADR was first time introduced via insertion of section 89 into the Civil Procedure code 1908 brought into effect by the CPC Amendment Act 1999 that became effective since 1st July 2002. The section provides for the reference of case pending before courts to the ADR such as (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation etc. The method of Arbitration and Conciliation are addtionally governed by the Arbitration and Conciliation Act, 1996. In addtion to these the supreme court in Salem Advocate Bar Association V Union of India, (2005) 6 SCC 344 approved for Model Civil Procedure Mediation Rules and directed 25 high courts in the country to framed their Mediation & Arbitration Rules.
Although these legislation are the basis of ADR there are certain other statutes that advocate for compulsory recourse of either mediation, conciliation or arbitration. These are:
1. The Indian Contract Act, 1872
2. The Negotiable Instrument Act, 1882
3. The Industrial Disputes Act, 1947
4. The Hindu Marriage Act, 1955
5. The Family Courts Act 1984
6. The Motor Vehicle Act, 1988
7. The Legal Service Authority Act 1987
8. The Companies Act, 2013
9. The Companies (Mediation and Conciliation) Rules, 2016
10. The Commercial Courts Act, 2015
11. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018
12. The Real Estate (Regulation and Development) Act, 2016
13. The Consumer Protection Act, 2019
14. The Consumer Protection (Mediation) Rules, 2020
15. The Consumer Protection (Mediation) Regulations, 2020
B. What is the eligibility dispute resolution providers?
Naturally anyone possessing sound mind may faciliate the resolution to the concerned dispute therefore there are no are no rigid formalties prescribed for imparting role as a dispute resolution providers. Since India follows either court referred ADR or Private ADR, the accreditation is necessary for empanelment with court and tribunal mediation panels. The person can be a certified accredited dispute resolution provider either in the category of Mediator, Conciliator or Arbitrator after successful completion of training course.
C. Is there a chronoligical order of choosing alternative method? What is desirous mode of ADR?
No, ideally there is no chronological order for adoption of ADR method however at the intial level the parties must insist of upon negotiation that is the parties must resolve disputes themeselves as it eliminates the risk of access of crucial information to third person. Since there are no hard and fast rules for negotiation and this is something which we do on a daily basis for instance every day are negotiating with family members, supervisors or employees, or store salesclerks it is certainly advatageous to go for negotiation before faciliating or inviting third person to resolve the same. In the event when negotiation not succeded mediation may be a preferred choice certainly the person will be having choice of going for concliation or arbitration.
As already mention in india the process ADR is divided into two one is court referred and other is private, although both advocate for prior consent of disputing parties, the later that private is certainly more flexible to opt for.
It truly depict the voluntary nature of ADR as the party themeselve to decide where to go for recourse of their dispute. There are numerous ADR platforms and facilitors which are further classfied into two that is Ad hoc and Institutional meaning adminstered and not administered. For instance Ad hoc Arbitration means which is not administered by any forum or platform and the parties are generally required to terms of procedure, appointment etc. whereas on the other hand insitutional arbitration means the process of which is governed by the respective guidelines, rules prescribed by such institution/forum or platforms. You are just one goggle search away from the Mediation, conciliation & Arbitration institution.
With the development of ADR in country there is certainly increase in the platforms faciliating dispute resolution and therefore in the arbitration insitutions or forum that increases their competition. For this reason the 2019 amendment introduced in the Arbitration and Concliation Act 1996 led for the establishement of Arbitration Counicil of India who shall provide grading of arbitral institution based on criteria such as infrastructure, quality and calibre of arbitrators, performance and compliance of time limits for disposal of domestic or international commercial arbitrations. Although it does it mean that the arbitral institution be governed by such council and are certainly operate on voluntary basis.
Well this is certainly a positive step taken for streghthing the ADR and improving the quality of dispute resolution.
D. What are different types of disputes to be handled through ADR?
The question as to what matters can and cannot be settled through ADR process is well discussed by apex court in pronoucing decision in Alcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24. These are listed as below:
1. All cases relating to Business, trade, commerce and contracts, including—
♦ disagreements arising out of provisions of contracts (including all money claims);
♦ disputes between customers and supplier of goods;
♦ disputes arising between the bank and customers
♦ disputes relating developers/builders and customers
♦ disputes between landlords and tenants/ licensor and licensee
♦ disputes between insurer and insured
2. All cases arising from soured relationships, including—
♦ disputes relating to matrimonial causes, maintenance, custody of children;¨
♦ Disputes as to partition of property among the family, coparceners, co-owners etc.
♦ disputes relating to partnership among partners
3. Cases where there is a need for a resolution without altering the previous relation.
♦ Disputes between neighbors (relating to easementary rights, encroachment, parking, nuisance, noise complaint etc.)
♦ clashes between employers and employees
♦ Disputes among members of societies/association of apartment owners/associations etc.
4. All disputes relating to tortuous liability, including—
♦ Claims for compensation in motor accidents /other accidents
5. All consumer disputes including
♦ Disputes where trader/supplier/manufacturer/service provider is keen to maintain his business /professional reputation and credibility or product popularity
While matters involving prosecution for criminal offences are certainly kept out of the regime of ADR but the Law commission of India in its 142nd report stated that it is desirable to infuse life into reformative provisions embodied in section 360 of Cr.P.C and the Probation of Offenders Act 1958. Today the CRPC allows compromise and settlement in criminal case by use of plea bargaining, Lok Adalat and Mediation.Section 320 CRPC recongnises certain offences under IPC 1860 which can be compromised between victim and the offender. This process of reaching of compromise without wasting court’s time is called compounding. Presently there are 56 suchcompoundable offences out of which 43 are without the permission of the court and 13 are with the permission of the court. Certainly only the victim has the right to compound the offences. Further the new chapter XXIA introduced in 2006 namely “plea bargaining”refers to a pre-trial negotiations between the defendant usually conducted by the counsel and prosecution during which the accused agrees to plead guilty in exchange for certain concession by prosecutors. However the benefit of plea bargaining is certainly not available to the habitual offenders.
To have an understanding of the core of matters eligible to be decided via ADR few are listed below in light of the category of dispute they fall and legislation by which they govern.
| Sr. no. | Category | List of disputes | Governing legislation |
| 1 | Commercial disputes | Breach of contract | The Indian Contract Act, 1872; The commercial Courts Act, 2015 |
| Non-performance of contract | Ditto | ||
| Payment of consideration delivery of goods & services | Ditto | ||
| 2 | Labour disputes | Payment of wages | The Payment of Wages Act, 1936 |
| Layoff | The Industrial Disputes Act, 1947 | ||
| Retrenchment | The Industrial Disputes Act, 1947 | ||
| Working conditions | The Disaster Management Act, 2005 | ||
| Leave disputes | The Factories Act, 1948 | ||
| 3 | Family disputes | Maintenance | The CRPC 1973, the Family Courts Act, 1984 & the Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act, 1956, the Special Marriage Act, 1954, and other personal laws such as the Muslim women (protection of rights of divorce) Act, 1986, the Parsi marriage and divorce Act, 1936, the Divorce Act, 1869 |
| Child custody | The Family courts act 1984 and other personal laws as above | ||
| Divorce | The Family courts act 1984 and other personal laws as above | ||
| Domestice violence | The Indian Penal Code, 1860 | ||
| 4 | Consumer disputes | e-commerce disputes | The Indian Contract act 1872 and the Consumer protection act, 2019 & rules/regulations made thereunder |
| Airline passengers disputes | Ditto | ||
| Hospital – patient disputes | Ditto | ||
| Insurance disputes | Ditto | ||
| Prebooking of travel agency, hotel, entertainments platforms | Ditto | ||
| 5 | Tenancy disputes | Property possession | The Transfer of Property Act, 1882 |
| Rent disputes | Ditto | ||
| Eviction | Ditto | ||
| 6 | Cases of negligence | Dispute in delivery of service | |
| Dispute with hospitals | |||
| Disputes with restaurants/hotel | |||
| 7 | Criminal offence | Violence against medical professional | IPC 1860 |
| Breach of lockdown guidelines | The Disaster Management Act, 2005 | ||
| Spreading fake news | The Disaster Management Act, 2005 & IPC 1860 |
Source: Vidhi centre for legal policy report on ODR the future of dispute resolution in India
E. Suggest some general guidelines for conduct of Online dispute resolution.
The outbreak of covide 19 that resulted in mandatory maitenance of social distancing age have necessisated the need of virtual professional, adopting to the new normal every professional forums worldwide have started virtual life of their respective profession/buisness. Well this have very much applicable to the litigation platforms of country and almost every dispute resolutionary mechanism have adopted virtual proceedings maintaining social distancing. At this juncture the ADR mechanism have certainly become the ODR – online dispute resolution. As of now you must have understand that there are no statutory process governing the process neverthless the ADR forums/platforms/institution have to follow certain protocol for online conduct of process. Such in nutshell have provided as below:
1. The facilitator may first contact both parties, and brief over the process of downloading/use of digital platform
2. Subsequently he must explain over the flow of session and discuss the issue arisen in matter very briefly
3. He may make available the concern parties of consenting letters stating the permission of conduct of online hearing and terms & conditions of the same
4. The facilitator may make available credentials of hearing such as meeting ID and password, and provide them to the parties or their authorized representatives
5. A reminder must be send day before the conduct of process
6. As a precautionary measure the mediator/conciliator/arbitrator may join the virtual meet in advance and facilitate assistance if any technical difficulties arise or cause to the parties
7. Before starting the process he must remind the parties of agreed terms and condition, flow of session and their rights in between the process
8. He must available or provide breakout session whenever time needed to think upon or general break in the virtual meet.
9. A virtual white board may be created to brainstorm ideas when the phase of decision making is reached
10. Once the process is concluded he may provide the parties the mutual agreement to sign through E-signature in case a final decision is reached
Since the disputing parties are permitted to appoint more than one mediator/arbitrator/conciliator so far the number is odd in cases of co-mediators/ arbitrators/conciliators the responsibilities of them in virtual proceedings are certainly many. They must organize in a manner to establish a successful system of communication with each other and with the parties. It is recommended that co-mediators/Arbitrators/conciliators:
1. Should familiar with each other, or have previously worked with each other
2. They should have an understanding of strategy, vision in resolving the concerned disputes so that the collaboration would be easier and it would be easier to arrive at conclusion.
3. It is requires that they must understand case in brief manner before proceeding to the session in respect of platform, by mail, telephone or video conference they are going to use
4. Facilitate the division of task between themselves and set strategy prior to session, harmony and cooperation is certainly very important in the process
5. They must restrain the amount of confusion to the parties take steps in the manner
6. The absence of physical presence may create problem in flow of discussion as two person might try to speak at the same time, the collaborators must ensure that every person in the dispute may get their fair chance and must maintain discipline throughout the process
F. How to understand the dispute?
Well this is the most crucial question so far from the perspective of dispute resolution providers. As in order to arrived at peaceful conclusion/remedy it necessary to have clarity over subject matter concerning the disputes. This may certainly be achieved by asking further question.
1. What is that misunderstanding that resulted in dispute?
2. As far as you can tell, what did you specifically misunderstand about the other person? The situation? The interaction between you?
3. What is that exact thing/or act said/done by the other person that have caused you upset?
4. What words might you use besides upset?
5. Do you believe the said situation may be avoided? How?
6. What would you prefer the other person had said or did instead, in this circumstance?
7. The thing that you said/done causing hardship to other person was it necessitated? Was there any other alternative?
8. What seemed to be causing that person upset – such as, how might they have interpreted what you said or did?
9. What is that thing you want to be done by other person so that you will able to move on?
10. What might the other want or need from you to move on?
11. What insights do you have?
G. What is Justice in ADR and how does it has expansion of access to justice?
The idea of Jusitce immediately stir up our mind to related with the court of justice. With the emergence and development of other various modes than that of court providing for peaceful recourse to our dispute have certainly press of Justice through such methods. The idea of justice certainly grow with civilization and the what was used to consider justice in the past for instance An eye for an eye may not be relevant in present time especially in the context of social justice. Therefore the principles of fairness and equality have played great role and the solution provider is more focused upon the problem solving appraoch. This idea of justice is emobided in the process of ADR by the solution provider who generally focuses upon the interest rather than the position the disputing parties may hold. This may be better understood with illustartion.
Two person “A” and “B” disputing in liabrary where A wanted the open to be open while B wanted it closed. When Liabrarian enters and asked the reason from both A declared that he wanted window to be open to have fresh air on the other hand B wanted it to be close to avoid draft
Solution: The librarian opens window of next room to have fresh air without draft. Here the liabrarian could have come up with the brilliant solution which she did if she would have focus upon position, instead she focus at interest that is fresh air and no draft.
Hence although the dispenstion of justice requires the fairness, equality, the modern theory certainly focuses upon reconcliation of interest and Inventing options for Mutual Gain.
Further the idea of justice is merely on paper if means of access to justice are not provide and ADR is one such process that have certainly provided the expansion of access to justice thereby entailing completion notion of justice. The fact that development of ADR in the country have resulted in availablity of platforms just one click away, existence of mechansim making availble means available adequate representation of underprivileged section of society have put the ADR certainly at the special place in the context of access to justice.
H. What is there for budding ADR professionals?
Almost 65% of india’s population is under the age of 35 years, the average of Indian is 29 years, while there two ways to look at the glass some people may take it as an asset some may take in light of unemployment. Although the problem of lack of jobs is well address and curb to some extent by various government initiative of digital india or Atmanirbhar bharat, Startup etc. the ADR Professioanl is one such area to be think upon by younger generation. Since the role of solution provider does not required any certain degree, the person with sense of logic and justice may explore this career opportunity. Family, commercial, business, trade, real estate, labour management, workplace, sports, transport, bankruptcy, contract, neighbor, health , hospitality etc are few subject that can be make area of practice/specialisation.
I. Mediation and the right of children. How it can protect child right in the matter of family disputes/child custody/property disputes?
Family dispute is one such common area of ADR, since most of the family dispute relates to matrimonial matter such as divorce, separation, maintenace one factor that is going to get affected either of decision is the concerned children. When the dispute revolve around the custody of child, it certainly puts the solution provider under immense pressure as he must bring or faciliate such solution that will protect the interest of child as well. To arrive at conclusion in such respect the solution provider must considered further things:
1. What is best for child
2. Child’s age must be considered
3. Protection from abusive langauge and treatement
To conclude the whole process requires lot of patience, time and right atmospehre
J. How Peaceful settlement can be arrivedd at?
Consent plays a great role in arriving at any settlement, as only desire to settle may make the conclusion peaceful. Willingness of disputing parties to explore the means of settlement is all that is needed, when the parties are represented their cousels/authorised representatives it certainly becomes their duty also to take adequate participation in arriving at settlement, they may properly suggest and encourage the respective party about the pros and cons of agreeing to respective offer.
K. What are the essentials of good contract/agreement to avoid the possibility of dispute?
Although we may disputes are inevitable part of our life, it can certainly be avoided to some extent. Since most of the disputes occur out of contract/agreement (written, verbal) where sometime the other party may have breach the terms of it, or perhaps there is lack of clarity over terms, this can certainly avoided by drafting good and full fledge agreement/contract. It is advisable to go for written contract/agreement, such written document must includes all the terms and conditions concerning the agreement/contract. Both parties must be aware of their respective legal obligation and that should certainly reflected in the such document and read before signing the same. The parties can be little organised so the problem of misplacing loosing contract document may not occur, additional copies should be kept along.
Conclusion:
The mechanism of ADR certainly provides you the accessible, afforable, quick, confidential and flexible solution allowing you to get back to your business sooner. The greatest advantage that it brings on the table is allowing the disputing parties to work cooperatively in considering the options and reaching at a practical agreements thereby taking charge of one’s own dispute indeed!
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