The Alternative Dispute Resolution - Take Charge of your own Dispute

Introduction

Conflict among humans is common, rather it is an inevitable part of our life that is generally caused 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 maybe while merely 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 a conflict, we are suggested to have court assistance but with the development of Alternative Disputes Resolution (hereafter "ADR") certain dispute resolution techniques/modes have evolved that result in a much simpler, faster and peaceful solution than the court remedy.

The foremost technique of ADR is Negotiation. It is the most advantageous technique/mode that certainly provides high-level privacy of disputes. As there are only disputing parties are involve and no third person can have access to interfere in this method, it gives a lot of scopes to sit and make up the differences. The best part of the negotiation is that even if it is not successful the parties may always take recourse to other modes such as Mediation which is nothing but an assisted negotiation, conciliation, and Arbitration. While as of yet the arbitration and conciliation derive legal force from the Arbitration and Conciliation Act, 1996, mediation from section 89 of CPC 1908 although it lacks full-fledged legislation. Despite the legislative scheme, the practice of ADR in India is voluntary.

This article focuses upon certain practices and schemes of ADR in India in the form of question and answer format related to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for a better understanding to commoners and budding ADR practitioners.

A. Is there a 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 on 1^st July 2002. The section provides for the reference of cases 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 is additionally governed by the Arbitration and Conciliation Act, 1996. In addition 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 this legislation is 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 are the eligibility dispute resolution providers?

Naturally, anyone possessing a sound mind may facilitate the resolution to the concerned dispute, therefore, there are no rigid formalities prescribed for imparting a role as a dispute resolution provider. Since India follows either court-referred ADR or Private ADR, 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 chronological order of choosing an alternative method? What is a desirous mode of ADR?

No, ideally there is no chronological order for the adoption of the ADR method however at the initial level the parties must insist upon negotiation that is the parties must resolve disputes themselves as it eliminates the risk of access of crucial information to a 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 advantageous to go for negotiation before facilitating or inviting a third person to resolve the same. In the event when negotiation is not succeeded mediation may be a preferred choice certainly the person will be having a choice of going for conciliation or arbitration.

As already mention in India the process ADR is divided into two one is court-referred and the other is private, although both advocate for prior consent of disputing parties, the latter that private is certainly more flexible to opt for.

It truly depicts the voluntary nature of ADR as the party themselves deciding where to go for recourse to their dispute. There are numerous ADR platforms and facilitators which are further classified into two is Ad hoc and Institutional meaning administered 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 institutional arbitration means the process which is governed by the respective guidelines, rules prescribed by such institution/forum or platforms. You are just one google search away from the Mediation, conciliation & Arbitration institution.

With the development of ADR in the country, there is certainly an increase in the platforms facilitating dispute resolution and therefore in the arbitration institutions or forums that increase their competitiveness. For this reason, the 2019 amendment introduced in the Arbitration and Conciliation Act 1996 led to the establishment of the Arbitration Council of India who shall provide grading of arbitral institutions based on criteria such as infrastructure, quality and caliber of arbitrators, performance, and compliance of time limits for disposal of domestic or international commercial arbitrations. Although it does mean that the arbitral institution is governed by such council and are certainly operates on a voluntary basis.

Well, this is certainly a positive step taken for strengthing the ADR and improving the quality of dispute resolution.

D. What are the different types of disputes to be handled through ADR?

The question as to what matters can and cannot be settled through the ADR process is well discussed by the apex court in pronouncing decision in Alcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24. These are listed as below:

i. 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

ii. 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

iii. 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.

iv. All disputes relating to tortuous liability, including

• Claims for compensation in motor accidents /other accidents

v. 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 offenses are certainly kept out of the regime of ADR but the Law Commission of India in its 142^nd 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 cases by use of plea bargaining, Lok Adalat and Mediation. Section 320 CRPC recognizes certain offenses under IPC 1860 which can be compromised between the victim and the offender. This process of reaching of compromise without wasting the court’s time is called compounding. Presently there are 56 such compoundable offenses 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 offenses. Further, the new chapter XXIA introduced in 2006 namely “plea bargaining" refers to 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 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.

Source: Vidhi center for legal policy report on ODR the future of dispute resolution in India

E. Suggest some general guidelines for the conduct of Online dispute resolution

The outbreak of covid 19 that resulted in mandatory maintenance of social distancing age have necessitated the need of virtual professional, adapting to the new normal every professional forum worldwide has started virtual life of their respective profession/business. Well, this has very much applicable to the litigation platforms of the country and almost every dispute revolutionary mechanism has adopted virtual proceedings maintaining social distancing. At this juncture, the ADR mechanism has certainly become the ODR - online dispute resolution. As of now, you must have understood that there is no statutory process governing the process nevertheless the ADR forums/platforms/institution has to follow certain protocols for the online conduct of the 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 the digital platform
2. Subsequently, he must explain over the flow of the session and discuss the issue arisen in a matter very briefly
3. He may make available the concerned parties of consenting letters stating the permission of conduct of the 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 sent day before the conduct of the 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 conditions, the flow of the session, and their rights in between the process
8. He must be available or provide breakout sessions whenever the time is needed to think upon or general break in the virtual meet.
9. A virtual whiteboard 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 required that they must understand the case in a brief manner before proceeding to the session in respect of the 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 problems 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 arrive at a peaceful conclusion/remedy, it is necessary to have clarity over a subject matter concerning the disputes. This may certainly be achieved by asking a further question.

1. What is that misunderstanding that resulted in a 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 has 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 the 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 people so that you will be 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 the expansion of access to justice?

The idea of Justice immediately stirs up our mind to related to 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 grows with civilization and what was used to consider justice in the past, for instance, An eye for an eye may not be relevant in the present time especially in the context of social justice. Therefore the principles of fairness and equality have played a great role and the solution provider is more focused upon the problem-solving approach. This idea of justice is embodied 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 an illustration.

Two-person “A" and “B" disputing in the library where A wanted the open to be open while B wanted it closed. When Librarian enters and asked the reason from both A declared that he wanted the window to be open to having fresh air on the other hand B wanted it to be close to avoid the draft

Solution: The librarian opens a window of the next room to have fresh air without a draft. Here the librarian could have come up with the brilliant solution which she did if she would have focused on position, instead, she focused on the interest that is fresh air and no draft.

Hence although the dispensation of justice requires fairness, equality, the modern theory certainly focuses upon reconciliation 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 provided and ADR is one such process that has certainly provided the expansion of access to justice thereby entailing the completion notion of justice. The fact that the development of ADR in the country has resulted in the availability of platforms just one click away, existence of mechanism making available means available adequate representation of an underprivileged section of society have put the ADR certainly at a 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 Indian is 29 years, while there are two ways to look at the glass some people may take it as an asset some may take it in light of unemployment. Although the problem of lack of jobs is well addressed and curb to some extent by various government initiatives of digital India or Atmanirbhar Bharat, Startup, etc. the ADR Professional is one such area to bethink upon by the younger generation. Since the role of solution provider does not require any certain degree, the person with a 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?

The family dispute is one such common area of ADR since most of the family dispute relates to matrimonial matters such as divorce, separation, maintenance one factor that is going to get affected either of decision is the concerned children. When the dispute revolves around the custody of the child, it certainly puts the solution provider under immense pressure as he must bring or facilitate such a solution that will protect the interest of the child as well. To arrive at conclusion in such respect the solution provider must consider further things:

• What is best for child
• The child’s age must be considered
• Protection from abusive language and treatment

To conclude the whole process requires lot of patience, time and right atmosphere

J. How Peaceful settlement can be arrived at?

Consent plays a great role in arriving at any settlement, as only the desire to settle may make the conclusion peaceful. The willingness of disputing parties to explore the means of settlement is all that is needed, when the parties are represented their counsels/authorized representatives it certainly becomes their duty also to take adequate participation in arriving at the 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 a good contract/agreement to avoid the possibility of dispute?

Although we may say disputes are an inevitable part of our life, they can certainly be avoided to some extent. Since most of the disputes occur out of contract/agreement (written, verbal) where sometimes the other party may have breached the terms of it, or perhaps there is a lack of clarity over terms, this can certainly be avoided by drafting a good and full fledge agreement/contract. It is advisable to go for a written contract/agreement, such a written document must include all the terms and conditions concerning the agreement/contract. Both parties must be aware of their respective legal obligation and that should certainly be reflected in such document and read before signing the same. The parties can be little organized so the problem of misplacing losing contract documents may not occur, additional copies should be kept along.

Conclusion

The mechanism of ADR certainly provides you with an accessible, affordable, quick, confidential, and flexible solution allowing you to get back to your business sooner. The greatest advantage that it brings to the table is allowing the disputing parties to work cooperatively in considering the options and reaching a practical agreement thereby taking charge of one’s own dispute indeed!

Hoping you find this article informative and useful, to find out more of such information stay tuned to my next article.