: Yeshasdt?. Ho INDEX am ALTERNATIVE DISPUTE RESOLUTION SYSTEMS. UNIT | | General; Different’ methods of aispiite resolution; Irom jitorial method; Adversarial method; Oftier methods- both formal and Informal-like arbitration, ‘conciliation, negotiation, mediation, etc; Advantages = and | disadvantages of above methods; Need for ADRs. | International commitments; Domestic needs; Suitability | | \" of ADRs to particular types of disputes Civil Procedure Code and ADRs. UNIT IL | Arbitration: Meaning of arbitration; Attribution; General | principles of arbitration; Different kinds of arbitration; Qualities and Qualifications of an arbitrator; Arbitration agreement and its drafting; Appointment of arbitrator; Principal steps in arbitration; Arbitral award; arbitration under Arbitration and Conciliation Act, 1996. | ~ UNIT Ill | Conciliation; Meaning; Different kinds of conciliation. facilitative, evaluative, court-annexed, voluntary and | compulsory; Qualities of a conciliator; Duties of a conciliator; Role of a concitiator; Stages of conciliation; | Procedure; Conciliation under statutes- Industrial Disputes Act, 1947; Family Courts Act, 1984; Hindu | Marriage Act. 1955; Arbitration and Conciliation Act, 1996. [tereee fe j { 1 | [on iv | Negotiation- Meaning; Different styles of negotiation; [Different approaches to negotiation; Phases of | nesotiation; Quattes of a negotiator; Power to negotiate UNIT Vv Mediation; Meaning; Qualities of mediator; Role of mediator; Essential characteristics of the ‘mediation process- voluntary, collaborative, controlled, confidential, informal, impartial & neutgl, self-responsible; Different models of mediation; Code of conduct for mediators. 1-28 294g * 68-79 | Question PAPERS 80LTERNATIVE DISPUTE RESOLUTION SYSTEM ntroduction:- Altemative methods of dispute resolution, popularly known as ADR are necessary. As an alternative to existing methods of dispute resolution such as litigation, confliet, violence and physical fights or rough handling of situations. It is a movement with a drive from evolving positive approach and attitude towards resolving a dispute. Since disputes are inevitable, there is an urgent need to fing a quick and method of resolution. Aispute blocks development, disturbs the peaceful conduct of human life and hence dispute sustained without resolution develops into a conflict beyond control undef normal circumstances 7 | I government, indeed every human benefit and enjoyment, every virtue and every prudent set, is founded on compromise and barter, said Edmond Burke{in a speech in the|House-of Commons, on conciliation with the American Colonies as far back as 1775, ‘ Dr. Dasarathi Ra a famous poet who transkited Divine Vedas into colloquial wcharya life is nothing but adjustment or “Adjustinent itself is life" ADR js not an answer only for the international commercia foreign corporation business firms, inter-corporation conflict or inter-country dispute, but transactions, stile, private or also for solving problems of mille eliss society and conflicts among the poor or ednfliets of rich with the poor. ADR should be the solution for social peace. The role of arbitration as one of the ADR methods is now more complex with complicated laws, court interpretations, former judge impositions and interventions of the judiciary at every possible stage of the process despite the reforms in arbitration law. The arbitration part of Arbitration and Conciliation Act 1996 was in use more; conciliation part of it is yet 10 take off. However most of these times, ADR means only arbitration, which is akin to litigation, almost fraught with similar problems and adversities (On the line of continuum of ADR, arbitration wd adversarial litigation process than a friendly resolution proces a Nexans mn by the parties themselves is the primary method a dispute has to be addresséd with, and if any alternative to it is required it must be ‘conciliation’ or “mediation’, Parties who are unable to solve their problems may seek assistance of an expert Oo subject specialist or an elderly personality, who with honest, neutral, and impartial facilitating serviceshelp achieve the resolution. Negotiation arid conciliation are the best, inexpensive, informal and autonomous methods of resolution. One may find some variables of these mechanisms but they are basically built on these two foundations. Even during arbitration, the parties can move on to choose conciliation, if they settle it there is po need to come back to arbitration except for a few formalities. These two reflect self-determination Of the parties in tackling their own problems instead of handing over the power tq impose a nearer to traditionher a private or state authority/ Finding fault and guilt may be unnecessary cent af disputes, which tend fo complicate the issue and olut disputants may opt for resolution by their own consensuai proce: s. Only methods. consent of parties has a significant role, are negotiation and conciliation wea Alternative dispute resolution - Reasons for finding alter Z ives 1. Weight of pendency:~ The need for finding alternative arises due to the working of the preseht system of administration of j which is crumbling under the weight of the pendihg cases. It is estimated that the number of cases pending all over country, in all ategories of cours, is a staggering 2.5 crores. Out of these, 36 lakhs cases are pend IL is pertinent to note that posts of judges of various High Courts are very often vacant: ih ons' per cent of the total number of High Court judges in the country. If these pos! are not filled immediately, more cases will remain undecided 2, State conflicting with the citizen:- ernment is the biggest litigant in the country According to a rough estimate, around 70 per cent of all ca \er agitated by the state, oF appealed by it. The state fighis « nst cilizens at the cost of citizens. The mierest in pendency. Very ofien the state refuses 10 refrain from filing an appeal from th contributes towards delay in the delivery of justice, and consequently prevents the jadiciar Trom rendering justice much needed in dispute nd ann increase in the working days of the counts. At present, the courts are working for 210 d days, litigation ean be brought under control 4, Adjournments:~ Unnecessary adjournments also extend the life of litigation. The process of adjournment, on frivolous grounds, is one of the major reasons for inerease in del: While there is the courts a1 not exist between the cli n the process, the interests of litigants suffer ind judiciary fails to render justice to the a: d. There is a need to evol lines for granting adjow also bg designed meats, and a fr mework for the settlement of dispute should S. Coeentration of work:- Another serious problem is the concentration of work with a few sdnior advocates who may wield influence over the outcome of adjudication. The ministty of law and justice together with Supreme Court should cu reducejthe pendency of litigation to help restore the confidenc rb this practice and f people in the judiciary ion: If the dispute is referred to arbitration «1 Conciliation, the provisions of the Arbitration and Conciliation Act 1996 will apply as if the9 4 proceedings Were referred under that Act. Where the dispute is referred to a Lok Adalat, provisions of Legal Services Authorities Act 1987 will apply. Order X of the CPC has also been amended which says that the court shall direct the parties {Orie ob be REC hs n to opt for eithe, ic of settlement outside the court as specified in section 89(1), and then fix the date of appearance before such forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed|by it ‘ 2, Reforms in methods of trial:- The new amendment reformed the process of trlal, which would reduce the delay very effectively. Most of the time is consumed in summoning the Wimesses, and recording the examination in chief. The defendant or the other party usually takes a longer time for eross-examining, and again the re-examination takes some more weeks. In order to. do away with this time consuming processes, the amendment provided tor the proof of facts by presentation of an affidayit. This means the party or witness need “not be present in the court of law for chief examination, Even Tor the eross-examination and “re-examination, the court is empowered 10 appoint a conmission, who will record the “deposition, which forms part of the record of a 3. Changes in pleadings 1) The plaint has to be submited to the court in duplicate, Where the plaint is admitted, the court ha to hand over the summons to the pla Jor serving them on defendants, Plaintiff has to send those summonses to defendants along with a copy of plaint. 2) The court may direct the plaimiff to furnish ag many copies of plaint as the number of. detendants, within two days from the date of such defendants. Where on the day so fixed, it is found that the summons pay the court fee or amy changes for service of __stimmons, the court has to make an order that the suit be dismissal 3) Where plaintiff reties upon a document in his possessiun or power, in support of his claim, plaintiff has to produce th: ent in court along with a copy thereof, If such 8 doctinent 15 nor Tiled ‘with the plaint, the court will not consider it as evidence at the hearing, Similarly, the defendant aiso as to produce the document he is relying upon. If no}, it will be allowed to be received in evidence on jis behall T 4) ‘The parties have 1 produce, on or before the settlement of issues, all the doumentary evidence in original where copies thereof have been filed along wih plaint jor writfen statement 4, Service of summons:- One of the major causes of delay is the difficulty inservice of summons_It is practically impossible to gal the proof of service as the other party always tries to avoid the summons, Amendments * this aspect have widened the scope of reaching — ‘Other party wiih Their Copy of plain. Court may direct the plaintiff to adopt any method of service such as, registered post, ‘acknowiedgement due,spees-post, 0: by such courier service as may be approved by theHigh Coun. This rule includes facilities like as the High Court may prescribe. | Restriction on adjournments:-.CPC amendment Act 1999 made it obligatory for the courts to record reasons for granting adjournment. This measure will restrain the courts | Trom freely ageing with the requ ri different date. ses oF stioeinenets as the court has tof 7 here is also an express limitation o adjournments. The court is empowered to impose highe St {0 postgone hearing or any other procedure of trial for « peated] reasons cannot be given fo: ison adjournment. I may direct the patty seeking adjournment to pay costs occas st 6, Alrigid time-frame:- The CPC Act 1999 has provided much awaited, time frames fe pearing of civil suits. At es of the trial, time limits have been prescribed, [Summons to defendant inclu tion that the defendant has to appear and answer the claim) within thirty days from the date of the institution of the sui) Usually the courts qse7 ake a minimum of three months of th date of appearare of the defendant, fro hich date another six months or more used to be consumed for just filing of vakaltn: ind writlen statement. With this provision, the plaintiff can expect to receive a reply to-h hin a month. The code imposes to this thirty days time for filing the wri jatement. If the defendant appeared at the presentation of the plaint ai nitted the cfai HiT, the court n ne sum > reply within preseribed time, he can he allowed to file the ha he dat serviee af summons, or any other day within that ) 8. Summons to witnesses:- Within filtcen days after the seilement af parties ta to submit the list of witnesses whom they propose to eall to give ¢ ents. Afier such submission, th ve to obtain sumr 9. Decree and copy of judgment:- vor shall be made to ensure that the decree is drawn up as expeditiously as possible and, within fifteen days (eon the date on which th cording to Code,“an apy ment is pronounced. Acco swilhout filing a copy of the dee al may be preferred against the decree oF certilied copy, py. le by the court will be treated as the decree. | 10. se for stay:- Securing an interim injunction became very casy in a whiclf caused a serious dent in the credibility of the administrative system of judiciary Amending the rules under order XXXIX, CPC amendment Act 1999 provided that while ar ae 3 temporary injunction to restrain such actlor to make such order for the purposes damaging, afienation, sale removal or disposition in lation to any property, under disposition in the suit, th Security OF otherwise a5 The court thinks fitis 11. Register of appeal:- The CPC amendment Act 1999 has made it obligatory for the * "courts to entertain the memorandum of appeal, and register it in a book of appeal kept for . that purpose. Rule 11 A, inserted by the amendment Act of 1976, stipulates that the appeal shall be heard “As expeditiously as possible, and endeavor shall be made to conclude such hearing within sixty days from the date on which memorandum of appeal is filed. sixty days from the date on which memorandum of appeal is filed._ 12, No further appeals:- Section 110 A of the Code was amended to exclude further +.” appeals from the judgment, decision or order of single judge of a high court either in appeal, or in a weit petition Section 102 was also amended top remove the second appeal from any decree, when the amount oF value of the subject matter of the original suit does not exceed Rs. 25000. 13. Enlargement of time:- Section 148 provided a general power to the court to enlarge any fixed time for doing any act. Court may, from time to time, grant some more time to do . such act beyond the permitted period. According to amended section 148, such enlargement all not exceed thirty days in total, 14. Attachment:- Ii cXecution of decree, section 60 of the code provided for attachment, Under exceptions fo that section, certain things were excluded from attachment. Originally, first Rs. 400 salaries were excluded from attachment, That amount has been enhanced to Rs. 1000. In other words, first Rs 1000 of the salary and two thirds of the remainder cannot be attached. CPC amendment Act 1999 has enhanced certain pecuniary requirements under = provisions in accordance with increased inflation tendencies. | | + © Criticisms against C! Followings are the features of the CPC amendment Act 1999. 1, Appeals made custly:- ‘Though the said amendment Act being in many positive changes to curtail the delay in dispensation of justice, it has certain very strong negative factors affecting the interests of clients at the appellate stage. If the said Act is brought into force, there can be na appeals from the orders disposing writ petitions by single judge courts of high courts, The amendment Section 100A of joves the scope for second appeal “from a acer bys Sage dye each ehgheon Set ee ‘ny letters patent Act for any high court, or in any other instrument having the force of law, ‘or in any other law for the time being in force.6 lawyers were apprehensive of the drastic consequences of the amended Section |00A hich prohibited no further appeal on the judgment by a cingle judge of the high couit ir which case, on a singic judge's order, une would have to approach the Supreme Court thereby proving to be a costly the litigants. Further in respect of section 102, the ‘declaratory and title relief less than Rs.10,000/- would be very much affecte: Commissions for examining witnesses:- Many doubts were expressed at the attempt to ine the witnesses, for cross-examination, by the commissions comprising advoca ninimize the wastage of cour time in waiting for the opportunity to examine and cross witnesses. Although the motive is laudabl a change would result in taking out the case record of the court tempgrament of recore some Yrawbacks. Therefare several reasons for the delay. Some of the reasons are as there were apprehensions that such which may lead to has teveali ing the witnesses, examinati )) The commissions ¢ J not examine the witnesses or appointed date hence reports | were delayed 3) ! There was no co-oper: ion between advocat and parties The commission has no power to disallow the inadmissible evider did not turn up on the appointed a nds of commission had a risk of being tam tice at different sta Delay in dispensation of s of tr Delay at the service Stage:- Most of the time of their court and the parties is waste reaching the defendant, and making an effective service of summons and his presence i should be noted that the bailiff is required 10 by his superior. Possible at the hearing. In this con ntain a diary that has to be verif Service of summons by. nonapayan 9, nule 2 of C process fees, on which an be dismissed un “payment of pro Inclusion of F C. Suit can be also dismissed for non s fees for summoning the witne: ler order 17, rule el post Wy the approved proceasey Gf silt suggested. It also incorporates a provision that plaintiff could take responsibility of erving summons to that plaintiff could take up the responsibility of serving summons to 3S initiated by the court ns of service also he defendant with his own int st, along with the proc ii, Indifferent handling of issues:- It was noticed that framing of issues was treated as a mere routine affair. The court gave a date for framing issues, on whick day, parties or th counse} invariably remain absent, as it was felt that it was the duty uf the court to frame |1 issues, Both the parties and the judges did not realize the importance of the same. There was and is, therefore, a callous and indifferent handling of this important stage of the suit. Parties and advocates must be present on the fixed date, and discuss and anive-at ivues- The judge, on the other hand, has to elicit truth and narrow down real controversy between the parties. This also provides an occasion to decide the future dates of trail, and other related aspects. By avoiding wrong framing of issues, one can reduce the proof as well. Wrong framing of issues result in unnecessary burden on the parties to bring evidence to ‘prove their contentions on those issues. iii, Hearing:- A day to day hearing must be preferred in each case, immediately after the! commencement of trial. The parties must come to an understanding on what day they would start addueing the evidences, The Court should also divide The cases, before i, as shor and Tong causes ciepending on the complexity of issues, and fix a suitable day for hearing. Delayed andl piecemeal hearing or exantination of witnesses results in many problem. Ex: Jtidge may not have the advantage of the continuity of the case, disjoined examination Of witnesses may make the counsel to repeat the questions, or forget the past record. If both the parties examine all the witnesses on the same day, it will be a great relief to mais, their J judge. iv, Delay at the argum - There is a lot of gap between the conclusion of evidence and the arguments. Generally the hearing of arguments should begin immediately bher both the parties addduce all the evidence. 5 counsels at ¥. Promoting Research in the field of legal serviee:~ It is evident that the present system does not. provide for any kind of legal service to the poor and needy. Legal aid and lok ‘adalat are new areas of legal service which came (o stay as useful institutions. There may be farher scape for inventing new methods of legal sérvice. The Authority must promote esearch into this aspect, Simplification of law, easy spread of legal awareness, translating the law into regional languages, using information technology to spread legal literacy, introducing court annexed dispute resolution processes, plea bargaining in civil oases, assisting the parties to compound and settle certain criminal offence which are Compoundable in nature are the areas where the focus of study is required, vi, Funding specific schemes to various véluntary social service institutions:-The Ceniral Authority must provide grant-in-aid for specific schemes 10 various voluntary Organizations in the field of social service, and provide funds to the state and district level authorities. vil, Entisting c_ Support of Voluntary Social Welfare Insti s:- People's Participation is Very important for success oP such programmes. One way of involving the People is enlisting the support of NGO's and other social welfare institutions. ‘ormulating norms to guide the,State in encouraging voluntary organizations:- So far the courts laid down certain norms for legal aid programmes. The Authority has to work gn this aspect exclusively and evolve the rules and norms to guide the state in encouraging voluntary organizations. .Doing everything necessary for ensuring commitment to fundamental duties o citizens:- On the lines of Universal Declaration of Human Rights, which listed out certain the Constitution (42 Amendment) Act 1976 created fundamental duties, which are generally not enforceable. The Legal Services Authorities Act envisages a duty on the Authority to do necessary things to enforce these duties abiding by the Constitution. following the noble ideals of freedom strugglg, defending thie country and rendering na Protecting integrity, sovereignty, promoting broth¢rhood, renouncing the practices h are derogatory to the dignity of women, preserving the rich heritage 2 protecting the environment, abjurin; nal iolence, and striving towards excellence in all sphere of individual and collective activities so that the nation constantly rises to higher levels of \deavor and at evement are the fundamental duties of citize utility of the funds fe ition of funds:~ Th given purposes through state and district authorities. uuthority has to supervise the pro forming the function of coordinator and monitor:- The Central Authority ha as coordinator and monitor functions of state and district authorities, Supren Servi al Services Committee, the High Court Le ¢ Committees, Taluk Commitices oluntary social services agencie and district authorities have bet ‘ovided by Sec. 7 of the Act with almost similar finetions within their sphere of power and scope of territorial limits. One of the specific for high court cases functions is to conduct the lok adalats including lok adal inderpake programmes. Similarly, the authorities at district and luk Jevel: >k-cdalats and perform other functions ch lok adalat has to be presid d non-judicial k adalat is deemed to be a deer rmination, the lok a vil court and without pr will eedings within the jurisdiction of civil and criminal courts, powers of civ rt and its proceedings 10 be judicial pro unts or any tribunal. At the national level, the National Legal Services Authos e policy for while at st c level, there is State Legal Service: ¢ Supreme Court L ¢ and High Court Legal Services Committ I promote the lok adalats ‘visions are made to constitute 1 Services Commi and taluk level a wered to organize lok Is 10 deter i arrive a mpr tl ne and arrive al a compromise or si jement betw e parties dispute in respect of s pending before or falling within the jurisdiction of the respec! POWERS OF LOK-ADALAT © According to section 22, lok adalats have been conferred power of the civil court under the CPC in respect of matters such as a) Sumn oning.and enfi ing the attendance of any w and examining him on oath, b) Discovery and production of any documentsat : c) Reception of evidence on affidavits, (i) hearing of the suit and examination of witnesses, (ii) affidavits: power to order any point to be proved by affidavit as per 0 XIX of CPC. 4) Requisitioning of any public record or document or copy of such record or document from any court or office and such other matters as may be prescribed. ) Court may send for papers from its own records or from other courts. 1) Lok adalat can specify its own procedure under s 22(2) ment st es of delay at the pr © 1. Inconvenignge to parties and the court. 2. Duplication of labour, 3. Contentions advanced cannot be properly appreciated. 4. Evidence adduced cannot be properly appraised, i 5. Every recorded statement has to be re-read, which consumes a lot of time. = 6. Presiding officer has to acquaint himself with entire case. | Wher time of the court, On many oceasions advocates argue for their clients to impress that the advocate possesses high caliber i lvocates are not prepared to argue on that particular day, they may wasté valuable ipon him ye may be several __ Abe reasons Yor delay at this st 1) Non-preparation on the part of advocate. 2) Advocsites trying to please their clients. + 3) Lengthy arguments for hours and days together. 4) Unnecessary citation of eases. 5) Reading lengthy pas: Judges may take a lot of time with a view to write long judgments with some extra jurisprudence, Reserving an order even on a small matter like bail is unnecessary. Problem of delayed judgment is summing serious proportions, The time lag between arguments and judgment range from 12 to 15 months. A presiding officer hearing arguments in different ‘cases without delivering judgments Tn any case, will be a futile exercise. Such judgment will not inspire any confidence in its correctness for following reasons. ayes. 1) Arguments can be forgotten 2) Judge has to depend only on his notes, and not on personal memory of arguments. 3) Evidences are not fresh in memory. 4) Personal observations may go out of mind. 5) Judge has to wholly depend on material before him. Delay in execution It has been that judgment-debtor adopts various dilatory tactics 10 avoid execufion, which . ‘may result in inconvenience to the other party.be taken for executing ¢ lengthiest, laying down detailed n the pair of an honest litigant n for unscrupulous it gives full scope for raising technical objections and application of Affidavit of assets Where a judgment debt remains unpaid for a certain period, the decree holder under order 21, mule 4 apply to the court for an order to call upon judgment debtor to make davit of his assets. This is a good measure to force the judgment-debtor either to r may not do, or to pay the decree amount. If he fi s a false affidavit h 1, he may have to face the risk of other people claiming it as their own s, wh cuting not order the Parties do not frequently use this provision. However, the e: t-debtor to file an affidavit of his assets on its own, ie, suo moto. It can order so ry for the ion by the party. There should be a provision, and autho he high courts have original civil jurisdiction, and extraordinary original jurisdiction syster nist, strain. It has shaken in some measures the confidence of th people in the capacity of the courts ress their gris s, and to grant adequate and An app y could lie from trial court can be taken only on queMions of facts and A second appeal to high court can be taken only on questions of law. Letters p: abolished, from a except wher al is allowed to division ber such appeals have be sion. ists right of appeal to Supreme Court CPC. ther, there also judge di Article 136 of Constitution, and section 109 of C Curtailing second appeal CPC amendment Act 1999 has introduced following two provisions for preventing some second appeals.1, Section 100A was amended to exclude further appeals the judgment, decision of a single judge of a High Court either in appeal, or ina wrt petition. 2. Section 102 was also amended to remove the second appeal from any decree, when the amount or value of the subject matter of the original suit does not exceed Rs. 25000 . There were some suggestions for deletion of Articles 132 10 134A-of the Constitution, and the jurisdiction of Supreme Court. The power of Supreme Court under the échstitution should be limited to Articles 32,131, 135, 137,138,139, 139A. Inthe procedural rules there are several stages which cause delay, which, ihter alia, includes 1) Delay in making available certified copies of the judgment or-decree to enablé filing of an appeal, 2) Delay in security and registration of the appeal 3), Delay in preliminary hearing 4) Delay in preparation of notice of appeal and its service. 5) Delay in preparation of paper books for the use in court 6) Delay in final hearing, . Where the High Court can interfere only whi 1) xereised the jurisdiction not vested in it by law. 2) He failed to exercise a jurisdiction so vesied 3) With material ieregularities. 4) Has acted in the exercise of its jurisdiction illegally. Restriction o 1 eevis While exercising powers of revision under Section 115 of CPC, the high court cannot reverse or vary any order except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. According tomewly added sub section 3 10 section 155, a revision will not operate as a stay of suit except where it was stayed by the high court It is intended to remove the delay causing interference by the appellate court, and made it clear that a mere admission would nol operate as stay of suit. eS Re appeals to Suj ure The Supreme Court of India has a very: wide original and appellate jurisdicfion. 1t is submitted that the jurisdiction of the Supreme Court should be confined to judgmgnt, decree or final order passed by a High Court in civil proceedings. If in the opinion of tht SupremeCourt the case involves a substantial question of law of exceptional importance as to the application or interpretation of constitution, or any other law, and that question in the national interest needs (o-be decided by the Supreme Court, or that in a criminal proceeding tigh Court has no appeal reversed an order or acquittal of an accused person and sentenced him to death, or has withdrawn for trial before itself any case frc any court subordinate tc it ich trial convicted the'ac enced him to death Pruning the urisdiction of Supreme Court Another significant suggestion is that the jurisdiction of the Supreme Court be pruned by flicting it to Articles 32 and 136 with the above suggested amendment. This means thai under Article 136, the Supreme Court could deal with only appeals from the High Courts nd not any other court or tribimal. Those appeals should involve questions relating to the ion or interpretation of the constitution, which in the national interest call for he Supreme Court shall not t he high courts could be final in their authority within the territories of the state Powers of Supreme Court | woen sales | has jurisdiction to grant special leave to appeal from any judgment, decree : Under the Supreme Court ha emlertain appeal from high coun } criminal proceeding, i president and ve Hot 8 ory jurisdic: 9) Power to withdraw to itself c tain cases pending before a high court / Civil Procedure Code and ADRs i le interpret While interpreting section 89 of CPC, the Supreme Court exist, hen the parties would Ge made 16 Fon four ADR modes specif said that if elements of settlement ier ThOge and opt for one or the other of the d in section 89, and if he par ties do not agree, the court shall referB them to any resolution process. Generally the ADR is consensual and depends purely on consent or choice of the parties. ‘ Once they approach the court, by filing a plaint, it is for the court to select proper method of dispuite resolution, of course, after giving an opportunity for being heard, to the claiming parties. If the parties are willing to take to any of four ADR modes, there is no problem. Even if they do not agree, the court has power to impose any method. Settlement of disputes outside the court ‘ Where it appears to the court that exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and given them to the parties for their observations and_after receiving the observations of the parties, the court may reformulate the terms of a possible seltlement and refer the same for, h Anbitration. b. Conciliation. Judicial sertipment including settlement through Lok-Adalat d. Mediation. Where a dispute has been referred ion and conciliation Act, -xrbitration and conciliation Act, 1996 shall apply as iF the proceedings for arbitration or conciliation were referred for 4) For arbitration or conciliation, the provisions of the arbi Setifement under the provisions of that Act i ! b). To Lok-Adalat, the court shall refer the same to the Lok-Adalat in accordance with the provisions oF sub section 91) of section 20 of the Legal Service Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred 16 the Lok Adalat c). For judicial settlement, the court shall refer the same to a suitable institution or person anid such institution or person shall be services authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act d) For mediation, the court shal! affect a compromise between the parties and shall follow stich procedure as may be prescribed. 1) Direction of the court to opt of any one mode of alternative dispute resolution. Afier + recording the admissions and denials, fhe Court shall direct the parties to the suit 10 opt cither mode of the settlement outside the court as specified sub section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum ‘be opened by the parties14 nciliatory forum or authority where a suit is referred unde 2)_Appearance before the. a si ; “Point no. |, the parties shall appear before such forum or authority for conciliation of the s of conciliation where a 1 is referred under point 1, and the presiding officer of conciliation foram or authorit | satisfied that it would not be proper in the interest of justice to proceed with the matter the parties to appea: 3) ‘ rance before the court consequent to the failure of eff frure, then, it shall refer the n before the court on ti ter again 10 the court and dires ie fixed by it 4) Some doubt as to a possible conflict has been’ expressed in view of use of the word ma’ in section 89 when it stipulates that th settlement and refer the same for and use of the word shall in order X, point | when i States that thé court shall direct the parties to the suit to opt either mode of settlements court may reformulate the terms of a possible outside the court as specified sub section (1) of section 89. sas can be seen from s the court shall formulate terms of settlement. The use of the word may in later part ion 89, its first part uses the word shall when it stipu section 89 only relate (o the aspect of reformulating the terms of a po The intention of the legislature behind enacting section 89 is shall be made to apply their 1 \eceptable to the part they, at the instance of the cou the other of the four Al agree, the court shall re ind So as 10 opt for one or tioned in the section anc if the parties do jem 10 one or other of the said modes Section 89 uses both the word shall and may whereas order X, Rule 1 but on harmonious reading of these provisions it becomes clear that the sue of the word may in Section 89 only governs the aspect of reformulation of the terms of a possil its reference to one of ADR methods. There is no conflict. It is evident that what referred to one of the ADR modes is the dispute which is summarized in the terms 0 o 89. AS can be seen from section 89, firSt part uses the word shall when it stipulates that the court Shall formulate te ns of seitlement. The use of the word may in later part of section 89 Che intention 89 is that where it appears to the court that there t of a seitlement which may be nly slate to the aspect of reformulating erms of a possible settle he legislature behind enacting section ceptable to the parties, they, at the instance of thetcourt, shall be made to apply their mind so as to opt for one o: ADR methods mentioned in the section and if the parties them to one or other of the said modes, the other of the four do not agree, th ourt shall refe Section 89 uses both the word shall and y where order X, 1A uses the word shall but on unonious reading of these provisions it becomes clear that the use of the “ection 89 only governs the aspéct of reformulation ofthe terms of a possible word may in settlement and13 its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reforntulated in terms of section 89. One of the modes to which the-dispute can be referred is Arbitration section 89(2) provides that where a dispute has been referred for Arbitration or Conciliation, the pro Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for Ai Conciliation were. red for settlement under the provisions of 1996 Act. Section 3 of the c-eeitiement under the provis 996 Act. Section 8 of 1996 Act deals with the power to refer parties to Arbitra agreement. ee A doubt has been expressed in relation to clause (d) of section 89 (2) of the cable ‘on the question a to finalization of the terms of the compromise. The question is whether the terms of compromise are to be finalized by or before the mediator or by or before the court The question also is about the payment made and expenses to be incurred where the court compulsorily refers a matter for conciliation mediation. Considering large number of responses received by the committee to the drafi rules it has suggested that in the event of such compulsory reference to conciliation or mediation procedures if expenditure on conciliation or mediation is borne by the government, it may encourage parties to come forward and make attempts at conciliation or mediation. On the other hand, if the parties feel that they have to incur extra expenditure for restoring to such ADR modes, it is likely to act as a deterrent for adopting these methods. The suggestion is laudable. The Central Government is directed to examine it and if agreed, it shall request the planning commission and fiance commission to make specific financfal allocation for the judiciary for including the expenses involved for mediation or conciliation under Section 89 of the code. In case, central government has any reservation, the same shall be placed before the court within four months With a view to enable the court to refer the parties to conciliation or mediation, where parties are unable to reach a consensus on an agreed name, there should be a panel of well trained conciliation or mediation to which it may be possible for the court to make a reference: It would be necessary for the High Courts and district courts to take appropriate steps in the direction of preparing the requisite panels. 1 seems cleae trom the report that while drafiing the model rules, after examining the mediation rules in warious countries, a fige distinction is tried 10 be maintained between conciliation and mediation, accepting the views expressed by British author Mr. Brown in his work on India that in conciliation there is little more autonomy and conciljation can ‘suggest some terms of settlement too. When the parties come to a settlement upon a refererice made by the court for mefiation, as suggested by the committee that there has to be some public record of the manne} in whichrt has to first record the settlement and pass 1¢ suit is disposed of and, thereforp, the decree in terms thereof and if necessary proceed to execute it in accordance with law cannot be accepted that such a procedure wouild be passing of a decree; there will v= no public record of the settlement. Its, however, a different matter if the parties do not want ent even without decree. In such eventuality, nothing prevents them in the {court to imp! infgrming the court that the suit, may be disfnissed as a dispute has been settled between parties outside the court. refund of the court fee where the matter is settled by the reference to one of the ee modes provided in on the lines of am in the state court fee legislations. ection 89 of the Act, it is for the state governments to amend the laws ndment made in governments can consider making similar amendments The draft rules have been finalized by the committee. Prior to finalization, the same wer circulated to the high courts, subordinate courts, the Bar Council of India, state Bar Counc and the Bar associations, seeking cir responses. Now, it is for t ah spective high co ke appropriate ste} paking rules in exercise o king power subject to ‘odifications, if any, which may be considered 1 DIFFERENT METHODS OF DISPUTE RESOLUTION Adversarial, Inquisitorial system of dispute resolution:- on their nature and basic character the em of adversarial, inquisitorial disput olution differs on many points. But it cannot be said that th y are three separate par s set themselves free a lines. They can by synchronized to reach the goal, where pa In adversarial style, the dispurants necessarily deny the claim or allegation of each o ntrovertib h. Formally forces them (o contradict each othe ivil cases, pleadings » diametrically opposite direction inaking it very difficult identify the real iss Jjudicated upon. In criminal eases charges are framed on 1 one handed the accused provides arguments or explanation to dispute each and contention, or piece of evidence on the other. Except allotting time and supervising. U conduct, the court has no major role in trial, If parties fail in their responsibilities th presiding officer has very less to do Thobgh critics plead a pro-active role for every magistrate, he is more or less prisoner of rule and formalities and dependant on the adversaries almost totally. The role of presiding offiger in inquisitorial mechanism is much wider. The judge can script a more active or gelP to find out facts about the terms referred. In the third mechanism, the negotiators or parties themselves take part in process of arriving at the decision. They script the rules and tegulations if any reqiiired, and decide the process.as well. The level of formality is reduced and more free and innovative ideas may increase in field of participative resblutiopwe ” Issues are discussed and narrowed down by the parties themselves. Filing of charges is the starting point of trial while the reference of terms set the process in inquisitorial method, ‘The adversarial mechanism is rigid and formal as law prescribes the rules much efslier 19 the origin of the dispute and judicially has to meticulously have the power to relax the rules of procedure and evidence. Neither fixed rules nor procedures can bind the process pf ADR system. Mediator or facilitators develop their own rules depending upon the needjand the demand of the context. i While ADR need no witnesses or evidence to establish contentious issues, the tial needs the disputants 10 come up to court with their own lists of witnesses and documents. The judge in inquisitorial commission can go beyond the list of the parties and call for any information or witness and if need be, go to any place to ascertain the facts. There should be examination- in chief and. cross-examination of the witnesses in the presence of the other party in adversarial, i.e., traditional trials, examination-in-chief and cross-examination depends upon the discretion of commission chairman not mandatory to have either chief examination or cfoss-examination, the discretion rests with the partes ‘The trial involves process of adjudication, where charges have to be tried and guilt has to be proved, while the commission of inquiry, which is a fact finding process, where the issues are inquired into rather than tried to prove or disprove. Individual guilt or innocence is not important for fact-finding missions. In case of ADR it is totally different. It is problem- solving process. If the parties prefer fact finding or adjudication, their rights and interests might be adversely affected. ‘The parties control the process through the advocates and their tactics in adjudication process. However, after a stage the clients lose control. The commission has a major role in fact finding and the parties do not have any significant say. In ADR always, and by alt tneans, i is the parties who decide everything including walking out of the prpcess or successfully reaching a settlement. The trial is rigid and formal, and in inquisitorial system the inquiry is formal but not rigid. The rigidity as an attitude of the parties’ may effect the ‘ADR but the process is not rigid | proces: ‘The trial ends with a formal legally binding judgment or decree which is binging and enforceable. The inquiry comes to a close with a report, but not a judgment, or an observation, which has just recommendatory value. ‘The efforts to ADR need not culminate into any such formal resolution or award or report. Without their being a formal instrument, there could be a settlement to be performed or completed settlement. At the most it may result in a signed agreement or immediate payment of money or tendering an apology ete. OTHER METHODS-FORMAL AND INFORMAL: , Some of the primary ADR techniques used by Government and industry include the followings:1) Arbitration is one of the oldest forms of ADR:- Arbitration involves a formal adversarial hearing before a neutral, called the arbitrator, with a relaxed evidentiary standard. The arbitrator is usually a subject matter expert. An arbitrator or an arbitration panel of two or more arbitrators serves as a “private judge” to render a decision based on the merits of the dispute. Arbitration decisions can be binding or non-binding, 2) Coneiliatio Gamaged relationships between disputing parties by bringing them together, clarifying Perceptions, and pointing oul misperceptions. The conciliator may or may not be totally neutral to the interests of the nciliation is a process in which a third party, called a c liator, restor arlies. Successful conciliation reduces inflammatory rhetotic and tension, opens channels of communication and facilitates continued negotiations Frequently, conciliation is used to restore the parties.to a pre-dispute status quo, after which other ADR techniques may be applied. Conciliation is also used when parties are unwilling unable, or unprepared to come to the bargaining table. Is with an interest in a i Serves primarily to identify the issues and indivich fic controversy. The neutral, called a convener, is tasked with bringing the parties gether (o negotiate an acceplable solution. This technique is eres € of issues are uncertain. Once the parties a ed and d parties and the nat have had an opportunity to meet, other ADR techniques 1 identifi ay be used to resolve the issu Parties’ positions. The 4) Early Neutral Evaluation es an informal presentation by the parties to a neu espected credentials for an oral or written evaluation of luation may be ire early neutral @ OF non-binding. Many courts r aluation Particularly when: the dispute involves technical or factual issues that lend themselves expert evaluation. It may also be an effective alternative to formal discovery in traditiona tigation, 5) Facilita jon improves the information within a group or among disputing parties The neutral, called a facilitator, provides procedural direction to enable the group to effectively move through negoti towards agreement. The facilitator’s focus is on the Procedural assistance to confit resolution, compared to a mediator who is more likely to be involved with substantive issues. Consequently, it is common for a mediator to become a facilitator, but not the reverse ©) Fact-Finding or Neutral Fact-Finding is an investigative prpcess in which a neutral “fac find ‘eacfed an impasse. It succeeds when the opinion ofthe neutral carries sufficient weight to independently determines facts for a particular dispute usually after the parties have ‘move the parties away from impasse, and it deals only with questions of fact, not interpretations of law or policy. The parties. benefit by having the facts collected and orBapized to facilitate negotiations or, if negotiations fail, for traditional litigation,