A d r

Understanding ADR- INTRODUCTION

• Courts in crisis- problems & prospects• General understanding of ADR• Applicability - major &minor premises• Historical perspective (Indian Context)• Access to justice-Legal Services Authority Act,1987-

Amd.s-1994 & 2002• Lok Adalat &Permanent Lok Adalat-issues of concern• S.89 - CPC-genesis-reports-cases-clarifications (Salem

Advocates case I &II, Afcon’s Case)• Applicability in Labour disputes & Family Law

Alternative Dispute Resolution

Spread over of ADR provisions What is conflict- causes & reactions

ADR METHODS-Negotiation

Conciliation & MediationArbitration

Client interviewing & counseling

Course contents

• Understanding limitations of litigation & appreciating advantages of ADR

• Historical perspective• Comparative perspective• What, Why & How of ADR mechanisms• Theory & law on ADR• Strategic uses• Skill imparting sessions

A D Rx

Traditional legal & Adm. D. RDisadvantages of RDR

x Advantages of ADR

THE NEED FOR CONDUCIVE ATMOSPHERE

The Is proposition• Adversarial character (restricted atmosphere)• Adjudicatory process- third party/judge decides outcomes• Focus on past events-determination of rights/liabilities of parties• Active participation of parties not mandatory unless stipulated• Proceedings held in public-lack of secrecy• Decision is binding on parties• Decision –appealable• No opportunity for parties to directly communicate• Cost factor• LOSE-WIN SITUATION

Realities • Non –organized work• Overburdening of judiciary• Non observance of rules and procedure• Delayed –procedures & outcomes• Language of courts• State –the largest litigator• Delay in disposal• Vertically mounting appeals• Adjournments• Inadequate judge strength• De-moralising subordinate court’s work

Courts in crisis

• Caveats-time consumption, normality of law, complexity of norms, hierarchy x finalty

• Que:• What kind of disputes?• Pending for how long?• For what reasons?

Govt. caused- Court caused- Bar caused- Litigant caused

DELAYS & ARREARS• Lack of priority of matters, organized concern by Bar, quality of judges,

inadequate utilization of judges, trained managerial personnel, research staff.

• Lack of priority to old cases, failure in clubbing cases, modernizing court management, appeal, review, revisional jurisdiction, admission of second appeals non screening of W.P, Prolix argumentation, excessive stay orders.

• Prolonged cross examinations-piecemeal evidence recording, purpose of preferring Appeal, lack of exhaustion of local remedies

• Inherent delays• The system-• over legislation-lack of skilled drafting skills-burdening courts-

dysfunctional laws-State as largest employer

RELEVANCE OF ADR

• Courts must have ADR Centres - Need• Courts should not be prevented from taking

up decisions on serious and emergent matters• Nature of disputes to be categorised-

specialised treatment• ADR NEVER SUBSTIUTES RATHER IT

COMPLIMENTS THE PROCESS

Ought proposition - ADR

• creative compromises • no concept of right and wrong, • there need not be only one winner.

RELEVANCE OF ADR

• Courts must have ADR Centres - Need• Courts should not be prevented from taking

up decisions on serious and emergent matters• Nature of disputes to be categorised-

specialised treatment• ADR NEVER SUBSTIUTES RATHER IT

COMPLIMENTS THE PROCESS

Terminology

• Alternative Dispute Resolution• Primary Dispute Resolution(Australian Family

Law Act)• Additional Dispute Resolution• Amicable Dispute Resolution • Appropriate Dispute Resolution• Assisted Dispute Resolution

Basic ADR Models

• Negotiation: parties voluntarily seek a mutually acceptable agreement to resolve their common dispute. (negotiation allows the disputants themselves to control the process and the solution.)

• Conciliation: third party meets with the disputants separately in an effort to establish mutual understanding of the underlying causes of the dispute and thereby promote settlement in a friendly, un antagonistic manner.

Mediation:• A voluntary and informal process in which the disputing parties select a

neutral third party(one or more individuals) to assist them in reaching a mutually-acceptable settlement.

• (mediator has no power to impose a solution on the disputants; instead, the mediator assists them in shaping solutions to meet their interests)

• Techniques used-• assist parties to communicate effectively to• develop a co-operative, problem-solving attitude • identify parties' underlying interests• identify and narrow issues • transmit messages between parties • explore possible options for agreement and the consequences of non-

settlement.

Arbitration:• An adjudicatory dispute resolution process• one or more arbitrators issues a judgment on the merits (which may be binding or

non-binding) • Expedited process• adversarial hearing- each party has the opportunity to present proofs and

arguments. • Arbitration is procedurally less formal than court adjudication; • procedural rules and substantive law may be set by the parties.• Can be=• Court annexed or• private arbitration• Hybrid process• Med-Arb• Mini Trial

Terms & concepts involved

• Court-annexed ADR: ADR programs or practices authorized and used by the court system.

• Facilitation• Impartiality/Neutrality• Mandatory / Voluntary =how disputes enter ADR

processes. Court/statute/consent of parties• Nonbinding / Binding –• Gen rule-disputants are not bound by an outcome

or resolution in ADR, unless they agree to be bound.

Understanding the strengths and limitations

Introducing ADR within rule of lawAdvantages

Program designApplicability

CharacteristicsUses

Limitations for applicabilityBackground setting

Advantages of ADR• Can be used during pendency of cases before courts• Better solutions at lesser costs• Promotes realistic solutions-parties take over control• Duration to reach outcome is less• Flexibility• Freedom of parties to litigation not restricted• Appreciation of case by both sides• No need of lawyer representation• Reduction of workload• Assistance of specialists - specialisation

Program design-

• Ist stage• What are the needs for dispute resolution in the country? • What kinds of disputes are going unresolved? • What are the barriers?• Are parts of the population excluded from or underserved by the existing formal structures? • Are the costs of the existing system so high that many citizens cannot participate?

• II nd stage• What disputes are considered appropriate for informal resolution?• Whether judicial attitudes and the legal culture in thecountry are friendly to ADR?• Public attitudes towards the judiciary?• THREAT FROM INTEREST /VESTED GROUPS• legal basis for informal dispute resolution• Mandatory referral or voluntary?• Degree of judicial control-EXPERIMENTS with India x South Africa ,China, Sri Lanka• Cultural norms affecting selection and credibility of ADR providers?• What is the skill required?

Major & Minor premise

• Processes designed to manage community tension or facilitate community development issues

• Specific disputes/reconciliation of relationships• Methods/mechanisms-• Negotiation, • Conciliation/Mediation, • Arbitration+ Hybrid mechanisms

The System & effect• Negotiation- encourage and facilitate direct negotiation between parties

to a dispute, without the intervention of a third party.(non –binding)• Mediation /Conciliation- mediate a specific dispute or to reconcile their

relationship.• Facilitate communication/help direct and structure a settlement, but

they do not have the authority to decide or rule on a settlement.(non-binding)

• Arbitration- authorize a third party to decide how a dispute should be resolved.(binding/non-binding)

• Nature-• mandatory processes prior to court litigation/voluntary processes/part

of a prior contractual agreement between parties.

Characteristics of ADRApproaches

• Informality• Application of Equity• Direct Participation and Communication between

Disputants• Flexibility in settlement design- Identifying need- Creating options- Controlling process- Restoring relationship

Uses of ADR

• Addresses economic restructuring, or the management of tensions / conflicts in communities.

• Land claims, economic development planning, environmental issues, conflict and tension in the schools,

disputes within the health care system- civic engagement and create public processes

• Within the context of rule of law initiatives-• Support and complement court reform-Dispute Clearinghouse model• By-pass ineffective and discredited courts• Increase popular satisfaction with dispute resolution• Increase access to justice for disadvantaged groups• Reduce delay in the resolution of disputes• Reduce the cost of resolving disputes--simplicity of the system and the• lack of need for legal representation

Limitations of ADR• Define, refine, establish and promote a legal framework- do not set

precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules.

• Redress pervasive injustice, discrimination, or human rights problems- Gender & Caste issues

• Resolve disputes between parties who possess greatly different levels of power or authority- No legal or procedural protections for weaker parties-spousal abuse cases

• Resolve cases that require public sanction- results of ADR programs are not public

• Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

• ADR may undermine other judicial reform efforts- myth

Social, economic and/or cultural imbalances Egs:

• women in domestic abuse cases• low-income debtors in collection cases• low-income tenants/squatters in eviction

cases• indigenous people in land rights cases • Private parties x public regulatory agencies

The needed background setting• Art.14 and 21.- Recourse to ADR as a means to have access to justice• Adequate Political Support &Constituencies whose support may be necessary- Local community leaders ,

National and state govt.,Judges and the bar, Advocates and representatives of user groups, Foreign donor nation/foundation(s)

• Supportive Cultural Norms- CULTURAL IDEOLOGIES,User acceptance of informal Processes, Appropriate standards for settlements, Enforcement through community customs and sanctions

• Adequate Human Resources- Public participatory process

• Financial Resources• Parity in the Power of Disputants-• A fairly balanced legal framework defining disputants' rights• Carefully designed ADR programs -situations of general social power imbalance.• Procedural protection for those in weaker position-• Commercial conciliation and arbitration through the Chamber of Commerce Conciliation Centers, Court-annexed conciliation, Extra-

judicial community conciliation centers

• Choosing "notables" and choosing "progressives“ or "representatives of disadvantaged groups" as ADR providers.

• Create an effective outreach and education program to reach users

Litigation ADR

• To win

• Argumentative

• To establish &convince

• To find flaws& Develop counter arguments

• Mutually acceptable procedure & solutions

• Collaborative-participatory

• To explain

• To understand

Goal , Style, Speak & Listen Goal , Style, Speak & Listen

• “I had learnt the true picture of law. I had learnt to find out the better side of human nature and to enter men's heart. I realised that the true function of a lawyer was to unite parties riven as under. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromised of hundred of cases. I lost nothing thereby-not even money-certainly not my soul.” ….Mahatma Gandhi

• Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser— in fees and waster of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.- Abraham Lincoln

The origins of ADR• Unwritten law- first originating philosophies of mediation - Wisdom, Reason• and Prudence• KULA, SHRENI, PUGA , Parishad• Justice, equity and good conscience• usages and customs• Buddhism• "Meditation brings wisdom; lack of mediation leaves ignorance. Know well what

leads you forward and what holds you back; choose that which leads to wisdom"• Panch parmeshwar• formal justice delivery system.

• KELSEN-ROSCOE POUND-BENTHAM

Prototypes of ADR• Tribunals –Art.323-B (42 nd Amd.1976)• Commissions• Boards• community based• Nyaya Panchayat- Traditional-73 rd Amd.1992-

particpatory governance - civic amenities, social welfare, development work, resolution of petty cases.

• Lok Adalats- LSA(Amendment) Act, 2002,-Chapter -VI• Ombudsman• Fast Track Courts• Gram Nyayalaya Act, 2008

Hussainara Khatoon (IV) v Home Secretary, State of Bihar [(1980) 1 SCC 98]

• Fairness under Article 21 is impaired where procedural law does not provide speedy trial of accused; does not provide for his pre-trial release on bail on his personal bond, when he is indigent and there is no substantial risk of his absconding; if an under-trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which could have been awarded on his conviction and if he is not offered free legal aid, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused.

Khatri v. State of Bihar II [(1981) 1 SCC 635] (the Bhagalpur Blinding case)

• This right of the indigent arises from the moment he is first produced before a magistrate. It is at this stage that the accused gets his first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody and so the accused needs competent legal advice and representation at this stage. The accused can also claim free legal aid after he has been sentenced by a court but is entitled to appeal against the verdict.

• it is the legal obligation of the magistrate or judge before whom the accused is produced to inform him that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the state.

• right to free legal aid would be illusory for the indigent accused unless the trial judge informs him of such a right

LA-Justice S.M.Dharamadhikari

• Indianisation of justice dispensation• Humanization of justice dispensation • Spiritualization of justice dispensation

UNIQUENESS OF LA• Participation & accommodation,• fairness, • expectation, • voluntariness, • neighbourliness, • transparency, • efficiency and • lack of animosity • APPLICABLE TO –poor/ignorant/illiterate/backward/ disadvantageous position. • rooted in India's history and culture and environment. • A - Access to courts, • B - Backlog in courts resulting in delays and • C - Cost of litigation

LSA,1987-RELEVANT PROVISIONS• S.19-CENTRAL, STATE, DISTRICT, TALUK Legal Services Committees – LSA• S.20-REFERENCE OF CASES• Consent of both parties,• on application,• On satisfaction of court• Compromise settlement-challenge u/A.226/227*(LIMITED GROUNDS)• On failure -divert the dispute back/advice parties to approach court• S.21-If agreement-award by conciliator- no need for consent decree.• Decision(award) is binding-executable-no appeal • S.22- Every proceeding = judicial proceeding• Procedure-• secretary of LSC- Organises-• Information to SLC-• PLACE & DATE of LA,OTHER ORGANISATIONS FORWARDING ASSISTANCE,CATEGORIES&NATURE

OF CASES,,NO: OF CASES IN EACH CATEGORY PROPOSED.,INFORMATION TO PARTIES.• assistance by multi disciplinary stake holders.

Legal backing-LAPreamble, Part III and Part IV -Art .39-A• LEGAL SERVICES AUTHORITY ACT,1987• ESTABLISHMENT OF PERMANENT LOK ADALAT -2002 Amd.-Public Utility Services –• conciliation proceedings -principles of natural justice, objectivity, fair play, equity and other principles of justice-transport service for the carriage of passengers or goods by air, road or water; or-postal, telegraph or telephone service; or -supply of power, light or water to the public by any establishment; or- system of public conservancy or sanitation; or-service in hospital or dispensary; or -insurance service, and includes any service which the Central Government or the State Government, as the case may be, may, in the public interest, by notification, declare to be a public utility service for the purposes of this Chapter.

FUNCTIONS OF NLSA• To encourage the settlement of disputes by way of negotiations, arbitration and• conciliation.• * To lay down policies and principles for making legal services available in the conduct of

any• case before the court, any authority or tribunal.• * To frame most effective and economical schemes for the purpose.• To utilize funds at its disposal and allocate them to the State and District Authorities

appointed• under the Act.• * To undertake research in the field of legal services.• * To recommend to the Government grant-in-aid for specific schemes to voluntary

institutions• for implementation of legal services schemes.• * To develop legal training and educational programmes with the Bar Councils and establish• legal services clinics in universities, Law Colleges and other institutions.• * To act in co-ordination with governmental and non-governmental agencies engaged in the• work of promoting legal services.

Benefits of Lok Adalat• Preventive litigation measure• No court fee- refund of court fees• No strict application of procedural laws & IEA• Presided by –retired judicial officer + lawyer + social worker• No criteria as to selection of disputes• Direct access to LA• Parties to the dispute can directly interect with the Judge• Arriving at a compromise or settlement in friendly and harmonious atmosphere. • Decision(award) is binding-executable-no appeal -P.T. Thomas vs Thomas Job on

4 August, 2005• Voluntary process• Quicker & cost effective• Applicability-• Pre- litigation, pending & post

CompositionState H.C District Taluk

Retired judge of H.C/Serving/retired Judicial Officer+

A MEMBER OF LEGAL PROFESSION+

A SOCIAL WORKER ENGAGED IN UPLIFTMENT OF WEAKER SECTIONS,SVC/ST,WOMEN ETC.,

Retired judge of H.C/Serving/retired Judicial Officer

+

A MEMBER OF LEGAL PROFESSION+

A SOCIAL WORKER ENGAGED IN UPLIFTMENT OF WEAKER SECTIONS,SVC/ST,WOMEN ETC.,

Sitting/retired Judicial Officer

+

A MEMBER OF LEGAL PROFESSION+

A SOCIAL WORKER ENGAGED IN UPLIFTMENT OF WEAKER SECTIONS,SVC/ST,WOMEN ETC.,

Sitting/retired Judicial Officer

+

A MEMBER OF LEGAL PROFESSION+

A SOCIAL WORKER ENGAGED IN UPLIFTMENT OF WEAKER SECTIONS,SVC/ST,WOMEN ETC.,

DISPUTES SUITABLE FOR LOK ADALAT• Compoundable civil, revenue and criminal cases.• Motor accident compensation claims cases· • Partition Claims • Damages Cases• Matrimonial and family disputes • Mutation of lands case• Land Pattas cases· Bonded Labour cases • Land acquisition disputes• Bank’s unpaid loan cases• Arrears of retirement benefits cases • Family Court cases• Cases which are not sub-judice• Compoundable offenses-assault, house tress pass etc.• S.89 -2002 Amd.- process

Need for PLA-Ss.22A-22E(LSA,1987)

• The absence of the power to arbitrate and decide the dispute between non-conciliating parties

• jurisdiction is invoked only to protract litigation

• to procure the refund of court fee in cases where parties have even otherwise settled their disputes.

Grounds of challenge• Fraud & misrepresentation• Absence of free consent• Coercion to refer matter to LA• Impairing interest of minor • Totally arbitrary and unreasonable• If related to non- compoundable offences• The questions?• whether the decision-making authority • exceeded its powers?; • committed an error of law;• committed a breach of the rules of natural justice; • reached a decision which no reasonable Tribunal would have reached; or • abused its powers.

State Of Punjab & Anr vs Jalour Singh & Ors AIR 2008 SC 1209

• When the LSA Act refers to 'determination' by the Lok Adalat and 'award' by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat.

• = ADR Mechanisms should not overpower themselves• =statutory conciliators and have no judicial role.

COURT LA/PLA

• Main forum of deciding disputes

• Decides case on merits & acco. to law

• No limitations on full fledged court

• Purely judicial body

• Strictly follows procedural laws

• Consists of judicial officers/law experts to determine disputes

• Supplementary to court system• Conciliatory settlement of disputes/serious

attempt for settlement /compromise• No jurisdiction to an offence which is not

compoundable under any law• Role of judges= cociliators• Nature-Quasi judicial body• Not bound by procedural laws• Can specify its own procedure• PNJ ,fair play & equity• May not involve law experts alone• Under the civil procedure law no appeal shall lie

from a decree passed on consent of the parties. S.96(3)

• Act reads-"no appeal shall lie to any court against the award" of ordinary Lok Adalat envisaged in Chapter VI of the Act. Intention- finality of the proceedings since the matters were to be settled on a compromise basis.

• Appeal is possible against an award of PLA in terms of Section 96(1) of the Code of Civil Procedure, when it is not specifically barred by the Legal Services Authorities Act, 1987 and as the award has all the attributes of a decree of a civil court.

Challenges ahead

• IPR• CYBER CRIMES• MONEY LAUNDERING• COMPETITION• TELECOM• TAXATION • INT. ARBITRATION

LEGAL JUSTIFICATIONS

• Industrial Disputes Act, 1947• Hindu Marriage Act, 1955• Family Court Act, 1984• CPC• Order 23 Rule 3 • Order 27 Rule 5B• Order 32A• S.89-2002 Amd.• Gram Nyayalaya Act,2008

CPC & ADR• O 23 R 3 -mandate to the Court to record a lawful adjustment or

compromise and pass a decree in term of such compromise or adjustment.

• O 27 R 5B confers a duty on court in suit against the government or a public officer to assist in arriving at a settlement.

• O 32A of CPC lays down the provision relating to “suits relating to matter concerning the family”. (guardianship, custody of minor, maintenance, wills, succession, etc.,)

• R 3 imposes a duty on the Court to make an effort of settlement by way of providing assistance where it is possible to do so. (WELFARE EXPERTS)

Section 89 & Rules 1-A to 1-C in O X-2002 Amd.to CPC (129 th Law Commission

Report,1988- Order XXVII Rule 5B )

OBJECTIVE-ADR process was resorted to before the commencement of trial in suits. Salem Advocate Bar Association v.

Union of India I & II

THE LAW IN PLACE• Where it appears to the court that there exist elements of a settlement which may be acceptable to the

parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.

• Where a dispute had been referred-

(a) for arbitration (adj) or conciliation (non-adj) -Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

• (b) to Lok Adalat, (non-adj) the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

• (c) for judicial settlement (non-adj), the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal 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, (non-adj) the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

• = Jurisdiction of the court to refer a dispute to ADR process

Rules 1A, 1B & 1C of O X CPC“1A Direction of the Court to opt for any one mode of alternative dispute resolution.—After recording the admissions and denials, the court shall direct the parties to suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.”

“1B. Appearance before the conciliatory forum or authority.–

where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit.”

“1C. Appearance before the Court consequent to the failure of efforts of conciliation.- Where a suit is referred under rule 1A and the forum or authority to whom the matter has been referred is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.”

= Manner in which jurisdiction is to be exercised by court

S.16-Court-fees Act, 1870• Refund of fee.- • Where the section refers the parties to the suit to any one of the

mode of settlement of • dispute referred to in section 89 of the Code of Civil Procedure,

1908,(ON MERE REFERENCE) the plaintiff shall • be entitled to a certificate from the court authorizing him to

receive back from the • collector, the full amount of the fee paid in respect of such plaint.”• ANOMALY WITH LSA ? = ABUSE BY PLAINTIFF• ……and as a result thereof a compromise or settlement has been

arrived at between the parties…….?

Afcons Infrastructure Ltd. and Anr. V. CherianVarkey Construction Co. Pvt. Ltd. and Ors.,

(2010) 8 SCC 24

S.89-“a trial judge’s nightmare”.Procedure to be followed by a court in implementing section 89

and Order 10 Rule 1A of the Code. Exercising Judicial Procedure under Section 89 of the CPC-

( preferences of parties, procedure , Adj & non adj processes)A civil court exercising power under Section 89 of the Code

cannot refer a suit to arbitration unless all the parties to the suit agree for such reference.

(CONSENT)

Afcons Infrastructure Ltd. Vs. Cherian Varkey Consturction Co. (P) Ltd.

• In the case of arbitration, • if there is no pre-existing arbitration agreement, the parties to suit can agree

for arbitration by filing a joint memo or application and the court can then refer the matter to arbitration and such arbitration will be governed by the provisions of the AC Act.

• The award of the arbitrators is binding on the parties and is enforceable as if it is a decree of the court, in view of what has been said in section 36 of the AC Act.

• If any settlement is reached in the arbitration proceedings, then the award passed by the arbitrator on the basis of such agreed terms will have the same status and effect as any other arbitral award, vide section 30 of the AC Act.

• The reference to arbitration or conciliation is only possible if there is consent of the parties. In the absence of consent, the court cannot on its own refer the parties to arbitration or conciliation

• Anomaly-• final stage of conciliation referred to in section 73(1) of the AC

Act into the pre-ADR reference stage under section 89 of the Code.

• …. When it appears to the conciliator that there Where it appears to the Court that there exist elements of a settlement which may exist elements of a settlement which may be acceptable to the parties, he shall be acceptable to the parties, the Court shall formulate the terms of a possible settlement formulate the terms of settlement and give and submit them to the parties for their them to the parties for their observations .

Reconciling the provisions &understandings

*“where it appears to the court that there exist elements of a settlement”** Ans=inclusion &exclusion of cases for reference*Que: Why the courts should be burdened with the onerous and virtually impossible, but redundant, task of formulating the terms of settlement at pre-reference stage?”**Ans: Salem Advocates Bar Association vs. UOI-“terms of settlement” = “summary of disputes*Que: “How Section 89 should be interpreted”**Ans: “Section 89 has to be read with Rule 1-A of Order 10= the court to consider and record the nature of the dispute, (in a sentence or two) inform the parties about five options available and take note of their preferences and then refer them to one of the alternative dispute resolution processes.”*Que: “judicial settlement” and “mediation”?**Ans: interchange the words used in S.89 (c )&(d)

Unsuitable Suitable

• Representative suits under Order I Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court.

• Disputes relating to election to public offices.

• Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.

• Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc.

• Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against the Government.

• Cases involving prosecution for criminal offences.

• trade, commerce and contracts, including• disputes arising out of contracts(including all money

suits);• disputes relating to specific performance;• -disputes between suppliers and customers;• disputes between bankers and customers;• disputes between developers/builders and customers;• disputes between landlords and tenants/licensor and

licensees;• disputes between insurer and insured• disputes relating to matrimonial causes, maintenance,

custody of children;• disputes relating to partition/division among family

members/coparceners/co-owners; and• disputes relating to partnership among partners.• disputes between neighbours ( relating to easementary

rights, encroachments, nuisance, etc.);• disputes between employers and employees;• disputes among members of

societies/associations/apartment owners' associations;• claims for compensation in motor accidents/other

accidents• disputes where a

trader/supplier/manufacturer/service provider is keen to maintain his

• business/professional reputation and credibility or product popularity.

Arbitration conciliation • is an adjudicatory process. • by a chosen private forum-independent

proceeding before arbitral tribunal. • parties should also be informed that the

cost of arbitration will have to be borne by them.

• Only if both parties agree for arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration.

• If no pre existing arbitration agreement- mutual consent of parties is mandatory for reference u/S.89

• Once a civil dispute is referred to arbitration, the case will go outside the stream of the court permanently and will not come back to the court.

• Always ends with a decision• Award-executable(S.36AC Act)• if settlement reached-award passed on

such settlement is binding-executable u/s.30 AC Act.

FOR REF-• CONSENT OF PARTIES MANDATORY FOR

BOTH

• non-adjudicatory process- • does not go out of the domain of the court-

process permanently. • If the parties are not agreeable for arbitration,

the court should ascertain whether the parties are agreeable for reference to conciliation which will be governed by the provisions of the AC Act. If all the parties agree for reference to conciliation and agree upon the conciliator/s, the court can refer the matter to conciliation in accordance with section 64 of the AC Act.

• If there is no amicable settlement, the matter reverts back to the court which has to proceed with the trial after framing issues.

• When the matter is settled through conciliation, the settlement agreement shall have the same status and effect as if it is an arbitral award (vide Section 74 of AC Act) and therefore it is enforceable as a decree of the court by virtue of S. 36 of the AC Act.

Afcons Infrastructure Ltd. Vs. Cherian Varkey Consturction Co. (P) Ltd.

• In the case of arbitration, • if there is no pre-existing arbitration agreement, the parties to suit can agree

for arbitration by filing a joint memo or application and the court can then refer the matter to arbitration and such arbitration will be governed by the provisions of the AC Act.

• The award of the arbitrators is binding on the parties and is enforceable as if it is a decree of the court, in view of what has been said in section 36 of the AC Act.

• If any settlement is reached in the arbitration proceedings, then the award passed by the arbitrator on the basis of such agreed terms will have the same status and effect as any other arbitral award, vide section 30 of the AC Act.

• The reference to arbitration or conciliation is only possible if there is consent of the parties. In the absence of consent, the court cannot on its own refer the parties to arbitration or conciliation

“Neither S 89 nor R 1-A of O 10 of the Code is intended to supersede or modify the provisions of the Arbitration and Conciliation Act, 1996 or the Legal Services

Authorities Act, 1987.

• Arbitration and conciliation, will be governed by the provisions of the AC Act • CONSENT IS MANDATORY

• consent of parties not mandatory - for other ADR processes

• Lok Adalat settlement – (easily sortable, which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and there is no personal animosity between the parties (as in the case of motor accident claims) will be governed by the Legal Services Authorities Act.

• Mediation…COMPLICATED&LENGTHY SUIT-(Model Mediation Rules 2003 in Part II)will be governed by the Legal Services Authorities Act.

• Judicial settlement…if suggestion or guidance by judge is required-(compromise entered by the parties with the assistance of the court adjudicating the matter or another judge to whom the court had referred the dispute.)

• Section 89 makes it clear that it is not governed by any enactment and the section will follow such procedure as may be prescribed (by appropriate rules).

Procedure u/S.89 to be followed• Stage - pleadings are complete + before framing of issues-preliminary hg by court• Exclusion & non exclusion considerations - If excluded-brief record of reasons-framing-trial• Inclusion cases-court to explain 5 ADR Processes-to exercise option• Info. As to nuances of arbitration/conciliation-ORDER SHEET must reveal ref. is by mutual

consent.• If ref. to other processes- say- nature of dispute & case deserves to be decided so.• Formulation &reformulation =nature of dispute and decide upon ADR process• In cases of judicial settlement –refer to another judge (prevent bias)• Sequential order of preferences to be followed-cases –for want of consent• If ref. fails- issues are framed - trial starts• If referred (to other than arbitration)- keep track of processes-(to avoid delays)• court not to send- original records• If settlement-court will make decree in acco with O23 R3CPC• If the settlement includes disputes which are not the subject matter of the suit the court may direct that the same will be governed by Section 74 of the AC Act (if it is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat).If any term of the settlement is ex facie illegal or unforceable, the court should draw the attention of parties thereto to avoid further litigations and disputes about executability.

PROCEDURE CONTEMPLATED

• “…Know the dispute; • exclude unfit cases; • ascertain consent for arbitration or

conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to Judge–assisted settlement only in exceptional or special cases.”

Industrial Disputes Act,1947

VOLUNTARY ARBITRATION• Sd.10(1)• Where any industrial dispute exists or is apprehended and the

employer and the workman (parties) agree to refer the dispute to arbitration,

• they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal by a written agreement,

• refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal, or National Tribunal) (selection)

• as an arbitrator or arbitrators as may be specified in the arbitration agreement.

FORMAT & PUBLICATION OF AGREEMENT

• (1A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act.

• (2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.(consent of arbitrator)

• (3) A copy of the arbitration agreement shall be forwarded to the appropriate government and the conciliation officer and the appropriate government shall, within one month from the date of the receipt of such copy, publish the same in the Official Gazette.

• Karnal Leather Karamchari Sangathan v. Liberty Footwear Co.-significance of publication-mandatory

• (3A) Where an industrial dispute has been referred to arbitration and the appropriate government is satisfied that the persons making the reference represent the majority of each party, the appropriate government may, within the time referred to in sub-section (3), issue a notification in such manner as maybe prescribed;

• and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.]

• (4) The arbitrator or arbitrators shall investigate the dispute (on satisfaction of mandates of S.10(A))and submit to the appropriate government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

• (4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which maybe in existence on the date of the reference.]

• (5) Nothing in the Arbitration Act, 1940 (10 of 1940), shall apply to arbitrations under this section.

Role-“statutory arbitrator”

• Engineering Mazdoor Sabha v. Hind Cycles Ltd.• Powers, • procedure,• Validity and binding nature of awards• Jurisdiction • Source of power- agreement• Nature of dispute –all ind. Disputes referred

S.20 COMMENCEMENT&CONCLUSION OF PROCEEDINGS

• Proceedings before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal] shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case maybe, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section 17A

ENFORCEABILITY OF AWARD• S.17A• An award (including an arbitration award) shall become enforceable on the expiry of thirty

days from the date of its publication under section 17Award binding on (S.18)• A settlement arrived at in the course of conciliation proceedings under this Act or an

arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an award of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on-

• (a) all parties to the industrial dispute;• (b) all other parties summoned to appear in the proceedings as parties to the dispute,

unless the Board, arbitrator, labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;

• (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;

• (d)where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment., as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.

Kathayee Cotton Mills Ltd. v. Distt.Labour Officer

• Not forwarding agreement &NON Publication of agreement

• Effect• Arbitral award is inoperative• Conduct of arbitrator• Air Corporation Employees Union v. D.Y. Vyas

• S.21 confidentiality in reports• S.30Breach FOR UNLAWFUL DISCLOSURE-penalty• S.29-breach of an y terms of award-penalty• S.33C application-recovery on money due by an

employer to workman• The process in toto• Agreement between parties-Arbitration agreement-

sent to app. Govt. & conciliation officer-publication-reference-notification-proceedings-Award-sent to app. govt.-publication-enforceability

JUDICIAL REVIEW?• Engineering Mazdoor Sabha v. Hind Cycles Ltd.• Statutory arbitrator,A.226// A.136• Gujarat Steel Tubes Ltd. V. Gujarat Steel Tubes Mazdoor Sabha –• quasi -judicial procedure, statutory tribunals amenable to judicial

review, powers u/S.11A• Rajender Kumar Kindra v. Delhi Administration--reappraisal of evidence-S.11 AINSTANCES-• FINDINGS BASED ON NO EVIDENCE• NON APPLICATION OF MIND• Rohtas Industries v. Rohtas Industries Staff Union(1976)-settled

position

UNDERSTANDING Conflict & dispute

“A compromise is the art of dividing a cake in such a way that everyone believes that he has got the biggest piece.”

But what if someone wants the whole cake?

Task management of what can be very confrontational situations

Strategygetting everyone involved to focus on negotiating agreement.

Why conflicts/disputes occur• People differ, so they:• · see things differently

· want different things· have different thinking styles, which prompts them to disagree· are predisposed to disagree· have different personalities· have different status· have ideological and philosophical differences· have different goals· have different approaches· are influenced by fear, force, fairness or funds

Maslow’s hierarchy of needs

Burton’s views

• Dispute-• short-term disagreements that are relatively

easy to resolve. • Conflict-• Long-term, deep-rooted problems that involve

seemingly non-negotiable issues and are resistant to resolution-

• egs:values, and fundamental human needs.

Traditional theory x Contemporary theory

• conflicts are caused by trouble-makersare bad-should be avoided or suppressed

• conflicts are inevitable between human beings-often beneficial-conflicts are the natural result of change- conflicts can and should be managed

COMPETING

COLLABORATING

COMPROMISING

AVOIDING

ACCOMMODATING

Conflict

• Positive effects:• Diffuses more serious

conflicts-Stimulates a search for new facts/resolutions- Increases group cohesion and performance- Demonstrates measure of power or ability

• Negative effects:• Hinders smooth

working Hampers the decision making processCauses the formation of competing coalitionsReduces productivity

Supporting/understanding people people

• What do I really know about this person? • Where does my knowledge come from?- My own experience? Things other people have said? Rumors? Gossip? My own prejudices• What might be important to this person?• What is something this person needs?• What is something this person might like?• What are some reasons this persons acts the way they do?• What problems might this person have?• What might this person be struggling with?• What might this person be afraid of?• What might his person wish he or she could do?

Controlling processes• Managing emotions

What am I feeling?Am I blaming them for my feelings?Will telling them how I feel help the situation?What do I want to change?Have I removed the desire to punish them?What can I do to handle my feelings?

• Willingness to ResolveDo I really want to resolve the conflict?What is the resentment caused to me?something in my past that still hurts?something I dislike in them because I won't accept it in myself?

• Win/WinWhat is my real need here?What is theirs?Do I want it to work for both of us?

• Creative ResponseWhat opportunities can the situation bring?Rather than "how it's supposed to be".,,,, can I see possibilities of 'what it can be"?

Changing /solving for better

• Fight mode.....• Aggressive Behavior..........I win/You lose• Flight mode.....• Passive Behavior .........I lose/ You win• Flow Response……• Assertive Behaviour.......I Win/ You Win.• “When we change the way we communicate,

we change society” (Shirky, 2008, p. 17).

Conflict in workplace-causes-

• poor management• unfair treatment• unclear job roles•inadequate training• poor communications• poor work environment•lack of equal opportunities• bullying and harassment.

Needs &expectations-demand/interest• a flexible work routine • a safe and healthy workingenvironment• personal development and training• a fair rate of pay

Ignoring common values- to give someone a fair hearing•to explain the reasoning behind adecision•to be impartial•to hear an appeal against aDecision

-Unresolved problems fromthe past

-Increase in workload-the personalities involved

How much do you involve your employees?

‘This is what I’ve done’ • ‘This is what I’ve done/want to do –• what do you think?’

• ‘What are the options and which one do you think we should take?’

• ‘Let’s get together to discuss the problem and see if we can agree what we ought to do’

• ‘Can we reach a deal on what to do?’

• ‘This is the problem – you decide what to do’

-Briefing

-Communication

-Consultation

-Joint problem-solving

-Negotiation

Empowerment

Healthy and unhealthy ways of managing and resolving conflict

Unhealthy responses to conflict: Healthy responses to conflict

An inability to recognize and respond to the things that matter to the other person

The capacity to recognize and respond to the things that matter to the other person

Explosive, angry, hurtful, and resentful reactions

Calm, non-defensive, and respectful reactions

The withdrawal of love, resulting in rejection, isolation, shaming, and fear of abandonment

A readiness to forgive and forget, and to move past the conflict without holding resentments or anger

An inability to compromise or see the other person’s side

The ability to seek compromise and avoid punishing

The fear and avoidance of conflict; the expectation of bad outcomes

A belief that facing conflict head on is the best thing for both sides

AddressingCauses & strategy

• Information-Agree on considering all interpretations of information

• Interests and Expectations-Shift focus from positions to interests-expand options• Relationships-Clarify misconceptions-Improve communication-Focus on improving the future, not dissecting the past• Structural Conflicts-Reallocate ownership and control-Establish fair, mutually acceptable decision-making process

• Values-Allow parties to agree and to disagree-Build common loyalty