Persuade your neighbors to compromise whenever you can. Point outto them how the nominal winner is often a real loser— in fees and waster oftime. As a peacemaker, the lawyer has a superior opportunity of being a goodman.
There will still be business enough.”- Abraham Lincoln Arbitrationis a method for settling disputes privately, but its decisions are enforceableby law. An arbitrator is a private extraordinary judge between the parties,chosen by mutual consent to sort out controversies between them. Arbitratorsare so called because they have an arbitrary power; for if they observesubmissions and keep within due bounds their sentences are definite from whichthere is no appeal.
Arbitration offers greater flexibility, prompt settlement ofnational and international private disputes and restricted channels of appealthan litigation. In the words of Richard Cobden “At all events, arbitration is more rational, just, and humane than theresort to the sword.” Arbitrationis a simplified version of a trial involving no discovery and simplified rulesof evidence.
Either both sides agree on one arbitrator, or each side selectsone arbitrator and the two arbitrators elect the third to comprise a panel.1Arbitration hearings usually last only a few hours and the opinions are notpublic record. Arbitration has long been used in labour, construction, andsecurities regulation, but is now gaining popularity in other businessdisputes. Litigation is expensive, time consuming and full ofcomplexities. ADR is a system whereby disputants resolve their disputes withminimum outside help.2The ADR procedure consists of four basic methods of dealing with disputes whichare:1. Negotiation32. Mediation43.
Conciliation54. Arbitration6Alternative dispute resolution is not new to India. Theconcept is analogous to the panchayat or similar bodies consisting ofinfluential and elderly men from the community who were bestowed with power tomanage of religious and social functions and who were called upon to decide thedispute between parties in the particular village, be it civil or criminal orrevenue.7 Arbitrationis an adjudicatory process and remaining four ADR processes are negotiable innature (non-adjudicatory processes). Arbitration is governed by the provisionsof the Arbitration and Conciliation Act. For a reference to arbitration undersec.
89, CPC,8there must be the consent of all the parties to the suit. The parties to thesuit can agree for arbitration by means of a joint memo, joint application orjoint affidavits before court or the court may record such agreement in theorder sheet signed by the parties. On a reference to the arbitration the casewill go outside the stream of the court permanently and will not come back tothe court. InIndia, to reduce the burdening of the already overburdened courts theAlternative Dispute Resolution Mechanism has been put into practice and isgaining its popularity as days are passing by. The importance of Informationand Communication Technology (ICT) for resolving contemporary electroniccommerce (e-commerce) and other disputes. The best example of the same is theuse of Online Dispute Resolution (ODR) for resolving these disputes andmisunderstandings. The swift growth of e-commerce and website contracts has increasedthe potential for conflicts over contracts which have been entered into online.
The use of Online Dispute Resolution Mechanism (ODRM) to resolve suche-commerce and website contracts disputes are crucial for building consumerconfidence and permitting access to justice in an online business environment. TheseODRM are not part and parcel of the traditional dispute resolution machinerypopularly known as judiciary but is an alternative and efficacious institutionknown as ADRM. Thus, ADR techniques are extra-judicial in character. Thelegislative sensitivity towards providing a speedy and efficacious justice inIndia is mainly reflected in two enactments. The first one is the Arbitrationand Conciliation Act, 1996 and the second one is the incorporation of Section89 in the traditional Civil Procedure Code (CPC).9 It is an established fact that theAlternative Dispute Resolution Mechanism (ADR) had done wonders in a number ofwestern countries such as United States, Canada, U.
K., Sweden etc. and it hasnow started becoming an important tool for litigants in our country which iscertainly a very positive change over last one decade or so.10 Although many lawyers believe thattheir efforts in settlement of disputes outside the court would adverselyaffect their material interest but they may be reminded of the personalexperience of our father of the nation. While emphasizing the significance ofout of court settlement of disputes and based on his own experiences as anAdvocate in South Africa, Mahatma Gandhi so eloquently remarked, “both were happy with the result and bothrose in public estimation. I realised that true functions of a Lawyer was tounite parties. The lesson was so indelibly burnt into me that a large part ofmy time during the twenty years of my practice as a lawyer was occupied inbringing about private compromises of hundreds of cases. I lost nothingthereby, not even money; certainly not my soul”.
The Constitution of India mandates toensure speedy justice & equal justice. Further an obligation is also caston all institutions by the Constitution to ensure that free legal aid isprovided to all those who are in need of it. The judiciary under the guidanceof Hon?ble Supreme Court of India is making all out efforts to ensure that thecitizens of the country particularly those belonging to the deprived sectionsof the society, are extended the benefits of ADR Processes. The Alternative Dispute Resolution(ADR) Mechanism is working well in India. Millions of cases had been disposedof through Lok Adalats across the country.
The National Lok Adalats hadachieved tremendous results in the past and huge money had been realized forpublic exchequer. Millions of people got relief in these Lok Adalats wheretheir long pending cases were disposed off amicably. Wiping out tears from theeyes of poor litigants, even if it comes after a long time is a great sigh ofrelief for the litigant who is in search of the most precious virtue, that is –justice.
1 Dr. Shraddhakara Supakar, Law ofProcedure and Justice in Ancient India, Deep & Deep Publication, New Delhi,1986.2Deshmukh Raosaheb Dilip, J.?Efficacy Of Alternative Disputes Resolution Mechanisms In Reducing Arrears OfCases?, NYAYA DEEP- Vol. X, Issue: 2, April 2009, pp.
26-273 Negotiation is a process by whichparties resolve their disputes. They agree upon course of action and bargainfor advantage. Sometimes, they try to adopt such a creative option that servestheir mutual interests.
Because of its mutual advantages, people negotiate inalmost all walks of life, from home to courtroom.4 Mediation is a process forresolving disputes with the aid of an independent third person that assists theparties in dispute to reach a negotiated resolution. Mediation is theacceptable intervention into a dispute of a third party that has no authorityto make a decision.5Conciliation is a processin which a third party assists the parties to resolve their disputes byagreement. A conciliator may do this by expressing an opinion about the meritsof the dispute to help the parties to reach a settlement.
Hence, conciliationis a compromise settlement with the assistance of a conciliator.6When two or more personsagree that a dispute or potential dispute between them shall be decided in alegally binding way by one or more impartial persons in a judicial manner, theagreement arrived after such settlement is called ‘arbitration agreement. Theprocess is called the ‘arbitration’ and the decision when made is called the’award’7RonaldBerstein Derek Wood in Handbook of Arbitration Practice, 2nd Edn., P.9.8The Civil Pocedure Code,Section 89 reads, “Settlement of disputes outside the Court. 9Singh, Dr.
Avtar; Law ofArbitration and Conciliation (including ADR systems) Eastern Book Company.10Erich Suter,”The progressfrom void to valid for agreements to mediate”, Arbitration 2009, 75(1), 28,p.31