Adr final project

Alternative Dispute Resolution (ADR) GROUP 5

LN COLLEGE OF MANAGEMENT & TECHNOLOGY

Academic Year2007-2008

Semester –I

Topic“ALTERNATIVE DISPUTE RESOLUTION (ADR)”

Project Guide: Prof. Ranjith Krishnan

For: MBA (MASTER IN BUSINESS ADMINISTRATION)

Submitted By: COMPLAN GROUP

MBA (FULL TIME) SEMESTER I 1


CERTIFICATECERTIFICATE

II Prof. Ranjith Krishnan Hereby certify that the Prof. Ranjith Krishnan Hereby certify that the

Group No. 5 First Year of Master in Business Group No. 5 First Year of Master in Business

Administration (MBA) of LN College of Administration (MBA) of LN College of

Management & Technology has completed Management & Technology has completed

their project titled Essential of Management in their project titled Essential of Management in

the academic year 2007-08. The information the academic year 2007-08. The information

submitted herein is true, satisfactory and submitted herein is true, satisfactory and

original to the best of their knowledge.original to the best of their knowledge.

Project GuideProf. Ranjith Krishnan



ACKNOWLEDGEMENT

WE express thanks to everybody who helped us by their

direct or indirect contribution have helped us in converting my

thought into reality

It is really impossible to acknowledge all the help us have

received in preparing this project. We take this opportunity to

express my gratitude towards my PROFESSOR RANJITH

KRISHNAN for her encouragement and guidance to prepare

project of “ALTERNATIVE DISPUTE RESOLUTION (ADR)”

FOR THE FIRST YEAR OF “MASTER IN BUSINESS

ADMINISTRATION (MBA”) specialization course in “LN College

OF MANAGEMENT & TECHNOLOGY” (2007-2008)

And, last but not least we would like to express our humble

thanks to friends and family member for their encouragement and

boosting which they have given to us.



CONTENTS

Sr.No. Topic Page No.

1. Introduction 1.

2. Alternate Dispute Resolution- An Indian Perspective

4.

3.An Overview

6.

4.Impact Of ADR

18.

5.Types of ADR Techniques

20.

6. ADR Procedures 56.

7. Key Elements to Implementing a Successful ADR

Program

58.

8. Conclusion 60.



Group Members

Sr.No Name

1. Amit Panwar

2. Mazhar Khan

3. Manoj Nangalia

4. Shrikank Sharma

5. Sarvesh Upadhayay

\



ALTERNATIVE DISPUTE RESOLUTION (ADR)

“A better way for resolving conflict”

“One way to resolve a dispute!”

“A more modern form of dispute resolution!”

“ADR - The best way to resolve disputes.”

INTRODUCTION

Did you know that 95 percent of all civil cases filed in court are

resolved without going to trial? Many people use processes other than trial

to resolve their disputes. These alternative processes, known as Alternative

Dispute Resolution or ADR, are typically less formal and adversarial than

trial, and many use a problem-solving approach to help the parties reach

agreement.

Although it is human nature to avoid conflict where possible, conflict is

not all bad. Conflict can be constructive and a catalyst for growth. It also is

inevitable, so the real question is how best to manage conflict. In our world,

litigation too often has been the primary game plan for dealing with conflict.

But the need for an alternative to litigation was evident at least 150 years

ago, when Abraham Lincoln said: “Discourage litigation because the

nominal winner often is a loser, in both time and money.” It took a long time

after President Lincoln’s admonition before a new framework was

constructed that recognizes litigation is not, and should not be, inevitable.

That framework is alternative dispute resolution (“ADR”).

ADR is an umbrella term encompassing a range of processes that

provide alternatives to traditional litigation. ADR processes, in general, give



parties the opportunity to play a more active role in collaborating to create

mutually agreeable decisions or crafting a resolution to their disputes.

Mediation, a commonly used ADR process, highlights the benefits of this

opportunity. Through mediation, those individuals who best know the facts,

the issues, and the vested interests involved in an issue or dispute are the

very people balancing priorities and crafting a resolution that reflects their

interests. The result is a durable resolution, created and endorsed by those

who will implement it. Oftentimes, the result also includes improved

relations between the parties to a dispute, particularly important for parties

who have ongoing business relationships.

MEANING

Alternative dispute resolution (ADR) includes dispute resolution

processes and techniques that fall outside of the government judicial process.

Despite historic resistance to ADR by both parties and their advocates, ADR

has gained widespread acceptance among both the general public and the

legal profession in recent years. In fact, some courts now require some

parties to resort to ADR of some type, usually mediation, before permitting

the parties' cases to be tried. The rising popularity of ADR can be explained

by the increasing caseload of traditional courts, the perception that ADR

imposes fewer costs than litigation, a preference for confidentiality, and the

desire of some parties to have greater control over the selection of the

individual or individuals who will decide their dispute.


http://en.wikipedia.org/wiki/Profession

http://en.wikipedia.org/wiki/Legal

http://en.wikipedia.org/wiki/Dispute_resolution


Alternative Dispute Resolution (ADR) - Definition

ADR - Alternative dispute resolution has greatly expanded over the last

several years to include many areas in addition to the traditional

commercial dispute in the form of arbitration; mediation has become an

important first step in the dispute resolution process. Arbitrators and

mediators have an important role in resolving disputes. Mediators act as

neutrals to reconcile the parties’ differences before proceeding to

arbitration or litigation. Arbitrators act as neutral third parties to hear the

evidence and decide the case. Arbitration can be binding or non-binding.

Overview of Alternative Dispute Resolution - Cornell Law School

Alternative Dispute Resolution ("ADR") refers to any means of

settling disputes outside of the courtroom. ADR typically includes

arbitration, mediation, early neutral evaluation, and conciliation. As

burgeoning court queues, rising costs of litigation, and time delays

continue to plague litigants, more states have begun experimenting with

ADR programs. Some of these programs are voluntary; others are

mandatory.


http://www.law.cornell.edu/wex/index.php/ADR


Alternate Dispute Resolution- An Indian Perspective

Inspired by the United Nations Commission on International Trade

Law's Conciliation Rule, adopted by the General Assembly of the United

Nations in 1985, and the recommendation made by the General Assembly,

Parliament of India passed the Arbitration and Conciliation Act, 1996 which

came into force on 25th January, 1996. The said Act intends to achieve

consolidation and amendment of the law relating to domestic arbitration,

international arbitration and enforcement of foreign arbitral awards as also to

define the law relating to conciliation and the matters connected therewith or

incidental thereto. Proceedings pending on arbitration commenced on or

before January 25, 1996 will continue to be governed by the Act of 1940.

Therefore the book deals with the Act of 1940 as well as arbitration law.

For the promotion and development of Arbitration and other Alternate

Dispute Resolution techniques, Indian Society of Arbitrators (hereinafter

referred to as ISA) was constituted. ISA has contributed substantially to the

formulation and enactment of the Arbitration and Conciliation Act 1996, and

is a leading arbitral institution in the country

Alternative dispute resolution in India is not new and it was in existence

even under the previous Arbitration Act, 1940. The Arbitration and

Conciliation Act, 1996 has been enacted to accommodate the harmonization

mandates of UNCITRAL Model. To streamline the Indian legal system the

traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also

been amended and section 89 has been introduced. Section 89 (1) of CPC

provides an option for the settlement of disputes outside the court. It

provides that where it appears to the court that there exist elements, which



may be acceptable to the parties, the court may formulate the terms of a

possible settlement and refer the same for arbitration, conciliation, mediation

or judicial settlement.

Philosophy & Implementation in India

ADR is by no means a recent phenomenon in India, though it has been

organized and systematized, expressed in clearer terms, employed more

widely in dispute resolution in recent years than before. In earlier times,

disputes were peacefully decided by intervention of kulas (family or clan

assemblies), srenis (guilds of men following the same occupation), parishads

(assemblies of learned men who knew law) before the king came to

adjudicate on disputes. There were Nyaya panchayats at grass root level

before the advent of the British system of justice. Later on, Lok Adalats

(people's court) have provided speedy and inexpensive justice in both rural

and urban areas in India.

In India, laws relating to resolution of disputes have been amended from

time to time to facilitate speedy dispute resolution. The Judiciary has also

encouraged out of court settlements to alleviate the increasing backlog of

cases pending in the courts. To effectively implement the ADR mechanism,

organizations like ICA, ICADR were established, Consumer redressal

forums and Lok Adalats revived. The Arbitration Act, 1940 was repealed

and a new and effective arbitration system was introduced by the enactment

of the Arbitration and Conciliation Act, 1996.This law is based on the

United Nations Commission on International Trade Law (UNCITRAL)

model law on International Commercial Arbitration.



The Legal Services Authorities Act, 1987 has also been amended from time

to time to endorse use of ADR methods. Section 89 of the Code of Civil

Procedure as amended in 2002 has introduced conciliation, mediation and

pre-trial settlement methodologies for effective resolution of disputes.

Mediation, Conciliation, Negotiation, Mini Trial, Consumer Forums, Lok

Adalats and Banking Ombudsman have already been accepted and

recognised as effective Alternative dispute resolution methodologies.

Abraham Lincoln puts the philosophy of Alternate Dispute Resolution

systems by declaring "discourage litigation; persuade your neighbours to

compromise whenever you can. Point-out to them how the normal winner is

often a loser in fees, expenses, cost and time." Further, the Constitution of

India has defined and declared the common goal for all of us as — "to

secure to all the citizens of India Justice social, economic and political;

Liberty; Equality and Fraternity". ADR is a vehicle to achieve these

principles and objectives.

Alternative Dispute Resolution (ADR): An Overview

Alternative Dispute Resolution ("ADR") refers to any means of settling

disputes outside of the courtroom. ADR typically includes arbitration,

mediation, early neutral evaluation, and conciliation. As burgeoning court

queues, rising costs of litigation, and time delays continue to plague

litigants, more states have begun experimenting with ADR programs. Some

of these programs are voluntary; others are mandatory.

The two most common forms of ADR are arbitration and mediation.

Arbitration is a simplified version of a trial involving no discovery and



simplified rules of evidence. Either both sides agree on one arbitrator, or

each side selects one arbitrator and the two arbitrators elect the third to

comprise a panel. Arbitration hearings usually last only a few hours and the

opinions are not public record. Arbitration has long been used in labor,

construction, and securities regulation, but is now gaining popularity in other

business disputes.

“It is the spirit and not the form of law that keeps the justice alive.” LJ

Earl Warren

The disillusionment and frustration of people over the inordinate delay in

dispensation of justice today looms large as a great threat to erode the

confidence of people in the justice system of the country. It is the

constitutional obligation of the judiciary to exercise its jurisdiction to

reaffirm the faith of the people in the judicial set up. Therefore, evolution of

new juristic principles for dispute resolution is not only important but

imperative.

International Scenario

A brief look at the international scenario of ADR Mechanism reveals the

popularity of its usage in various countries. The seeds of ADR in the UK can

be traced to the work of the advisory, conciliation and arbitration service

which was formed in 1974.In China and Japan mediation was used as

primary means of conflict resolution. The Chinese principle was the

influence of Confucian view of harmony and dispute resolution by morals

rather than coercion. Informal dispute resolution was used in many cultures

of the world including India, Africa and Israel.



In Japan, Judges intervene extensively during the in-court settlement; every

Japanese Judge is expected, both by law and by litigants, to move a case

towards settlement. This has the force of statutory law. At least 40% of the

cases are settled. The Judge, who decides to switch the litigation to a

settlement mode, takes off his robe and acts as mediator.

In 1976, Rosco Pound Conference was held to commemorate the

anniversary of his dissertation on “Public dissatisfaction with the American

Legal system”. It was this conference that the current ADR movement

actually started in America and now these methods are so successful that

nearly 93% of the civil disputes are settled outside the courts.

Even in Europe, mediation is seen as a potentially promising mechanism for

the resolution of both simple and complex disputes. In 1995, France

expanded the legislative basis for judicial conciliation and mediation.

The Hong Kong International Arbitration Centre, most probably the

largest arbitration service centre in Asia, has held the view

“arbitration as compared to litigation has become very popular for

resolving the disputes. Similarly, conciliation and mediation find an

increasing measure of support in future.”



The Concept & its efficacy

The concept of Conflict Management through Alternative Dispute

Resolution (ADR) has introduced a new mechanism of dispute resolution

that is non adversarial. A dispute is basically ‘lis inter partes’ and the justice

dispensation system in India has found an alternative to Adversarial

litigation in the form of ADR Mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal

with the underlying issues in dispute in a more cost-effective manner and

with increased efficacy. In addition, these processes have the advantage of

providing parties with the opportunity to reduce hostility, regain a sense of

control, gain acceptance of the outcome, resolve conflict in a peaceful

manner, and achieve a greater sense of justice in each individual case. The

resolution of disputes takes place usually in private and is more viable,

economic, and efficient

The Alternative Dispute Resolution Mechanism has proven to be one the

most efficacious mechanisms to resolve commercial disputes of an

international nature. Transcending national boundaries it renders

proportionate judgements over the merchants’ disputes, as the Law

Merchants of Medieval ages rendered justice in light of “fair price”, good

commerce, and equity. Infact the Law merchant precepts have been

reaffirmed in new international mercantile law. Visualizing the participatory

nature of such laws the ADR method is also formulated in the similar vein.



“Increased awareness of ADR is the need of the hour”

As per data provided by the Registry of Supreme Court of India, as on

31.10.2006, more than 2, 53, 80,757 cases were pending in our subordinate

Courts. The figure of pending adjudication is indeed staggering. To deal

with these cases, we have less than 15000 judges and judicial officers in the

country. The ratio of judge per million populations in India is the lowest in

the world. The Law Commission of India in its 20th Report examined the

problem of under-staffing of the judiciary. The Commission found that India

has 10.5 judges per million populations; the corresponding figure in England

was 50.9, Australia 57.7, Canada 75.2 and the U.S.A. 107. The main reason

of delay in disposal of cases is inadequate judge-population ratio.

Despite many advantages of using Alternative dispute resolution

mechanisms, our society has been reluctant to give it its due

recognition .The predominant reason being that a litigation ridden society is

generally unable to explore consensual dialogue or arrive at an amicable

solution. The ADR practitioner therefore acts like a healer of conflicts rather

than a combatant. It is similar to the Panchayat system we have in our

villages. The resolution of disputes is so effective and widely accepted that

Courts have more often recognised them. In Sitanna v. Viranna, AIR 1934

SC 105, the Privy Council affirmed the decision of the Panchayat and Sir

John Wallis observed that the reference to a village panchayat is the time-

honoured method of deciding disputes. It avoids protracted litigation and is

based on the ground realities verified in person by the adjudicators and the

award is fair and honest settlement of doubtful claims based on legal and

moral grounds.



Awareness of ADR through seminars, workshops and other means and its

supervised and systematic implementation should be encouraged so that its

effectiveness is proved and the message reaches a large section of

population. Also, apart from a good law that provides for resolution of

disputes, it is rudimentary to extend or create facilities, services, and

infrastructure that shall enable the implementation of such rules and lead to

effective ADR practice. Effective coordination both at operational and

structural level is a prerequisite of any successful ADR mechanism. Pre-trial

conciliation and fixing the targets for dispensation of justice are imperative

for successful implementation of any ADR mechanism. Proper training of

the Mediators, Negotiators, and Conciliators should be a mandatory

requirement for the understanding of the disputes/ cases and its efficient

handling. The specialized firms or organizations are certainly more

promising and reliable in this sphere and people choose to consult them and

engage their services for dispute resolution. There are some important

organizations making significant contribution in promoting ADR services in

India which need a special mention herein namely ICA and ICADR, the

Federation of Indian Chambers of Commerce and Industry, Indian Chamber

of Commerce, the Bengal Chambers of Commerce and Industry. The Indian

Council for Arbitration (ICA) established on April 15, 1965 provides

arbitration facilities for all types of domestic and international commercial

disputes and conciliation of international trade complaints received from

Indian and foreign parties, for nonperformance of contracts or

noncompliance with arbitration awards. It maintains comprehensive

international panel of arbitrators with eminent and experienced persons from

different lines of trade and professions for facilitating choice of arbitrators.

The council has launched on internet a special web site called



COMLAWNET to provide information on arbitration and commercial laws.

We need more organizations such as the ICA, ICC and FICCI that render

specialized services and promote ADR. One would agree that these

organizations have a vital role to play in resolving disputes, in particular,

commercial disputes across the globe!



FEATURES OF ADR

ADR is generally classified into at least four subtypes: negotiation,

mediation, collaborative law, and arbitration. (Sometimes a fifth type,

conciliation, is included as well, but for present purposes it can be regarded

as a form of mediation. See conciliation for further details.) The salient

features of each type are as follows:

In negotiation, participation is voluntary and there is no third party

who facilitates the resolution process or imposes a resolution.

In mediation, there is a third party, a mediator, who facilitates the

resolution process (and may even suggest a resolution, typically

known as a "mediator's proposal"), but does not impose a resolution

on the parties. In some countries (for example, the United Kingdom),

ADR is synonymous with what is generally referred to as mediation in

other countries.

In collaborative law or collaborative divorce, each party has an

attorney who facilitates the resolution process within specifically

contracted terms. The parties reach agreement with support of the

attorneys (who are trained in the process) and mutually-agreed

experts. No one imposes a resolution on the parties.

In arbitration, participation is typically voluntary, and there is a third

party who, as a private judge, imposes a resolution. Arbitrations often

occur because parties to contracts agree that any future dispute

concerning the agreement will be resolved by arbitration. This is

known as a 'Scott Avery Clause'. In recent years, the enforceability of


http://en.wikipedia.org/wiki/Arbitration

http://en.wikipedia.org/wiki/Collaborative_divorce

http://en.wikipedia.org/wiki/Collaborative_law

http://en.wikipedia.org/wiki/United_Kingdom

http://en.wikipedia.org/wiki/Mediation

http://en.wikipedia.org/wiki/Negotiation_(process)

http://en.wikipedia.org/wiki/Conciliation

http://en.wikipedia.org/wiki/Arbitration

http://en.wikipedia.org/wiki/Collaborative_law

http://en.wikipedia.org/wiki/Mediation

http://en.wikipedia.org/wiki/Negotiation_(process)


arbitration clauses, particularly in the context of consumer agreements

(e.g., credit card agreements), has drawn scrutiny from courts.

Although parties may appeal arbitration outcomes to courts, such

appeals face an exacting standard of review.

"Alternative" dispute resolution is usually considered to be alternative

to litigation. It also can be used as a colloquialism for allowing a dispute to

drop or as an alternative to violence.

ADR can increasingly be conducted online or by using technology.

This branch of dispute resolution is known as online dispute resolution

(ODR). It should be noted, however, that ODR services can be provided by

government entities, and as such may form part of the litigation process.

Moreover, they can be provided on a global scale, where no effective

domestic remedies are available to disputing parties, as in the case of the

UDRP and domain name disputes. In this respect, ODR might not satisfy the

"alternative" element of ADR.


http://en.wikipedia.org/wiki/Domain_name

http://en.wikipedia.org/wiki/UDRP

http://en.wikipedia.org/wiki/Online_dispute_resolution

http://en.wikipedia.org/wiki/Violence

http://en.wikipedia.org/wiki/Colloquialism

http://en.wikipedia.org/wiki/Litigation

http://en.wikipedia.org/wiki/Standard_of_review

http://en.wikipedia.org/wiki/Credit_card


Advantages of ADR

ADR has its own set of advantages and disadvantages when compared

to court procedures, some of the potential advantages of using ADR:

Save Time: A dispute often can be settled or decided much sooner

with ADR; often in a matter of months, even weeks, while bringing a

lawsuit to trial can take a year or more.

Save Money: When cases are resolved earlier through ADR, the

parties may save some of the money they would have spent on

attorney fees, court costs, and experts’ fees.

Increase Control over the Process and the Outcome: In ADR,

parties typically play a greater role in shaping both the process and its

outcome. In most ADR processes, parties have more opportunity to

tell their side of the story than they do at trial. Some ADR processes,

such as mediation, allow the parties to fashion creative resolutions

that are not available in a trial. Other ADR processes, such as

arbitration, allow the parties to choose an expert in a particular field to

decide the dispute.

Preserve Relationships: ADR can be a less adversarial and hostile

way to resolve a dispute. For example, an experienced mediator can

help the parties effectively communicate their needs and point of view

to the other side. This can be an important advantage where the parties

have a relationship to preserve.

Increase Satisfaction: In a trial, there is typically a winner and a

loser. The loser is not likely to be happy, and even the winner may not

be completely satisfied with the outcome. ADR can help the parties



find win-win solutions and achieve their real goals. This, along with

all of ADR’s other potential advantages, may increase the parties’

overall satisfaction with both the dispute resolution process and the

outcome.

Improve Attorney-Client Relationships: Attorneys may also

benefit from ADR by being seen as problem-solvers rather than

combatants. Quick, cost-effective, and satisfying resolutions are likely

to produce happier clients and thus generate repeat business from

clients and referrals of their friends and associates.

Flexibility with rules and procedures: The procedures may be

designed to suit the dispute, rather than follow the "one size fits all"

Rules of Court. A mediator assists the parties to negotiate their own

solution. An arbitrator is not bound by the Rules of Court, but must

allow the parties an equal and fair opportunity to present their cases,

and make a decision in accordance with the law governing the dispute.

Choice of decision maker: The parties choose their mediator or

arbitrator. It generally makes sense to appoint someone who knows

the business or has other relevant expertise. The parties can have an

experienced professional appointed by them mutually or an

autonomous body such as Indian Council of Arbitration, the

International Chambers of Commerce (ICC) etc.

Certainty and enforceability: An arbitral award is final and binding,

and enforceable as an Order of the Court.

Relationship: Mediation and Arbitration are less damaging to

business relationships than litigation in Courts. The procedures are



less adversarial, and more supportive of a continuing relationship.

Because it is quicker the dispute is finished sooner, allowing the

parties to get on with business.

Confidentiality: The process is not open to the media or any other

third parties for that matter, except by agreement.

Efficient resolution

Less emotional stress

ADR helps in clearing the bottlenecks within the domestic judicial

system.

Because of these potential advantages, it is worth considering using ADR

early in a lawsuit or even before you files a lawsuit.

Disadvantages

However, as with everything else, ADR also has disadvantages, which are as

follows:

Parties cannot be compelled to go in for ADR unless they sign an

agreement to resolve their disputes by ADR.

Success of ADR depends upon the good faith of the parties and their

attorneys; however, unrepresented and/or uninformed party are at

disadvantage of succeeding in an ADR.

ADR does not any precedent value. Usually in ADR proceedings,

precedents are not given much importance.

The outcomes of ADR can vary, depending on arbitrator / mediator

and other factors.

In ADR rules of evidence are not strictly applicable.



Poor mediator / arbitrator (qualifications, style, attitude) can result in

unsuccessful resolution, and can defeat the purpose of ADR.

IMPACT OF ADR

In a celebrated case, there was a dispute regarding copyright of a

photograph between a person who conceptualized and arranged for the

photograph shoot (the “arranger”) and the photographer who actually took

the photograph. The two went into litigation and it took years for the matter

to get resolved. His verdict was in favor of the arranger, but by then, the

photograph lost its relevance as it was taken for a specific purpose. Had this

dispute been referred to ADR, it would have been resolved much faster and

would have involved less costs and most importantly the photograph would

not have lost its relevance. For years for which the matter was in litigation,

the copyright period of the photograph was running simultaneously and this

benefit of the copyright to the author was lost. Thus, this case demonstrates

that ADR can expedite resolution of dispute and prevention of products

and/or services from losing its relevance and marketability.

ADR aims to prevent anti monopolistic activities. Lets consider an

illustration. There is dispute between a large company, which is financially

sound against a company which is financially not as sound as the large

company. It is easy for the large company to bear the rising costs of

litigation, however, it would be back breaking for the smaller company to

fight the litigation, as these litigation costs add up to its bottom line. In this

scenario, the financially stronger company tends to have an upper hand, as



it’s able to afford litigation, and more often than not, will be interested in

prolonging the case in court, so that smaller company with efflux of time

and also due to rising costs of litigation will tend to lose out. Now, once this

happens, and the smaller company can virtually be wiped out of the

market, due to the reasons aforesaid. Thus, the larger company could get

inclined towards creating a monopoly and take advantage of its financials

and the situation.

ADR can considerably solve this problem, as through ADR, the

matter will be disposed off much sooner than it would do by litigation and it

would work out to be much cheaper also.

Similarly, ADR is very effective for trans-border disputes. This is all

the more because, the parties to the dispute will belong to different laws and

in litigation it becomes difficult to decide which law will apply to resolve

the dispute. Many a times even the concept of Renvoi is not able to give a

favorable solution to such issues of law. In such cases, by way of ADR and

by using principals such as lex mercatori a favorable solution to the dispute

can be arrived at.

When disputes are in litigation, money gets locked in this process,

which has an adverse affect on the economy. Thus, in view of the aforesaid

reasoning, if disputes are referred to ADR, they will not only be resolved

faster, but at much lower costs and could prevent locking of working capital

of disputing parties. For example, I was involved in arbitration (in which the

firm I work was the Counsel for the Claimant) where stakes were high and

involved voluminous documentation. Had this dispute been referred to



litigation it would approximately 10 –15 years to get disposed off, causing

loss and hardships to Claimant. However, through arbitration it got resolved

in just over a years time and the Claimant recovered its money from the

Respondent. This way Claimants’ capital was not affected or locked, which

would have a case in litigation. This demonstrates the effectiveness of ADR

system.

Types of ADR Techniques

The Commission does not mandate the use of a particular ADR

technique in an agency's ADR program. As such, numerous ADR techniques

are available for use by agencies in their programs. The Commission

requires, however, the ADR technique must be used in a manner that is

consistent with the core principles outlined in Chapter III of the

Management Directive (MD)-110. One fundamental core principle provides

that ADR techniques must be voluntary; i.e., the parties (the complainant

and the agency) must mutually agree to participate and a binding decision

cannot be issued by a third party. In addition, the use of an ADR technique

must not diminish the complainant's rights protected under Part 1614

regulations. For example, an ADR program many not require a complainant

to waive his/her right to an investigation, hearing, or to appeal the final

decision to the Commission.

Below is a description of various ADR techniques and the agencies which

utilize them. Agencies are not limited to using only one technique in their

program; rather, they are encouraged to experiment with these techniques by

using various methods in combination to reach effective resolutions.



Mediation

Ombuds

Peer Review

Fact Finding

Early Neutral Evaluation

Settlement Conference

Facilitation

Minitrial

Conciliation

Arbitration

1. Mediation

In mediation, an impartial person called a “mediator” helps the parties try to

reach a mutually acceptable resolution of the dispute. The mediator does not

decide the dispute but helps the parties communicate so they can try to settle

the dispute themselves. Mediation leaves control of the outcome with the

parties.

Mediation is presently the most popular form of ADR in use by agencies in

employment-related disputes. Mediation is the intervention in a dispute or

negotiation of an acceptable impartial and neutral third party, who has no

decision-making authority. The objective of this intervention is to assist the

parties in reaching a mutually-acceptable resolution of the issues in dispute.

A mediator makes primarily procedural suggestions regarding how parties

can reach agreement. Occasionally, a mediator may suggest some

substantive options as a means of encouraging the parties to expand the


http://www.eeoc.gov/federal/adr/minitrial.html

http://www.eeoc.gov/federal/adr/facilitation.html

http://www.eeoc.gov/federal/adr/settlementconferences.html

http://www.eeoc.gov/federal/adr/neutralevaluation.html

http://www.eeoc.gov/federal/adr/factfinding.html

http://www.eeoc.gov/federal/adr/peerreview.html

http://www.eeoc.gov/federal/adr/ombuds.html

http://www.eeoc.gov/federal/adr/mediation.html


range of possible resolutions under consideration. A mediator often works

with the parties individually, in caucuses, to explore acceptable resolution

options or to develop proposals that might move the parties closer to

resolution.

Mediation is a process in which a neutral person (the mediator) helps people

to negotiate with each other and resolve their dispute.

Cases for Which Mediation May Be Appropriate:

Mediation may be particularly useful when parties have a relationship

they want to preserve. So when family members, neighbors, or business

partners have a dispute, mediation may be the ADR process to use.

Mediation is also effective when emotions are getting in the way of

resolution. An effective mediator can hear the parties out and help them

communicate with each other in an effective and nondestructive manner.

Cases for Which Mediation May Not Be Appropriate:

Mediation may not be effective if one of the parties is unwilling to cooperate

or compromise. Mediation also may not be effective if one of the parties has

a significant advantage in power over the other. Therefore, it may not be a

good choice if the parties have a history of abuse or victimization

How does it work?

Mediation is confidential, and can only work if everyone is prepared

to work towards a resolution

Everyone involved in the dispute comes together for a face-to-face

meeting

The mediator runs the process and the people in dispute decide what

they want to talk about

The mediator helps identify issues and possible options



The people in dispute work out a solution with the help of the

mediator

Mediators don't impose a decision

When is it used?

Mediation can be used when individuals (such as businesses, Neighbours,

family members or work colleagues) have clear conflicts with one another.

The benefits which have been identified with mediation are as follows:

Effective Process: Mediation generally enjoys an 80%-85% success

rate.

Better Results: The resolution is created by the parties and is

therefore tailored to their specific needs. This tends to result in a

lower incidence of breach of the agreement reached.

Speed: A mediation can be arranged in a relatively short period of

time and has the effect of bringing settlement negotiations "to a head"

much more quickly than negotiations directly between parties,

resulting in a faster disposition.

Cost: Time, money and emotion can be saved through early

resolution of the dispute. Furthermore, the cost of mediation can be

included with taxable costs and disbursements payable to the

successful party.

Choice of Mediator: A mediator can be chosen who has expertise in

negotiation, effective dispute resolution and in the particular areas of

dispute, which expertise may be of assistance to the parties in

resolving the dispute.



Freedom to Negotiate: Because the process is confidential and takes

place on a without prejudice basis the parties have the freedom to

develop and consider innovative settlement ideas.

2. Ombuds

Ombuds are individuals who rely on a number of techniques to resolve

disputes. These techniques include counseling, mediating, conciliating, and

fact finding. Usually, when an ombud receives a complaint, s/he interviews

the parties, reviews files, and makes recommendations to the disputants. The

Ombuds do not impose solutions. The power of the ombud lies in his/her

ability to persuade the parties to accept his/her recommendations. An

individual not accepting the proposed solution of the ombud is free to pursue

a remedy in other forums for dispute resolution

3. Peer Review

Peer Review is a problem-solving process where an employee takes a

dispute to a group or panel of fellow employees and managers for a decision.

The decision is not binding on the employee, and s/he would be able to seek

relief in traditional forums for dispute resolution if dissatisfied with the

decision. The principal objective of peer review is to resolve disputes early

before they become formal complaints.

Typically, the panel consists of employees and managers who volunteer for

this duty and who are trained in listening, questioning, and problem-solving

skills as well as the specific policies and guidelines of the panel. A peer

review panel may be a standing group of individuals who are available to

address whatever disputes employees might bring to the panel at any given



time. Other panels may be formed on an ad hoc basis through some selection

process initiated by the employee, e.g., blind selection of a certain number of

names from a pool of qualified employees and managers.

4. Fact Finding

Fact Finding is the use of an impartial expert (or group) selected by the

parties, by the agency, or by an individual with the authority to appoint a

fact finder, in order to determine what the "facts" are in a dispute. The fact

finder may be authorized only to investigate or evaluate the matter presented

and file a report establishing the facts in the matter. In some cases, s/he may

be authorized to issue either a situation assessment or a specific procedural

or substantive recommendation as to how a dispute might be resolved. If

used as an ADR technique, the findings of fact must remain confidential.

5. Early Neutral Evaluation

In neutral evaluation, each party gets a chance to present the case to a neutral

person called an “evaluator.” The evaluator then gives an opinion on the

strengths and weaknesses of each party’s evidence and arguments and about

how the dispute could be resolved. The evaluator is often an expert in the

subject matter of the dispute. Although the evaluator’s opinion is not

binding, the parties typically use it as a basis for trying to negotiate a

resolution of the dispute.

Early Neutral Evaluation uses a neutral or an impartial third party to provide

an objective evaluation, sometimes in writing, of the strengths and

weaknesses of a case. Under this method, the parties will usually make



informal presentations to the neutral party to highlight their respective cases

or positions.

Cases for Which Neutral Evaluation May Be Appropriate:

Neutral evaluation may be most appropriate in cases in which there are

technical issues that require special expertise to resolve or the only

significant issue in the case is the amount of damages.

Cases for Which Neutral Evaluation May Not Be Appropriate:

Neutral evaluation may not be appropriate when there are significant

personal or emotional barriers to resolving the dispute.

6. Settlement Conferences

Settlement conferences may be either mandatory or voluntary. In both types

of settlement conferences, the parties and their attorneys meet with a judge

or a neutral person called a “settlement officer” to discuss possible

settlement of their dispute. The judge or settlement officer does not make a

decision in the case but assists the parties in evaluating the strengths and

weaknesses of the case and in negotiating a settlement. Settlement

conferences are appropriate in any case where settlement is an option.

Mandatory settlement conferences are often held close to the date a case is

set for trial.

Settlement conferences are meetings which are typically conducted by a

settlement judge or referee to assist the parties in reaching a mutually

acceptable settlement of the disputed matter. Agencies may have their own



settlement conferences without the presence of an EEOC administrative

judge, provided the parties agree. The role of the settlement judge is similar

to that of a mediator in that the judge assists the parties procedurally in

negotiating an agreement. Some judges may provide the parties with specific

substantive and legal information about what the disposition of the case

might be if it were to go to court or hearing. The judge may also provide the

parties with possible settlement ranges for their consideration.

7. Facilitation

Facilitation involves the use of techniques to improve the flow of

information in a meeting between parties to a dispute. The term facilitator is

often used interchangeably with the term mediator, but a facilitator does not

typically become as involved in the substantives issues as does a mediator.

The facilitator focuses more on the process involved in resolving a matter.

The facilitator generally works with all of the participants at once and

provides procedural directions as to how the group can efficiently move

through the problem-solving steps of the meeting and arrive at the jointly

agreed upon goal. The facilitator focuses on procedural assistance and

remains impartial to the topics under discussion.

How does it work?

Everyone involved comes to one, or several meetings, run by the

facilitator

The facilitator helps to identify problems to be solved and tasks to be

accomplished

Facilitators don't impose a decision



The people at the meeting make a group decision on actions and

outcomes

When is it used?

Facilitation can be used to avoid a dispute by providing a forum for different

points of view to be discussed. It can be used for complex planning and

environmental matters.

It can also be used where people are having difficulty working together, e.g.

in:

Clubs

Body corporates

Workplace & Community organizations.

8. Minitrials

Minitrials involve a structured settlement process in which both parties

present abbreviated summaries of their case before the other party and/or

their representatives who have authority to settle the dispute. The summaries

contain explicit data about the legal bases and the merits of the case. The

process generally follows more relaxed rules for discovery and case

presentation than might be found in a court, and the parties usually agree on

specific limited periods of time for presentations and arguments.

9 Conciliation

Conciliation is a process in which the people in dispute try to reach an

agreement with the assistance and advice of an impartial person (the

conciliator). The conciliator usually has some experience of the subject of



the dispute and can advise the parties what their rights and obligations are.

Discussions are confined to the subject matter of the dispute.

How does it work?

Conciliation can only work if both parties are prepared to work

towards a resolution

It is confidential

The conciliator may advise on how the conciliation process should

take place

They can often advise on what people's legal rights and

responsibilities are and what a reasonable outcome might be

They may then act as a 'go-between' by talking to each person

separately and relaying offers or proposals between them

Ultimately the outcome is up to the individuals involved. The

conciliator does not impose a decision

When is it used?

Conciliation can use for disputes where you need to uphold your rights, or

need advice on what your rights and responsibilities are, e.g.:

Work cover

Equal Opportunity

Consumer disputes

10. Negotiation

Negotiation is an informal bargaining process. It takes place directly

between the people in dispute, but can be assisted by others e.g. lawyers,

advocates.



How does it work?

The people involved in the dispute communicate directly to try and reach an

agreement. Communication may be written or spoken and may take some

time. Effective negotiators know that it is hard to reach an agreement unless

everyone feels they get some benefit (a 'win-win' situation).

When is it used?

Negotiation is a good first step for almost any type of dispute, including

family, neighbourhood, commercial, and consumer disputes. If negotiation

fails, you might benefit from other more formal types of ADR.

11. Arbitration

In arbitration, a neutral person called an “arbitrator” hears arguments and

evidence from each side and then decides the outcome of the dispute.

Arbitration is less formal than a trial, and the rules of evidence are often

relaxed.

Arbitration may be either “binding” or “nonbinding.” Binding arbitration

means that the parties waive their right to a trial and agree to accept the

arbitrator’s decision as final. Generally, there is no right to appeal an

arbitrator’s decision. Nonbinding arbitration means that the parties are free

to request a trial if they do not accept the arbitrator’s decision.

“An Arbitration is a reference to the decision of one or more persons

of a particular matter in difference between the parties”. Arbitration is a



simplified version of a trial involving no discovery and simplified rules of

evidence. Either both sides agree on one arbitrator, or each side selects one

arbitrator and the two arbitrators elect the third to comprise a panel.

Arbitration hearings usually last only a few hours or a few sessions and the

opinions are not public record. Arbitration has long been used in

construction, commercial recovery cases, insurance matters, employment

contracts, securities regulation and so on, but is now gaining popularity in

other business disputes.

In the Indian context, the Arbitration and Conciliation Act, 1996 (the

“Act”) was a natural outgrowth of the process of economic liberalization that

began in 1991. Foreign investment and trade grew rapidly during the early

1990’s as a result of the economic reform process. But it soon became clear

that the Indian Arbitration Act, 1940 did not provide a speedy, effective and

transparent mechanism to address disputes arising out of foreign trade and

investment transactions. Infact, the Code of Civil Procedure, 1908 (amended

in 2002) has laid down that cases must be encouraged to go in for ADR so as

to lessen the burden of the courts.

In the 1940 Act, there was no provision for enforcement of Foreign

Awards and one had to rely upon the Foreign Awards (Recognition and

Enforcement) Act, 1961. Furthermore, there was vast scope for judicial

intervention in the 1940 Act, which was an impediment for ADR. In order to

remedy such disabilities in the 1940 Act, the Act of 1996 was enacted,

which aims to minimize judicial intervention and also has provisions for

enforcement of foreign awards. The Act is in keeping with the provisions of

the Geneva Convention and the New York Convention. India being a

signatory to both the conventions, has to safe guard the interests of other



member and signatory nations, else its interests would be jeopardized in

other member states.

Further, it is interesting to note that almost any type of civil dispute can

be settled by ADR. Some of the most common types of disputes that can be

arbitrated (or resolved through any other method of ADR) are:

Property

Insurance

Contract (including employment contracts)

Business / partnership disputes

Family disputes

Construction

Commercial recoveries

However, in India, cases involving insolvency, matrimony, criminal

matters, torts etc.,1[13] cannot be arbitrated and / or resolved by means of

ADR.

Cases for Which Arbitration May Be Appropriate:

Arbitration is best for cases where the parties want another person to decide

the outcome of their dispute for them but would like to avoid the formality,

time, and expense of a trial. It may also be appropriate for complex matters

1



where the parties want a decision-maker who has training or experience in

the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate:

If parties want to retain control over how their dispute is resolved,

arbitration, particularly binding arbitration, is not appropriate. In binding

arbitration, the parties generally cannot appeal the arbitrator’s award, even if

it is not supported by the evidence or the law. Even in nonbinding

arbitration, if a party requests a trial and does not receive a more favorable

result at trial than in arbitration, there may be penalties.



As we have seen the different technique of adr. Let us see the most

important adr technique which is used worldwide. Those are mediation &

arbitration which are discussed in detail below:-

MEDIATION

Purpose

Case Selection/Objection

Listing of Mediators: Commission Registry of mediators

Selection of Mediators

Qualifications of Mediators

Mediation Costs

Mediation Procedure

Rules of Evidence

Discovery

Sanctions

Confidentiality

Purpose

Mediation under this section involves the confidential process by which a

neutral, acting as a mediator, selected by the parties or appointed by the

court, assists the litigants in reaching a mutually acceptable agreement. The

role of the mediator is to assist in identifying the issues, reducing



misunderstanding, clarifying priorities, exploring areas of compromise, and

finding points of agreement as well as legitimate points of disagreement.

Any agreement reached by the parties is to be based on the autonomous

decisions of the parties and not the decisions of the mediator. It is

anticipated that an agreement may not resolve all of the disputed issues, but

the process can reduce points of contention. Parties and their representatives

are required to mediate in good faith, but are not compelled to reach an

agreement.

Case Selection/Objection

At any time fifteen (15) days or more after the period allowed for

peremptory change of judge under Trial Rule 76(B) has expired, a court may

on its own motion or upon motion of any party refer a civil or domestic

relations case to mediation. After a motion referring a case to mediation is

granted, a party may object by filing a written objection within seven (7)

days in a domestic relations case or fifteen (15) days in a civil case. The

party must specify the grounds for objection. The court shall promptly

consider the objection and any response and determine whether the litigation

should then be mediated or not. In this decision, the court shall consider the

willingness of the parties to mutually resolve their dispute, the ability of the

parties to participate in the mediation process, the need for discovery and the

extent to which it has been conducted, and any other factors which affect the

potential for fair resolution of the dispute through the mediation process. If a

case is ordered for mediation, the case shall remain on the court docket and

the trial calendar.



Listing of Mediators: Commission Registry of Mediators

Any person who wishes to serve as a registered mediator pursuant to these

rules must register with the Indiana Supreme Court Commission for

Continuing Legal Education (hereinafter "Commission") on forms supplied

by the Commission. The registrants must meet qualifications as required in

counties or court districts (as set out in Ind. Administrative Rule 3(A)) in

which they desire to mediate and identify the types of litigation which they

desire to mediate. Two or more persons individually who are qualified under

A.D.R. Rule 2.5 may register as a mediation team. All professional licenses

must be disclosed and identified in the form which the Commission requires.

The registration form shall be accompanied by a fee of $50.00. An annual

fee of $50.00 shall be due the second June 30th following initial registration.

Registered mediators will be billed at the time their annual statements are

sent. No fee shall be required of a full-time, sitting judge.

The Commission shall maintain a list of registered mediators including the

following information:

(1) Whether the person qualified under A.D.R. Rule 2.5 to mediate

domestic relations and/or civil cases;

(2) The counties or court districts in which the person desires to mediate;

(3) The type of litigation the person desires to mediate; and

(4) Whether the person is a full-time judge.

The Commission may remove a registered mediator from its registry for

failure to meet or to maintain the requirements of A.D.R. Rule 2.5 for non-

payment of fees. A registered mediator must maintain a current business and

residential address and telephone number with the Commission. Failure to



maintain current information required by these rules may result in removal

from the registry.

On or before May 31 of each year, each registered mediator will be sent an

annual statement showing the mediator's educational activities that have

been approved for mediator credit by the Commission.

Selection of Mediators

Upon an order referring a case to mediation, the parties may within seven

7 days in a domestic relations case or within fifteen 15 days in a civil

case:

(1) Choose a mediator from the Commission's registry, or

(2) Agree upon a non-registered mediator, who must be approved by the

trial court and who serves with leave of court. In the event a mediator is not

selected by agreement, the court will designate three

(3) Registered mediators from the Commission's registry who are willing to

mediate within the Court's district as set out in Admin. R. 3 (A). Alternately,

each side shall strike the name of one mediator. The side initiating the

lawsuit will strike first. The mediator remaining after the striking process

will be deemed the selected mediator.

A person selected to serve as a mediator under this rule may choose not to

serve for any reason. At any time, a party may request the court to replace

the mediator for good cause shown. In the event a mediator chooses not to

serve or the court decides to replace a mediator, the selection process will be

repeated.



Qualifications of Mediators

(A) Civil Cases: Educational Qualifications.

(1) Subject to approval by the court in which the case is pending, the

parties may agree upon any person to serve as a mediator.

(2) In civil cases, a registered mediator must be an attorney in good

standing with the Supreme Court of Indiana.

(3) To register as a civil mediator, a person must meet all the

requirements of this rule and must have either: (1) taken at least forty

(40) hours of Commission approved civil mediation training in the three

(3) years immediately prior to submission of the registration application,

or (2) completed forty (40) hours of Commission approved civil

mediation training at any time and taken at least six (6) hours of

approved Continuing Mediation Education in the three (3) years

immediately prior to submission of the registration application.

(4) However, a person who has met the requirements of A.D.R. Rule

2.5(B)(2)(a), is registered as a domestic relations mediator, and by

December 31 of the second full year after meeting those requirements

completes a Commission approved civil crossover mediation training

program may register as a civil mediator.



(5) As part of the judge’s judicial service, a judge may serve as a

mediator in a case pending before another judicial officer.

(B) Domestic Relations Cases: Educational Qualifications.

(1) Subject to approval of the court, in which the case is pending, the

parties may agree upon any person to serve as a mediator.

(2) In domestic relations cases, a registered mediator must be either:

(a) an attorney, in good standing with the Supreme Court of Indiana; (b) a

person who has a bachelor's degree or advanced degree from an

accredited institution of higher learning. Notwithstanding the provisions

of (2)(a) and (b) above, any licensed professional whose professional

license is currently suspended or revoked by the respective licensing

agency, or has been relinquished voluntarily while a disciplinary action is

pending, shall not be a registered mediator.

(3) To register as a domestic relations mediator, a person must meet all

the requirements of this rule and must have either: (1) taken at least forty

hours of Commission approved domestic relations mediation training in

the three (3) years immediately prior to submission of the registration

application, or (2) taken at least forty (40) hours of Commission

approved domestic relations mediation training at any time, and taken at

least six (6) hours of approved Continuing Mediation Education in the



three (3) years immediately prior to submission of the registration

application.

(4) However, if a person is registered as a civil mediator and by

December 31 of the second full year after meeting those requirements

completes a Commission approved domestic relations crossover

mediation training program (s) he may register as a domestic relations

mediator.

(5) As part of the judge’s judicial service, a judge may serve as a

mediator in a case pending before another judicial officer.

(C) Continuing Mediation Education (“CME”) Requirements for All

Registered Mediators. A registered mediator must complete a minimum of

six hours of Commission approved continuing mediation education anytime

during a three-year educational period. A mediator’s initial educational

period commences January 1 of the first full year of registration and ends

December 31 of the third full year. Educational periods shall be sequential,

in that once a mediator’s particular three-year period terminates, a new

three-year period and six hour minimum shall commence.

(1) Mediators registered before the effective date of this rule shall begin

their first three-year educational period January 1, 2004.

(2) Attorney mediators may petition the Commission to align their three-

year mediator educational period with their three-year continuing legal

education educational period. During the period of realignment, attorney

mediators must report a prorated number of continuing mediation hours.



(D) Basic Continuing Mediation Education Reporting Requirements.

Within thirty (30) days of presenting a Commission approved basic or

continuing mediation education training course, the sponsor of that course

must forward a list of attendees to the Commission. This list shall include

for each attendee: full name; attorney number (if applicable); residence and

business addresses and phone numbers; and the number of mediation hours

attended. A course approved for CME may also qualify for CLE credit, so

long as the course meets the requirements of Admission and Discipline Rule

29. For courses approved for both continuing legal education and continuing

mediation education, the sponsor must additionally report continuing legal

education, speaking and professional responsibility hours attended.

(E) Accreditation Policies and Procedures for CME.

(1) Approval of courses. The Commission shall approve the course,

including law school classes, if it determines that the course will make a

significant contribution to the professional competency of mediators who

attend. In determining if a course, including law school classes, meets

this standard the Commission shall consider whether:

(a) the course has substantial content dealing with alternative dispute

resolution process;

(b) the course deals with matters related directly to the practice of

alternative dispute resolution and the professional responsibilities of

neutrals;

(c) the course deals with reinforcing and enhancing alternative

dispute resolution and negotiation concepts and skills of neutrals;



(d) the course teaches ethical issues associated with the practice of

alternative dispute resolution;

(e) the course deals with other professional matters related to

alternative dispute resolution and the relationship and application of

alternative dispute resolution principles;

(f) the course deals with the application of alternative dispute

resolution skills to conflicts or issues that arise in settings other than

litigation, such as workplace, business, commercial transactions,

securities, intergovernmental, administrative, public policy, family,

guardianship and environmental; and,

(g) In the case of law school classes, in addition to the standard set

forth above the class must be a regularly conducted class at a law

school accredited by the American Bar Association.

(2) Credit will be denied for the following activities:

(a) Legislative, lobbying or other law-making activities.

(b) In-house program. The Commission shall not approve programs

which it determines are primarily designed for the exclusive benefit of

mediators employed by a private organization or mediation firm.

Mediators within related companies will be considered to be

employed by the same organization or law firm for purposes of this

rule. However, governmental entities may sponsor programs for the

exclusive benefit of their mediator employees.

(c) Programs delivered by these methods: satellite, microwave, video,

computer, internet, telephone or other electronic methods. To be



approved courses must provide a discussion leader or two-way

communication, classroom setting away from the mediator’s offices,

opportunity to ask questions, and must monitor attendance.

(d) Courses or activities completed by self-study.

(e) Programs directed to elementary, high school or college student level

neutrals.

(3) Procedures for Sponsors. Any sponsor may apply to the Commission for

approval of a course. The application must:

(a) Be submitted to the Commission at least thirty (30) days before the

first date on which the course is to be offered;

(b)Contain the information required by and be in the form approved by

the Commission and available upon request or at the Commission’s

web site: www.in.gov/judiciary/cle; and

(c) Be accompanied by the written course outline and brochure used to

furnish information about the course to mediators.

(4) Procedure for Mediators. A mediator may apply for credit of a course

either before or after the date on which it is offered. The application

must:

(a) Contain the information required by and be in the form approved by

the Commission and available upon request or at the Commission’s

web site: www.in.gov/judiciary/cle;

(b) Be accompanied by the written course outline and brochure used to

furnish information about the course to mediators; and,

(c) Be accompanied by an affidavit of the mediator attesting that the

mediator attended the course together with a certification of the course

Sponsor as to the mediator’s attendance. If the application for course



approval is made before attendance, this affidavit and certification

requirement shall be fulfilled within thirty (30) days after course

attendance.

(F) Procedure for Resolving Disputes. Any person who disagrees with a

decision of the Commission and is unable to resolve the disagreement

informally, may petition the Commission for a resolution of the dispute.

Petitions pursuant to this Section shall be considered by the Commission at

its next regular meeting, provided that the petition is received by the

Commission at least ten (10) business days before such meeting. The person

filing the petition shall have the right to attend the Commission meeting at

which the petition is considered and to present relevant evidence and

arguments to the Commission. The rules of pleading and practice in civil

cases shall not apply, and the proceedings shall be informal as directed by

the Chair. The determination of the Commission shall be final subject to

appeal directly to the Supreme Court.

(G) Confidentiality. Filings with the Commission shall be confidential.

These filings shall not be disclosed except in furtherance of the duties of the

Commission or upon the request, by the mediator involved, or as directed by

the Supreme Court.

(H) Rules for Determining Education Completed.

(1) Formula. The number of hours of continuing mediation education

completed in any course by a mediator shall be computed by:



(a) Determining the total instruction time expressed in minutes;

(b) Dividing the total instruction time by sixty (60); and

(c) Rounding the quotient up to the nearest one-tenth (1/10).

(2) Instruction Time Defined Instruction time is the amount of time when a

course is in session and presentations or other educational activities are in

progress. Instruction time does not include time spent on:

(a) Introductory remarks;

(b) Breaks; or

(c) Business meetings

(3) A registered mediator who participates as a teacher, lecturer, panelist or

author in an approved continuing mediation education course will receive

credit for:

(a) Four (4) hours of approved continuing mediation education for every

hour spent in presentation.

(b) One (1) hour of approved continuing mediation education for every

four (4) hours of preparation time for a contributing author who does

not make a presentation relating to the materials prepared.

(c) One (1) hour of approved continuing mediation education for every

hour the mediator spends in attendance at sessions of a course other

than those in which the mediator participates as a teacher, lecturer or

panel member.

(d) Mediators will not receive credit for acting as a speaker, lecturer or

panelist on a program directed to elementary, high school or college



student level neutrals, or for a program that is not approved under

Alternative Dispute Resolution Rule.

Mediation Costs

Absent an agreement by the parties, including any guardian ad litem, court

appointed special advocate, or other person properly appointed by the court

to represent the interests of any child involved in a domestic relations case,

the court shall set an hourly rate for mediation and determine the division of

such costs by the parties. The costs should be predicated on the complexity

of the litigation, the skill levels needed to mediate the litigation, and the

litigants' ability to pay. The mediation costs shall be paid within thirty (30)

days after the close of each mediation session.

Mediation Procedure

(A) Advisement of Participants. The mediator shall:

(1) Advise the parties of all persons whose presence at mediation

might facilitate settlement; and

(2) In child related matters, ensure that the parties consider fully the

best interests of the children and that the parties understand the

consequences of any decision they reach concerning the children.

(B) Mediation Conferences.

(1) The parties and their attorneys shall be present at all mediation

sessions involving domestic relations proceedings unless otherwise

agreed. At the discretion of the mediator, non-parties to the dispute

may also be present.



(2) All parties, attorneys with settlement authority, representatives

with settlement authority, and other necessary individuals shall be

present at each mediation conference to facilitate settlement of a

dispute unless excused by the court.

(3) A child involved in a domestic relations proceeding, by agreement

of the parties or by order of the court, may be interviewed by the

mediator out of the presence of the parties or attorneys.

(4) Mediation sessions are not open to the public.

(C) Confidential Statement of Case

Each side may submit to the mediator a confidential statement of the case

not to exceed ten (10) pages, prior to a mediation conference, which shall

include:

(1) The legal and factual contentions of the respective parties as to

both liability and damages;

(2) The factors considered in arriving at the current settlement

posture; and

(3) The status of the settlement negotiations to date.

A confidential statement of the case may be supplemented by damage

brochures, videos, and other exhibits or evidence. The confidential

statement of the case shall at all times be held privileged and confidential

from other parties unless agreement to the contrary is provided to the

mediator. In the mediation process, the mediator may meet jointly or

separately with the parties and may express an evaluation of the case to one

or more of the parties or their representatives. This evaluation may be

expressed in the form of settlement ranges rather than exact amounts.



(D) Termination of Mediation The mediator shall terminate mediation

whenever the mediator believes that continuation of the process would harm

or prejudice one or more of the parties or the children or whenever the

ability or willingness of any party to participate meaningfully in mediation is

so lacking that a reasonable agreement is unlikely. At any time after two (2)

sessions have been completed, any party may terminate mediation. The

mediator shall not state the reason for termination except when the

termination is due to conflict of interest or bias on the part of the mediator,

in which case another mediator may be assigned by the court. According to

the procedures set forth herein, if the court finds after hearing that an

agreement has been breached, sanctions may be imposed by the court.

(E) Report of Mediation: Status.

(1) Within ten (10) days after the mediation, the mediator shall submit

to the court, without comment or recommendation, a report of

mediation status. The report shall indicate that an agreement was or

was not reached in whole or in part or that the mediation was

extended by the parties. If the parties do not reach any agreement as to

any matter as a result of the mediation, the mediator shall report the

lack of any agreement to the court without comment or

recommendation. With the consent of the parties, the mediator's report

may also identify any pending motions or outstanding legal issues,

discovery process, or other action by any party which, if resolved or

completed, would facilitate the possibility of a settlement.

(2) If an agreement is reached, in whole or in part, it shall be reduced

to writing and signed by the parties and their counsel. In domestic

relations matters, the agreement shall then be filed with the court. If



the agreement is complete on all issues, a joint stipulation of

disposition shall be filed with the court. In all other matters, the

agreement shall be filed with the court only by agreement of the

parties.

(3) In the event of any breach or failure to perform under the

agreement, upon motion, and after hearing, the court may impose

sanctions, including entry of judgment on the agreement.

Rules of Evidence

With the exception of privileged communications, the rules of evidence do

not apply in mediation, but factual information having a bearing on the

question of damages should be supported by documentary evidence

whenever possible.

Discovery

Whenever possible, parties are encouraged to limit discovery to the

development of information necessary to facilitate the mediation process.

Upon stipulation by the parties or as ordered by the court, discovery may be

deferred during mediation pursuant to Indiana Rules of Procedure, Trial

Rule 26(C).

Sanctions

Upon motion by either party and hearing, the court may impose sanctions

against any attorney, or party representative who fails to comply with these

mediation rules, limited to assessment of mediation costs and/or attorney

fees relevant to the process.



Confidentiality

Mediation shall be regarded as settlement negotiations as governed by

Ind.Evidence Rule 408. For purposes of reference, Evid.R. 408 provides as

follows:

Rule 408. Compromise and Offers to Compromise

Evidence of (1) furnishing or offering or promising to furnish, or (2)

accepting or offering or promising to accept a valuable consideration in

compromising or attempting to compromise a claim, which was disputed

as to either validity or amount, is not admissible to prove liability for or

invalidity of the claim or its amount. Evidence of conduct or statements

made in compromise negotiations is likewise not admissible. This rule

does not require exclusion when the evidence is offered for another

purpose, such as proving bias or prejudice of a witness, negating a

contention of undue delay, or proving an effort to obstruct a criminal

investigation or prosecution. Compromise negotiations encompass

alternative dispute resolution.

Mediation sessions shall be closed to all persons other than the parties

of record, their legal representatives, and other invited persons.

Mediators shall not be subject to process requiring the disclosure of

any matter discussed during the mediation, but rather, such matter

shall be considered confidential and privileged in nature. The

confidentiality requirement may not be waived by the parties, and an

objection to the obtaining of testimony or physical evidence from

mediation may be made by any party or by the mediators.



ARBITRATION

Agreement to Arbitrate

Case Status During Arbitration

Assignment of Arbitrators

Arbitration Procedure

Sanctions

Agreement to Arbitrate

At any time fifteen (15) days or more after the period allowed for a

peremptory change of venue under Trial Rule 76(B) has expired, the parties

may file with the court an agreement to arbitrate wherein they stipulate

whether arbitration is to be binding or non-binding, whether the agreement

extends to all of the case or is limited as to the issues subject to arbitration,

and the procedural rules to be followed during the arbitration process. Upon

approval, the agreement to arbitrate shall be noted on the Chronological

Case Summary of the Case and placed in the Record of Judgments and

Orders for the court.

Case Status during Arbitration

During arbitration, the case shall remain on the regular docket and trial

calendar of the court. In the event the parties agree to be bound by the

arbitration decision on all issues, the case shall be removed from the trial



calendar. During arbitration the court shall remain available to rule and

assist in any discovery or pre-arbitration matters or motions.

Assignment of Arbitrators

Each court shall maintain a listing of lawyers engaged in the practice of law

in the State of Indiana who are willing to serve as arbitrators. Upon

assignment of a case to arbitration, the plaintiff and the defendant shall,

pursuant to their stipulation, select one or more arbitrators from the court

listing or the listing of another court in the state. If the parties agree that the

case should be presented to one arbitrator and the parties do not agree on the

arbitrator, then the court shall designate three (3) arbitrators for alternate

striking by each side. The party initiating the lawsuit shall strike first. If the

parties agree to an arbitration panel, it shall be limited to three (3) persons.

If the parties fail to agree on who should serve as members of the panel, then

each side shall select one arbitrator and the court shall select a third. When

there is more than one arbitrator, the arbitrators shall select among

themselves a Chair of the arbitration panel. Unless otherwise agreed between

the parties, and the arbitrators selected under this provision, the Court shall

set the rate of compensation for the arbitrator. Costs of arbitration are to be

divided equally between the parties and paid within thirty (30) days after the

arbitration evaluation, regardless of the outcome. Any arbitrator selected

may refuse to serve without showing cause for such refusal.



Arbitration Procedure

(A) Notice of Hearing. Upon accepting the appointment to serve, the

arbitrator or the Chair of an arbitration panel shall meet with all attorneys of

record to set a time and place for an arbitration hearing. (Courts are

encouraged to provide the use of facilities on a regular basis during times

when use is not anticipated, i.e. jury deliberation room every Friday

morning.)

(B) Submission of Materials. Unless otherwise agreed, all documents the

parties desire to be considered in the arbitration process shall be filed with

the arbitrator or Chair and exchanged among all attorneys of record no later

than fifteen (15) days prior to any hearing relating to the matters set forth in

the submission. Documents may include medical records, bills, records,

photographs, and other material supporting the claim of a party. In the event

of binding arbitration, any party may object to the admissibility of these

documentary matters under traditional rules of evidence; however, the

parties are encouraged to waive such objections and, unless objection is filed

at least five (5) days prior to hearing, objections shall be deemed waived. In

addition, no later than five (5) days prior to hearing, each party may file with

the arbitrator or Chair a pre-arbitration brief setting forth factual and legal

positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall

be served upon the opposing party or parties. The parties may in their

Arbitration Agreement alter the filing deadlines. They are encouraged to use

the provisions of Indiana's Arbitration Act (IC 34-57-1-1 et seq.) and the

Uniform Arbitration Act (IC 34-57-2-1 et seq.) to the extent possible and

appropriate under the circumstances.

(C) Discovery. Rules of discovery shall apply. Thirty (30) days before an

arbitration hearing, each party shall file a listing of witnesses and



documentary evidence to be considered. The listing of witnesses and

documentary evidence shall be binding upon the parties for purposes of the

arbitration hearing only. The listing of witnesses shall designate those to be

called in person, by deposition and/or by written report.

(D) Hearing. Traditional rules of evidence need not apply with regard to the

presentation of testimony. As permitted by the arbitrator or arbitrators,

witnesses may be called. Attorneys may make oral presentation of the facts

supporting a party's position and arbitrators are permitted to engage in

critical questioning or dialogue with representatives of the parties. In this

presentation, the representatives of the respective parties must be able to

substantiate their statements or representations to the arbitrator or arbitrators

as required by the Rules of Professional Conduct. The parties may be

permitted to demonstrate scars, disfigurement, or other evidence of physical

disability. Arbitration proceedings shall not be open to the public.

(E) Confidentiality. Arbitration proceedings shall be considered as

settlement negotiations as governed by Ind.Evidence Rule 408. For purposes

of reference, Evid.R. 408 provides as follows:

Rule 408. Compromise and Offers to Compromise

Evidence of (1) furnishing or offering or promising to furnish, or (2)

accepting or offering or promising to accept a valuable consideration in

compromising or attempting to compromise a claim, which was disputed

as to either validity or amount, is not admissible to prove liability for or

invalidity of the claim or its amount. Evidence of conduct or statements

made in compromise negotiations is likewise not admissible. This rule

does not require exclusion when the evidence is offered for another



purpose, such as proving bias or prejudice of a witness, negating a

contention of undue delay, or proving an effort to obstruct a criminal

investigation or prosecution. Compromise negotiations encompass

alternative dispute resolution.

(F) Arbitration Determination. Within twenty (20) days after the hearing,

the arbitrator or Chair shall file a written determination of the arbitration

proceeding in the pending litigation and serve a copy of this determination

on all parties participating in the arbitration. If the parties had submitted this

matter to binding arbitration on all issues, the court shall enter judgment on

the determination. If the parties had submitted this matter to binding

arbitration on fewer than all issues, the court shall accept the determination

as a joint stipulation by the parties and proceed with the litigation. If the

parties had submitted the matter to nonbinding arbitration on any or all

issues, they shall have twenty (20) days from the filing of the written

determination to affirmatively reject in writing the arbitration determination.

If a nonbinding arbitration determination is not rejected, the determination

shall be entered as the judgment or accepted as a joint stipulation as

appropriate. In the event a nonbinding arbitration determination is rejected,

all documentary evidence will be returned to the parties and the

determination and all acceptances and rejections shall be sealed and placed

in the case file.

Sanctions

Upon motion by both party and hearing, the court may impose sanctions

against any party or attorney who fails to comply with the arbitration rules,



limited to the assessment of arbitration costs and/or attorney fees relevant to

the arbitration process.

ADR Procedures

ADR procedures can be broadly divided into two categories namely,

adjudicatory and non adjudicatory. The adjudicatory procedures such as

arbitration and binding expert determination lead to a binding ruling that

decides the case. The non-adjudicatory procedures contribute to resolution

of disputes by agreement of the parties without adjudication such as

Negotiation, Mediation and Conciliation. Mediation is different from

Conciliation only in that in the former the neutral third party plays a more

active role in putting forward his own suggestions for the settlement of the

dispute. A brief description of few ADR procedures widely used is as

follows:

Negotiation : A non-binding procedure in which discussions between the

parties are initiated without the intervention of any third party with the

object of arriving at a negotiated settlement of the dispute.

Conciliation Mediation: A non-binding procedure in which an impartial

third party, the conciliator/mediator, assists the parties to a dispute in

reaching a mutually satisfactory and agreed settlement of the dispute.

Med-Arb: A procedure which combines sequentially conciliation/Mediation

and where the dispute is not settled through conciliation/mediation within a

period of time agreed in advance by the parties, arbitration.



MEDOLA : A procedure in which if the parties fail to reach an agreement

through mediation, a neutral person, who may be the original mediator or an

arbitrator, will select between the final negotiated offers of parties such

selection being binding on the parties.

Mini-Trial : A non binding procedure in which the disputing parties are

presented with summaries of their cases to enable them to assess the

strengths, weaknesses, and prospects of their case and then an opportunity to

negotiate a settlement with the assistance of a neutral adviser.

Arbitration: A procedure in which the dispute is submitted to an arbitral

tribunal which makes a decision (an `award') on the dispute that is binding

on the parties.

Fast track Arbitration: A form of arbitration in which the arbitration

procedure is rendered in a particularly short time and at reduced cost.

Neutral listener Agreement: Parties to a dispute discuss their respective best

settlement offer in confidence with a neutral third party who, after his own

evaluation, suggests settlements to assist the parties to attempt a negotiated

settlement.

Rent a judge: Disputing parties mutually approach a referee, usually a

retired judge, before whom they present their case in informal proceedings.

The referee judge gives his decision which is enforceable in a court of law.

The fee of the referee is paid by the parties.

Final offer arbitration: Each party submits its monetary claim before a

panel that renders its decision by awarding one and rejecting the other claim.



Key Elements to Implementing a Successful ADR Program

1. Review the Administrative Dispute Resolution Act of 1996 and the

Presidential Memorandum of May 1, 1998, for legislative and

executive guidance.

2. Learn as much as possible about existing federal ADR program

structures to avoid unnecessary duplication of effort in creating your

agency's program.

3. Visit the Working Group's ADR website at http://www.adr.gov/ to

obtain useful ADR documents, get recent updates on federal ADR

developments, and participate in newsgroup discussions with ADR

experts in other federal offices.

4. Ensure that your agency makes a long-term commitment by senior

leadership to the establishment of an ADR program, pursuant to the

Presidential Memorandum.

5. If your agency does not yet have a policy statement on the use of

ADR, encourage your agency leadership to adopt the ADR

Declaration of Policy prepared by the Working Group which is

provided on the Working Group's website.


http://www.adr.gov/


6. Secure the financial resources, dedicated staffing, and expertise

necessary to establish and operate a federal ADR program. This

includes a support structure to match agency ADR needs with

appropriate agency or private-sector ADR resources.

7. If your agency has not yet done so, appoint a Dispute Resolution

Specialist as required by the 1996 Act, so that there will be a clear

point of contact for those wishing to use the agency's ADR program.

8. Ensure that appropriate agency personnel receive ADR education and

skills training which can encompass both the theory and practice of

negotiation, mediation, and related ADR techniques for both program

managers and the agency's counsel.

9. Review the agency's standard agreements, contracts, grants, and other

documents to determine whether to amend such standard agreements

to authorize and encourage the use of ADR if disputes arise.

Create a system to track ADR use and "lessons learned" to ensure continued

progress toward the goals identified in establishing the ADR program.



CONCLUSION

The practical implementation of amicable settlements has produced

good results. Many cases have actually been solved through ADR. There is

no doubt that mediation and arbitration are the quickest and possibly the

most reliable ways for resolving commercial disputes, especially those

relating to international trade, involving technological disputes, commercial

recoveries and so on. I also believe that a partial waiver of a party’s rights or

interests in any settlement process is generally better for the party than

litigation before a court of law regardless of the possibility of winning the

case through court.

ADR has an impact on economy and commerce, which in turn affects

individuals as, wells as corporate entities. Thus, options to litigation should

be considered as part of a company’s policy. Arbitration and mediation as

alternatives to litigation make good business sense and that the inclusion of

arbitration and mediation clauses in their contracts will help to ensure that

disputes will be dealt with in a timely and cost effective way.

It would not be out of place to discuss, briefly, the importance of

dispute management, which is the need of the hour. If companies take more

efforts for using more precisely drafted contracts, take better measures to

ensure that their relationship and reputation are not harmed and all possible

disputes are resolved well in time, may be across the table, then not only will

ADR succeed in its objective, but also the corporates will benefit as it will



reduce litigation costs, it will save time from that litigation and will also help

in preserving relationships.

As is said in the practical philosophy of law that lawyers are what their cases

have made them, so goes the addendum that a legal system is venerated as it

has been handled and managed in course of time. Then only a legacy is left

for the future to find it sufficiently germane to be accepted as a proposition

of inheritance. The law and legal system should appeal the reasons of

people, is not a legal principle but a common sense observation of fact. It is

this spirit that has led to the evolution of ADR Mechanisms for the

dispensation of justice with efficacy and steadfastness!


