What is ADR? Difference between Negotiation and Mediation

Article by - Trishla Garg(This article was written by her during tenure of her Internship as Legal Soch Foundation)

Abstract

This article revolves around the meaning of Alternative Dispute Resolution and various types of the methods such as mediation, negotiation, and conciliation. The concept of ADR has been introduced with the arising need for solving the inefficiencies and inconveniences faced by the people whose justice is delayed in court or who are unable to afford a lawyer.

(i)With the advent of technology, alternative dispute resolution can also be used as online dispute resolution which has helped it to connect with various people across the world and to solve their disputes as well.

Introduction

What is Alternative Dispute Resolution?

The concept of alternative dispute resolution has been linked with the concept of resolution of the disputes arising between the parties. This concept enables them to settle the disputes without going to court and helps them to negotiate or be resolute by using minimal fees. The concept of alternative dispute resolution was stated in the 22nd report of the law commission of India, which promises justice and dignity to all through article 39A. Article 39 A focuses on the idea of equality and justice for all the citizens of the country.

What is the need for the Arbitrator?

Most people due to their inefficiencies and economic problems of illiteracy, ignorance, and social or political backwardness are unable to approach the court or hire lawyers thereby, are being introduced to the opportunities of the ADR. The ADR came into practice because the supreme court had a lot of pending cases and people could do justice within a short span of time.

(ii) Advantages and Disadvantages of ADR

Advantages of ADR

The ADR disputes are to be solved within 3 months or a maximum of 12 months so that the needful can get justice much before the court proceedings.

• The process of ADR is less expensive and less time-consuming.

• The parties can negotiate, make counter offers, and can sit together to solve a dispute.

• The process and timings can be fixed according to the parties.

Disadvantages of ADR

• The parties have to be of the same power and action to solve the dispute, otherwise, ADR can’t work.

• When the court has given a particular judgment, ADR won’t be beneficial.

The ADR won’t work if decisions are being made on the basis of precedent.

(iii) Various Methods of Alternative Dispute Resolution

Arbitration:

Arbitration in India has been governed by The Arbitration and Conciliation Act, 1996. This method of arbitration involves the process in which a third party sits with the other 2 parties who act as neutral and are responsible for dissolving the dispute between the parties. The third party is known as the arbitrator and the decision of the arbitrator is called the arbitration award. This is a less expensive and not a very lengthy process as the MNCs and big firms are inclined toward solving disputes quickly. The process of arbitration begins by stating several terms and conditions and both parties are required to abide by the instructions. The decisions of the arbitrator are binding upon all the parties and they have to abide by them. Thereby, this agreement has been stated valid as per, The Indian Contract Act, 1872, and the parties have the capacity to contract under section 11 and section 12 of the ICA,1872.

Types of Arbitration

AD HOC Arbitration -

It is the type of arbitration in which the respective parties have to identify the procedures themselves without any intervention from the arbitral institution. In this, if the party is not able to settle a dispute with one arbitrator or is unable to appoint any other arbitrator then section 11 is included, according to which the arbitrator can be appointed by the chief justice of the supreme court or by the chief justice of the high court. This is being decided by the type of arbitration it is, in the case of domestic arbitration, the arbitrator would be provided by the chief justice of the High court or his designate. In the case of international commercial arbitration, it will be appointed by the chief justice of India or his designate.

Institutional Arbitration

In this, the parties already have decided their agreement and the arbitration institution is required to follow the arbitration. Thereby, these institutions are prepared for all sorts of possibilities in the field of arbitration and formulate their rules according to it.

What is Mediation?

Mediation is the process that helps the parties to reach a decision, mutually taken by the parties. This decision taken is according to the satisfaction of the parties and is concerned with the settlement of the dispute. It is a time and cost-efficient method of dispute. The process of mediation has several characteristics:

The decisions taken by the mediator are non-binding:

Here, the mediator is not defined as the decision-maker unlike the arbitrator by the judge and is supposed to decide on the issue. The mediator’s role is just to assist the parties in reaching their goals. In this, the parties can leave this mediation process, if they feel that there would be no agreement between them over this.

Mediation involves secrecy or confidentiality:

The parties in mediation are not under any compulsion to state all the information, if they wish they can make it confidential. This has been stated under the WIPO Mediation Rules, which stated that it can be provided to anybody, regardless of whether it is in court litigation or arbitration. The main advantage of mediation is that it allows the parties to negotiate more flexibly.

Mediation involves the interest of the party:

The mediation involves the application of the business interests and its interested law. Thereby, in this people are free to think as per their business interests. Mediation is not binding and confidential and people are free to choose their interests.

Negotiation

It involves solving a dispute in which there are no parties at all and they negotiate with each other to independently decide on a matter. The rules for negotiation are not expressly stated in a country like India as it is not defined properly in a country like India. The most important essentials of conducting a negotiation are: the communication should be clear and proper, it should be non-binding and voluntarily and the procedure of the negotiation is carried out by the parties independently.

(iv) Conciliation

In this, the conciliator is required to talk to the parties separately and then come to a mutual decision. Conciliation is also governed by the arbitration and conciliation Act, of 1966. Section 61, talks about the conciliation of the legal disputes arising out of relationships between the parties whether explicitly required or not.

Conclusion

After analyzing the in-depth details and knowledge of the ADR, we realize that there are different methods of the ADR too, but the main ones are arbitration, mediation, and negotiation. The ADR is slowly also changing into the online alternative dispute resolution where the parties all over India or the world can join together in solving a dispute. Thereby, it is a fast-moving legal method of saving the time of the court and helping the people to get justice soon. More lawyers should be encouraged to diversify their knowledge in ADR methods and promote it more so that the minority is not deprived of its legal rights.

(v)References

(i)Law Shelf, Educational Media, ADR Methods https://lawshelf.com/shortvideoscontentview/arbitration-as-a-form-of-alternative-dispute-resolution

(ii)Ipleaders.com, Ishaan Banerjee, Introduction to ADR methods, https://blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution,

(iii)Legistify, Tushar, ADR methods and detailing, https://www.legistify.com/blogs/alternate-dispute-resolution,

(iv) ADR times, Vaibhav, Negotiation details, https://www.adrtimes.com/blog,

(v)LibguidesLaw,Nicolas,AllaboutADR, https://libguides.law.gsu.edu/c.php?g=253400&p=168979,