Difference between ADR and the judicial system A comparative study of or difference

between judicial adjudication, Arbitration and Conciliation

Alternative dispute resolution
Alternative dispute resolution is any means used to resolve a conflict other than
through litigation. Examples include negotiation, facilitated discussion and mediation.
Key features
Allows for a custom-made win-win outcome on all or part of the issues
Focuses on consensus-building and is future-oriented
Aims to determine the parties’ interests
Involves the participation of a neutral and impartial alternative dispute resolution
practitioner, selected or agreed upon by all parties, to facilitate participants’
negotiations and discussions
Voluntary participation, except where court-appointed, and participants can withdraw
from process at any stage
Usually informal, less structured and flexible
Emphasizes mutuality over self-interest and reconciliation over termination
Considerations
Parties actively participate in the process, define the issues and retain control of the
outcome; they have the final say, not the alternative dispute resolution practitioner
Discussions, negotiations and documentation are confidential, unless otherwise
required by law, and do not form part of the public record
Allows for direct communication between participants in a non-confrontational setting
to identify the true issues and cause of the dispute
Each party has the opportunity to describe the situation from his or her perspective,
needs and interests without the restrictions of the civil rules
Requires commitment; outcome also requires good-faith participation by all
participants; time and money will be wasted if the intention to collaborate is not
present
Alternative dispute resolution process can be scheduled at the convenience of
participants and practitioner
Allows for creative discussion of options and a wider range of possible outcomes, such
as better understanding of others’ perspective and change in practice or process
Outcome depends on settlement authority of the participants
Allows for the preservation of business relationships
Parties reserve the right to litigate, if they are unhappy with the process or do not
reach agreement, they can walk away or proceed to litigation
If a mutually acceptable resolution is reached, the agreement can result in a legally
binding settlement agreement
Litigation
Litigation is the act or process of bringing about or contesting a claim (that is, using
the traditional court system).
Key features
May result in an “all-or-nothing” decision
Focuses on the facts and is past-oriented
Aims to determine the parties’ legal rights
Determines winners and losers
Usually involves a judge who is appointed by the court to determine the outcome
based on the law and legal precedents
Mandatory participation once legal action is initiated
Formalized and highly structured
Costly and long delays
Considerations
Communication usually occurs through lawyers
Results cannot be predicted; responsibility for decision rests with a court-appointed
third party
Decisions rendered can act as precedent in future similar cases
Provides public record of evidence and a decision supported by reasons that may be
subject to appeal
Usually requires more resources (more costly, more witnesses, experts and
preparation time) and a longer wait time for resolution
When quick action is necessary, the courts can provide emergency rulings, such as
injunctions, which are not always possible in alternative dispute resolution processes
Ensures a decision; even in cases where the dispute involves a non-negotiable issue
Focuses on determining what is legal and what is not
Provides authority on issues that involve a breach of law or statute interpretation
Ideal for cases that have implications for a wide range of individuals outside of the
immediate localized dispute or where parties want to have a third party be
responsible for the decision
Arbitration
Appellate Procedure Criminal Procedure Evidence Civil Procedure
Case laws: Shiv Bhagwan Moti Ram Saraoji vs Onkarmal Ishar Dass And Ors. AIR
1952 Bom 365, (1952) 54 BOMLR 330 In Shiv Bhagwan Moti Ram Saraoji’s case
(supra) the Bombay High Court has held procedural laws to be in force unless the
legislatures expressly provide to the contrary. JUDGEMENT: The court observed that
“... Now, I think it may be stated as a general principle that no party has a vested
right to a particular proceeding or to a particular forum, and it is also well settled that
all procedural laws are retrospective unless the Legislature expressly states to the
contrary. Therefore, procedural laws in force must be applied at the date when a suit
or proceeding comes on for a trial or disposal...” Substantive law: WHAT IS
SUBSTANTIVE LAW? Substantive law is that body of law that handles the legal
relationship between individuals, or between individuals and the state. It also defines
types of crimes and their severity. In simple terms, substantive law is the set of laws
that governs how members of a society are to behave. EXAMPLES: Agency Contract
Criminal Law Partnership Torts
DIFFERENCE BETWEEN PROCEDURAL LAW AND SUBSTANTIVE LAW: Differences in
Structure and Content: If a person is accused and undergoing a trial, substantive law
prescribes the punishment that the under-trial will face if convicted. Substantive law
also defines the types of crimes and the severity depending upon factors such as
whether the person is a repeat offender, whether it is a hate crime, whether it was
self- defence etc. It also defines the responsibilities and rights of the accused.
Procedural law, on the other hand, provides the state with the machinery to enforce
the substantive laws on the people. Procedural law comprises the rules by which a
court hears and determines what happens in civil or criminal proceedings. Procedural
law deals with the method and means by which substantive law is made and
administered. Powers of Substantive vs. Procedural Laws: Substantive law is an
 independent set of laws that decide the fate of a case. Procedural laws on the other
hand, have no independent existence. Therefore, procedural laws only tell us how the
legal process is to be executed, whereas substantive laws have the power to offer
legal solution.
Differences in Application: Procedural laws are applicable in non-legal contexts,
whereas substantive laws are not. the essential substance of a trial is underlined by
substantive law, whereas procedural law chalks out the steps to get there. Example:
An example of substantive law is how degrees of murder are defined. Depending upon
the circumstances and whether the murderer had the intent to commit the crime, the
same act of homicide can fall under different levels of punishment. This is defined in
the statute and is substantive law. Examples of procedural laws include the time
allowed for one party to sue another and the rules governing the process of the
lawsuit.
DIFFERENCE BETWEEN PROCEDURAL LAW AND SUBSTANTIVE LAW:

BASIS:

PROCEDURAL LAW:

SUBSTANTIVE LAW:
Definition
Powers
Application
Regulation
0• Deals with and lays down the ways and means by which substantive law can be
enforced. 1• No independent powers
2• Can be applied in non-legal contexts
3• By statutory law
0• Deals with those areas of law which establish the rights and obligations of
individuals, what individuals may or may not do. 1• Independent powers to decide the
fate of a case 2• Cannot be applied in non-legal contexts
3• By Act of Parliament or government implementation
3. Adversarial system and inquisitorial system
Adversarial system and Inquisitorial system.
either of the system the defendant or the respondent may be required to testify .The
most striking different between the two system can be found in the criminal trial .In
most Inquisitorial systems, a criminal or an accused doesn't have to answer questions
about the crime itself but may be required to answer all other questions at trials
.many of the questions will concern to the history of the criminals.
*The Accused in an Inquisitorial system has to first testify himself. He is allowed to
see the government cases before testifying and he is usually very eager to give the
story of his side.
*The Accused is not presented guilty in this system., unless there is strong evidences
indicating the guilt and the trials would last for many months because the presiding
judge gathers evidence in a series of hearing. The decision in an Inquisitorial criminal
trial is made by 'collective vote 'of a certain number of professional judge and a small
group of assessors (They are persons selected at random from the general public),
neither the prosecution nor the accused will have an opportunity to question these
assessors. generally, the judges will vote at the end the assessors have to vote first.
A 2/3rd majority is usually required to convict an accused.
 What is Adversary System?
*Adversarial system used in common law jurisdiction s such as England.
The Oxford Dictionary defines the word 'adversary' as one’s opponent in a contest,
conflict, or dispute. It is a legal system in which cases brought before the court are
presented by two opposing sides before a panel of individuals which will include a
judge and jury that their version of the facts is the most convincing .the
representatives from each party take opposing positions to debate and argue their
case, the judges role is to uphold principles of fairness and equality and to remain
neutral until the very end when he gives judgment
*Common law countries commonly use an adversary system and the roots of the
system are quite ancient
*In This system both the parties have to present evidences and witnesses to support
their positions
The opposing side can cross examine witnesses, analyse the evidence and challenge
arguments made before the court. The goal of the process is to present all the facts
of the case for the benefits of the Judge and jury, who shift through the material to
decide what happened and who if any should be held responsible.
*The judge and the jury are expected to remain impartial and they will be using their
own exercise which are designed to eliminate people who might have a bias in the
case. The whole idea is that by presenting the context to people without an interest in
the outcome. People can receive fair trial because the fact will be evaluated
objectively. In reality the situation in an adversary system can be much more, in the
sense clarity could be brought in every situation that is contested before court of law.
*In an Adversarial system the accused is not required to testify himself
*it doesn’t require the presumption of innocence.
4. What are the different procedure to be followed while conducting on Arbitral
proceeding or Explain the conduct of Arbitral proceedings under the new Act.
Ans. Conduct of arbitral proceedings
 Equal treatment of parties— The parties shall be treated with equality and each
party shall be given a full opportunity to present his case.
 Determination of rules of procedure—
1. The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5
of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
2. Subject to this Part, the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting its proceedings.
3. Failing any agreement referred to in sub-section (2), the arbitral tribunal may,
subject to this Part, conduct the proceedings in the manner it considers appropriate.
4. The power of the arbitral tribunal under sub-section (3) includes the power to
determine the admissibility, relevance, materiality and weight of any evidence.
 Place of arbitration—
1. The parties are free to agree on the place of arbitration.
2. Failing any agreement referred to in sub-section (1), the place of arbitration
shall be determined by the arbitral tribunal having regard to the circumstances of the
case, including the convenience of the parties.
3. Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may,
unless otherwise agreed by the parties, meet at any place it considers appropriate for
consultation among its members, for hearing witnesses, experts or the parties, or for
inspection of documents, goods or other property.
 Commencement of arbitral proceedings—
 Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
particular dispute commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent.
 Language—
1. The parties are free to agree upon the language or languages to be used in the
arbitral proceedings.
2. Failing any agreement referred to in sub-section (1), the arbitral tribunal shall
determine the language or languages to be used in the arbitral proceedings.
1. Unless otherwise agreed by the parties, the arbitral tribunal may—
 appoint one or more experts to report to it on specific issues to be determined
by the arbitral tribunal, and
 require a party to give the expert any relevant information or to produce, or to
provide access to, any relevant documents, goods or other property for his
inspection.
2. Unless otherwise agreed by the parties, if a party so requests or if the arbitral
tribunal considers it necessary, the expert shall, after delivery of his written or oral
report, participate in an oral hearing where the parties have the opportunity to put
questions to him and to present expert witnesses in order to testify on the points at
issue.
3. Unless otherwise agreed by the parties, the expert shall, on the request of a
party, make available to that party for examination all documents, goods or other
property in the possession of the expert with which he was provided in order to
prepare his report.
 Court assistance in taking evidence—
1. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may
apply to the court for assistance in taking evidence.
2. The application shall specify—
 the names and addresses of the parties and the arbitrators; • the general
nature of the claim and the relief sought;
 the evidence to be obtained, in particular, —
 the name and address of any person to be heard as witness or expert witness
and a statement of the subject-matter of the testimony required; • the description of
any document to be produced or property to be inspected.
3. The court may, within its competence and according to its rules on taking
evidence, execute the request by ordering that the evidence be provided directly to
the arbitral tribunal.
4. The court may, while making an order under sub-section (3), issue the same
processes to witnesses as it may issue in suits tried before it.
5. Persons failing to attend in accordance with such process, or making any other
default, or refusing to give their evidence, or guilty of any contempt to the arbitral
tribunal during the conduct of arbitral proceedings, shall be subject to the like
disadvantages, penalties and punishments by order of the court on the representation
of the arbitral tribunal as they would incur for the like offences in suits tried before
the court. 6. In this section the expression “Processes” includes summonses and
commissions for the examination of witnesses and summonses to produce
documents.
6. Define an Award. What are the components of a valid Arbitral award or explain
the term award and also the different procedure laid down by passing an award.
Ans. Arbitration Award is a determination on the merits by an arbitration tribunal in
arbitration, and is analogous to the judgment in the Court of Law.
 According to the Arbitration and Conciliation Act, 1996 an Arbitral Award: - Shall be in
writing; - Shall be signed by members of Arbitral Tribunal; - Shall state the reasons
on which the Award is based; - Date and place of arbitration; The Act provides that
after passing the Award, a signed copy of the Award shall be delivered to each party.
The Tribunal if required can also pass an interim arbitral award.
Correction and Interpretation of Arbitral Award- Section 33 of the Act deals with the
correction and interpretation of Arbitral award. It provides that the Tribunal may
correct the award within 30 days from the receipt of award. If the Tribunal finds the
request for correction to be reasonable, then it shall make a correction or
interpretation of a specific point or part of the award within 30 days of the receipt of
request. However, if the Tribunal deems it necessary it can also extend the period of
time within which it will make correction in the Award or interpretation of the Award.
Enforcement of Arbitral Award– Section 36 of the Act provides that if the time for
making application to set aside an award under Section 34 has expired or the
application has been refused then the Award shall be enforced under the Code of Civil
Procedure in the same manner as a decree of a Court.
SETTING ASIDE OF ARBITRAL AWARD
Section 34 of the Act provides for setting aside of an Arbitral Award by the Court. The
Act provides a comprehensive list of circumstances under which an Arbitral Award can
be set aside by the Court and they are: 0. The party is under some incapacity; 0.
Arbitration agreement between the parties is not valid; 0. Lack of notice of
appointment of arbitrator or of holding of arbitral proceeding; 0. Arbitral award deals
with a dispute not contemplated by or not falling within the terms of the submission
to arbitration or it contains decisions on matters beyond the scope of submission of
arbitration; 0. Composition of arbitral tribunal or arbitral procedure was not in
accordance with the agreement of the parties; 0. The Court finds that the subject
matter of the dispute is not capable of settlement by arbitration under the Law; 0.
The Award is in conflict with the Public Policy 6. Write a short note on the following:
grounds for challenge, termination of mandate or substitution of Arbitrator,
jurisdiction, settlement
13) Write a short note on the following
A) Grounds for challenge (Section 12)
16. Competence of arbitral tribunal to rule on its jurisdictional. -
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and
for that purpose, -
(a) An arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract; and (b) A decision by the
arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than the submission of the statement of defence; however, a party shall not be
precluded from raising such a plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raise as soon as the matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or
subsection (3), admit a later plea if it considers the delay justified.
 (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-
section (3) and, where the arbitral tribunal takes a decision rejecting the plea,
continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application forgetting
aside such an arbitral award in accordance with section 34.
D) Settlement. –
(1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to
encourage settlement of the dispute and, with the agreement of the parties; the
arbitrat tribunal may use mediation, conciliation or other procedures at any time
during the arbitral proceedings to encourage settlement.
(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal
shall terminate the proceedings and, if requested by the parties and not objected to
by the arbitral tribunal, record the settlement in the form of an arbitrat award on
agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31
and shall state that it is an arbitrate award.
(4) An arbitrate award on a-reed terms shall have the same status and effect as any
other arbitral award on the substance of the dispute.
7. What are the different types of disputes suitable for Conciliation? When can be
the process of Conciliation can be terminated?
Ans. What is conciliation?
Conciliation is the method of settling a dispute in which an impartial third party tries
to get the disputing parties to reach an agreement.
Who conducts conciliation?
Conciliator: A conciliator is a person who brings the disputing parties to harmony.
What are the different types of conciliation?
 Facilitative conciliation- here, the conciliator merely facilitates and provides a
platform for the parties in reaching a settlement.  Evaluative conciliation: in this type
of conciliation, the conciliation assesses the case and provides an opinion.  Voluntary
conciliation: here the parties have an option to choose conciliation as one of the
methods to settle a matter. They voluntarily agree to take up conciliation. 
Compulsory conciliation: in this type of conciliation, the parties are forced to take up
conciliation as a legal obligation.
What are the duties of a conciliator?
The following are some of the most important duties that a conciliator has to perform.
He has to be:
 Impartial  Independent  Encourage useful discussions for possible settlement 
Establish good relationship with the parties  Maintain confidentiality.
What are the different types of disputes suitable for conciliation?
 Commercial disputes  Employment and labour disputes  Consumer disputes 
Family disputes. What are the advantages of conciliation?  The process is private so
no risk of damage to reputation.
The Mediator must provide a clear, accurate, and professional product and an
accurate assessment of his capabilities. He must be able to clearly articulate complex
situations and concepts. The Mediator must also maintain credibility. He must present
himself in a believable and consistent manner, and follow through on any promises
made as well as never to promise what cannot be delivered.
Objectivity and Self-control
The Mediator must also be totally objective in evaluating the information obtained.
The mediator must maintain an objective and dispassionate attitude regardless of the
emotional reactions he may actually experience or simulate during a questioning
session. Without objectivity, he may unconsciously distort the information acquired.
He may also be unable to vary his questioning and approach techniques effectively.
He must have exceptional self- control to avoid displays of genuine anger, irritation,
sympathy, or weariness that may cause him to lose the initiative during questioning
but be able to fake any of these emotions as necessary. He must not become
emotionally involved with the party.
Adaptability
A Mediator must adapt to the many and varied personalities which he will encounter.
He must also adapt to all types of locations, operational tempos, and operational
environments. He should try to imagine himself in the party's position. By being
adaptable, he can smoothly shift his questioning and approach techniques according
to the operational environment and the personality of the party.
Perseverance
A tenacity of purpose can be the difference between a Mediator who is merely good
and one who is superior. A Mediator who becomes easily discouraged by opposition,
non-cooperation, or other difficulties will not aggressively pursue the matter to a
successful conclusion or exploit leads to other valuable information.
Appearance and Demeanour
The Mediator's personal appearance may greatly influence the conduct of any
mediation and attitude of the party toward the Mediator. Usually an organized and
professional appearance will favourably influence the party. If the Mediator's manner
reflects fairness, strength, and efficiency, the party may prove more cooperative and
more receptive to questioning.
Initiative
Achieving and maintaining the initiative are essential to a successful questioning
session just as the offensive is the key to success in combat operations. The Mediator
must grasp the initiative and maintain it throughout all questioning phases. This does
not mean he has to dominate the party physically; rather, it means that the Mediator
knows his requirements and continues to direct the collection toward those
requirements.
Trust
One can work as a mediator so long as he or she enjoys the trust of the parties.
Appointment of arbitrators can be fixed by an agreement between the parties; parties
have no choice in choosing their judge but the parties can pick a mediator only when
they have a trust in the mediator or they have a reason to believe that they can trust
him.
Neutrality
One can work as a mediator so long as he or she enjoys the trust of the parties.
Appointment of arbitrators can be fixed by an agreement between the parties; parties
have no choice in choosing their judge but the parties can pick a mediator only when
they have a trust in the mediator or they have a reason to believe that they can trust
him.
Confidentiality
One of the reasons that the parties opt for mediation is that they do not either want
to wash dirty linen in public or if it is a trade dispute they don’t want others to know
their trade secrets or they know that adjudication of dispute in the open forums like
court may lead to their making their financial condition public. The parties to the
 dispute approach the mediator with the hope that what ever would come to the
knowledge of mediator during the proceedings will remain with him only.
Look dignified; dress appropriately
It is the appearance of the mediator, which conveys the first impression to the
parties. They should have a feeling that they are dealing with a person who is here to
do business. He is serious about his job. If the conduct of the mediator is not dignified
he is not likely to earn the respect of the parties. It is the respect for the mediator,
which builds the trust of the parties in the mediation. Yet it is important he should not
sit with a stiff neck with a detached look, so as to convey that he is indifferent to
what is going around him.
Dressing up is yet another aspect of looking dignified. One, however, needs to be
careful that he is not overdressed as overdressing itself creates barriers of its own in
the effective flow of information between the mediator and the parties.
Punctuality
Traditional litigation is not only time consuming but also in such litigations the
adhering to schedules is very difficult. Most of the people who opt for mediation do so
because they feel that the mediation will yield early results. There object of coming
for mediation would be defeated if it becomes an equally time consuming process.
Knowledgeable
There can be situations like in the case of community mediations where it may not be
necessary for a party to be educated. It is sufficient that he/she can understand the
legitimate concerns of the parties. In case of, however, court annexed mediations or
the mediations, which have pronounced legal consequences, it is desirable and
sometimes also necessary that he should have some legal background or exposure.
Once the negotiations are over a mediator is required to help the parties draw the
terms of settlement. These settlements should be such that they would not fall apart
once they are tested on the touchstone of law.
Duties
Responsible Detail Person
The mediator manages and keeps track of all necessary information, writes up the
parties' agreement, and may assist the parties to implement their agreement.
9. What is Negotiation? What are the different types of Negotiation or what are the
different styles of Negotiation?
0• NEGOTIATION
1• What is negotiation? 2• Negotiation has been defined as any form of direct or
indirect communication whereby parties who have opposing interests discuss the form
of any joint action which they might take to manage and ultimately resolve the
dispute between them through mutual concern.
3• Characteristics of a negotiation
4• Voluntary: No party is forced to participate in a negotiation. The parties are free to
accept or reject the outcome of negotiations and can withdraw at any point during the
process
5• Non-adjudicative: Negotiation involves only the parties. The outcome of a
negotiation is reached by the parties together without recourse to a third-party
neutral. 6• Informal: There are no prescribed rules in negotiation. The parties are free
to adopt whatever rules they choose, if any. Generally, they will agree on issues such
as the subject matter, timing and location of negotiations.
7• Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties.
They can range from two individuals seeking to agree on the sale of a house to
negotiations involving diplomats from dozens of States (e.g., World Trade
Organization (WTO)). 8• Flexible: The scope of a negotiation depends on the choice of
the parties. The parties can determine not only the topic or the topics that will be the
subject of the negotiations, but also whether they will adopt a positional-based
bargaining approach or an interest- based approach.
9• Types of negotiation
Distributive negotiation & Integrative negotiation Distributive negotiation: - The most
distributive feature is that it operates under a zero-Sum game. Each person in the
negotiation defence ultimate point where the settlement will be made. Example: - the
sale of clothes where the buyer and the seller do not know each other. There is no
relationship all that matters are the price and each side haggles for the best deal. One
party gain is loss to other. 10• Integrative negotiation
11• Integrative negotiation: - parties co-operate to achieve maximize benefits by
integrating their interest both parties involve in negotiation process jointly look at the
problem try to search for alternatives and try to evaluate then and reach a mutually
acceptable decision or solution.
12• Role of counsel in negotiation
0• The role of Justice counsel in a negotiation will vary with the circumstances and
the mandate of the negotiating team. The extent to which Justice counsel will
participate in the negotiations will depend on a variety of factors, including whether or
not legal issues or issues of mixed fact and law are at stake as well as whether the
client department needs or simply wants Justice counsel to participate actively in the
negotiation. For example, counsel with Legal Services Units work with their clients
and on their behalf and help represent their views in a variety of situations, 1• When
negotiating on behalf of the client, counsel must ensure that there is no divergence
between his or her negotiating stance and the mandate of the client. This is best done
through following the client's instructions and providing frequent updates to the
client. At other times, client departments may ask the Justice counsel to participate
as a member of the negotiating team
2• While the role of counsel will depend on the circumstances surrounding the
negotiations, she or he is always bound by the principles of professional ethics. For
example, when acting as an advocate, the lawyer must treat the tribunal with
courtesy and respect and must represent the client resolutely, honourably and within
the limits of the law. Although no two negotiations are identical, counsel must apply
these principles of professional responsibility in each situation. 13• Elements of
negotiation 14• Negotiation involves three basic elements 15• Process: - this refers to
how parties negotiate the context of the negotiation the tactics used by the parties
and the sequence and stages in which all of this play out. 16• Behaviour: - this refers
to relationship among this parties and the communication process style adopted by
the parties.
17• Substance: - the substance refers to what the artist negotiate oh the agenda the
issues the options and the agreement reached at the end
18• Reasons for negotiation
19• To reach agreement
20• To make a point
21• To settle an argument
22• To compromise
23• To beat the opposition
10. Salem Advocate Bar Association Vs Union of India
SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU V. UNION OF INDIA
T Facts

The legislature in 1999 and 2002 came up with the amendments to the Civil
Procedure Code,
changing the nature of the statute.
These amendments provided for reforms which if uniformly
implemented could further the aim of justice as envisaged by our
Constitution makers. However, the practicability of the
amendments was questioned and a report for the same was
drafted. This report was challenged in the Supreme Court of India,
in the case of
Salem Advocates Bar Association
v.
Union of India.
The court affirmed the amendments and upheld the report. The
decision was appreciated by both academicians and scholars.
However, despite the judgment bringing a change in civil litigation
in India, it also suffered from certain flaws.
Provisions Involved:-
•

Section 26(2) of the Civil Procedure Code

•

Rule 15(4) and Order VI read with Rule 15 of the Civil

Procedure Code
•

Order XVIII, Rule 4 of the Civil Procedure Code

•

Order VIII, Rule 1 of the Civil Procedure Code

•

Order VI, Rule 17 of the Civil Procedure Code

•

Section 35 of the Civil Procedure code.

Section 148 of the Civil Procedure Code.
Section 80 of the civil procedure code.
Section 89 of the civil procedure code.
Brief facts

o A committee was formed to ensure that the 1999 and 2002

Amendments to the Civil Procedure Code are effectively
implemented and result in quicker dispense of justice The report was submitted in
three parts,
(a) Consideration of various grievances
(b) Draft Rules for ADR and mediation
(c) Case management conferences
The validity of this report and the amendments was challenged before the Court, in
the matter
Main Issue-
I.
Whether the 1999 and 2002 Amendments to the Civil
Procedure Code were constitutionally valid?
Arguments/ Pleadings
The case in depth discussed the report put forward. The report
was classified into three parts, each one of them was discussed in
great lengths.
Report One-
The Report discussed Section 26(2) and Rule 15(4) to
Order VI, wherein it was contended that filing of an
affidavit is illegal and unnecessary as there exists a
requirement of filing verification.
•
Another contention by the parties was that there is a
conflict between Order XVIII, Rule 5(a) and (b) and Order
XVIII, Rule 4. The conflict here, was that Order XVIII, Rule
5 provides for recording of evidence by the Court itself in
appealable cases. However, Rule 4 and 19 of the same
order enable the commissioner to record the statements in
any case, notwithstanding any situation. Therefore, it
appeared as if the latter provision overrode the former.
Bharati Law Review, Jan. – Mar., 2016 274
•
The report dealt with a very niche area in Court
proceedings i.e. service of summons through courier. It
was contended that the courier’s report about the
defendant’s refusal to accept service is likely to lead to serious malpractice
•
The parties also raised a contention with respect to the costs in a suit. It was
contended that unscrupulous parties take advantage of the fact that either there is no
awarding of costs by the Court or nominal costs are awarded on the unsuccessful
parties. It was submitted that only costs which are reasonably incurred by successful
parties should be granted.
• Section 80 of the Civil Procedure Code, was also brought into discussion wherein it
was contended that prior notice should be served to the government before filing of a
suit unless the matter is urgent and in need of an interim order.
• Section 148 of the Civil Procedure Code, was also mentioned wherein the power of
Court to enlarge time was discussed. Reliance was placed on the case of Mahanta
Ramdas v. Ganga Das
2 and it was submitted that extension should be provided if the act could not be
provided within 30 days for reasons beyond the control of the party but not for acts
where the Limitation Act provides for limits. Report Two-
• The main contention by the parties in this part of the report was with respect to
Section 89 of the Code i.e. settlement of disputes outside Courts. The said Section
provides the discretion to the Court as to if it deems fit, that certain elements can be
settled between the parties, then the Court shall formulate those terms and send
them for observation by the parties. However, there existed an ambiguity with
respect to the applicability of the Arbitration and Conciliation Act3 and the CPC
that on the facts and
circumstances of the case
discretionary relief of
grant of stay of suit would
cause irreparable hardship
and deny justice.
In appeal to this Court
against the order of stay
ofthe suit granted by the
High
Court, it was contended on
behalf of the appellant:
(1) there was no
concluded arbitration
agreement between the
parties to refer
the disputes arising out of
the sub-contract dated July
10, 1961 to arbitration
and, therefore, the suit
cannot be stayed;
(2) even if the Court came
to the conclusion that there
was such a subsisting
arbitration agreement
between the parties, prayer
for stay having been made
under section 51 of the
Code ofn Civil Procedure
and/or undernsectionn34 of
the Arbitration Act, 1940,
read with Section 151 CPC,
the Court should not
enforce it in its discretionary
jurisdiction as it would result
in miscarriage of justice;
(3) in view ofthe provisions
contained in the Arbitration
(Protocol and
Convention) Act, 1937 the
Court could not invoke its
inherent jurisdiction under
section 151 CPC and the
Special Act would not assist
the respondent as the case
was not covered by its
provisions. It was also
contended that the
undermentioned
circumstances when
properly evaluated would
unmistakably indicate that
the
instant case is not a fit
case in which the Court
should decline to adjudicate
upon
the dispute brought to it by
granting stay in favour of
the r the parties. 17•
Substance: - the substance
refers to what the artist
esondent
1. Difference between ADR
and the judicial system
A comparative study of or
difference between judicial
adjudication, Arbitration
and Conciliation
Alternative dispute
resolution
Alternative dispute
resolution is any means
used to resolve a conflict
other than through
litigation. Examples include
negotiation, facilitated
discussion and mediation.
Key features
Allows for a custom-made
win-win outcome on all or
part of the issues
Focuses on consensus-
building and is future-
oriented
Aims to determine the
parties’ interests
Involves the participation of
a neutral and impartial
alternative dispute
resolution practitioner,
selected or agreed upon by
all parties, to facilitate
participants’ negotiations
and discussions
Voluntary participation,
except where court-
appointed, and participants
can withdraw from
process at any stage
Usually informal, less
structured and flexible
Emphasizes mutuality over
self-interest and
reconciliation over
termination
Considerations
Parties actively participate
in the process, define the
issues and retain control of
the outcome;
they have the final say, not
the alternative dispute
resolution practitioner
Discussions, negotiations
and documentation are
confidential, unless
otherwise required by
law, and do not form part of
the public record
Allows for direct
communication between
participants in a non-
confrontational setting to
identify the true issues and
cause of the dispute
Each party has the
opportunity to describe the
situation from his or her
perspective, needs and
interests without the
restrictions of the civil rules
Requires commitment;
outcome also requires good-
faith participation by all
participants; time
and money will be wasted if
the intention to collaborate
is not present
Alternative dispute
resolution process can be
scheduled at the
convenience of participants
and
practitioner
Allows for creative
discussion of options and a
wider range of possible
outcomes, such as
better understanding of
others’ perspective and
change in practice or
process
Outcome depends on
settlement authority of the
participants
Allows for the preservation
of business relationships
Parties reserve the right to
litigate, if they are unhappy
with the process or do not
reach
agreement, they can walk
away or proceed to litigation
If a mutually acceptable
resolution is reached, the
agreement can result in a
legally binding
settlement agreement
Litigation
Litigation is the act or
process of bringing about or
contesting a claim (that is,
using the
traditional court system).
Key features
May result in an “all-or-
nothing” decision
Focuses on the facts and is
past-oriented
Aims to determine the
parties’ legal rights
Determines winners and
losers
Usually involves a judge who
is appointed by the court to
determine the outcome
based on
the law and legal
precedents
Mandatory participation
once legal action is initiated
Formalized and highly
structured
Costly and long delays
Considerations
Communication usually
occurs through lawyers
Results cannot be predicted;
responsibility for decision
rests with a court-appointed
third
party
Decisions rendered can act
as precedent in future
similar cases
Provides public record of
evidence and a decision
supported by reasons that
may be subject
to appeal
Usually requires more
resources (more costly,
more witnesses, experts and
preparation time)
and a longer wait time for
resolution
When quick action is
necessary, the courts can
provide emergency rulings,
such as
injunctions, which are not
always possible in
alternative dispute
resolution processes
Ensures a decision; even in
cases where the dispute
involves a non-negotiable
issue
Focuses on determining
what is legal and what is not
Provides authority on issues
that involve a breach of law
or statute interpretation
Ideal for cases that have
implications for a wide
range of individuals outside
of the immediate
localized dispute or where
parties want to have a third
party be responsible for the
decision
Arbitration