COMPARATIVE STUDY OF ADR IN INDIA AND AUSTRALIA

The obligation of the legal profession is.to serve as healers of human conflicts..we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, with the minimum stress on the participants. That is what justice is all about

Introduction: Alternative Dispute Resolution? "Alternative dispute resolution" (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADR are mediation and arbitration, there are many other forms: judicial settlement conferences, fact-finding, ombudsmen, special masters, etc. Though often voluntary, ADR is sometimes mandated by the courts, which require that disputants try mediation before they take their case to court International arbitration is about settling disputes between businesses, occasionally between businesses and States or State entities. International arbitration itself is a business, possibly too much so. Arbitration is often about money. Many claim that mediation is a more cost effective and time efficient process than arbitration to resolve international disputes. Law is the command of the sovereign. It controls the working of public policies, it regulates the working of each and every known organization, it provides statutes for the lubricated and friction-less working of the state departments, it codifies the way and the correct/ dignified path to the resolution of personal matters as well. However people consider law as an object of scorn and fear, the try to shun courts, they would rather live with their problems instead of moving to any said court for seeking justice. The following are the main reasons so as to why people tend to vary from the idea of addressing their problems in a court of law: -

1. That, the legal proceedings are costly and time consuming, the so-called justice is delivered after mass of, hopelessly complex, procedures are followed.

2. That, legal cases often tend to differ from the main idea or the main issue involved in a dispute.

3. That, legal practitioners are more concerned about their fees and winning the case instead of being concerned about finding the truth or solutions to the said issues and problems.

4. That, the legal procedures often tend to increase the areas of conflict between the parties instead of resolving the issues placed in front of them.

The aforementioned reasons tend to force people to find alternate ways of addressing their problems and therefore they follow the Alternate Dispute Resolution System of Arbitration, Mediation and, or Conciliation.

Brief History of ADR Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts. For example, the Civil Rights Act of 1964 outlawed "discrimination in employment or public accommodations on the basis of race, sex, or national origin." Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women's movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors.Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system. ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. The American origins of the concept are not surprising, given certain features of litigation in that system, such as: trials of civil actions by a jury, lawyers' contingency fees, lack of application in full of the rule "the loser pays the costs".

Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in response to the disruptive conflicts between labor and management. In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. In the ensuing years, special mediation agencies, such as the Board of Mediation and Conciliation for railway labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation and Conciliation Service (1947) were formed and funded to carry out the mediation of collective bargaining disputes. Additional state labor mediation services followed. The 1913 New lands Act and later legislation reflected the belief that stable industrial peace could be achieved through the settlement of collective bargaining disputes; settlement in turn could be advanced through conciliation, mediation, and voluntary arbitration.2 At about the same time, and for different reasons, varied forms of mediation for non-labor matters were introduced in the courts. When a group of lawyers and jurists spoke on the topic to an American Bar Association meeting in 1923, they were able to assess court-related conciliation programs in Cleveland, Minneapolis, North Dakota, New York City, and Milwaukee. Conciliation in a different form also appeared in domestic relations courts. An outgrowth of concern about rising divorce rates in the postwar 1940's and the 1950's, the primary goal of these programs was to reduce the number of divorces by requiring efforts at reconciliation rather than to facilitate the achievement of divorces through less adversarial proceedings. Following privately funded mediation efforts by the American Arbitration Association and others in the late 1960s, the Community Relations Service (CRS) of the United States Department of Justice initiated in 1972 a mediation program for civil rights disputes.

Although a small number of individual lawyers had been interested in and were practicing mediation ADR in Britain for some years, it was only in 1989 when the first British based ADR company - IDR Europe Ltd. - bought the idea across the Atlantic and opened its doors for business. This was the start of ADR Group. Since then many other ADR organizations, including CEDR (Centre for Dispute Resolution), followed suite and assisted in the development and promotion of ADR in the UK.3 ADR, or mediation (as it is now synonymously known as), is used world-wide by Governments, corporations and individuals to resolve disputes big or small, of virtually any nature and in most countries of the world. In developing countries where most people opt for litigation to resolve disputes, there is excessive over-burdening of courts and a large number of pending cases, which has ultimately lead to dissatisfaction among people regarding the judicial system and its ability to dispense justice. This opinion is generated largely on the basis of the popular belief, Justice delayed is justice denied. However, the blame for the large number of pending cases in these developing countries or docket explosion, as it is called, cannot be attributed to the Courts alone. The reason for it being the non-implementation of negotiation processes before litigation. It is against this backdrop that the mechanisms of Alternative Dispute Resolution are being introduced in these countries. These mechanisms, which have been working effectively in providing an amicable and speedy solution for conflicts in developed economies, are being suitably amended and incorporated in the developing countries in order to strengthen the judicial system. Many countries such as India, Bangladesh and Sri Lanka have adopted the Alternative Dispute Resolution Mechanism. However, it is for time to see how effective the implementation of these mechanisms would be in these countries

Overview of ADR:

Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. The modern ADR movement originated in the United States in the 1970s, spurred by a desire to avoid the cost, delay, and adversarial nature of litigation. For these and other reasons, court reformers are seeking to foster its use in developing nations. The interest in ADR in some countries also stems from a desire to revive and reform traditional mediation mechanisms. ADR today falls into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliationthe classic method where a neutral third party assists disputants in reaching a mutually acceptable solutionas well as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing court backlog, while at the same time preserving important social relationships for disputants.4 Community-based ADR is often designed to be independent of a formal court system that may be biased, expensive, distant, or otherwise inaccessible to a population. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve conflict. India embraced lok adalat village-level peoples courts in the 1980s, where trained mediators sought to resolve common problems that in

an earlier period may have gone to the panchayat, a council of village or caste elders. Elsewhere in the region, bilateral donors have recently supported village-based shalish mediation in Bangladesh and nationally established mediation boards in Sri Lanka. In Latin America, there has been a revival of interest in the juece de paz, a legal officer with the power to conciliate or mediate small claims. Some definitions of ADR also include commercial arbitration: private adversarial proceedings in which a neutral third party issues a binding decision. Private arbitration services and centers have an established role in the United States for commercial dispute resolution, and are spreading internationally as business, and the demand for harmonization, expands. In the last decade, more countries have passed legislation based on the 1985 UNCITRAL Model Law on International Commercial Arbitration, which makes an arbitral award legally binding and grants broad rights to commercial parties choosing arbitration. It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation are non-binding forms, and depend on the willingness of parties to reach a voluntary agreement. Arbitration programs may be binding or non-binding. Binding Arbitration produces a third party decision that the disputants must follow even if they disagree with the result much like a judicial decision. Non-binding Arbitration produces a third party decision that the parties may reject. It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require the parties to negotiate, conciliate, mediate or arbitrate, prior to court action. ADR processes may also be required as part of prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties.

These forms of ADR along with a lot of other hybrid processes are discussed in the next chapter of the paper. Therefore, it can observed that the term Alternative dispute resolution can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other, prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included into the rubric of ADR.

ADR can be termed as an effective means to solve disputes by the help of a neutral third party. As popularly stated since time immemorial Every coin has two faces, the said methodology of resolving disputes through alternative means also has some pros and cons.

Main kinds of ADR mechanism a)Arbitration b) Mediation: c) Conciliation: Use and effectiveness of Arbitration as a mechanism of ADR: American case study (source: National Arbitration Forum, Washington)

Key Findings in the above survey: 78% of people find faster recovery in Arbitration 83% of people find Arbitration equally or more fair 59.3% of people find Arbitration less expensive 84.6% of people find ADR equally or more suitable for insurance/reinsurance sector

This survey clearly shows the increase in the number of people over the years who would opt for Arbitration over a lawsuit for the recovery of monetary damages.

INTERNATIONAL ORGANISATIONS:

Permanent Court of Arbitration (PCA) World Trade Organisation (WTO) International Chamber of Commerce (ICC) Court of Arbitration for Sport (CAS) United Nations Commission on International Trade Law (UNCITRAL) Other treaties

 OBJECTIVE: 1) To Study the ADR system in India and Australia: Brief History, Process of functioning,and key elements. Position of ADR in India.

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 harmonisation 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. Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach.

Reasons behind introduction of ADR in India: Alternative Dispute Resolution in India is an attempt made by the legislators and judiciary alike to achieve the Constitutional goal of achieving Complete Justice in India. ADR first started as a quest to find solutions to the perplexing problem of the ever increasing burden on the courts. A thought-process that started off to rectify docket explosion, later developed into a separate field solely catering to various kinds of mechanisms which would resolve disputes without approaching the Formal Legal System (FLS). The reasoning given to these ADR mechanisms is that the society, state and the party to the dispute are equally under an obligation to resolve the dispute as soon as possible before it disturbs the peace in the family, business community, society or ultimately humanity as a whole.

In a civilised society, principles of natural justice along with the Rule of Law should result in complete justice in case of a dispute. Rule of Law is defined as the state of order in which events conform to the law. It is an authoritative, legal doctrine, principle, or precept applied to the facts of an appropriate case. These definitions give us the indication that the Rule of Law is a authoritative concept which might lead to a win-lose situation in cases of dispute. Therefore, ADR uses the principles of natural justice in consonance with the Rule of Law, in order to create a favourable atmosphere of a win-win situation. This is much needed in countries like India where litigation causes a great deal of animosity between the parties due to the agony caused by the long-standing litigation. ADR, thus, gains its momentum in India today.17 Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before Law and Right to life and personal liberty respectively. These Articles are enshrined under Part III of the Constitution of India which lists the Fundamental Rights of the citizens of India. ADR also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution. The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 (discussed in detail later) and the Legal Services Authorities Act, 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above.

In India, the quest for justice has been an ideal, which the citizens have been aspiring for generations down the line. Our Constitution reflects this aspiration in the Preamble itself, which speaks about justice in all its forms: social, economic and political. Justice is a constitutional mandate. About half a century of the Constitution at work has tossed up many issues relating to

the working of the judiciary; the most important being court clogging and judicial delays. Particularly disturbing has been the chronic and recurrent theme of a near collapse of the judicial trial system, its delays and mounting costs. Here, the glorious uncertainties of the law frustrated the aspirations for an equal, predictable and affordable justice is also a question, which crops up often in the minds of the people. We are a country of a billion people. The fundamental question is: How do we design and structure a legal system, which can render justice to a billion people? The possibility of a justice-delivery mechanism in the Indian context and the impediments for dispensing justice in India is an important discussion. Delay in justice administration is the biggest operational obstacle, which has to be tackled on a war footing. As Justice Warren Burger, the former Chief Justice of the American Supreme Court observed in the American context: The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of judges in numbers never before contemplated. The notion that ordinary people want black-robed judges, well-dressed lawyers, and fine paneled courtrooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible . This observation with greater force applies in the Indian context. Therefore, this explains the need for Alternative Dispute Resolution in India. In a country, which aims to protect the socio-economic and cultural rights of citizens, it is extremely important to quickly dispose the cases in India, as the Courts alone cannot handle the huge backlog of cases. This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution. These are the reasons behind the introduction of ADR in India. THE PRESENT SCENARIO:-

The legal system in India is viewed by many as part of colonial legacy. Undoubtedly, judiciary is the important institution which has withstood many challenges during the last-more than fifty years to retain its integrity. But with the mounting pressure of cases-civil, criminal, revenue, industrial and others the workload of judiciary increased leaps and bound and it has now reached a stage of unmanageable magnitude and the cases remain undecided for years together for one reason or the other. The preamble to the constitution of India promises to secure socio-economic and political justice and equality of status and of opportunity to all the citizens. Art. 39-A contains a directive principle which holds that the state will ensure that the legal system operates in a manner so as to promote justice to all an to ensure that no citizen is denied the opportunities of securing justice by reason of economic or any other disability. But the ground reality is that the law hardly reaches the vulnerable sections of the society here majority of the people are illiterate, rustic and rural and are ignorant about existence of their legal rights and remedies. And those who are aware of their right, find it difficult to get them translated into reality because of the legal and procedural ordeals on has to undergo in the process of litigation

MALIMATH COMMITTEE:The report of the Malimath Committee (1989-90). The committee was headed by Honble Mr. Justice V.S. Malimath, the two other members being Honble Mr. Justice P.D. Desai and Honble Dr. Justice A.S.Anand. In India the situation is all the more worse. The Indian judicial system has been stretched almost to a breaking point right from the Apex court to the lowest subordinate courts. The Malimath Committee which is also known as the Arrears committee, undertook a comprehensive review of the working of the court system, particularly all aspects of arrears and Laws delay and made various useful recommendations for reducing litigation and making justice readily accessible to the people at the minimum cost o time an money. The Malimath Committee underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation. Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes in place of litigation and includes arbitration, mediation, conciliation, expert determination and early neutral evaluation by a third person. In many important respects, arbitration is similar/common with court based litigation than the other forms of ADR. Prior to the enactment of The Arbitration and Conciliation Act, 1996, none of these forms of ADR except arbitration have any statutory basis in India. Mediation and Conciliation require an independent

third party as mediator or conciliator to assist the parties to settle their disputes. The expert determination requires independent experts in the subject of disagreement of the parties to decide the case. Such expert is chosen jointly by the parties and his decision is binding.

ARBITRATION LAW IN INDIA: In our country, in the past statutory provisions on arbitration were contained in three different enactments i.e. the Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration Act, 1940 laid down the framework within which domestic arbitration was conducted in India, while the other two Acts dealt with foreign awards. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 (10 of 1940) and the Arbitration (Protocol & Convention) Act, 1937 (6 of 1937) and the Foreign Awards (Recognition and Enforcement) Act, 1961 under section 85 of the 1996 Act.

United Nations Commission on International Trade Law (UNCITRAL) prepared a Model Law on international commercial arbitration in 1985. The General Assembly of the United Nations has recommended that all member countries should give due consideration to the Model Law, for the desirability of uniformity of the Law of Arbitral Procedures and the specific needs of International Commercial Arbitration Practice. The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation. 1.The Arbitration and Conciliation Act, 1996. 2 . ibid Rules in 1980. The Arbitration and Conciliation Bill 1996 was passed by both the Houses of Parliament and received the assent of the President of India on August 16, 1996 and was enforced w.e.f. January 25, 1996 and the enactment came on the statute book as the Arbitration and Conciliation Act, 1996 (26 of 1996). The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense. The parties should be free to agree as to how their disputes are to be resolved, subject only to such safe guards as are necessary in the public interest. In the matter governed by the provisions of the 1996 Act, the court should not intervene except as provided by those provisions. The main object of Arbitration is to exclude judicial intervention with the process of Arbitration. The Court is however required to direct the parties to resort to Arbitration as per the agreement and to provide alternative dispute

resolution to those who cannot bear the cost and the time of ordinary civil court procedure as per the provisions of Section 89 CPC. There are separate enactments specially to settle disputes arising between employer and employee under the Industrial Disputes Act. Statutory tribunals are also some time lacking in their effort as they do not have the simplicity, transparency and practical approach to resolve the disputes, as in the Arbitration and Conciliation Act, 1996. The English Arbitration Act, 1996, provides that the provisions of law must not be construed as excluding the operations of rule of law consistent with those provisions, in particular any rule of law as to (a) matters which are not capable of settlement by arbitration, (b) the effect of an oral arbitration agreement or (c) the refusal of recognition or enforcement of an arbitral award on ground of public policy. The English Arbitration Act, 1996 must not be construed as reviving any jurisdiction of the court to set aside or remit an award on the ground of errors of fact or law on the face of award. Arbitration is a process used by the agreement of the parties to resolve disputes. In arbitration, disputes are resolved with binding effect by a person or persons acting in a judicial manner in private, rather than by the regular court of law, that would have jurisdiction to adjudicate, but for the agreement of the parties to exclude it. The Arbitration and Conciliation Act, 1996 is a long leap in the direction of Alternative Dispute Resolution system. It is based on UNCTRAL model. Commenting on arbitration as an ADR technique, Mr. V.R.Krishna Iyar of the Supreme Court observed:Interminable time consuming, complex and expensive curt procedure implied jurists to search for an alternative forum less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to the Arbitration Act

TRIBUNALS IN INDIA:With the acceptance of Welfare ideology, there was mushroom growth of public services and public servants. The courts particularly the High Courts were inundated with cases concerning service matters. The Swarn Singh Committee therefore, inter-alia recommended the establishment of Administrative Tribunals as a part of Constitutional adjudicative system. Resultantly the Constitution (42nd Amendment) Act 1976 inserted Part XIV-A to the Constitution of India consisting of Articles 323A and 323B. Article 323A provides for the establishment of Administrative Tribunals for adjudication or trial of disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and other allied matters. Article 323B makes provision for the creation of Tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and

labour disputes, land reforms, ceiling on urban property, election to Parliament and State Legislatures, etc. Parliament has power to enact any law under Article 323A while both Parliament and State Legislatures can make laws on matters of Article 323B, subject to their legislative competence. Therefore, in some cases, expert bodies like Central Administrative Tribunals constituted under Section 4 of the Administrative Tribunals Act 1985, have been empowered to adjudicate matters relating to service conditions etc. Similarly the Consumer Disputes Redressal Mechanism provided for better protection of the consumers, thereby providing for the establishment of the District Consumer Disputes Redressal Forum at district level, State Consumer Disputes Redressal Commission, at the State Level and National Consumer Disputes Redressal Commission at the National Level to adjudicate the Consumer Disputes/cases under the Consumer Protection Act, 1986. The Income-tax Appellate Tribunal are empowered to hear appeals under Section 253 of the Income Tax Act, 1961, Central Excise and Gold Appellate Tribunal (now known as Central Excise and Service Tax Appellate Tribunal) is empowered to hear appeals under Section 35(b) of the Central Excise and Salt Act, 1944. The Debt Recovery Tribunals set up under the provisions of The Recovery of Debts due to Banks and Financial Institutions Act 1993, have been empowered to adjudicate cases relating to debts /loans of Commercial Banks and Financial Institutions. The tribunal system was evolved in our country to provide an alternative to the regular courts. The tribunals are presided over by the experts of the respective fields and the adjudication mechanism is cost effective, thus less costly in comparison to the regular courts and they are effectively resolving the disputes by taking much less time in comparison to the regular courts.

CIVIL PROCEDURE CODE:The use of ADR, is promoted by the enactment of section 89 of the Code of Civil Procedure which is inserted by Section 7 of the Code of Civil Procedure (Amendment) Act 1999. The courts also encourage the parties to use an ADR procedure in appropriate cases. The Governments including Central Government are committed to settle their legal disputes out of the court by ADR methods whenever the other party agrees for it. Normally ADR is an alternative way of settlement of the disputes or issues. ADR is simple, cheaper, quicker and less stressful to all parties, in comparison to adversarial litigation. CONCILIATION/ MEDIATION:The term conciliation and mediation have not been used with any precision. To begin with the term conciliation1 was used more widely, while of late the term mediation has become more popular. By and large these terms are used inter changeably. Section 61 of the Act1 provides for application of Part-Ill of the Act to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. The provisions

of Part-Ill shall not apply where by virtue of any existing law which is in force, certain disputes may be in the exclusionary category of conciliation. Section 62 of the Act2 provides for commencement of conciliation proceedings. Section 63 provides for the number of conciliators and Section 64 provides for the appointment of conciliators. The parties may submit brief written statement describing the general nature of the dispute and the points at issue with a copy of such statement to the opposite party under Section 65 of the Act. The Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 are not binding upon the conciliators as per the provisions of Section 66 of the Act. The conciliator assists the parties in an independent and impartial manner in their attempt to arrive at an amicable settlement of their dispute. The conciliator is guided by the principles of objectivity, fairness and justice by taking into account the rights and obligations of the parties. The conciliators are free to conduct the proceedings, by taking into account, the circumstances of the case and willingness of the parties, including any request by a party that the conciliator should hear oral statement requiring speedy disposal/ settlement of the dispute. The conciliator is free to make any proposal for settlement of dispute at any stage under Section 67 of the Act. Section 75 of the Act provides that the proceedings before conciliator shall be confidential. The parties shall keep all matters relating to the conciliation proceedings as confidential. The agreement is also confidential except where its disclosure is necessary for the purposes of implementation and enforcement of the settlement. Section 73 empower the conciliator to formulate the terms of a possible settlement and submit the same to the parties for their observance. On observance, if the parties agreed, a written settlement agreement may be signed. The settlement agreement shall be final and binding on the parties and their representatives. The conciliator shall authenticate the settlement agreement and furnish a copy of such agreement to each of the parties under Section 73 of the act.

Arbitration and Conciliation Act, 1996 Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.) Arbitration The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, talex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement

is alleged by one party and not denied by other is also considered as valid written arbitration agreement. Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court. Conciliation Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation. Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both. Note that in USA, this process is similar to Mediation. However, in India, Mediation is different from Conciliation and is a completely informal type of ADR mechanism. Lok Adalat Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority,

Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences. While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court. Permanent Lok Adalat for public utility services In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act, 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at pre-litigation stage itself, which would result in reducing the work load of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

Section 89 of the Code of Civil Procedure, 1908 talks about Settlement of disputes outside the court. The contents of the said section are as follows:

[13]Where it appears to the court that there exists elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

(a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation

Position of ADR in Australia. Historically, in Australia Alternative Dispute Resolution ("ADR") has largely been perceived as a non-judicial function. Indeed, ADR has been described as "a process of solving problems without the assistance of the Courts."1 More recently however, cost pressures and the search for greater efficiencies and fairness has led to a greater focus on ADR processes in the context of the litigation process, a trend which has been driven by both the legislature and the Courts themselves. Mediation is the main form of ADR used in Australian Courts (Victorian). The Victorian Courts refer cases to conferences, which are normally pre hearing conferences, conciliation and sometimes arbitration. Mediation is a process in which the conflicting parties discuss, formulate and reach to a conclusion with the help of a mediating person known as the mediator. The mediator does not decide or advise, he has no advisory role in the proceedings. He, however, does advise on determining the process of mediation. Mediation can be followed voluntarily, by the order of the Honble Court and or existing contractual agreement. The Supreme, the Magistrates and the County Courts have the right to order any part of the proceeding or all of the proceeding to mediation, with or without the consent of the parties.

AUSTRALIA Australia is a Federal State. Under the Constitution of Commonwealth of Australia, powers are divided between the Central Government and the State Government. Arbitration is a matter that is traditionally been covered by State and Territory, rather than Commonwealth, legislation. The Commonwealth Parliament legislates with respect to external affairs, and to trade and commerce with other countries, and in international commercial arbitration. It has done so in the Arbitration (Foreign Awards and agreements) Act 1974, which gives effect to the 1958 New York Convention. All other law affecting commercial arbitration is to be found in the statutes and common law of the States and territories. Arbitration is commonly used to settle building

disputes arising out of insurance policies. In agreements between Australia and other parties, which contain an international element, arbitration is increasingly accepted, as it may lead to the avoidance of problems arising from the conflict of law, especially since the adoption of the 1958 New York Convention, the recognition and enforcement of foreign arbitral awards604. Thus, Australian law on arbitration is based on international conventions, legislations both federal and State and common law which is the judge made law. Australia being party to three international conventions on international arbitration has given effect to it within Australia by federal International Arbitration Act 1974 (IAA). The Part II of the IAA contains the provisions for implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Award of 1958(New York Convention). Part III of IAA gives the UNCITRAL Model Law on International Commercial Arbitration of 1885 a force of law in Australia. Part IV gives effect to the Convention on the Settlement of Investment Disputes between States and Nationals of other States of 1975 (Washington Convention). The State and Territories of Australia all have their own uniform legislation on arbitration, which is called the Commercial Arbitration Act (CAA)605. Australia had no national accreditation system for alternative dispute resolution mechanisms. However, following the National Mediation Conference in May 2006, the National Mediation Accreditation Standards system has apparently started to move to its implementation phase. Mediation is now accepted procedure for resolution of domestic disputes in Australia. Its popularity has grown

remarkably over the past few years. In the area of neighborhood disputes and family law disputes, it has assumed particular importance. It is also used in commercial disputes for a contractual and non-contractual nature. Specialist bodies have been set up for promoting or foster mediation and numbers of instructional courses are offered on mediation skills and techniques606. ADR practitioners recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted, it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes607. The clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers. Mediators must satisfy different criteria to be eligible for a variety of mediator panels. In addition, different mediator organizations have different ideals of what makes a good mediator that in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, such as the Court want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of

mouth. There are inconsistent standards. A National Accreditation System could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency608. Suitable education and training for mediators becomes a complex issue, largely due to the breadth of areas, which may call on mediation as a means of dispute-resolution. The educational requirements for accreditation as a mediator differ between accrediting groups and from Country to Country. In some cases, legislation mandates these requirements; whilst in others, professional bodies impose standards and applicants must comply prior to becoming accredited by them. In Australia, professionals wanting to practice in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediationeducation or training every 12 months. Tertiary institutions globally offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia, not all fields of mediation-work require academic qualifications, as some deal more with the practical skills rather than with theoretical knowledge: to this end membership-organization such as LEADR provide training-courses to further the adoption and practice of mediation609. Internationally the organisation CEDR takes a similar approach to mediator training. No legislated national or international standards on the level of education, which should apply to all mediation practitioners organizations, exist.

However, organisations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation610. A tendency exists for professional to develop their own codes of conduct, which apply to their own members. Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR for use by their members. Other organizations such as the American Center for Conflict Resolution Institute have developed both classroom and distance learning courses, which subscribe to its mission of promoting peace through education611. The CPR Georgetown Ethics Commission, the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated Codes of Conduct for mediators612. The most common aspects of a mediator Code of Conduct include a commitment to inform participants as to the process of mediation, the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest. The requirement for a mediator to conduct the mediation in an impartial manner within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential. The mediators should be mindful of the psychological and

physical wellbeing of all the mediations participants. The mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need. The mediators should seek to maintain their skills by engaging in ongoing training in the mediation process. The mediators should practice only in those fields in which they have expertise gained by their own experience or training. Australia has incorporated mediation extensively into the disputesettlement process of family law and into the latest round of reforms concerning industrial relations under the Work Choices amendments to the Workplace Relations Act 1996. Where prospects exist of an ongoing disputation between parties brought on by irreconcilable differences stemming from such things as a clash of religious or cultural beliefs, mediation can serve as a mechanism to foster communication and interaction. Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations within Australia614 The Governments can also use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policymaking. Mediation in wider aspect can also be used in to prevent conflict or develop mechanisms to address conflicts as they arise615. The Australian Government sought to alleviate the concerns of a

wide section of the population and industry on the decisions implications on land tenure and use by enacting the Native Title Act 1993. A cornerstone of the Act is the use of mediation as a mechanism to determine future native title rights within Australia. Although not barring litigation, the Act seeks to promote mediation through a process incorporating the Federal Court and the National Native Title Tribunal (NNTT). This has a better long tern success by providing flexible and practical solutions to the needs of the various stakeholders. The extensive use of mediation in the resolution of native title matters does not stop the referral of matters to the Courts for resolution, nor is mediation precluded from occurring whilst legal challenges are being pursued. In the cases where native title rights is found to exist over a large portion of the City there is simultaneous use of mediation and formal legal appeals processes. A key feature of Native Title mediation lies in the use of Indigenous Land Use Agreements (ILUAs). These binding agreements are negotiated between native title claimant groups and others such as pastoralists, miners and local governments and cover aspects of the use of the land and any future act such as the granting of mining leases616

There are three main types of ADR processes:

facilitative advisory determinative.

TYPES OF ADR PROCESSES: MEDIATION: Mediation is a form of assisted, structured, problem solving, negotiation process. It is an excellent process for resolving most types of dispute and conflict. It is also highly effective at producing mutually acceptable outcomes when there are competing interests AND an underlying need to resolve the clash amicably, rather than by winning a contest of wills, or resources. The mediator guides individuals, groups, organisations and businesses ("parties") through the mediation process. The main objective is to resolve the dispute or problem constructively and to record the agreement(s) reached in a document that is regarded by all parties as being both morally and legally binding on them. Mediation is easily the most widely used dispute resolution process in Australia - mainly because it is both so flexible and so effective. For over fifteen years we have ourselves consistently achieved successful outcomes in over 90% of our mediations.

In skilled hands, Mediation addresses and removes the causes of conflict, thereby repairing, or at least dignifying, the damaged relationships that are at the core of all disputes. Contrast this with adversarial processes such as litigation, which is designed specifically to deal only with the symptoms of conflict (ie: breaches of the law). The difference is critical when long-term family, friendship, commercial, business or customer relationships are involved. Most Australian courts and tribunals now regard mediation as an important and efficient dispute resolution process. Perhaps it's the ultimate irony that, after submitting to much of the stress and expense of preparing for trial, many courts now require parties to mediate before they allow them their day in court! Mediation Processes The literature suggests a bewildering array of mediation process models, based on a variety of applied principles and philosophies. Our own research, training, teaching and, more than anything else, practical experience of conducting a great many successful mediations over many years, have led us to develop our own signature style of practical mediation. The two mediation processes we describe below are, therefore, the actual processes we deliver. The mediation processes can and have been adapted to suit almost every size and type of dispute, from non-financial family, family business and workplace conflicts to multi-million dollar commercial disputes. Two distinct styles of mediation building the flexibility to respond to the individual needs of each dispute into the processes themselves. These processes are: Facilitated Mediation Directed Mediation. Facilitated Mediation This process follows the classic mediation model. The mediator manages a negotiation process designed to help the parties to develop their own agreement. The mediator does not express opinions, or make recommendations, although they do help to reality check options and proposals. Their main role is to maintain order and to provide direction and momentum in the mediation. Directed Mediation This is a more robust process than Facilitative Mediation. The mediator is expected to use his or her professional knowledge, judgment and experience more pro-actively - to express views and opinions and to make suggestions that will help guide, or nudge, the parties towards resolution.

Which Process ? Mediators have substantial experience and credibility in the areas in which they mediate. They are also exceptionally good at gaining the trust and respect of parties and advisers involved in their mediations. Consequently, most parties choose the Directive Mediation model, with its substantially more pro-active approach. Of course, we are equally happy to use a Facilitative process, whenever requested to do so and there is always the option of changing the process in mid-stream, provided all parties agree to do so. Process Stages Just as we try to keep things simple with our two types of mediation process, so we believe that each process essentially comprises just four fundamental stages, each of which will be familiar to students of problem solving: Stages (1) and (2) - analyse the problem in the here and now. Stages (3) and (4) - develop and implement go-forward solutions. Mediation Process Stages: here and now analysis 1. Identify Issues - Situation and Needs Analysis understand (without judgment) what is going on, what are the perceived problems and what are the parties apparent needs and interests? 2. Assess & Understand - Separate the people (ie: personalities and egos) from the problem (ie: the issues). Deconstruct and analyse the identified problem(s) by: going hard on the problem and easy on the people. go-forward solutions 1. Generate Options Examine possibilities and alternatives through a joint problem solving process. Again, work on the problem, work with the people. Generate options for solutions that could work propositions the other party can easily say yes to. 2. Develop Agreement craft the best and most attractive of the proposed solutions into a workable, written agreement. Produce the best possible outcome for everybody, under all the circumstances.

Example of a Mediation Process As soon as a dispute is referred to us we conduct an intake session to help us, and the parties, to work out and decide which process, style and mediator are best suited to the matter at hand. A typical mediation develops as follows:

1. Preliminary contact. This is usually a telephone or face-to-face contact and may be with one, some, or all of the parties, or their advisers. We see whether the basic chemistry between us is right; offer and explain process options; identify information requirements and sources; identify required outcomes; estimate process time frames and provide estimates of likely costs. 2. Preliminary contact with reluctant party(s). Sometimes, a party to a dispute is resistant to, or even oblivious of, the need to get the problem resolved. If necessary we make contact, provide explanations and get a preliminary commitment to, at the least, start a dialogue. 3. Preliminary Planning Meeting (1 hour). Used to establish trust in the mediator and commitment to the process. The parties define and confirm the problem that needs to be resolved, agree their respective information requirements, set the style for the mediation process, agree costs and how to deal with them and commit to a process timetable. Usually, we involve all the parties in the process from the outset. However, where levels of emotion, aggression or insecurity are very high (eg: family, partnership or workplace conflicts), we may instead initially conduct a series of individual meetings. We much prefer face-to-face communication, but if thats not possible we conduct meetings by phone or video conference. We believe it is essential for us to get a real feel for the people and issues and similarly, for the parties and their advisers to understand us and the way we work. 4. The mediation meeting(s). This is usually a half or a full day meeting. Alternatively, it may comprise a series of shorter sessions with individual, some or all of the parties (especially in family, family business and workplace conflicts). The mediator ensures that: All relevant issues are identified, presented and explored. The needs and interests of all parties are validated and acknowledged. Note that this is not the same as their being accepted. Options and alternatives are generated that could become possible solutions / resolutions. The risks and rewards of adopting the various options and alternatives are considered and evaluated. Solutions, being the perceived best choice option(s) from above, put into some form of workable structure, are agreed by the parties. Finally, when the parties are satisfied that they have arrived at and agreed the best possible mutual solution for their problem or dispute, the mediator helps them to develop a written agreement for signing. The agreement is, or will become, legally binding. The advantages of mediation are that the parties do not have to meet and lawyers can be present or not. Further advantages are as follows: (i) the introduction of the third party mediator enables parties to appraise their cases in confidence;

(ii) the process is focused on the interests of the parties rather than on their legal rights alone additional factors come into play such as external commercial pressures, personal emotions and other surrounding circumstances; (iii) the process is conciliatory by nature there is not an imposition of a solution it is a mutual and consensual outcome; (iv) scope for non-monetary remedies including the provisions for services, payments in kind and apologies. This may be contrasted with the fixed remedies available in litigation those being damages, specific performance and injunction etc; (v) quick, cheap and confidential. The process is conducted under the "without prejudice" head of privilege. Further, discussions in mediation cannot be discussed in litigation or arbitration proceedings; (vi) a more reflective approach to solving disputes the process provides parties with an opportunity to focus on the issues in dispute, consider the true economic costs and risks and will provide an opportunity to re-establish lines of communication which are often broken when the dispute escalates. However, mediation may be negative in that: (vii) It is not appropriate where a court remedy is necessary e.g. injunctions, specific performance; (viii) The mediator has no power to impose a binding decision on the parties; and 3. (ix) Mediation rarely produces a satisfactory resolution unless both parties to a dispute are committed to a resolution. Conciliation: Many complaints that the Australian Human Rights Commission receives are resolved through conciliation. Conciliation is an informal, flexible approach to resolving complaints matters can be settled by an exchange of letters, a telephone negotiation between the Commission and the people involved, a telephone conciliation conference or a face to face conciliation conference. We will discuss with you the best way to try and resolve the complaint and what sort of outcome you are seeking. We will also talk with the respondent about the options they have

and the benefits of resolving the complaint through conciliation. The conciliation conference is not a public hearing, a court of law or a tribunal. That means parties do not have to prove or disprove the complaint. Instead conciliation allows people to state their point of view, discuss the issues in dispute and settle the matter on their own terms. There is generally no need for legal representation. However, parties may request that a lawyer, advocate or support person attend the conference with them. The Commission is an impartial third party during the conciliation process. Our role is to assist the parties to consider different options to resolve the complaint and provide information about possible terms of settlement. We can also help write up the conciliation agreement. Outcomes will vary depending on the nature of the complaint. However, agreements can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or putting in place anti-discrimination policies. If the complaint cant be resolved through conciliation, you can apply to have the matter heard in the Federal Court of Australia or the Federal Circuit Court of Australia

Arbitration Each of the States and Territories have introduced uniform Commercial Arbitration Acts. In NSW this is the Commercial Arbitration Act 2010. Arbitration is when the matter in question is determined by a professional arbitrator who is usually given the power to impose a binding decision on both parties. Arbitration can, in that sense, be seen as a direct replacement for litigation and is usually complex and potentially expensive. The advantages of arbitration is that it avoids using the courts and is confidential. It is therefore advantageous for companies wishing to continue a business relationship after the dispute or looking to minimise negative publicity. In comparison to litigation, it is speedier and more informal, and the exclusionary rules of a hearing do not apply (in other words, everything can come into evidence so long as it is relevant and non-cumulative). Furthermore, there is limited discovery, since it is controlled by what the parties have agreed upon.

The disadvantages mainly concern costs with arbitrations potentially taking a similar amount of time to litigation. An arbitrators award may only be appealed on the limited grounds of manifest error of law on the face of the award, where the question is one of the general public importance and the decision of the arbitrator is at least open to serious doubt or misconduct.

Early Neutral Evaluation ("ENE") ENE is a non-binding ADR process where a neutral party gives non-binding evaluations on the merits and flaws of a dispute. Apart from the general advantages over litigation that ADRs offer, specifically ENE is advantageous in that the opinions of a mutually respected neutral individual may assist in the negotiations and the opinion from a QC/retired judge etc can assist the parties to break deadlock. Disadvantages include the fact that the process is non-binding and parties can ignore an opinion that they do not agree with. Expert Determination Expert Determination is a process whereby an independent third party, with recognised expertise in the subject matter in dispute between the parties, assists the parties to resolve their dispute. (i) Advantages: can be effective where the parties anticipate a specific type of technical dispute arising in which the expertise of the decision maker will be critical, such as technical engineering disputes; quicker/cheaper than litigation/arbitration; confidential; gives parties a greater knowledge of how the factual evidence is likely to be decided if the case goes to trial (ii) Disadvantages: expert has no power to force his findings on the parties. The parties may provide that the determination of the expert is final and binding upon them, but recourse to the Courts is still necessary to enforce any determination.

ADR in the Courts In 1996 Lord Woolf, Master of the Rules, published a report on access to civil justice in the United Kingdom. Included within this report were recommendations as to the adoption of prelitigation protocols to encourage a more co-operative approach to dispute resolution, to promote fair settlements and to avoid litigation wherever possible.4 The pre-litigation protocols, which were later developed, provided guidelines which parties to prospective litigation were expected to follow before commencing proceedings before the Courts. The purposes of such protocols were: (a) to focus the attention of litigants on the desirability of resolving disputes without litigation; (b) to enable them to obtain the information they reasonably need in order to enter into an appropriate settlement; or (c) to make an appropriate offer (of a kind which can have cost consequences if litigation ensues); and (d) if a pre-action settlement is not achievable, to lay the ground for the expeditious conduct of the proceedings. Lord Woolf noted that the vast majority of cases in the UK settled without trial, by negotiation and considered that pre-litigation protocols would further encourage early settlement. 5.

In 2009 Lord Jackson conducted a review of the costs of civil litigation in the UK.5 Lord Jackson found that pre-action protocols were of benefit in particular categories of litigation (e.g. construction, large scale commercial litigation), but the adoption of a protocol applicable to all general litigation had led to substantial delay and additional cost. He recommended that the general protocol be repealed, because "one-size does not fit all".6 Regrettably, the Australian Government has not heeded Lord Jacksons recommendations. From 2008 a number of reports were produced in Australia which recommended parties to litigation take "genuine" or "reasonable" steps to resolve disputes before commencing litigation, which steps might include, but need not necessarily include, ADR processes.7 The Civil Dispute Resolution Act (2011) Cth ("Act") came into effect on 1 August 2011. The objects of the Act are: (a) to change the adversarial culture often associated with disputes;

(b) to have people turn their minds to resolution before becoming entrenched in a litigious position; and (c) where a dispute cannot be resolved and the matter proceeds to court, the issues are identified reducing the time required for a court to consider the matter.8 The Act applies to the Federal Court of Australia and the Federal Magistrates Court and requires an applicant to file a genuine steps statement at the time of filing the application. The genuine steps statement must specify the steps taken to resolve the issues in dispute or, if no such steps have been taken, to provide appropriate reasons. An example of the latter is the urgency of the proceedings.9 A respondent is also required to file a genuine steps statement before the first directions hearing. This statement is required to state whether or not the respondent agrees with the applicants genuine steps statement and to specify any disagreement.10 The Act is not prescriptive as to the genuine steps a litigant is required to take. Section 4 provides that a person takes genuine steps to resolve a dispute: ".if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the persons circumstances and the nature and circumstances of the dispute." 6.

The Act does provide examples of genuine steps which might be taken which include attempting to negotiate, providing relevant documents and information and considering and participating in an ADR process.11

Lawyers are obliged to inform their clients of the above obligations and assist them to comply.12 A failure to do so may result in a costs award against the lawyer.13 While the failure to file a genuine steps statement does not invalidate proceedings14 and, for the moment at least, the Federal Court Registry has been accepting applications without a genuine steps statement, the failure to comply with these requirements may result in an award of costs against the defaulting party. Finally, the Act provides that the Courts may make rules providing for the form of genuine steps statements and the matters which are to be specified in them16.

The Federal Court Rules provide that an applicant must file a genuine steps statement in accordance with the requirements of the Civil Dispute Resolution Act at the time of filing the original application.17 However, apart from providing for a form the Rules do not, as yet, provide any guidance as to the genuine steps which must be undertaken by a party. Various concerns have been expressed about the genuine steps requirements and, in particular, the "one-size fits all approach", which Lord Jackson recommended against. Such concerns include an increase in the costs of litigation, particularly in matters of a minor commercial nature where resolution is unlikely. It has also been suggested that the genuine steps requirements will give rise to mini-trials concerned with whether or not the requirements have been complied with and what the consequences of any non-compliance should be. It is fair to say that the Federal Court was not an enthusiastic proponent of the genuine steps requirements and, thus far, has taken a light touch to these obligations. Whether this continues or the Court decides to be more prescriptive in terms of the genuine steps parties are required to take, remains to be seen.

 OBJECTIVE: 2) To compare the ADR Systems in India and Australia on the basis of key parameters and identifying similarity ,differences and possible reforms

Parameters

ADR IN INDIA

ADR IN AUSTRALIA

Types (a)arbitration; (b)conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation (a) (b) (c) (d) Arbitration Mediation Conciliation Early Neutral Evaluation ENE

CONCLUSION:The justice dispensation system in India has come under great stress for several reasons, mainly due to huge pendency of cases in the courts. Alternative Disputes Resolution is a mode of resolution of disputes through arbitration, conciliation or mediation which provides an alternative route for resolution of disputes instead of resolution of such disputes through courts. The principle of ADR are successfully adopted in the Indian Legal System as an alternative to the justice delivery system. With the advent of the alternate dispute resolution, there is new avenue for the people to settle their disputes. The settlement of disputes in Lok Adalath quickly has acquired good popularity among the public and this has really given raise to a new force to alternate dispute resolution and this will no doubt reduce the pendency in law Courts. The scope of alternate dispute resolution system (ADR) has been highlighted by the Honble Chief Justice of India in his speech in the joint conference of the Chief Ministers of the State and Chief Justice of High Courts, held at Vigyan Bhavan, New Delhi on September 18, 2004 and insisted the Courts to try settlement of cases more effectively by using alternate dispute resolution system so as to bring down the large pendency of cases in law Courts. I conclude the article by saying that alternate dispute resolution will really achieve the goal of rendering social justice to the parties to the dispute, which is really the goal of the successful judicial system.

With a very laudable objective of speedy disposal of cases, Alternative Dispute Resolution Mechanism (ADR) is mooted. Among the modes of Alternative Dispute Resolution Mechanism, Arbitration is most discussed issue always as many agreements or contracts contain an Arbitration Clause now-a-days. The difference between Arbitration Mechanism and the adjudication through Civil Court etc. issues can be summed up as follows: 1. There is no need of paying court fee when a dispute is adjudicated by an Arbitrator. 2. Arbitrator is less burdened compared to Civil Court and the parties have the liberty of choosing their own judge. 3. Arbitrator need not follow the procedure prescribed under Civil Procedure Code, 1908 though he will follow the principles of natural justice. 4. The procedure, the fees, the place of Arbitration etc. can be mutually agreed by the Parties and in the absence of any consensus, the Court or the Arbitrator will take a decision on the issues. Despite so much relaxation in the established civil procedure, the adjudication before the Arbitrator or the issue of getting an Arbitrator appointed is delayed very often. The general issues or challenges to the adjudication through Arbitrator are as follows: 1. Even when there is no real lis between the parties, one party to an agreement containing Arbitration clause, may initiate Arbitration proceedings with untenable claim.

2.

3.

4. 5.

The issue is settled to some extent now in view of the recent development that the Court entertaining an application under section 11 of Arbitration and Conciliation Act, 1996 discharges judicial function and can look into the issues as to whether there is any existing agreement prima facie, whether there is any lis between the parties and whether the subject matter is capable of being arbitrated. When there exist a special mechanism dealing with certain issues, the adjudication before the Arbitrator may not appear to be effective. For example, Rent Control Laws provide many reliefs to the tenants and also the landlords. There is a provision for deposit of rent by the tenant when the landlord refuses to receive the rent under the Rent Control Laws. When it comes to depositing rent, the Arbitrator may not be effectively deal with the issue. c. Even when there is no specific provision under the Arbitration and Conciliation Act, 1996, litigants who wants to drag the case may file many interim applications. When an interim application is filed, the same can be rejected by the Arbitrator when it is found that the interim application is unnecessary and motivated to drag the case. But, in many cases, the Arbitrator entertains the interim applications and disposes the same in accordance with law and it consumes time as is the case before the Civil Court. Against the order in the Interim Application, an aggrieved party tends to approach the High Court under section 34 as we see practically. When hearing fees is fixed or agreed to the Arbitrator, then, at times, the Arbitrator may feel it convenient to grant so many adjournments and it is happening as we wee. Even when a fixed fee is ordered to pay to the Arbitrator or agreed upon, the parties usually not pay the entire fee in the beginning. Till the fee is paid the Arbitration proceedings will go on at times, though the Arbitrator can exercise his right of lien over the award until his agreed remuneration or fee is paid.

Looking at the pendency of cases before various courts in India, if we think about the time to be taken for disposing all the pending cases, it is recently reported that it will take some 320 years to dispose of the pending cases or to clear the backlog. Arbitration mechanism is always Alternative, but, still we depend on the Civil Courts and the procedure lay down under the Code of Civil Procedure, 1908 for getting the civil disputes adjudicated. We need many reforms in our judicial system in India to ensure speedy disposal of cases and it will certainly take years to bring the proper reforms. Simultaneous to bringing the proper reforms or initiating measures to bring the reforms in our Indian Judiciary aiming at speedy and effective disposal of cases, we also need to concentrate as to how make the Arbitration Mechanism truly effective. The measures to make the Arbitration Mechanism truly effective, as I think, are as follows: 1. Rather practicing to appoint retired judges as Arbitrators, it is better to have panel of Arbitrators who are talented and with very good legal knowledge. There is nothing wrong if a practicing legal advocate is appointed as an Arbitrator when he is willing to act as such.

2. When it comes to the fee or the remuneration to be paid to the Arbitrator, it is better to fix lumsum remuneration for deciding an issue and having mechanism that the entire fee is paid to the Arbitrator at once. 3. It is better to avoid the practice of paying sitting fees to the Arbitrators if one needs to make the adjudication through arbitration really speedy. 4. Applications under section 34 of Arbitration and Conciliation Act, 1996 to be carefully gone into and the implications of entertaining an application under section 34 on the main Arbitration claim before the Arbitrator to be carefully considered. 5. The present legal position with regard to appointment of Arbitrators to be continued and the process of appointment of arbitrators to be judicial always. Arbitration Mechanism can be made truly effective and I dont think that the mechanism is truly effective as of now for the few among many reasons referred to above.