Вы находитесь на странице: 1из 9

Introduction to Dispute

Resolution
Dispute resolution is an indispensable process for making social
life peaceful. Dispute resolution process tries to resolve and check
conflicts and maintain co-operation between different groups.

The noun dispute means any conflict or disagreement. The process of


resolving disputes between different parties is known as dispute
resolution. The term conflict resolution is also used in place of dispute
resolution. Dispute resolution includes processes and techniques that
act as a means for the disagreeing parties to come to an agreement.
Dispute resolution processes can be used to resolve any type of dispute
including family, neighborhood, employment, business, housing,
personal injury, consumer, and environmental disputes.

Different methods of dispute resolution include litigation, arbitration,


collaborative law, mediation, conciliation, negotiation and facilitation.
These methods can vary from being presented in court to simple
discussion in a room. Dispute resolution processes fall into two major
types i.e. adjudicative and consensual processes. Processes like litigation
or arbitration come under the adjudicative while processes like
mediation, reconciliation, negotiation and collaboration

https://en.wikipedia.org/wiki/Dispute_resolution
https://en.wikipedia.org/wiki/Alternative_dispute_resolution
https://www.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-
resolution-what-to-know-about-mediation-arbitration-and-litigation/
https://www.lawteacher.net/free-law-essays/contract-law/methods-of-dispute-resolution-contract-law-
essay.php
https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/
Introduction to different
methods of dispute resolution
Lawsuit (Litigation) – A lawsuit is a proceeding by a party or parties against
another in the civil court of law. A lawsuit may involve dispute
resolution of private law issues between individuals, business
entities or non-profit organizations. Rules of criminal and civil
procedure govern the conduct of a lawsuit in the common law system for
dispute resolution. Procedural rules are constrained and informed by
separate statutory laws, case laws, and constitutional provisions that
define the rights of the parties to a lawsuit. A lawsuit may also enable
the state to be treated as if it were a private party in a civil case, as
plaintiff, or defendant regarding an injury, or may provide the state with a
civil cause of action to enforce certain laws. The conduct of a lawsuit is
called litigation.

Arbitration - Arbitration is a form of alternative dispute resolution i.e. it is a


way to settle disputes outside the court. The dispute will be decided by one
or more persons known as arbitrators, arbiters or arbitral tribunal, which
renders the arbitration award. Formal Arbitrators are legal professionals,
usually attorneys or retired judges. They are qualified to make a definite
decision based on the presented facts. In some jurisdictions, arbitrators
are assigned to a case while in others the parties have at least some say in
the choosing of the arbitrator.
Arbitration can be either voluntary or mandatory. Binding arbitration
means the parties have waived their right to trial, accepting the decision of
the arbitrator as final. An arbitration award is legally binding and
enforceable by the courts. Here even if one party is unhappy, it cannot be
reviewed or reversed by a court, unless there has been fraud or abuse of
power. A decision in non-binding arbitration may be rejected by either
party, and a trial requested. Arbitration is used to resolve
commercial disputes, particularly in international transactions.

https://legaldictionary.net/alternative-dispute-resolution/
https://en.wikipedia.org/wiki/Lawsuit
https://en.wikipedia.org/wiki/Arbitration

2
Mediation – Mediation in case of law is a form of alternative dispute resolution i.e.
it is a way of resolving disputes between two or more parties typically assisted by a
third party, the mediator, assisting the parties to negotiate a settlement. The mediator
acts as a go-between while the parties go back and forth on their demands. The
parties often meet in a neutral location or in separate conference rooms at the office
of a professional mediator. Initially parties meet in one room to make brief
presentations to the mediator, then the mediator goes back and forth between the
parties, sharing information and relaying offers and responses between both the
parties. The goal of a mediator is to guide both the parties into an agreement
acceptable to all parties. Mediation is a "party-centered" process that focuses
primarily upon the needs, rights, and interests of both the parties. The mediator uses
a variety of techniques to help the process in a constructive direction and to help the
parties find the most optimum solution. Rather than imposing a solution, a
professional mediator works with the conflicting sides to explore
the interests underlying their positions. In India the Village Panchayats and the
Nyaya Panchayats are also a place which provide mediation.

Conciliation – Conciliation is another method of alternative dispute resolution in


which the parties use a councilor to resolve between them. The councilor meets with
the different parties both separately and together in an attempt to resolve the dispute.
They do this by lowering tensions, improving communications, interpreting issues,
encouraging parties to explore potential solutions and assisting parties in finding a
mutually acceptable outcome. The attempt to conciliate is generally done by
showing each side the contrary aspects of the dispute, in order to bring each side
together and to reach a solution. Conciliation differs from arbitration in the way that
the conciliation process has no legal standing, and the councilor has no authority to
seek evidence or call witnesses, usually writes no decision, and makes no award and
often the parties are in need of restoring or repairing a relationship, either personal
or business. Section 61 of the 1996 Act provides for conciliation of disputes arising
out of legal relationship, whether contractual or not and to all proceedings relating
thereto. After its enactment, there can be no objection, for not permitting the parties
to enter into a conciliation agreement regarding the settlement of even future
disputes.
There is a difference between mediation and conciliation. In case of meditation, the
third party i.e. the neutral intermediary, termed as mediator plays a more active role
by giving independent compromise formulas after hearing both the parties but in
case of conciliation, the third neutral party’s role is to bring the parties together in a
frame of mind to forget their animosities and be prepared for an acceptable
compromise on terms midway between the stands taken before the commencement
of conciliation proceedings.

https://en.wikipedia.org/wiki/Mediation
https://legaldictionary.net/alternative-dispute-resolution/
https://www.lawctopus.com/academike/arbitration-adr-in-india/
https://en.wikipedia.org/wiki/Conciliation
3
Negotiation – Negotiation is the diplomatic connotation as a dialogue between
two or more people or parties intended to reach a beneficial outcome over one
or more issues where a conflict exists with respect to at least one of these
issues. Compared to other processes using mutual third parties like
conciliation and mediation, it allows parties themselves to control the process
and reach the solution. Negotiation is aimed to resolve differences, to gain
advantage for the individual or collective, or to craft outcomes to satisfy
various interests. It is often conducted by putting forward a position and
making concessions to achieve agreement on the topic. The degree to which
the negotiating parties trust each other to implement the negotiated solution is
a major factor in determining whether negotiations are successful. In India,
Negotiation doesn’t have any statutory recognition. Negotiation is self-
counseling between the parties to resolve their dispute. Negotiation is a
process that has no fixed rules but follows a predictable pattern.

Collaborative law – Collaborative law also known as collaborative


practice, or family law is a legal process enabling couples that have decided to
separate i.e. to end their marriage, to work with their lawyers and to avoid the
uncertain outcome of court and to achieve a settlement that best meets the
needs of both parties and their children without the threat of lawsuit. The
process helps the different parties to have a fair settlement. The voluntary
process gets initiated with the couple signing a contract (a "participation
agreement") binding each other to the process and disqualifying their
respective lawyer's right to represent either in any future family-related
lawsuit.

Facilitation – Facilitation is any activity that makes a social process easier.


This process includes a facilitator. A facilitator helps a group of people to
understand their common goals and assists them to achieve these objectives
and in doing so, the facilitator remains neutral, i.e. the person does not take a
particular side or position during the process. Some facilitators try to assist the
group in achieving a consensus on any disagreements that may pre-exist or
emerge in the meeting so that the process and its result has a strong basis for
future action.

https://legaldictionary.net/alternative-dispute-resolution/
https://www.lawctopus.com/academike/arbitration-adr-in-india/
https://en.wikipedia.org/wiki/Negotiation
https://en.wikipedia.org/wiki/Dispute_resolution
https://en.wikipedia.org/wiki/Collaborative_law
https://en.wikipedia.org/wiki/Facilitator

4
Alternative Dispute Resolution
Alternative dispute resolution (ADR) also known as extrajudicial dispute
resolution refers to any methods used to resolve a dispute without using
litigation includes processes such as arbitration, collaborative law,
conciliation, negotiation, facilitation and mediation are different
processes used to resolve conflict or potential conflict between different
individuals, business groups, governmental agencies, or non-
governmental organizations. Alternative dispute resolution has a benefit
of reducing the load on the overburdened court system. In addition, it can
often be a less expensive solution for all parties. It has also gained broad
acceptance in the business and legal community. In fact, courts in some
jurisdictions require parties to engage in some type of alternative dispute
resolution before the matter can proceed to trial.
With the coming of the East India Company the British government gave
legislative form to the law of arbitration by promulgating regulations in
Calcutta, Bombay and Madras. Alternative Dispute Resolution began
gaining popularity in the U.S. legal system since the civil unrest of the
1960s. In India, Indian Arbitration Act, 1899 was one of the first laws
related to alternative dispute resolution. This Act was substantially based
on the British Arbitration Act of 1889. It expanded the area of arbitration
by defining the expression ‘submission’ to mean “a written agreement to
submit present and future differences to arbitration whether an arbitrator
is named therein or not”. The Geneva Protocol on Arbitration Clauses
1923 and the Geneva Convention on the Execution of Foreign Arbitral
Awards 1927 have been implemented in India by the Arbitration
(Protocol and Convention) Act of 1937. This Act was enacted with the
object of giving effect to the Protocol and enabling the Convention to
become operative in India.
https://www.lawctopus.com/academike/arbitration-adr-in-india/
https://legaldictionary.net/alternative-dispute-resolution/
https://en.wikipedia.org/wiki/Alternative_dispute_resolution
https://www.law.cornell.edu/wex/alternative_dispute_resolution
http://www.courts.ca.gov/3074.htm
https://en.wikipedia.org/wiki/Dispute_resolution

5
The Arbitration Act of 1940, dealt with domestic arbitration only. Under this
act, intervention of the court was required in all the stages of arbitration in
the tribunal, i.e. prior to the reference of the dispute, during the
proceedings, and after the award is passed. Later the government in an
effort to modernize the 1940 Act enacted the Arbitration and Conciliation
Act of 1996.

Alternative dispute resolution generally depends on agreement between


the parties using these processes, either before or after a dispute has
arisen. Alternative dispute resolution has experienced steadily increasing
acceptance and utilization because in many cases it offers greater
flexibility, lower costs than those of lawsuits, and speedy resolution of
disputes, among other advantages. However, these methods have also
been criticized as these methods are taking away the right to seek or
redress of grievances in the courts, suggesting that these methods of
dispute resolution may not offer the fairest way for both parties and not
provide an equal bargaining relationship.
Alternative dispute resolution has several advantages over litigation i.e.
where multiple parties are involved, lowers costs, increases speed of
settlements, increases flexibility of process, increases parties control over
process, provides parties choice of forum, provides practical and suitable
solution for both parties, can also consider wider range of issues, and
concerns shared concern of parties, provides confidentiality and increases
ability of risk management alternative dispute resolution can be used to
resolve virtually any disagreement, including those between neighbors,
business partners, and labor unions, as well as family law matters.
Alternative dispute resolution is useful in solving issues related to breach
of contract, wage negotiations, property matters, and libel or slander. But
the cases where there is a need of precedent, court order, interim order,
evidential rules, enforcement, power imbalance between parties, criminal
allegations, or severe complexity in breach of the law the need for lawsuits
is better suited than alternative dispute resolution.

https://www.lawctopus.com/academike/arbitration-adr-in-india/
https://legaldictionary.net/alternative-dispute-resolution/
https://en.wikipedia.org/wiki/Alternative_dispute_resolution
https://www.law.cornell.edu/wex/alternative_dispute_resolution
http://www.courts.ca.gov/3074.htm
https://en.wikipedia.org/wiki/Dispute_resolution

6
Comparison between different
methods of Dispute Resolution
Since the birth of intellectual intelligence disputes have existed and it has been
necessary to solve these disputes. Every dispute has a different reason and
every party has a different agenda. If negotiation between the parties failed
several times third parties need to get involved to resolve the dispute.
Litigation and the traditional court systems as they are known today began in
Rome then flourished in England and spread around the world. Negotiation,
mediation, arbitration, and litigation are main potential methods of dispute
resolution. Negotiation, Mediation and arbitration are considered methods of
alternative dispute resolution. In Modern era, Alternative dispute resolution
has been used to settle disputes labour disputes, business disputes, consumer
disputes etc. Generally, Alternative dispute resolution is faster and less
expensive than litigation.

Litigation is considered to be more expensive and time consuming than


alternative methods of dispute resolution. Issues of jurisdiction and lack of
expertise of the judge in the field of may prevent the finer details of a case
from being addressed. The decision of the court will benefit one party and
make a future relationship troublesome. Also upon the conclusion of a case the
documents become public record.

Negotiations are the least formal of the proceedings. Negotiations take place
regularly between two companies when conducting business. Two party
involvement limits outside influence and allows parties to focus of the
problem solving at hand. Potential disadvantages to negotiation include lack of
motivation by the parties involved to come to an agreement in a reasonable
timeframe. In complex disputes, the assistance of a third party can help to
reach a solution to the problem. Collective bargaining agreements also take
place in large industries. These provide employees and employers the rights
and terms of condition for employment and fair treatment.

https://www.lawteacher.net/free-law-essays/contract-law/methods-of-dispute-resolution-contract-law-essay.php
https://www.lawteacher.net/free-law-essays/contract-law/methods-of-dispute-resolution-contract-law-essay.php
https://www.lawteacher.net/free-law-essays/civil-law/importance-of-alternative-dispute-resolutions.php
https://en.wikipedia.org/wiki/Dispute_resolution
https://www.law.cornell.edu/wex/alternative_dispute_resolution
https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/
https://www.pon.harvard.edu/category/daily/dispute-resolution/
7
Mediation is a voluntary procedure. An agreement to mediate may, or may not
be specified in a contract. Mediation benefits both parties because it allows
discussion to take place in a friendlier environment than arbitration or
litigation.

Many of the alternative dispute resolution procedures are private


proceedings and may only be viewed by outside parties with the consent
of the mediator and both the parties. In the case of an Arbitration, parties
have a right to request a specific arbitrator. The arbitrator must meet the
standards for impartiality and independence. If parties fail to appoint an
arbitrator the court appoints one. Litigation has some advantages over
arbitration. The courts decide cases based on law and precedence, not just
a mutually beneficial and equitable to both parties. The rules of evidence
do not exist in the same manner as litigation potentially allowing for
claims to be proved by means that would be inadmissible in court.

It is usually in the best interest of the parties involved to seek the


alternative methods of dispute resolution compared to litigation as
alternative dispute resolution helps to protect the common interest of both
parties and helps maintain or resolve the relationship between the parties.
The method of resolving dispute vary case by case depending on the
nature of case, parties involved, complexity of dispute, intent and beliefs
of parties involved. The best way to maintain a good relationship is to
pursue the least formal method of alternative dispute resolution,
negotiation, and then progress to mediation and finally arbitration to
resolve a dispute if necessary. In complex cases such as collective
bargaining, business dealings etc. agreement’s having a neutral third-
party present can often help resolve major disputes. Use of a mediator
keeps the decision in the hands of the disputants, while arbitrating give
authority to the arbitrator to issue binding decision. In these kinds of
cases litigation should usually be the last possible means of resolution
because it is often most expensive, time consuming, and stressful to the
business relationship and company reputation.

https://www.lawteacher.net/free-law-essays/contract-law/methods-of-dispute-resolution-contract-law-essay.php
https://www.lawteacher.net/free-law-essays/contract-law/methods-of-dispute-resolution-contract-law-essay.php
https://www.lawteacher.net/free-law-essays/civil-law/importance-of-alternative-dispute-resolutions.php
https://en.wikipedia.org/wiki/Dispute_resolution
https://www.law.cornell.edu/wex/alternative_dispute_resolution
https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/
https://www.pon.harvard.edu/category/daily/dispute-resolution/
8
Conclusion
Conflict is inevitable in this modern society and with conflict arises dispute
and the need to resolve these disputes. dispute resolution processes have been
developed to manage and intervene in these types of disputes. Dispute
resolution being the process to resolve dispute between different parties by
different methods. These methods including litigation, arbitration, Negotiation,
mediation etc. What these methods represent has been included in this project
and it can be concluded that each of the methods have various advantages as
well as various disadvantages.

The methods of alternative dispute resolution are more suited to the parties
involved and have a more calming effect on their relationship compared to
other methods. Main motives of dispute resolution are to stop conflict, settling
the issue and resolve the underlying issue which caused problems.

There is a wide variety of dispute resolution processes, ranging from informal


discussion to formal adjudication. Alternative dispute resolution has several
advantages over litigation but in several situations concerning with need of
precedent, evidential rules, enforcement of power imbalance between parties,
criminal allegations, and breach of the law there is a necessity for lawsuits.

Finally, it can be concluded that the method of resolving any particular dispute
often varies depending on various situations which may include the
complexity of the case, parties involved, intent of each party and beliefs of
parties involved.