Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Prakash Yedhula (Lawyer)     25 December 2007

Arbitration, Conciliation, Mediation & Alternative Disputes Resolution

ARBITRATION

A process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.

CONCILIATION

The adjustment and settlement of a dispute in a friendly, unantagonistic manner. Used in courts before trial with a view towards avoiding trial and in labour disputes before arbitration.

MEDIATION

Private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties.

ALTERNATIVE DISPUTE RESOLUTION

Term refers to procedures for settling disputes by means other than litigation for example by arbitration, mediation, mini- trials. Such procedures, which are usually less costly and more expeditious, are increasingly being used in commercial and labour disputes, divorce actions, in resolving motor vehicle and tort claims, and in other disputes that would likely otherwise involve court litigation.


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 2 Replies

Shree. ( Advocate.)     18 April 2008

FAQ ON ADR:
1.Why Do We Have Disagreements, Disputes and Conflicts?
Each person is unique. And, this uniqueness being positive, also creates differences. As unique individuals, each of us has unique behaviors ‘forms of action’ we utilize to get the things we need and want. This is sometimes referred to as our innate survival instinct.

2.What Is The Difference Between A Position And An Interest?
A Position is a demand or a preferred course of action. It is specific. It involves doing, taking a stand on one’s belief. A position is “If you don’t do that, then I’ll to do this.

An Interest is the reason(s) for a position or an objective. An interest is more general than a position, and open to interpretation. It is not an action. An interest can be financial well-being, fair work rules, retaining control, maintaining privacy, personal safety or the right to be treated with dignity.
3.What Is The Difference Between A Disagreement, Nuisance, Complaint, Problem, Dispute And A Conflict?
Part of the education processes is determining what you have before trying to resolve it.

Disagreement is a general expression used to encompass the characteristics of a nuisance, complaint, problem, dispute and conflict.

Is there a hierarchy in the formation of a disagreement? Maybe. One thing is sure; most everything starts with a thought in one’s mind. This thought comes about in the form of an irritation or nuisance.

Nuisance: Interference with one’s personal enjoyment and with a person's use and enjoyment of his/her property. An act which causes inconvenience, discomfort, or harm (unintentional or intentional) that is persistent or likely to re-occur. Annoyance, an unvoiced inequity or hidden fear is sometimes referred to as nuisances as they occur within us without the other party being aware of the situation or our feelings.

Complaint: A nuisance that has been made known to another person. A complaint generally takes on a positional viewpoint where a desired outcome is perceived.

Problem: An obstacle which makes it difficult to achieve a desired goal, objective or purpose. A problem is the unplanned or unexpected incongruity that exists between the actual ‘reality’ and a predefined standard or expectation. It generally starts as an internal divergence within an individual’s mind, such as a struggle to make a decision, take an action, or overcome a feeling.

Dispute: Disputes are generally ‘opinion-based’ over which parties take sides and actively disagree, argue, or debate. Disputes are short-term disagreements that are relatively easy to resolve. Disputes involve interests that are negotiable. It is possible to find a solution that at least partially meets the interests and needs of both parties.

Conflict: Conflict is an ‘issue’ clash between two opposing groups or individuals. Conflicts are long-term problems and disputes that usually involve non-negotiable issues. Conflict issues generally involve fundamental human psychological needs for identity, security, and recognition. Conflicts are characterized as disagreements between parties of which only one possible outcome would be acceptable. Usually this outcome is non-negotiable, not easily defined and not majority held. And, in a circuitous way facilitates a convergence of community within each group or individuals that precipitates a higher meaning than the conflict itself.
4.How Do You Resolve A Disagreement?
Resolution is usually achieved through a) education; b) a willingness to be educated; c) a willingness to forego the past; d) the ability to enter into a new realm. Each one of these variables has considerable psychology and philosophy involved, plus intra-personal and inter-social consequences. For example, a willingness to be educated requires a personal acknowledgment to be open to receive information; ability to neutrally critique information authenticity and value, and the desire to become something (better or worse) than you were before. Likewise, a willingness to forego the past requires mental amnesia. The ability to forgive and forget. The ability to enter into a new realm requires an acknowledgment of one’s comfort zone and courage to expand it.

5.Is There A ‘Best Practice’ Approach In Resolving Disagreements?
Every situation or issue has its own unique circumstances and history. Before investing time talking to the other side, it is best that you determine where you stand and gather together your thoughts. The word ‘resolution’ implies that you want to achieve a solution. The hardest step, which should be the first step, is to create a decision matrix. A decision matrix allows you and the other side to structure the situation or issue. Sometimes when dealing with nuisances, which are generally one-sided, we must internally explore our own thoughts. A decision matrix generally has three components. The first component is to specify and prioritize our interests and needs. Once this has been accomplished, the next component is to determine and evaluate different solutions for each of the interests and needs. The third component is to select options that best match an overall acceptable solution. After these three components have been complied and written, now is the time to approach the other party.

6.What Is Alternative Dispute Resolution, known as ADR?
Alternative Dispute Resolution (ADR) is a cost effective and time efficient method of resolving current disputes avoiding lengthy and expensive legal litigation. It keeps matters private between parties, preserves and possibly improves the disputants’ relationships and creates ‘win-win’ situations.

7.What Are The Advantages Of Alternative Dispute Resolution?
The advantages of ADR are numerous and include:

• Savings in legal costs and time

• Confidentiality

• Flexibility in process

• Preservation of relationship

• Suitability for multi-party disputes

• Practical solutions

• Timely Resolution

• Decreased stress

8.What Are The Types Of Alternative Dispute Resolution?
Generally, the types or approaches utilized are:

• Ombudsman /Ombudsperson

• Mediation. Also includes: Conciliation - Expert Determination - Consensus decision-making

• Arbitration

• Collaborative Law

Guest (n/a)     11 August 2008

Can a person who has been trained in Mediation practice as a Private mediator or he is governed by some regulations?


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