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What is Alternative Dispute Resolution? A complete scrutiny on Arbitration,Mediation & Negotiation

Updated: Jun 22, 2020


CONCEPT OF LITIGATON, ARBITRATION, MEDIATION AND NEGOTIATION AND ITS ADVANTAGES


LITIGATION:

“Fiat justicia, pereat mundus”

“Justice must prevail even if the world must perish over it”. Such was the motto of the German Emperor Ferdinand I (1556-1564).

The main reason behind the process of Litigation is to seek justice. Litigation as a word has its origin in the Latin language with the pronunciation being the same and the meaning being ‘a dispute’. The word Litigation came into existence in the years between 1540-1560. It gained widespread usage in the early years of the nineteenth century and it has been used more often ever since.

According to the Black’s Law Dictionary, Litigation is defined as, “contest in a court of justice for the purpose of enforcing a right”. The Oxford Dictionary defines Litigation as “the process of making and defending a claim in court of law”. The Merriam Webster Dictionary defines the act or process of Litigation as “the act, process or practice of settling a dispute in a court of law”.

Coming to the topic of Litigation being a means of seeking resolution to one’s dispute, it is well established till now that Litigation is an ages old process that is applied in a court of law in order to enforce one’s rights, solve a dispute or for simply laying a claim on any matter that should interest the parties in court. Litigation is, however, only applicable in court and has no significance whatsoever in matter that are dealt outside of court. This necessarily does not mean that Litigation is a weak practice, rather it means that Litigation is the only power that can influence the decision made either by a judge, jury, or bench.

Advantages:

The common person is always in search of ways to bring order in his life and this order is defined by lack of disputes in that man’s life, however, at times, dispute becomes unavoidable and then that man must look toward Litigation as his option to seek resolution. Litigation has its numerous advantages and some of them will be discussed here;

  • Litigation is a form of dispute resolution that is absolutely binding on the parties involved. This means that whatever the judge, jury or bench decides, will be binding on the parties to the absolute degree and under no circumstance can they go against the decided verdict of the court without bringing actionable consequences upon themselves.

  • Litigation ensures the cooperation of both the parties and it provides a very formal and orderly manner of dispute resolution. If a party to the dispute is out of order they may be held in the contempt of court and this reasonable discipline makes all the parties behave in a very civilized manner.

  • Litigation helps to set a legal precedent. This mean that the decision of a court in a given case will also be enforceable in another case if similar circumstances are to present themselves.

  • Litigation works on codified laws and evidence. In a court during the process of Litigation the only admissible argument is the one that is backed by a substantial amount of evidence and is in perfect accord with the laws that the court abides by.


ARBITRATION:

“Arbitration is justice blended with charity.”

Such was said by the Hon’ble Rebbe Nachman also known as the Nachman of Breslov who was a Jewish scholar and the founder and leader of the Breslov Hasidic Movement. These exact words can be said to be embodied in the practice of Arbitration in relation to its course in India.

The word ‘Arbitration’ has its origin in the Latin language. The Latin word ‘arbitrari’, which is the source of the word ‘Arbitration’, means ‘to judge’. However, Arbitration results in an award to the parties and not a judgment. Arbitration is recognized as a means of dispute resolution in India by the Arbitration and Conciliation Act, 1996.

The meaning of Arbitration as given in the Black’s Law Dictionary is, “the submission for determination of disputed matter to a private unofficial person selected in manner provided by law or agreement”. The Oxford Dictionary defines Arbitration as, “the official process of settling an argument or disagreement by somebody who is not involved mean that both sides in the dispute have agreed to go to Arbitration”. The Merriam Webster Dictionary defines the process of Arbitration as, “the action of arbitrating, especially, the hearing and determination of a disputed case by an arbiter”.

Arbitration, as a practice of dispute resolution in India, has grown over the year as more and more people resort to it instead of going to court to pursue the process of Litigation. It is an ever growing process and despite its evolution into a more sophisticated practice over the past few decades, it still has a lot of room for growth and evolution. Arbitration is less formal that the contemporary court proceedings and it puts less tension and pressure on the parties involved. These days the government has been appointing Arbitrators to all the District Courts and High Courts in India so as to promote and give way to this very effective process. The parties are more relaxed as the arbitrator I guaranteed to be an uninvolved and impartial man of neutral and unbiased opinion. The end result or outcome of an Arbitration Session is called an Award and it is binding on the parties in the same way as a judgment.

Advantages:

When a person can’t find justice with the contemporary process of Litigation or is unsatisfied with the court’s stand on his dispute, it is more than appropriate for him to seek Arbitration as his means of justice or resolution. In some cases which include matters like commercial dispute, defamation, family dispute, etc. the court itself suggests the parties to seek Arbitration. Some of the great advantages that Arbitration possesses are mentioned a follows;

  • In the process of Arbitration, the parties are free to choose their own arbitrator and this is more than often a mutual decision. This gives the express idea of equity and fairness. Unbiasedness and impartiality are few of the most resonation virtues of Arbitration.

  • The confidentiality of the parties is maintained. Not only does Arbitration give an unbiased and impartial award that is amicably acceptable, it also ensures that the entire procedure is confidential to the utmost degree. Unlike the judgment of a court, an arbitral award is confidential at the discretion of the parties involved.

  • The arbitral award is binding. Similar to a court proceeding, the final decision, that is , the arbitral award is binding and is to be followed and abided by both the parties without any exception. This is supported by the legal principle of “Arbitrium Est Judicium” which means, “an award is a judgment”.

  • Arbitration is a speedy process. In contradiction to contemporary court proceeding, which are very lengthy and time consuming, Arbitration is a relatively quick and speedy process. It involves less paperwork and red-taping and ensures to the parties involved that justice is being delivers at the first convenience of the authorities concerned with its deliverance.


MEDIATION:

“In the middle of difficulty, lies opportunity”.

In these words, said by the great theoretical-physicist, Albert Einstein, lies the in depth essence of the practice and process of Mediation. When someone finds themselves in a dispute that has no amicable resolution in court, the most conventional way of proceeding with the business is for them to opt for Mediation.

The word Mediation has its origin in the Latin language. The Latin word ‘mediare’ means ‘to be in the middle or to intercede’. In a similar fashion, when two people are in a middle of a dispute and opt for Mediation, they choose a mediator at their own discretion, who is someone uninvolved, impartial and unbiased towards each of the parties with relation to their dispute.

The definition of the word Mediation, as given in the Black’s Law Dictionary is, ‘intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute.’ The Black’s Law Dictionary also give a definition according to international law and diplomacy, that is, ‘friendly interference of a state in the controversies of others, for the purpose, by its influence and by adjusting their difficulties, of keeping the peace in the family of nations.’ As given in the Oxford Dictionary, the definition of Mediation is, ‘attempts to end a problem between two or more people or groups wo disagree by talking to them and trying to find things that everyone can agree on.’ The Merriam Webster Dictionary defines Mediation as, ‘a means of resolving disputes outside of the judicial system by voluntary participation in Negotiations structured by agreement of the parties and usually conducted under the guidance and supervision of a trained intermediary.’

To draw a conclusion from the above stated facts, we can clearly see that Mediation is one of the best forms of dispute resolution for the parties involved as it is absolutely neural and unbiased and it results in a decision that is an amicable solution to both the parties involved as it serves both their interests and satisfies both their needs. However, the resolution that is end product of the process, also known as the award, is not binding on any parties involved and it can very well be challenged in court.

Advantages:

Mediation, just like any other means of alternative dispute resolution, has numerous advantages. It includes things like privacy and confidentiality, mutually agreeable outcome, convenience, less expenditure and higher rate of satisfaction etc. Along with these lot many, we will discuss the following in details;

  • Direct involvement in Negotiation. Here a party to the dispute negotiates directly to the other party in the presence of a mediator. Whereas, in other practices such as Litigation and Arbitration, the concerned parties are supposed to negotiate through their counsel. Self-involvement gives the parties sense of lucidity and transparency in the process.

  • Mutually agreed-upon decision. The parties involved are not imposed with a decision or order as an outcome of the process. Instead, the parties themselves agree on a particular point which is mutually beneficial and serves both their common interests.

  • Private setting of the sessions. The entire process in held in sessions that are absolutely confidential and more than often a contract of confidentiality is signed between the parties and the mediators to ensure the privacy of the parties involved is not being infringed at any cost.

  • Less consumption of time. Contrary to conventional court proceedings, Mediation is a rather speedy process as the parties themselves are involved in the Negotiations and the setting is less tense and formal. This results in better satisfaction rate for the parties as they come to an amicable and mutually agreeable set of terms without wasting much time.


NEGOTIATION:

“Let us negotiate out of fear but let us never fear to negotiate.”

In these word of the 35th President of The United States of America, John Fitzgerald Kennedy, lies the essence of Negotiation as a means of Out-of-Court Dispute Resolution. Negotiation is a very versatile process as it can cover from minor family issues to conflicts between nations regarding borders, military, security, etc.

The word Negotiation has its origin in the Latin language. The Latin word “negotiari” denotes ‘an act of dealing with another person’. In a like manner, Negotiation is the process of two or more people discussing their issue or dispute with respect to finding an amicable solution that is befitting to all the parties involved.

The word Negotiation has been defined in the Black’s Law Dictionary as follows’ ‘a deliberation, discussion or conference upon the terms of a proposed agreement; the act of settling or arranging the terms and conditions of a bargain, sale or other business transaction.’ The Oxford Dictionary defines Negotiation as, ‘formal discussion between people who are trying to reach an agreement.’ The Merriam Webster Dictionary defines the act of Negotiation as, ‘to confer with another so as to arrive at the settlement of some matter.

Negotiation is used at a large scale in matters of diplomacy and state politics. International forums like The World Trade Organization and others try to give in their best efforts to resolve conflicted matters of economics and trade such as sanctions and trade embargos imposed on a nation by some other nation. If these matters reach court, it is a very extensive, time taking and non-amicable process to find resolution to them.

Advantages:

Negotiation, like all other forms of Out-of-Court Dispute Resolution, has numerous advantages. Its is less time consuming, less costly, and most important of all it helps all the parties get satisfied with the conclusion as it would only be on their own terms. Some of the most resonation virtues of Negotiation will be discussed in detail in the following;

  • Voluntary participation of parties. One is only subject to enter into a Negotiation if it suits them. No one can force anyone to enter into Negotiations with another as long as they themselves do not wish to do so. This makes it very clear to the parties involved that since they consented to the process they are completely willing to give in all effort required.

  • Non-adjudicative process. Negotiation only involves the parties concerned. Unlike Mediation, there is no participation from a third party neutral in the process. The parties themselves come to terms with the agreement that they conclude upon.

  • Informality of the process. The process of Negotiation is completely informal and it does not follow any stringent set of rules and guidelines. Only common principles of decency are to be maintained like mutual respect, acknowledgement of the other parties’ proposals, and proper code of conduct during the sessions.

  • Confidentiality of the disputed matters. Whatever is discussed in the sessions or Negotiation is absolutely confidential. That code of confidentiality can only be compromised at the discretion of the parties involved or in the special circumstance of intervention of a body established by statute or law.


About Author

Saakshya H.C. Garkoti

B.A.LL.B(Hons.)

2nd semester

Faculty of Law, Uttaranchal University.

(Winner, 1st National Online Mediation Competition, 2020)




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