Accepting Conflict Resolution as a Fact of Life Rather Than a Legal Hazard.

A conflict is better resolved when it is neither viewed as good nor bad, but as a fact. Dealing with facts is easier than dealing with “problems”. What is important is how professionally and eloquently; a company manages or handles its disputes. In this article we are not just talking about conflicts, but about the various effective ways of conflict resolution. Negotiation techniques are often central to resolving conflict and as a basic technique these have been around for many thousands of years. Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails.

Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System or litigation. It was being thought of in view of the fact that the Courts are over burdened with cases. The said system stems from the discontent of various parties to dispute with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a feeling of hostility from the whole legal system- thus, the need for Alternative Dispute Resolution.

Although the concept of dispute resolution through alternate methods is relatively new in India, this mechanism has been found to be non-adversarial in nature and which basically upholds the justice dispensation system of India more effectively, which has previously been under great stress. The advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case has been successfully provided by the course of ADR and is found to  be more private, viable, economic and efficient.

The Indian Arbitration and Conciliation Act, 1996 provides the law relating to Arbitration and Conciliation that is almost the same as in the advanced countries. Statutory Recognition of processes like Conciliation as a means for settlement of the disputes in terms of this Act has been provided for. Guarantees Independence and impartiality of the arbitrators, irrespective of their nationality is also a feature which can mean gold for foreign companies seeking Indian investments. The new Act of 1996 brought in several changes to expedite the process of arbitration. Hence, this legislation has developed confidence among foreign parties interested to invest in India or to go for joint ventures, foreign investment, transfer of technology and foreign collaborations.

The advantage of ADR is that it is a more supple and flexible process and avoids seeking remedy from the courts. Via ADR, parties can withdraw of their own free will at any stage of time. It has been seen that resolution of disputes is quicker and cheaper through ADR. The parties opting for ADR do not develop strained relations; rather they effectively succeed in maintaining as well as sustaining relationship between among themselves.

A brief introduction to the various types of Alternate Dispute Resolution mechanisms is as follows-

·        Arbitration:

This process is sought after only through predetermined valid Arbitration Agreements in the written form between the parties when discussing the emergence of a dispute. 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. 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. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. An award made by an arbitration tribunal has the strength of a decree by any higher courts.

·        Conciliation:

Conciliation is a less formal process which does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. The decision of opting for conciliation as an ADR has to be mutual between the parties to dispute, meaning it cannot be enforced by one party on the other.

Parties that opt for this method, submit statements to the conciliator describing the general nature of the dispute and the points at issue. 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.

·        Mediation:

Mediation is that form of ADR which aims to assist two (or more) disputants in reaching an agreement by allowing the parties themselves to determine the conditions of any settlements reached; rather than accepting something imposed by a third party. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and skills to open and improve discussion between disputants, aiming to aid the parties in reaching a fair agreement with definite effects on the disputed matter.

·        Negotiation:

As we have discussed in our previous article (add hyperlink), Negotiation is a skill which lawyers have developed in order to explore all potential avenues of resolving future disputes, including methods which do not involve litigation as stated above. Negotiation plays a pivotal role in international peacekeeping efforts by understanding what each party wants and trying to find a workable legal solution to it. Legal experts are largely spending their time negotiating effective settlements rather than advising on law. Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution.

·        Lok Adalat:

This unique Indian concept of ADR is termed as roughly meaning a "People's court". It is a non-adversarial system, where by mock courts called Lok Adalats are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, periodically for exercising jurisdiction on minor disputes arising in due course of business between parties. These are usually presided by retired judge, social activists, or members of legal profession. There is no court fee and no rigid procedural requirement which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. This type of ADR is not for big company disputes, but it acts as a boon for the litigant public by being highly effective for small or Start-up Company facing disputes as the focus is on compromise leading to a binding agreement which is enforceable in any court.