CONGRATULATINS YOU

MADE IT TO THE ILI.

 Of all mankinds adventures in

search of peace and justice,
arbitration isamongst the
earliest. Long beforelaw
wasestablished or
courtswereorganised,
orjudgeshasformulatedprincipl
esof law, man had resortedto
arbitration for resolving
disputes.

ADR
ALTERNATE alternative to what ?
DISPUTE what criterion ?
RESOLUTION

What resolves a dispute ?

Is it different from settlement ?
What is adjudicated ?
When is a decision arrived at ?
Are ADR decisions binding ?

Binding decisions is characteristic of a litigation ?

Private Justice versus Public Justice.

Understanding ADR.

Thierry GARBY:
Dispute management is a
large progress of civilization
but also a cultural revolution.
It exacts from all members of
the organization and from all
partners to modify deeply
their conduct in case of
tension

Honest
disagreement is
often a good sign
of progress.
-Mahatma Gandhi

What is a
Dispute?

What is a dispute?
It is an accurate unit,
It requires a scientific approach towards
its appreciation.
naming, blaming and claiming.
It is worth appreciating that by now
how wanting it has become that a
party must give a suitable shape to
his dispute.
Without giving a suitable shape a party
just can not succeed.

Approach to the
disputes

To avoid
To Confront
To compromise
By force

 A Dispute with the GOD

Strange but true!!!

Oh ! My God !!!

A Dispute with the GOD

Strange but true!!!
In 2005, Pavel M., a Romanian
prisoner serving 20 years for
murder, sued God, founding his
claim in contract. He argued
that his baptism was an
agreement between him and
God under which, in exchange
for value such as prayer, God
would keep him out of trouble.

Strange but true!!!

In 1874, Francis Evans Cornish,
while acting as a magistrate in
Winnipeg, Canada, had to try himself
on a charge of being drunk in public.
He convicted himself and fined
himself five dollars with costs. But
then he stated for the record:
Francis Evans Cornish, taking into
consideration past good behaviour,
your fine is remitted.

What is ADR...
Alternative Dispute Resolution (ADR) is an
efficient means of resolving disputes. When
litigants or potential litigants utilize ADR it
avoids expensive and time consuming trials;
when individuals, groups, or nations use
ADR it avoids civil strife, economic
hardship, or even war. "ADR" (alternative
dispute resolution) encompasses various
conflict management and dispute resolution
processes, including mediation, arbitration
and a combination of mediation and
arbitration (often referred to as "med-arb").

Forms of ADR
Negotiation: A face-to-face dialogue.
Mediation is a nonbinding process in which
parties to a dispute work with an impartial
person ("neutral" or "mediator") who helps
them to reach a settlement. The mediator does
not decide the case but rather facilitates a
consensual agreement among the parties to the
dispute.
Conciliation: Extreme Trust on a Neutral third
person.
Arbitration : is a process in which a dispute is
referred to one or more impartial persons for a
final, binding decision. The parties to this
"quasi-litigation" procedure may contractually
limit the issues subject to the arbitration as well
as the procedural aspects of the process.

ADR Procedures
ADR procedures can be broadly divided into two
categories namely :
adjudicatory and
non adjudicatory.
The adjudicatory procedures such as arbitration and
binding expert determination lead to a binding ruling
that decides the case.
The non-adjudicatory procedures contribute to
resolution of disputes by agreement of the parties
without adjudication such as Negotiation, Mediation
and Conciliation.
Mediation is different from Conciliation only in that in
the former the neutral third party plays a more active
role in putting forward his own suggestions for the
settlement of the dispute. A brief description of few
ADR procedures widely used.

What Model???
There is no principle model
based on litigation and
accessories model turned toward
amicable resolution, but a set of
techniques which gives to the
judge and to the parties a choice
of ways to follow for solving their
disputes in a most appropriated
manner

 THE
CONCEPT
OF
JUSTICE Originates from
NDR
(Natural
Dispute
Resolution)

Mughal Emperor Jahangir

(1569 to 1627)

Jahangir is most famous

for his golden "chain of
justice." The chain was
setup as a link between
his people and Jahangir
himself. Standing outside
the castle of Agra with
sixty bells, anyone was
capable of pulling the
chain
and
having
a
personal
hearing
from
Jahangir himself.

The Justice Of
King
Two women having recently given birth
Solomon
(1011to
BCsettle
to an
came to King Solomon

important dispute.One of the mothers

smothered her infant
while sleeping, and silently replaced
her dead child with the other.The
mother of the living baby awoke, and
realized the dead child was not hers.
They stood before the King, and
argued. Each woman wanted to have
the child. King Solomon asked for a
sword, so he could cut the baby in half,
and give part of the baby to each.
The real mother cried out not to cut the
child in half, but to give it to the other
woman.Solomon gave the baby to her,
because he knew that would be the
real mothers reaction.

931
had BC)
accidentally

 One day a baker noticed an older

man enjoying the smell of his
freshly baked bread and demanded
he pay for the smell of the bread.
Unsure of what to do, the local
judge decided to bring the case to
King Solomon.
After listening to both sides the
king decided that the baker was
correct and that the man owed the
baker for the smell of the bread
because the baker owned the bread
and all of its attributes.
Knowing better than to object to
the king, the older man resigned
himself.
King Solomon continued, telling the
old man to jingle his coin purse.
"There you have been paid,"
declared Solomon. "The sound of
the coins paid for the smell of the
bread."

THE CHALLENGES OF A
CONCILLIATOR.
By : Sh. R.S. Arya : Additional District &
The
risk in
raw(Retd.)
justice has been depicted in this
Sessions
Judge
article. The author mentioned that since the society

grew in terms of wisdom so did the wrongdoers

and it was not sufficient to rely solely on good
virtues.
The mere classical approach on righteousness and
virtues was not enough to decide complex facts
& issues. Too much was left to the private disposition
of the judge which lead to uncertainty in decisions.
In the tale of King Solomons Justice imagine the
real mother agreeing to the child to be cut in
two halves (trusting that the King will not harm the
child) and the wicked lady shouting not to cut the
child in order to dodge the justice administration.

The growing privatization of dispute

resolution and a shift away from the
courts raise new and important questions
Doesfor
such
the
a notion
justice
as system.
private justice exist? Can justice be
wholly private ???

How does binding private dispute-resolution affect

public laws and their enforcement?
What is the impact on access to justice of private caselaw that has no precedential value and is often not in
the public domain?
Does timely and cost effective access to private dispute-resolution
offset the risk of disregarding fundamental principles of our public
justice system, such as the rule of law?

What are the implications for access to justice where people lack
resources to access either public or private mechanisms?

How will a private justice satisfy the public ?

How will the private justice live up to the standards of
public morality ?

JUSTIFICATIONS FOR PRIVATE

JUSTICE
The justifications for these privatizing trends

typically
spoken of in terms of benefits are well documented and
include:
efficiency in terms of time, money and resource
management;
the reduction of backlogs and costs;
increased access to a dispute resolution system; the
maintenance of individual (and community) relationships
through improved dialogue, tailored outcomes and
voluntary compliance with results;
freedom to choose laws, processes and decision-makers;
improved public satisfaction with dispute resolution
regimes;
protection from public scrutiny through rules of
confidentiality.

Gillian Hadfield

Hadfield has forcefully advocated for the privatization of law

particularly commercial law in the overall spirit of
significantly decreasing the cost of law.

Although recognizing that the justice system plays several

important public roles in our modern democracies
including protecting individual rights when it comes to
commercial law, the state should privatize much of its
dispute resolution functions:
the
legal
systemperforms
important
economic
functions such as providing the structure and regulation
necessary for the operation of efficient markets. The
economic sphere of law regularly deals with relationships
that involve only corporate entities. Private legal regimes
could provide this law without raising legitimacy
concerns.

Criticism of Private
Justice System

Critics of ADR and privatization point to the potential

slow decline in the number of precedents created and
the resulting erosion of the overall corpus of the
common law as a result of ADRs popularity. An early
but still authoritative example of this critique comes
from Owen Fiss, who raised the concern that
widespread settlement strategies would negatively
impact the courts ability, particularly appellate courts
in public interest litigation, to develop the common law.
Tracy Walters McCormack has also more recently
raised similar concerns. Eroding the sources of common
law is clearly a concern, particularly given the current
force and trajectory of privatizing trends.

The balance
As far as arbitration is concerned the private justice
ystem is ultimately controlled by the public justice
system inasmuch that the award passed by the tribunal
eventually lands in a public justice system for the
enforcement.
The balance is thus maintained where the Private
justice system provides the features like :efficiency,
autonomy, low cost etc. and the public justice system
provides the legal accuracy thereby satisfying the
social expectations.
This is how a standard of a private justice is kept at par
with the that of a public justice system.

Conclusion
The concept of justice in Private Justice
System cannot be substantially different
from the one in Public Justice System.
After all it is the Statute (Public Law) that
forms the very basis of the Private system.
The society gave consent (social contract
theory) to the private system without
diluting the concept of public justice.
Therefore the Private Justice System has to
contain all the features of a Public Justice
System.

The suggested readings on the

subject
1.
Alternative Dispute Settlement Edited by

P.C. Rao &

William Sheffield; What it is and how it works; The
International
Centre
for
Alternative
Dispute
Resolution; Universal Law Publishing Co. Pvt. Ltd.

2.

Michael Palmer & Simon Roberts : Dispute Processes

ADR
and the Primary Forms of Decision Making,
Butterworths.

3.

Russel on Arbitration (English Arbitration)

4.

The 176th report of The Law Commission Of India)

5.

Dr.P.C.Raos
commentary
Conciliation Act, 1996

6.

Any book of your taste.

Indian

Arbitration

and