![Afcons v. Cherian Verkay [(2010) 8 SCC 24]
• Cases “unsuitable” for ADR Processes (Excluded category of cases)
Representative suits under
Order I Rule 8 of the CPC.
Dispute relating to Election
to Public Offices (excluding
disputes between two groups
regarding management of
Societies, Clubs, Association
etc.)
Cases involving grant of
authority by the Court after
enquiry (e.g., suits for grant
of probate or letter of
administration)
Cases involving serious and
specific allegations of fraud,
fabrication of documents,
forgery, impersonation,
coercion, etc.
Cases requiring protection of
courts for example, claims
against minors, deities and
mentally challenged and
suits for declaration of title
against the Government
Cases involving prosecution
for criminal offences
Cases “unsuitable” for ADR Processes](https://image.slidesharecdn.com/basicsofadr-250403084320-4eb2a8fa/85/Basics-concepts-of-Alternative-Dispute-Resolution-12-320.jpg)
![Afcons v. Cherian Verkay [(2010) 8 SCC 24]
• Cases “unsuitable” for ADR Processes (Excluded category of cases)
Cases “suitable” for ADR Processes
1.All cases relating to trade, commerce and contracts (including all money cases)
Disputes arising out of contracts (including all money claims)
Disputes relating to specific performance
Disputes between suppliers and customers
Disputes between bankers and customers
Disputes between developers/builders and customers
Disputes between landlords and tenants/licensors and licensees
Disputes between insurer and insured.](https://image.slidesharecdn.com/basicsofadr-250403084320-4eb2a8fa/85/Basics-concepts-of-Alternative-Dispute-Resolution-13-320.jpg)
![Afcons v. Cherian Verkay [(2010) 8 SCC 24]
• Cases “unsuitable” for ADR Processes (Excluded category of cases)
Cases “suitable” for ADR Processes
2. All cases arising from strained or soured relationships
Disputes relating to matrimonial causes, maintenance, custody of children
Disputes relating to partition/division among family members/ coparceners/ co-
owners
Disputes relating to partnership among partners
3. All cases where there is a need for continuation of the pre-existing relationship
in spite of the disputes
Disputes between neighbor's (relating to easementary rights, encroachments,
nuisance, etc.)
Disputes between employers and employees
Disputes among members of societies/associations/apartment owners
associations](https://image.slidesharecdn.com/basicsofadr-250403084320-4eb2a8fa/85/Basics-concepts-of-Alternative-Dispute-Resolution-14-320.jpg)
![Afcons v. Cherian Verkay [(2010) 8 SCC 24]
Cases “suitable” for ADR Processes
4. All cases relating to tortious liability, including claims for compensation in motor
accidents/other accidents.
5. All consumer disputes, including where a trader/supplier/manufacturer/service
provider is keen to maintain his business/professional reputation and credibility or
product popularity.](https://image.slidesharecdn.com/basicsofadr-250403084320-4eb2a8fa/85/Basics-concepts-of-Alternative-Dispute-Resolution-15-320.jpg)
Basics concepts of Alternative Dispute Resolution
- 1. BASIC CONCEPTS OF ALTERNATIVE DISPUTE RESOLUTION (ADR) PRESENTATION BY:- SAMRADDHI SOHANI
- 2. Why do people fight?
- 3. • Events • Encounters • Collisions • Rivalries • Disappointments • Discomfort • Injury Aggrievement / Injury Cause of Action Quest for Relief
- 4. DISPUTE RESOLUTION AND ADR DISPUTE RESOLUTION: Involves bringing two or more conflicting parties to clear understanding wherein their differences are ironed out. ALTERNATIVE DISPUTE RESOLUTION (ADR): Any method of resolving the disputes other than by litigation.
- 5. Considerations in opting for a Dispute Resolution Mechanism • Goals - What would you like to achieve as a resolution of your dispute? - Which process or processes are more likely to help you attain your goals? • Timing - Has litigation been commenced and, if so, at what stage is the dispute in the litigation process? - What information do you need to be better able to assess the strengths and weaknesses of your case? - Is it important that discoveries be completed before settlement attempts are made? • Outcome Control - To what extent do you wish to retain control over the outcome of the dispute? - Do you want to be involved in creating your own solutions? • Formality and Cost - Do you desire a more formal or more flexible process? - To what extent is cost a factor in selecting a dispute resolution process?
- 6. Considerations in opting for a Dispute Resolution Mechanism • Relationships - Do you wish to preserve and maintain an ongoing relationship? - Do you want to learn how to better communicate and problem-solve with the other party(ies)? - How do you feel about having a face-to-face discussion with the other party(ies)? • Personalities - What are the personalities of the disputants, their attorneys, and the potential providers of dispute resolution processes? - How risk averse are the disputants (i.e., how much do they desire certainty and predictability)? - To what extent, if any, do disputants want an opportunity to express feelings? - Are the parties able to communicate clearly? - What are the negotiation styles of the solicitors involved? - Do the parties want the assistance of someone with expertise in the subject-matter of the dispute? - If the parties are considering an informal, consensual process, what role should their legal representatives play?
- 7. Types of ADR • Negotiation - Non-binding discussion between parties (without third party presence or intervention) - Parties work towards “negotiated agreement” • Mediation - Non-binding third party assisted negotiation - Parties work towards “negotiated agreement” with help of mediator • Conciliation - Non-binding third party assisted negotiation - Parties work towards “negotiated agreement” with help of conciliator - Conciliator has a more proactive role than a mediator – even may suggest proposed settlements • Arbitration - Binding third party assisted DSM - Parties appoint “Arbitral Tribunal” that resolves dispute by issuing “Award” (Decree equivalent of a Trial)
- 8. Types of ADR • Med-Arb - Mediation followed by Arbitration - Mediation time limited - Failure to mediate to a settlement results in initiation of arbitration proceedings • Ombudsman (Lokpal/Lokayukta/ Central Vigilance Officer) - Mechanism for dispute settlement between private citizens and state entities or private bodies. - State appointed internal affairs inspector. • Medola - Mediation and Last Offer Arbitration - Failure of parties to reach mediated settlement results in third party choosing between the final negotiated offers of both parties - Binding
- 9. BASIS OF COMPARISION ARBITRATION CONCILIATION MEDIATION Meaning Arbitration is a dispute settlement process in which an impartial third party is appointed to study the dispute and hear both the parties to arrive at a decision binding on both the parties. Conciliation is a method of resolving dispute wherein an independent person helps the parties to arrive at the negotiated settlement. Mediation is a process of resolving issues between parties wherein a third party assist them in arriving at an agreement. Enforcement An arbitrator has the power to enforce his decision. A conciliator does not have the power to enforce his decision. The decision made by the mediator is not enforceable like an arbitral award. Regulated by The Arbitration and Conciliation Act, 1996 The Arbitration and Conciliation Act, 1996 Code of Civil Procedure, 1908 Prior Agreement Required Not Required Not Required Available for Existing and future disputes. Existing disputes. Existing disputes. Example Damages in case of breach of contract, matters of the right to the office, time barred claims etc. Resolving disputes between contractors and subcontractors etc. Commercial transactions in patents, trademark licenses, Joint ventures and R & D Contracts, music and film contracts etc. COMPARISION BETWEEN ARBITRATION, CONCILIATION & MEDIATION
- 10. Dispute Resolution Spectrum Negotiation Mediation Settlement Conference Arbitration Trial Maximum Process Control Non-Binding Outcomes Minimum Process Control Binding Outcomes * Option to have different permutations and combinations (E.g.: Med-Arb, Arb-Med etc.)
- 11. IS THE FORUM EMPOWERED TO GIVE ME WHAT I WANT?
- 12. Afcons v. Cherian Verkay [(2010) 8 SCC 24] • Cases “unsuitable” for ADR Processes (Excluded category of cases) Representative suits under Order I Rule 8 of the CPC. Dispute relating to Election to Public Offices (excluding disputes between two groups regarding management of Societies, Clubs, Association etc.) Cases involving grant of authority by the Court after enquiry (e.g., suits for grant of probate or letter of administration) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. Cases requiring protection of courts for example, claims against minors, deities and mentally challenged and suits for declaration of title against the Government Cases involving prosecution for criminal offences Cases “unsuitable” for ADR Processes
- 13. Afcons v. Cherian Verkay [(2010) 8 SCC 24] • Cases “unsuitable” for ADR Processes (Excluded category of cases) Cases “suitable” for ADR Processes 1.All cases relating to trade, commerce and contracts (including all money cases) Disputes arising out of contracts (including all money claims) Disputes relating to specific performance Disputes between suppliers and customers Disputes between bankers and customers Disputes between developers/builders and customers Disputes between landlords and tenants/licensors and licensees Disputes between insurer and insured.
- 14. Afcons v. Cherian Verkay [(2010) 8 SCC 24] • Cases “unsuitable” for ADR Processes (Excluded category of cases) Cases “suitable” for ADR Processes 2. All cases arising from strained or soured relationships Disputes relating to matrimonial causes, maintenance, custody of children Disputes relating to partition/division among family members/ coparceners/ co- owners Disputes relating to partnership among partners 3. All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes Disputes between neighbor's (relating to easementary rights, encroachments, nuisance, etc.) Disputes between employers and employees Disputes among members of societies/associations/apartment owners associations
- 15. Afcons v. Cherian Verkay [(2010) 8 SCC 24] Cases “suitable” for ADR Processes 4. All cases relating to tortious liability, including claims for compensation in motor accidents/other accidents. 5. All consumer disputes, including where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity.