Various forms relating to ADR

Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes arbitration, mediation, negotiation, and conciliation. Arbitration is the settlement of a dispute by the decision not of a court of law but of one or more persons called arbitrators which is executable as a decree of the court. Arbitration is the process by which parties voluntarily agree to refer a future or a present dispute to an individual or individuals who after hearing submissions from the parties will issue a legally binding decision determining the issues between the parties of liability and quantum of damages or giving other specific remedies. Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. Mediation comprises of an act of bringing two states, sides or parties in a dispute closer together towards an agreement through alternative dispute resolution (ADR). It is a dialogue in which a (generally) neutral third party, the mediator, using appropriate techniques, assists two or more parties to help them negotiate an agreement, with concrete effects, on a matter of common interest. In India prior to 1996 Arbitrations were governed by Arbitration and Conciliation Act of 1940. The New Act was passed in 1996 which brought changes in the said law in India. The Arbitration and Conciliation Act, 1996 governs the arbitration procedures in India. The Arbitration and Conciliation Act, 1996 is based on the model law drafted by the United Nations Commission on International Trade Laws (UNCITRAL), both on domestic arbitration as well as International Commercial Arbitration. Sec.2(1)(a) of the Act provides that an arbitration covers any arbitration whether it is administered by any permanent arbitral institution or not. The foundation of arbitration is the arbitration agreement between the parties to submit to arbitration all or certain disputes which arise or which may arise between them during the commercial transaction. Chapter II of the Indian Arbitration Act deals with the provisions regarding arbitration agreement. The provision of arbitration can be made at the time of entering the contract itself or the dispute can be referred to arbitration after the dispute has arisen. Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. AGREEMENT OF REFERENCE TO SOLE ARBITRATOR This deed of agreement made on this ____ day of ________, 20--, between: 1. _______________, aged about __ years s/o _______________, r/o _________________, hereinafter called the 1st party. 2. ________________, aged about __ years s/o __________________, r/o ________________, hereinafter called the 2nd party.

WHEREAS the first and second parties have some dispute regarding management of the partnership business, being run by the parties. AND WHEREAS both the parties have agreed upon to refer the dispute to one arbitrator duly appointed by the both parties. NOW THIS DEED OF AGREEMENT WITNESSES AS UNDER: 1. That both the parties have agreed upon to appoint _______ s/o ___________ r/o ______________________ as arbitrator. 2. That both the parties appoint ___________ as arbitrator. 3. That the arbitrator will go through the partnership deed and decide the dispute between the parties under the provision of the partnership deed. 4. That this deed shall be confined only up to the dispute of the management of the firm. Witnesses: 1. Name. Sd/-..1st party Address. . 2. Name. Sd/-..2nd party Address. .. AGREEMENT OF REFERENCE TO COMMON ARBITRATOR THIS AGREEMENT is made at ... this ... day of . between Mr. A of .. residing at .... hereinafter referred to as the Party of the First Part and Mr. B of ... residing at . hereinafter referred to as the Party of the Second Part. WHEREAS by an Agreement (Building contract) dated the ... day of ... entered into between the parties hereto the Party of the First Part entrusted the work of constructing a building on his plot of land situated at... to the Party of the Second Part on the terms and conditions therein mentioned. AND WHEREAS the Party of the Second Part has commenced the construction of the building according to the plans sanctioned by the... Municipal Corporation and has completed the construction to the extent of the 1st floor level. AND WHEREAS the Party of First Part has made certain payments to the Party of the Second Part on account but the Party of the Second Part is pressing for more payments which according to the Party of the First Part he is not bound to pay and, therefore the work has come to a standstill. AND WHEREAS disputes have therefore arisen between the parties hereto regarding the interpretation of certain provisions of the said agreement and also regarding the quality of construction and delay in the work. AND WHEREAS the said agreement provides that in the event of any dispute or difference arising between the parties the same shall be referred to arbitration of a common arbitrator if agreed upon or otherwise to two Arbitrators and the Arbitration shall be governed by the provisions of the Arbitration & Conciliation Act, 1996. AND WHEREAS the parties have agreed to refer all the disputes regarding the said contract to Mr.. Architect, as common Arbitrator and have proposed to enter into this Agreement for reference of the disputes to the sole arbitration of the said Mr..

NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:1. That the following points of dispute arising out of the said agreement dated... are hereby referred to the sole arbitration of the said Mr.... for his decision and award. 2. The points of dispute are:a. Whether the Party of the Second Part has carried out the work according to the sanctioned plans and specifications. b. Whether the Party of the Second Part has delayed the construction. c. Whether the Party of the Second Part is overpaid for the work done up to now.
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d. Whether Party of the First Part is bound to make any further payment over and above the payments made up to now for the work actually done. e. All other claims of one party against the other party arising out of the said contract up to now. 3. The said Arbitrator shall allow the parties to file their respective claims and contentions and to file documents relied upon by them within such reasonable time as the Arbitrator may direct. 4. The said Arbitrator shall give hearing to the parties either personally or through their respective Advocates but the Arbitrator will not be bound to take any oral evidence including cross examination of any party or person. 5. The said Arbitrator shall make his Award within a period of four months from the date of service of a copy of this agreement on him by any of the parties hereto provided that, the Arbitrator will have power to extend the said period from time to time with the consent of both the parties. 6. The Arbitrator will not make any interim award. 7. The Arbitrator will have full power to award or not to award payment of such costs of and incidental to this arbitration by one party to the other as he may think fit. 8. Subject to the provisions of the Arbitration & Conciliation Act 1996 the award will be binding on the parties hereto. 9. The Arbitration shall subject to what is herein provided be governed by the provisions of the Arbitration and Conciliation Act, 1996. IN WITNESS WHEREOF the parties have put their respective hands the day and year first hereinabove written. SIGNED by the within named Signed by the within named Mr. A ... in the presence of: Mr. B. in the presence of:
1. 2.

MODEL ARBITRATION CLAUSES IN AN AGREEMENT i. Every dispute, difference, or question which may at any time arise between the parties hereto or any person claiming under them, touching or arising out of or in respect of this agreement (deed) or the subject matter thereof shall be referred to the arbitration of XY, etc. or if he shall be unable or unwilling to act, to another arbitrator to be agreed upon between the parties or failing agreement to be nominated byor, failing agreement to two arbitrators one to be appointed by each party to the difference (whether consisting of one or more than one person) and in case of difference of opinion between them to an umpire appointed by the said two

arbitrators before entering on the reference and the decision of the arbitrator ( or such arbitrators, or umpire as the case may be) shall be final and binding on the parties. ii. In the event of any dispute, difference or question arising out of or in respect of this agreement or the commission of any breach of any terms thereof or of compensation payable thereof or in any manner whatsoever in connection with it, the same shall be referred to the Chamber of Commerce. (or the Association of..) for arbitration as provided in Rules framed by the said Chamber (or Association) for the purpose. The decision or award so given shall be binding on the parties hereto. iii. All disputes arising between the partners as to the interpretation, operation, or effect of any clause in this deed or any other difference arising between the partners, which cannot be mutually resolved, shall be referred to the arbitration offailing him to any other arbitrator chosen by the partners in writing. The decision of such an arbitrator shall be binding on the partners.

MODEL CONCILIATION CLAUSES 1. "Where, in the event of a dispute arising out of or relating to this contract, the parties wish to seek an amicable settlement of that dispute by conciliation, the conciliation shall take place in accordance with the Arbitration and Conciliation Act, 1996 as at present in force." 2. "If any dispute arises between the parties out of or relating to this contract, or in respect of any defined legal relationship associated therewith, the parties agree to refer the same to sole conciliator for amicable settlement. The conciliator shall be appointed by the parties by mutual consent. If the parties shall fail to arrive at an agreement, the conciliator shall be appointed by_________ (the name of any person or institution). The conciliation shall be conducted in accordance with the Rules of Conciliation under the Arbitration and Conciliation Act, 1996.

MODEL MEDIATION CLAUSES 1. Where Mediator has already been identified Agreement to Mediate Disputes - In the event a dispute shall arise between the parties to this [contract, agreement, transaction, etc.], the parties agree to participate in mediation in accordance with the mediation procedures of -------------------- before pursuing other remedies. The parties agree to share equally in the costs of the mediation. The mediation shall be administered by the offices of ----------------------. Mediation involves both sides of a dispute meeting with each other and an impartial mediator to attempt to reach a voluntary and mutually satisfactory agreement that resolves the dispute. In mediation, the mediator(s) will facilitate discussions, negotiations and procedures but will not offer independent analyses, opinions or judgments. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. The parties further agree to share equally the costs of the mediation, which costs will not include costs incurred by a party for representation by counsel at the mediation. 2. Where Mediator has not been identified in advance of dispute Agreement to Mediate Disputes - In the event that any dispute arises between the parties in relation to this Agreement, or out of this Agreement, and the dispute is not resolved by

negotiation, the parties agree to submit the dispute to mediation. The parties further agree that their participation in mediation is a condition precedent to any party pursuing any other available remedy in relation to the dispute. Any party to the dispute may give written notice to the other party of his or her desire to commence mediation, and a mediation session must take place within [30] days after the date that such notice is given. The parties must jointly appoint a mutually acceptable mediator. If the parties are unable to agree upon the appointment of a mediator within [7] days after a party has given notice of a desire to mediate the dispute, any party may apply to the ------------- (an organisation for mediation) or person agreed to by the parties in writing, for appointment of a mediator. The parties further agree to share equally the costs of the mediation, which costs will not include costs incurred by a party for representation by counsel at the mediation.

MEDIATION AGREEMENT This is an Agreement between ------------------- and --------------, hereinafter referred to as Mediator, to enter into mediation with the intent of resolving all issues regarding ------------------------------. The parties and the mediator understand and agree as follows: 1. Nature of Mediation The Parties hereby appoint and retain --------------- as Mediator for their negotiations. The parties understand that mediation is an agreement-reaching process in which the mediator assists parties to reach an agreement in a collaborative, consensual and informed manner. It is understood that the mediator has no power to decide disputed issues for the parties. The parties understand that mediation is not a substitute for independent legal advice. The parties understand that the mediators objective is to facilitate the parties themselves reaching their best agreement. The parties also understand that the mediator has an obligation to work on behalf of all parties and that the mediator cannot render individual legal advice to any party and will not render remedy nor arbitrate within the mediation. 2. Scope of Mediation The parties understand that it is for the parties, with the mediator's concurrence, to determine the scope of the mediation and this will be accomplished early in the mediation process. 3. Mediation is voluntary All parties here state their good intention to complete their mediation by an agreement. It is, however, understood that any party withdraw from or suspend the mediation process at any time, for any reason or no reason. The parties also understand that the mediator may suspend or terminate the mediation, if the mediator feels that the mediation will lead to an unreasonable result, if the mediator feels that an impasse has been reached, or if the mediator determines that he can no long effectively perform his facilitative role. 4. Confidentiality It is understood between the parties and the mediator that the mediation will be strictly confidential. Mediation discussions, any draft resolutions and any unsigned mediated Agreements shall not be admissible in any court, administrative or other contested proceeding. Only a mediated Agreement signed by any parties may be so admissible. The parties further agree to not call the mediator to testify concerning the mediation nor to provide any materials from the mediation in any court or other contested proceeding between the parties. The

mediation is considered by the parties and the mediator as settlement negotiations. All parties also understand and agree that the mediator may have private meetings and discussions with any individual party, in which case all such meetings and discussions shall be confidential between the mediator and the party, unless the parties agree otherwise. 5. Mediator Impartiality and Neutrality The parties understand that the mediator must remain impartial throughout and after the mediation process. Thus, the mediator will not champion the interests of any party over another in the mediation nor in any court or other proceeding. The mediator is to be impartial as to party and neutral as to the results of the mediation. The mediator will seek to affirmatively reveal any operative biases and will disclose any and all prior contacts with the parties and their legal counsel. 6. Mediation Fees The parties and the mediator agree that the fee for the mediator shall be Rupees ----per hour for time spent with the parties and for time required to study documents, research issues, correspond, telephone call, prepare draft and final Agreements and do such other