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DISPUTE RESOLUTION
CONTENTS
INTRODUCTION
DISPUTE RESOLUTION METHODS
MERITS OF ALTERNATE DISPUTE RESOLUTION
METHODS
Conciliation
DISPUTE RESOLUTION BOARDS
Arbitration
INTRODUCTION
Many aspects of execution of large Engineering projects have the
potential to lead to disagreements and disputes.
Extra care is required in drafting contract terms and conditions so that
its varying interpretations by different parties can be reduced to be
minimum.
consuming and both the parties are put to lot of sufferings and hardships.
Litigation should be the last resort in order to settle disputes.
enforced.
Awards or settlements given by Arbitration and Litigation are final,
legally binding and mandatory. They are legally enforceable.
1. NEGOTIATION
This is a method of bipartite settlement of disputes without
the help or intervention by any other (i.e. third) parties. In
case of disagreements the parties discuss the problems
among themselves and arrive at a mutually agreed amicable
settlement for the dispute. This requires a great deal of
mutual respect, trust, confidence and a commitment from
both the parties to sort out the problem through mutual
discussions
and
negotiations.
Small
and
routine
2. MEDIATION
This is a method in which passive help is sought from the third party
to resolve the disputes.
Essentially it involves discussion, negotiation between the parties
involved in the dispute in the presence of the third party called the
Mediator. The mediator does not propose any analysis of the dispute or
any settlement to it. The role of the mediator is to interpret the issues
involved in the disputes, understand and clarify the views / assertions
of each of the parties to the dispute , ensure that proceedings are
Contd
The mediator need not be a professional; he should be
3.Conciliation
Conciliation is a method in which the third party called the
Conciliator who is a professional and an expert in a dispute
Contd
Conciliation is popular in Australia. Many countries
like China, Japan, African countries advocate it. It is
recommended in FIDIC reports.
Contd
If dispute does arise the board hears the views of the
parties
to
the
dispute,
examines
the
relevant
5. Arbitration
This is a method for dispute resolution in which there is an
Contd
Arbitrators award is final and legally binding on the
parties to the dispute. These wards are legally
enforceable.
Arbitration is the most preferred and commonly
adopted method for dispute resolution in India.
ADVANTAGES OF ALTERNATE DISPUTE RESOLUTION METHODS:1. These are informal and very flexible methods.
- Venue, timings, proceedings of the meetings, who should be present
etc..
2. There are no detailed procedures, documentations etc.. the steps /
procedures to be adopted to resolve the dispute is in accordance with
contd
4. they are least expensive and delays are very minimal.
CONCILIATION
Conciliation is a technique of ADR which has been given
recognition in the new amended Act of Arbitration and
Conciliation Act 1996.
Conciliation
Conciliation can be used to settle contractual dispute or any other
disputes in a legal relationship among the parties without any prior
agreement about dispute resolution method and it can be adopted at
any stage of dispute development and / or its resolution.
This can be initiated by the parties even when Arbitration or
Contd
The person appointed as Conciliator should be impartial,
independent, good negotiator, and a good counselor.
His success depends on his counseling skills, his ability to convince
the advantages of agreement to resolve the dispute than disagreement
Role Of Conciliator
The Conciliators role in dispute resolution is as follows :-
Contd
iv) To present an analysis of the dispute, consequence of Arbitration /
Litigation and suggest possible options / ways for settling the dispute.
However, he does not give any settlement award.
v) on the request of parties to draw up or assist the parties to draw up
complicated / complex commercial or contractual dispute:i) there need not be any prior agreement to settle the disputes through
Conciliation.
ii) this method can be used even when parties have initiated
Arbitration / Litigation to resolve the dispute.
The 1996 act of Arbitration and Conciliation provides that the
Contd
iii) the parties cannot initiate any Arbitration / Litigation proceedings related
to the dispute when the matter is under Conciliation proceedings.
iv) the 1996 act provides that if the parties arrive at an agreement for
settlement of the dispute through Conciliation and the agreement is
registered then it will have same status and effect as if it was Arbitration
award.
v) in case Conciliation fails, the parties resort to Arbitration or Litigation to
resolve the dispute, the views expressed or concessions offered during
Conciliation cannot be used as evidence.
The Conciliator cannot be made a representative, counsel or witness in
any Arbitration or Litigation proceedings.
Contd
vi) the 1996 act also provides for confidentiality in respect of all
matters in Conciliation proceedings. During Conciliation if party feels