Adr final project

Alternative Dispute Resolution (ADR) GROUP 5
LN COLLEGE OF MANAGEMENT & TECHNOLOGY
Academic Year
2007-2008
Semester –I
Topic
“ALTERNATIVE DISPUTE RESOLUTION (ADR)”
Project Guide:
Prof. Ranjith Krishnan
For:
MBA
(MASTER IN BUSINESS ADMINISTRATION)
Submitted By:
COMPLAN GROUP
MBA (FULL TIME) SEMESTER I 1

CERTIFICATECERTIFICATE
II Prof. Ranjith Krishnan Hereby certify that the GroupProf. Ranjith Krishnan Hereby certify that the Group
No. 5 First Year of Master in Business AdministrationNo. 5 First Year of Master in Business Administration
(MBA) of LN College of Management & Technology(MBA) of LN College of Management & Technology
has completed their project titled Essential ofhas completed their project titled Essential of
Management in the academic year 2007-08. TheManagement in the academic year 2007-08. The
information submitted herein is true, satisfactory andinformation submitted herein is true, satisfactory and
original to the best of their knowledge.original to the best of their knowledge.

Project Guide
Prof. Ranjith Krishnan
ACKNOWLEDGEMENT
WE express thanks to everybody who helped us by their
direct or indirect contribution have helped us in converting my
thought into reality
It is really impossible to acknowledge all the help us have
received in preparing this project. We take this opportunity to
express my gratitude towards my PROFESSOR RANJITH
KRISHNAN for her encouragement and guidance to prepare
project of “ALTERNATIVE DISPUTE RESOLUTION (ADR)”
FOR THE FIRST YEAR OF “MASTER IN BUSINESS
ADMINISTRATION (MBA”) specialization course in “LN College
OF MANAGEMENT & TECHNOLOGY” (2007-2008)

And, last but not least we would like to express our humble
thanks to friends and family member for their encouragement and
boosting which they have given to us.
CONTENTS
Sr.No. Topic Page No.
1. Introduction 1.
2. Alternate Dispute Resolution- An Indian
Perspective
4.
3.
An Overview
6.
4.
Impact Of ADR
18.
5.
Types of ADR Techniques
20.
6. ADR Procedures 56.
7. Key Elements to Implementing a Successful ADR
Program
58.
8. Conclusion 60.

Group Members
Sr.N
o
Name
1. Amit Panwar
2. Mazhar Khan
3. Manoj Nangalia
4. Shrikank Sharma
5. Sarvesh Upadhayay


ALTERNATIVE DISPUTE RESOLUTION (ADR)
“A better way for resolving conflict”
“One way to resolve a dispute!”
“A more modern form of dispute resolution!”
“ADR - The best way to resolve disputes.”
INTRODUCTION

Did you know that 95 percent of all civil cases filed in court are
resolved without going to trial? Many people use processes other than
trial to resolve their disputes. These alternative processes, known as
Alternative Dispute Resolution or ADR, are typically less formal and
adversarial than trial, and many use a problem-solving approach to help
the parties reach agreement.
Although it is human nature to avoid conflict where possible, conflict is
not all bad. Conflict can be constructive and a catalyst for growth. It
also is inevitable, so the real question is how best to manage conflict. In
our world, litigation too often has been the primary game plan for
dealing with conflict. But the need for an alternative to litigation was
evident at least 150 years ago, when Abraham Lincoln said:
“Discourage litigation because the nominal winner often is a loser, in
both time and money.” It took a long time after President Lincoln’s
admonition before a new framework was constructed that recognizes
litigation is not, and should not be, inevitable. That framework is
alternative dispute resolution (“ADR”).
ADR is an umbrella term encompassing a range of processes that
provide alternatives to traditional litigation. ADR processes, in general, give
parties the opportunity to play a more active role in collaborating to create
mutually agreeable decisions or crafting a resolution to their disputes.
Mediation, a commonly used ADR process, highlights the benefits of this
opportunity. Through mediation, those individuals who best know the facts,
the issues, and the vested interests involved in an issue or dispute are the
very people balancing priorities and crafting a resolution that reflects their
interests. The result is a durable resolution, created and endorsed by those

who will implement it. Oftentimes, the result also includes improved
relations between the parties to a dispute, particularly important for parties
who have ongoing business relationships.
MEANING
Alternative dispute resolution (ADR) includes dispute resolution
processes and techniques that fall outside of the government judicial
process. Despite historic resistance to ADR by both parties and their
advocates, ADR has gained widespread acceptance among both the general
public and the legal profession in recent years. In fact, some courts now
require some parties to resort to ADR of some type, usually mediation,
before permitting the parties' cases to be tried. The rising popularity of ADR
can be explained by the increasing caseload of traditional courts, the
perception that ADR imposes fewer costs than litigation, a preference for
confidentiality, and the desire of some parties to have greater control over
the selection of the individual or individuals who will decide their dispute.
Alternative Dispute Resolution (ADR) - Definition
ADR - Alternative dispute resolution has greatly expanded over the last
several years to include many areas in addition to the traditional
commercial dispute in the form of arbitration; mediation has become an
important first step in the dispute resolution process. Arbitrators and
mediators have an important role in resolving disputes. Mediators act as

neutrals to reconcile the parties’ differences before proceeding to
arbitration or litigation. Arbitrators act as neutral third parties to hear the
evidence and decide the case. Arbitration can be binding or non-binding.
Overview of Alternative Dispute Resolution - Cornell Law School
Alternative Dispute Resolution ("ADR") refers to any means of
settling disputes outside of the courtroom. ADR typically includes
arbitration, mediation, early neutral evaluation, and conciliation. As
burgeoning court queues, rising costs of litigation, and time delays
continue to plague litigants, more states have begun experimenting with
ADR programs. Some of these programs are voluntary; others are
mandatory.
Alternate Dispute Resolution- An Indian Perspective
Inspired by the United Nations Commission on International Trade
Law's Conciliation Rule, adopted by the General Assembly of the United
Nations in 1985, and the recommendation made by the General Assembly,
Parliament of India passed the Arbitration and Conciliation Act, 1996 which
came into force on 25th January, 1996. The said Act intends to achieve

consolidation and amendment of the law relating to domestic arbitration,
international arbitration and enforcement of foreign arbitral awards as also to
define the law relating to conciliation and the matters connected therewith or
incidental thereto. Proceedings pending on arbitration commenced on or
before January 25, 1996 will continue to be governed by the Act of 1940.
Therefore the book deals with the Act of 1940 as well as arbitration law.
For the promotion and development of Arbitration and other Alternate
Dispute Resolution techniques, Indian Society of Arbitrators (hereinafter
referred to as ISA) was constituted. ISA has contributed substantially to the
formulation and enactment of the Arbitration and Conciliation Act 1996, and
is a leading arbitral institution in the country
Alternative dispute resolution in India is not new and it was in existence
even under the previous Arbitration Act, 1940. The Arbitration and
Conciliation Act, 1996 has been enacted to accommodate the harmonization
mandates of UNCITRAL Model. To streamline the Indian legal system the
traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also
been amended and section 89 has been introduced. Section 89 (1) of CPC
provides an option for the settlement of disputes outside the court. It
provides that where it appears to the court that there exist elements, which
may be acceptable to the parties, the court may formulate the terms of a
possible settlement and refer the same for arbitration, conciliation, mediation
or judicial settlement.
Philosophy & Implementation in India
ADR is by no means a recent phenomenon in India, though it has been

organized and systematized, expressed in clearer terms, employed more
widely in dispute resolution in recent years than before. In earlier times,
disputes were peacefully decided by intervention of kulas (family or clan
assemblies), srenis (guilds of men following the same occupation), parishads
(assemblies of learned men who knew law) before the king came to
adjudicate on disputes. There were Nyaya panchayats at grass root level
before the advent of the British system of justice. Later on, Lok Adalats
(people's court) have provided speedy and inexpensive justice in both rural
and urban areas in India.
In India, laws relating to resolution of disputes have been amended from
time to time to facilitate speedy dispute resolution. The Judiciary has also
encouraged out of court settlements to alleviate the increasing backlog of
cases pending in the courts. To effectively implement the ADR mechanism,
organizations like ICA, ICADR were established, Consumer redressal
forums and Lok Adalats revived. The Arbitration Act, 1940 was repealed
and a new and effective arbitration system was introduced by the enactment
of the Arbitration and Conciliation Act, 1996.This law is based on the
United Nations Commission on International Trade Law (UNCITRAL)
model law on International Commercial Arbitration.
The Legal Services Authorities Act, 1987 has also been amended from time
to time to endorse use of ADR methods. Section 89 of the Code of Civil
Procedure as amended in 2002 has introduced conciliation, mediation and
pre-trial settlement methodologies for effective resolution of disputes.
Mediation, Conciliation, Negotiation, Mini Trial, Consumer Forums, Lok
Adalats and Banking Ombudsman have already been accepted and
recognised as effective Alternative dispute resolution methodologies.

Abraham Lincoln puts the philosophy of Alternate Dispute Resolution
systems by declaring "discourage litigation; persuade your neighbours to
compromise whenever you can. Point-out to them how the normal winner is
often a loser in fees, expenses, cost and time." Further, the Constitution of
India has defined and declared the common goal for all of us as — "to
secure to all the citizens of India Justice social, economic and political;
Liberty; Equality and Fraternity". ADR is a vehicle to achieve these
principles and objectives.
Alternative Dispute Resolution (ADR): An Overview
Alternative Dispute Resolution ("ADR") refers to any means of settling
disputes outside of the courtroom. ADR typically includes arbitration,
mediation, early neutral evaluation, and conciliation. As burgeoning court
queues, rising costs of litigation, and time delays continue to plague
litigants, more states have begun experimenting with ADR programs. Some
of these programs are voluntary; others are mandatory.
The two most common forms of ADR are arbitration and mediation.
Arbitration is a simplified version of a trial involving no discovery and
simplified rules of evidence. Either both sides agree on one arbitrator, or
each side selects one arbitrator and the two arbitrators elect the third to
comprise a panel. Arbitration hearings usually last only a few hours and the
opinions are not public record. Arbitration has long been used in labor,
construction, and securities regulation, but is now gaining popularity in other
business disputes.
“It is the spirit and not the form of law that keeps the justice alive.” LJ
Earl Warren

The disillusionment and frustration of people over the inordinate delay in
dispensation of justice today looms large as a great threat to erode the
confidence of people in the justice system of the country. It is the
constitutional obligation of the judiciary to exercise its jurisdiction to
reaffirm the faith of the people in the judicial set up. Therefore, evolution of
new juristic principles for dispute resolution is not only important but
imperative.
International Scenario
A brief look at the international scenario of ADR Mechanism reveals the
popularity of its usage in various countries. The seeds of ADR in the UK can
be traced to the work of the advisory, conciliation and arbitration service
which was formed in 1974.In China and Japan mediation was used as
primary means of conflict resolution. The Chinese principle was the
influence of Confucian view of harmony and dispute resolution by morals
rather than coercion. Informal dispute resolution was used in many cultures
of the world including India, Africa and Israel.
In Japan, Judges intervene extensively during the in-court settlement; every
Japanese Judge is expected, both by law and by litigants, to move a case
towards settlement. This has the force of statutory law. At least 40% of the
cases are settled. The Judge, who decides to switch the litigation to a
settlement mode, takes off his robe and acts as mediator.
In 1976, Rosco Pound Conference was held to commemorate the
anniversary of his dissertation on “Public dissatisfaction with the American
Legal system”. It was this conference that the current ADR movement

actually started in America and now these methods are so successful that
nearly 93% of the civil disputes are settled outside the courts.
Even in Europe, mediation is seen as a potentially promising mechanism for
the resolution of both simple and complex disputes. In 1995, France
expanded the legislative basis for judicial conciliation and mediation.
The Hong Kong International Arbitration Centre, most probably the
largest arbitration service centre in Asia, has held the view
“arbitration as compared to litigation has become very popular for
resolving the disputes. Similarly, conciliation and mediation find an
increasing measure of support in future.”
The Concept & its efficacy
The concept of Conflict Management through Alternative Dispute
Resolution (ADR) has introduced a new mechanism of dispute resolution
that is non adversarial. A dispute is basically ‘lis inter partes’ and the justice
dispensation system in India has found an alternative to Adversarial
litigation in the form of ADR Mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal
with the underlying issues in dispute in a more cost-effective manner and
with increased efficacy. In addition, these processes have 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. The
resolution of disputes takes place usually in private and is more viable,
economic, and efficient
The Alternative Dispute Resolution Mechanism has proven to be one the
most efficacious mechanisms to resolve commercial disputes of an
international nature. Transcending national boundaries it renders
proportionate judgements over the merchants’ disputes, as the Law
Merchants of Medieval ages rendered justice in light of “fair price”, good
commerce, and equity. Infact the Law merchant precepts have been
reaffirmed in new international mercantile law. Visualizing the participatory
nature of such laws the ADR method is also formulated in the similar vein.
“Increased awareness of ADR is the need of the hour”
As per data provided by the Registry of Supreme Court of India, as on
31.10.2006, more than 2, 53, 80,757 cases were pending in our subordinate
Courts. The figure of pending adjudication is indeed staggering. To deal
with these cases, we have less than 15000 judges and judicial officers in the
country. The ratio of judge per million populations in India is the lowest in
the world. The Law Commission of India in its 20th Report examined the

problem of under-staffing of the judiciary. The Commission found that India
has 10.5 judges per million populations; the corresponding figure in England
was 50.9, Australia 57.7, Canada 75.2 and the U.S.A. 107. The main reason
of delay in disposal of cases is inadequate judge-population ratio.
Despite many advantages of using Alternative dispute resolution
mechanisms, our society has been reluctant to give it its due recognition
.The predominant reason being that a litigation ridden society is generally
unable to explore consensual dialogue or arrive at an amicable solution. The
ADR practitioner therefore acts like a healer of conflicts rather than a
combatant. It is similar to the Panchayat system we have in our villages. The
resolution of disputes is so effective and widely accepted that Courts have
more often recognised them. In Sitanna v. Viranna, AIR 1934 SC 105, the
Privy Council affirmed the decision of the Panchayat and Sir John Wallis
observed that the reference to a village panchayat is the time-honoured
method of deciding disputes. It avoids protracted litigation and is based on
the ground realities verified in person by the adjudicators and the award is
fair and honest settlement of doubtful claims based on legal and moral
grounds.
Awareness of ADR through seminars, workshops and other means and its
supervised and systematic implementation should be encouraged so that its
effectiveness is proved and the message reaches a large section of
population. Also, apart from a good law that provides for resolution of
disputes, it is rudimentary to extend or create facilities, services, and
infrastructure that shall enable the implementation of such rules and lead to
effective ADR practice. Effective coordination both at operational and
structural level is a prerequisite of any successful ADR mechanism. Pre-trial

conciliation and fixing the targets for dispensation of justice are imperative
for successful implementation of any ADR mechanism. Proper training of
the Mediators, Negotiators, and Conciliators should be a mandatory
requirement for the understanding of the disputes/ cases and its efficient
handling. The specialized firms or organizations are certainly more
promising and reliable in this sphere and people choose to consult them and
engage their services for dispute resolution. There are some important
organizations making significant contribution in promoting ADR services in
India which need a special mention herein namely ICA and ICADR, the
Federation of Indian Chambers of Commerce and Industry, Indian Chamber
of Commerce, the Bengal Chambers of Commerce and Industry. The Indian
Council for Arbitration (ICA) established on April 15, 1965 provides
arbitration facilities for all types of domestic and international commercial
disputes and conciliation of international trade complaints received from
Indian and foreign parties, for nonperformance of contracts or
noncompliance with arbitration awards. It maintains comprehensive
international panel of arbitrators with eminent and experienced persons from
different lines of trade and professions for facilitating choice of arbitrators.
The council has launched on internet a special web site called
COMLAWNET to provide information on arbitration and commercial laws.
We need more organizations such as the ICA, ICC and FICCI that render
specialized services and promote ADR. One would agree that these
organizations have a vital role to play in resolving disputes, in particular,
commercial disputes across the globe!

FEATURES OF ADR
ADR is generally classified into at least four subtypes: negotiation,
mediation, collaborative law, and arbitration. (Sometimes a fifth type,
conciliation, is included as well, but for present purposes it can be regarded
as a form of mediation. See conciliation for further details.) The salient
features of each type are as follows:

• In negotiation, participation is voluntary and there is no third party
who facilitates the resolution process or imposes a resolution.
• In mediation, there is a third party, a mediator, who facilitates the
resolution process (and may even suggest a resolution, typically
known as a "mediator's proposal"), but does not impose a resolution
on the parties. In some countries (for example, the United Kingdom),
ADR is synonymous with what is generally referred to as mediation in
other countries.
• In collaborative law or collaborative divorce, each party has an
attorney who facilitates the resolution process within specifically
contracted terms. The parties reach agreement with support of the
attorneys (who are trained in the process) and mutually-agreed
experts. No one imposes a resolution on the parties.
• In arbitration, participation is typically voluntary, and there is a third
party who, as a private judge, imposes a resolution. Arbitrations often
occur because parties to contracts agree that any future dispute
concerning the agreement will be resolved by arbitration. This is
known as a 'Scott Avery Clause'. In recent years, the enforceability of
arbitration clauses, particularly in the context of consumer agreements
(e.g., credit card agreements), has drawn scrutiny from courts.
Although parties may appeal arbitration outcomes to courts, such
appeals face an exacting standard of review.

"Alternative" dispute resolution is usually considered to be alternative
to litigation. It also can be used as a colloquialism for allowing a dispute to
drop or as an alternative to violence.
ADR can increasingly be conducted online or by using technology.
This branch of dispute resolution is known as online dispute resolution
(ODR). It should be noted, however, that ODR services can be provided by
government entities, and as such may form part of the litigation process.
Moreover, they can be provided on a global scale, where no effective
domestic remedies are available to disputing parties, as in the case of the
UDRP and domain name disputes. In this respect, ODR might not satisfy the
"alternative" element of ADR.
Advantages of ADR
ADR has its own set of advantages and disadvantages when compared
to court procedures, some of the potential advantages of using ADR:

 Save Time: A dispute often can be settled or decided much sooner
with ADR; often in a matter of months, even weeks, while bringing a
lawsuit to trial can take a year or more.
 Save Money: When cases are resolved earlier through ADR, the
parties may save some of the money they would have spent on
attorney fees, court costs, and experts’ fees.
 Increase Control over the Process and the Outcome: In ADR,
parties typically play a greater role in shaping both the process and its
outcome. In most ADR processes, parties have more opportunity to
tell their side of the story than they do at trial. Some ADR processes,
such as mediation, allow the parties to fashion creative resolutions
that are not available in a trial. Other ADR processes, such as
arbitration, allow the parties to choose an expert in a particular field to
decide the dispute.
 Preserve Relationships: ADR can be a less adversarial and hostile
way to resolve a dispute. For example, an experienced mediator can
help the parties effectively communicate their needs and point of view
to the other side. This can be an important advantage where the parties
have a relationship to preserve.
 Increase Satisfaction: In a trial, there is typically a winner and a
loser. The loser is not likely to be happy, and even the winner may not
be completely satisfied with the outcome. ADR can help the parties
find win-win solutions and achieve their real goals. This, along with
all of ADR’s other potential advantages, may increase the parties’
overall satisfaction with both the dispute resolution process and the
outcome.

 Improve Attorney-Client Relationships: Attorneys may also benefit
from ADR by being seen as problem-solvers rather than combatants.
Quick, cost-effective, and satisfying resolutions are likely to produce
happier clients and thus generate repeat business from clients and
referrals of their friends and associates.
 Flexibility with rules and procedures: The procedures may be
designed to suit the dispute, rather than follow the "one size fits all"
Rules of Court. A mediator assists the parties to negotiate their own
solution. An arbitrator is not bound by the Rules of Court, but must
allow the parties an equal and fair opportunity to present their cases,
and make a decision in accordance with the law governing the dispute.
 Choice of decision maker: The parties choose their mediator or
arbitrator. It generally makes sense to appoint someone who knows
the business or has other relevant expertise. The parties can have an
experienced professional appointed by them mutually or an
autonomous body such as Indian Council of Arbitration, the
International Chambers of Commerce (ICC) etc.
 Certainty and enforceability: An arbitral award is final and binding,
and enforceable as an Order of the Court.
 Relationship: Mediation and Arbitration are less damaging to
business relationships than litigation in Courts. The procedures are
less adversarial, and more supportive of a continuing relationship.
Because it is quicker the dispute is finished sooner, allowing the
parties to get on with business.

 Confidentiality: The process is not open to the media or any other
third parties for that matter, except by agreement.
 Efficient resolution
 Less emotional stress
 ADR helps in clearing the bottlenecks within the domestic judicial
system.
Because of these potential advantages, it is worth considering using ADR
early in a lawsuit or even before you files a lawsuit.
Disadvantages
However, as with everything else, ADR also has disadvantages, which are as
follows:
 Parties cannot be compelled to go in for ADR unless they sign an
agreement to resolve their disputes by ADR.
 Success of ADR depends upon the good faith of the parties and their
attorneys; however, unrepresented and/or uninformed party are at
disadvantage of succeeding in an ADR.
 ADR does not any precedent value. Usually in ADR proceedings,
precedents are not given much importance.
 The outcomes of ADR can vary, depending on arbitrator / mediator
and other factors.
 In ADR rules of evidence are not strictly applicable.
 Poor mediator / arbitrator (qualifications, style, attitude) can result in
unsuccessful resolution, and can defeat the purpose of ADR.

IMPACT OF ADR
In a celebrated case, there was a dispute regarding copyright of a
photograph between a person who conceptualized and arranged for the
photograph shoot (the “arranger”) and the photographer who actually took
the photograph. The two went into litigation and it took years for the matter
to get resolved. His verdict was in favor of the arranger, but by then, the
photograph lost its relevance as it was taken for a specific purpose. Had this
dispute been referred to ADR, it would have been resolved much faster and
would have involved less costs and most importantly the photograph would
not have lost its relevance. For years for which the matter was in litigation,
the copyright period of the photograph was running simultaneously and this
benefit of the copyright to the author was lost. Thus, this case demonstrates
that ADR can expedite resolution of dispute and prevention of products
and/or services from losing its relevance and marketability.
ADR aims to prevent anti monopolistic activities. Lets consider an
illustration. There is dispute between a large company, which is financially
sound against a company which is financially not as sound as the large
company. It is easy for the large company to bear the rising costs of
litigation, however, it would be back breaking for the smaller company to
fight the litigation, as these litigation costs add up to its bottom line. In this
scenario, the financially stronger company tends to have an upper hand, as
it’s able to afford litigation, and more often than not, will be interested in
prolonging the case in court, so that smaller company with efflux of time
and also due to rising costs of litigation will tend to lose out. Now, once this

happens, and the smaller company can virtually be wiped out of the
market, due to the reasons aforesaid. Thus, the larger company could get
inclined towards creating a monopoly and take advantage of its financials
and the situation.
ADR can considerably solve this problem, as through ADR, the
matter will be disposed off much sooner than it would do by litigation and it
would work out to be much cheaper also.
Similarly, ADR is very effective for trans-border disputes. This is all
the more because, the parties to the dispute will belong to different laws and
in litigation it becomes difficult to decide which law will apply to resolve
the dispute. Many a times even the concept of Renvoi is not able to give a
favorable solution to such issues of law. In such cases, by way of ADR and
by using principals such as lex mercatori a favorable solution to the dispute
can be arrived at.
When disputes are in litigation, money gets locked in this process,
which has an adverse affect on the economy. Thus, in view of the aforesaid
reasoning, if disputes are referred to ADR, they will not only be resolved
faster, but at much lower costs and could prevent locking of working capital
of disputing parties. For example, I was involved in arbitration (in which the
firm I work was the Counsel for the Claimant) where stakes were high and
involved voluminous documentation. Had this dispute been referred to
litigation it would approximately 10 –15 years to get disposed off, causing
loss and hardships to Claimant. However, through arbitration it got resolved
in just over a years time and the Claimant recovered its money from the
Respondent. This way Claimants’ capital was not affected or locked, which

would have a case in litigation. This demonstrates the effectiveness of ADR
system.
Types of ADR Techniques
The Commission does not mandate the use of a particular ADR
technique in an agency's ADR program. As such, numerous ADR techniques
are available for use by agencies in their programs. The Commission
requires, however, the ADR technique must be used in a manner that is
consistent with the core principles outlined in Chapter III of the
Management Directive (MD)-110. One fundamental core principle provides
that ADR techniques must be voluntary; i.e., the parties (the complainant
and the agency) must mutually agree to participate and a binding decision
cannot be issued by a third party. In addition, the use of an ADR technique
must not diminish the complainant's rights protected under Part 1614
regulations. For example, an ADR program many not require a complainant
to waive his/her right to an investigation, hearing, or to appeal the final
decision to the Commission.
Below is a description of various ADR techniques and the agencies which
utilize them. Agencies are not limited to using only one technique in their
program; rather, they are encouraged to experiment with these techniques by
using various methods in combination to reach effective resolutions.
 Mediation
 Ombuds
 Peer Review
 Fact Finding

 Early Neutral Evaluation
 Settlement Conference
 Facilitation
 Minitrial
 Conciliation
 Arbitration
1. Mediation
In mediation, an impartial person called a “mediator” helps the parties try to
reach a mutually acceptable resolution of the dispute. The mediator does not
decide the dispute but helps the parties communicate so they can try to settle
the dispute themselves. Mediation leaves control of the outcome with the
parties.
Mediation is presently the most popular form of ADR in use by agencies in
employment-related disputes. Mediation is the intervention in a dispute or
negotiation of an acceptable impartial and neutral third party, who has no
decision-making authority. The objective of this intervention is to assist the
parties in reaching a mutually-acceptable resolution of the issues in dispute.
A mediator makes primarily procedural suggestions regarding how parties
can reach agreement. Occasionally, a mediator may suggest some
substantive options as a means of encouraging the parties to expand the
range of possible resolutions under consideration. A mediator often works
with the parties individually, in caucuses, to explore acceptable resolution
options or to develop proposals that might move the parties closer to
resolution.

Mediation is a process in which a neutral person (the mediator) helps people
to negotiate with each other and resolve their dispute.
Cases for Which Mediation May Be Appropriate:
Mediation may be particularly useful when parties have a relationship
they want to preserve. So when family members, neighbors, or business
partners have a dispute, mediation may be the ADR process to use.
Mediation is also effective when emotions are getting in the way of
resolution. An effective mediator can hear the parties out and help them
communicate with each other in an effective and nondestructive manner.
Cases for Which Mediation May Not Be Appropriate:
Mediation may not be effective if one of the parties is unwilling to cooperate
or compromise. Mediation also may not be effective if one of the parties has
a significant advantage in power over the other. Therefore, it may not be a
good choice if the parties have a history of abuse or victimization
How does it work?
• Mediation is confidential, and can only work if everyone is prepared
to work towards a resolution
• Everyone involved in the dispute comes together for a face-to-face
meeting
• The mediator runs the process and the people in dispute decide what
they want to talk about
• The mediator helps identify issues and possible options
• The people in dispute work out a solution with the help of the
mediator
• Mediators don't impose a decision

When is it used?
Mediation can be used when individuals (such as businesses, Neighbours,
family members or work colleagues) have clear conflicts with one another.
The benefits which have been identified with mediation are as follows:
 Effective Process: Mediation generally enjoys an 80%-85% success
rate.
 Better Results: The resolution is created by the parties and is
therefore tailored to their specific needs. This tends to result in a
lower incidence of breach of the agreement reached.
 Speed: A mediation can be arranged in a relatively short period of
time and has the effect of bringing settlement negotiations "to a head"
much more quickly than negotiations directly between parties,
resulting in a faster disposition.
 Cost: Time, money and emotion can be saved through early
resolution of the dispute. Furthermore, the cost of mediation can be
included with taxable costs and disbursements payable to the
successful party.
 Choice of Mediator: A mediator can be chosen who has expertise in
negotiation, effective dispute resolution and in the particular areas of
dispute, which expertise may be of assistance to the parties in
resolving the dispute.
 Freedom to Negotiate: Because the process is confidential and takes
place on a without prejudice basis the parties have the freedom to
develop and consider innovative settlement ideas.

2. Ombuds
Ombuds are individuals who rely on a number of techniques to resolve
disputes. These techniques include counseling, mediating, conciliating, and
fact finding. Usually, when an ombud receives a complaint, s/he interviews
the parties, reviews files, and makes recommendations to the disputants. The
Ombuds do not impose solutions. The power of the ombud lies in his/her
ability to persuade the parties to accept his/her recommendations. An
individual not accepting the proposed solution of the ombud is free to pursue
a remedy in other forums for dispute resolution
3. Peer Review
Peer Review is a problem-solving process where an employee takes a
dispute to a group or panel of fellow employees and managers for a decision.
The decision is not binding on the employee, and s/he would be able to seek
relief in traditional forums for dispute resolution if dissatisfied with the
decision. The principal objective of peer review is to resolve disputes early
before they become formal complaints.
Typically, the panel consists of employees and managers who volunteer for
this duty and who are trained in listening, questioning, and problem-solving
skills as well as the specific policies and guidelines of the panel. A peer
review panel may be a standing group of individuals who are available to
address whatever disputes employees might bring to the panel at any given
time. Other panels may be formed on an ad hoc basis through some selection
process initiated by the employee, e.g., blind selection of a certain number of
names from a pool of qualified employees and managers.

4. Fact Finding
Fact Finding is the use of an impartial expert (or group) selected by the
parties, by the agency, or by an individual with the authority to appoint a
fact finder, in order to determine what the "facts" are in a dispute. The fact
finder may be authorized only to investigate or evaluate the matter presented
and file a report establishing the facts in the matter. In some cases, s/he may
be authorized to issue either a situation assessment or a specific procedural
or substantive recommendation as to how a dispute might be resolved. If
used as an ADR technique, the findings of fact must remain confidential.
5. Early Neutral Evaluation
In neutral evaluation, each party gets a chance to present the case to a neutral
person called an “evaluator.” The evaluator then gives an opinion on the
strengths and weaknesses of each party’s evidence and arguments and about
how the dispute could be resolved. The evaluator is often an expert in the
subject matter of the dispute. Although the evaluator’s opinion is not
binding, the parties typically use it as a basis for trying to negotiate a
resolution of the dispute.
Early Neutral Evaluation uses a neutral or an impartial third party to provide
an objective evaluation, sometimes in writing, of the strengths and
weaknesses of a case. Under this method, the parties will usually make
informal presentations to the neutral party to highlight their respective cases
or positions.

Cases for Which Neutral Evaluation May Be Appropriate:
Neutral evaluation may be most appropriate in cases in which there are
technical issues that require special expertise to resolve or the only
significant issue in the case is the amount of damages.
Cases for Which Neutral Evaluation May Not Be Appropriate:
Neutral evaluation may not be appropriate when there are significant
personal or emotional barriers to resolving the dispute.
6. Settlement Conferences
Settlement conferences may be either mandatory or voluntary. In both types
of settlement conferences, the parties and their attorneys meet with a judge
or a neutral person called a “settlement officer” to discuss possible
settlement of their dispute. The judge or settlement officer does not make a
decision in the case but assists the parties in evaluating the strengths and
weaknesses of the case and in negotiating a settlement. Settlement
conferences are appropriate in any case where settlement is an option.
Mandatory settlement conferences are often held close to the date a case is
set for trial.
Settlement conferences are meetings which are typically conducted by a
settlement judge or referee to assist the parties in reaching a mutually
acceptable settlement of the disputed matter. Agencies may have their own
settlement conferences without the presence of an EEOC administrative
judge, provided the parties agree. The role of the settlement judge is similar
to that of a mediator in that the judge assists the parties procedurally in
negotiating an agreement. Some judges may provide the parties with specific

substantive and legal information about what the disposition of the case
might be if it were to go to court or hearing. The judge may also provide the
parties with possible settlement ranges for their consideration.
7. Facilitation
Facilitation involves the use of techniques to improve the flow of
information in a meeting between parties to a dispute. The term
facilitator is often used interchangeably with the term mediator, but a
facilitator does not typically become as involved in the substantives
issues as does a mediator. The facilitator focuses more on the process
involved in resolving a matter. The facilitator generally works with all of
the participants at once and provides procedural directions as to how the
group can efficiently move through the problem-solving steps of the
meeting and arrive at the jointly agreed upon goal. The facilitator
focuses on procedural assistance and remains impartial to the topics
under discussion.
How does it work?
• Everyone involved comes to one, or several meetings, run by the
facilitator
• The facilitator helps to identify problems to be solved and tasks to be
accomplished
• Facilitators don't impose a decision
• The people at the meeting make a group decision on actions and
outcomes

When is it used?
Facilitation can be used to avoid a dispute by providing a forum for different
points of view to be discussed. It can be used for complex planning and
environmental matters.
It can also be used where people are having difficulty working together, e.g.
in:
• Clubs
• Body corporates
• Workplace & Community organizations.
8. Minitrials
Minitrials involve a structured settlement process in which both parties
present abbreviated summaries of their case before the other party and/or
their representatives who have authority to settle the dispute. The summaries
contain explicit data about the legal bases and the merits of the case. The
process generally follows more relaxed rules for discovery and case
presentation than might be found in a court, and the parties usually agree on
specific limited periods of time for presentations and arguments.
9 Conciliation
Conciliation is a process in which the people in dispute try to reach an
agreement with the assistance and advice of an impartial person (the
conciliator). The conciliator usually has some experience of the subject of
the dispute and can advise the parties what their rights and obligations are.
Discussions are confined to the subject matter of the dispute.
How does it work?

• Conciliation can only work if both parties are prepared to work
towards a resolution
• It is confidential
• The conciliator may advise on how the conciliation process should
take place
• They can often advise on what people's legal rights and
responsibilities are and what a reasonable outcome might be
• They may then act as a 'go-between' by talking to each person
separately and relaying offers or proposals between them
• Ultimately the outcome is up to the individuals involved. The
conciliator does not impose a decision
When is it used?
Conciliation can use for disputes where you need to uphold your rights, or
need advice on what your rights and responsibilities are, e.g.:
• Work cover
• Equal Opportunity
• Consumer disputes
10. Negotiation
Negotiation is an informal bargaining process. It takes place directly
between the people in dispute, but can be assisted by others e.g. lawyers,
advocates.

How does it work?
The people involved in the dispute communicate directly to try and reach an
agreement. Communication may be written or spoken and may take some
time. Effective negotiators know that it is hard to reach an agreement unless
everyone feels they get some benefit (a 'win-win' situation).
When is it used?
Negotiation is a good first step for almost any type of dispute, including
family, neighbourhood, commercial, and consumer disputes. If negotiation
fails, you might benefit from other more formal types of ADR.
11. Arbitration
In arbitration, a neutral person called an “arbitrator” hears arguments and
evidence from each side and then decides the outcome of the dispute.
Arbitration is less formal than a trial, and the rules of evidence are often
relaxed.
Arbitration may be either “binding” or “nonbinding.” Binding arbitration
means that the parties waive their right to a trial and agree to accept the
arbitrator’s decision as final. Generally, there is no right to appeal an
arbitrator’s decision. Nonbinding arbitration means that the parties are free
to request a trial if they do not accept the arbitrator’s decision.
“An Arbitration is a reference to the decision of one or more persons
of a particular matter in difference between the parties”. Arbitration is a
simplified version of a trial involving no discovery and simplified rules of
evidence. Either both sides agree on one arbitrator, or each side selects one
arbitrator and the two arbitrators elect the third to comprise a panel.

Arbitration hearings usually last only a few hours or a few sessions and the
opinions are not public record. Arbitration has long been used in
construction, commercial recovery cases, insurance matters, employment
contracts, securities regulation and so on, but is now gaining popularity in
other business disputes.
In the Indian context, the Arbitration and Conciliation Act, 1996 (the
“Act”) was a natural outgrowth of the process of economic liberalization that
began in 1991. Foreign investment and trade grew rapidly during the early
1990’s as a result of the economic reform process. But it soon became clear
that the Indian Arbitration Act, 1940 did not provide a speedy, effective and
transparent mechanism to address disputes arising out of foreign trade and
investment transactions. Infact, the Code of Civil Procedure, 1908 (amended
in 2002) has laid down that cases must be encouraged to go in for ADR so as
to lessen the burden of the courts.
In the 1940 Act, there was no provision for enforcement of Foreign
Awards and one had to rely upon the Foreign Awards (Recognition and
Enforcement) Act, 1961. Furthermore, there was vast scope for judicial
intervention in the 1940 Act, which was an impediment for ADR. In order to
remedy such disabilities in the 1940 Act, the Act of 1996 was enacted,
which aims to minimize judicial intervention and also has provisions for
enforcement of foreign awards. The Act is in keeping with the provisions of
the Geneva Convention and the New York Convention. India being a
signatory to both the conventions, has to safe guard the interests of other
member and signatory nations, else its interests would be jeopardized in
other member states.

Further, it is interesting to note that almost any type of civil dispute can
be settled by ADR. Some of the most common types of disputes that can be
arbitrated (or resolved through any other method of ADR) are:
• Property
• Insurance
• Contract (including employment contracts)
• Business / partnership disputes
• Family disputes
• Construction
• Commercial recoveries
However, in India, cases involving insolvency, matrimony, criminal
matters, torts etc.,1
[13] cannot be arbitrated and / or resolved by means of
ADR.
Cases for Which Arbitration May Be Appropriate:
Arbitration is best for cases where the parties want another person to decide
the outcome of their dispute for them but would like to avoid the formality,
time, and expense of a trial. It may also be appropriate for complex matters
where the parties want a decision-maker who has training or experience in
the subject matter of the dispute.
Cases for Which Arbitration May Not Be Appropriate:
1

If parties want to retain control over how their dispute is resolved,
arbitration, particularly binding arbitration, is not appropriate. In binding
arbitration, the parties generally cannot appeal the arbitrator’s award, even if
it is not supported by the evidence or the law. Even in nonbinding
arbitration, if a party requests a trial and does not receive a more favorable
result at trial than in arbitration, there may be penalties.

As we have seen the different technique of adr. Let us see the most
important adr technique which is used worldwide. Those are mediation &
arbitration which are discussed in detail below:-
MEDIATION
 Purpose
 Case Selection/Objection
 Listing of Mediators: Commission Registry of mediators
 Selection of Mediators
 Qualifications of Mediators
 Mediation Costs
 Mediation Procedure
 Rules of Evidence
 Discovery
 Sanctions
 Confidentiality
 Purpose
Mediation under this section involves the confidential process by which a
neutral, acting as a mediator, selected by the parties or appointed by the
court, assists the litigants in reaching a mutually acceptable agreement. The
role of the mediator is to assist in identifying the issues, reducing
misunderstanding, clarifying priorities, exploring areas of compromise, and

finding points of agreement as well as legitimate points of disagreement.
Any agreement reached by the parties is to be based on the autonomous
decisions of the parties and not the decisions of the mediator. It is
anticipated that an agreement may not resolve all of the disputed issues, but
the process can reduce points of contention. Parties and their representatives
are required to mediate in good faith, but are not compelled to reach an
agreement.
 Case Selection/Objection
At any time fifteen (15) days or more after the period allowed for
peremptory change of judge under Trial Rule 76(B) has expired, a court may
on its own motion or upon motion of any party refer a civil or domestic
relations case to mediation. After a motion referring a case to mediation is
granted, a party may object by filing a written objection within seven (7)
days in a domestic relations case or fifteen (15) days in a civil case. The
party must specify the grounds for objection. The court shall promptly
consider the objection and any response and determine whether the litigation
should then be mediated or not. In this decision, the court shall consider the
willingness of the parties to mutually resolve their dispute, the ability of the
parties to participate in the mediation process, the need for discovery and the
extent to which it has been conducted, and any other factors which affect the
potential for fair resolution of the dispute through the mediation process. If a
case is ordered for mediation, the case shall remain on the court docket and
the trial calendar.

 Listing of Mediators: Commission Registry of Mediators
Any person who wishes to serve as a registered mediator pursuant to these
rules must register with the Indiana Supreme Court Commission for
Continuing Legal Education (hereinafter "Commission") on forms supplied
by the Commission. The registrants must meet qualifications as required in
counties or court districts (as set out in Ind. Administrative Rule 3(A)) in
which they desire to mediate and identify the types of litigation which they
desire to mediate. Two or more persons individually who are qualified under
A.D.R. Rule 2.5 may register as a mediation team. All professional licenses
must be disclosed and identified in the form which the Commission requires.
The registration form shall be accompanied by a fee of $50.00. An annual
fee of $50.00 shall be due the second June 30th following initial registration.
Registered mediators will be billed at the time their annual statements are
sent. No fee shall be required of a full-time, sitting judge.
The Commission shall maintain a list of registered mediators including the
following information:
(1) Whether the person qualified under A.D.R. Rule 2.5 to mediate
domestic relations and/or civil cases;
(2) The counties or court districts in which the person desires to mediate;
(3) The type of litigation the person desires to mediate; and
(4) Whether the person is a full-time judge.
The Commission may remove a registered mediator from its registry for
failure to meet or to maintain the requirements of A.D.R. Rule 2.5 for non-
payment of fees. A registered mediator must maintain a current business and

residential address and telephone number with the Commission. Failure to
maintain current information required by these rules may result in removal
from the registry.
On or before May 31 of each year, each registered mediator will be sent an
annual statement showing the mediator's educational activities that have
been approved for mediator credit by the Commission.
 Selection of Mediators
Upon an order referring a case to mediation, the parties may within seven
7 days in a domestic relations case or within fifteen 15 days in a civil
case:
(1) Choose a mediator from the Commission's registry, or
(2) Agree upon a non-registered mediator, who must be approved by the
trial court and who serves with leave of court. In the event a mediator is not
selected by agreement, the court will designate three
(3) Registered mediators from the Commission's registry who are willing to
mediate within the Court's district as set out in Admin. R. 3 (A). Alternately,
each side shall strike the name of one mediator. The side initiating the
lawsuit will strike first. The mediator remaining after the striking process
will be deemed the selected mediator.
A person selected to serve as a mediator under this rule may choose not to
serve for any reason. At any time, a party may request the court to replace
the mediator for good cause shown. In the event a mediator chooses not to
serve or the court decides to replace a mediator, the selection process will be
repeated.

 Qualifications of Mediators
(A) Civil Cases: Educational Qualifications.
(1) Subject to approval by the court in which the case is pending, the
parties may agree upon any person to serve as a mediator.
(2) In civil cases, a registered mediator must be an attorney in good
standing with the Supreme Court of Indiana.
(3) To register as a civil mediator, a person must meet all the
requirements of this rule and must have either: (1) taken at least forty
(40) hours of Commission approved civil mediation training in the three
(3) years immediately prior to submission of the registration application,
or (2) completed forty (40) hours of Commission approved civil
mediation training at any time and taken at least six (6) hours of
approved Continuing Mediation Education in the three (3) years
immediately prior to submission of the registration application.
(4) However, a person who has met the requirements of A.D.R. Rule
2.5(B)(2)(a), is registered as a domestic relations mediator, and by
December 31 of the second full year after meeting those requirements
completes a Commission approved civil crossover mediation training
program may register as a civil mediator.

(5) As part of the judge’s judicial service, a judge may serve as a
mediator in a case pending before another judicial officer.
(B) Domestic Relations Cases: Educational Qualifications.
(1) Subject to approval of the court, in which the case is pending, the
parties may agree upon any person to serve as a mediator.
(2) In domestic relations cases, a registered mediator must be either:
(a) an attorney, in good standing with the Supreme Court of Indiana; (b) a
person who has a bachelor's degree or advanced degree from an
accredited institution of higher learning. Notwithstanding the provisions
of (2)(a) and (b) above, any licensed professional whose professional
license is currently suspended or revoked by the respective licensing
agency, or has been relinquished voluntarily while a disciplinary action is
pending, shall not be a registered mediator.
(3) To register as a domestic relations mediator, a person must meet all
the requirements of this rule and must have either: (1) taken at least forty
hours of Commission approved domestic relations mediation training in
the three (3) years immediately prior to submission of the registration
application, or (2) taken at least forty (40) hours of Commission
approved domestic relations mediation training at any time, and taken at
least six (6) hours of approved Continuing Mediation Education in the

three (3) years immediately prior to submission of the registration
application.
(4) However, if a person is registered as a civil mediator and by
December 31 of the second full year after meeting those requirements
completes a Commission approved domestic relations crossover
mediation training program (s) he may register as a domestic relations
mediator.
(5) As part of the judge’s judicial service, a judge may serve as a
mediator in a case pending before another judicial officer.
(C) Continuing Mediation Education (“CME”) Requirements for All
Registered Mediators. A registered mediator must complete a minimum of
six hours of Commission approved continuing mediation education anytime
during a three-year educational period. A mediator’s initial educational
period commences January 1 of the first full year of registration and ends
December 31 of the third full year. Educational periods shall be sequential,
in that once a mediator’s particular three-year period terminates, a new
three-year period and six hour minimum shall commence.
(1) Mediators registered before the effective date of this rule shall begin
their first three-year educational period January 1, 2004.
(2) Attorney mediators may petition the Commission to align their three-
year mediator educational period with their three-year continuing legal
education educational period. During the period of realignment, attorney
mediators must report a prorated number of continuing mediation hours.

(D) Basic Continuing Mediation Education Reporting Requirements.
Within thirty (30) days of presenting a Commission approved basic or
continuing mediation education training course, the sponsor of that course
must forward a list of attendees to the Commission. This list shall include
for each attendee: full name; attorney number (if applicable); residence and
business addresses and phone numbers; and the number of mediation hours
attended. A course approved for CME may also qualify for CLE credit, so
long as the course meets the requirements of Admission and Discipline Rule
29. For courses approved for both continuing legal education and continuing
mediation education, the sponsor must additionally report continuing legal
education, speaking and professional responsibility hours attended.
(E) Accreditation Policies and Procedures for CME.
(1) Approval of courses. The Commission shall approve the course,
including law school classes, if it determines that the course will make a
significant contribution to the professional competency of mediators who
attend. In determining if a course, including law school classes, meets
this standard the Commission shall consider whether:
(a) the course has substantial content dealing with alternative dispute
resolution process;
(b) the course deals with matters related directly to the practice of
alternative dispute resolution and the professional responsibilities of
neutrals;
(c) the course deals with reinforcing and enhancing alternative
dispute resolution and negotiation concepts and skills of neutrals;

(d) the course teaches ethical issues associated with the practice of
alternative dispute resolution;
(e) the course deals with other professional matters related to
alternative dispute resolution and the relationship and application of
alternative dispute resolution principles;
(f) the course deals with the application of alternative dispute
resolution skills to conflicts or issues that arise in settings other than
litigation, such as workplace, business, commercial transactions,
securities, intergovernmental, administrative, public policy, family,
guardianship and environmental; and,
(g) In the case of law school classes, in addition to the standard set
forth above the class must be a regularly conducted class at a law
school accredited by the American Bar Association.
(2) Credit will be denied for the following activities:
(a) Legislative, lobbying or other law-making activities.
(b)In-house program. The Commission shall not approve programs
which it determines are primarily designed for the exclusive benefit of
mediators employed by a private organization or mediation firm.
Mediators within related companies will be considered to be
employed by the same organization or law firm for purposes of this
rule. However, governmental entities may sponsor programs for the
exclusive benefit of their mediator employees.
(c) Programs delivered by these methods: satellite, microwave, video,
computer, internet, telephone or other electronic methods. To be

approved courses must provide a discussion leader or two-way
communication, classroom setting away from the mediator’s offices,
opportunity to ask questions, and must monitor attendance.
(d) Courses or activities completed by self-study.
(e) Programs directed to elementary, high school or college student level
neutrals.
(3) Procedures for Sponsors. Any sponsor may apply to the Commission for
approval of a course. The application must:
(a) Be submitted to the Commission at least thirty (30) days before the
first date on which the course is to be offered;
(b)Contain the information required by and be in the form approved by
the Commission and available upon request or at the Commission’s
web site: www.in.gov/judiciary/cle; and
(c) Be accompanied by the written course outline and brochure used to
furnish information about the course to mediators.
(4) Procedure for Mediators. A mediator may apply for credit of a course
either before or after the date on which it is offered. The application
must:
(a) Contain the information required by and be in the form approved by
the Commission and available upon request or at the Commission’s
web site: www.in.gov/judiciary/cle;
(b) Be accompanied by the written course outline and brochure used to
furnish information about the course to mediators; and,
(c) Be accompanied by an affidavit of the mediator attesting that the
mediator attended the course together with a certification of the course
Sponsor as to the mediator’s attendance. If the application for course

approval is made before attendance, this affidavit and certification
requirement shall be fulfilled within thirty (30) days after course
attendance.
(F) Procedure for Resolving Disputes. Any person who disagrees with a
decision of the Commission and is unable to resolve the disagreement
informally, may petition the Commission for a resolution of the dispute.
Petitions pursuant to this Section shall be considered by the Commission at
its next regular meeting, provided that the petition is received by the
Commission at least ten (10) business days before such meeting. The person
filing the petition shall have the right to attend the Commission meeting at
which the petition is considered and to present relevant evidence and
arguments to the Commission. The rules of pleading and practice in civil
cases shall not apply, and the proceedings shall be informal as directed by
the Chair. The determination of the Commission shall be final subject to
appeal directly to the Supreme Court.
(G) Confidentiality. Filings with the Commission shall be confidential.
These filings shall not be disclosed except in furtherance of the duties of the
Commission or upon the request, by the mediator involved, or as directed by
the Supreme Court.
(H) Rules for Determining Education Completed.
(1) Formula. The number of hours of continuing mediation education
completed in any course by a mediator shall be computed by:

(a) Determining the total instruction time expressed in minutes;
(b) Dividing the total instruction time by sixty (60); and
(c) Rounding the quotient up to the nearest one-tenth (1/10).
(2) Instruction Time Defined Instruction time is the amount of time when a
course is in session and presentations or other educational activities are in
progress. Instruction time does not include time spent on:
(a) Introductory remarks;
(b) Breaks; or
(c) Business meetings
(3) A registered mediator who participates as a teacher, lecturer, panelist or
author in an approved continuing mediation education course will receive
credit for:
(a) Four (4) hours of approved continuing mediation education for every
hour spent in presentation.
(b) One (1) hour of approved continuing mediation education for every
four (4) hours of preparation time for a contributing author who does
not make a presentation relating to the materials prepared.
(c) One (1) hour of approved continuing mediation education for every
hour the mediator spends in attendance at sessions of a course other
than those in which the mediator participates as a teacher, lecturer or
panel member.
(d) Mediators will not receive credit for acting as a speaker, lecturer or
panelist on a program directed to elementary, high school or college

student level neutrals, or for a program that is not approved under
Alternative Dispute Resolution Rule.
 Mediation Costs
Absent an agreement by the parties, including any guardian ad litem, court
appointed special advocate, or other person properly appointed by the court
to represent the interests of any child involved in a domestic relations case,
the court shall set an hourly rate for mediation and determine the division of
such costs by the parties. The costs should be predicated on the complexity
of the litigation, the skill levels needed to mediate the litigation, and the
litigants' ability to pay. The mediation costs shall be paid within thirty (30)
days after the close of each mediation session.
 Mediation Procedure
(A) Advisement of Participants. The mediator shall:
(1) Advise the parties of all persons whose presence at mediation
might facilitate settlement; and
(2) In child related matters, ensure that the parties consider fully the
best interests of the children and that the parties understand the
consequences of any decision they reach concerning the children.
(B) Mediation Conferences.
(1) The parties and their attorneys shall be present at all mediation
sessions involving domestic relations proceedings unless otherwise
agreed. At the discretion of the mediator, non-parties to the dispute
may also be present.

(2) All parties, attorneys with settlement authority, representatives
with settlement authority, and other necessary individuals shall be
present at each mediation conference to facilitate settlement of a
dispute unless excused by the court.
(3) A child involved in a domestic relations proceeding, by agreement
of the parties or by order of the court, may be interviewed by the
mediator out of the presence of the parties or attorneys.
(4) Mediation sessions are not open to the public.
(C) Confidential Statement of Case
Each side may submit to the mediator a confidential statement of the case
not to exceed ten (10) pages, prior to a mediation conference, which shall
include:
(1) The legal and factual contentions of the respective parties as to
both liability and damages;
(2) The factors considered in arriving at the current settlement
posture; and
(3) The status of the settlement negotiations to date.
A confidential statement of the case may be supplemented by damage
brochures, videos, and other exhibits or evidence. The confidential
statement of the case shall at all times be held privileged and confidential
from other parties unless agreement to the contrary is provided to the
mediator. In the mediation process, the mediator may meet jointly or
separately with the parties and may express an evaluation of the case to one
or more of the parties or their representatives. This evaluation may be
expressed in the form of settlement ranges rather than exact amounts.

(D) Termination of Mediation The mediator shall terminate mediation
whenever the mediator believes that continuation of the process would harm
or prejudice one or more of the parties or the children or whenever the
ability or willingness of any party to participate meaningfully in mediation is
so lacking that a reasonable agreement is unlikely. At any time after two (2)
sessions have been completed, any party may terminate mediation. The
mediator shall not state the reason for termination except when the
termination is due to conflict of interest or bias on the part of the mediator,
in which case another mediator may be assigned by the court. According to
the procedures set forth herein, if the court finds after hearing that an
agreement has been breached, sanctions may be imposed by the court.
(E) Report of Mediation: Status.
(1) Within ten (10) days after the mediation, the mediator shall submit
to the court, without comment or recommendation, a report of
mediation status. The report shall indicate that an agreement was or
was not reached in whole or in part or that the mediation was
extended by the parties. If the parties do not reach any agreement as to
any matter as a result of the mediation, the mediator shall report the
lack of any agreement to the court without comment or
recommendation. With the consent of the parties, the mediator's report
may also identify any pending motions or outstanding legal issues,
discovery process, or other action by any party which, if resolved or
completed, would facilitate the possibility of a settlement.
(2) If an agreement is reached, in whole or in part, it shall be reduced
to writing and signed by the parties and their counsel. In domestic
relations matters, the agreement shall then be filed with the court. If

the agreement is complete on all issues, a joint stipulation of
disposition shall be filed with the court. In all other matters, the
agreement shall be filed with the court only by agreement of the
parties.
(3) In the event of any breach or failure to perform under the
agreement, upon motion, and after hearing, the court may impose
sanctions, including entry of judgment on the agreement.
 Rules of Evidence
With the exception of privileged communications, the rules of evidence do
not apply in mediation, but factual information having a bearing on the
question of damages should be supported by documentary evidence
whenever possible.
 Discovery
Whenever possible, parties are encouraged to limit discovery to the
development of information necessary to facilitate the mediation process.
Upon stipulation by the parties or as ordered by the court, discovery may be
deferred during mediation pursuant to Indiana Rules of Procedure, Trial
Rule 26(C).
 Sanctions
Upon motion by either party and hearing, the court may impose sanctions
against any attorney, or party representative who fails to comply with these
mediation rules, limited to assessment of mediation costs and/or attorney
fees relevant to the process.

 Confidentiality
Mediation shall be regarded as settlement negotiations as governed by
Ind.Evidence Rule 408. For purposes of reference, Evid.R. 408 provides as
follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept a valuable consideration in
compromising or attempting to compromise a claim, which was disputed
as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. Compromise negotiations encompass
alternative dispute resolution.
Mediation sessions shall be closed to all persons other than the parties
of record, their legal representatives, and other invited persons.
Mediators shall not be subject to process requiring the disclosure of
any matter discussed during the mediation, but rather, such matter
shall be considered confidential and privileged in nature. The
confidentiality requirement may not be waived by the parties, and an
objection to the obtaining of testimony or physical evidence from
mediation may be made by any party or by the mediators.

ARBITRATION
 Agreement to Arbitrate
 Case Status During Arbitration
 Assignment of Arbitrators
 Arbitration Procedure
 Sanctions
 Agreement to Arbitrate
At any time fifteen (15) days or more after the period allowed for a
peremptory change of venue under Trial Rule 76(B) has expired, the parties
may file with the court an agreement to arbitrate wherein they stipulate
whether arbitration is to be binding or non-binding, whether the agreement
extends to all of the case or is limited as to the issues subject to arbitration,
and the procedural rules to be followed during the arbitration process. Upon
approval, the agreement to arbitrate shall be noted on the Chronological
Case Summary of the Case and placed in the Record of Judgments and
Orders for the court.
 Case Status during Arbitration
During arbitration, the case shall remain on the regular docket and trial
calendar of the court. In the event the parties agree to be bound by the
arbitration decision on all issues, the case shall be removed from the trial

calendar. During arbitration the court shall remain available to rule and
assist in any discovery or pre-arbitration matters or motions.
 Assignment of Arbitrators
Each court shall maintain a listing of lawyers engaged in the practice of law
in the State of Indiana who are willing to serve as arbitrators. Upon
assignment of a case to arbitration, the plaintiff and the defendant shall,
pursuant to their stipulation, select one or more arbitrators from the court
listing or the listing of another court in the state. If the parties agree that the
case should be presented to one arbitrator and the parties do not agree on the
arbitrator, then the court shall designate three (3) arbitrators for alternate
striking by each side. The party initiating the lawsuit shall strike first. If the
parties agree to an arbitration panel, it shall be limited to three (3) persons.
If the parties fail to agree on who should serve as members of the panel, then
each side shall select one arbitrator and the court shall select a third. When
there is more than one arbitrator, the arbitrators shall select among
themselves a Chair of the arbitration panel. Unless otherwise agreed between
the parties, and the arbitrators selected under this provision, the Court shall
set the rate of compensation for the arbitrator. Costs of arbitration are to be
divided equally between the parties and paid within thirty (30) days after the
arbitration evaluation, regardless of the outcome. Any arbitrator selected
may refuse to serve without showing cause for such refusal.

 Arbitration Procedure
(A) Notice of Hearing. Upon accepting the appointment to serve, the
arbitrator or the Chair of an arbitration panel shall meet with all attorneys of
record to set a time and place for an arbitration hearing. (Courts are
encouraged to provide the use of facilities on a regular basis during times
when use is not anticipated, i.e. jury deliberation room every Friday
morning.)
(B) Submission of Materials. Unless otherwise agreed, all documents the
parties desire to be considered in the arbitration process shall be filed with
the arbitrator or Chair and exchanged among all attorneys of record no later
than fifteen (15) days prior to any hearing relating to the matters set forth in
the submission. Documents may include medical records, bills, records,
photographs, and other material supporting the claim of a party. In the event
of binding arbitration, any party may object to the admissibility of these
documentary matters under traditional rules of evidence; however, the
parties are encouraged to waive such objections and, unless objection is filed
at least five (5) days prior to hearing, objections shall be deemed waived. In
addition, no later than five (5) days prior to hearing, each party may file with
the arbitrator or Chair a pre-arbitration brief setting forth factual and legal
positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall
be served upon the opposing party or parties. The parties may in their
Arbitration Agreement alter the filing deadlines. They are encouraged to use
the provisions of Indiana's Arbitration Act (IC 34-57-1-1 et seq.) and the
Uniform Arbitration Act (IC 34-57-2-1 et seq.) to the extent possible and
appropriate under the circumstances.

(C) Discovery. Rules of discovery shall apply. Thirty (30) days before an
arbitration hearing, each party shall file a listing of witnesses and
documentary evidence to be considered. The listing of witnesses and
documentary evidence shall be binding upon the parties for purposes of the
arbitration hearing only. The listing of witnesses shall designate those to be
called in person, by deposition and/or by written report.
(D) Hearing. Traditional rules of evidence need not apply with regard to the
presentation of testimony. As permitted by the arbitrator or arbitrators,
witnesses may be called. Attorneys may make oral presentation of the facts
supporting a party's position and arbitrators are permitted to engage in
critical questioning or dialogue with representatives of the parties. In this
presentation, the representatives of the respective parties must be able to
substantiate their statements or representations to the arbitrator or arbitrators
as required by the Rules of Professional Conduct. The parties may be
permitted to demonstrate scars, disfigurement, or other evidence of physical
disability. Arbitration proceedings shall not be open to the public.
(E) Confidentiality. Arbitration proceedings shall be considered as
settlement negotiations as governed by Ind.Evidence Rule 408. For purposes
of reference, Evid.R. 408 provides as follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept a valuable consideration in
compromising or attempting to compromise a claim, which was disputed
as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements

made in compromise negotiations is likewise not admissible. This rule
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. Compromise negotiations encompass
alternative dispute resolution.
(F) Arbitration Determination. Within twenty (20) days after the hearing,
the arbitrator or Chair shall file a written determination of the arbitration
proceeding in the pending litigation and serve a copy of this determination
on all parties participating in the arbitration. If the parties had submitted this
matter to binding arbitration on all issues, the court shall enter judgment on
the determination. If the parties had submitted this matter to binding
arbitration on fewer than all issues, the court shall accept the determination
as a joint stipulation by the parties and proceed with the litigation. If the
parties had submitted the matter to nonbinding arbitration on any or all
issues, they shall have twenty (20) days from the filing of the written
determination to affirmatively reject in writing the arbitration determination.
If a nonbinding arbitration determination is not rejected, the determination
shall be entered as the judgment or accepted as a joint stipulation as
appropriate. In the event a nonbinding arbitration determination is rejected,
all documentary evidence will be returned to the parties and the
determination and all acceptances and rejections shall be sealed and placed
in the case file.

 Sanctions
Upon motion by both party and hearing, the court may impose sanctions
against any party or attorney who fails to comply with the arbitration rules,
limited to the assessment of arbitration costs and/or attorney fees relevant to
the arbitration 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 is as
follows:
Negotiation : A non-binding procedure in which discussions between the
parties are initiated without the intervention of any third party with the
object of arriving at a negotiated settlement of the dispute.
Conciliation Mediation: A non-binding procedure in which an impartial
third party, the conciliator/mediator, assists the parties to a dispute in
reaching a mutually satisfactory and agreed settlement of the dispute.

Med-Arb: A procedure which combines sequentially conciliation/Mediation
and where the dispute is not settled through conciliation/mediation within a
period of time agreed in advance by the parties, arbitration.
MEDOLA : A procedure in which if the parties fail to reach an agreement
through mediation, a neutral person, who may be the original mediator or an
arbitrator, will select between the final negotiated offers of parties such
selection being binding on the parties.
Mini-Trial : A non binding procedure in which the disputing parties are
presented with summaries of their cases to enable them to assess the
strengths, weaknesses, and prospects of their case and then an opportunity to
negotiate a settlement with the assistance of a neutral adviser.
Arbitration: A procedure in which the dispute is submitted to an arbitral
tribunal which makes a decision (an `award') on the dispute that is binding
on the parties.
Fast track Arbitration: A form of arbitration in which the arbitration
procedure is rendered in a particularly short time and at reduced cost.
Neutral listener Agreement: Parties to a dispute discuss their respective best
settlement offer in confidence with a neutral third party who, after his own
evaluation, suggests settlements to assist the parties to attempt a negotiated
settlement.
Rent a judge: Disputing parties mutually approach a referee, usually a
retired judge, before whom they present their case in informal proceedings.
The referee judge gives his decision which is enforceable in a court of law.
The fee of the referee is paid by the parties.
Final offer arbitration: Each party submits its monetary claim before a

panel that renders its decision by awarding one and rejecting the other claim.
Key Elements to Implementing a Successful ADR Program
1. Review the Administrative Dispute Resolution Act of 1996 and the
Presidential Memorandum of May 1, 1998, for legislative and
executive guidance.
2. Learn as much as possible about existing federal ADR program
structures to avoid unnecessary duplication of effort in creating your
agency's program.
3. Visit the Working Group's ADR website at http://www.adr.gov/ to
obtain useful ADR documents, get recent updates on federal ADR
developments, and participate in newsgroup discussions with ADR
experts in other federal offices.
4. Ensure that your agency makes a long-term commitment by senior
leadership to the establishment of an ADR program, pursuant to the
Presidential Memorandum.
5. If your agency does not yet have a policy statement on the use of
ADR, encourage your agency leadership to adopt the ADR

Declaration of Policy prepared by the Working Group which is
provided on the Working Group's website.
6. Secure the financial resources, dedicated staffing, and expertise
necessary to establish and operate a federal ADR program. This
includes a support structure to match agency ADR needs with
appropriate agency or private-sector ADR resources.
7. If your agency has not yet done so, appoint a Dispute Resolution
Specialist as required by the 1996 Act, so that there will be a clear
point of contact for those wishing to use the agency's ADR program.
8. Ensure that appropriate agency personnel receive ADR education and
skills training which can encompass both the theory and practice of
negotiation, mediation, and related ADR techniques for both program
managers and the agency's counsel.
9. Review the agency's standard agreements, contracts, grants, and other
documents to determine whether to amend such standard agreements
to authorize and encourage the use of ADR if disputes arise.
Create a system to track ADR use and "lessons learned" to ensure continued
progress toward the goals identified in establishing the ADR program.

CONCLUSION
The practical implementation of amicable settlements has produced
good results. Many cases have actually been solved through ADR. There is
no doubt that mediation and arbitration are the quickest and possibly the
most reliable ways for resolving commercial disputes, especially those
relating to international trade, involving technological disputes, commercial
recoveries and so on. I also believe that a partial waiver of a party’s rights or
interests in any settlement process is generally better for the party than
litigation before a court of law regardless of the possibility of winning the
case through court.
ADR has an impact on economy and commerce, which in turn affects
individuals as, wells as corporate entities. Thus, options to litigation should
be considered as part of a company’s policy. Arbitration and mediation as
alternatives to litigation make good business sense and that the inclusion of
arbitration and mediation clauses in their contracts will help to ensure that
disputes will be dealt with in a timely and cost effective way.
It would not be out of place to discuss, briefly, the importance of
dispute management, which is the need of the hour. If companies take more
efforts for using more precisely drafted contracts, take better measures to
ensure that their relationship and reputation are not harmed and all possible

disputes are resolved well in time, may be across the table, then not only will
ADR succeed in its objective, but also the corporates will benefit as it will
reduce litigation costs, it will save time from that litigation and will also help
in preserving relationships.
As is said in the practical philosophy of law that lawyers are what their cases
have made them, so goes the addendum that a legal system is venerated as it
has been handled and managed in course of time. Then only a legacy is left
for the future to find it sufficiently germane to be accepted as a proposition
of inheritance. The law and legal system should appeal the reasons of
people, is not a legal principle but a common sense observation of fact. It is
this spirit that has led to the evolution of ADR Mechanisms for the
dispensation of justice with efficacy and steadfastness!

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