Negotiation
Negotiation is another form of an Alternative Dispute Resolution System. Like conciliation and mediation, negotiation is also a non-binding procedure but a suitable formula for dispute resolution. The discussions between the parties are initiated with the object to reach a compromise settlement through amicable devices. The difference lies in the sense that conciliation and mediation are always initiated with the intervention of a third independent and impartial person. The negotiations may be initiated with or without the intervention of the third party. The main purpose and thrust of all these forms are to arrive at a negotiated dispute settlement. Negotiation is the process of conferencing with another so as to arrive at an amicable settlement about the subject matter of controversy. The most important factor in negotiation by the parties or with the intervention of third-party facilitation is that the disputants always retain control over the process. The process of negotiation and mediation is an educational one. The parties including middlemen in negotiations are qualified and enriched with academic and practical experiences. The qualification and experience may help the parties to learn how to handle controversy and resolve future disputes more effectively themselves. The Judges, lawyers, and other voluntary associations may help negotiations between the disputant but these formulae are not used often enough or extensively to avoid litigation''. An honest, free, and frank mind with a broad sense of approach is the essential requirement, which must be possessed by both parties in order to end the task of dispute permanently.
Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations, and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Those who work in negotiation professionally are called negotiators. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators, or brokers.
Lok Adalats
“While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach”. It roughly means "People's court". India has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Auth[2]ority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they think fit. These are usually presided by retired judges, social activists, or members of the legal profession. It does not have jurisdiction over matters related to non-compoundable offences.
There is no court fee and no rigid procedural requirement (i.e. no need to follow the process given by Civil Procedure Code or Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is impossible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party.
The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 because it is a judgment by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court. Lok Adalat (people’s courts), established by the government, settles disputes through conciliation and compromise. The First Lok Adalat was held in Chennai in 1986. Lok Adalat accepts the cases which could be settled by conciliation and compromise and pending in the regular courts within their jurisdiction.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. The main condition of the Lok Adalat is that both parties in dispute should agree to the settlement.
The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through the legal process. No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in the settlement of money claims. Disputes like partition suits, damages, and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of giving and taking is high in these cases. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost
Mediation-Arbitration Model
Mediation-Arbitration ['Med-arb'] is designed to bring together the benefits of both mediation and arbitration in one forum. The parties use one neutral person as both Mediator and Arbitrator. 'Med-arb' is a procedure where conciliation, mediation, or arbitration alone has not been able to settle the dispute within the time frame. 'Med-arb' is a two-step process. First, use mediation and then use formal arbitration to decide any issues not settled at the mediation stage. The parties are encouraged to be more honest with each other during mediation. They are enriched with a sense that a neutral person will resolve all unsettled matters without biased. The 'Med-arb' is a binding decision including agreements achieved during the mediation phase and the arbitration decision and the decision is enforceable as an ordinary arbitration award.
Mini-trials
The mini-trial is a device introduced in recent years to avoid lengthy and expensive litigation between corporate parties. In mini-trial, the parties to the dispute choose an impartial third party who may be an eminent lawyer, law professor, or former judge of any Court. A person who is an authority in the area of dispute resolution is always preferred in a mini-trial. The mini-trial takes one day or less in dispute resolution. It consists of the attorneys for the two parties making their presentation not only before the impartial adviser but also before the chief executives of the two parties or some other executive who has been given the power to settle the case. The respective attorney argues the case on behalf of the litigant parties. He explains their case to the adversarial questions of the other side and exposes every support that why they should win the case. The Executives on hearing always arrive at a good settlement. The min-trial is primarily a structured negotiation between business or disputing persons. If they fail to negotiate the process turns into mediation with a neutral adviser helping them.