international commercial dispute resolution system framework: a comparative study

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International Commercial Dispute Resolution System Framework

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Executive Summary

This Research Project is based on a study to understand the International CommercialDispute Resolution System Framework, also consisting of a comparative study between India

and Australia ,and was conducted at CICA.

Commercial disputes include disputes arising from, for example, a payment default on

delivery of goods or a dispute concerning the payment and/or finalisation of projects.

Usually a dispute settlement clause in a commercial contract indicates the forum at which an

existing or a future dispute should be settled. This can be a local court via litigation as per the

agreed applicable law or an arbitration court as per the agreed arbitration rules. In the absence of

such dispute settlement clause, rules of international private law decide in which jurisdiction andat which forum a claim can be brought.

This research project is intended to give an extensive understanding of the international

dispute system framework used on a frequent level all over the world with a special reference to

India and Australia.

The project has helped to highlight the key parameters of the various resolution systems and

also suggested reforms to the existing DRS‘s(Dispute Resolution system) prevailing in India

presently.

Flow of the Project Report:

Introduction : Brief introduction and case study example to elaborate the title, various

forms of redressal techniques.

Company Profile

Objectives include understanding the International Dispute Resolution and deducing

the International Dispute Resolution system framework it also includes a comparative

study of the system framework used in India and Australia.

Research Methodology used is case study method so as to analyze real situations and

cases to deduce inferences with respect to the objectives.

Data Sources : Secondary

Data analysis and interpretation

Conclusions and Suggestions

Appendix




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ABSTRACT

Disputes have existed in all cultures, religions, and societies since time

immemorial, as long as humans have walked the earth. In fact, they also exist inthe animal kingdom. Philosophies and procedures for dealing with conflicts havebeen part of the human heritage, differing between cultures and societies. Nations,groups, and individuals have tried throughout history to manage conflicts in orderto minimize the negative and undesirable effects that they may pose.Disputes candevelop in any situation where people interact, in every situation where two ormore persons, or groups of people, perceive that their interests are opposing, andthat these interests cannot be met to the satisfaction of all the parties involved.Because conflicts are an integral part of human interaction, one must learn tomanage them, to deal with them in a way that will prevent escalation anddestruction, and come up with innovative and creative ideas to resolve them.Dealing with disputes – “dispute management,” or “dispute resolution” as it has

come to be called in professional circles – is as old as humanity itself.

Stories of handling disputes and the art of managing them are told at lengththroughout the history of every nation and ethnic group who share the samehistory. Disputes have been recorded from the very early days of humankind. Wefind in The Bible and similar religious and historical documents in different culturesan account of conflicts that were resolved by various processes, includingnegotiation, mediation, arbitration, and adjudication.

We also find accounts of various types of negotiations: between animals andhumans, between two persons, between an individual and a group, between two

groups, and between humans and God. The first negotiation in The Bible wasbetween the snake and Eve, over the apple in the Garden of Eden.

But not all conflicts in religious scriptures have been resolved byalternative/appropriate dispute resolution (ADR). One that was resolved by forceand violence is the story of Cain and Abel. In The Bible we find among many storiesof conflicts and their resolution, the story of Abraham and Lot negotiating, whereAbraham, in order to avoid a fight, offers Lot a deal that Lot cannot refuse.Negotiation was conducted not only between people, but also between humansand God. Abraham negotiated with God over the fate of the people of Sodom andGomorra. God also acted as a mediator between Abraham and Sara when shewanted Abraham to expel Hagar and her son.

In the Muslim tradition we find the story of Muhammad who negotiated with Godover the number of times that the followers will pray. Muhammad managed toreduce the number from the initial fifty times a day down to five, using as his mainargument the necessity to leave enough time for people to do things other thanpray. Throughout history, individuals and groups used a variety of ways to resolvetheir disputes, trying to reach a resolution acceptable to all parties. There is acommon belief in all cultures that it is best to resolve disputes and to reach anagreed end to them, because conflict is a destructive force.




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In the twentieth century many reached the understanding that disputes arenormal in human society, and not necessarily destructive, and that if they do notget out of hand they may have within them a potential for growth, maturity, andsocial changes, an opportunity for new ways of thinking and new experiences.Because conflicts are an integral part of human interaction, one should learn tomanage them: to deal with them in a way that prevents escalation and destruction,and arrives at new, innovative, and creative ideas to resolve them. Much can belearned about the different ways in which conflicts have been prevented in the past.In older societies, resolving disputes was considered a unique ability reserved forthe wise and the elders of the community or for religious leaders.

More recently, conflict prevention has become a primary focus of interest foreveryone, and this has resulted in an ever-expanding field of study and practice.The field of conflict resolution gained momentum in the last three decades of the

twentieth century. It has developed into a widely accepted field of study, whereskills and strategies are being taught, and changes in philosophical attitudes occurthrough training and enhanced self-awareness. The increasing academic activityand practical training initiatives have generated a vast and expanding body ofresearch and publications.

The field is characterized by diversity and complexity. It is diverse becauseconflicts exist in every facet of individual and social life: between business partners,employers and employees, among employees, between trading partners, amongneighbors, between parents and their children, husbands and wives, an individualand society, and between countries.

The field of “conflict resolution” has matured as a multidisciplinary field involving psychology, sociology, social studies, law, business, anthropology, gender studies,political sciences, and international relations. The discipline is complex because itdeals with conflicts at different stages of their existence, and also because it is amix of theory and practice, and of art and science, as Howard Raiffa demonstratedso brilliantly in his book The Art and Science of Negotiation (1982). The “science” is thesystematic analysis of problem solving, and the ”art” is the skills, personal abilities,and wisdom. Some conflicts may not be resolved easily, and can last many years.Sometimes these conflicts persist in spite of the fact that they cause heavy lossesof resources, and even human life.

According to a study at Stanford University (Arrow et al., 1995) there are threecategories of barriers to resolving conflicts:

● Tactical and strategic barriers; these stem from the parties’ efforts to maximize short or long term gains.● Psychological barriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another.




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● Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that are inthe interests of the parties in dispute. A conflict may store within it the potential fora future major dispute, but at the same time it also contains the possibility of futurecreative cooperation, provided the parties seek what is called the “win–winsolution.” To accomplish this, one must learn to negotiate in a manner that is lesscompetitive and adversarial, thereby invoking the potential for cooperation.

By working together as “joint problem solvers” seeking joint solutions and not working against one another, the participants can “enlarge the pie” that is to be divided. This can be done either by negotiation, or with the help of an impartialthird party who will act as mediator.

Third-party intervention is used when a negotiation reaches an impasse. It isused to restore belief in the possibility of a beneficial resolution for the parties,futuredialogue, and restored relationships, while leaving the control over the decisions

withthe parties.




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INDEX

Sr.No Chapter Pg.No

1. INTRODUCTION

(Case study elaboration )

1.1 International commercial disputes resolution.

1.2 Redressal techniques of international commercial disputes

1.3 Scope of Study

2. PROFILE AND CONCEPT

2.1 Industry Profile

2.2 Company Profile

3. OBJECTIVES

4. RESEARCH METHODOLOGY

5. DATA ANALYSIS AND INTERPRETATION

5.1 Understanding the international dispute resolution (examplecases )

5.2 Understand and deduce the international dispute resolution

system framework :By comparing key dispute resolution

systems in four countries

5.3 Comparing the system framework used in India and Australia

6.0 CONCLUSION

7.0 SUGGESTIONS

8.0 APPENDIX




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CHAPTER 1

INTRODUCTION

1.1 International commercial disputes resolution.

1.2

Redressal techniques of internationalcommercial disputes.

1.3 Scope of Study.




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International Commercial Dispute Resolution System Framework :

A comparative study between India and Australia

1.1 What is a international commercial dispute?

International commerce refers to the buying and selling of goods between sovereignnations. International commerce allows countries to take advantage of competitiveadvantages in certain areas, while diminishing disadvantages in other areas. Variousfactors have to be considered while carrying out international commerce transactionssuch as Political policies and legal practices, Cultural factors, Economic forces, Geographical influences etc. hence there are chances of disputes arising amongst thestakeholders .International Commercial disputes include disputes arising from, forexample, a payment default on delivery of goods or a dispute concerning the payment

and/or finalisation of projects.

“The obligation of the legal profession is….to serve as healers of human

conflicts…..we should provide mechanisms that can produce an acceptable result in

the shortest possible time, with the least possible expense, with the minimum stress

on the participants. That is what justice is all about”

CASE EXAMPLE: VODAFONE v/s UNION OF INDIA CASE

Facts of the Case:‗Hutchison (Hongkong)‘ is a Non resident having no tax implications in India.

‗Cayman Island (Mauritius)‘ was a 100 % Subsidiary of Hutchison (Hongkong). Hutchison Essar

was an Indian co. in which Cayman Island (Mauritius) was holding 67 % shares and Essar had

total holding of 33 % only. Mauritius is considered as a tax Heaven Country, So Cayman Island

was incorporated for this transaction exclusively. Vodafone is a co. incorporated in Nederland

(UK), treated as foreign co. in India.

Transactions: Cayman has acquired 67 % shares in Hutchison Essar initially, Hutchison

(Hongkong) has sold Cayman Island to Vodafone (UK) @ $ 10 billion in 2007 and Vodafone

has paid entire sum to Hutchison (Hongkong) without deducting any TDS.

Impact: As per Indian tax law, this transaction was not taxable in India, because Buyer and

seller both were non resident of India and company sold (Cayman Island) was also a foreign co.

Directly there was no tax implication in India for such transaction. In case of issues related to

implication of payment of TDS, a certificate from Chartered accountant is required, however it

is recommended that if CA has any doubt he should take opinion of CIT But in given case No

http://en.wikipedia.org/wiki/Policies

http://en.wikipedia.org/wiki/Legal_practices

http://en.wikipedia.org/wiki/Cultural

http://en.wikipedia.org/wiki/Economic_forces

http://en.wikipedia.org/wiki/Geographical

http://en.wikipedia.org/wiki/Geographical

http://en.wikipedia.org/wiki/Economic_forces

http://en.wikipedia.org/wiki/Cultural

http://en.wikipedia.org/wiki/Legal_practices

http://en.wikipedia.org/wiki/Policies




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opinion of CIT was taken. Indirectly the controlling Interest of Hutchison Essar has been sold

through this transaction. Because Cayman Island was only a paper co., which has no value in

itself without controlling interest in Hutchison Essar (Indian Co.). Hutchison has sold shares of

Indian co. in form of Cayman Island to Vodafone UK. But by this method they have saved

capital gain taxes (Ought to be arisen in India) on such Transaction.

Assessing officer (Indian Income Tax Dept.) has issued a show cause notice u/s 201 to

Vodafone for imposing penalty u/s 271C (Total demand of Rs. 11000 Crore) on non deduction of

TDS u/s 195 for amount paid to Hutchison (HK). Vodafone has not replied to that notice and

filed a writ petition to challenge the ‗jurisdiction of Income tax Department‘ for issuing such

notice, before Mumbai High Court. Honourable Mumbai High Court has rejected their petition

with cost. Then Vodafone has filed an SLP before Supreme Court against such rejection.

Honourable Supreme Court has transferred the case to Income Tax department with specific

instructions to examine Facts and determine that whether dept. had jurisdiction or not for issuing

such notice. SC asks Vodafone to appear before Income Tax Dept in such case. The court also

made it clear that if the I-T Department passes any order for penalty, it would not be enforced,till Supreme Court further decides the main matter of tax dispute.

1.2 Redressal of these international commercial disputes :

International dispute settlement is concerned with the techniques and institutions which are used

to solve international disputes between States and/or international organizations. International

disputes can be solved either by use of force (coercion) or by peaceful settlement. Techniques

used for peaceful settlement of international disputes are negotiation, inquiry, mediation,

conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other

peaceful means of their own choice

Negotiation, Mediation, Conciliation, Arbitration and Judicial settlement among others are themain pacific mechanisms for the settlement of International Commercial Disputes.

Negotiation: parties to a dispute usually attempt to settle dispute through dialogue. It is the precursor to other means of settlement. Negotiation does not involve the use of third party.Through discussions the issues on dispute can be settled. Parties to a dispute may negotiationeither through regular or officials specially designated. It should be noted that most States have

Legal Advisers who know enough about International Law to recognise a vital claim when theysee one and who can usually be relied upon to advise their own states to give way when theirlegal position is weak.

Mediation: The third means of settlement is mediation. Here, a third party helps to bring out thefacts of the dispute through investigations and makes a report which helps in the resolution of thematter. The mediation makes the proposal for the settlement of the disputes instead ofcontending himself with inducing negotiation.




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Conciliation: The process of conciliation involves a third party investigation of the basis of thedispute and the submission of a report embodying suggestions for a settlement. Conciliationinvolves elements of both inquiry and mediation. This mode of settlement evolved from treaties providing for permanent inquiry commission. Conciliation reports are proposals and do notconstitute binding decisions.

Arbitration: According to the Oxford Advanced Learner‘s Dictionary, arbitration is the process

of having a dispute settled by a person or a group not involved in the dispute‖. The International

Law Commission defined Arbitration ―as a procedure for the settlement of disputes betweenstates by a binding award on the basis of law and as a result of an undertaking voluntarilyaccepted‖.

1.3 Scope of Study:

This research provides me with an opportunity to explore the field of International Business.

This research also provided a detailed insight into the functioning of the dispute resolution

system of India as well as other prominent countries.

The importance of a well organized ADR system will provide a basis for a strong foundation for

international business transaction and also develop a sense of ethics and righteousness, apart

from that it would provide me a great deal of exposure to the various systems prevailing and help

me to deduce an effective solution in the context of the country.




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CHAPTER 2

PROFILE AND CONCEPT


2.2 Company Profile




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International arbitration is a leading method for resolving disputes arising from international

commercial agreements and other international relationships. As with arbitration generally,international arbitration is a creation of contract, i.e., the parties' decision to submit disputes to

binding resolution by one or more arbitrators selected by or on behalf of the parties and applying

adjudicatory procedures, usually by including a provision for the arbitration of future disputes in

their contract. The practice of international arbitration has developed so as to allow parties from

different legal and cultural backgrounds to resolve their disputes, generally without the

formalities of their respective legal systems.

The resolution of disputes under international commercial contracts is widely conducted underthe auspices of several major international institutions and rule making bodies. The most

significant are the International Chamber of Commerce (ICC), JAMS International, theInternational Centre for Dispute Resolution (ICDR), the international branch of the AmericanArbitration Association), the London Court of International Arbitration (LCIA), the Hong KongInternational Arbitration Centre, and the Singapore International Arbitration Centre (SIAC).Specialist ADR bodies also exist, such as the World Intellectual Property Organisation (WIPO),which has an arbitration and mediation center and a panel of international neutrals specialising inintellectual property and technology related disputes. See http://www.wipo.int/amc/en/.

A number of arbitral institutions have adopted the UNCITRAL Rules for use in internationalcases.

The most salient feature of the rules of the ICC is its use of the "terms of reference." The ―termsof reference‖ is a summary of the claims and issues in dispute and the particulars of the

procedure, and it is prepared by the tribunal and signed by the parties near the beginning of the proceedings.[14]

In a more recent development, the Swiss Chambers of Commerce of Industry of Basel, Berne,Geneva, Lausanne, Lugano, Neuchâtel and Zurich have adopted a new set of Swiss Rules ofCommercial Mediation that are designed to integrate fully with the Swiss Rules of InternationalArbitration that were previously adopted by these chambers to harmonize internationalarbitration and mediation proceedings across Switzerland. For a recent paper on these two sets ofADR rules and how they may be combined

http://en.wikipedia.org/wiki/Arbitration

http://en.wikipedia.org/wiki/Contract

http://en.wikipedia.org/wiki/Arbitrator

http://en.wikipedia.org/wiki/International_Chamber_of_Commerce

http://www.jamsinternational.com/

http://en.wikipedia.org/wiki/International_Centre_for_Dispute_Resolution

http://en.wikipedia.org/wiki/American_Arbitration_Association


http://en.wikipedia.org/wiki/London_Court_of_International_Arbitration

http://en.wikipedia.org/wiki/Hong_Kong_International_Arbitration_Centre


http://www.siac.org.sg/

http://www.wipo.int/amc/en/

http://en.wikipedia.org/wiki/International_arbitration#cite_note-14




http://www.wipo.int/amc/en/

http://www.siac.org.sg/



http://en.wikipedia.org/wiki/London_Court_of_International_Arbitration




http://en.wikipedia.org/wiki/International_Centre_for_Dispute_Resolution

http://www.jamsinternational.com/

http://en.wikipedia.org/wiki/International_Chamber_of_Commerce

http://en.wikipedia.org/wiki/Arbitrator

http://en.wikipedia.org/wiki/Contract

http://en.wikipedia.org/wiki/Arbitration




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2.2 Company Profile

CICA I cceenntteer r ffoor r iinntteer r nnaattiioonnaall ccoommmmeer r cciiaall aar r bbiittr r aattiioonn

The Centre for International Commercial Arbitration (CICA) is India‘s pioneer international

arbitral institution. Its membership includes leading practitioners and academics expert in thefield of international and domestic commercial arbitration and all forms of dispute resolution.

CICA's mission is to educate, promote and encourage the use of international commercial

arbitration as a means of dispute resolution within India and the Asia Pacific Region.

The key functions of CICA are as follows:

1. Administration of arbitrations and mediations under the CICA rules

Where one of the sets of the rules apply parties must commence mediation or arbitration in

accordance with the procedures set out in the relevant rules

2. Administration of arbitrations and mediations under an ad-hoc process

In circumstances where the parties have agreed (in their contract or after a dispute arises),CICA may act as the administering institution in ad hoc arbitrations and mediations, whetherconducted under a set of ad hoc provisions such as the UNCITRAL Arbitration Rules orotherwise.

3. ACICA as an appointing authority

4. ACICA as Stakeholder for Trust Funds

CICA is able to act as stakeholder, holding funds on account for payment of arbitration or

mediation costs, in circumstances where it is not administering the dispute (although it may

have acted as the appointing authority).




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5. Panels

CICA maintains both a panel of recommended arbitrators and a panel of recommended

mediators. Membership of both panels is subject to an application process and members are

approved by the CICA Board based on specified criteria and a vetting process.

6. Information on experienced international arbitration practitioners

CICA‘s corporate partners include a number of law firms and experienced practitioners with

an arbitration or ADR specialisation.

7. Information on arbitration agreements, rules and arbitration law and practice

CICA can provide general information about alternative dispute resolution processes in

India, and arbitration rules, law and practice.




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CHAPTER 3

OBJECTIVES




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Objectives of study :

To understand the International Dispute Resolution.

A Study in detail with the help of case study analysis, of the various methods and

techniques mainly used in the process of Dispute resolution on a commercial level viz:

Negotiation ,Mediation, Conciliation, Arbitration.

To understand and deduce the International Dispute Resolution system framework.

A comparative evaluation of the main systems prominent in four distinct countries and

the deduction of key parameters of them .The countries in consideration are INDIA

(Delhi Mediation Centre) , ISRAEL (Tel Aviv), California (San Mateo County),

AUSTRALIA (Australian International Disputes Centre).

To compare the system framework used in India and Australia.

Comparison of the Dispute Resolution system framework in INDIA and

AUSTRALIA and deduction of inferences ,conclusions and possible suggestions.




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CHAPTER 4

RESEARCH METHODOLOGY

4.1 Definition of case study

4.2 Advantages in using case studies.




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Research methodology :

Research methodology is a way to systematically solve the research problem. In the case of

this project, case study method has been adopted. Case study research excels at bringing us to an

understanding of a complex issue or object and can extend experience or add strength to what is

already known through previous research. Case studies emphasize detailed contextual analysis of

a limited number of events or conditions and their relationships. Researchers have used the case

study research method for many years across a variety of disciplines. Social scientists, in

particular, have made wide use of this qualitative research method to examine contemporary

real-life situations and provide the basis for the application of ideas and extension of methods.

Researcher Robert K. Yin defines the case study research method as an empirical inquiry that

investigates a contemporary phenomenon within its real-life context; when the boundaries

between phenomenon and context are not clearly evident; and in which multiple sources of

evidence are used.

4.1 Definition of case study

Case study method enables a researcher to closely examine the data within a specific context.

In most cases, a case study method selects a small geographical area or a very limited number

of individuals as the subjects of study. Case studies, in their true essence, explore and

investigate contemporary real-life phenomenon through detailed contextual analysis of a

limited number of events or conditions, and their relationships.

In some case studies, an in-depth longitudinal examination of a single case or event is used.

The longitudinal examination provides a systematic way of observing the events, collecting

data, analysing information, and reporting the results over a long period of time. For instance,

studies on child language development can be conducted using this longitudinal case study

method. Data collected through observations are recorded to ascertain the language

development of a child. In another example, a researcher conducting a case study may

examine the reading processes of only one subject over a period of time. In other words, a

case study is a unique way of observing any natural phenomenon which exists in a set of data

(Yin, 1984). By unique it is meant that only a very small geographical area or number of




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subjects of interest are examined in detail. Unlike quantitative analysis which observes

patterns in data at the macro level on the basis of the frequency of occurrence of the

phenomena being observed, case studies observe the data at the micro level.

A case study is an empirical enquiry that

• investigates a contemporary phenomenon in depth and within its real-life context,

especially when

• the boundaries between phenomenon and context are not clearly evident.

The case study inquiry

• copes with the technically distinctive situation in which there will be many more

variables of interest than data points, and as one result

• relies on multiple sources of evidence, with data needing to converge in a

triangulating fashion, and as another result

• benefits from the prior development of theoretical propositions to guide data

collection and analysis.

4.2 Advantages in using case studies.

First, the examination of the data is most often conducted within the context of its use), that is,

within the situation in which the activity takes place. A case study might be interested, for

example, in the process by which a subject comprehends an authentic text. To explore the

strategies the reader uses, the researcher must observe the subject within her environment, such

as reading in classroom or reading for leisure. This would contrast with experiment, for instance,

which deliberately isolates a phenomenon from its context, focusing on a limited number of

variables

Second, variations in terms of intrinsic, instrumental and collective approaches to case studies

allow for both quantitative and qualitative analyses of the data. Some longitudinal studies of

individual subjects, for instance, rely on qualitative data from journal writings which give

descriptive accounts of behaviour. On the other hand, there are also a number of case studies

which seek evidence from both numerical and categorical responses of individual subjects




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. While cautions researchers not to confuse case studies with qualitative research, he also notes

that ―case studies can be based … entirely on quantitative evidence‖.

Third, the detailed qualitative accounts often produced in case studies not only help to explore or

describe the data in real-life environment, but also help to explain the complexities of reallife

situations which may not be captured through experimental or survey research.

A casestudy of reading strategies used by an individual subject, for instance, can give access to

not only the numerical information concerning the strategies used, but also the reasons for

strategy use, and how the strategies are used in relation to other strategies. As reading behaviours

involve complex cognitive processes, each reading strategy cannot be examined in isolation

but rather in relation to other strategies




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CHAPTER 5

DATA ANALYSIS AND

INTERPRETATION

5.1 Understanding the international dispute resolution

(example cases )

5.2 Understand and deduce the international dispute

resolution system framework :By comparing key dispute

resolution systems in four countries

5.3 Comparing the system framework used in India andAustralia




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Data analysis and interpretation:

5.1 Understanding the international dispute resolution (example cases ):

As mentioned above the methods most generally used for International Commercial disputes

resolution are Negotiation,Mediation,Conciliation,Arbitration .Below given is a brief description

of the methods and a case study example:

NEGOTIATION:

The simplest and the most utilised method to resolve differences is negotiation;

Negotiation means discussions between interested parties with a view of reconciling

divergent positions;

The parties are directly engaged;

Successful negotiation requires a certain degree of mutual goodwill, flexibility and

sensitivity.

CASE STUDY EXAMPLES:

French food group Groupe Danone (Danone) is the third largest food business in Europe. The

group, which first built its factories in China in the 1980s, is currently one of the world‘s leading

global corporations in fresh dairy products and bottled water. The other party, Chinese beveragegiant Wahaha Group (Wahaha), was established in 1987 in an east Chinese city Hangzhou and is

now the biggest food and beverage enterprise in China.The cooperation between Danone and

Wahaha started in 1996. That year, Danone SA (together with Hong Kong Peregrine Investments

Holding Limited) and Hangzhou Wahaha Group Co Ltd paired up to sign an agreement to form

five joint venture companies.1 They appointed Mr Zong Qinghou, the chairman of Wahaha, as

chairman of the board of directors of the five joint ventures. At the beginning when the joint

ventures were founded, Wahaha Group also set up five nonjoint ventures that produced beverage

products. Following the financial crisis in Asia, Peregrine went bankrupt and its 10% share was

purchased by Danone in 1998. As Danone accounted for a 51% stake of the joint ventures, it

gained the controlling interest. As expected, the joint venture grew, with 39 sub-joint ventures

and controlling market share in China‘s beverage business to date. A Trademark Transfer

Agreement between Danone and Wahaha to the newly-formed joint venture was reached in 1996

when their cooperation started. However, the Trademark Bureau of China did not formally

respond to this agreement. In 1999, instead of calling it a ‗transfer‘, the parties signed two

separate trademark licence agreements, titling both of them ‗Trademark Use Agreement‘, one of

which was sent for record purposes to the Trademark Bureau of China and the other was kept by




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the parties. One thing that needs to be pointed out is that the agreement kept by the parties

contains a clause stating that the trademark of ‗Wahaha‘ can only be used for the joint ventures;

while the one kept as a record in Trademark Bureau of China doesn‘t have that clause. At the

same time Mr Zong Qinghou reorganised Wahaha Group, and established some non-joint

ventures on the basis of shares from the worker and staff. The total number of these ventures has

now reached 61 with total assets reaching 5.6 billion Yuan (AU$1.12 billion), and in 2006 alone

total profits reached 1.04 billion Yuan (AU$208 million). Things went well for seven years until

2006 when Danone considered that some of the minority shareholders, along with other

connected persons, had illegally set up numerous companies which manufactured and sold

products that were identical or similar to those sold by the subsidiaries, and were making

unlawful use of the subsidiaries ‗trademarks, distributors and suppliers, so that it was not getting

all the money that it should have, and that its Chinese partner was competing against the joint

ventures. To end the problem Danone decided to buy out the Chinese partner. Danone requested

to buy out a 51% share of the Wahaha non-joint ventures for an under-priced payment of 4

billion Yuan (AU$800million). The proposal was firmly rejected by Wahaha Group. Hence, thedispute between the two parties came to the table.Because of the complexity of the dispute, from

late 2006 till now, the parties have gone through negotiation, litigation and arbitration, back to

negotiation and mediation, and then to a truce situation.

Determinant factors

Chinese negotiators are more concerned with the means than the end, more with the process than

the goal. Eight elements that underpinned the Chinese negotiation style are (1) Personal

connections, (2) The intermediary, (3) Social status, (4) Interpersonal harmony, (5) Holistic

thinking, (6) Thrift, (7) Endurance and relentlessness, and (8) ‗Face‘ or social capital. Buttery

and Leung added tha Chinese prefer establishing complicated relationships while Westerners pay

more attention to procedure. Therefore more factors than the eight named will affect the progress

in Chinese negotiations. In light of the Danone – Wahaha case, I propose to modify the eight

elements above for the determination of the progress of negotiation between disputing parties in

China: (1) Likelihood of legal success, (2) Public opinion, (3) Government conduct, (4)

Involving other kinds of dispute resolution, (5) Relationship value, (6) The intermediary, (7)

Expenses, and (8) Ethical problems — aggressive behaviour.

Likelihood of legal success

In dispute resolution negotiations the alternative to accepting settlement via negotiation is to goto court. In negotiation, lawyers will settle if they think that what is offered is worth equal to or

more than what they could realistically get if the matter went to court, bearing in mind the risks

and expenses involved in litigation. In the Danone – Wahaha case, the main legal issues are: Is the

1996 trademark transfer agreement legitimate and binding? If both parties signed two trademark

licence agreements, one of them being registered and the second not, which one is legally

effective? According to relevant Chinese statutes, the action of the Trademark Office2 was




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incorrect, and whether an agreement is recorded or not, does not have any effect on the validity

of the agreement. Although legal practitioners were arguing about the legal effect of the

unrecorded agreement, it seemed that Danone had a more favoured position from a legal point of

view.

MEDIATION:

Mediation:

a mediator is more active and actually takes part in negotiations suggesting terms

of settlement to the disputing parties;

a mediator has to enjoy the confidence of the disputing parties and must be

impartial/neutral;

no effective mediation can be provided without the consent from the disputing

parties;

the use of mediation is not obligatory and the suggestions made by mediators are

not binding for the disputing parties;

examples:

mediation of the Pope in the Argentina – Chili territorial dispute over the

Beagle Channel;

mediation by the USSR between India and Pakistan in 1966;

mediation of Algeria to end the hostages crisis between the USA and Iran;

US mediation between Israel and Egypt in 1979 in Camp David;

mediation of the UN Secretary General in Cyprus.


A Ukraine Company (Applicant) filed a complaint regarding the quality of a batch of steel joist

provided by certain building materials company in Heibei Province to CCPIT Mediation Center.

The Ukraine Company claimed that the exporter refused its compensation request by arguing

that there was no quality problem when the goods were delivered at the destination. The

Mediation Center contacted the exporter immediately, and the exporter submitted explanations




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on the reason of rust causing the quality problem, and confirmed its ground on refusing the

compensation.

CCPIT Mediation Center asked the Applicant to provide evidence for the reason of the rust, and

contacted the exporter to seek the root for the dispute. After several times of persuasion, the

exporter has agreed to choose mediation to solve the disputes.

Mediation Process and Result:

According to the CCPIT Mediation Rules, the Mediation Center has confirmed the location and

time for the mediation conference with the parties, and a Mediator has been appointed.

The mediation meeting was held in Beijing. After the parties made their statements, the Mediator

noticed that even though Applicant was holding the inspection report and evidence for steel rust,he was not confident that the Respondent would compensate their loss. The delivery term for the

goods was on FOB Tianjin basis. Thus all the risk was transferred when the goods was delivered

through the gunwale. The Respondent declared that the steel rust was due to inappropriate

storage, and the Respondent should not be held liable. The Respondent also claimed for the

interest loss to the Applicant for the delay in making the balance payment.

In the following separate sessions, the Mediator guided the parties to objectively assess their

position in the case and persuaded the parties to overlook the trivial conflicts and try to settle the

dispute. Under the assistance of the mediator, both parties reached a preliminary agreement that

the Respondent would pay certain amount of compensation according to the condition of the

goods.

The Mediator drafted the settlement agreement and the parties confirmed on the currency of

payment, channels of payment and the issuance of receipt. The parties signed the settlement

agreement and also agreed that the payment should be supervised by the Mediator to make sure

the appropriate performance of the agreement. In the end, the Respondent made the payment in

ten working days after receiving relative materials from the Applicant, and the business

relationship of the parties was maintained.

Case Analysis

1. In international trade disputes, when is the best time for the parties to use mediation? In one

sense, the earlier the parties use it, the greater the costs saving. In the other the parties should

calm down when the disputes arise, and try to negotiate with each other. If negotiation failed, the

parties should seek mediation from a third neutral party, esp. Professional Mediation Centers.




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Otherwise a small misunderstanding will lead to mistrust and serious conflicts in the end.

2. Establishing a good business relationship in the long run is more important than sole profit in

the short term. The business relation is one of the most important factors that determine the life

of a company. A company should try to maintain its reputation and business relationships while

seeking profit.

3. Take one step back will bring new opportunities. As a flexible and efficient way to resolvedispute, mediation is easier to be accepted by the parties with better solution than litigation and

arbitration. It is a voluntary process, the neutral mediator assist the parties in the dispute to reach

a settlement, who is not there to make decisions. Mediation seeks to maintain the business

relationships of the parties, while focusing on the parties to negotiate a solution by themselves,

not to judge who is right or who is wrong. Commercial mediation is of low cost, very flexible

and the mediation meeting time, location and mediation approaches could be decided by the

parties.




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CONCILIATION:

Conciliation involves elements of mediation and inquiry.

A third party (a commission set up by the parties) investigates the facts of a dispute and

submits a report containing a suggested terms of a settlement.

Conciliation is more formal and less flexible than mediation. Most conciliations were performed by commissions composed of several members but

occasionally states may prefer a single conciliator.

The use of conciliation, the report and recommendations made are not binding for the

disputing parties. However, in practice, there some treaties providing for obligatory use

of conciliation.


Advice about Reciprocal Health Agreement between Italy and Australia

The complainant, an Italian visitor to Australia, required emergency hospital treatment for aninfection in his left ear. He did not speak English and communicated through family members asinterpreters. He was advised by a public hospital to go to a private hospital nearby as theemergency department was very busy and he would be seen more quickly there. He followed thatadvice and was charged $150 for emergency treatment.The following day, he was required to pay $1875 before he could be admitted to the privatehospital for the administration of intravenous antibiotics. The hospital was asked whether hecould have the treatment for free at the public hospital but advised him that because he was avisitor from Italy the cost would be greater. As a result of this advice he paid the money and wasadmitted to the private hospital. The information given to him was incorrect, since there is aReciprocal Health Care Agreement between Australia and Italy. Treatment at the public hospitalwould in fact have been free.The claimant sought to recover the cost of the hospitalisation and incidental fees, including pathology fees.Prior to conciliation, the hospital had agreed, as a gesture of goodwill, to refund the sum of $750 plus the emergency fee, and to arrange the bulk billing of the incidental accounts. The patient‘swife was also accommodated free of charge during her husband‘s stay. The hospital maintainedthat it was not entirely responsible for what had occurred, as its staff could not be expected toknow about payment arrangements for patients from overseas.Within conciliation, the hospital agreed to further reduce the complainant‘s hospital costs and

expenses, and accepted that it was in the interests of overseas visitors that they be correctlyinformed of the cost of health care.As a consequence of the complaint, it initiated a process of adding the Australian GovernmentsReciprocal Health Care Agreements to the standard information provided to admitting staff.Additionally, the Front Office managers will include this information in their internal education.




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ARBITRATION:

Arbitration has been used for a long time by states as a method of international dispute

settlement. Arbitration is carried our by an arbitral tribunal set up ad hoc to resolve a specificdispute.

In arbitration, the disputing parties choose the arbitrators, the location and procedure ofthe tribunal, and determine applicable law. This is done by a special agreement called―compromise‖.

Arbitral awards are binding for the disputing parties.


Zueblin Case

On 22 December 2000, Zueblin International GmbH, Germany (―Zueblin‖), entered into an agreement (the ― Agreement ‖ ) with Wuxi Woco-Tongyong Rubber EngineeringCorporation, a wholly-foreign-owned enterprise in Wuxi, Jiangsu Province, China(― Woco‖) , under which Zueblin agreed to construct a factory for Woco in Wuxi, JiangsuProvince of China. The two-page Agreement incorporated the FIDIC Green Book GeneralConditions by reference in its appendix. The last line of the second page of the

appendix to the Agreement provides: ―Arbitration 15.3 ICC Rules Shanghai shallapply‖ (the ―Arbitration Clause‖).

The parties disagreed on the payment of construction work. Woco brought the disputeto the People‘s Court of High-New Technology Development Zone of Wuxi, JiangsuProvince of China(the ― Wuxi District Court‖ ) on 10 October 2002. Zueblin challenged the jurisdiction of the Wuxi District Court based on the ArbitrationClause. Woco later changed its contract claims to the tort claims. The Wuxi DistrictCourt decided that it had jurisdiction over the case, which was confirmed by the WuxiIntermediate People‘s Court in Jiangsu Province (the―Wuxi Intermediate Court‖) on 20 February 2003.

In the meantime, Zueblin filed its request for arbitration with the ICC Court on23 April 2003. One week later, on 29 April 2003, Zueblin applied to the Wuxi DistrictCourt for the confirmation of the validity of the Arbitration Clause.

The ICC Court decided that the matter would proceed in accordance with the ICC Rules.The ICC Arbitrator rendered a Partial Award on jurisdiction on 10 November 2003,




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finding that it had jurisdiction over Zueblin‘s claims. And the Final Award No. 12688/TE/MW was made in Shanghai on 30 March 2004, in favor of Zueblin (the ―ICC Award‖). On 2 September 2004, Wuxi District Court decided the Arbitration Clause invoked byZueblin was invalid in accordance with the Reply of the Supreme People‘s Court (the

―Supreme Court) dated 8 July 2004.

On 30 August 2004, Zueblin applied to Wuxi Intermediate Court for enforcement ofthe ICC Award. The Wuxi Intermediate Court reported the case to the Higher People‘s Court of Jiangsu Provice, which in turn reported to the Supreme Court in conformitywith the reporting system in mainland China. After the Supreme Court‘s approval, Wuxi Intermediate Court rendered its decision on 19 July 2006, refusing theenforcement of the ICC Award because it was made based on the invalid ArbitrationThe Decision pointed out that, after a judicial review of the Zueblin Case, the WuxiIntermediate Court confirmed that the Zueblin Case concerned the recognition andenforcement of a foreign award under the New York Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (the―New York Convention‖) . Simultaneously, the Wuxi Intermediate Court also held that the ICC Award of the Zueblin Case wasan award not considered as domestic under the New York Convention.

. In the Reply the Supreme People‘s Court opined that absence of the choice of applicable law by the parties, the Chinese law shall apply, which isthe law of the state where the place of the arbitration takes place in accordance with the general principle for determination of the proper law of the arbitration clause (The parties agreed thatthe arbitration place is Shanghai). According to Article 16 of the Arbitration Law of the PRC,a valid arbitration clause shall include all of the following three items: (1) the parties‘ common intention to settle their dispute by arbitration, (2) matters to be arbitrated and (3) definitearbitration institution. The Arbitration Clause in the Zueblin Case provided the parties‘ intention for arbitration, applicable arbitration rules and the place of arbitration, withoutnaming a definite arbitration institution. As a result, the said Arbitration Clause should berendered invalid in accordance with the Arbitration Law of the PRC.

Conclusions:

1. The concept of international commercial arbitration should be interpreted in a broad way. An arbitration is considered international if the arbitration agreementinvolves any international element, including - but not limited to - items such asthe place of business of each party, location of the permanent arbitrationinstitutions, or the place of arbitration and so on, other than pure domesticarbitration without any foreign elements.2. The term ―International arbitral awards‖ refers to as awards with international elements. Such awards shall include not only those awards made in the territory ofthe state other than the state where the recognition and enforcement are sought, but also arbitral awards made in the territory of the state, where recognition and




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enforcement are sought.3. An award not considered as domestic under the New York Convention is neither alocal nor a foreign award for the court of the state where such award was made andwhere at the same time its recognition and enforcement are sought.4. National courts are obligated to supervise international arbitration in

accordance with both its domestic law and the New York Convention, to which therelevant State is a Party. Judicial review aims at placing the voluntary settlementof disputes by arbitration under the rule of law. The content of judicial reviewin international arbitration proceedings covers review of the arbitration agreement,the arbitration procedure and the arbitral award.5. In the Zueblin case, both the ICC Arbitrator and the Chinese Courts were entitledto decide on the validity of the arbitration agreement and on their jurisdiction:The power of ICC Arbitrator was granted by the Arbitration Clause and the applicableICC Rules, while the power of the Chinese Courts in Mainland China was based uponlocal law.6. The ICC Award in the Zueblin Case should have been considered as a Chinese award

according to international arbitration legislation and practice. This is so becauseit was made in Shanghai, mainland China, in accordance with the applicable ICC Rulesand under the administration of the ICC Court, Paris, France.7. For the Courts in mainland China, where the ICC Award was made and its recognitionand enforcement are sought, the ICC Award on the Zueblin Case was neither a Chineseaward in mainland China nor a foreign award, but an award not considered as domesticunder the New York Convention. The legal reason is not that it was made under theICC Rules and the administration of the ICC Court, but because of the stipulationsof current Chinese Law. The Decision of the Wuxi Intermediate Court on theEnforcement of the ICC Award confused the foreign award with an award not consideredas domestic under the New York Convention.




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5.2 Understand and deduce the international dispute resolution system framework

:By comparing key dispute resolution systems in four countries –

(OVERVIEW OF FOUR COUNTRIES)

The three systems analyzed are courts in Delhi, India; Tel Aviv, Israel; and San Mateo

County, California, Australian International Disputes Centre.

A. Delhi Mediation Center

With a population of over 1.2 billion people, India is the most populated democracy in

the world. The federal constitutional republic consists of a multi-ethnic society where

more than 400 languages are spoken. Despite various autonomous arbitral bodies and

provisions for arbitration and conciliation for particular categories of cases (such as labor

and family), litigation in India continues to rise. Currently, about thirty million cases are

pending indifferent courts in India. With the present rate of disposal; it would likely take

over 300 years to clear the backlog. Litigation reflects increased legislation, commercial

activities of state entities, and awareness of citizens‘ rights, and thus, an increased

demand for the means to resolve such disputes. Since independence, several

governmental committees have advocated for a reduction in court debts, including

judicial education to enhance the capacity of judges in order to improve the quality of




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their output. Various arbitration and conciliation provisions have been adopted but not

fully implemented. The Legal Services Authority Act of 1987 established the look

adulates, or ―people‘scourts,‖5 throughout the country, which helped settle or otherwise

dispose of a significant number of cases; however, litigation has continued to increase. In

2002, the Ahmadabad Bar Association developed a program for dispute settlement by

mediation, which was followed by the setup of mediation programs in Mumbai, Chennai,

and Madurai under Section 89 of the Civil Procedure Code. The Supreme Court approved

the Civil Procedure Alternative Dispute Resolution and Mediation Rules in 2003. The

former Chief Justice of India, R.C. Lahoti, studied all existing efforts and decided to

constitute a Mediation and Conciliation Project Committee (MCPC) consisting of judges

of the Supreme Court and High Court and Senior Advocates, to encourage mediation as

the most viable ADR option to address cases in the district courts. The MCPC was

constituted in April 9, 2005, with the objective of providing centralized direction and

support for mediation. A pilot project was started in the Delhi district courts under the

auspices of the National Legal Services Authority (NALSA), with trainers provided free

of charge by the Institute for the Study and Development of Legal Services (ISDLS) of

California. A judicial mediation system commenced in September of 2005 in the

TisHazari District Court, with six trained judicial officers assigned one day per week, to

deal with mediated cases. The disputants‘ feedback was positive, since the system was

not only free of cost and expeditious, but also friendly and devoid of the intimidation

associated with the formal legal process. The initial success led to the establishment of

the Delhi Mediation Center, which currently has four working centers at District Courts

in Tis Hazari, Karkardooma, Rohini, and Dworka, with a fifth due to open in Saket. Each

center is manned by a senior judicial officer of the rank of Additional District Judge, who

administers the center and examines and assigns the cases for mediation to the mediators.




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The summary statistics as of December 2012 are as follows:

Total number of cases referred 71,115/71,916

Number of cases fit for mediation 11,117

Number of cases settled 40,761 (69%)/42,954

Average time spent per case 75 minutes

B. I srael Judicial Court in Tel Aviv

The Israeli court system is a highly valued public service within enormous annual

caseload. A comparative study of judiciary cases in seventeen countries determined

that Israel ranked highest in the number of cases submitted per population (600,000

cases per year for a population of 7,645,000), sixth place in the number of judges per

population (660 residing judges), and first place in judicial case load. In order to cope

with the heavy caseload and keep the public faith in the judicial system, the Israeli

court system has undergone extensive reform over the past decade. It has transformed

itself from a traditionally adversarial institution with individual judges working




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independently of one another, to a more active system of interconnected departments.

The direct result of the modifications has been a significant relief of the overburdened

judicial system and substantial improvement of the system‘s efficiency. Based on

British colonial law, the Israeli judicial system had been using the same traditional

methods for nearly five decades. The transformation of the system was undertaken

through two major changes. The first change involved the revision of existing case-

management methods. The second was the introduction of ADR into the judiciary.

Each of the policy shifts improved the system‘s efficiency, but it was the combination

of the two that generated the most significant change. Israel introduced ADR to the

judiciary system in 1992, following the amendment of the Courts Act of 1984. In the

late 1990s, two commissions were appointed: the Or Commission13 and the Gadot

Commission. The Or Commission was appointed to analyze the court system‘s

structure, and the Gadot Commission was appointed to delineate the qualification of

court-appointed mediators and their training program. The recommendations of both

commissions set the baseline for the Case Management and ADR Programs.

Cooperation between the Supreme Court President, the Honorable Professor Aaron

Barak, and Professor Sander led to the first pilot in Tel Aviv Magistrate Court. The

pilot was headed by the President and the Honorable Judge Dan Arbel and managed

by the Honorable JudgeIlan S. Shilo. The program started as the multi-door court

house model proposed by Professor Sander, and evolved in response to stakeholder

and public feedback to meet the distinctive requirements of the Israeli system.




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C. San M ateo Superi or Cour t:

Multi-Option Appropriate Dispute Resolution Project (MAP) The Superior Court of

San Mateo County‘s Multi-Option ADR Project (MAP) was based on the premise that

the court should try to provide disputants with the most appropriate dispute resolution

option for their particular case, whether that be litigation, mediation, or some other

dispute resolution process. Mediation is viewed as just one option in the spectrum of

dispute resolution processes available to disputants. The program began with a civil

mediation program in 1996, prompted in part by delayed trial dates due to the newly

implemented ―fast track ―rules. The stakeholders convened were from the community

mediation program, the bar association board, and the bar association ADR committee,

along with judges and the court CEO.MAP started small, focusing at first on offering

mediation in general civil cases through a partnership with the local county bar, the

community mediation center, and the Peninsula Conflict Resolution Center. In the civil

program, judges can engage disputes in a two-part discussion about ADR options during

their initial case management conference. First, the judge can mandate that parties meet

with ADR staff to discuss and be educated about ADR options. The second step is either

to voluntarily agree to proceed with ADR, or to decline ADR, in which case the parties

have a trial date. Although the education about ADR may be mandatory, participation in

mediation or another form of ADR is voluntary. Parties who decide with the judge‘s or

court staff‘s assistance to participate in mediation or another ADR option can select their




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neutral privately or by consulting the program‘s carefully screened list of panelists. In

several of the MAP programs (civil, probate, and complex litigation), the parties are

responsible for paying the neutral for his or her services except when pro bono or modest

means assistance is needed. To provide this assistance, the staff screens parties based on

income and works with the whole panel to make mediation and other ADR services fully

accessible to all house the court. Initial success with the civil mediation program enabled

the program to grow. Other forms of ADR, such as neutral evaluation, were added to the

civil program. Two preexisting court programs — small claims mediation and judicial

arbitration — were integrated into the project. An existing partnership with the local bar

and community mediation center enabled the court to include juvenile dependency and a

comprehensive family law ADR program. With respect to dependency, the court initially

partnered with the community mediation center to hire a part-time coordinator to oversee

volunteer mediators. Following the program‘s success, the court sought and received

State trial court funding for a program coordinator position at the court. Now families at

all stages of the dependency process have access to free mediation services to help clarify

and resolve issues. With respect to family law, the San Mateo County Bar Association

originated a small program that was later brought in-house tithe court through State trial

court funding. For many years, and up until severe budget cuts beginning in 2008, a staff

attorney-mediator was available on site at the court. There was, and still is, a panel of

private attorney mediators and arbitrators to whom cases can be referred. Volunteer

attorney mediators have been recruited and trained in order to replace the staff attorney

mediator for the on-site mediations. The probate and complex litigation programs share

with the main civil program market-rate private panels of neutrals with probono neutrals

available based on need. The juvenile delinquency program employs restorative justice

techniques to bring together juveniles and the persons victimized by their behavior.

Volunteers trained by the community mediation center provide the mediation services,

which are free to the parties, and court staff manages the program.




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D. Australian Centre for International Commercial Arbitration (ACICA)

Established in 1985, its objective is to promote and facilitate the efficient resolution of

commercial disputes in Australia and internationally by arbitration, with the aim of

delivering expediency and neutrality of process, enforceability of outcome and

commercial privacy to parties in dispute. A major partner of Australia's premier dispute

resolution venue, the Australian International Disputes Centre, ACICA is a signatory to

co-operation agreements with over 30 global arbitral bodies, a founding member of the

Asia Pacific Regional Arbitration Group (APRAG) and the only Australian member of

the International Federation of Commercial Arbitration Institutions (IFCAI).Through its

Board of Directors and Members, ACICA‘s global and national outreach extends to

business, academia, judiciary, industry and government. It provides a nominee to the

Australian Delegation to the United Nations Commission on International Trade Law

(UNCITRAL) Working Group II (Arbitration and Conciliation) in New York and Vienna

and works closely with the Federal and State & Territory Governments in policy

development and legislative reform. In 2011, the Australian Government confirmed

ACICA as the sole default appointing authority competent to perform the arbitrator

appointment functions under the amended International Arbitration Act 1974 (Cth). To

give effect to this, ACICA has developed the Appointment of Arbitrators Rules 2011

http://acica.org.au/assets/media/Rules/ACICA_Appointment_of_Arbitrator_Rules_2.3.11.pdf






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which establish a streamlined process through which a party can apply to have an

arbitrator appointed to a dispute seated in Australia in circumstances where the

arbitration is not being conducted under the ACICA Arbitration Rules or ACICA

Expedited Rules. The ACICA Executive makes appointments with assistance from the

ACICA Appointment Committee, comprised of well-known arbitral practitioners, and

input from the ACICA Advisory Board, whose members include nominees from the

Commonwealth Attorney-General, the Chief Justices of the High Court and the Federal

Court, the President of the Australian Bar Association, the President of the Law Council

of Australia and other industry representatives. Chaired by former Chief Justice of the

High Court of Australia, the Hon Murray Gleeson AC, the ACICA Judicial Liaison

Committee, whose members include Chief Justices of the Federal Court and other

Australian State & Territory Courts and ACICA President Doug Jones AO, is an integral

part of the Australian arbitration infrastructure attracting international arbitration business

to Australia. In 2011, ACICA launched its Arbitration Rules incorporating the

Emergency Arbitrator Provisions - a first for an Australian arbitral body. Designed to

speed up the resolution of international commercial disputes, this innovation provides

parties with greater flexibility including an option to seek urgent interim measures of

protection from an emergency arbitrator before the arbitral tribunal is constituted.

Necessarily, the growth of the economies of the countries in Australia's region,

the participation of multi-national corporations and the vast flows of international capital

there, produce a proportion of cases where disputes arise. Where this happens those

involved in such disputes must make the hard decision which is well known to every

lawyer in every country.




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The disputants must decide:

To abandon the claim if the amount at stake is not worth pursuing and if bluff and bluster

get them nowhere;

To take the matter to a court of law with jurisdiction, if that course is open to them and

justifiable in the circumstances; or

To submit the matter to independent arbitration, by an expert acceptable to the parties,

proceeding in private, pursuant to pre-arranged arbitral agreement or to post-dispute

concurrence that this is the quickest, cheapest and most satisfactory way to a resolution.

THE FACILITIES WHICH THE CENTRE OFFERS:

Obviously, it is important that Australia should provide facilities such as will

henceforth be housed in the Dispute Resolution Centre in Melbourne:

They offer a venue for an alternative system to the courts and a place in which, by

agreement of the parties, arbitration can be efficiently and economically conducted.

They provide facilities in which large scale and often complex disputes can be

investigated and resolved more quickly and economically than the formal court system

can offer.

They offer a resource close to the heart of a major legal centre of Australia where skilled

lawyers of integrity, experience and ability offer their services to help the parties and the

arbitrators to cut through the detail of disputes, sometimes horrendously complex and to

arrive at awards which will finally put the disputes to rest.

They support the very important drive to sell legal services as a growth area and an

export in which Australia has significant advantages.




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THE ANALYTIC FRAMEWORK

1. Goalsa) What does the system’s decision-maker(s) seek to accomplish?

b) Which types of conflicts does the system seek to address?

2. Stakeholders

a) Who are the stakeholders?

b) What is their relative power?c) How are their interests represented in the system?

3. Processes and Structure

a) Which processes are used to prevent, manage, and resolve disputes?b) If there is more than one process, are processes linked or integrated?

c) What are the incentives and disincentives for using the system?

d) What is the system’s interaction with the formal legal system?

4. Resources

a) What financial resources support the system?

b) What human resources support the system?5. Success and Accountability

a) How transparent is the system?

b) Does the system include monitoring and evaluation?

c) Is the system successful?

A. Goals

The first element of the framework, the goals, seeks to identify the types of conflicts the

system seeks to address, and to determine the system‘s objectives. Prioritizing the desired

outcomes helps clarify the policy direction ex ante and assess the system‘s successes post. A

court‘s essential function is to determine, according to the facts and the law, the rights of the

parties coming before it. While time and cost savings for the court are often front and center,

many courts have realized that a powerful parallel reason for implementing such a program is to

improve the public‘s trust in, and satisfaction with, the courts. Parties can gain a sense of

procedural justice through employing various forms of ADR, notably that of mediation: their

voices can be empowered, and they can enjoy fair treatment, reduced hostility and costs,

expedited resolution, and increased overall satisfaction. The trade-offs inherent in competinggoals may affect the quality of the resulting system. Significant tension can arise among the

goals of efficiency, fairness, and justice. For example, what goal is achieved if a court sanctions

certain behaviors while punishing others? Is the primary aim to deter parties from future

disputes? Can court services realistically guarantee satisfaction to all? Can court outcomes

provide long-term durability of resolutions, or merely more short-term results? One might argue

that these unavoidable conflicts might affect fairness in some cases but enhance efficiency in




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others. Indian disputes referred to mediation include business and commercial, insurance,

matrimonial (divorce, custody, and dowry), intellectual property, labor and management,

property, and tort recovery. Clearly, the driving objective of mediation referrals has-been to

reduce the case backlog by offering a less time-intensive and less expensive process to resolve a

wide range of disputes. The objectives of the Israeli program have been to adopted process

options and case-management policies in order to provide optimal service within the limits of its

resources. The focus has been on reducing case-processing time and lessening the volume of

cases for the judges. Furthermore, the program aimed to introduce ADR to and encourage its use

by the public. As noted above, in San Mateo Superior Court, cases in family, probate, civil,

complex litigation, juvenile, and small claims each have access to ADR. The Multi-Option ADR

Project‘s more-varied goals are outlined in its mission statement as follows:

• To increase the court‘s ability to resolve cases.

• To provide a flexible, tailored array of dispute resolution services, where the unique features of

cases are given priority attention.

• To encourage early case preparation, with the benefits of saving both time and money. • To promote an ongoing attitude of cooperation and collaborate in both the public and private

sector‘s approach to handling disputes of all kinds, whether institutional, business, or

interpersonal.

• To promote greater public satisfaction with the civil and criminal justice systems.

• To promote the usefulness of ADR to members of the public through educational efforts.

Consistent among all three courts has been the goal of a more efficient case-handling system,

with respect to both time and expense, for the court and the parties. However, that efficiency has-

been balanced with the provision of parties with a more participatory and interest-driven process

option still within the bounds of the court. Each court engaged a range of stakeholders for input,

offered public education, and started with a pilot by geography orcas type before expanding the program. The Australian Centre for International Commercial Arbitration (ACICA) is an

Australian international arbitral institution. Established in 1985 as a not-for-profit public

company, its membership includes world leading practitioners and academics expert in the field

of international and domestic commercial arbitration. ACICA aims to educate, promote and

encourage the use of international commercial arbitration as a means of dispute resolution, and to

promote Sydney and Australia as an international seat of arbitration. The objects of ACICA are

to support and facilitate international arbitration and to promote Sydney and Australia as a venue

for international commercial arbitrations. ACICA maintains a panel of international arbitrators

and a list of experienced arbitration practitioners. It provides information on international

arbitration and is involved in education through the provision of seminars.

http://en.wikimediation.org/index.php?title=Arbitration

http://en.wikimediation.org/index.php?title=Conflict_resolution

http://en.wikimediation.org/index.php?title=Conflict_resolution

http://en.wikimediation.org/index.php?title=Arbitration




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B. Process and Structure

The second element of the analytic framework involves process options and structure. Other

processes may focus on the prevention or management of certain categories of disputes, but

courts are established to resolve disputes. It is useful to probe the incentives and disincentives

(financial, relational, legal, or other) and consider:

• What role parties, their counsel, the judge, and the court ADR administrators should play in

deciding whether to use ADR.

• What role they should play in selecting, providing, and timing the ADR process option.

• To what degree the court should encourage or require use of an ADR option.

• Whether certain cases should be exempt from specific (oral) ADR options. In the Indian

programs, mediation may be recommended at any stage, but preferably after admission/denial.

The referring judges assess cases for mediation based on party characteristics, case

characteristics, legal issues, and the number of parties. In a bid to deal with case overload and

provide respite outside court, the Chief Minister of the Delhi Cabinet, Sheila Diskhit, together

with the Delhi High Court and the author, in his capacity as Principal Secretary, formed theDelhi Disputes Resolution Society. Under its auspices, eight mediation centers have been

established throughout Delhi. The mission of these community mediation centers is not only to

reduce the debts of pending cases, but also to target the cases at a pre-litigation stage and to

promote social harmony.

Types of cases served include those relating to family disputes(domestic violence, maintenance,

custody, and separation),consumers, community disputes, commercial practice, schools, check

bouncing, administrative tribunals, police complaints, and personal injury and accident

compensation. The government plans to seek the services of retired judges and reputed

advocates. Furthermore, the information technology department is working to establish software

to avoid unnecessary paperwork and delays.

The Israeli structure focuses on both ADR and case management. The first step in its structural

overhaul was the establishment of a new legal division in 1997, the Case Management and ADR

Department. The new departments‘ responsibilities included implementing case-management

methods, referring and monitoring cases referred to ADR, and providing legal assistance to the

judges. The new elements of case management included constructing specialized departments,

such as the department for torts. Classification and preparation were accomplished mostly by

evaluating cases prior to pre-trial hearings. Providing judges with the relevant information and

documentation of their respective cases by the first hearing had a significant impact on judicial

time. The departments include the department for torts, the department for contractual claims and

supply of goods, the department of banking loans and credit, the department for property, the

department for libel, intellectual property, and complex commercial cases. The directions have

been given in accordance with the judge‘s guidance and based on the specific case. It enabled

tailoring different case management procedures for each case as required.




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The criteria for referring cases to mediation in the Israeli program were eliminative. The court‘s

directions were not binding, and it did not take any position on parties‘ response. Cases were

referred to mediation at every stage of the trial. The obvious advantages of ADR to the court and

the public included time saved, reduction in overall costs, and improvement of parties‘

relationships. The state also incentivized ADR by providing a full refund of court fees to those

who used it to resolve their cases.The disputants choose between internal or external mediation.

In San Mateo, disputants are informed of ADR options upon filing, whether they are in the

civil, probate, complex litigation, small claims, juvenile, or family departments. Professional and

highly skilled neutrals are provided by different methods and at different times in each program

area. For example, in civil, probate, and complex matters, parties are given prescreened lists of

market-rate neutrals (mediators, arbitrators and neutral evaluators),or they can select a neutral on

their own. They are given time frame in which to submit a stipulation providing the court with

the neutral‘s name and the ADR session‘s date. They split the costs unless pro bono is requested

and granted. In the small claims and two juvenile programs, mediations are provided free ofcharge by trained community volunteers overseen by court staff. In the family law ADR

program, there are free staff volunteer mediators on site for short-cause matters, and a private

panel of trained family law mediators and arbitrators who handle the first ninety minutes on a

reduced-fee basis. Key factors that have contributed to the growth and development of the

program include:

• Broad participation in the development and implementation of the program, from the judges,

local bar, community mediation center, and other community partners.

• The use of professional ADR staff helps keep the program on track. For example, the program

director‘s expertise and ability to engage a wide range of people (judges, attorneys, and

disputants) have been critically important in securing the support needed for all aspects of the program.

• Appropriate referral of disputants to an ADR option that meets their needs. Otherwise, parties

are likely to be dissatisfied with the program or the court.The disputants are referred to the

Administration of Courts website for information about the different ADR options, and to the list

of neutral parties involved. Internal mediation took place at the courthouse and was facilitated by

court attorneys. Mediators approved by the Administration of Courts facilitated external

mediation.

• High-quality neutrals and the ability to track success. Each of the programs provides

evaluations to all participants, attorneys, and neutrals for all cases.

In general international arbitrations in Australia are governed by federal legislation, the

International Arbitration Act 1974 (Cth). The Act incorporates an internationally accepted law

on arbitration known as the UNCITRAL Model Law on International Commercial Arbitration.

However, parties are permitted to exclude this law. Where they do so the arbitration will be

governed by the Commercial Arbitration Act of the State or Territory where the arbitration is




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held. In addition to giving force of law in Australia to the UNCITRAL Model Law, the

International Arbitration Act implements two international conventions. The first is the New

York Convention, which provides for the international enforcement of arbitration agreements

and awards. The second is the Washington Convention which provides for a special system of

arbitration for disputes between States (countries) and foreign investors.

C. Stakeholders

The third element influencing ADR implementation in different countries is the identification

of stakeholders and their relative power. Stakeholders include the immediate parties in conflict,

their counsel, the court itself, the court‘s employees, and the citizens within the jurisdiction. In

examining the various stakeholders involved, one must ask how the introduction of a new system

allows for the different stakeholder interests to be met. Many lawyers of various Delhi bar

associations were not interested in adopting alternative dispute resolution practices, so the

MCPC started the program with officers of the Delhi Higher Judicial Services. The Delhi HighCourt approved draft rules on mediation for the Delhi jurisdiction. After initial resentment,

lawyers gradually began participating. The reform of the Israeli court system and the

implementation of ADR were initiated by the Israeli judicial system. The president of the

Supreme Court, the Honorable Judge Aaron Barak, supported and encouraged the use of ADR.

Judge Barak‘s view was that, ideally, the courts would deal with disputes that had to be resolved

through judicial rulings, while the remainder — indeed, the large majority — of the cases would be

dealt with by means of alternative methods, such as arbitration and mediation. Judge Barak

emphasized that ―the importance of mediation is in off -loading the backlog of the courts; it is not

its goal, but it should be its result.‖The Israeli Bar Association‘s approach was disjointed. Some

voices strongly opposed any kind of change to case-management practices, while otherssupported the process and called for attorneys to get training as mediators and take an active role

in therefore. From the stakeholders‘ perspective, the neutrals represented the court and had to

meet the highest standards of professionalism. Initially in Tel Aviv, there were no limitations

placed on the number of people who could qualify for the external mediators ‗panel, and the list

kept growing rapidly, ultimately including thousands of mediators. As a result, there were too

many mediators who were fully trained but lacking practical experience. This situation led to

growing dissatisfaction among attorneys and disputants with the level of mediator

professionalism. As a result, willingness to participate in mediation decreased in some courts. In

response to this declining interest in mediation, the Rubinstein Commission established a pilot

program of mandatory mediation. The program was launched by three Israeli courts in

September 2008. According to the program, disputants in cases exceeding50, 000 NIS had to

attend a pre-trial meeting called a―mah ¨ ut,‖ an acronym for ―familiarity and coordination

gathering.‖The major change is that the mah ¨ ut is facilitated by an external mediator chosen

from a panel of mediators who have been rigorously examined. In the mah ¨ ut meeting, the

disputants present their respective complaints and hear from the mediator about the various




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options available for resolving the case. It is then each disputant‘s choice as to whether to

proceed with mediation or go to trial.

In San Mateo, minimum mediator qualifications for the civil, probate, and complex programs

include a combination of training of at least forty hours and experience in at least five

mediations, or other substantially equivalent background. References are requested of applicant

neutrals and observation may be requested. Stakeholders included bar association and

community mediation program members and other relevant agency and community group

representatives who served alongside judicial officers on advisory committees formed for each

new program. For example, the juvenile mediation program advisory committee consisted of not

only probation, district attorney, and social worker representatives, but also mental health

professionals from referring schools and juvenile liaisons from some of the local police

departments, along with the ADR staff and juvenile judges.

The ACICA Judicial Liaison Committee, with its expertise in judicial and arbitral experience,is an integral part of the Australia arbitration infrastructure to attract international

arbitration business to Australia. The Hon Murray Gleeson AC (former Chief Justice of the High

Court of Australia and Committee Chair), The Hon Justice Tim Anderson (Supreme Court of

South Australia); The Hon Justice Richard Refshauge (Supreme Court of the Australian Capital

Territory), The Hon Justice James Allsop (Chief Justice of the Federal Court of Australia); The

Hon Justice James Douglas (Supreme Court of Queensland); The Hon Justice Clyde Croft

(Supreme Court of Victoria); The Hon Wayne Martin (Chief Justice of the Supreme Court of

WA); The Hon Justice Judith Kelly (Supreme Court of the Northern Territory); The Hon Justice

John Middleton (Federal Court of Australia) and Prof Doug Jones AO (ACICA

President)ACICA has several prominent arbitration experts on its board and also has the supportof its eight corporate members, which are comprised of Australia's largest law firms and the

world's largest professional services organisation. These are Allens Arthur Robinson, Blake

Dawson Waldron, Clayton Utz, Corrs Chambers Westgarth, Freehills, Mallesons Stephen

Jaques, Minter Ellison and PricewaterhouseCoopers.

ACICA has close associations with related organisations, including the Australian

Commercial Dispute Centre ("ACDC"), the Chartered Institute of Arbitrators (Australian

Branch), the Law Institute of Victoria and the Western Australian Institute of Dispute

Management. In fact, the Law Institute of Victoria and the Western Australian Institute of

Dispute Management provide ACICA's Melbourne and Perth registries, respectively. ACICA

also has cooperation agreements with many arbitration organisations around the world.

Further, ACICA recently established the Australian Maritime and Transport Arbitration

Commission ("AMTAC"). AMTAC aims to capitalize on the skills and expertise of maritime




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lawyers, arbitrators, judges and scholars in Australia to make Australia an international leader in

maritime and transport law.

D. Resources

There are vital concerns regarding the extent to which the judicial system can provide

adequate resources for the incorporation24 A hidden benefit was that many of the mediators not

mediating court cases developed and implemented mediation programs in communities and

schools instead. MICHAL RUBINSTEIN, REPORT OF THE COMMITTEE TO ASSESS

WAYS TO INCREASE THEUSE OF MEDIATION TO DECREASE THE BURDEN ON THE

JUDICIARY SYSTEM (2006).of ADR. How will the system be financed, and is its funding

level adequate to achieve the stated goals? What impact do the amounts and sources of funding

appear to have on the results of the system? On the human resource side, are neutrals adequately

trained to provide quality and ethical services? Do other personnel in the system (internal andexternal to the organization) have sufficient skills, training, and supervision? A system can

achieve its goals only if it is adequately supported. To avoid creating an elaborate set of

processes with inadequate resources, stakeholders may be required to make hard decisions that,

as noted above, may have an impact on fairness, justice, and the likelihood of success.

Limitations influence different approaches to creating an ADR operation. Two major staffing

models are used in court ADR programs. Courts with a ―staff -neutral‖ model employ specially

trained court staff to serve as the ADR neutrals. This model is used in a number of Federal

Circuit Courts of Appeal and smaller number of district courts in the United States. The model

was used in the Israeli program. Largely due to cost considerations, however, many courts use a

panel model, relying on private practitioners to serve as ADR neutrals on a court-administered orcourt-sponsored panel. In the Indian program, judges and attorneys with ten years of practice and

forty hours of training may be mediators. The cost is free for disputants and their court fees are

refunded. The government pays lawyer mediators. The DMC, under the MCPC, conducts various

training programs for judges and lawyers in Delhi and in the different states of India, including

training aimed at increasing the awareness of mediation, highlighting the role of the referring

judges and lawyers, and providing refresher courses for mediators with subject-specific training

and more.

It is important to note that in Israel there are higher attendance and resolution rates in cases

using internal mediation than in those that are referred out, with an attendance study revealing

internal mediation attendance rates at eighty percent versus the external mediation rate of fifty

percent. Some external mediators have argued that having the option of internal mediation was

the reason for the decrease in external mediation participation. Another argument was that

internal . The rough division of court ADR delivery options into these two categories

oversimplifies the terrain. For a more detailed discussion of five different models and their




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strengths and weaknesses, mediators used a more evaluative mediation style and that therefore

the rate of resolution was higher. The higher attendance and resolution rates through internal

mediation might be connected to internal mediation‘s sponsorship by the courts, which perhaps

increased public confidence in the process. Furthermore, internal mediators had an opportunity to

handle a higher volume of cases and thus deepen their experience. In every dispute system

design, the most important resource is human talent. All models rely on the generosity of the

mediators, many of whom volunteer their preparation time and first ninety minutes or more. In

order to continue to uphold the public mandate of providing such accessible and affordable

services, judiciaries must find ways to increase their funding, and the state and the judiciary must

keep and attract skilled mediators.

Administration of arbitrations and mediations Appointment of arbitrators and mediators

Information on experienced international arbitration practitioners Information on arbitration

agreements, rules and arbitration law and practice In addition ACICA has a system of

accreditation for international arbitrators and mediators and maintains a panel of internationalarbitrators. Further, ACICA has established a list of experienced arbitration lawyers and firms.

ACICA is also involved with significant education initiatives, and has recently held a successful

arbitration conference in Sydney. ACICA secured an outstanding line up of speakers for the

conference, and some 215 international guests were in attendance from 21 countries. Educational

initiatives are also undertaken with other bodies such as the Chartered Institute of Arbitrators

(Australian Branch), ICC Australia and the Australian Corporate Lawyers Association.

E. Success and Accountability

The last element to assess is the success of the ADR programming each setting. On theground level, one must ask to whom is the system accountable? Is the system transparent in

terms of its operation, access to processes, and result? Does the system include an evaluative

component, and, if so, what is studied, when, by whom, and for whom? Finally, is the system

successful when measured against its goals and other relevant legal and societal norms? A

system‘s success is best judged if outcomes are made available to, and studied by, independent

evaluators. Unfortunately, barriers such as cost, privacy concerns, and difficulty often preclude

independent evaluation from taking place. At a minimum, evaluation should begin with internal

monitoring, including some combination of data collection on usage, surveys, and focus groups

designed to obtain candid feedback from key stakeholders. Of course, independent external

review is preferable and can provide more detailed and objective assessment. In India, the DMC

issues newsletters and annual reports. As of December 2012, the DMC had settled over 70,000

cases, with an average success rate of seventy percent. The DMC pilot has led Whether or not

internal mediation is necessary to establish an ADR system is a complicated Question to a

national plan on mediation to encourage use of mediation as speedy, inexpensive, and high-

quality alternative to litigation.




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The success of the Case Management and ADR program in Tel Aviv was measured by the

goals defined at the outset. By September2000, just two years after the program‘s initiation, the

average time it took to process and complete a civil case had been reduced from five years to

two. The other goal, namely that of reducing case volume, had also been achieved.The evolution

and success of the Israeli Case Management and ADR program was partly based on periodical

re-examination of the program‘s performance. Monthly, semi-annual, and annual reports

monitored the program‘s effectiveness. The relentless search for new methods to enhance

judicial efficiency resulted in tangible success. Recent data assessing the progress of the

mandatory mediation program (mah ¨ ut) can be found in the Rubinstein Committee‘s

intermediate report, which analyzed 1,213 pilot cases referred from three different courts

(Jerusalem, Tel-Aviv, and Rishon Lezion).The research methods for the report included both

qualitative and quantitative approaches. The report indicated that most of the disputants and their

attorneys were highly satisfied with the mediator‘s professionalism. During the pilot period of

September 2008to March 2009, 52.9% of the disputants chose mediation to resolve theirconflicts. Most of the attorneys and disputants participating in mediation were satisfied with the

process, and 61.4% resolved the conflict through mediation. Sixty-five percent of the disputants

said they would recommend mediation to family or friends.

In San Mateo, the Civil and Probate ADR Program is a voluntary, market-rate program, with

income-based, pro bono, and modest-means services available. Referrals are provided by trained

and experienced neutrals who are attorneys, non-attorney professional neutrals, and retired

judges. These professionals are all asked to respond to evaluations of the programs. There were

741 cases referred to the Civil ADR Program forth 2007-2008 fiscal year. The reduction in

volume should be credited not only to the case management and ADR reform, but also toappointment of judges and to the 24th amendment of the Execution Act.30 The following

statistics on the San Mateo ADR program come from SUPERIOR COURT OFCALIFORNIA,

COUNTY OF SAN MATEO, MULTI-OPTION ADR PROJECT EVALUATION

REPORT,JULY 2007 – JULY 2008 (2009), only one quarter of the year‘s data was captured,

from October2007 to December 2007. In this quarter, of 170 cases referred tithe program,

ninety-six responded to the survey. With respect to voluntary participation, seventy-three percent

of cases referred tithe program proceeded to ADR, and twenty-seven percent did motor had not

yet gone to ADR. Of those cases where ADR had been utilized, seventy-one percent settled fully

and three percent partially settled. Twenty-six percent did not settle at an ADR session. In all

cases in which an ADR process was chosen, mediation was utilized. The duration of the average

ADR session was 4.0hours, with an average of 1.2 sessions. The types of cases included personal

injury (thirty-six percent), business (twenty-six percent),real estate (thirteen percent),

employment (nine percent), construction(five percent), professional malpractice (three

percent),complex litigation (three percent), and other/insurance/intellectual property (five

percent). Ninety-five percent of respondents thought that court time was reduced as a result of




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ADR, while five percent thought court time was increased. Eighty-five percent of respondents

thought that ADR reduced costs, while fifteen percent thought ADR increased costs. Forty-nine

percent of plaintiffs ‗attorneys and twenty-eight percent of defense attorneys who responded to

the evaluation thought that proceeding with ADR reduced litigation costs in the range of $10,000

or less. Forty-six percent of plaintiffs‘ attorneys and fifty-six percent of defense attorneys

estimated cost savings in the range of $10,000 to $50,000.39With respect to the timing of ADR

sessions, forty-two percent were held after some preliminary discovery had been completed,

thirty-percent after significant discovery, twenty-two percent when trial was imminent, and six

percent within four months of filing.40Below are the results in terms of satisfaction rates, based

on responses from plaintiffs, defendants, and counsel:

The Australian Centre for International Commercial Arbitration (ACICA) is Australia's premier

international arbitration institution. Following the successful launch of the ACICA Arbitration

Rules (ACICA Rules) in 2005, ACICA has recently revised its Expedited Arbitration Rules

(ACICA Expedited Rules), which were first published in late 2008. The ACICA Expedited Rulesaim to 'provide arbitration that is quick, cost effective and fair, considering especially the

amounts in dispute and complexity of issues or facts involved' (article 3.1 of the ACICA

Expedited Rules). Further, ACICA have adopted an opt-in approach for these rules, requiring

parties to explicitly select them (rather than the ACICA Rules) in their arbitration agreement

board comprising representatives of the attorney general, the chief justices of the High Court and

Federal Court, the president of the Australian Bar Association, the president of the Law Council

of Australia and other industry representatives will oversee the appointment process. ACICA has

ensured that the process can happen efficiently and that a nomination can be made without delay.

Summary and Inferences:

Delhi, India Tel Aviv, Israel San Mateo,California, USA

ACICA Australia

Goals Decreasecaseload;centralizedirection &support; improveaccessibility;decrease cost,time; offer self-determination

Reduce time andcost; reducecaseload;implement ADR;increase publicsatisfaction

Increase courtcapacity toresolve cases; provide ADR; promote publicsatisfaction;encourage earlycase analysis

providearbitration that isquick, costeffective and fair,consideringespecially theamounts indispute andcomplexity ofissues or factsinvolved'

Structure Courtcoordinators; judges; referrals

Modified casemanagement;ADR provision

Judges;OversightCommittee

government

Advisory




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per party, case,legal profile; public education;DDRC trainingcenter

with internal,external andtelephone

(bench, bar,community);AdvisoryCommittee(stakeholders);

and Staff. ADR programs forcivil/probate;complexlitigation; familylaw; smallclaims; juveniledependency and juveniledelinquency.

Committee

Business,

academia,

judiciary,

industry.

Stakeholders Government

Court Judicialstaff LawyersClient parties

Court Judicial

staff LawyersClient parties

Court Judicial

staff LawyersClient partiesCommunitymediationcenters

GovernmentCourt Judicial

staff Lawyers

Client parties

Resources State funded;DDRS as centerof ADR needexcellence;training;certification;

judges & lawyerstrained; paid bycourt; mediationservice free

Significanthuman and political support;moderatefinancial aid

Significanthuman andfinancialresources; need based feewaivers,

certification; judges & aidotherwise marketrate except insmall claims and juvenile (whichis free)

Govt. funded;ACICA center ofADR, training;certification; paid by court;mediation,

services,

Success >70,000 casessettled (70%).Faster, cheaper,reduced backlog.

No independentevaluation.

Significantreduction in casetime line; 49%(external) to 91%

(internal) casessettled

Indicators: %cases resolved;cost; time; partysatisfaction

Increasedefficiency,Reduced timeconsumption and

cost, easyaccessibility




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5.3 Comparing the system framework used in India and Australia :

Position of ADR in India:

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 toaccommodate the harmonization mandates of UNCITRAL Model. To streamline the Indian legalsystem the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also beenamended and section 89 has been introduced. Section 89 (1) of CPC provides an option for thesettlement of disputes outside the court. It provides that where it appears to the court that thereexist 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 judicialsettlement. Due to extremely slow judicial process, there has been a big thrust on AlternateDispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly

standard western approach towards ADR, the Lok Adalat system constituted under NationalLegal Services Authority Act, 1987 is a uniquely Indian approach. Reasons behind introductionof ADR in India: Alternative Dispute Resolution in India is an attempt made by the legislatorsand judiciary alike to achieve the ―Constitutional goal‖ of achieving Complete Justice in India.

ADR first started as a quest to find solutions to the perplexing problem of the ever increasing burden on the courts.

A thought-process that started off to rectify docket explosion, later developed into a separatefield solely catering to various kinds of mechanisms which would resolve disputes withoutapproaching the Formal Legal System (FLS). The reasoning given to these ADR mechanisms isthat the society, state and the party to the dispute are equally under an obligation to resolve the

dispute as soon as possible before it disturbs the peace in the family, business community,society or ultimately humanity as a whole. In a civilized society, principles of natural justicealong with the ―Rule of Law‖ should result incomplete justice in case of a dispute. Rule of Law

is defined as the state of order in which events conform to the law. It is an authoritative, legaldoctrine, principle, or precept applied to the facts of an appropriate case. These definitions giveus the indication that the Rule of Law is an authoritative concept which might lead to a win-losesituation in cases of dispute. Therefore, ADR uses the principles of natural justice in consonancewith the Rule of Law, in order to create favorable atmosphere of a win-win situation. This ismuch needed in countries like India where litigation causes a great deal of animosity between the parties due to the agony caused byte long-standing litigation. ADR, thus, gains its momentum inIndia today.

Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles14and 21 which deal with Equality before Law and Right to life and personal libertyrespectively. These Articles are enshrined under Part III of the Constitution of India which liststhe Fundamental Rights of the citizens of India. ADR also tries to achieve the Directive Principleof State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A ofthe Constitution. The Acts which deal with Alternative Dispute Resolution are Arbitration andConciliation Act, 1996 (discussed in detail later) and the Legal Services Authorities Act,

http://en.wikipedia.org/wiki/Mediation

http://en.wikipedia.org/wiki/Mediation




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1987.Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedingsto take place in accordance with the Acts stated above. In India, the quest for justice has been anideal, which the citizens have been aspiring for generations down the line. Our Constitutionreflects this aspiration in the Preamble itself, which speaks about justice in all its forms: social,economic and political. Justice is a constitutional mandate. About half a century of the

Constitution at work has tossed up many issues relating tithe working of the judiciary; the mostimportant being court clogging and judicial delays. Particularly disturbing has been the chronicand recurrent theme of a near collapse of the judicial trial system, its delays and mounting costs.Here, the glorious uncertainties of the law frustrated the aspirations for an equal, predictable andaffordable justice is also a question, which crops up often in the minds of the people. We are acountry of a billion people.

How do we design and structure a legal system, which can render justice to a billion people?

The possibility of justice-delivery mechanism in the Indian context and the impediments fordispensing justice in India is an important discussion. Delay in justice administration is the

biggest operational obstacle, which has to be tackled on a war footing. As Justice Warren Burger,the former Chief Justice of the American Supreme Court observed in the American context:―The

harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry aslocusts, and bridges of judges in numbers never before contemplated. The notion — that ordinary people want black-robed judges, well-dressed lawyers, and fine paneled courtrooms as thesetting to resolve their disputes, is not correct. People with legal problems like people with pain,

want relief and they want it as quickly and inexpensively as possible.‖This observation withgreater force applies in the Indian context. Therefore, this explains the need for AlternativeDispute Resolution in India. In a country, which aims to protect the socio-economic and culturalrights of citizens, it is extremely important to quickly dispose the cases in India, as the Courtsalone cannot handle the huge backlog of cases. This can be effectively achieved by applying themechanisms of Alternative Dispute Resolution. These are the reasons behind the introduction ofADR in India.

THE PRESENT SCENARIO:-

The legal system in India is viewed by many as part of ‗colonial legacy‘. Undoubtedly, judiciary

is the important institution which has withstood many challenges during the last-more than fiftyyears to retain its integrity. But with the mounting pressure of cases-civil, criminal, revenue,industrial and others the workload of judiciary increased leaps and bound and it has now reacheda stage of unmanageable magnitude and the cases remain undecided for years together for onereason or the other. The preamble to the constitution of India promises to secure socio-economicand political justice and equality of status and of opportunity to all the citizens. Art. 39-Acontains a directive principle which holds that the state will ensure that the legal system operatesin a manner so as to promote justice to all and to ensure that no citizen is denied theopportunities of securing justice by reason of economic or any other disability. But the groundreality is that the law hardly reaches the vulnerable sections of the society here majority of the people are illiterate, rustic and rural and are ignorant about existence of their legal rights andremedies. And those who are aware of their right, find it difficult to get them translated intoreality because of the legal and procedural ordeals on has to undergo in the process of litigation




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MALIMATH COMMITTEE:-The report of the Malimath Committee (1989-90). Thecommittee was headed by Hon‘ble Mr. Justice V.S. Malimath, the two other members being

Hon‘ble Mr. Justice P.D. Desai and Hon‘ble Dr. Justice A.S.Anand.In India the situation is allthe more worse. The Indian judicial system has been stretched almost to a breaking point rightfrom the Apex court to the lowest subordinate courts. The Malimath Committee which is also

known as the Arrears committee, undertook a comprehensive review of the working of the courtsystem, particularly all aspects of arrears and Law‘s delay and made various usefulrecommendations for reducing litigation and making justice readily accessible to the people atthe minimum cost o time an money. The Malimath Committee underlined the need foralternative dispute resolution mechanism such as mediation, conciliation, arbitration, LokAdalats etc. as a viable alternative to the conventional court litigation. Alternative DisputeResolution (ADR) is a term for describing process of resolving disputes in place of litigation andincludes arbitration, mediation, conciliation, expert determination and early neutral evaluation bya third person. In many important respects, arbitration is similar/common with court basedlitigation than the other forms of ADR. Prior to the enactment of The Arbitration andConciliation Act, 1996, none of these forms of ADR except arbitration have any statutory basis

in India. Mediation and Conciliation require an independent third party as mediator or conciliatorto assist the parties to settle their disputes. The expert determination requires independent expertsin the subject of disagreement of the parties to decide the case. Such expert is chosen jointly bythe parties and his decision is binding.

ARBITRATION LAW IN INDIA: In our country, in the past statutory provisions onarbitration were contained in three different enactments i.e. the Arbitration Act 1940, theArbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition andEnforcement) Act, 1961. The Arbitration Act, 1940 laid down the framework within whichdomestic arbitration was conducted in India, while the other two Acts dealt with foreign awards.The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 (10 of 1940)and the Arbitration (Protocol & Convention) Act, 1937 (6 of 1937) and the Foreign Awards(Recognition and Enforcement) Act, 1961 under section 85 of the 1996 Act. United NationsCommission on International Trade Law (UNCITRAL) prepared a Model Law on internationalcommercial arbitration in 1985. The General Assembly of the United Nations has recommendedthat all member countries should give due consideration to the Model Law, for the desirability ofuniformity of the Law of Arbitral Procedures and the specific needs of International CommercialArbitration Practice. The United Nations Commission on International Trade Law (UNCITRAL)adopted the UNCITRAL Conciliation.1.The Arbitration and Conciliation Act, 1996.2. I bidRules in 1980. The Arbitration and Conciliation Bill 1996 was passed by both the Houses ofParliament and received the assent of the President of India on August 16, 1996 and wasenforced w.e.f. January 25, 1996 and the enactment came on the statute book as the Arbitrationand Conciliation Act, 1996 (26 of 1996).The object of arbitration is to obtain the fair resolutionof disputes by an impartial tribunal without unnecessary delay and expense. The parties should be free to agree as to how their disputes are to be resolved, subject only to such safe guards asare necessary in the public interest. In the matter governed by the provisions of the 1996 Act, thecourt should not intervene except as provided by those provisions. The main object ofArbitration is to exclude judicial intervention with the process of Arbitration. The Court ishowever required to direct the parties to resort to Arbitration as per the agreement and to providealternative dispute resolution to those who cannot bear the cost and the time of ordinary civil




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court procedure as per the provisions of Section 89 CPC. There are separate enactments speciallyto settle disputes arising between employer and employee under the Industrial Disputes Act.Statutory tribunals are also some time lacking in their effort as they do not have the simplicity,transparency and practical approach to resolve the disputes, as in the Arbitration and ConciliationAct, 1996. The English Arbitration Act, 1996, provides that the provisions of law must not be

construed as excluding the operations of rule of law consistent with those provisions, in particular any rule of law as to (a) matters which are not capable of settlement by arbitration, (b)the effect of an oral arbitration agreement or (c) the refusal of recognition or enforcement of anarbitral award on ground of public policy. The English Arbitration Act, 1996 must not beconstrued as reviving any jurisdiction of the court to set aside or remit an award on the ground oferrors of fact or law on the face of award. Arbitration is a process used by the agreement of the parties to resolve disputes. In arbitration, disputes are resolved with binding effect by a person or persons acting in a judicial manner in private, rather than by the regular court of law, that wouldhave jurisdiction to adjudicate, but for the agreement of the parties to exclude it. The Arbitrationand Conciliation Act, 1996 is a long leap in the direction of Alternative Dispute Resolutionsystem. It is based on UNCTRAL model. Commenting on arbitration as an ADR technique,

Mr. V.R.Kr ishna I yar of the Supreme Court observed:-

―I nterminable time consuming, complex and expensive curt procedure implied ju ri sts to

search for an al ternative forum l ess formal , more effective and speedy for resolution of

disputes avoiding procedural claptrap and thi s led them to the Arbitration Act……”

TRIBUNALS IN INDIA:-With the acceptance of Welfare ideology, there was mushroomgrowth of public services and public servants. The courts particularly the High Courts wereinundated with cases concerning service matters. The Swarn Singh Committee therefore, inter-alia recommended the establishment of Administrative Tribunals as a part of Constitutional

adjudicative system. Resultantly the Constitution (42nd Amendment) Act 1976 inserted PartXIV-A to the Constitution of India consisting of Articles 323A and 323B. Article 323A providesfor the establishment of Administrative Tribunals for adjudication or trial of disputes andcomplaints with respect to recruitment, conditions of service of persons appointed to publicservices and other allied matters. Article 323B makes provision for the creation of Tribunals foradjudication or trial of disputes, complaints or offences connected with tax, foreign exchange,industrial and labor disputes, land reforms, ceiling on urban property, election to Parliament andState Legislatures, etc. Parliament has power to enact any law under Article 323A while bothParliament and State Legislatures can make laws on matters of Article 323B, subject to theirlegislative competence. Therefore, in some cases, expert bodies like Central AdministrativeTribunals constituted under Section 4 of the Administrative Tribunals Act 1985, have beenempowered to adjudicate matters relating to service conditions etc. Similarly the ConsumerDisputes Redressed Mechanism provided for better protection of the consumers, thereby providing for the establishment of the District Consumer Disputes Redressed Forum at districtlevel, State Consumer Disputes Redressed Commission, at the State Level and NationalConsumer Disputes Redressed Commission at the National Level to adjudicate the ConsumerDisputes/cases under the Consumer Protection Act, 1986. The Income-tax Appellate Tribunal isempowered to hear appeals under Section 253 of the Income Tax Act, 1961, Central Excise andGold Appellate Tribunal (now known as Central Excise and Service Tax Appellate Tribunal) is




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empowered to hear appeals under Section 35(b) of the Central Excise and Salt Act, 1944. TheDebt Recovery Tribunals set up under the provisions of The Recovery of Debts due to Banks andFinancial Institutions Act 1993 has been empowered to adjudicate cases relating to debts /loansof Commercial Banks and Financial Institutions. The tribunal system was evolved in our countryto provide an alternative to the regular courts. The tribunals are presided over by the experts of

the respective fields and the adjudication mechanism is cost effective, thus less costly incomparison to the regular courts and they are effectively resolving the disputes by taking muchless time in comparison to the regular courts.

CIVIL PROCEDURE CODE:-The use of ADR, is promoted by the enactment of section 89 ofthe Code of Civil Procedure which is inserted by Section 7 of the Code of Civil Procedure(Amendment) Act 1999. The courts also encourage the parties to use an ADR procedure inappropriate cases. The Governments including Central Government are committed to settle theirlegal disputes out of the court by ADR methods whenever the other party agrees for it. NormallyADR is an alternative way of settlement of the disputes or issues. ADR is simple, cheaper,quicker and less stressful to all parties, in comparison to adversarial litigation.

CONCILIATION/ MEDIATION:-The term ‗conciliation‘ and ‗mediation‘ have not been used

with any precision. To begin with the term ‗conciliation1 was used more widely, while of late theterm ‗mediation‘ has become more popular. By and large these terms are used inter changeably.

Section 61 of the Act1 provides for application of Part-Ill of the Act to conciliation of disputesarising out of legal relationship, whether contractual or not and to all proceedings relatingthereto. The provisions of Part-Ill shall not apply where by virtue of any existing law which is inforce; certain disputes may be in the exclusionary category of conciliation. Section 62 of theAct2 provides for commencement of conciliation proceedings. Section 63 provides for thenumber of conciliators and Section 64 provides for the appointment of conciliators. The partiesmay submit brief written statement describing the general nature of the dispute and the points atissue with a copy of such statement to the opposite party under Section 65 of the Act. The Codeof Civil Procedure, 1908 or the Indian Evidence Act, 1872 are not binding upon the conciliatorsas per the provisions of Section 66 of the Act. The conciliator assists the parties in anindependent and impartial manner in their attempt to arrive at an amicable settlement of theirdispute. The conciliator is guided by the principles of objectivity; fairness and justice by takinginto account the rights and obligations of the parties. The conciliators are free to conduct the proceedings, by taking into account, the circumstances of the case and willingness of the parties,including any request by a party that the conciliator should hear oral statement requiring speedydisposal/ settlement of the dispute. The conciliator is free to make any proposal for settlement ofdispute at any stage under Section 67 of the Act. Section 75 of the Act provides that the proceedings before conciliator shall be confidential. The parties shall keep all matters relating tothe conciliation proceedings as confidential. The agreement is also confidential except where itsdisclosure is necessary for the purposes of implementation and enforcement of the settlement.Section 73 empowers the conciliator to formulate the terms of a possible settlement and submitthe same to the parties for their observance. On observance, if the parties agreed, a writtensettlement agreement may be signed. The settlement agreement shall be final and binding on the parties and their representatives. The conciliator shall authenticate the settlement agreement andfurnish a copy of such agreement to each of the parties under Section 73 of the act.




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Arbitration and Conciliation Act, 1996: Part I of this act formalizes the process of Arbitrationand Part III formalizes the process of Conciliation. (Part II is about Enforcement of ForeignAwards under New York and Geneva Conventions.)Arbitration The process of arbitration canstart only if there exists a valid Arbitration Agreement between the parties prior to the emergenceof the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding

which the dispute exists, must either contain an arbitration clause or must refer to a separatedocument signed by the parties containing the arbitration agreement. The existence of anarbitration agreement can also be inferred by written correspondence such as letters, telex, ortelegrams which provide a record of the agreement. An exchange of statement of claim anddefense in which existence of an arbitration agreement is alleged by one party and not denied byother is also considered as valid written arbitration agreement. Any party to the dispute can startthe process of appointing arbitrator and if the other party does not cooperate, the party canapproach the office of Chief Justice for appointment of an arbitrator. There are only two groundsupon which a party can challenge the appointment of an arbitrator – reasonable doubt in theimpartiality of the arbitrator and the lack of proper qualification of the arbitrator as required bythe arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitutes the

Arbitration Tribunal. Except for some interim measures, there is very little scope for judicialintervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it cando so only before the tribunal itself. If the tribunal rejects the request, there is little the party cando except to approach a court after the tribunal makes an award. Section 34 provides certaingrounds upon which a party can appeal to the principal civil court of original jurisdiction forsetting aside the award. The period for filing an appeal for setting aside an award is over, or ifsuch an appeal is rejected, the award is binding on the parties and is considered as a decree of thecourt.

ConciliationConciliation is a less formal form of arbitration. This process does not require anexistence of any prior agreement. Any party can request the other party to appoint a conciliator.One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, allmust act jointly. If a party rejects an offer to conciliate, there can be no conciliation.Parties maysubmit statements to the conciliator describing the general nature of the dispute and the points atissue. Each party sends a copy of the statement to the other. The conciliator may request furtherdetails, may ask to meet the parties, or communicate with the parties orally or in writing. Partiesmay even submit suggestions for the settlement of the dispute to the conciliator. When it appearsto the conciliator that elements of settlement exist, he may draw up the terms of settlement andsend it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both. Note that in USA, this process is similar to Mediation. However, inIndia, Mediation is different from Conciliation and is a completely informal type of ADRmechanism.

Lok Adalat Etymologically, Lok Adalat means "people's court". India has had a long history ofresolving disputes through the mediation of village elders. The current system of Lok Adalats isan 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 Authority,Supreme Court Legal Services Committee, High Court Legal Services Committee, or TalukLegal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These




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are usually presided by retired judge, social activists, or members of legal profession. It does nothave jurisdiction on matters related to non-compoundable offences. While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and norigid procedural requirement (i.e. no need to follow process given by [Indian] Civil ProcedureCode or Indian Evidence Act), which makes the process very fast. Parties can directly interact

with the judge, which is not possible in regular courts. Cases that are pending in regular courtscan be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to aLok Adalat if one party applies to the court and the court sees some chance of settlement aftergiving an opportunity of being heard to the other party. The focus in Lok Adalats is oncompromise. When no compromise is reached, the matter goes back to the court. However, if acompromise is reached, an award is made and is binding on the parties. It is enforced as a decreeof a civil court. An important aspect is that the award is final and cannot be appealed, not evenunder Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgment by consent. All proceedings of a Lok Adalat aredeemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.

Permanent Lok Adalat for public utility services In order to get over the major drawback inthe existing scheme of organization of Lok Adalats under Chapter VI of the Legal ServicesAuthorities Act, 1987, in which if the parties do not arrive at any compromise or settlement, theunsettled case is either returned to the back to the court or the parties are advised to seek remedyin a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A wasintroduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation andsettlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the LegalServices Authorities Act, 1987, at pre-litigation stage itself, which would result in reducing thework load of the regular courts to a great extent. India the Lok Adalat is presided over by asitting or retired judicial officer as the chairman, with two other members, usually a lawyer and asocial worker. There is no court fee. If the case is already filed in the regular court, the fee paidwill be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the EvidenceAct are not strictly followed while assessing the merits of the claim by the Lok Adalat.Maincondition of the Lok Adalat is that both parties in dispute should agree for settlement. Thedecision of the Lok Adalat is binding on the parties to the dispute and its order is capable ofexecution through legal process. No appeal lies against the order of the Lok Adalat. Lok Adalatis very effective in settlement of money claims. Disputes like partition suits, damages andmatrimonial cases can also be easily settled before Lok Adalat as the scope for compromisethrough an approach of give and take 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. Section 89 of the Code ofCivil Procedure, 1908 talks about ―Settlement of disputes outside the court‖. The contents of thesaid section are as follows:Where it appears to the court that there exists elements of a settlementwhich may be acceptable to the parties, the Court shall formulate the terms of settlement andgive them to the parties for their observations and after receiving the observations of the parties,the court may reformulate the terms of a possible settlement and refer the same for-(a) arbitration;(b) conciliation;(c) judicial settlement including settlement through Lok Adalat;or(d) mediation




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Position of ADR in Australia.

Historically, in Australia Alternative Dispute Resolution ("ADR") has largely been perceivedas a non-judicial function. Indeed, ADR has been described as "a process of solving problemswithout the assistance of the Courts."1More recently however, cost pressures and the search for

greater efficiencies and fairness has led to a greater focus on ADR processes in the context of thelitigation process, a trend which has been driven by both the legislature and the Courtsthemselves. Mediation is the main form of ADR used in Australian Courts (Victorian). TheVictorian Courts refer cases to conferences, which are normally pre hearing conferences,conciliation and sometimes arbitration. Mediation is a process in which the conflicting partiesdiscuss, formulate and reach to a conclusion with the help of a mediating person known as themediator. The mediator does not decide or advise, he has no advisory role in the proceedings.He, however, does advise on determining the process of mediation. Mediation can be followedvoluntarily, by the order of the Hon‘ble Court and or existing contractual agreement. TheSupreme, the Magistrates‘ and the County Courts have the right to order any part of the

proceeding or all of the proceeding to mediation, with or without the consent of the parties.

There are three main types of ADR processes:

Facilitative

Advisory

Determinative.




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TYPES OF ADR PROCESSES:

MEDIATION:

Mediation is a form of assisted, structured, problem solving, negotiation process. It is an

excellent process for resolving most types of dispute and conflict. It is also highly effective at producing mutually acceptable outcomes when there are competing interests AND an underlyingneed to resolve the clash amicably, rather than by winning a contest of wills, or resources.Themediator guides individuals, groups, organisations and businesses ("parties") through themediation process. The main objective is to resolve the dispute or problem constructively and torecord the agreement(s) reached in a document that is regarded by all parties as being bothmorally and legally binding on them.Mediation is easily the most widely used dispute resolution process in Australia - mainly because it is both so flexible and so effective. For over fifteenyears we have ourselves consistently achieved successful outcomes in over 90% of ourmediations. In skilled hands, Mediation addresses and removes the causes of conf l ict , therebyrepairing, or at least dignifying, the damaged relationships that are at the core of all disputes.

Contrast this with adversarial processes such as litigation, which is designed specifically to dealonly with the symptoms of conflict (ie: breaches of the law). The difference is critical whenlong-term family, friendship, commercial, business or customer relationships are involved. MostAustralian courts and tribunals now regard mediation as an important and efficient disputeresolution process. Perhaps it's the ultimate irony that, after submitting to much of the stress andexpense of preparing for trial, many courts now require parties to mediate before they allowthem their day in court!Mediation ProcessesThe literature suggests a bewildering array ofmediation process models, based on a variety of applied principles and philosophies. Our ownresearch, training, teaching and, more than anything else, practical experience of conducting agreat many successful mediations over many years, have led us to develop our own signaturestyle of practical mediation. The two mediation processes we describe below are, therefore, theactual processes we deliver. The mediation processes can and have been adapted to suit almostevery size and type of dispute, from non-financial family, family business and workplaceconflicts to multi-million dollar commercial disputes.Two distinct styles of mediation buildingthe flexibility to respond to the individual needs of each dispute into the processes themselves.

These processes are:

Facilitated Mediation

Directed Mediation:

Facilitated Mediation: This process follows the ―classic‖ mediation model. The mediatormanages a negotiation process designed to help the parties to develop their own agreement. Themediator does not express opin ions , or make recommendations, although they do help to realitycheck options and proposals. Their main role is to maintain order and to provide direction andmomentum in the mediation.Directed MediationThis is a more robust process than FacilitativeMediation. The mediator is expected to use his or her professional knowledge, judgment andexperience more pro-actively - to express views and opini ons and to make suggestions that willhelp guide, or nudge, the parties towards resolution.Which Process ?Mediators have substantial

http://www.disputesolutions.com.au/dispres/ndp_facilitation.shtml

http://www.disputesolutions.com.au/dispres/ndp_facilitation.shtml




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experience and credibility in the areas in which they mediate. They are also exceptionally goodat gaining the trust and respect of parties and advisers involved in their mediations.Consequently, most parties choose the Directive Mediation model, with its substantially more pro-active approach. Of course, we are equally happy to use a Facilitative process, wheneverrequested to do so and there is always the option of changing the process in mid-stream,

provided all parties agree to do so.Process StagesJust as we try to keep things simple with ourtwo types of mediation process, so we believe that each process essentially comprises just fourfundamental stages, each of which will be familiar to students of problem solving: Stages (1)and (2) - analyse the problem in the “here and now”. Stages (3) and (4) - develop and implement“go- forward” solutions. Mediation Process Stages:

“here and now” analysis “go-forward” solutions

1. Identify Issues - Situation and NeedsAnalysis – understand (without judgment) what is going on, what are the

perceived problems and what are the parties‘ apparent needs and

interests?Assess & Understand -Separate the people (ie: personalities andegos) from the problem (ie: the issues).De-construct and analyse the identified problem(s) by: “going hard on the

problem and easy on the people”.

1. Generate Options – Examine possibilities and alternatives through a joint problem solving process. Again,

―work on the problem, work with the people‖. Generate options for solutionsthat could work – propositions the other party can easily say ― yes‖ to.Develop

Agreement – craft the best and mostattractive of the proposed solutions into aworkable, written agreement. Producethe ―best possible outcome‖ for

everybody, under all the circumstances.

Example of a Mediation ProcessAs soon as a dispute is referred to us we conduct an intake

session to help us, and the parties, to work out and decide which process, style and mediator are best suited to the matter at hand.

A typical mediation develops as follows:

Preliminary contact. This is usually a telephone or face-to-face contact and may be with one,

some, or all of the parties, or their advisers. We see whether the basic ―chemistry‖ between us is

right; offer and explain process options; identify information requirements and sources;

identify required outcomes; estimate process time frames and provide estimates of likely

costs.Preliminary contact with reluctant party(s). Sometimes, a party to a dispute is resistant

to, or even oblivious of, the need to get the problem resolved. If necessary we make contact, provide explanations and get a preliminary commitment to, at the least, start a

dialogue.Preliminary Planning Meeting (1 hour). Used to establish trust in the mediator and

commitment to the process. The parties define and confirm the problem that needs to be

resolved, agree their respective information requirements, set the style for the mediation process,

agree costs and how to deal with them and commit to a process timetable.




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Usually, we involve all the parties in the process from the outset. However, where levels of

emotion, aggression or insecurity are very high (eg: family, partnership or workplace conflicts),

we may instead initially conduct a series of individual meetings.

We much prefer face-to-face communication, but if that‘s not possible we conduct meetings by

phone or video conference. We believe it is essential for us to get a real feel for the people and

issues and similarly, for the parties and their advisers to understand us and the way we work.

The mediation meeting(s). This is usually a half or a full day meeting. Alternatively, it may

comprise a series of shorter sessions with individual, some or all of the parties (especially in

family, family business and workplace conflicts). The mediator ensures that: All relevant issues

are identified, presented and explored. The needs and interests of all parties are validated and

acknowledged . Note that this is not the same as their being accepted . Options and alternatives

are generated that could become possible solutions / resolutions. The risks and rewards of

adopting the various options and alternatives are considered and evaluated. Solutions, being the

perceived best choice option(s) from above, put into some form of workable structure, are agreed

by the parties. Finally, when the parties are satisfied that they have arrived at and agreed the best

possible mutual solution for their problem or dispute, the mediator helps them to develop a

written agreement for signing. The agreement is, or will become, legally binding. The

advantages of mediation are that the parties do not have to meet and lawyers can be present or

not. Further advantages are as follows:(i) the introduction of the third party mediator enables

parties to appraise their cases in confidence;(ii) the process is focused on the interests of the

parties rather than on their legal rights alone – additional factors come into play such as external

commercial pressures, personal emotions and other surrounding circumstances;(iii) the process is

conciliatory by nature – there is not an imposition of a solution – it is a mutual and consensualoutcome;(iv) scope for non-monetary remedies including the provisions for services, payments in

kind and apologies. This may be contrasted with the fixed remedies available in litigation – those

being damages, specific performance and injunction etc;(v) quick, cheap and confidential. The

process is conducted under the "without prejudice" head of privilege. Further, discussions in

mediation cannot be discussed in litigation or arbitration proceedings;(vi) a more ‗reflective‘

approach to solving disputes – the process provides parties with an opportunity to focus on the

issues in dispute, consider the true economic costs and risks and will ‗provide an opportunity to

re-establish lines of communication which are often broken when the dispute escalates.However,

mediation may be negative in that:(vii) It is not appropriate where a court remedy is necessary

e.g. injunctions, specific performance;(viii) The mediator has no power to impose a bindingdecision on the parties; and 3.(ix) Mediation rarely produces a satisfactory resolution unless both

parties to a dispute are committed to a resolution.Conciliation:Many complaints that the

Australian Human Rights Commission receives are resolved through conciliation.

Conciliation is an informal, flexible approach to resolving complaints – matters can be settled by

an exchange of letters, a telephone negotiation between the Commission and the people




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involved, a telephone conciliation conference or a face to face conciliation conference.

We will discuss with you the best way to try and resolve the complaint and what sort of outcome

you are seeking. We will also talk with the respondent about the options they have and the

benefits of resolving the complaint through conciliation.

The conciliation conference is not a public hearing, a court of law or a tribunal. That means

parties do not have to prove or disprove the complaint. Instead conciliation allows people to state

their point of view, discuss the issues in dispute and settle the matter on their own terms.

There is generally no need for legal representation. However, parties may request that a lawyer,

advocate or support person attend the conference with them.

The Commission is an impartial third party during the conciliation process. Our role is to assist

the parties to consider different options to resolve the complaint and provide information about possible terms of settlement. We can also help write up the conciliation agreement.

Outcomes will vary depending on the nature of the complaint. However, agreements can include

an apology, reinstatement to a job, compensation for lost wages, changes to a policy or putting in

place anti-discrimination policies.

If the complaint can‘t be resolved through conciliation, you can apply to have the matter heard in

the Federal Court of Australia or the Federal Circuit Court of Australia

Arbitration

Each of the States and Territories have introduced uniform Commercial Arbitration Acts. In

NSW this is the Commercial Arbitration Act 2010.Arbitration is when the matter in question is

determined by a professional arbitrator who is usually given the power to impose a binding

decision on both parties. Arbitration can, in that sense, be seen as a direct replacement for

litigation and is usually complex and potentially expensive.The advantages of arbitration is that it

avoids using the courts and is confidential. It is therefore advantageous for companies wishing to

continue a business relationship after the dispute or looking to minimise negative publicity. In

comparison to litigation, it is speedier and more informal, and the exclusionary rules of a hearing

do not apply (in other words, everything can come into evidence so long as it is relevant andnon-cumulative). Furthermore, there is limited discovery, since it is controlled by what the

parties have agreed upon.The disadvantages mainly concern costs with arbitrations potentially

taking a similar amount of time to litigation.An arbitrator‘s award may only be appealed on the

limited grounds of manifest error of law on the face of the award, where the question is one of

the general public importance and the decision of the arbitrator is at least open to serious doubt

or misconduct.




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Early Neutral Evaluation ("ENE")ENE is a non-binding ADR process where a neutral party

gives non-binding evaluations on the merits and flaws of a dispute.Apart from the general

advantages over litigation that ADRs offer, specifically ENE is advantageous in that the opinions

of a mutually respected neutral individual may assist in the negotiations and the opinion from a

QC/retired judge etc can assist the parties to break deadlock. Disadvantages include the fact that

the process is non-binding and parties can ignore an opinion that they do not agree with.

Expert Determination:

Expert Determination is a process whereby an independent third party, with recognised

expertise in the subject matter in dispute between the parties, assists the parties to resolve their

dispute.(i) Advantages: can be effective where the parties anticipate a specific type of technical

dispute arising in which the expertise of the decision maker will be critical, such as technical

engineering disputes; quicker/cheaper than litigation/arbitration; confidential; gives parties a

greater knowledge of how the factual evidence is likely to be decided if the case goes to trial(ii)

Disadvantages: expert has no power to force his findings on the parties. The parties may providethat the determination of the expert is final and binding upon them, but recourse to the Courts is

still necessary to enforce any determination.

ADR in the Courts:

In 1996 Lord Woolf, Master of the Rules, published a report on access to civil justice in the

United Kingdom. Included within this report were recommendations as to the adoption of pre-

litigation protocols to encourage a more co-operative approach to dispute resolution, to promote

fair settlements and to avoid litigation wherever possible.The pre-litigation protocols, which

were later developed, provided guidelines which parties to prospective litigation were expectedto follow before commencing proceedings before the Courts. The purposes of such protocols

were:(a) to focus the attention of litigants on the desirability of resolving disputes without

litigation;(b) to enable them to obtain the information they reasonably need in order to enter into

an appropriate settlement; or(c) to make an appropriate offer (of a kind which can have cost

consequences if litigation ensues); and(d) if a pre-action settlement is not achievable, to lay the

ground for the expeditious conduct of the proceedings.

Lord Woolf noted that the vast majority of cases in the UK settled without trial, by negotiation

and considered that pre-litigation protocols would further encourage early settlement. 5.In 2009

Lord Jackson conducted a review of the costs of civil litigation in the UK.5 Lord Jackson foundthat pre-action protocols were of benefit in particular categories of litigation (e.g. construction,

large scale commercial litigation), but the adoption of a protocol applicable to all general

litigation had led to substantial delay and additional cost. He recommended that the general

protocol be repealed, because "one-size does not fit all".6Regrettably, the Australian

Government has not heeded Lord Jackson‘s recommendations.From 2008 a number of reports

were produced in Australia which recommended parties to litigation take "genuine" or




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"reasonable" steps to resolve disputes before commencing litigation, which steps might include,

but need not necessarily include, ADR processes.7The Civil Dispute Resolution Act (2011) Cth

("Act") came into effect on 1 August 2011. The objects of the Act are:(a) to change the

adversarial culture often associated with disputes;(b) to have people turn their minds to

resolution before becoming entrenched in a litigious position; and(c) where a dispute cannot be

resolved and the matter proceeds to court, the issues are identified reducing the time required for

a court to consider the matter.8The Act applies to the Federal Court of Australia and the Federal

Magistrates Court and requires an applicant to file a genuine steps statement at the time of filing

the application. The genuine steps statement must specify the steps taken to resolve the issues in

dispute or, if no such steps have been taken, to provide appropriate reasons. An example of the

latter is the urgency of the proceedings.9A respondent is also required to file a genuine steps

statement before the first directions hearing. This statement is required to state whether or not the

respondent agrees with the applicant‘s genuine steps statement and to specify any

disagreement.10The Act is not prescriptive as to the genuine steps a litigant is required to take.

Section 4 provides that a person takes genuine steps to resolve a dispute:"….if the steps taken bythe person in relation to the dispute constitute a sincere and genuine attempt to resolve the

dispute, having regard to the person’s circumstances and the nature and circumstances of the

dispute." .The Act does provide examples of genuine steps which might be taken which include

attempting to negotiate, providing relevant documents and information and considering and

participating in an ADR process.Lawyers are obliged to inform their clients of the above

obligations and assist them to comply. A failure to do so may result in a costs award against the

lawyer.While the failure to file a genuine steps statement does not invalidate proceedings and,

for the moment at least, the Federal Court Registry has been accepting applications without a

genuine steps statement, the failure to comply with these requirements may result in an award of

costs against the defaulting party.

Finally, the Act provides that the Courts may make rules providing for the form of genuine

steps statements and the matters which are to be specified in them16.The Federal Court Rules

provide that an applicant must file a genuine steps statement in accordance with the requirements

of the Civil Dispute Resolution Act at the time of filing the original application.However, apart

from providing for a form the Rules do not, as yet, provide any guidance as to the genuine steps

which must be undertaken by a party.Various concerns have been expressed about the genuine

steps requirements and, in particular, the "one-size fits all approach", which Lord Jackson

recommended against. Such concerns include an increase in the costs of litigation, particularly in

matters of a minor commercial nature where resolution is unlikely. It has also been suggestedthat the genuine steps requirements will give rise to mini-trials concerned with whether or not the

requirements have been complied with and what the consequences of any non-compliance should

be.It is fair to say that the Federal Court was not an enthusiastic proponent of the genuine steps

requirements and, thus far, has taken a light touch to these obligations. Whether this continues or

the Court decides to be more prescriptive in terms of the genuine steps parties are required to

take, remains to be seen.




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CHAPTER 6

CONCLUSIONS




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Conclusions

The justice dispensation system in India has come under great stress for several reasons, mainly

due to huge pendency of cases in the courts.

Alternative Disputes Resolution is a mode of resolution of disputes through arbitration,

conciliation or mediation which provides an alternative route for resolution of disputes instead of

resolution of such disputes through courts.

The principle of ADR are successfully adopted in the Indian Legal System as an alternative to

the justice delivery system.

With the advent of the alternate dispute resolution, there is new avenue for the people to settletheir disputes.

The settlement of disputes in Lok Adalath quickly has acquired good popularity among the

public and this has really given raise to a new force to alternate dispute resolution and this will

no doubt reduce the pendency in law Courts.

The scope of alternate dispute resolution system (ADR) has been highlighted by the Hon‘ble

Chief Justice of India in his speech in the joint conference of the Chief Ministers of the State and

Chief Justice of High Courts, held at Vigyan Bhavan, New Delhi on September 18, 2004 and

insisted the Courts to try settlement of cases more effectively by using alternate dispute

resolution system so as to bring down the large pendency of cases in law Courts.

I conclude the article by saying that alternate dispute resolution will really achieve the goal of

rendering social justice to the parties to the dispute, which is really the goal of the successful

judicial system.




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CHAPTER 7

SUGGESTIONS




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Suggestions

With a very laudable objective of speedy disposal of cases, Alternative DisputeResolution Mechanism (ADR) is mooted. Among the modes of Alternative Dispute Resolution

Mechanism, Arbitration is most discussed issue always as many agreements or contracts contain

an Arbitration Clause now-a-days.

The difference between Arbitration Mechanism and the adjudication through Civil Court

etc. issues can be summed up as follows:

There is no need of paying court fee when a dispute is adjudicated by an

Arbitrator.Arbitrator is less burdened compared to Civil Court and the parties have the liberty of

choosing their own judge.Arbitrator need not follow the procedure prescribed under Civil

Procedure Code, 1908 though he will follow the principles of natural justice.

The procedure, the fees, the place of Arbitration etc. can be mutually agreed by the

Parties and in the absence of any consensus, the Court or the Arbitrator will take a decision on

the issues.Despite so much relaxation in the established civil procedure, the adjudication before

the Arbitrator or the issue of getting an Arbitrator appointed is delayed very often.

The general issues or challenges to the adjudication through Arbitrator are as follows:

Even when there is no real lis between the parties, one party to an agreement containing

Arbitration clause, may initiate Arbitration proceedings with untenable claim. The issue is settled

to some extent now in view of the recent development that the Court entertaining an applicationunder section 11 of Arbitration and Conciliation Act, 1996 discharges judicial function and can

look into the issues as to whether there is any existing agreement prima facie, whether there is

any lis between the parties and whether the subject matter is capable of being arbitrated.

Arbitration mechanism is always Alternative, but, still we depend on the Civil Courts and the

procedure lay down under the Code of Civil Procedure, 1908 for getting the civil disputes

adjudicated. We need many reforms in our judicial system in India to ensure speedy disposal of

cases and it will certainly take years to bring the proper reforms. Simultaneous to bringing the

proper reforms or initiating measures to bring the reforms in our Indian Judiciary aiming at

speedy and effective disposal of cases, we also need to concentrate as to how make theArbitration Mechanism truly effective.




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The measures to make the Arbitration Mechanism truly effective, as I think, are as follows:

Rather practicing to appoint retired judges as Arbitrators, it is better to have panel of Arbitrators

who are talented and with very good legal knowledge.

There is nothing wrong if a practicing legal advocate is appointed as an Arbitrator when he iswilling to act as such.

When it comes to the fee or the remuneration to be paid to the Arbitrator, it is better to fix

lumsum remuneration for deciding an issue and having mechanism that the entire fee is paid to

the Arbitrator at once.

It is better to avoid the practice of paying sitting fees to the Arbitrators if one needs to make the

adjudication through arbitration really speedy.

Applications under section 34 of Arbitration and Conciliation Act, 1996 to be carefully gone into

and the implications of entertaining an application under section 34 on the main Arbitrationclaim before the Arbitrator to be carefully considered.

The present legal position with regard to appointment of Arbitrators to be continued and the

process of appointment of arbitrators to be judicial always.

Arbitration Mechanism can be made truly effective and I don‘t think that the mechanism is truly

effective as of now for the few among many reasons referred to above.




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CHAPTER 8

APPENDIX

8.1 Bibliography

8.2 Images




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8.1 Bibliography

Access to Justice Taskforce (2009). A Strategic Framework for Access to Justice in the FederalCivil System. Canberra: Attorney-General‘s Department,Commonwealth of Australia.

http://www.ag.gov.au/a2j

Canadian Bar Association (1996). Systems of Civil Justice Task Force Report. Ottawa, ON: TaskForce on Systems of Civil Justice. https://www.cba.org/cba/pubs/pdf/systemscivil_tfreport.pdf

Farrow, T., D. Lowe, B. Albrecht, H. Manweiller, and M. Simmons (2012). ―Addressing the Needs of Self Represented Litigants in the Canadian JusticeSystem.‖ A White Paper prepared for

the Association of Canadian Court Administrators, March 27.

Fisher, P. (2000). ―All You Need to Know About Mediation but Didn‘t Know to Ask— AParachute for Parties in Litigation,‖ Mediate.com, November.http://www.mediate.com/articles/fi

sher2.cfm

Martin, W. (2012). ―Managing Change in the Justice System.‖ 18th AIJA Oration, Brisbane,

September 14.

National Alternative Dispute Resolution Advisory Council (2009). The Resolve to Resolve —

Embracing ADR to Improve Access to Justice in the Federal Jurisdiction. Canberra: NationalAlternative Dispute Resolution Advisory Council.http://www.nadrac.gov.au/publications/PublicationsByDate/Documents/TheResolvetoResolve.pd

f

Ruhlin, C., and H. N. Scheiber (1996). ―Umpiring the Multi-Option Justice System,‖ 80Judicature 58. http://scholarship.law.berkeley.edu/facpubs/1573Sourdin

Alternative Dispute Resolution, 4th ed. Australia: Thomson Reuters. — (2012b) ―A BroaderView of Justice.‖ In M. Legg (ed.), The Future of Dispute Resolution. Sydney: LexisNexis.http://www.civiljustice.info/ — (2012c). ―Exploring Civil Pre-Action Requirements: ResolvingDisputes Outside Courts.‖

Australian Centre for Justice Innovation, Monash University, Melbourne, November.Stipanowich, T. (2004). ―ADR and the Vanishing Trial: The Growth and Impact of Alternative

Dispute Resolution,‖ 1 Journal of Empirical Studies 843.Tan, S. (2012).

―Resolving Disputes Without Courts— Commentary from Law Council of Australia.‖

Submission to ACJI Background Paper, June 22.



https://www.cba.org/cba/pubs/pdf/systemscivil_tfreport.pdf



http://www.nadrac.gov.au/publications/PublicationsByDate/Documents/TheResolvetoResolve.pdf



http://scholarship.law.berkeley.edu/facpubs/1573Sourdin



http://www.civiljustice.info/

http://www.civiljustice.info/









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United Nations Commission on International Trade Law, UNCITRAL Arbitration Rules,

www.uncitral.org/ uncitral/en/uncitral_texts/arbitration/ 1976Arbitration_rules.html.

See Federal Judicial Caseload Statistics, www.uscourts.gov/ caseloadstatistics.html.

www.iccwbo.org/court/

United Nations Commission on International Trade Law,UNCITRAL Arbitration Rules (1976) available atwww.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976A

rbitration_rules.html

ICC, ―Techniques for controlling Time and Costs in Arbitration‖, International Chamber of Commerce Publication 843, 2009 at

http://www.iccwbo.org/uploadedFiles/TimeCost_E.pdf

http://www.jamsadr.com/weinstein-fellowship/

http://www.atimes.com/atimes/South_Asia/JF28Df02.html.

delhimediationcentre.gov.in

http://elyon1.court.gov.il/eng/home/index.html

LISA BINGHAM, JANET MARTINEZ & STEPHANIE SMITH, DISPUTE SYSTEMDESIGN:PREVENTING, MANAGING AND RESOLVING CONFLICT (forthcoming, 2013); Stephanie

Smith &Janet Martinez, Analytic Framework for Dispute System Design, 14 HARV. NEGOT.L. REV. 123(2009).

http://www.sanmateocourt.org/documents/adr/2007_2008_evaluation_report.pdf .

http://www.mishpat.ac.il/files/650/3118/3124/3125.pdf .

Wayne D. Brazil, Comparing Structures for the Delivery of ADR Services by Courts:Critical Values and Concerns,

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, MULTI-OPTION ADRPROJECT

EVALUATION REPORT, JULY 2007 – JULY 2008

John Lande, The Movement Toward Early Case Handling in Courts and Private DisputeResolution

Simon Roberts and Michael Palmer, Dispute Processes ADR and the primary forms of decision-

making, (Cambridge University Press, New York, 2005).

http://www.iccwbo.org/court/


http://www.atimes.com/atimes/South_Asia/JF28Df02.html


http://www.sanmateocourt.org/documents/adr/2007_2008_evaluation_report.pdf


http://www.mishpat.ac.il/files/650/3118/3124/3125.pdf





http://www.atimes.com/atimes/South_Asia/JF28Df02.html


http://www.iccwbo.org/court/




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The contribution of mediation to workplace justice, in: The Industrial Law Journal

Henry S. Farber, An Analysis of Final-Offer Arbitration, in: The Journal of Conflict Resolution,

Vol. 24, No. 4

8.2 Images:

: sample copy of the arbitration cooperation agreement.




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