The Art and Science of Strategic Dispute Resolution
"An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto." The lines italicised above state the aim of an important milestone that was achieved by India in 1996; The Arbitration and Conciliation Act. The Act is frequently characterized as a by-product of globalization, heralded for its ability to streamline dispute resolution in both cost and time efficiency. The Act, though formed in 1996 has its roots since forever. Why is say this is because Disputes make the primary ambit of the Act and there is no age to disputes that has ever been known. Disputes exist now and they existed in the Past. The sole noteworthy development in this entire scenario was the tipping point in 1996, which introduced an alternative to the lengthy, expensive, and cumbersome process of litigation. Everything that the Act is related to, revolves around and is concerned with forms the subject matter of this blog. In the course of this blog, we'll target a number of questions like; ? What are Disputes? What role do they play in Dispute Resolution? ? What comes under the ambit of Strategic Dispute Resolution and Why is it required in the first place? ? Does India have any legislation that talks about Arbitration along with any cases that could be referred to get a better understanding? ? What is the relation between Disputes and Society? The Evolution of Arbitration in India When we dive deep into the past, we realise that arbitration in India took place according to Hindu and Muslim Law. This was then followed by the first arbitration act that was enacted in India in 1899; The Indian Arbitration Act. Even with the onset of British Colonialism, arbitration proceedings continued to exist under the ambit of Code of Civil Procedure, 1908. Foreign arbitration proceedings to implement foreign arbitration agreements, specifically, those outlined in the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 were brought into the picture through the The Arbitration (Protocol and Convention) Act, 1937. Within 3 years, the Indian Arbitration Act of 1800 was replaced by The Arbitration Act of 1940 which then became the first formal legislation that specifically covered the ADR mode of arbitration in independent India. Post-Independence, India went through a drastic shift in its governance, development and societal differences. With the onset of the three principles of liberalisation, privatisation and globalisation; the Indian Society made significant strides in the field of conflict resolution, greater credit of which can be given to Arbitration and Conciliation Act of 1996 which put considerable emphasis on the alternative dispute resolution strategies that were brought into the picture for the purpose of reducing the cost, time and energy demanded from the litigants. In the years to come, the various amendments made to the act provided a testimony of the issues and difficulties that came with method which seemed no less than alien at the time. The act was subjected to a rigorous process of evaluation and analysis in the form of reports by different organisation. Officially and Formally, The World Intellectual Property Organisation (WIPO) defines arbitration as a procedure wherein parties achieve resolution by submitting their disputes to neutral person/s called arbitrators, whose decision is binding on such parties. In simpler words, arbitration is a process that allows two or more parties in a dispute to resolve their legal conflicts. Instead of arguing their case before a court of law, arbitration lets the involved parties achieve a mutually acceptable resolution by bringing in a third party, i.e., the arbitrators. These arbitrators are neutral and impartial, which enables them to get the parties in dispute to agree to terms that are acceptable to all. Disputes; A thing of the past? Disputes and Society go hand in hand. When there exists a society, there automatically exist disputes. It is only typical that back in the ancient times, people resided in a surrounding, built themselves homes, bought property, raised children and all these activities involved human interaction that in some or the other form led to disagreements soon turning into conflicts that need to be resolved. Back then, there existed no formal legal framework that was used to resolve conflicts. In such a scenario, power politics comes into play. The person in the more dominant position with more power controls the dynamics of the conflict and eventually turn it in favor of himself. All this eventually led to great inequality and the need for a more comprehensive method for resolution of disputes. It was then that the courts came into the picture. Beyond the Courtroom: Innovative Strategies for Dispute Resolution “Interminable, time consuming, complex and expensive Court procedures impelled jurists to search for an alternative Forum, less formal, more effective and speedy for resolution of disputes, avoiding procedural claptrap and this led them to Arbitration Act, 1940" What you just read are the words of Honourable Justice D.A. Desai in his famous ruling in Guru Nanak Foundation Vs. Rattan Singh and Sons. Justice Desai put a great deal of emphasis on the vital role that Alternative Dispute Resolution plays in the contemporary times. It is imperative for us to read between the lines and get a hold of certain terms that Justice Desai has mentioned. When we dive deep into the ways one can look for alternative dispute resolutions; there are a number of case studies, blogs and research papers that cover our area of interest. A very significant contribution was made in the form of a case study by Kenneth Thomas and Ralph Kilmann, who developed four conflict resolution strategies that people use to handle conflict, including: ? Avoiding; avoiding includes a solution where there is a way through which the conflict can be avoided, it can be achieved when both the parties somehow come to the conclusion that the potential rewards of the conflict solution will not be at par with the time and energy spent on the tiresome and discomforting process of conflict resolution. ? Defeating; defeating involves a solution when both the parties of conflict participate in the conflict with the motive to win or lose. In such a scenario, one might not always reach a collaborative solution. ? Compromising/Accommodating; compromising/accommodating involves a solution where one of the parties agrees to the demands of the other party. In such a scenario, they become cooperative and not accommodative. However, this strategy may sometimes lead to unresolved conflicts that might surface later in time. ? Collaborating; collaborating involves a solution where both the parties collaborate towards finding a common ground where the needs of both the parties can be addressed. While collaborating, both the parties given to each other's demands to some extent and at the same time, benefit from it. Giving these 4 resolution strategies a closer look, we'll come to the conclusion that these make up the fundamentals of any strategy for conflict resolution. Ralph and Kenneth have based their case study on the assumption that every individual has different ways of responding to conflict. Therefore, every individual chooses how to respond to any conflict at any given point of time. This assumption is indeed valid when it comes to understanding the source of a conflict. It is only when we are thorough about the source of the conflict that we can actually look for solutions / common grounds for the conflict. Almost all the alternative dispute resolution strategies have based themselves on these 4 fundamental principles. These principles are relevant in every trivial conflict at any given level, let alone a grave and serious conflict. Nutshell “An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum To sum it up, it is only imperative for us to understand that disputes are an inevitable part of a social setting so using a method to altogether eradicate the very existence of disputes is a far-fetched idea. However, it is possible to navigate the procedures that we use to resolve these disputes and take an approach that is based on the 3 Cs, that is, Comprehensive, Congenial and Centred. Therefore, when we try to find an approach/ method through which we can find a way to come to a common consensus that can fit into the needs of both the parties by looking for a strategy that is; I. Comprehensive in the sense that both the parties are not only familiar with it but also takes into consideration the areas of interest of both these parties in detail along with all the topics relevant as well as irrelevant to both the parties. II. Congenial in the sense that it adopts a method that adopts a friendly, pleasant, and harmonious way of interacting or addressing situations. It emphasizes on building rapport, fostering cooperation, and creating a comfortable environment for communication. This approach often involves being respectful, understanding, and open-minded, making it easier to connect with others and resolve conflicts. III. Centred in the sense that it focuses on placing the needs, perspectives, and experiences of individuals at the heart of a process or interaction. The goal is to ensure that the person's voice and preferences guide decisions and actions. It emphasizes empathy, active listening, and creating an environment where both feel valued and understood. This approach often leads to more effective and meaningful outcomes. The sole objective of this blog is to make every reader well versed with the importance of embracing strategic dispute resolution and considering it as not merely a tactical choice; but rather essential for fostering harmony, driving efficiency, and building a resilient organizational culture