I N T R O D U C T I O N TO ADR

Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation
such as arbitration Mediation, Negotiation, concilation and Lokadalat.
MEANING AND NEED/Necessity OF ALTERNATIVE DISPUTE RESOLUTION :
The Alternative dispute resolution is a technique is a technique of dispute resolution
through the intervention of a third party An Arbitration process settles the disputes outside
the courts. ADR brings the parties to the negotiating table, Identifying problems. Establishing
facts, clarifying issues developing the option of sentiment and ultimately solving the dispute
through award which is binding on the parties. If the parties cannot settle the dispute
themselves and decide to bring a third party they have some control over the process but
not necessarily over the solution

Various kinds of ADRS:

1. NEGOTIATION

Negotiation is the process of dispute resolution between parties, through mutual

understanding and agreeing where there is no involvement of the third party. Negotiation is
a contemporary form of dispute resolution. It is a part of the ADR (Alternative Dispute
Resolution) System of resolving disputes out of court.
Negotiation may be defined as any form of direct or indirect communication through which
parties who have conflicting interests discus the form of any action which they might take
together to manage and ultimately resolve the dispute between them.
5.C. SCOPE OF NEGOTIATION
The process of negotiation started a long time back during the times the king negotiated at
the time of an ongoing was of to prevent the happening of war. We are even aware of the
negotiation rounder after the two great world wars in the 20 century which ultimately
resulted in the creation of the League of Nations and united Nations respectively.
Over time negotiation has increased its scope. The reason is mainly that the parties wish to
settle their disputes out of court. There are several disadvantages of the litigation process
which include bulky paperwork, excessive time and delays in the process of settlement. With
the increase in the fame of negotiation has increased There are several cares in which
negotiation is applicable .
2. MEDIATION
3. CONCILIATION
4. ARBITRATION

All the above mechanism are in record and can be written as above (just intro. and scope)

5. SALIENT FEATURES OF ARBITRATION ACT 1996 -

Scope and application

The Act applies to both domestic and international arbitration proceedings. It covers all
arbitrations, including those arising out of legal disputes, commercial transactions, and civil
matters.
Arbitration agreement
The Act recognizes the principle of party autonomy, allowing parties to determine the
procedure for appointing arbitrators and conducting arbitration. It recognizes both written
and oral arbitration agreements, provided that they are in writing, electronic form, or
contained in an exchange of letters, telegrams, or other means of communication.
Appointment of arbitrators
The Act provides for the appointment of arbitrators. Parties are free to choose the number
of arbitrators, but if they fail to agree, the default rule is to have a sole arbitrator. The Act
also provides for the procedure to challenge the appointment of an arbitrator in case of
justifiable doubts regarding impartiality or independence.
Conduct of arbitration proceedings
The Act ensures that arbitration proceedings are conducted in an impartial and fair manner.
It allows parties to present their case, produce evidence, and cross-examine witnesses. The
Act also provides for interim measures by the arbitrator, such as granting injunctions and
preserving assets.
Enforcement of arbitral awards
The Act recognizes the enforceability of arbitral awards. An arbitral award, whether
domestic or international, is considered as binding and can be enforced in accordance with
the provisions of the Act. The Act also provides grounds for challenging and setting aside an
arbitral award in limited circumstances.
Conciliation and mediation
The Act recognizes and encourages the use of conciliation and mediation as alternative
dispute resolution methods. It provides a legal framework for the appointment of
conciliators and mediators and outlines the procedure for conducting conciliation and
mediation proceedings.
Court intervention
The Act restricts the interference of courts in arbitration proceedings. Courts can intervene
only in specific circumstances, such as appointment of arbitrators, setting aside an arbitral
award, and enforcement of arbitral awards.
Qualification of the Arbitrator
The arbitration act provides for the qualification of the arbitrator. As most of the disputes
coming now a day are technical in nature, therefore such disputes can properly be decided
only by the arbitrators who are competent and well versed in such matters.
Abolition of the Umpire System
The earlier act of 1940, prior to Arbitration and Reconciliation Act, 1996 had a provision that
where an even number of arbitrators were appointed and such arbitrator failed to make an
award within the specified time, or where there was difference of opinion between two
arbitrators, the umpire should enter on the reference instead of the arbitrators.
But in the act of 1996, the number of Arbitrators to be appointed is decided by the parties
with the limitation that even number of Arbitrators will not be appointed. The arbitrators so
appointed shall appoint a third arbitrator called the Presiding Arbitrator(umpire).
Empower to Pass Interim Orders
In the Act of 1996, the Arbitrators have the power to pass interim orders in respect to the
matters related to the dispute.
International arbitration: The Act incorporates the principles of the UNCITRAL Model Law on
International Commercial Arbitration, facilitating and promoting international arbitration in
line with international standards. This provision is defined under Section 2(1)(f), it means an
arbitration relating to disputes arising out of legal relationship whether contractual or not,
considered as commercial under the law in force in India and where at least one of the
parties whether an individual, body corporate or a company is having business or residing
abroad and in case of Government, the government is of a foreign country.
The Arbitrators Has to Give Reason for Award
The sub section 3 of section 31 of the Act has provision that the Arbitral Tribunal must give
the reason for awards. This requirement is relaxed in the case when both parties are agreed
for a particular award and give this in writing.
Enforcement of Foreign Awards
One of the features of this act is that it provides for the enforcement of certain foreign
awards made under the New York Convention and Geneva Convention respectively as
contained in Part II of the said Act as a decree of the court. The countries which have neither
adopted the New York convention nor the Geneva convention are outside the scope of Part
II of the Act and therefore their awards are not enforceable as foreign awards in India.
The Award is Void if it is in Conflict with the Public Policy
If an arbitral award is in conflict with the public policy in India, then it is null and void and
can be set aside by the Court.
Assistance of Court in Certain Matters
One of the features of the act is that the Arbitral Tribunal may seek assistance of the Court in
taking evidence. In this case, the Court may order the witness to provide the evidence to the
arbitral tribunal directly. But the Arbitral Tribunal do not have power to summon witnesses.
Therefore, the Arbitral tribunal or a party with the approval of the arbitral tribunal may
apply to the court for assistance in taking evidence.
Conclusion
The Arbitration and Reconciliation Act, 1996 plays a crucial role in promoting arbitration as
an effective means of resolving disputes in India. By providing a modern and robust legal
framework, it encourages parties to opt for arbitration and conciliation, offering them a
flexible and efficient alternative to traditional court litigation.

Salient features of the Act

India has always had a mediation regime in the core of many civil commercial legislations.
However, the Act institutionalizes the mediation regime in India.

What is “Mediation”?
Under the Act, Mediation is defined expansively to include any process where parties
request a third person (mediator) to assist them in reaching an amicable settlement and
includes (a) pre-litigation mediation; (b) online mediation; (c) community mediation; (d)
conciliation; or any other expression having a similar meaning.

Applicability of the Act

The Act only applies to mediations conducted in India, and
where all, or both, parties reside / are incorporated / have their place of business in India; or
the mediation agreement[2] provides for the disputes thereunder to be resolved by the Act;
or
where there is an international mediator; or
commercial disputes where the central / state government is a party; or
any other dispute notified subsequently.
The First Schedule sets out the list of disputes which are not fit for mediation:
These are disputes involving criminal prosecutions, land acquisitions or pertaining to minors,
deities and persons with intellectual disabilities.
Even disputes involving persons who are not parties to the mediation are not covered by the
Act.
Disputes in regulated subjects like competition, telecom, electricity, securities, environment,
and taxation.
Non-commercial disputes by or against the government (or their agencies).
This Act does not apply to Lok Adalat and Permanent Lok Adalat proceedings under the
Legal Services Authorities Act, 1987.

Mediator(s)
A mediator is a person who is appointed to undertake mediation – (a) by the parties or (b)
by a mediation service provider. This includes a person registered as a mediator with the
Mediation Council of India.
Qualification: Unless the agreement between the parties provides otherwise, a mediator
must be registered with the Mediation Council or be empanelled with (a) a court annexed
mediation centre; (b) an authority constituted under the Legal Services Authorities Act,
1987; or (c) a mediation service provider.
Appointment: Parties may appoint a mediator by – (a) reaching an agreement; or (b) making
an application to mediation service provider for appointment[3].
Termination: A mediation service provider may terminate the term of a mediator upon (a)
receipt of an application from either party; (b) receipt of information about the mediator’s
conflict of interest; or (c) the mediator’s withdrawal from the proceedings. If and when
terminated, the mediator may be replaced in the manner set out under the Act.
Admissibility and privilege against disclosure: Subject to just exceptions[4], no mediator (or
participant including experts and advisers) will at any time be permitted, or compelled to
disclose to any court, tribunal, or in any adjudicatory proceedings, any communication,
contents, conditions or any information of which they have been acquainted during the
mediation.

The Mediation Process & Procedure

Pre-litigation mediation
The process of undertaking mediation for settlement of disputes prior to the filing of a suit
or proceeding of civil or commercial nature[5] before a court or notified tribunal is as
mentioned briefly below:
Parties may voluntarily and with mutual consent take steps to settle the disputes by pre-
litigation mediation in accordance with the Act.
Jurisdiction: Unless agreed otherwise, mediation must be undertaken within the territorial
jurisdiction of the court or tribunal of competent jurisdiction to decide the subject matter of
dispute.
Timelines: The mediation process is required to be completed within 180 (one hundred
eighty) days from the date fixed for first appearance before the mediator, with a further 180
(one hundred eighty) days period extendable by the consent of parties.
Withdrawal or non-appearance: A party may withdraw from the mediation after the first 2
(two) sessions. In case the party fails to attend even the first 2 (two) mediation sessions,
costs may be imposed at the time of the subsequent litigation on the same subject matter.
Even if the parties fail to reach a settlement through pre-litigation mediation, the court or
tribunal may at any stage refer the parties to mediation if they request.
Costs: Unless otherwise agreed by the parties, all costs of mediation, including the fees of
the mediator and the charges of the mediation service provider will be borne equally by the
parties.
Confidentiality: A mediator, mediation service provider, the parties and participants in the
mediation will keep confidential matters relating to the mediation proceedings (list of these
matters are set out under Section 22(1)). No party can rely on or introduce as evidence any
information or communication.

Mediated settlement agreement (and its enforcement)

An agreement between some or all of the parties, settling some or all of the disputes
between such parties as a result of the mediation. The terms of a mediated settlement
agreement can extend beyond the terms of reference.
Form: The agreement must be in writing, signed by the parties and authenticated by the
mediator.
The mediated settlement agreement will be final and binding upon the parties.
Registration: The mediated settlement agreement must be registered with an authority
constituted under the Legal Services Authorities Act, 1987 within 180 (one hundred eighty)
days of the authenticated copy from the mediator.[6]
Enforcement: It will be enforceable in accordance with the provisions of Code of Civil
Procedure, 1908 as if it was a decree passed by a court.

Non-Settlement Report
In case there is no settlement between the parties under mediation, the mediator will
prepare a non-settlement report (without disclosing any details for the reasons thereof,
parties’ conduct, etc.) and submit the same to the parties, or the mediation service provider
(in case of institutional mediation).

Interim reliefs by courts pending pre-litigation mediation

The court or tribunal referring the parties to mediation may pass suitable interim order to
protect the interest of any party if deemed appropriate.

Challenge to a mediated settlement agreement

A mediated settlement agreement can be challenged by either party before the court or
tribunal of competent jurisdiction by filing an application within 90 (ninety) days[7] on the
grounds of – (a) fraud; (b) corruption; (c) impersonation; and (d) dispute not being fit for
mediation.

Statutory exclusion of certain period under limitation

The period of time from commencement of the mediation till, either (i) submission of non-
settlement report, or (ii) termination of mediation, will be excluded while computing
limitation while initiating proceedings relating to the same dispute.

Corresponding amendments to other legislations

Since the Act now applies to all civil and commercial disputes in India, naturally, the Act
incorporates corresponding amendments to existing statutes in this field, including the
Indian Contract Act, 1872, the Code of Civil Procedure, 1908, the Legal Services Authorities
Act, 1987, the Arbitration and Conciliation Act, 1996, the Micro, Small and Medium
Enterprises Development Act, 2006, the Companies Act, 2013, the Commercial Courts Act
2015 and the Consumer Protection Act, 2019.

The central government will establish the Mediation Council of India (“Council”) as per the
constitution prescribed under the Act. The Council has been constituted to register,
recognize and regulate mediation institutions and mediators in India. The Council is also
tasked to promote international and domestic mediation in India, facilitate and conduct
continuous training, education and certifications in mediation, and also maintain a
depository of mediation settlement agreements made in India.

The Salient features of the Legal Services Authority Act include12:

Promoting equal opportunity and justice for all citizens through various forms of legal
assistance.
Ensuring that no one is denied access to justice due to disability or economic reasons.
Educating the public about the law.
Offering free legal aid.
Establishing Lok Adalats.

######################## SIMULATION RESPONSE 1 #############################

### IN THE HON'BLE CIVIL COURT OF HYDERABAD

In the matter of:

Mr. Aravind Kumar (Petitioner)
Vs.
M/s. India Law House and Mr. Rakesh (Respondents)
Application under Section 9 of the Arbitration and Conciliation Act, 1996

MEMORIAL ON BEHALF OF THE PETITIONER:

### Summary of Facts

1. Background:
Mr. Aravind Kumar, a seasoned professor of law with nearly two decades of teaching
experience, entered into a Copyright Assignment Agreement with M/s. India Law House
(Publisher) on 2nd February 2020. The agreement pertained to the authorship of a book on
Constitutional Law, which Mr. Kumar completed in January 2021 and was published in April
2021. His book was widely acclaimed and sold nearly 10,000 copies by the end of 2021.

2. Dispute:
In January 2024, M/s. India Law House approached Mr. Rakesh, a guidebook author, to
revise Mr. Kumar’s original book by adding new case laws and decisions. Mr. Rakesh revised
the book and published a new edition in June 2024. Mr. Kumar objected to this revision,
asserting that it was a breach of the Copyright Assignment Agreement. He argued that his
moral rights were violated and filed an application under Section 9 of the Arbitration and
Conciliation Act, 1996, seeking an injunction against the publication of the revised edition.

3. Publisher’s Reply:
M/s. India Law House has raised several defenses, including:
a) Mr. Rakesh is not a party to the arbitration agreement.
b) Copyright issues, particularly those related to moral rights, are nonarbitrable.
c) The Copyright Assignment Agreement is insufficiently stamped, thereby invalidating the
arbitration clause.

### LEGAL ISSUES TO BE DETERMINED

1. Whether the S.9 application filed by Mr. Aravind Kumar is maintainable against Mr.
Rakesh, a third party not party to the Arbitration Agreement?

2. (A) Whether Copyright disputes are arbitrable?

(B) Whether issues involving moral rights of authors are capable of being decided through
arbitration?

3. Whether the question of arbitrability can be raised at the S.9 stage?

4. Whether the S.9 application is maintainable given that the Copyright Assignment
Agreement containing the arbitration clause is insufficiently stamped?

### ARGUMENTS ON BEHALF OF THE PETITIONER

#### I. Whether the S.9 Application is Maintainable against Mr. Rakesh, a Third Party?

Section 9 of the Arbitration and Conciliation Act empowers a party to seek interim reliefs
before the commencement of arbitration proceedings. In this case, Mr. Aravind Kumar is
seeking an interim injunction to prevent the publication of the revised edition of his book.

The arbitration clause in the Copyright Assignment Agreement specifies that any dispute
arising between the parties (Mr. Kumar and M/s. India Law House) shall be resolved through
arbitration. However, Mr. Rakesh is not a signatory to this agreement. While it is true that
Mr. Rakesh is not a direct party to the arbitration clause, the fact that he was involved in
revising the book pursuant to the Publisher's request makes him a necessary party to the
dispute.
Under Section 47 of the Arbitration and Conciliation Act, 1996, a third party who is not a
signatory to the agreement may be implicated in arbitration proceedings if they are found to
be a necessary or proper party to the dispute. Here, Mr. Rakesh’s involvement in the revision
of the book, at the Publisher’s request, creates a direct link to the arbitration matter. The
publisher’s action in revising the book and infringing upon Mr. Kumar’s moral rights by
involving a third party without consent is a core issue in this dispute.

In this case, the issue is not only a contractual dispute but one involving moral rights under
the Copyright Act, 1957, which Mr. Kumar contends has been violated by Mr. Rakesh's
revision of the book. Therefore, Mr. Rakesh can be joined in the arbitration proceedings as
his actions have directly impacted the legal rights of Mr. Kumar.

#### II. Whether Copyright Disputes are Arbitrable?

Section 2(1)(f) of the Arbitration and Conciliation Act defines the scope of arbitration,
permitting arbitration of disputes related to “commercial matters.” Copyright disputes,
including issues related to assignment and infringement, have been consistently held to be
arbitrable as long as they involve commercial contracts.

The Supreme Court has recognized that disputes involving intellectual property rights,
including copyright, can be arbitrated, especially when the dispute arises out of a contract
that contains an arbitration agreement. The Court has noted that the commercial nature of
copyright disputes makes them suitable for resolution through arbitration.

In the present case, the Copyright Assignment Agreement is a commercial contract between
Mr. Kumar and M/s. India Law House. The dispute regarding the revision of the book and the
alleged breach of the terms of the agreement can, therefore, be adjudicated through
arbitration.

#### III. Whether Issues Involving Moral Rights of Authors are Capable of Being Decided
through Arbitration?

Moral rights under Section 57 of the Copyright Act, 1957, are a special category of rights
that protect the personal and reputational interests of the author, even after the transfer of
copyright. These rights cannot be waived or assigned, and they include the right to object to
modifications that may prejudice the author’s honor or reputation.

The question of whether moral rights can be the subject of arbitration has been debated.
However, recent judgments indicate that moral rights, while nontransferable, can be subject
to adjudication in arbitration as long as the issue is connected to a contractual dispute.

In this case, Mr. Kumar claims that the revised edition of his book, prepared by Mr. Rakesh
at the Publisher’s behest, constitutes a distortion of his work and damages his reputation as
an author. While the moral rights are nontransferable, their protection still falls within the
scope of arbitration if there is a contractual relationship.
The Supreme Court has observed that moral rights disputes do not necessarily preclude
arbitration, especially when the arbitration agreement covers disputes arising out of a
contractual relationship, as in the present case.

#### IV. Whether the Question of Arbitrability can be Raised at the S.9 Stage?

Section 9 of the Arbitration and Conciliation Act allows for the grant of interim relief before
the commencement of arbitration proceedings. The question of arbitrability can be raised at
this stage, but it will be for the court to determine whether the dispute falls within the scope
of the arbitration agreement.

If the court determines that the dispute is arbitrable, it may proceed with granting interim
relief. If the court finds that the dispute is not arbitrable, it can dismiss the application under
Section 9.

#### V. Whether the S.9 Application is Maintainable Due to Insufficient Stamping of the
Agreement?

Stamping of the agreement is a critical issue. Under the Indian Stamp Act, an agreement
that is not sufficiently stamped is inadmissible in court and cannot be the basis for enforcing
the terms of the agreement.

However, Section 33 of the Indian Stamp Act provides that if an agreement is found to be
insufficiently stamped, the party can pay the required stamp duty and penalty, allowing the
agreement to be admitted into evidence. In this case, it is likely that the issue of insufficient
stamping can be cured by paying the requisite stamp duty.

The issue of insufficient stamping is a procedural matter and does not, in itself, render the
arbitration clause entirely invalid. Therefore, the application under Section 9 of the
Arbitration and Conciliation Act can still be maintained, subject to the payment of the stamp
duty.

### CONCLUSION

Based on the facts presented and the legal arguments outlined, it is respectfully prayed that
this Hon'ble Court:

1. Allow the application under Section 9 of the Arbitration and Conciliation Act, 1996, and
grant an interim injunction restraining M/s. India Law House from publishing any further
editions of the revised book and recalling all copies of the revised edition from the market.

2. Declare that Mr. Rakesh, despite not being a direct party to the arbitration agreement, is a
necessary party to the dispute, as his actions directly affect Mr. Kumar’s moral rights.
3. Reject the arguments of the respondent regarding the non-arbitrability of the dispute, as
the dispute arises out of a commercial contract and concerns copyright, which is arbitrable.

4. Allow the dispute to be adjudicated in arbitration, as the issues of moral rights, while
personal in nature, are not precluded from arbitration under the present circumstances.

5. Direct that the issue of insufficient stamping be addressed according to the provisions of
the Indian Stamp Act.

MEMORIAL SUBMITTED BY:

[Advocate Name]
For Mr. Aravind Kumar
Dated: [Date]

######################## SIMULATION RESPONSE 2 #############################

### Version 2: Written Memorial on Behalf of the Respondent (Mr. Ramgopal)

IN THE FAMILY COURT OF HYDERABAD

In the matter of:

Ms. Smitha (Petitioner)
Vs.
Mr. Ramgopal (Respondent)
Matrimonial Petition under Section 9 of the Hindu Marriage Act, 1955

### SUMMARY OF FACTS

1. Marriage and Background:

The respondent, Mr. Ramgopal, a 26yearold MCA graduate from Hyderabad, married Ms.
Smitha, a 25yearold Computer Science engineering graduate from Calcutta University, on
2nd March 2024. Despite cultural and linguistic differences, the marriage was solemnized
with mutual consent and familial approval.
2. Financial Setback and Job Loss:
In April 2023, due to the ongoing recession, the respondent lost his job at Vista Solutions,
where he was earning Rs. 8 Lakhs per annum. Despite his best efforts to secure new
employment, market conditions were unfavorable, and he remained unemployed for several
months. This created financial strain on the marriage, with the petitioner having to bear the
financial burden.

3. Separation and Personal Struggles:

In February 2024, the respondent and the petitioner began facing significant strain in their
relationship, primarily due to financial issues, emotional stress, and the pressure of
unemployment. The respondent, feeling mentally overwhelmed and needing space to
gather himself, moved out on 11th June 2024 to live with his bachelor friends in Kukatpally.

4. Efforts to Find Employment and Personal Space:

The respondent successfully secured a job as a data entry operator in a private degree
college in Kukatpally after three months of searching, earning a modest salary of Rs. 22,000
per month. While the petitioner has attempted to reconcile, the respondent believes that
the relationship requires more time and space to heal before he can return to the
matrimonial home.

5. Conciliation Process and Lack of Reconciliation:

The respondent acknowledges the petitioner’s distress and the importance of the marriage
but maintains that returning prematurely to the relationship could lead to further emotional
strain for both parties. Despite the conciliation efforts under Section 9 of the Family Courts
Act, 1984, there has been no progress in resolving their issues.

### LEGAL CONTENTIONS

1. Desertion vs. Need for Personal Space:

The respondent did not desert his wife willfully but sought temporary separation due to
significant emotional and mental strain. His need for space was not an act of abandonment
but a conscious effort to regain stability and improve his financial situation.

2. Right to Personal Time for Adjustment:

The respondent believes that after the financial setback and emotional distress, it was in
the best interest of both parties to have time apart to process their individual issues. He
does not dispute his marital obligations but seeks time to heal before resuming cohabitation.

3. Conciliation and Willingness to Reconcile:

While the petitioner claims that the respondent is unwilling to reconcile, the reality is that
the respondent is open to the possibility of reconciliation once both parties have resolved
their emotional and financial challenges. His return to the marital home is contingent upon
resolving these issues first.

4. Pregnancy and Emotional Stress:

While the respondent acknowledges the petitioner’s pregnancy, he believes that returning
to an emotionally charged situation without adequate time for personal healing could cause
more harm than good. The respondent is willing to work towards reconciliation but requires
patience from the petitioner.

### CONCLUSION

In view of the above, it is respectfully prayed that this Hon'ble Court:

1. Dismiss the petition for restitution of conjugal rights filed by the petitioner, as the
separation was based on valid

emotional and personal reasons and does not amount to desertion.

2. Grant the respondent time to work through personal and financial challenges, and allow
both parties time to reconsider reconciliation in a healthy, emotionally stable environment.

3. Pass any other relief that the Hon'ble Court deems appropriate in the interest of justice.

RESPONDENT’S ADVOCATE
[Advocate's Name]
Date: [Date]