Appointment of Arbritrators       

Mediation & Concilation

Circular-HC Mumbai  

Circular-HC Aurangabad                      

Circular-City Civil Court,Mumbai           

District Court, Akola.     

1.  Introduction.

Concilation mediation and arbitration are the virtue of human society and it is for the Legal Service Authorities to explore and harness these virtues.  Alternative Disputes Resolution (ADR) is seen by some as having its origins in grass roots movements designed to empower ordinary people to resolve their own disputes.Whatever its origins, ADR is being adopted by Government and Courts, as a promising way to reduce costs and delay in formal justice system. The development of ADR in recent years has been extensive; the use of alternatives connected to courts and tribunals is growing rapidly.  These developments have been fuelled by limited resources, increased workloads, the great length and costs of some trials and the presence of an element in the list of cases which could better be resolved by ADR.

 2.  Arbitration, Mediation and Conciliation.

Negotiation is defined in the Oxford Dictonary as “ to confer ( with another ) with a view to agreement”. Many parties are able to resolved their disputes through direct negotiation with each other. Assisted negotiation occurs when the parteis are assisted in their negotions by a third party of parties.  Lawyers, trusted friends or other technical or professional advisers are all called upon to fulfil this role. Mediation is the process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatiave and aim to reach a consensual agreement that will accommodate their needs. Consiliation is a consensus based dispute resolution process in which the parties to a dispute meet with a conciliator to discuss mutually acceptable options for resolution of the dispute. The conciliator has some input into the resolution of the dispute reached by the parties in the sense that the conciliator encourages the parties to consider options for settlement which are fair in all the circumstances, including the precedents for resolution of similar complaints within the formal justice system.  The range of remedies available in conciliation is not limited to the level remedies which may be available through court or tribunal. However, a solution which stands outside the norm and which involves significant compromise of legal rights may not be acceptable to the conciliator, who may recommend to the parties that the matter proceed to a hearing. 

RULES 

Appendix 15. 

Rules framed by High Court under section 82 of the Arbitration and Conciliation Act,1996. 

Appendix 15 (1) 

Bombay High Court (as applicable to Subordinate Courts) 

As applicable to Subordinate Courts Rules framed by the High Court under section

82 of the Arbitration and Conciliation Act,1996. 

328A.(1) Entitling of application, affidavit and proceeding – (a)  Save as hereinafter provided all applications, affidavits and proceedings under this Act shall be entitled “  In the matter of Arbitration and Conciliation Act, 1996 and in the matter of arbitration ( state the proceedings and its number) under section – for .. 

Note :  All the application under section 8(1), 9,11(4) (5) (6), 14(2), 27, 34 and 36 shall be titled as   above by indicating relevant section and purpose as follows in the above title:- 

Under Section 8(1), 45 and 54 for reference to arbitration. 

Under Section 9 for interim measure (e.g.Appointment of a guardian,) 

Under Section 11(4)(5)(6) for appointment of an arbitrator. 

Under Section 14(2) for termination of the mandate of an arbitrator. 

Under Section 27 for court assistance in taking evidence. 

Under Section 34 for setting aside arbitral award. 

Under Section 36 for enforcement of arbitral award. 

(b)  An appeal under section 37, 50 and 59 shall be entitled “ In the matter of the Arbitration and Conciliation Act, 1996 and in the matter of Arbitration ( state the section under which and the nature of impugned order e.g. Order under section 34 setting aside arbitral award.)â€� 

(2)   Mode of application. 

All applications under the Act shall be made only to the proper court and all applications shall be made by petitions and shall be presented in the same manner as plants or other applications to the clerk of the Court or to such other officer as the court appoints in that behalf who shall cause them to be registered and take such order as are necessary from the Presiding Judge. 

(3)  Contents of Petition. 

Every petition shall be divided into paragraphs numbered consecutively and shall contain a statement of facts relied on, and the nature of the relief asked for and shall cleraly specify the persons liable to be affected hereby.  A certified copy of the arbitration agreement or the award relating to the petition, if any, whenever recessary, shall be annexed thereto.  The date of the order- appointing arbitrator shall be mentioned in the application wherever applicable. 

(4)  Notice of application to person affected by award 

Upon any application by peition under the Act, the Judge shall direct notice thereof to be given to all persons mentioned in the petition and to such other persons as may seem him to be likely to be affected by the proceedingss requiring all or any of such persons to show cause, within the time specified in the notice, why the relief sought in the petition should not be granted. 

(5)  Court fees and proces fees. 

The Court fees and process fees chargeable for all petitions shall be in accordance with the Court Fees Act and the rules for the levy of process fees in force for the time being. 

(6)  Forms 

The forms mentioned in these are the forms at pages 98 to 100 shall be used with such variation as the circumstances of each case may require. 

(7)  Appointing Judge as arbitrators. 

The system of appinting Judge as arbitrators though legal and convenient is open to objection.A party may sometims be compelled against his wishes to agre to such an arbitration and it may be difficult for a litigant to raise objections successfully to an award on the ground of erroneous procedure or technical misconduct of the arbitrator before the Court when the Presiding Officer was himself the arbitrator. Further, it is undersirable that Judge who have given awards as arbitrators should be subject to reckless personal charges at the instance of suitors disappointed by an award.  The practice, therefore, of presiding Judges acting as arbitrators is underirable. 

(8)  Cost of copiees

Copies of pleading and issues in cases of suits referred to arbitration should be prepared at the cost of parties. 

(9)  Service of order appointing arbitrator 

An order appointing arbitrator/s should be served on arbitrators whether they are present in the Court or not and even when they are present in court and express their willingness to act as such.  In all these  cases, proces fee should be charge for serving an order on arbitrators. Where, however, a party is permitted to serve the copy of order of reference on the arbitrator, half the usual process fee should be charged. 

Note :  (1)  Proceeding filed under the repealed Act and pending before the subordinate courts shall be   governmed by the existing rules, i.e. Clauses 324 to 328 of Civil Manual. 

The proceedings instituted under the Arbitration and Conciliation Act, 1996 shall be governed  by the newly framed rules, i.e. Clauses 328-A of Civil Manual. 

(2)  Conciliation proceedings shall be governed by the rules to be framed by the High Court of Judicature at Bombay, separately.

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