'Med Arb': A Novel ADR Approach

Abstract

Dissatisfaction with court-centred resolution of disputes has long been articulated by critics who regard it as, amongst other things, unfair, unduly formal, and exclusive. There are five traditional methods of disputes resolution in the ADR arena, these are: negotiation, mediation, arbitration, conciliation and judicial settlement. In India, so far as ADR processes are concerned Section 89 of the Code of Civil Procedure, 1908 holds the field. Section 89 of the Code of Civil Procedure, 1908, speaks of the following methods of resolution of disputes: arbitration, conciliation, judicial settlement (including settlement through Lok-Adalat) and mediation. Observations made by the Law Commission of India in its 246th Report, testifies the fact that the Arbitration and Conciliation Act, 1996 has achieved much less than what was expected of it. Lately, substantial amendments were brought to the 1996 Act by virtue of the Arbitration and Conciliation (Amendment) Act, 2015. The 2015 Act attempts to make the arbitration mechanism more transparent and time-effective; however the 2015 Act neither touches upon Part III (i.e. Conciliation) of the 1996 Act, nor does it suggests incorporation of specific provisions pertaining to mediation.Med-Arb is a hybrid of mediation and arbitration and can be used where mediated negotiations do not lead to a settlement. In those circumstances the parties can agree for the mediator to become an arbitrator and issue a final and binding award on the outstanding matter(s). Thus, a critical pre-requisite to a Med-Arb is an advance agreement under which the parties agree to arbitrate any of the issues which cannot be mediated successfully. Sam Kagel was the first to coin this alternate dispute resolution mechanism; it was he who first hybridized the two-methods (mediation and arbitration) into one (Med-Arb) for settling a controversial San Francisco nurses’ strike in the 1970s. Following are the different versions of the Med-Arb Model: Med-Arb (Pure); Med-Arb-Opt-Out; Overlapping Med-Arb; Plenary Med-Arb; Braided Med-Arb; and Optional Withdrawal Med-Arb.Med-Arb, as a novel ADR approach has much to offer, with benefits superseding the cost factor involved. It’s high time we take inspiration from the New South Wales Model, and incorporate this ADR method in our statutory framework in India.