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Hybrid ADR

With the passage of time , there have been a tremendous increase in the number of cases that came up before the judiciary .And such a saddled situation lead to delay and often deny of justice , breach of social peace and trust in judiciary , basically it created a vandalistic effect on society . Thus , incorporation of ADR mechanism to Indian legal system was a great relief for Judiciary and such other legal bodies . As an extension , Hybrid Dispute Resolution System is also put into practice .A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one. The prominent and most frequented adopted Hybrid ADR mechanism are Special Master, Mediation-Arbitration , Arbitration- Mediation , Conciliation – Arbitration and such other interesting permutations are also available . This paper discusses about various hybrid ADR techniques , the relevancy of Hybrid Resolution mechanism in India and abroad , its relative efficiency ,its advantages and disadvantages over other ADR mechanism etc.

Hybrid ADR

The word Hybrid signifiesa thing composed of incongruous elements , or the offspring oftwo different species or varieties . Hybrid ADR is a branch of ADR , in which two stand alone dispute resolution methods are combined to arrive at a specific resolution or decision . other hybrid processes are generally used where parties believe a given dispute is likely to require elements of two or more processes, or where they believe that an individual or forum is available who has the skills necessary to enact more than one process, with a consequent saving of time and expense.

Let usnow have a look at different types of Hybrid ADR mechanisms.

Mediation - Arbitration

This is a combination of mediation and arbitration that begins with a standard mediation . In the event that parties are unable to reach an agreement on all the outstanding issues , the remaining issues will be resorted to arbitration . Arbitration proceeds after the parties have executed a mediation settlement resolving as any issues as possible. This process allows for additional discovery. Further , knowing that unresolved issues in the dispute will proceed to arbitration can increase parties incentive to collaborate on a solution during mediation phase .
Sam Kagelwas 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.

Different forms of Med-Arb Mechanism

Overlapping Med-Arb:
This Med-Arb variant involves use of separate neutrals, each responsible for one phase of the process. Arbitrator in this Med-Arb method attends the mediation as observer during plenary exchanges, where only the mediator engages privately with the parties. The arbitrator although witnesses joint exchanges and reviews shared documents throughout the mediation phase, but without access to private communication. If dispute gets settled vide mediation then the agreement is drawn and the arbitration phase is abandoned. If the parties don’t reach an amicable resolution then, the mediator steps out and the arbitrator, already familiar with much of the dispute, takes the charge. The only drawback qua this method of ADR is that, the mediation takes place under the attentive eye of the arbitrator, thus the mediating parties tend to act vigilantly, not indulging themselves with private/confidential exchange of information with the mediator, out of the fear of award contamination.

Plenary Med-Arb:
This Med-Arb variant involves engagement of a single neutral following the accepted Med-Arb procedures, with prohibition on the neutral to engage in private communication with any party; thus, the neutral is to rely exclusively on plenary/formal communication and document exchange. This format of disallowingex partecommunications effectively eliminates the concerns of award contamination. The major drawback qua this method of ADR is that, it adversely strikes at the very root of the mediation jurisprudence, which ideates that, candid and honest private communication with the mediator is essential for successful mediation.

Braided Med-Arb:
This Med-Arb variant involves use of a single neutral following the accepted mediation and arbitration procedures, with the additional elbow-room for interrupting the arbitration phase with subsequent mediation efforts, asking or allowing parties to pursue voluntary agreement. In Braided Med-Arb, parties are allowed to mediate their dispute throughout the arbitration phase. The only drawback qua this method of ADR is the perceived ‘settlement pressure’ that the parties might face from the neutral.

Optional Withdrawal Med-Arb:
This Med-Arb variant involves use of a single neutral with the disputing parties having the autonomy to withdraw themselves from the dispute resolution process post the mediation phase. The allowance of an opt-out provision protects the notion of voluntary participation of the disputing parties. However, this Optional Withdrawal Med-Arb undermines the practical benefit that Med-Arb provides, that is, finality qua the resolution of disputes between the parties.

Arbitration-Mediation
This is the converse of Med- Arb . It starts will an Arbitration , whereby the arbitrator will pass an arbitral award , which is kept sealed and later proceeds with mediation .If the mediation is successful, the settlement agreement between the parties governs the resolution of the dispute and the arbitral award is never unsealed. However, if mediation fails to settle all issues, the arbitral award will be disclosed to deliver it to the parties to resolve the dispute.

The parties decide who will serve as mediator and as arbitrator. The arbitrator likely already knows the issues, having been present for the mediation, which saves both time and money. The med/arb process is informal, quick, and cost effective. A mediator with decision-making authority reduces bravado by either side.In Arb-Med the parties might take the mediator’s suggestions as providing a glimpse of the already sealed award, and may thus be helpful in enabling them to reach agreement.

Arb-Med has been proposed for use in the United States in the airline industry, where Med-Arb led to the average negotiation period to renew a standard airline contract taking more than a year. To negotiate an initial contract took over 2½ years. It was suggested that Arb-Med would remedy this situation because there would be a rapid arbitration with a final and binding decision, to be followed by mediation during a finite time period, which may be shortened if the arbitrator serves as the mediator

Advantages of MED-ARB AND ARB-MED

·Cost Effective
·Relatively speedy
·Ensures certainty that dispute will be resolved
·The parties are at liberty to put a time limit on that in their Med-Arb or Arb-Med agreement. If they use only mediation, they run the risk of not settling all the issues in dispute. If they use only arbitration, they know that all the issues will be resolved but they deprive themselves of the creative options their own negotiated settlement agreement might provide.
·In the mediation phase of these hybrids, any “suggestions” by the mediator may carry more weight than in mediation alone: in Med-Arb the mediator will have the final say as arbitrator if the dispute is unresolved and in Arb-Med the parties might take the mediator’s suggestions as providing a glimpse of the already sealed award, and may thus be helpful in enabling them to reach agreement.

·One study reported in 2002 in the Journal of Applied Psychology examined the impact of Med-Arb and Arb-Med on various dispute outcomes involving three disputant structures (individual v. individual, individual v. team, and team v. team). The authors found that disputants in the Arb-Med procedure settled in the mediation phase more frequently and achieved settlements of higher joint benefit than did disputants in the Med-Arb procedure. They concludedthat Arb-Med may have broader applicability than originally imagined .

Arbitration-Mediation –Arbitration (AMA)

AMA is a hybrid mechanism that combines arbitration and mediation , similar to Med-Arb . The claimant initiates arbitration and files a notice of arbitration and he respondent files a response. And then tribunal is constituted but immediately stays the proceedings. The parties attempt to settle their disputes by way of mediation. If the mediation is successful, the tribunal enters a consent award. If the mediation is not successful, the parties are referred back to arbitration.

Mini Trials

A private mini-trial (also known as an executive settlement conference) is a settlement technique used outside the court system, and typically involves two levels of non-binding evaluation. The first evaluation is conducted by a panel of senior business executives. These executives have authority to settle, but they are not involved in the problem or the litigation strategy. They hear a condensed presentation of essential evidence and argument by the opposing lawyers, and then evaluate the relative strengths and weaknesses of each side’s position. This panel of executives is perceived as being detached from the controversy of the case and less subject to influence, and therefore more able to fashion settlement options beyond the payment of money. The second evaluation is conducted by a neutral third party. This individual listens to the condensed presentation of the case with senior executives, and then provides a non-binding opinion of the case, if asked, or will act as a mediator or facilitator for the negotiation phase. A mini-trial is an off-the-record process that results in a non-binding opinion of what would be a likely outcome at trial. Any judge that officiates at a mini-trial will not be assigned the case should it go to trial. This process is voluntary, and in Alberta it is consensual. Mini-trials are usually reserved for complex cases with high dollar amounts at stake. They are viewed as an expedited resolution benefiting from the input of an expert, which in turn reduces costs. Mini-trials are also thought to improve relationships between the parties.

Even where the mini-trial does not produce a settlement, the process is itself seen as a significant step toward later negotiation. Since the disclosure of facts may clarify the claim’s loss potential for the company, the confidential aspect of the mini-trail and its structured environment allows the parties greater control over whether to disclose sensitive information. Another significant advantage is that mini-trials are non-binding, as opposed to arbitration where the parties relinquish their right to later litigation. Yet another advantage is that mini-trials take only one or two days to complete, whereas arbitration can take much longer.

Complete Online Dispute Resolution (C-ODR)

A disruptive innovation in the ADR and legal areas that allows for accurate, efficient and affordable dispute resolution services process completely via the Cloud. This waspioneered by Arbitration Resolution Services.

Fact Finding
As the name implies, a neutral is asked to find the facts in a tightly defined area. In theory, once the facts are determined, the parties will then work out a settlement. For example, a fact-finder might be brought in by the parties to issue a report on an allegation of sexual harassment. Usual, the fact-finder’s report is not binding and may or may not be admissible in subsequent adjudication

Conclusion
In the recent years there has been a climatic change in the justice delivering system in India . Though judiciary or the process of litigation remains to be efficient , trustworthy and the most resorted means to secure justice or settle disputes , in the past few decades there was a re-emergence of certain pre-existed dispute resolution mechanisms which further enhanced the glory of Indian legal system . Thus it doubtlessly concluded that , hybrid resolution mechanisms and other existing ADR modes are great assets of legal system , that have served great relief on pressure that mounts up on judiciary .

Bibliography

# Shivam Goel , Med-Arb : A Novel ADR Approach ,https://tilakmarg.com/opinion/med-arb-a-novel-adr-approach/
# Alan L. Limbury, Hybrid Dispute Resolution Processes – Getting the Best while Avoiding the Worst of Both Worlds?https://www.cedr.com/about_usarbitration_commission/Hybrids
# Christopher Honeyman , Hybrid Processes,https://www.beyondintractability.org/essay/ hybrid- roles
# Nandidni Gore , The Viewpoint : Med- Arb and Arb – Med – The way Ahead,https://barandbench.com/viewpoint-med-arb-way-ahead/
# George Friedman, A new Form of ADR , A brief Overview https:// www. arbresolutions .com/1st-day-christmaschanukahkwanzaa-true-love-gave-mea-new-form-adr/
# Backer McKenzie ,Arb-Med-Arb: what is it and how can it help the parties to solve their disputes efficiently?, https://www.lexology.com/library/detail.aspx?g=ffa5d715-f4b4-4cc0-af45-b3a7dc6a0789

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