Alternate Dispute Resolution Navin Merchant. Alternate Dispute Resolution What is Dispute… Dispute...
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Transcript of Alternate Dispute Resolution Navin Merchant. Alternate Dispute Resolution What is Dispute… Dispute...
Alternate Dispute ResolutionAlternate Dispute Resolution
What is Dispute…What is Dispute…
Dispute occurs when two or more people Dispute occurs when two or more people competecompete over over limitedlimited resources and/or resources and/or perceived perceived or actualor actual incompatible goals incompatible goals
How the dispute can be resolved…How the dispute can be resolved…
Formal / semiformal / informal waysFormal / semiformal / informal ways
Formal / semi- formal ways of resolving Formal / semi- formal ways of resolving disputes.disputes.
LitigationLitigation
Quasi judicial / AdjudicationQuasi judicial / Adjudication
ArbitrationArbitration
Ombudsman etc.Ombudsman etc.
Litigation; Formal ( sales tax)Litigation; Formal ( sales tax)
Civil ; suitsCivil ; suits Original stage; District Court / High CourtOriginal stage; District Court / High Court Appellate stages; DC, HC & SCAppellate stages; DC, HC & SC
Criminal; FIR Criminal; FIR Original stage; Sp Judge Original stage; Sp Judge Appeals; HC & SCAppeals; HC & SC
Constitutional; petitionConstitutional; petition Original stage; HC Original stage; HC
Appeals; SCAppeals; SC
Semi-formalSemi-formal
Quasi judicial / adjudicationQuasi judicial / adjudication SCN, Appeal to collector, Tribunal, SCN, Appeal to collector, Tribunal,
Ref to HC, Appeal to SCRef to HC, Appeal to SC
Arbitration; Arbitration Agreement / court’s Arbitration; Arbitration Agreement / court’s referencereference
voluntary, Simpler than litigation, informal, voluntary, Simpler than litigation, informal, binding with narrow scope of appealbinding with narrow scope of appeal
Ombudsman; complaint against mal-administration Ombudsman; complaint against mal-administration of revenue division / Tax employeesof revenue division / Tax employees
cheap, informal etccheap, informal etc Appeal to the President of PakistanAppeal to the President of Pakistan
Informal /alternate ways of dispute Informal /alternate ways of dispute resolutionresolution
Negotiation ( un-assisted)Negotiation ( un-assisted)
Mediation Mediation
ConciliationConciliation
facilitation etcfacilitation etc..
Why ADR works…..Why ADR works…..
It is cheap, effective, efficient and simpler It is cheap, effective, efficient and simpler
Decisions are not bindingDecisions are not binding
Traditional methods are expensive, time Traditional methods are expensive, time consuming, unpredictable, bound by strict rules consuming, unpredictable, bound by strict rules and procedures and bindingand procedures and binding
Assisted ADR techniques work because a third Assisted ADR techniques work because a third party can help to eliminate or to reduce the effect party can help to eliminate or to reduce the effect of some main obstacles to successful negotiationof some main obstacles to successful negotiation
Why Why NegotiateNegotiate
Negotiation is the best, cheapest, most economical Negotiation is the best, cheapest, most economical and most satisfactory way of resolving disputesand most satisfactory way of resolving disputes
Negotiation is usually possible whereNegotiation is usually possible where::
• The parties can identify and agree on what issues The parties can identify and agree on what issues are in disputeare in dispute
• The interests, goals and needs of the parties are The interests, goals and needs of the parties are not entirely incompatiblenot entirely incompatible
• The Parties need to co-operate to meet their goalsThe Parties need to co-operate to meet their goals
Why Negotiate contd…Why Negotiate contd…
• Reputation, cost, and uncertainty of an imposed Reputation, cost, and uncertainty of an imposed decision encourages parties for private decision encourages parties for private settlement settlement
• The Parties can influence each other to act in The Parties can influence each other to act in ways that provide mutual benefit or avoidance ways that provide mutual benefit or avoidance of harmof harm
• The Parties are affected by time constraintsThe Parties are affected by time constraints
• The Parties recognize that alternative The Parties recognize that alternative procedures are not as desirable as negotiation, procedures are not as desirable as negotiation, which allows them to determine the outcomewhich allows them to determine the outcome
Two recognized core strategies for Two recognized core strategies for negotiatingnegotiating
Positional bargainingPositional bargaining
Principled negotiationPrincipled negotiation
Positional BargainingPositional Bargaining
Each side takes its “best” (i.e. Most Each side takes its “best” (i.e. Most extreme) position on what it demands or extreme) position on what it demands or offersoffers
A period of justification follows, which A period of justification follows, which usually entrenches the first extreme usually entrenches the first extreme positionposition
Discussions take place where Parties Discussions take place where Parties haggle, threaten, bully, cry, or lie in an haggle, threaten, bully, cry, or lie in an effort to extract movement or effort to extract movement or agreement from the other sideagreement from the other side
Positional Bargaining contd….Positional Bargaining contd….
Concessions are exchangedConcessions are exchanged
Settlement is usually achieved Settlement is usually achieved somewhere in the middle of the somewhere in the middle of the bargaining range, depending partly on bargaining range, depending partly on the balance of power between the the balance of power between the Parties.Parties.
The tactics adopted to improve The tactics adopted to improve the results of positional the results of positional
bargainingbargaining Extending the bargaining range at one endExtending the bargaining range at one end
Mis-representing positions or interests by posturingMis-representing positions or interests by posturing
Withholding sensitive information such as any Withholding sensitive information such as any weakness in the caseweakness in the case
Making threats or engaging in bluffMaking threats or engaging in bluff
Digging in or walking out…..and waiting for Digging in or walking out…..and waiting for movement from the other partymovement from the other party
Never giving without gettingNever giving without getting
Conceding small and slowConceding small and slow
Principled NegotiationPrincipled Negotiation
Negotiating on the basis of principles, Negotiating on the basis of principles, not positionsnot positions
Encouraging problem-solvingEncouraging problem-solving
Using objective standards to support Using objective standards to support decision making decision making
Aiming for a wise outcome reached Aiming for a wise outcome reached efficientlyefficiently
Why negotiations failWhy negotiations fail
Poor negotiating skills of one or both Parties Poor negotiating skills of one or both Parties or their advisersor their advisers
Unrealistic expectationsUnrealistic expectations
Unrealistic assessment of interests, or Unrealistic assessment of interests, or alternatives, or of what the other side can do alternatives, or of what the other side can do
Emotional antagonism to the other Party, or Emotional antagonism to the other Party, or personality clashpersonality clash
Desire for revengeDesire for revenge
Why negotiations fail contd….Why negotiations fail contd….
Distrust of other Party or their adviser Distrust of other Party or their adviser
Failure to communicate interests or offersFailure to communicate interests or offers
Inability of the Parties to identify or solve a real Inability of the Parties to identify or solve a real problem problem
Wrong advisersWrong advisers
Failure to focus on the negotiations; Failure to focus on the negotiations;
Genuine disagreement in good faith about Genuine disagreement in good faith about facts, principles or rightsfacts, principles or rights
What is MediationWhat is Mediation
Mediation is a Mediation is a voluntaryvoluntary, , non-bindingnon-binding, private , private dispute resolutiondispute resolution process in which a process in which a neutral neutral
personperson helps the parties try to reach a helps the parties try to reach a negotiated negotiated
settlementsettlement. .
Amongst ADR techniques, Amongst ADR techniques, mediation has proved mediation has proved to be the most flexible, powerful and user to be the most flexible, powerful and user friendly approach.friendly approach.
Today ADR and Mediation are used interchangeablyToday ADR and Mediation are used interchangeably
Why mediation worksWhy mediation works
Mediation uses the best negotiation Mediation uses the best negotiation techniques to facilitate communication techniques to facilitate communication and achieve settlementand achieve settlement
Mediation assists negotiation, changing Mediation assists negotiation, changing its structure and dynamic to increase its structure and dynamic to increase dialoguedialogue
Mediation changes the focus of the Mediation changes the focus of the parties away from the events of the past parties away from the events of the past and towards the needs of the futureand towards the needs of the future
Why mediation worksWhy mediation works
Facilitates communication and separates Facilitates communication and separates the people from the problemthe people from the problem
Helps overcome deadlock and emotional Helps overcome deadlock and emotional blockagesblockages
Restores the negotiation processRestores the negotiation process
Identifies and focuses on the real issues Identifies and focuses on the real issues and needs of the Partiesand needs of the Parties
Why mediation works contd….Why mediation works contd….
Gets the right people and the right Gets the right people and the right information to the tableinformation to the table
Helps parties to reassess their caseHelps parties to reassess their case
Increases the options for resolutionIncreases the options for resolution
Keeps ownership of the problem and the Keeps ownership of the problem and the settlement with the Partiessettlement with the Parties
Restores and safeguards relationsRestores and safeguards relations..
ComparisonsComparisons
NegotiationNegotiation Mediation Mediation Litigation Litigation
VoluntaryVoluntary VoluntaryVoluntary InvoluntaryInvoluntary
If agreement, enforceable as contractIf agreement, enforceable as contract If agreement, enforceable as contractIf agreement, enforceable as contract Binding, subject to appealBinding, subject to appeal
No third-party facilitatorNo third-party facilitator Facilitator selected by parties, may Facilitator selected by parties, may have subject expertise, may be have subject expertise, may be facilitative, evaluative or a blendfacilitative, evaluative or a blend
Imposed, decision-maker have Imposed, decision-maker have subject expertisesubject expertise
InformalInformal InformalInformal Formal, rigid rulesFormal, rigid rules
Unbounded presentation of evidence, Unbounded presentation of evidence, arguments and interests, often arguments and interests, often focused on the pastfocused on the past
Unbounded presentation of evidence, Unbounded presentation of evidence, arguments and interests, focused on arguments and interests, focused on the future the future
Opportunity for each party to present Opportunity for each party to present proofs and arguments, proofs and arguments, Focused on past eventsFocused on past events
Outcome: mutually acceptable Outcome: mutually acceptable agreement soughtagreement sought
Out come: mutually acceptable Out come: mutually acceptable agreement soughtagreement sought
Outcome: imposed decision, Outcome: imposed decision, supported by reasoned opinion supported by reasoned opinion
PrivatePrivate PrivatePrivate PublicPublic
The Mediator’s roleThe Mediator’s role
The Mediator is a neutral third party who:The Mediator is a neutral third party who:
Manages the processManages the process
Builds trust and confidenceBuilds trust and confidence
Facilitates communicationFacilitates communication
Explores option for settlementExplores option for settlement
The Mediator’s role contd….The Mediator’s role contd….
Focuses on interest not rights, needs not Focuses on interest not rights, needs not wantswants
Focuses on the futureFocuses on the future
Is an explorer not a transmitterIs an explorer not a transmitter
Is a neutral diplomatIs a neutral diplomat
Keeps on going until the deal is sealedKeeps on going until the deal is sealed
An Overview of mediation:An Overview of mediation:
A voluntary private processA voluntary private process
Assisted negotiationAssisted negotiation
Flexible framework of joint and private Flexible framework of joint and private (caucus) meetings(caucus) meetings
Sales Tax S. 47-A…ADRSales Tax S. 47-A…ADR (salient features)(salient features)
On application by an aggrieved person CBR may On application by an aggrieved person CBR may constitute a committee comprising of ST officer, constitute a committee comprising of ST officer, chartered or cost accountants, advocates, chartered or cost accountants, advocates, representatives of trade bodies etc.representatives of trade bodies etc.
The Committee shall examine the issue, conduct inquiry, seek expert opinion etc and make recommendations to CBR in respect of the resolution
The Board may, on the recommendation of the committee, pass such order, as it may deem appropriate
Sales Tax S. 47-A…ADRSales Tax S. 47-A…ADR(salient features)(salient features)
The liability of tax against the registered person, The liability of tax against the registered person, or admissibility of refunds, as the case may be;or admissibility of refunds, as the case may be;
The extent of waiver of additional tax and The extent of waiver of additional tax and
penalty;penalty;
The quantum of input tax admissible in terms of The quantum of input tax admissible in terms of
sub-section (3) of Section 7;sub-section (3) of Section 7;
Sales Tax S. 47-A…ADRSales Tax S. 47-A…ADR
Relaxation of any procedural or technical Relaxation of any procedural or technical irregularities and condonation of any prescribed irregularities and condonation of any prescribed time limitation; andtime limitation; and
any other specific relief required to resolve the any other specific relief required to resolve the disputedispute
Sales Tax S. 47-A…ADRSales Tax S. 47-A…ADR
All the decisions, orders and judgments shall be All the decisions, orders and judgments shall be modified to the extent of the board’s ordersmodified to the extent of the board’s orders
If the matter is subjudice, the agreement of If the matter is subjudice, the agreement of resolution to be placed before the forum for resolution to be placed before the forum for consideration and ordersconsideration and orders
No appeals….No appeals….