Unit 4: Alternative Dispute Resolutions — Arbitration and Its Procedures; Mediation and Its Procedures
1. The ADR Landscape
ADR — the court-alternative resolution family: arbitration (the private adjudication), mediation (the facilitated negotiation), conciliation (the mediation’s diplomatic cousin), negotiation (the parties’ direct settlement); the hybrid-and-annexed forms (the med-arb; the court-annexed mediation; the ODR — Unit 5). The why: the courts’ cost-and-delay (the docket mathematics — the backlog’s institutional reality); the party-autonomy (Contract-I’s freedom, this semester); the expertise (the technical disputes’ specialists); the confidentiality (the commercial-and-family privacy); the relations’ preservation (the continuing-parties’ interest — the traders, the families, the communities).
2. Arbitration and Its Procedures
- The concept: the parties’ agreed private tribunal — the dispute’s submission by the arbitration clause (the future-disputes agreement) or the submission agreement (the existing dispute); the award = the binding decision (the court-decree’s enforceable force);
- The Nepali statute: the Arbitration Act 2055 (1999), as amended — the modernized framework: the party-autonomy’s breadth (the arbitrator’s choice, the procedure’s choice, the seat-and-language); the court’s minimal-intervention policy (the stay-of-suit on the arbitration clause; the appointment’s assistance where the mechanism fails; the interim measures’ support);
- The procedure (the Act’s map): (i) the notice-and-claim’s initiation; (ii) the arbitrators’ appointment (the sole-or-panel; the challenge-and-replacement); (iii) the pleadings-and-hearing (the parties’ proofs; the natural-justice floor — Unit 2’s principles applied to the private tribunal); (iv) the award (the reasoned decision; the timeline discipline; the majority rule); (v) the challenge-and-setting-aside (the narrow grounds: the jurisdiction’s excess, the natural-justice violations, the public-policy conflict — the fraud-and-corruption bars); (vi) the recognition-and-enforcement (the decree-like execution; the refusing grounds mirrored);
- The international face:
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