How arbitration is different from mediation
Mediation and arbitration are similar because they are both conducted by an individual who is a neutral person and who is specialized in that area of dispute and falls under alternative dispute resolution and/or online dispute resolution in India. Mediation, however, is used in an attempt by the parties to settle the dispute between them. Unlike arbitrators, mediators or online mediators do not conduct hearing but rather use diplomacy to help the parties to get closer to resolution. The mediator typically does not write a decision (award). The process is often used prior to arbitration.
How parties find an arbitrator or online arbitrator
There are many organizations that provide arbitration services who appoint arbitrator based on the subject matter of the dispute. While choosing the arbitrator or the online arbitrator, the parties must ensure that arbitrator has experience in the specific domain of dispute and has knowledge and ability to conduct the proceedings in accordance with the applicable law.
How arbitration is used in Business
Arbitration is used in India for many different types of commercial disputes. The laws surrounding the disagreement or the dispute may differ but the procedure is similar under online dispute resolution in India. Hence, it is important to select a neutral arbitrator who is an expert in the field. For example, if the matter involves a claim of intellectual property, the arbitrator should have experience in arbitrating or practicing in specific domain of dispute such as patent, trademark, copyright or such other specific domain. If the dispute is about sale of building, the arbitrator or the online arbitrator should have experience in real estate law. If the dispute is about intellectual property or consumer dispute or any other subject, the arbitrator or the online arbitrator should have experience in that specific domain of dispute to provide effective, acceptable and a meritorious decision on the matter
Procedure for Online Arbitration in India
Arbitration is typically an agreement to a contract. For instance, an employee and employer could agree in a contract to use arbitration or online arbitration as a way to resolve an employment dispute such as wrongful discharge, discrimination etc. The procedure to be followed by the parties may be included in the arbitration clause of the contract or by way of a separate document.
- Based on the arbitration clause of the contract or the arbitration agreement, the aggrieved party initiates the contract by filing a request for alternative dispute resolution and/or online dispute resolution.
- Based on the nature of dispute and the parties involved, the arbitrator or online arbitrator is selected mutually by the parties along with the place of arbitration and the applicable law to be applied.
- Parties subsequently meet the arbitrator or online arbitrator to understand the procedure and the list of evidences of each claim and witnesses, if any that may relevant to the arbitration so that there are no surprises at the time of dispute resolution in India.
- Arbitration hearing will then be conducted at the fixed time and place following the rules and the procedurelaid for conducting arbitration.
- Based on the evidences and testimony placed on record during the arbitration proceedings, the arbitratorpasses a decision (award). The decision will be based on the contract entered into between the parties and the applicable law. The decision of the arbitrator shall be final and binding on the parties.
Online Arbitration Hearing
The hearing is conducted by the arbitrator and/or online arbitrator. The arbitrator decides which parties begins first. The hearing is similar to a matter before a court and only difference being informal. The rules of evidence are not strictly applied in the arbitration proceedings.
- The arbitrator or online arbitrator would call a meeting and explain the purpose of the meeting. The arbitrator would ask each party to give an opening statement to briefly explain the case.
- The claims and counter-claims along with the evidences, their reliability, their applicability and their effect would be analyzed by the arbitrator.
- Both the parties would be allowed to present their witnesses who shall be examined and cross examined by the parties.
- After examining all the evidences and the witnesses, the parties would be asked to give a closing statement and/or file a brief written statement (arguments) with the arbitrator within a specific period.