ALTERNATE DISPUTE RESOLUTION SYSTEM: A PRUDENT

MECHANISM OF SPEEDY REDRESS IN INDIA1

KD Raju

ABSTRACT
Alternate dispute resolution is becoming more and more popular in India in the present
day context. The backlog of cases is alarmingly increasing and disposal of disputes
expeditiously are a must for the maintenance of rule of law in the largest democracy in the
world. The economic liberalisation in 1991 made more burdens on the courts. The present
paper discusses the use of ADR as a tool to reduce the backlog of cases in India through
Arbitration, Mediation and Conciliation. Lok Adalats, Gram Nyayalayas and Nyaya
Panchayats are the contribution of India to the jurisprudence of ADR. The new Nyaya
Panchayat Bill, 2006 and Gram Nyayalayas Bill, 2007 are examined closely. This paper
argues that the concept of ADR should be “Indianised” to adapt to the local conditions. In
order to counter the opposition from the lawyer community, the law schools should
include curriculum to train the law students for amicable settlement of the disputes rather
than the present system of promoting litigation.

Introduction
The philosophy of Alternate Dispute Resolution systems is well-stated by Abraham Lincoln:

"discourage litigation, persuade your neighbours to compromise whenever you can. Point-
out to them how the normal winner is often a loser in fees, expenses, cost and time."

Justice delayed is justice denied…….

When we look into the pending cases in the Supreme Court of India, it is 43,580 at the end
of July 2007. This was 1,50,000 in 1990. More than 40 Lakh cases are pending in High Courts
up to 31st January, 2007. In the lower courts it is 2.5 crores! There are almost a 2.5 Lakh
under-trials languishing in jails across the country. It has been found that over a quarter of
all pending high court cases are at Allahabad. The Allahabad High Court had some 10.09
Lakh pending cases, with over eight out of every 10 cases being civil cases at the end of
2006.
Madras High Court (4,06,958 pending cases) and Bombay High Court (3,62,949) were the
others with a large number of pending cases. Sikkim is the lowest with just 51 pending
cases. In subordinate courts, Uttar Pradesh again topped the number of pending cases (4.6
million), followed by Maharashtra (4.1 million), Gujarat (3.9 million), West Bengal (1.9

1
Paper presented in a one day seminar organised by the USEFI at the Dhenkanal Law College, Orissa on
15 December 2007.

Electronic copy available at: http://ssrn.com/abstract=1080602

million), Bihar (1.2 million), Karnataka (1.06 million), Rajasthan (1.05 million), Orissa (10
Lakh), Andhra Pradesh (9,00,000).

Settlement of disputes by arbitration has been practised in India since time immemorial and
historical legal literature tells us of the ancient system of arbitration for resolving disputes
concerning the family or a social group or in the realm of trade. The Indian Constitution also
stipulates settlement of international disputes by arbitration as a Directive Principle of State
Policy [(Article 51(d)]. The emergence of alternative dispute resolution has been one of the
most significant movements as a part of conflict management and judicial reform, and it has
become a global necessity. Lawyers, law students, law-makers and law interpreters have
started viewing disputes resolution in a different and divergent environmental light and
with many more alternatives to the litigation. While ADR is, now, envisioned and ingrained
in the conscience of the Bench and the Bar and is an integral segment of modern practice.

The common man has started looking upon legal system as a foe and not as a friend. For
him, law is always taking something away. When we go to court, we know that we are going
to win all or lose all. Whereas, when we go to any method of ADR or for informal settlement
with different expectations, we know that we may not get all that we want, but we will not
lose everything. In India, arbitration and domestic or in-house tribunals are alternatives to
formal courts. However, tribunalisation of justice has yet not, successfully, clicked to prove
its true mettle. Many a times, experience has shown that the tribunals often end up as dead
cycles of litigative voyage in the courts and resultant lengthening of the life of dispute
resolution process.

ADR (Alternative Dispute Resolution).

What you mean by ADR?

ADR = Alternate Dispute Resolution, Additional Dispute Resolution or Appropriate Dispute

Resolution.

Litigation does not always lead to a satisfactory result. It is expensive in terms of time and
money. A case won or lost in a court of law does not change the mindset of the litigants who
continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute
Resolution systems enable the change in mental approach of the parties.

When we look into the channels of dispute resolution there are litigation, Arbitration,
conciliation, court directed or assisted Lok Adalats and mediation.

As such, ADR has been, a vital, and vociferous, vocal and vibrant part of our historical past.
Undoubtedly, Lok Adalat (Peoples' Court) concept and philosophy is an innovative Indian

Electronic copy available at: http://ssrn.com/abstract=1080602

contribution to the world jurisprudence. It has very deep and long roots not only in the
recorded history but even in pre-historical era. It has been proved to be a very effective
alternative to litigation. Lok Adalat is one of the fine and familiar for which has been playing
an important role in settlement of disputes. The system has received laurels from the
parties involved in particular and the public and the legal functionaries, in general. It also
helps in emergence of jurisprudence of peace in the larger interest of justice and wider
sections of society.

In this respect, traditional system of justice is not enough for the larger societal interest and
for the people committed to peace and inquisitive of expeditious, inexpensive and less
complex settlement of their disputes. Therefore, even the sacred texts of the major religions
and also reflections of words of great philosophers and thinkers are pertinent and evident.

Aristotle in Rhetoric and on Poetics said, "Arbitration was introduced to give equity its due
weight". Cicero has also said that for a larger assessment of fairness processual justice many
times would march over the substantive justice. He has also advocated the process of
arbitration. Blackstone in his famous Commentaries on the Law of English has observed
about the strict justice and formal rules on process and the requirement of adopting
principles of process to deal with equities which matter in the controversy.

George Washington, the first President of the United States, borrowing from his experience
as an arbitrator of private disputes in the 1770s, crafted it into his last will and testament:

"I hope and trust, that no disputes will arise concerning them; but if, contrary to
expectations, of the usual technical terms, or because too much or too little has been said
on any of the devices to be consonant with law, my will and direction expressly is, that all
disputes (if unhappily any should arise) shall be decided by three impartial and intelligent
men, known for their probity and understanding; two to be chosen by the disputants - each
having a choice of one - and the third by those two. Which three men thus chosen, shall,
unfettered by law, or legal constructions, declare their sense of the testators' intention; and
such decision is, to all intents and purposes to be as binding on the parties as if it had been
given in the Supreme Court of the United States."

In California, where the systems of mediation, conciliation and pre-trial settlement have
been introduced only two decades ago, it has been found that 94% of cases are referred for
settlement through one or the other of the ADR systems and 46% of such cases are settled
without contest. The result is that California has been able to achieve the goal of final
decision of civil cases within a period of less than 2 years from the date of institution. The
mediators and conciliators shall have to be trained so as to acquire professional expertise in
the art of mediation and conciliation in India.

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India was governed by ‘medley of conflicting laws and systems of administration of justice’
before the British rulers enacted the Charter Act, 1833. The codification of laws was the
beginning of legal and judicial reforms in India. During the debate on the Charter Bill, 1833,
Macaulay observed: “I believe that no country ever stood so much in need of a Code of law
as India, and I believe also that there never was a country in which the want might be so
easily supplied. Our principle is simply this, - uniformity when you can have it; diversity
when you must have it; in all cases, certainty.” The new Codes brought about a perceptible
change and uniformity in the administration of justice in India. The influence of English,
after the fall of Muslim rule in India, made a massive structure of Indian law and
jurisprudence resembling the height and symmetry and grandeur of the Common law of
England. The ‘adversarial system’ of justice was introduced in India, where two opposite
parties are pitched against each other, both given level playing field and opportunity to
present their case before the judge. The system served well during the British rule because
it was conceived and nurtured for governing India with the help of police and magistracy.

After dawn of freedom in India, powerful voices were raised for providing speedy,
inexpensive and substantial justice, which suit the genius of Indian people. The resolve of
the people of India is enshrined in Art. 39-A of the Constitution of India to secure that the
operation of the legal system promotes justice on the basis of equal opportunity and that no
citizen is denied access to justice on account of financial or other disability. The Law
Commission headed by Shri M.C. Setalvad, after thorough survey of the legal and judicial
system, gave the Fourteenth Report. The Report is very comprehensive and deals in great
details the areas where reforms were needed and also pointed out that litigation has
increased manifold and costs of litigation have increased frustrating common man's efforts
to have access to justice.

The litigation is likely to increase in future on account of the awareness of their rights on the
part of the citizens, enactment of numerous laws creating new rights and obligations,
industrial development in the country and increase in trade and commerce and emergence
of socio-economic measure, legislative and administrative, touching the lives of citizens at
all levels. It is necessary to assess the requirement of economic reforms in legal and judicial
system. The starting point of improvement in the present system must be to identify the
core values, which should underlie a legal and judicial system. It is a matter of some
satisfaction that Indian legal and judicial system stands on a strong edifice. The network of
judicial courts throughout the country exists where people can have their disputes
adjudicated. However, the problem of delay in disposal of cases poses a challenge to the
system.

All around the globe people have started to accept Alternate Dispute Resolution (ADR).
These methods have proven to be efficient and are a value for money. The concept of ADR

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came into being when there was a phenomenal increase in the number of cases before the
Supreme Court.
The future litigation in the 21st Century will need active intervention of the judges,
mediators, conciliators and arbitrators to achieve speedy disposal of pending cases and
reduce expenditure.

1. Arbitration
What is arbitration? According to the shorter Oxford English Dictionary: “uncontrolled
decision,” the settlement of a question at issue by one to whom the parties agree to refer
their claims in order to obtain an equitable decision. The object of arbitration is to obtain
the fair resolution of disputes by an impartial tribunal without unnecessary delay in
expense.

The fundamental features of arbitration are:

• An alternative to national court
• A private mechanism for dispute resolution
• Selected and controlled by the parties
• Final and binding determination of parties’ rights and obligations.
• Easy enforcement of awards
• Neutrality
• Confidentiality
• Expeditious
• Cost advantage
When we look into the history of arbitration, the Presidencies of Bengal, Madras and
Bombay was governed by Regulation Act of 1870. The Act of Civil Procedure 1859 also
provided for arbitration in certain areas. Indian contract Act 1872 recognised arbitration
agreements. India drafted its first arbitration Act in 1940, after which it underwent a series
of amendments. The first arbitral regulations were present in three separate statutes. The
Arbitration Act, 1940 consolidated the 1899 Arbitration Act; the Arbitration (Protocol and
Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.
The Arbitration Act, 1940 laid down the framework within which domestic arbitration was
conducted in India, while the other two Acts dealt with foreign awards.

Arbitration is the child of commerce, where transactions across political boundaries made
the search for neutral determinations and avoidance of delays in getting matters before a
court essential. It is a process by which parties to a dispute decide that a third party will
settle the matter. Arbitration is therefore considered an alternative to resolving the case
through litigation in the courts. You will appreciate that the facilitation of trade and
development through arbitral process is very relevant with the globalization of the
economy. Commercial Arbitration is necessary for settlement of disputes in various fields.
Its role and importance for resolving business disputes needs no emphasis. The settlement

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of commercial disputes to the mutual satisfaction of the parties ensures free and smooth
flow of trade from country to country, region and indeed throughout the world. Such a free
of trade is one of the important factors which maintains and strengthens trade relations and
peace in the world.

No doubt, arbitration process will come within the concept of Alternate Dispute Resolution
(ADR) which forms part of “Access to Justice”, Jurisprudence. “Arbitrium est judicium” that is
to say, the award of an Arbitrator is the same thing as a judgment. Though the Arbitration
Tribunal has the characteristics of a court it has its special features like easy procedure,
speedy trial, settlement, conciliation etc. It is an alternate process to the existing court
system. But it has to be well understood that it is not intended to replace the existing court
system. What is intended is to supply easy and speedy process for resolution of disputes,
based on mutual discussion, debate and understanding. The parties normally accept the
arbitral award not with a wounded mind but with an open respecting the views of each
contesting parties. The faith of the litigant in the impartiality and independence of the
Arbitral Tribunal create vigor and vitality to its conclusions as also sustenance to its
continued existence.

Major kinds of Arbitration

(1) Ad-hoc Arbitration: This is specifically established for a particular agreement or dispute.
When a dispute or difference arises between the parties in course of commercial
transaction and the same could not be settled friendly by negotiation in form of conciliation
or mediation, in such case ad-hoc arbitration may be sought by the conflicting parties. This
arbitration is agreed to get justice for the balance of the un-settled part of the dispute only.
(2) Institutional Arbitration: This kind of arbitration there is prior agreement between the
parties that in case of future differences or disputes arising between the parties during their
commercial transactions, such differences or disputes will be settled by arbitration as per
clause provide in the agreement.
(3) Statutory Arbitration: It is mandatory arbitration which is imposed on the parties by
operation of law. In such a case the parties have no option as such but to abide by the law
of land. It is apparent that statutory arbitration differs from the above 2 types of arbitration
because (i) The consent of parties is not necessary; (ii) It is compulsory Arbitration; (iii) It is
binding on the Parties as the law of land; For Example: Section 31 of the North Eastern Hill
University ACt, 1973, Section 24,31 and 32 of the Defence of India Act, 1971 and Section
43(c) of The Indian Trusts Act, 1882 are the statutory provision, which deal with statutory
arbitration.
(4) Domestic or International Arbitration: Arbitration which occurs in India and has all the
parties within India is termed as Domestic Arbitration. An Arbitration in which any party
belongs to other than India and the dispute is to be settled in India is termed as
International Arbitration.

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(5) Foreign Arbitration: When arbitration proceedings are conducted in a place outside India
and the Award is required to be enforced in India, it is termed as Foreign Arbitration.

International Conventions on Arbitration

India is a party to the following conventions:
• the Geneva Protocol on Arbitration Clauses of 1923
• the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927; and
• the New York Convention of 1958 on the Recognition and Enforcement of Foreign
Arbitral Awards. It became a party to the 1958 Convention on 10th June, 1958 and
ratified it on 13th July, 1961.
There are no bilateral Conventions between India and any other country concerning
arbitration.

The government of India in consonance with the United Nations Commissions on

International Trade Law (UNCITRAL) drafted the Arbitration and Conciliation Act, 1996.
UNICTRAL had made it mandatory for all its member countries to modify their arbitration
laws according to the guidelines set by them for better uniformity. The purpose of this act
was to make a provision for an arbitral procedure that is just, efficient and encourages the
settlement of disputes.
Provisions
The Arbitration and Conciliation Act does not provide definition of the word "Arbitration"
but its literally recognised meaning is that "settlement" of differences or disputes by mutual
understanding or agreement by the parties where the rights and liabilities of the parties are
determined in judicial point of view which are binding to them, such settlement may be
before the arbitral tribunal but not by the court of law.
On taking a closer look at the sections in the Arbitration and Conciliation act, one can trace a
path which walks us through the entire arbitration process. In Part I of the Act S. 2 defines
“Arbitration” means any arbitration whether or not administered by a permanent arbitral
institution. Chapter II of the act deals with the arbitration agreements and Chapter III with
Arbitral Tribunals. Chapter V highlights the legal procedure to be followed during
arbitration. S 18 states that “The parties shall be treated with equality and each party shall
be given a full opportunity to present his case.” The parties are free to choose their own
place of arbitration (S 20).

The law does not state any fixed procedure to be followed during arbitration. The parties
are free to design their own method; however if no such procedure has been decided the
tribunal can choose as per its wish. The medium of communication can also be
predetermined (S 22). The claimant is required to submit documents and references stating
his claims to the tribunal. S 23 enumerates the procedure. It further states that
amendments can be made during the trial if not considered inappropriate by the tribunal.
The tribunal can seek courts assistance in taking evidence under S 27. S 30 and S 31 deal

7
with the settlement procedures. The recording of issues, laying down of terms and
conditions and settlement of costs is done by the tribunal.

Chapter VIII deals with the finality and enforcement of arbitral awards. An arbitral award
shall be final and binding on the parties and persons, claiming under them respectively (S
35) and an arbitral award passed by a tribunal is equivalent to a decree given by any court
under the Code of Civil Procedure (S 36).

The new Act has limited the powers of Court rather restricted the exercise of judicial
powers. Finality of Arbitral Award under Section 35 is subject to this part according to which
an arbitral award shall be final and binding on the parties and persons claiming under them
respectively. Thus, the Act itself provided finality of arbitral awards and its enforcement
(Section 36) without intervention of the Court. The Arbitral Tribunals are empowered to
settle any objections rose in respect of jurisdiction or scope of authority of the arbitrators.

The first stage in arbitration is the formulation of the arbitration agreement whereby the
parties agree to submit their present or future differences to arbitration. In case of any
dispute, one of the parties to the contract must file a request for Arbitration and pay the
required fee to an Arbitration Institution referred to in the agreement that provides
Arbitration services. Often the Arbitration Institution will suggest an arbitrator or arbitrators
to which the parties must agree. The arbitrator may be an attorney, judge, or business
person.

After the parties have defined their dispute, there will be a hearing, often at the arbitrator's
office, where the parties present evidence and witnesses in a fairly informal manner without
the formal rules of evidence used in court litigation. After the evidence has been presented,
the arbitrator reaches a decision and usually later sends the parties a written reasoned
opinion (an award).

In our country, an award passed by an arbitration tribunal has the force of a decree. Thus, it
can be executed in the same manner in which a court decree can be executed.

Requirements of an Arbitration Agreement

• Section 7(3) of the Act requires that the arbitration agreement must be in writing.
• Section 7(2) provides that it may be in the form of an arbitration clause in a contract
or it may be in the form of a separate agreement.
• Under Section 7(4), an arbitration agreement is in writing, if it is contained in : (a) a
document signed by the parties, (b) an exchange of letters, telex, telegrams or other
means of telecommunication, providing a record of agreement, (c) or an exchange of
claims and defense in which the existence of the agreement is alleged by one party
and not denied by the other.

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 • In section 7(5), it is provided that a document containing an arbitration clause may
be adopted by "reference", by a contract in writing.
Validity of an Arbitration Agreement
Section 16 of the Act empowers the arbitral tribunal to rule on its jurisdiction:

Under the Act, the arbitration tribunal can rule on its own jurisdiction, including ruling on
any objections with respect to the existence or validity of the arbitration agreement, and for
this purpose:
• an arbitration clause which forms part of a contract will be treated as an agreement
independent of the other terms of the contract; and
• a decision by the arbitral tribunal that the contract is null and void will not entail,
ipso jure, the invalidity of the arbitration clause.
A plea that the arbitral tribunal does not have jurisdiction will, however, have to be raised
not later than the submission of the statement of defense. However, a party shall not be
precluded from raising such a plea merely because he has appointed, or participated in the
appointment of an arbitrator.
A plea that the arbitral tribunal is exceeding the scope of its authority has to be raised as
soon as the matter alleged to be beyond the scope of its authority is raised during the
arbitral proceedings.
The arbitral tribunal may, in either of the cases referred to above, admit later a plea if it
considers the delay justified.
The arbitral tribunal has to decide on a plea about lack of jurisdiction or about the tribunal
exceeding the scope of its authority and where the arbitral tribunal takes a decision
rejecting the plea, it shall continue with the arbitral proceedings and make the arbitral
award.
A party aggrieved by such an arbitral award is free to make an application for setting aside
the award under section 34 of the Act. Section 34(2)(a) inter alia permits a challenge to an
award on the above grounds.
Advantages and disadvantages
One distinct advantage of ADR over traditional court proceedings is its procedural flexibility.
It can be conducted in any manner to which the parties agree. It may be as casual as a
discussion around a conference table or as structured as a private court trial. Also unlike the
courts, the parties have the freedom to choose the applicable law, a neutral party to act as
Arbitrator in their dispute, on such days and places convenient to them and also fix the fees
payable to the neutral party. ADR being a private process offers confidentiality which is
generally not available in court proceedings. While a court procedure results in a win-lose
situation for the disputants, in an ADR process it is a win-win situation for the disputants
because the solution to the dispute emerges with the consent of the parties. Lastly, as
compared to court procedures, considerable time and money is saved in ADR procedures.
Another benefit of arbitration is that the parties can choose someone who is
knowledgeable about the subject matter of the dispute. For example, in a construction

9
dispute, the parties may want to retain an arbitrator who has a vast knowledge of
construction, rather than rolling the dice with a judge who may have little or no knowledge
of the industry. Some court systems have started their own arbitration programs whereby
certain types of cases (usually small cases) are referred to a court-related arbitrator for
resolution.
Some of the perceived downsides to arbitration are
1) it's still expensive
2) it is more difficult to appeal an arbitrator's decision than that of a court,
3) many arbitrators, unless asked, will not provide a detailed explanation of their opinion,
4) the initial filing fees in some arbitrations (such as the American Arbitration Association)
can be higher than the filing fees for the court systems.

2. Conciliation
“Conciliation as a Necessary Precursor to Arbitration – For Better or for Worse”

It is one of the non-litigative methods of dispute resolution process. In the Arbitration Act
mediation and conciliation are used interchangeably.
Conciliation is- bringing of opposing parties or individuals into harmony. Arbitration is
reference to the decision of one or more persons, either with or without an umpire, of a
particular matter in difference between the parties.” “Where a cause or matter in difference
is referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and
final judge of all questions both of law and fact. The only exceptions are cases where the
award is the result of corruption or fraud and where the question of law necessarily arises
on the face of the award.”

Conciliation differs from the other dispute resolution methods. The conciliator is not bound
by the rules of evidence. His job is to pacify the two parties by settling their issues. A neutral
third party is appointed with consent of the disputants. Conciliation or the process of
conciliation is not legally binding.

Typically, in conciliation the two parties appoint a conciliator. This conciliator then requests
both the parties to prepare a list of objectives they wish to resolve. At no point of time
during the conciliation process do the two parties meet. Therefore, the conciliator moves
back and forth, and is in negotiation with both parties. Once the parties have reached to a
common stand point they can pen down and sign a contract elaborating the agreement
reached.

All the countries have developed a sui generis system based on the UNCITRAL model law.
Many premier organizations have come into the foray for international arbitration like
American arbitration association, Singapore International Arbitration Centre, WIPO
arbitration and mediation centre, and International Centre for Alternate Dispute Resolution.

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Arbitration and Conciliation: Comparison

Alternate dispute resolution is applicable to all those disputes which are civil in nature.
Some matters where ADR is applicable are: Matrimonial matters, Industrial Disputes and
Revenue matters, Testamentary matters under Succession Act, Insolvency, Dissolution and
Winding up Proceedings under Companies Act, Criminal proceedings, Matters under Indian
Trust Act, Trusteeship of Charitable Institutions, Public charity, matters falling within the
purview of Monopolies and Restrictive Trade Practices Act, Determination of guardianship
or Wards. Although arbitration and conciliation are a part of ADR but they vary greatly.

Arbitration works as a corollary to the Judicial Process. In summation, arbitration has two
parties in dispute and an arbitrator decides the case based on the facts, issues and evidence
presented. The decision is binding and can be placed at the same pedestal as a decree
passed by any court. Arbitration is chosen as it is fast, private and less expensive as
compared to litigation. On the other hand, in conciliation the disputants prepare a
statement containing the issues to be addressed. The conciliator then works towards a
settlement between the parties by negotiating with them. Wherefore conciliation involves
discussing the issues and providing solutions for them; arbitration is more on the lines of a
judicial process.

In conciliation both the parties can actively take part in settling the matter which cannot be
done in arbitration. S 72 gives the power to the parties to submit suggestions for the
settlement of the dispute. Secondly, arbitration may be cheaper when compared to
litigation but in itself it is expensive. Arbitration necessitates attorneys, a tribunal,
presentation of facts, appraisal of evidence and a trial but conciliation requires only a
conciliator.

The conciliator is not bound by the Civil Procedure Code nor is he to take any evidence. The
conciliator is expected to conduct the proceedings keeping in mind the principles of
objectivity, fairness, justice and the circumstances of the case, wishes expressed by the
parties and need for speedy settlement. Where arbitration is more of a power play and a
win-lose situation, conciliation tries to provide a win-win situation to both the parties.

Thirdly, in arbitration when the two parties are facing each other a lot of confidential
information tends to get disclosed. Some of the trade secrets of a company may get
disclosed. However, in conciliation the parties do not interact during the proceedings which
minimizes the risk of any undisclosed information getting revealed. S 70 of the act gives the
parties the right against disclosure of information. When the conciliator receives any
confidential information he transmits the crux of the matter to the opposite party for an
explanation. But if the party chooses, they can instruct him to not disclose the information.

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Conciliation is being actively used in various disputes. Many marital disputes are now being
resolved by conciliation. The bride and the groom enter into agreements via conciliation
where they decide the terms of separation. The advantage conciliation has is the respect of
the emotions and circumstances rather than “evidence”. The conciliator tries to understand
the mentality of the person sitting in front of him and then deals with the situation
accordingly. One needs to be sensitive to others need. It has been rightly said that there is
nothing in this world that cannot be sorted. Dealing with the Human emotion is an art
which cannot be mastered by all. If people knew how to reach to an amicable understanding
many problems could have been solved without blood shed.

The jurisprudence behind ADR is “Rule of Law” wherein everything is in conformity with law.
It follows stringent guidelines relating to the facts or principles applicable to a case. The
courts follow the Rule of Law for deciding a case. In the opinion of the author, the
appropriate way of dealing with a society is to decide the cases based on the Rule of Law
and on the principles of Natural Justice.

Natural Justice is another name for common sense justice. These are not codified laws. They
are principles ingrained in the conscience of man. It supplies the omission of a formulated
law. What particular form of natural justice should be implied and what its extent should be
in a given case must depend to a great extent on the facts and circumstances of that case
and the framework of the statute under which action is taken. The above judgment proves
that a humanitarian approach should be followed while a case is being decided. Hence ADR
developed in contrast to the judiciary. Even though ADR has evolved, it still has some of the
rigidity of the judiciary ingrained in it. Arbitration works along the similar lines of an ordinary
trial. Conciliation works more along the lines of an individualistic approach to the problems
and choosing a mid way so as to cater to the needs of both the parties.

Arbitration is the most rigid alternative of dispute resolution, whereas conciliation takes a
milder stand and gives more opportunity to resolve issues. When two parties are allowed to
concile, they may settle all their differences without the need of going through an entire
trial. This will in turn reduce the costs incurred by the company for running a trial and can
settle a number of issues easily. Hence the title stands vindicated and with prior conciliation
the need for arbitration can be reduced.
3. Mediation
Mediation is a negotiation process, in which an unbiased, neutral third party assists the
disputing parties, in their resort to resolve the dispute. The third party assists in the process
is called the “mediator.” Mediation can be thus better understood as “assisted negotiation.”
The mediator helps to understand both parties’ problems each other. Mediator does not
compel the parties to arrive at a settlement. His role is as those of a facilitator or catalyst
who communicate with both parties and find a solution. So mediation is about finding
hidden agendas of parties and prescribing interest based solutions.

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Mediation is not something new to India. Centuries before the British arrived, India had
utilized a system called the Panchayat system, whereby respected village elders assisted in
resolving -community disputes. Such traditional mediation continues to be utilized even
today in villages. Also, in pre-British India, mediation was popular among businessmen.
Impartial and respected businessmen called Mahajans were requested by business
association members to resolve disputes using an informal procedure, which combined
mediation and arbitration.

Another form of early dispute resolution, used by one tribe to this day, is the use of
panchas, or wise persons to resolve tribal disputes. Here, disputing members of a tribe meet
with a pancha to present their grievances and to attempt to work out a settlement. If that is
unsuccessful, the dispute is submitted to a public forum attended by all interested members
of the tribe. After considering the claims, defenses, and interests of the tribe in great detail,
the pancha again attempts to settle the dispute. If settlement is not possible, the pancha
renders a decision that is binding upon the parties. The pancha's decision is made in
accordance with the tribal law as well as the long-range interests of the tribe in maintaining
harmony and prosperity. All proceedings are oral; no record is made of the proceedings or
the outcome. Despite the lack of legal authority or sanctions, such mediation processes
were regularly used and commonly accepted by Indian disputants.

Mediation bears a striking resemblance, in some respects, to the ancient dispute resolution
processes. In mediation the parties are encouraged to participate directly in the process.
The expanded framework of discussion in mediation consists of both the applicable law and
the underlying interests of the parties. The mediator, an expert in the process of dispute
resolution, controls the proceedings, much like a tribal chief serving in the role of
peacemaker. But under the ancient methods if mediation failed, the same person was
authorized to render a binding decision.
After the British adversarial system of litigation was followed in India, arbitration was
accepted as the legalized ADR method and is still the most often utilized ADR method.

Mediation (as is now understood globally and unlike the ancient methods, which is by
definition non-binding, and encourages the parties to voluntarily reach an agreement that
meets all the parties' needs) has only in the past few years begun to become familiar to
lawyers and judges generally, except in traditional community settings and except where
mediation has been court-directed or statutorily-prescribed, such as in the intra-
governmental disputes between government agencies and undertakings, in labour disputes
and in public utility services disputes. So when we compare the US and Indian system, over
the last twenty (20) years, American lawyers and judges have warmly embraced mediation
as a primary tool for resolving conflicts in court and out of court, while Indian lawyers and

13
judges are still warily examining mediation, discussing whether and in which types of cases
mediation should be used – similar to what was happening in the US in the 1980's.

Mediation is no panacea, no magic solution to overcome the institutional challenges of

national court systems. Similar to other alternative dispute resolution techniques, however,
it does offer a cluster of features that differ from the formal judicial systems of Europe that
have had global influence over the primary ways in which legal conflicts are resolved. In this
regard, mediation both builds and diversifies the capacity for resolving conflicts in society.
With many qualifications and exceptions, European-style courts are state institutions,
conducting public, formal proceedings, that presuppose literacy, posture the parties in a
conflictual, legal position-based, backward-looking fact finding processes that result in
binary, win-lose remedies, subsequently enforced through social control over the losing
party. In contrast, mediation and other clusters of consensual dispute resolution techniques,
except for arbitration are private, informal, oral, more collaborative, facilitative, future-
looking, interest-based processes that bring parties to a calibrated, multi-dimensional, win-
win remedy that is more durable because of the parties consent in the outcome.
Because of these basic contrasting features, for many non-European legal cultures,
mediation bears a comforting alternative and similarity to traditional forms of dispute
resolution that predate colonial influence. Reformers have grown increasingly interested in
reviving or extending traditional forms of dispute resolution (such as the methods used by
the traditional panchayats in India) and integrating them into the formal litigation system.

The development of mediation in India holds enormous promise. In particular, the

neutralizing communication skills and powerful bargaining strategies of facilitated
negotiation can strengthen the system's capacity to bring justice to the society. Despite the
demonstrable value of these techniques, however, several large obstacles block the path to
mediation in India. Exposure to these facilitated negotiation processes, though spreading
rapidly, remains limited.

After the enactment of the Arbitration & Conciliation Act, 1996, even though conciliation
was given statutory recognition for the first time in India, the awareness of such an option
was very limited to lawyers and litigants. The term “conciliation” even though considered
synonymous and used interchangeably with “mediation” in most countries, was given a
slight difference in the statute. The concept of mediation and conciliation was made familiar
or given official court recognition only in 1996 and by the amendment of the Civil Procedure
Code (CPC) in1999 by inserting Section 89. The statutory language of the Arbitration and
Conciliation Act, 1996 and of Section 89 of the Civil Procedure Code, demonstrates clearly
the existence of differing definitions and meanings for "conciliation" and "mediation".
Generally both mediation and conciliation is the assistance of disputants by an impartial
third party in resolving disputes by mutual agreement. However, a conciliator can be a pro-
active and interventionist, because of his statutory power "to make proposals for

14
settlement of the dispute" and to formulate and reformulate the terms of the settlement
agreement.

The definition of "conciliator" in the statute is consistent with Rules for Conciliation
promulgated by the United Nations Commission on International Trade Law (UNCITRAL).

Even though the Arbitration & Conciliation Act, 1996 was enacted to give impetus to
conciliation and giving statutory recognition to conciliated settlements, giving the same
status of a court decree for its execution, no real effort was taken by the courts or by the
lawyers to utilize the provisions and encourage the litigants to choose the method. Even
though some mediation training and familiarization programs were conducted it did not
create the real effect.

The amendment of the CPC referring pending court matters to ADR was not welcomed by a
group of lawyers and the amendment was challenged. The modalities to be formulated for
effective implementation of Sec. 89 also came under scrutiny. For this purpose, a
Committee headed by former Judge of the Supreme Court and Chairman of the Law
Commission of India, Justice M. Jagannadha Rao, was constituted to ensure that the
amendments become effective and result in quick dispensation of justice. The Committee
filed its report and it was accepted and the Hon’ble Supreme Court of India has pronounced
a landmark decision “Salem Advocate Bar Association, Tamil Nadu v. Union of India” (2005),
where it held that reference to mediation, conciliation and arbitration are mandatory for
court matters. This judgment of the Supreme Court of India will be the real turning point for
the development of mediation in India. But the growth of mediation should be carefully
moulded so that the system gains the faith and recognition of the litigants.

Points to Remember for a Successful Mediation:

1. Allow adequate time for the mediation process to work.

2. The length of mediation depends on the complexity of facts and legal issues and degree
of emotion. It usually will take a full day. Parties need adequate time to identify the
issues, factual and legal, that all sides of the dispute believe exist, and then react to
information and negotiate a satisfactory conclusion.

3. Parties with increased understanding of the other side’s interests and the risks of trial
are more willing to reach an agreement.

4. Parties want to engage in give and take rather than be presented with an ultimatum
from the other side.

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5. Each side wants to know it has had a fair opportunity to be heard before agreeing to
collaborate.

6. Parties want to vent feelings, even in business disputes, before they can separate
emotion from issues.

7. The caucus meetings are designed to enable the parties to understand the other side’s
perspectives and the breadth of positions on the issues. This helps counsel assess the
strengths and weaknesses of their case and determine whether litigation poses greater
risks than previously believed.

8. The lack of an appropriate representative at the mediation session (with the necessary
authority and discretion) is the most frequent reason that mediation sessions fail to
result in settlement.

IV Lok Adalats, Gram Nuayalayas and Nyaya Panchayats

1. Lok Adalats

Another dispute resolution process, lok adalat, has received more favorable attention since
its re-introduction in the 1980s. Originally, lok adalat was an ancient method for dispute
resolution used by tribal people. "Lok" stands for "people" and the vernacular meaning of
the term "Adalat" is the court. The Legal Services Authority Act (1987) promoted the
resurgence of lok adalat to provide litigants with the means to resolve their disputes early
and affordably. In essence, lok adalat may be compared to settlement conferences as they
are traditionally conducted in the United States, except that the neutrals in lok adalat are
senior members of the Bar. These lok adalat "judges" preside in panels over a lengthy
calendar of cases that are set on a single day and are usually heard in open court (in the
presence of other parties and attorneys). Customarily, lok adalat judges are highly
evaluative from the outset of each hearing. Represented parties do not play an active role in
presenting or negotiating their dispute. Instead, attorneys advocate on their behalf.
Importantly, litigants may participate in lok adalat without paying a fee, thereby making it
accessible to parties with limited financial resources. Historically, lok adalat has been used
primarily in personal injury cases and other injury claims involving insurance companies.
Parties have the right to decide whether to submit their dispute to lok adalat. Because lok
adalat has resulted in the disposition of a measurable number of disputes and is considered
to be an effective and affordable alternative to trial, it will continue to be an important
dispute resolution tool.

While we encourage ADR mechanism, we must, also, create a culture of settlement of

disputes through such mechanisms. Various ADR methods have been experimented and
accepted as viable methods in different situations in different environments in different

16
countries. The ancient concept of settlement of dispute through mediation, negotiation or
through arbitral process known as "Peoples' Court verdict" or decision of "Nyaya-Panch" is
conceptualized and institutionalized in the philosophy of Lok Adalat.
Some people equate Lok Adalat to conciliation or mediation, some treat it with negotiations
and arbitration. Those who find it different from all these, call it "Peoples' Court". It involves
people who are directly or indirectly affected by dispute resolution. It is, rightly, said
participation, accommodation, fairness, expectation, voluntariness, neighbourliness,
transparency, efficiency and lack of animosity are undoubtedly, all important characteristics
of this unique Indian institution rooted in India's history and culture and environment.

This concept is, now, again very popular and is gaining historical momentum. Experience has
shown that it is one of the very efficient and important ADRs and most suited to the Indian
environment, culture and societal interests. The finest hour of justice is the hour of
compromise when parties after burying their hatchet reunite by a reasonable and just
compromise. This Indian-institutionalised, indigenised and now, legalized concept for
settlement of dispute promotes the goals of our Constitution. Equal justice and free legal aid
are hand in glove. It is, rightly said, since the second world war, the greatest revolution in
the law has been the mechanism of evolution of system of legal aid which includes an
ADRM. The statutory mechanism of legal services includes concept of Lok Adalat in the Legal
Services Authorities Act. The legal aid, in fact, is a fundamental human right.

Indian socio-economic conditions warrant highly motivated and sensitised legal service
programmes as large population of consumers of justice (heart of the judicial anatomy) are
either poor or ignorant or illiterate or backward, and, as such, at a disadvantageous
position. The State, therefore, has a duty to secure that the operation of legal system
promotes justice on the basis of equal opportunity. Alternative dispute resolution is, neatly,
worked out in the concept of Lok Adalat. It has provided an important juristic technology
and vital tool for easy and early settlement of disputes. It has again been proved to be a
successful and viable national imperative and incumbency, best suited for the larger and
higher sections of the present society and Indian system. The concept of legal services which
includes Lok Adalat is a "revolutionary evolution of resolution of disputes".

The concept of Lok Adalat is no longer an experiment in India, but it is an effective and
efficient, pioneering and palliative alternative mode of dispute settlement which is accepted
as a viable, economic, efficient, informal, expeditious form of resolution of disputes. It is a
hybrid or admixture of mediation, negotiation, arbitration and participation. The true basis
of settlement of disputes by the Lok Adalat is the principle of mutual consent, voluntary
acceptance of conciliation with the help of counsellors and conciliators. It is a participative,
promising and potential ADRM. It revolves round the principle of creating awareness
amongst the disputants to the effect that their welfare and interest, really, lies in arriving, at
amicable, immediate, consensual and peaceful settlement of the disputes.

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Let me conclude with a sound but an imperative caveat that we must be ever mindful that
"Yesterday is not ours to recover, but tomorrow is ours to win or lose", and, therefore, let us
get together, stand united, and strengthen our Bench and Bar irrevocable unique
partnership and make collaborative, concerted, cooperative, creative, collective and
cohesive endeavours in popularising, proliferating and pioneering, concept and philosophy
of important institution - alternative dispute resolution mechanism - so as to strengthen our
pluralistic democratic values, rule of law and thereby invigorate the commandment, "Justice
shall never be rationed". Let us therefore make all efforts to advance and strengthen "equal
access to justice", the heart of the Constitution of India, a reality.
Benefits
The benefits that litigants derive through the Lok Adalat are many.
1. First, there is no court fee and even if the case is already filed in the regular
court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.
2. Secondly, there is no strict application of the procedural laws and the Evidence
Act while assessing the merits of the claim by the Lok Adalat. The parties to the
disputes though represented by their advocate can interact with the Lok Adalat
judge directly and explain their stand in the dispute and the reasons therefore,
which is not possible in a regular court of law.
3. Thirdly, disputes can be brought before the Lok Adalat directly instead of going
to a regular court first and then to the Lok Adalat.
4. Fourthly, the decision of the Lok Adalat is binding on the parties to the dispute
and its order is capable of execution through legal process. No appeal lies against
the order of the Lok Adalat whereas in the regular law courts there is always a
scope to appeal to the higher forum on the decision of the trial court, which
causes delay in the settlement of the dispute finally. The reason being that in a
regular court, decision is that of the court but in Lok Adalat it is mutual
settlement and hence no case for appeal will arise. In every respect the scheme
of Lok Adalat is a boon to the litigant public, where they can get their disputes
settled fast and free of cost.

2. Gram Nyayalayas

The Gram Nyayalayas Bill, 2007, which was introduced in the Rajya Sabha on May 15, 2007,
proposes to set up formal courts in rural areas. The Bill will empower state governments, in
consultation with the high courts, to establish one or more Gram Nyayalayas under a
Nyayadhikari for a group of Panchayats or every Panchayat at the intermediate level. The
Gram Nyayalaya is meant to act as the lowest court of subordinate judiciary in the state.

With the The Gram Nyayalayas Bill, 2007 being reintroduced in the Parliament, the debate
about what should be the next tier in the Indian judicial hierarchy and which of the possible

18
alternatives is best suited for solving India’s judicial problems has been reignited. Whether
India should fall back on the Nyaya Panchayats which flourished prior to Independence or
adapt the new system of Gram Nyayalayas, as being pushed forward by the Law Ministry? Is
it possible for the two systems to coexist, their financial and political feasibility? Can the gap
be filled by the existing system of Lok Adalats and where it has failed?

The Ministry of Panchayati Raj together with a Committee headed by Prof. Upendra Baxi
seek to re-introduce Nyaya Panchayats in villages. Nyaya Panchayats will provide villagers
with true local self governance. Panchayats had been a part and parcel of administration of
justice before the advent of British. In most of his writings on the Panchayati Raj system,
Baxi calls for a participatory justice system at the grassroot level.
There are inherent problems in both systems. It is contended that the Nyaya Panchayats,
being an elected body, is prone to political manipulations which can eventually put a
question mark to the credibility of the judicial system and lower its dignity. Since no law
qualifications are expected from the elected members, they may discriminate on the basis
of caste, religion and sex.

India has had Nyaya Panchayats, with elected representatives, since before Independence.
However the Law Commission recommended against elected Nyayadhikaris because “once
election is brought in, it would be difficult to keep its abuses out.” It proposed the
appointment of judges from a panel.
Traditionally, the caste panchayats were headed by people belonging to higher social status
and women and SC/STs could not sit as a pancha. The basic function of the parliament was
to resolve disputes in an amicable manner i.e. alternate dispute resolution mechanisms like
mediation, conciliation etc. Such a setting enabled the panchas to evaluate the conflict in
the light of societal values and culture.3 Such an informal process also provided sufficient
relief and voice to the victim and also took into account the responsibility and circumstances
of the offender, unlike the formal criminal justice system where the State snatches away the
rights of compensation/restoration/redressal from the victim and reduces him/her to a
mere witness or aggrieved party. On the other hand, Gram Nyayalayas propose a formal
structure with no elected
representatives and strict educational qualifications drawn from a cadre of Nyayadhikaris
created by the Governor in consultation with the High Court.
Gram Nyayalayas Bill, 2007
Key Features
• The Gram Nyayalayas Bill, 2007, establishes Gram Nyayalayas as the lowest tier
of the judiciary for rural areas.
• Each Gram Nyayalaya shall be headed by a Nyayadhikari, who shall have the
qualifications of a first class magistrate and be from a cadre created by the
Governor and the High Court.

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 • Gram Nyayalayas shall try those cases whose maximum punishment is a year’s
imprisonment, is only a fine, or in which offence is compoundable. They shall
also settle civil suits dealing with land, water, etc., as listed in a Schedule.
• In civil disputes, Gram Nyayalayas shall not be bound by the procedure in Code of
Civil Procedure, 1908, or the rules of evidence in the Indian Evidence Act, 1872.
In criminal cases, the court shall follow procedures for summary trials.
• Appeals in civil and criminal cases shall be heard by the senior civil judge and the
assistant sessions judge, respectively. Further appeals are not permitted.
• The state governments shall establish one or more Gram Nyayalayas for every
panchayat or group of contiguous panchayats at an intermediate level.
• The Bill provides for mobile courts to be held periodically at villages where the
parties reside.
• A Gram Nyayalaya shall be presided by a Nyayadhikari appointed by the state
government in consultation with the High Court.
• Nyayadhikaris shall be persons eligible to be appointed as first class magistrates,
and shall belong to the cadre of Nyayadhikaris created by the Governor in
consultation with the High Court.
• Persons in this cadre shall possess a law degree from a recognised institution,
should not be more than 45 years of age at the time of appointment, and be
proficient in at least one official language of the state other than English.

3. Nyaya Panchayats
Article 40 of the Indian constitution which direct the State to take steps to organize Village
Panchayats and endow them with such powers and authority as may be necessary to enable
them to function as units of self government, has to be appreciated afresh in the light of the
mandate of the new article 39A. With the 73rd amendment becoming a part of the
constitution, decentralised justice should have found renewed expression through Nyaya
Panchayats. But neither the constitutional amendment nor the State Conformity Acts have
brought this institution.

The plan to formalize Nyaya Panchayats and to bring it within the ambit of organized justice
in India was planned as part of the Panchayati Raj reforms of Rajiv Gandhi in the 1980s, but
was put on hold to coincide with broader reforms of the justice system, which was never
carried out. However the ‘unfinished’ task was left incomplete even in 73rd Amendment but
after the 73rd Constitutional Amendment, the states of Bihar, Himachal Pradesh, Punjab,
Uttar Pradesh, Jammu and Kashmir and West Bengal provided for NPs in their new
confirmatory laws or in their confirmatory amendments to old laws.31 States of Andhra
Pradesh, Gujarat, Haryana and Karnataka made no provision for NPs in their post-73rd
amendment law, though they had the provisions in their earlier laws.32 These courts’
jurisdiction would be restricted to issues which have “direct or indirect bearing” on villagers,
particularly squabbles over farm land, right to cultivate and draw water from canals,

20
tenancy, cattle grazing in common pastures, denial of social justice, violence against women
and children, maintenance to parents or divorced spouses, and environmental issues.

On criminal matters, their ruling would be limited to petty crimes that result in simple
accident, injury or threat, and actions that have disturbed or intend to disturb public
harmony. As per the Bill, five persons or panchs who have no political affiliation would be
elected simultaneously with the gram panchayat polls to form this lowest rung of the
judiciary. The senior among them would appoint two of the panchs in rotation to hear
disputes. The three would hear all disputes within their geographical territory and use
“persuasion, conciliation or mediation” to resolve them. If they fail to provide an amicable
agreement — which the Panchayati Raj Ministry feels will be the case in 20% of the disputes
— they will adjudicate. To ensure that the elected members are not influenced by the elite,
upper caste hegemony, gender bias or bribe, all hearings will be conducted in open court in
full public view and with the knowledge of the gram sabha.

The Pramukh Nyaya Panch may also co-opt two persons from the names suggested by the
litigants to take part in the proceedings. However, no party to the dispute will be allowed to
hire a lawyer. The Ministry’s rationale for this “participatory redressal system”: it will handle
injustices that never reach the courts — an estimated 75 lakh cases — as the “formal justice
system is not easily accessible, expensive and results in inordinate delays thereby
undermining its credibility and inviting implacable hostility among the people.”

For an adequate representation, it would be mandatory to have two women and one
person from either SC, ST or OBCs by rotation, in the five member panel. Additionally, a
Nyaya Sahayak (person with legal background) would be nominated to counter such
deleterious influences, says the proposal. Once it becomes an act, a civil court would neither
have the jurisdiction to entertain any suit or proceeding on issues empowered to nyaya
panchayat nor the power to grant injunction. Any appeal on the order of the these local
courts would lie with the judicial magistrate of the district provided it is filed within 30 days
of the order.

Loop Holes in the existing Nyaya Panchayat Bill, 2006

• Separation of power
Clause 2(g) of the Bill declares District Collector or the District Magistrate or the Head of the
District Administration or any officer authorized by him as the “Presiding Authority”. It is
submitted here that the appointment of Executive as the presiding Authority of the judicial
wing is against the Principle of Separation of Power. It also undermines the authority of the
elected representatives of people.
• Reservation
Clause 3 of the Bill deals with composition. It provides that the N.P. shall consist of five
panchs, out of it 2 seats shall be reserved for women and one seat is reserved for Scheduled

21
Castes, Scheduled Tribes and Backward Classes by rotation. The Bill is silent as to the way
Nyaya Pramukh will be appointed and whether he is going to be the part of the five Panches
or he is going to be in addition to the five Panches.
• Nyaya Sahayak
In clause 9 (2) the only eligibility attached to Nyaya Sahayak is that he should have
completed the 25 years of age and must have ability to read and write. A list of his functions
as given under Clause 10 includes, providing “legal information”, “record” proceedings of
dispute, to ensure that the compromise arrived “between two parties is fair and not in
contravention of the law applicable and while arriving at this understanding he shall be
guided by the provisions of relevant law and the principles of natural justice.” The nature of
work entrusted upon Nyaya Sahayak requires a person to
be more than mere literate.
• Jurisdiction
In respect of jurisdiction entrusted upon Nyaya Panchayat under Clause 12 of the Act, it may
be pointed out that, there is no pecuniary limit in the Bill in relation to the matter included
under civil jurisdiction, which give an impression that the Nyaya Panchayat will have
unlimited jurisdiction in respect of matter other than those mentioned in 12(2) (i).
• Mode of settlement of dispute (Benches and quorum)
There is confusion as to the mode of settlement of dispute, the process of settlement of
disputes and the bench for resolution of dispute discussed in Clause 3 (4), Clause 3(5),
Clause 21(3) and Clause 22(2).
• Appearance of Lawyer
There is ambiguity in the Bill as to the appearance of lawyers before the Nyaya Panchayat.
There is no clear opinion on the same. The bare reading of Clause 18 makes it clear that in
civil matters lawyers are barred but in criminal matters a lawyer is allowed to appear as a
‘Friend’. All parties naturally will allow lawyers to appear as friend. The provision will
introduce technicalities in the functioning of Nyaya Panchayats, which will take away the
existing advantage of simplicity from the Nyaya Panchayat.
• Evidence and Witnesses
There is unnecessary repetition in the bill as to the provisions relating to evidence and
witness. Clauses 26 and 36 of the Bill, which deals with the evidence and witnesses, have
been replicated.

V Conclusion
Now a day ADR has become a global necessity. In recent times, methods of alternative
dispute resolution have emerged as one of the most significant movements as a part of
conflict management and judicial reform. The entire legal fraternity œ lawyers, students,
judges and legislators œ all over the world have started viewing dispute resolution in a new
perspective. Many more alternatives to the litigation have emerged. ADR is now an integral
part of modern legal practice and jurisprudence.

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In India, while judges have been quick to recognize increased use of mediation as a helpful
mechanism for reducing case backlogs and delays, Indian lawyers have not rushed to
embrace mediation. As with American lawyers in the early 1980's, Indian lawyers are more
conservative. They do not like change and are reluctant to expose their clients to the
uncertain risks of an unknown ADR process. Also, understandably, Indian lawyers view
mediation as potentially depriving them of income by settling cases prematurely and
thereby obviating legal fees that would otherwise be earned. The same has been true for
American lawyers during the growth of mediation in the US over the last twenty (20) years.
In the first place, by their early acceptance and use of mediation, lawyers became not only
the best trained and most qualified mediators (incorporating their mediator work into their
law practices), but the lawyers who did not become mediators became the gatekeepers for
mediation, selecting over 80% of the cases that are mediated and choosing the mediators
for such cases.

While judges and the courts provided the initial impetus toward mediation in the United
States, it was the lawyers' and law schools' acceptance of the court's challenge to find better
ways of resolving disputes that lead to rapid and widespread acceptance of mediation in the
United States. Globally, however, the explosion of ADR in Europe and in Asia is being
spearheaded by corporations, as multi-national corporations ("MNC's") seek quicker,
cheaper and less disruptive means for settling internal employer, management and
shareholder disputes and external commercial disputes with trade and distribution partners
around the world. Once it is understood that ADR is intended to complement (not replace)
the judicial process, that it is highly adaptable to different contexts, and that expertise in
India is already growing rapidly, the apprehensions may quickly dissipate.

India’s faith in its judicial system is eroding fast and it needs to evolve from the system it
inherited from the British to a system more apt for Indian conditions and the need of its
people. The Lok Adalats are confined to certain areas of litigation like motor accidents
claims, family disputes and lower levels of civil disputes. On one hand the Law Ministry is
pushing for Gram Nyayalayas as the next tier with a formal cadre of Judges and no
involvement of the people. On the other hand the Panchayati Raj Ministry wants to fall back
on the traditional system of Nyaya Panchayats which involves people participation but is
prone to the ills of politics. Since both the bills will aim at 'access to justice' for poor and
'decrease in courts' backlog', it is inevitable that there will be debates to pass only one of
them. Let us hope for a formalised system in which the poor people benefit and the backlog
of cases will end.

The mind set of Indians are like this: “try to win if you can; if you cannot, do your best to see
that the other side cannot enforce the award for as long as possible.” This is mainly due to
neither the private sector nor the public sector in India is as yet infused the “spirit of
arbitration.” Our attitudes need a restructuring and re-adjustment in accordance with the

23
spirit of ADR. If the ADR to be successful, that must be implemented n an indigenous
“home-grown” manner.
Law is not a static concept. The effectiveness of the legal process depends upon its ability to
mould itself to the requirements of the society from time to time. I find no reason why we
should not ourselves experiment with new methods for dispute resolution. Passivity and
conservatism have to give way to dynamism, adaptability and resurgence.
At the same time I wish a best future for all the prospective lawyers here.

Mahatma Gandhi, father of the nation, pointed out that the importance of alternate dispute
resolution.

“I realised that that the true function of a lawyer was to unite parties …. A large part of my
time during the 20 year of my practice as a lawyer was occupied in bringing about private
compromise of hundreds of cases. I lost nothing thereby not even money, certainly not my
soul.”

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