Chapter-6

Conclusion & Suggestions

“Litigation has become an inevitable stage in the life cycle-slightly beyond

adolescence but before maturity. It is virtually impossible to survive litigation
and remain solvent. But it is occasionally possible to endure it and remain
same. As a modern ordeal by torture, litigation excels, it is exorbitantly
expensive, agonizingly slow, and exquisitely designed to avoid any resemblance
to fairness or justice, let. In strange and devious ways it does settle disputes- to
everyone’s ’ dissatisfaction ”
- J. S. Aurbach

6.1 Conclusion

Now it is proved all over the world that Alternative Dispute

Resolution as a mechanism of resolving dispute by consensus in a
organised manner with skills and techniques that could be learned and
used. Alternative Dispute Resolution mechanism is in addition to courts
and complement them.

Ever Method of Alternative Dispute Resolution mechanism has

their own logic, purpose and justification. Arbitration is used definitively
resolve a dispute like adjudication and that has transpired and requires
fact finding, interpretation of contractual terms, or application of legal
principles on the other hands mediation and conciliation are often used to
improve communication between parties especially those with pre-
existing relationship, to reorient the parties to each other and to develop
future oriented solution to broadly defines conflicts.

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 The Administration of justice system in India has come under the great
stress for so many reasons mainly because of the large number of
pendency of case in courts. The large number of case filed in the court
every year which has shown a tremendous change in recent year resulting
in delay and pendency underlining the need of Alternative Dispute
Resolution methods.

In the ultimate analysis it may be concluded that widening gap

between the common people and the judicially is indeed a serious cause
of concern for all those who deal with administration of Justice. The
concept of Alternative resolution of Dispute in alternate mode should be
deeply ingrained in the minds of litigant, lawyers and the judges so as to
ensure that ADR methods in desperation of justice are frequently
adopted. The effective utilization of ADR mechanism would go a long
way in plugging the loop hole which is obstructing the path of justice.

6.1.1 Critical Analysis of Arbitration

Arbitration is the most popular process of ADR mechanism

Arbitration is legally sanction mode of ADR. In fact arbitration is coded
statute which deals with the settlement of dispute mainly commercial and
civil through arbitration in which on the basis of consent of parties or by
the order of Court, an arbitrator or arbitrators are appointed to make
award in form of settlement according to the arbitration clause in the
agreement/contract entered in to by the parties. Thus, in arbitration
process, third party plays the role of presiding officer of the Court.
Arbitration is most simple, economic and speedy method of resolving
dispute but there are some problem also with Arbitration which faced by
the litigants. The most practical problem with arbitration is
implementation of agreement of arbitration, because when they pre-

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 appointed the arbitrator they have left no choice to go the court. The
process of arbitration is also misuse in International commercial
arbitration where the arbitration agreement or the arbitration clause may
stipulate sole and mixed arbitral commission. There is no provision of
appeal against the arbitral award this is also a loop point of arbitration
unfortunately the process of arbitration is misused by companies and
parties conclusively we can say for the survive of arbitration the courts
and advocates must insist on Institutional Arbitration to save guard this
wonderful concept of dispute resolution lest it gets hijacked by expenses
arbitrators and fraudulently companies.

6.1.2 Critical Analysis of Mediation

It is a very common kind of the ADR programme. In this process a

third party sought to mediate in resolving dispute between disputants. In
other words mediation is necessarily search for a solution, under the
guidance of a third party. The basic object of mediation is to provide the
disputants with an opportunity to negotiate and explore clues and tricks
for settlement of dispute. It is an informal process in which an expert,
who acts as a mediator assists the parties to reach settlement mandate. In
mediation process, a mediator does not adjudicate that who is wrong or
right, as he/she has no authority to impose a settlement on the disputants.
Instead, a mediator assists the disputing parties to unite, explore and
settle difference amicably. Notably, this kind of ADR programme is
globally recognized and practiced. But unfortunately there are some
difficulties also which faced during the mediation process like there are
lack of sufficient number of trained mediators and trainers. Another
drawback of mediation is absence of suitable legislation. Section 89 of
the Code of Civil Procedure empowers the Court to refer the terms of a
possible settlement for arbitration, conciliation, judicial settlement

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 including the settlement through Lok Adalats, and mediation. Out of the
above procedures indicated in Section 89, all the other except mediation,
have already gained statutory independence, in the sense that Arbitration
& Conciliation are now governed by the 1996 Act and Lok Adalats are
regulated by the Legal Services Authority Act. But mediation alone has
not so far gained statutory liberation, in the form an independent
legislation.

6.1.3 Critical Analysis of Lok Adalats

Lok Adalat is considered to be one of the best Alternative Disputes

Resolution Systems. Just like every other system, Lok Adalat is also
having several virtues and it suffers from few ill as well. As it is rightly
said that, “Justice delayed is a Justice denied but Justice hurried is a
Justice buried”. Keeping this fact in mind, the higher judiciary in many of
its judgments directed that, the speedy proceeding conducted by way of
Lok Adalat should not impair the right of any party.

The lawyers are sometimes reluctant to refer the matter for

settlement in Lok Adalat. Sometimes parties may pressurize their lawyer
to stick up to the strict process of court. The High Court1 observed, “In
the name of the speedy resolution of disputes, the fair interests of the
parties cannot be sacrificed, more importantly when the petitioners
involved are minors, insane and disabled.” While expressing its lamented
remark about the present Lok-Adalat system, the Kerala High Court
pointed out the drawback as –

“However, the major drawback in the existing scheme of

organization of the Lok Adalat under Chapter VI of the Legal Services
Authorities Act is that the system of Lok Adalat is mainly based on

1
Manju Gupta V National Insurance Company,I (1994) ACC 242, 1994 ACJ 1036

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 compromise or settlement between the parties. If the parties do not arrive
at any compromise or settlement, the case is either returned to the court of
law or the parties are advised to seek remedy in a court of law. This
causes unnecessary delay in the dispensation of justice. If Lok Adalat has
given power to decide the cases on merits in case parties fail to arrive at
any compromise or settlement, this problem can be tackled to a great
extent”. However this defect has been removed in permanent Lok-Adalat.
It has also been observed that since the forum of Lok-Adalat are headed
by the person from judiciary, they assume the role of Lok-Adalat as
judicial forum and deviate from the basic objectives for which it has been
formed. The Supreme Court has also lamented on this issue.

Alternate Dispute Resolution is rapidly developing at national and

international level, offering simpler methods of resolving disputes.
Increasing trend of ADR services can easily be inferred from the growth
of “Arbitration clause” in majority of contracts. There has been a
significant growth in number of law school courses. Diplomas. Seminars.
Etc. focusing on alternate dispute resolution and rationalizing its
effectualness in processing wide range of dispute in society.

Lastly, the importance of ADR mechanism can be aptly put in the words
of Abraham Lincoln :

“Discourage litigation persuade your neighbours to compromise

whenever you can point out to them how the nominal winner is often a
real loser, in fees, expenses, waste of time.

6.2 Suggestion

6.2.1. General Suggestion

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i. Firstly for the implementation of ADR, the public should be aware there
is another method of settlement of dispute other then the court of law. In
other words, there should be frequent awareness progammes for the
public so that they come to about legal aid schemes.

ii. Though the legal Service Authority are doing their best in giving legal aid
to the poor, the central government and state government must should
provide adequates funds for effective implementation of the legal service
authority act.

iii- The Government should appoint qualified mediators/councilors and they

should be paid adequate honorarium so that they must take interest in
settlement of the matter.

iv- The mediator/councilors must also be given some powers to take suitable
action so that the parties should participate in the mediation/conciliation
proceedings. It needs to be done because the even after orders of the
courts and request by the mediators/councilors, the parties do not appear
before the mediators willfully because they know nothing will happen if
they don’t appear before mediator/councilors.

v- The order passed by Lok Adalat under legal service authority act should
have binding force. It is seen that some time the order her passed in the
Lok Adalat between the private person and the state Government and
when the order is not complied with by the state government, that person
is not having remedy to file contempt petition for non compliance of the
order passed by Lok Adalat. Because of these ambiguities, the parties do
not wish to get order from the Lok Adalat, instead the parties want the
order be passed by regular courts so that it has binding force.

vi- Some times lawyers do not take interests in referring the matters to be
resolved by ADR methods as the councils get handsome amounts in

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 litigation on hourly basis or date wise but when the matter is decided
through ADR without intervention of the court. To overcome this
situation lawyers should help the litigants as a social work and the lawyer
doing such job should be praised by the courts and even by the public.

vii- Some times lawyers suggest their clients to settle the matter through
compromise but the litigants do not agree with the suggestions of lawyer
instead they doubt the suggestions of the council. In these circumstances
courts should intervene in the matter and forcefully direct the parties to
go for settlement.

viii- Since the arbitration proceedings are lengthy in comparison to other ADR
methods, the arbitral tribunal/arbitrator before starting arbitration
proceeding should try to act as a mediator for resolving the dispute or
may refer to third person for mediation which will sake the time for
adjudication of the matter.

ix- Though there is no regular appeal against the award of arbitral

tribunal/arbitrator, the award can be challenge under section 34 of
arbitration act of 1996 and against the order passed under section 34 there
is further provision of appeal under section 37 of arbitration act. However
their judgments of the Hon’ble Apex Court, that award of the arbitrator
should not normally be interfered with by the courts then also the appeal
against the award and the orders passed under section 34 are pending
before the High Court for longer period. Measures should be adopted to
decide those appeals in priority otherwise no fruitful purpose of the
arbitration and conciliation act 1996 as a mechanism of Administration of
Justice will served.

x- Though, Legal Service Authority arrange legal aid camps at different

places from time to time but no effective work is being done in this

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 regard. The government funds utilized in these schemes but it does not
reached to actual beneficiary. Legal Service Authority should also take
help of social organization in the implementation of legal service
authority act.

xi- Now a days cases of cyber crimes or crimes through social media are
generally seen and some time these crimes are not done intentionally or
willfully, the people of India are in the stage of learning information
technology or electronic methods in their routine work and by mistake
some wrong things happen and these things are crime under the
information technology act and Indian penal code and in other laws but
the public is not aware about these laws. Today we are in the era
electronic age, the government is insisting the public to use electronic
methods, Governments must give training programme to public to use
electronic methods in also to run awareness programmes for enabling the
public to know the law about cyber crimes and this will ultimately reduce
the crime ratio and will say the time of the courts.

“The reality today is that we are all interdependent and have to co-exist
on this small planet. Therefore, the only sensible and intelligent way of
resolving differences and clashes of interests, whether between
individuals or nations, is through dialogue”. ----Dalai Lama

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