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Dr. Anuja. S
Assistant Professor,
NLSIU, Bangalore
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anujas@nls.ac.in
 Background statistics

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• 31/12/2015-India
• 31 MILLLION CASES ARE PENDING

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– 59,272- S.C
– 3.8 million- H.C

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– 27 million – Subordinate courts
12 million awaiting criminal cases
On an average 20 years – time taken to resolve civil disputes
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World Bank rating-2016 – Ranking of India
Ease of doing business in india-131/189 countries
Ease of enforcing contracts-178/189 economies
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Judicial processes-India ranks poor
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• There is no better test of excellence of a government than
the efficiency of its judicial system

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-Lord Bryce
– "…legal redress is time consuming enough to make infinity, intelligible. A lawsuit once started in
India is the nearest thing to eternal life ever seen on this earth........ I am not aware of any country
in the world where litigation goes on for as long a period as in India. Our cases drag over a length of

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time which makes eternity intelligible. The law may or may not be an ass, but in India it is certainly
a snail and our cases proceed at a pace which would be regarded as unduly slow in a community of
snails. Justice has to be blind, but I see no reason why it should be also lame: here it just hobbles
along, barely able to walk.“ Nani.A.Palkiwala
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 Understanding ADR
* The significance

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* The philosophy behind

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* The problem & the need felt
* Litigation X ADR

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* ADR mechanisms in practice
* Legislative efforts – India
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* Understanding the
strengths and Limitations
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 The Is proposition
• Adversarial character (restricted atmosphere)

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• Adjudicatory process- Judge decides outcomes
• Focus on past events-determination of rights/liabilities of parties
• Active participation of parties not mandatory unless stipulated

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• Procedural rigidity
• Proceedings held in public-lack of secrecy
• Decision –appealable
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Cost factor
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No opportunity for parties to directly communicate

Awareness, Mystification, Delay, geographical location

LOSE-WIN SITUATION
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 Courts in crisis

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• Caveats-time consumption, normality of law,

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complexity of norms, hierarchy x finality
• Crashing under weight of arrears
• Que:
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• What kind of disputes?
• Pending for how long?
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• For what reasons?
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 Realities
(Adversarial conflict resolution)

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• Non –organized work
• Overburdening of judiciary
• Non observance of rules and procedure

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• Delayed –procedures & outcomes
• Intricate language of courts
• State –the largest litigator
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Delay in disposal
Vertically mounting appeals
Adjournments-stretched long trials
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• Inadequate judge strength
• De-moralising subordinate court’s work
• Financial burden
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 Govt. caused- Court caused- Bar caused- Litigant caused

DELAYS & ARREARS

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• Lack of priority of matters, quality of judges, inadequate utilization
of judges, trained managerial personnel, research staff, outdated

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methodology,
• Lack of priority to old cases, failure in clubbing cases, modernizing
court management, appeal, review, revisional jurisdiction,
admission of second appeals, non screening of W.P, Prolix

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argumentation, excessive stay/interim orders.
• Tutored witnesesses, manipulated record, Prolonged cross
examinations-piecemeal evidence recording, purpose of preferring
Appeal, lack of exhaustion of local remedies
• Inherent delays
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• The system-
• over legislation-lack of skilled drafting skills-burdening courts-
dysfunctional laws-State as largest employer
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 OUGHT proposition
(Dispute resolution + Reconciliation)

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• Nature of disputes to be categorised-

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specialised treatment
• creative compromises

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• no concept of right and wrong
• there need not be only one winner
• ADR NEVER SUBSTIUTES RATHER IT
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COMPLIMENTS THE PROCESS
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 UNDERSTANDING

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Conflict & dispute

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“A compromise is the art of dividing a cake in such a
way that everyone believes that he has got the

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But what if someone wants the whole cake?
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 THE PERSPECTIVE
Traditional x Contemporary

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• conflicts are caused by trouble-makers

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-are bad-should be avoided or suppressed
• conflicts are inevitable between human

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beings-often beneficial-conflicts are the
natural result of change- conflicts can and
should be managed
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COMPETING
COLLABORATING
COMPROMISING
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AVOIDING
ACCOMMODATING
 Supporting/understanding
people/situation

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• What do I really know about this person?
• Where does my knowledge come from?

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- My own experience? Things other people have said? Rumors? Gossip?
My own prejudices
• What might be important to this person?
• What is something this person needs?

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• What is something this person might like?
• What are some reasons this persons acts the way they do?
• What problems might this person have?
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• What might this person be struggling with?
• What might this person be afraid of?
• What might this person wish he or she could do?
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 Changing /solving for better

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• Fight mode.....

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• Aggressive Behavior..........I win/You lose
• Flight mode.....
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Passive Behavior .........I lose/ You win
Flow Response……
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• Assertive Behaviour.......I Win/ You Win.
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 Litigation ADR

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Goal , Style, Speak & Listen Goal , Style, Speak & Listen

• To win

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• Argumentative
• To establish & convince
• To find flaws & Develop counter
• Mutually acceptable procedure &
solutions
• Collaborative-participatory
• To explain

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arguments
• To understand

• Nature-
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• mandatory processes prior to
court litigation
• voluntary processes
• part of a prior contractual
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agreement between parties.
 Prototypes of ADR
• Tribunals –Art.323-B (42 nd Amd.1976)

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• Commissions
• Boards

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• community based
• Nyaya Panchayat- Traditional-73 rd Amd.1992-

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particpatory governance - civic amenities, social
welfare, development work, resolution of petty cases.
• Lok Adalats- LSA(Amendment) Act, 2002,-Chapter -VI
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• Ombudsman
• Fast Track Courts
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Alternative Dispute Resolution

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ADR Mechanisms
Negotiation

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Conciliation
Mediation

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Hybrid processes
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Negotiation Conciliation Mediation Arbitration

parties voluntarily -third party meets A voluntary and domestic arbitration;

seek a mutually with the disputants informal process in international

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acceptable agreement separately in an effort which the disputing commercial
to resolve their to establish mutual parties select a neutral arbitration;
common dispute. - understanding of the third party(one or more enforcement of
negotiation allows the underlying causes of individuals) to assist foreign award and

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disputants themselves the dispute and them in reaching a conciliation.
to control the process thereby promote mutually-acceptable one or more
and the solution. settlement in a settlement. arbitrators issues a
friendly, un -mediator has no power judgment on the
-direct negotiation
between parties to a
dispute, without the
intervention of a third
party
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antagonistic manner.

-seeking concessions
to impose a solution on
the disputants.

-optimizes parties
needs -reframes
merits
-Expedited process
-each party has the
opportunity to
present proofs and
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representations arguments.
Effect
non –binding non-binding non-binding -admissibility,
relevance, materiality
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& weight of any
evidence
-terms of contract
-trade usages
 Arbitration
Ad hoc Institutional

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• Procedures/rules to be agreed • Already rules are existing
upon by parties • No issues-cost, staff, conduct &

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• Infrastructure facilities- professionalism, choosing
problematic arbitrators etc.,
• Arbitration panel is not readily • Scrutiny of arbitral award by
available experienced committee
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•

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&agreed upon
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High risk of court interference
Fees of arbitrator is negotiated

No rules framed for arbitrators-

risk
•

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Fixed fees-cost is predictable
Arbitrators are governed by rules
of institution
Finding substitutes s arbitrator-
easy-process continues
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• Substitution of arbitrator – • Discipline is maintained-
problematic confidentiality
• Cannot expect professionalism
from secretarial staff
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 Legislative efforts-ADR

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• Industrial Disputes Act, 1946
• Hindu Marriage Act, 1955
• Family Court Act, 1984

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• Consumer Protection Act,1986
• Arbitration and Conciliation Act,1996
• CPC S.89 (1999 Amendment)
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Order 23 Rule 3
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Order 27 Rule 5B
Order 32A
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• Court Fees Act ,1870- S.16(Amd,1999- CPC)-refund of court fee
• Legal Services Authority Act,1987-S.21-refund of court fee
• S.89-2002 Amd.
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• Gram Nyayalaya Act,2008
 Arbitration
• is an adjudicatory process.
• by a chosen private forum-independent
proceeding before arbitral tribunal.
• parties should also be informed that the
cost of arbitration will have to be borne by
them.
• Only if both parties agree for arbitration,
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and also agree upon the arbitrator, the
matter should be referred to arbitration.
• If no pre existing arbitration agreement-
mutual consent of parties is mandatory
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for reference u/S.89
• Once a civil dispute is referred to
arbitration, the case will go outside the
stream of the court permanently and will
not come back to the court.
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• Always ends with a decision
• Award-executable(S.36AC Act)
• if settlement reached-award passed on
such settlement is binding-executable
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u/s.30 AC Act.
FOR REF-
• CONSENT OF PARTIES MANDATORY FOR
BOTH
conciliation
• non-adjudicatory process-
• does not go out of the domain of the court-
process permanently.
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• If the parties are not agreeable for arbitration,
the court should ascertain whether the parties
are agreeable for reference to conciliation which
will be governed by the provisions of the AC Act.
If all the parties agree for reference to
conciliation and agree upon the conciliator/s,
the court can refer the matter to conciliation in
accordance with section 64 of the AC Act.
• If there is no amicable settlement, the matter
reverts back to the court which has to proceed
with the trial after framing issues.
• When the matter is settled through
conciliation, the settlement agreement shall
have the same status and effect as if it is an
arbitral award (vide Section 74 of AC Act) and
therefore it is enforceable as a decree of the
court by virtue of S. 36 of the AC Act.
 UNIQUENESS OF LA

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• Participation & accommodation,
• fairness,

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• expectation,
• voluntariness,
• neighbourliness,
• transparency,
•
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efficiency and

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lack of animosity
APPLICABLE TO –poor/ignorant/illiterate/backward/ disadvantageous
position.
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• rooted in India's history and culture and environment.
• A - Access to courts,
• B - Backlog in courts resulting in delays and
• C - Cost of litigation
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 Legal backing-LA

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Preamble, Part III and Part IV -Art .39-A
• LEGAL SERVICES AUTHORITY ACT,1987

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• ESTABLISHMENT OF PERMANENT LOK ADALAT -2002 Amd.-Public Utility Services –
• conciliation proceedings
-principles of natural justice, objectivity, fair play, equity and other principles of
justice
-transport service for the carriage of passengers or goods by air, road or water; or

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-postal, telegraph or telephone service; or
-supply of power, light or water to the public by any establishment; or
- system of public conservancy or sanitation; or
-service in hospital or dispensary; or
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-insurance service, and includes any service which the Central Government or the
State Government, as the case may be, may, in the public interest, by notification,
declare to be a public utility service for the purposes of this Chapter.
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 Benefits of Lok Adalat

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• Preventive litigation measure
• No court fee- refund of court fees
• No strict application of procedural laws & IEA

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• Presided by –retired judicial officer + lawyer + social worker
• No criteria as to selection of disputes
• Direct access to LA
• Parties to the dispute can directly interact with the Judge
•

•
atmosphere.
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Arriving at a compromise or settlement in friendly and harmonious

Decision(award) is binding-executable-no appeal -P.T. Thomas vs Thomas

Job (2005)
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• Voluntary process
• Quicker & cost effective
• Applicability-
• Pre- litigation, pending & post
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 DISPUTES SUITABLE FOR LOK ADALAT

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• Compoundable civil, revenue and criminal cases.
• Motor accident compensation claims cases·

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• Partition Claims
• Damages Cases
• Matrimonial and family disputes
• Mutation of lands case
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•
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Land Pattas cases·
Bonded Labour cases
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Land acquisition disputes
Bank’s unpaid loan cases
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• Arrears of retirement benefits cases
• Family Court cases
• Cases which are not sub-judice
• Compoundable offenses-assault, house tress pass etc.
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• S.89 -2002 Amd.- process

 Unsuitable for ADR
• Representative suits under Order I
Rule 8 CPC which involve public
interest or interest of numerous
persons who are not parties before
the court.
• Disputes relating to election to public
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offices.
• Cases involving grant of authority by
the court after enquiry, as for
example, suits for grant of probate or
letters of administration.
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• Cases involving serious and specific
allegations of fraud, fabrication of
documents, forgery, impersonation,
coercion, etc.
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• Cases requiring protection of courts,
as for example, claims against minors,
deities and mentally challenged and
suits for declaration of title against
the Government.
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• Cases involving prosecution for
criminal offences.
Suitable for ADR
•
trade, commerce and contracts, including
• disputes arising out of contracts(including all money
suits);
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• disputes relating to specific performance;
• -disputes between suppliers and customers;
• disputes between bankers and customers;
• disputes between developers/builders and customers;
• disputes between landlords and tenants/licensor and
licensees;
• disputes between insurer and insured
• disputes relating to matrimonial causes, maintenance,
custody of children;
• disputes relating to partition/division among family
members/coparceners/co-owners; and
• disputes relating to partnership among partners.
• disputes between neighbours ( relating to easementary
rights, encroachments, nuisance, etc.);
• disputes between employers and employees;
• disputes among members of
societies/associations/apartment owners' associations;
• claims for compensation in motor accidents/other
accidents
• disputes where a trader/supplier/manufacturer/service
provider is keen to maintain his business/professional
reputation and credibility or product popularity.
 Understanding the strengths and limitations
RDR ADR

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• Adjudicator rules • Participatory
• lawyer to tribunal dialogue • Efficacy levels

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• pleadings-issues-decision
• evidence-Decision
• focus on past events
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• improved solutions
• flexibility
• result oriented

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cultural difference not
considered
• strict lesser compromises
• Strict filing rules &procedures
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lawyers role
lessening workload of courts
specialist neutrals
hybrid processes
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• extensive choice of remedies

• better party participation

• Interests+values+goals+desires
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 Understanding the

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strengths and limitations
Introducing ADR within rule of law

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Advantages
Applicability

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Uses
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Limitations for applicability
Background setting
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 Uses of ADR
• Addresses economic restructuring, or the

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management of tensions / conflicts in communities.
• Land claims, economic development planning, environmental issues, conflict and tension in

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the schools, Commercial activities
disputes within the health care system- civic engagement and create public processes

• Within the context of rule of law initiatives-

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Support and complement court reform-Dispute Clearinghouse model
By-pass ineffective and discredited courts
Increase popular satisfaction with dispute resolution
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• Increase access to justice for disadvantaged groups
• Reduce delay in the resolution of disputes
• Reduce the cost of resolving disputes--simplicity of the system and the
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• lack of need for legal representation
 Advantages of ADR
• Can be used during pendency of cases before courts

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• Better solutions at lesser costs
• Promotes realistic solutions-parties take over control

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• Less time- consuming
• Flexibility- procedure &solutions
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•
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Freedom of parties to litigation not restricted
(participatory & collaborative)
Appreciation of case by both sides
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• No need of lawyer representation
• Reduction of workload
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• Assistance of specialists – specialization

• Win –Win situation
 Limitations of ADR

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• Approach- sacrificing too many rights and protections by waiving the
formalities of civil litigation
•

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Lack of public trials & publication of decisions
• Lack of public accountability
• Loss of Law’s educative function
• Privatization of justice
•

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Attitude- too many compromises on rights &protections by waiving formalities of
civil litigation
• Diluting the quality of justice (lack of procedural & evidentiary protections u/civil
litigation)
• Prejudices forms part of dispute resolution process
•
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No legal or procedural protections for weaker parties-spousal abuse cases
• Marginalized sections(women) – poor representation to their status.
• Do not set precedent, refine legal norms, or establish broad community or national
standards,
• Do not promote a consistent application of legal rules.
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 Addressing
Causes & strategy

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• Information-
Agree on considering all interpretations of information

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• Interests and Expectations-
Shift focus from positions to interests-expand options
• Relationships-

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Clarify misconceptions-Improve communication-Focus on improving the
future, not dissecting the past
• Structural Conflicts-
Reallocate ownership and control-Establish fair, mutually acceptable decision-
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making process

• Values-
Allow parties to agree and to disagree-Build common loyalty
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 The needed background setting

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• Art.14 and 21.- Recourse to ADR as a means to have access to justice
• Adequate Political Support &Constituencies whose support may be necessary- Local community
leaders , National and state govt.,Judges and the bar, Advocates and representatives of user groups, Foreign donor

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nation/foundation(s)
• Supportive Cultural Norms- CULTURAL IDEOLOGIES,User acceptance of informal Processes, Appropriate standards for
settlements, Enforcement through community customs and sanctions
• Adequate Human Resources- Public participatory process
• Financial Resources
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•

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Parity in the Power of Disputants-
A fairly balanced legal framework defining disputants' rights
Carefully designed ADR programs -situations of general social power
imbalance.
Procedural protection for those in weaker position-
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• Commercial conciliation and arbitration through the Chamber of Commerce Conciliation Centers, Court-annexed
conciliation, Extra-judicial community conciliation centers
• Choosing "notables" and choosing "progressives“ or "representatives of
disadvantaged groups" as ADR providers.
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• Create an effective outreach and education program to reach users
 “When we change the way we communicate, we change society”
-(Shirky, 2008, p. 17).

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• “Let us never negotiate out of fear but let us never fear to
negotiate.”
• John F. Kennedy

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• Indianization of justice dispensation

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• Humanization of justice dispensation
• Spiritualization of justice dispensation
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Win/win is an attitude, not an outcome.” — Don Boyd

= It is a way of looking at life

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