ILE JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW Published by

VOLUME I AND ISSUE I OF 2023 Institute of Legal Education

APIS – 3920 – 0046 | ISBN - 978-81-964391-3-2 https://iledu.in

CONTEMPORARY ISSUES IN ALTERNATIVE DISPUTE RESOLUTION

AUTHOR – SOYAB KHAN, IIMT COLLEGE OF LAW, GREATER NOIDA

Best Citation - SOYAB KHAN, CONTEMPORARY ISSUES IN ALTERNATIVE DISPUTE RESOLUTION, ILE JOURNAL
OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW (ILE JADRLR), 1 (1) of 2023, Pg. 1-6, APIS – 3920 – 0046 |
ISBN - 978-81-964391-3-2.

Abstract-

“Justice delayed is Justice denied and Justice hurried is Justice buried” – Dr. Martin Luther King Jr. This
phrase means that if justice is not carried away earlier even if it delivers later will not be the real
justice because when there was a need of that justice, it was not carried away. So in order to
accelerate the process of justice delivery, the concept of Alternate Dispute Resolution has emerged in
the world and in India also. This article helps to get insight knowledge of the history as well as current
trend going on in the field of ADR. This article also helps the reader to understand the concept of ADR
and its types. The emerging issues which are degrading the value of ADR as well as suggestions are
tried to bring in this article to better understand the problems and the ways to resolve these issues.

Keywords – Alternate Dispute Resolution, ADR, Mediation, Counselling, Lok Adalat

I. Introduction – The concept of ADR is not mechanism in India but it had developed over a
a new concept in India. It has emerged from period of time. New forms of ADR got developed
ancient times to today itself and founded to be and collectively enriching the dispute resolving
an effective tool to settle down the disputes and mechanism.
promotes harmony among the society. ADR Over the period of time, ADR had established
caters various forms such as mediation, itself as an efficient tool for accelerated justice
conciliation, arbitration, negotiation, etc. some delivery and ease the process of legal
of these types are existed since ages in India. framework. But with the advent of ADR in India
Mediation is one of the forms which has proved seems efficient, it also possessed several issues
its significant importance from past time. In adjoined with itself resulting in more
ancient times, when a dispute among two complexities in Indian judicial system and its
business parties emerged, their disputes were Jurisprudence. ADR such as mediation,
referred to a mediator known as ‘Mhajans’ and arbitration, conciliation, negotiation etc. had
in villages, they were known as ‘panchas’. These proved its effectiveness but its result founded to
panchas were consists of five persons, be insufficiently low.
collectively called as “Panch Parmeshwar’’ who II. ADR OVERVIEW :-
were prominent and elder persons of the
society and they resolved the disputes among ADR is defined as Alternate Dispute Resolution
parties after hearing all their concerns. This which is a mechanism for resolving disputes
practise of Panchas is still existed today in among parties. It is an alternate form of method
Indian villages. In Mahabharata, Lord Krishna which counters dispute resolving in an
also played a role of a mediator and mediate accelerated manner and require less resources.
the disputes among the Kaurvas and Pandyas. One of the special feature of ADR is that it is a
This concludes that ADR is not a novel hassle free process in which people does not

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 ILE JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW Published by

VOLUME I AND ISSUE I OF 2023 Institute of Legal Education

APIS – 3920 – 0046 | ISBN - 978-81-964391-3-2 https://iledu.in

require to visit courts and found it difficult to D. Lok Adalat – Lok Adalat is one of the
resolve their dispute. Some of the common innovative method in alternate dispute
methods of ADR are as follows:- resolution which is established by the
A. Arbitration – Arbitration is one of the government to settle the disputes among
method of ADR in which the disputing parties parties through compromise and adjudication.
engages a third person known as arbitrator who Lok Adalat is governed by the Legal Services
hears their disputes, examines the presented Authority Act, 1987 which consists of matters
evidences of both the parties and then made a which are allowed to be settled amicably by the
decision over it. The decision made by the parties such as Civil cases, matrimonial cases,
arbitrator bounds both the disputing parties to MACT cases and petty offence cases. Lok Adalat
accept and abide by the decision of the are organized by District Legal Service Authority
arbitrator. In India, Arbitration is governed by in their jurisdictional courts.
Arbitration and Conciliation Act, 1996 which
paved the way to speedy justice and helped out III. Contemporary Issues in Alternative
the courts to reduce the burden of pending Dispute Resolution Law Review –
cases of Indian Courts. The current regime of Alternate Dispute
B. Mediation – Mediation is another form of Resolution developed over a period of time but
method in which a third person known as there are several issues which acted as a
mediator who is appointed by the disputing barrier to growth of Alternative Dispute
parties, agreed mutually or the court appoint a Resolution in India as follows:-
mediator if the disputing parties failed to 1. Contemporary Issues in reference to
appoint a mediator. The disputing parties then Arbitration form of Alternate Dispute Resolution
approached the mediator and disclosed all the –
disputed facts and then the mediator made Arbitration is one of the best method of dispute
efforts to reach on a mutual settlement agreed resolution among parties outside of
by the disputing parties. However, the decision conventional Court proceedings. While
made by the mediator is not binding on the Arbitration offers several benefits, there are
disputing parties as the mediator only several contemporary issues associated with
enunciate the negotiation which both the this form of ADR such as:-
disputing parties could reach on the mutual a. Lack of Dispute resolving skills in
agreed settlement. Arbitrator
C. Conciliation – Conciliation is another b. Lack of Proper Infrastructure
kind of Alternate Dispute Resolution which is c. Lack of Awareness
also governed by the Arbitration and d. Outdated existing Law
Conciliation Act, 1996. It is completely out of  Lack of Dispute Resolving skills in
court method to resolve the disputes among Arbitrator
parties. A conciliator is a third person who is Arbitration is a very professional quality of a
appointed to hear the dispute and formulate a person. Arbitrator has not only solve the
proposal to the disputing parties in order to problem between the parties but has to deliver
resolve their disputes. However, the proposal the decision which satisfies the disputing
made by the conciliator is voluntary in nature parties. These skills are really important in a
and does not binds the parties to accept the person i.e. arbitrator. It has seen that most of
proposal. Either of the disputing party may the arbitrators lacks these qualities resulted in
refuse to accept the proposal and are free to the low scope of dispute resolution by ADR.
abide or not to abide by the provisions of the
proposal.

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 ILE JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW Published by

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which result in variations in the caliber of

 Lack of Proper Infrastructure mediation services rendered.
The arbitration is a process in which it requires  Mediated agreement enforceability
special attention for the settlement of dispute Agreements reached through mediation are
through an arbitrator. This requires arbitration generally enforceable and binding, but ensuring
sessions are take place in a proper arbitration compliance can be difficult. Sometimes parties
centre which must be available for conduction will reach an agreement during mediation, but
of these sessions. they'll later break it or try to renegotiate the
 Lack of Awareness terms. Maintaining confidence in the mediation
Despite its advantages, arbitration is not widely process depends on making sure that
known or used in India as an alternative dispute mediated agreements can be enforced.
resolution method. Many people and  Lack of Appropriate Law:
companies are unaware of arbitration as a Since there is no legal authority to bind the
viable option for resolving disputes or are mediation process, it is informal relates to a lack
reluctant to participate in the procedure due to of confidence in the mediation process. Judicial
worries about its enforceability, a lack of justice's lack of effectiveness is a direct result of
confidence in the arbitrators, or perceived disputes involving legal proceedings in Indian
biases. courts has shown to be a time-consuming,
 Outdated of existing law expensive, and difficult process. In accordance
The Arbitration and Conciliation Act was with section 89 of Code of Civil Procedure, which
enacted in India in 1996 to regulate arbitration specifies how mediation process should be
proceedings, but it has since undergone done. There is no such statutory or legal sanctity
numerous revisions. The extent of judicial to follow the settlement, despite the mediation
review, excessive court interference, and the process, a mediator's rule applies. So, it's
enforcement of arbitral awards are some of the necessary for the appropriate implementation
provisions that continue to raise questions. The of the mediation -related legislation.
arbitration process is frequently hampered by 3. Contemporary Issues in reference to
these problems due to confusion and conciliation form of Alternate Dispute Resolution
uncertainty. –
2. Contemporary Issues in reference to As a form of alternative dispute resolution
Mediation form of Alternate Dispute Resolution – (ADR), conciliation entails the involvement of a
Due to its success in resolving disputes, third party who is impartial in the process of
mediation has become a popular alternative mediating disputes. Conciliation has a number
dispute resolution (ADR) technique worldwide. of benefits, but there are also some current
However, there are new concerns about problems with it. Among them are the following:
mediation that must be addressed. These a. Voluntary Participation
problems include some of the following:- b. Non-Binding Decision
a. Standard and Consistency of Mediators c. Selection of Qualified Conciliators
b. Mediated agreement enforceability  Voluntary Participation – Participation
c. Lack of Appropriate Law of All Parties: Conciliation is dependent on the
 Standard and Consistency of Mediators participation of all parties. Assuring the parties'
Mediators' abilities and dependability can differ willingness to participate in the conciliation
greatly. To facilitate efficient and impartial process, though, is one of the modern issues.
mediation processes, mediators should have a Some parties might be hesitant to take part
high level of expertise, training, and experience. because they have doubts about how effective
However, some jurisdictions lack standardized or fair the process will be, or they might choose
accreditation and regulation of mediators,

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 ILE JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW Published by

VOLUME I AND ISSUE I OF 2023 Institute of Legal Education

APIS – 3920 – 0046 | ISBN - 978-81-964391-3-2 https://iledu.in

to use a different method of resolving their  Enforcement Issues

differences. Despite the fact that Lok Adalat judgments and
 Non-Binding Decision – Decisions made awards are enforceable in court, there have
through conciliation are not legally binding, in been some cases where parties breach the
contrast to arbitration. Although the conciliator terms of the settlements and awards. It can be
assists parties in coming to a mutually difficult to implement Lok Adalat judgments,
acceptable resolution, the agreement is not and it can occasionally take a long time and be
binding unless both parties voluntarily abide by laborious to turn a Lok Adalat settlement into a
it. The absence of legally binding decisions can court order.
occasionally lead to disputes resurfacing or
parties failing to adhere to the terms of the  Lack of Knowledge
agreement. Many people, particularly in rural areas, might
 Selection of Qualified Conciliators – not be aware of the idea and advantages of Lok
Conciliators should be chosen carefully Adalat. Because of this ignorance, Lok Adalat's
because their abilities, knowledge, and potential as an ADR mechanism is underutilized.
objectivity are crucial to the process's outcome. Public awareness campaigns are required to let
However, choosing a qualified conciliator can people know about the benefits of Lok Adalat, as
be difficult, especially when there is a small pool well as how to use its services.
of qualified and experienced individuals
available. Another difficulty in ensuring the  Limited Expertise
competence of conciliators is the absence of Retired judges, attorneys, and social workers
specialized conciliation training programs or who serve as conciliators or mediators
standards. frequently make up Lok Adalats. The skill and
4. Contemporary Issues in reference to Lok knowledge of these conciliators can differ,
Adalat form of Alternate Dispute Resolution – especially in highly specialized fields like
In India, the Lok Adalat is a type of people's business disputes, intellectual property, or
court where disputes are arbitrated or settled technical issues. The effectiveness of Lok
through settlement talks or mediation. Although Adalats can be increased by ensuring the
Lok Adalat has been important in providing availability of skilled and trained mediators in a
accessible and quick justice, there are some variety of fields.
current problems with this mechanism. Several
are listed below: IV. SUGGESTIONS
a. Limited Scope The following recommendations can be taken
b. Enforcement Issues into consideration in order to improve the
c. Lack of Knowledge problems with Alternative Dispute Resolution
d. Limited Expertise (ADR), which includes various methods like
 Limited Scope arbitration, mediation, conciliation, and Lok
Lok Adalats primarily handle cases that fall into Adalat.:-
defined categories, such as ongoing legal  To increase awareness and educate the
proceedings, pre-litigation issues, and criminal public, businesses, and legal professionals
offenses that can be compounded. Due to its about the advantages and accessibility of ADR
narrow scope, Lok Adalat cannot be used to techniques, advocate awareness campaigns.
settle certain complex or uncompoundable To spread knowledge about ADR and how
cases of disputes. effective it is at resolving disputes, hold
workshops, seminars, and training sessions.
 Strengthening the Legal Framework: The
laws governing ADR procedures should be

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 ILE JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION LAW REVIEW Published by

VOLUME I AND ISSUE I OF 2023 Institute of Legal Education

APIS – 3920 – 0046 | ISBN - 978-81-964391-3-2 https://iledu.in

regularly reviewed and updated. Make sure that resolution. This can make it easier for
laws include provisions for the enforceability of participants to participate remotely, lower
agreements and awards, minimal court geographic barriers, and simplify administrative
involvement, and precise rules for tasks.
confidentiality and privacy in order to create a  Evaluate and Monitor Performance:
supportive and favourable environment for ADR. Continually assess the efficiency of ADR
 Create Accreditation and Training providers and processes to pinpoint areas for
Programs: Create accreditation and improvement, collect user and stakeholder
certification programs for mediators, feedback. Keep an eye on the effectiveness of
arbitrators, and conciliators. Establish case handling, the satisfaction of the parties
standardized training programs to advance the involved, and the quality of ADR services.
professionalism, expertise, and skills of ADR  Collaboration and Cooperation: Promote
practitioners. To ensure the ongoing communication, coordination, and cooperation
improvement of ADR services, promote ongoing among the various ADR participants, including
professional development. the judiciary, the bar, business associations, and
 Enhance Quality Control and Regulation: service providers. To discuss problems,
Implement ADR service quality control and exchange best practices, and advance ADR as
regulation mechanisms. Establish committees the preferred dispute resolution method,
or organizations in charge of establishing encourage communication and information
guidelines, observing practitioners' conduct, sharing.
and resolving grievances or disagreements These recommendations can be put into
involving ADR procedures. In ADR proceedings, practice to improve the overall efficacy,
this can support preserving the processes' acceptability, and accessibility of ADR, which
professionalism, morality, and fairness. will result in faster dispute resolution and less
 Enhance the fusion of alternative dispute stress on the traditional court system.
resolution practices with the established legal V. CONCLUSION
framework. Establish systems for seamless Alternative Dispute Resolution has emerged its
coordination, such as clear guidelines for ADR growth through the ages. Presently, it has
referral, enforcement of ADR outcomes, and become a substitute over traditional litigation.
collaboration between ADR providers and People are choosing it for its various
courts. Encourage courts to support and advantages such as acceleration, less formality
actively promote the use of ADR. and quick dispute resolution. It will not be wrong
 Encourage Specialization: Encourage to say that ADR has emerged as one of the
ADR specialization by creating ADR panels or great instrument in lessen down the burden of
centres that concentrate on particular fields, the courts. However, there is an urgent need to
such as business disputes, construction bring more effective laws in the field of
disputes, family law, or intellectual property. As Alternative Dispute Resolution. The issues
a result, it will be possible to guarantee that ADR pertains to ADR must be tackle down as to
practitioners are well-versed in these create more effectiveness of ADR and
specialized fields and skilled at handling alternatively lessen the burden of pending
disputes there. cases in India.
 Adoption of Technology: Incorporate VI. REFERENCE
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document sharing and case management, -3313-justice-delayed-is-justice-
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APIS – 3920 – 0046 | ISBN - 978-81-964391-3-2 https://iledu.in

called%20the,hence%20the%20justice%20is%20d
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2. Samriddhi Rai, Introduction to ancient
first mediation law bill 2021,
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Malhotra, Emerging Issues pertaining to
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