Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) refers to any means of setting disputes outside of the Court Room.

Alternative Dispute Resolution (ADR) refers to a variety of processes that help parties to resolve disputes
without a trial.

Definition
The process by which disputes between the parties are settled or brought to an amicable result without
the intervention of Judicial Institution and without any trail is known as Alternative Dispute Resolution
(ADR.

ADR offers to resolve all type of matters including civil, commercial, industrial and family etc., where
people are not being able to start any type of negotiation and reach the settlement.

Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences
and resolve the dispute.

It is a method which enables individuals and group to maintain co-operation, social order and provides
opportunity to reduce hostility.

Alternative Dispute Resolution (ADR) Mechanisms

ADR is a mechanism of dispute resolution that is non adversarial, i.e. working together co-operatively to
reach the best resolution for everyone.

ADR can be instrumental in reducing the burden of litigation on courts, while delivering a well-rounded
and satisfying experience for the parties involved.

It provides the opportunity to “expand the pie” through creative, collaborative bargaining, and fulfill the
interests driving their demands.

Types of ADR
Arbitration
The dispute is submitted to an arbitral tribunal which makes a decision (an “award”) on the dispute that
is mostly binding on the parties.

It is less formal than a trial, and the rules of evidence are often relaxed.

Generally, there is no right to appeal an arbitrator’s decision.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration
process.
Conciliation
A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute
in reaching a mutually satisfactory agreed settlement of the dispute.

Conciliation is a less formal form of arbitration.

The parties are free to accept or reject the recommendations of the conciliator.

However, if both parties accept the settlement document drawn by the conciliator, it shall be final and
binding on both.

Mediation
In mediation, an impartial person called a “Mediator” helps the parties try to reach a mutually
acceptable resolution of the dispute.

The mediator does not decide the dispute but helps the parties communicate so they can try to settle
the dispute themselves.

Mediation leaves control of the outcome with the parties.

Negotiation
A non-binding procedure in which discussions between the parties are initiated without the intervention
of any third party with the object of arriving at a negotiated settlement to the dispute.

It is the most common method of Alternative Dispute Resolution.

Negotiation occurs in business, non-profit organizations, government branches, legal proceedings,

among nations and in personal situations such as marriage, divorce, parenting, and everyday life.

Lok Adalat
An interesting feature of the Indian legal system is the existence of voluntary agencies called Lok Adalats
(Peoples’ Courts).

The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and

The new Arbitration and Conciliation Act was enacted in 1996.

Lok Adalat or “People’s Court” comprises an informal setting which facilitates negotiations in the
presence of a judicial officer wherein cases are dispensed without undue emphasis on legal
technicalities.
The order of the Lok-Adalat is final and shall be deemed to be a decree of a civil court and shall be
binding on the parties to the dispute.

The order of the Lok-Adalat is not appealable in a court of law

Importance of ADR In India

To deal with the situation of pendency of cases in courts of India, ADR plays a significant role in India by
its diverse techniques.

Alternative Dispute Resolution mechanism provides scientifically developed techniques to Indian

judiciary which helps in reducing the burden on the courts.

ADR provides various modes of settlement including, arbitration, conciliation, mediation, negotiation
and lok Adalat. Here, negotiation means self-counseling between the parties to resolve their dispute but
it doesn’t have any statutory recognition in India.

ADR is also founded on such fundamental rights, article 14 and 21 which deals with equality before law
and right to life and personal liberty respectively.

ADR’s motive is to provide social-economic and political justice and maintain integrity in the society
enshrined in the preamble.

ADR also strive to achieve equal justice and free legal aid provided under Article 39-A relating to
Directive Principle of State Policy (DPSP).

ADR has proven successful in clearing the backlog of cases in various levels of the judiciary –

Lok Adalats alone have disposed more than 50 lakh cases every year on average in the last three years.

But there seems to be a lack of awareness about the availability of these mechanisms.

The National and State Legal Services Authorities should disseminate more information regarding these,
so they become the first option explored by potential litigants.

Important Provisions Related To ADR

Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people, if it appears to
court there exist elements of settlement outside the court then court formulate the terms of the
possible settlement and refer the same for: Arbitration, Conciliation, Mediation or Lok Adalat.

The Acts which deals with Alternative Dispute Resolution are

i. Arbitration and Conciliation Act, 1996

and,

ii.The Legal Services Authority Act, 1987

Advantages of Alternative Dispute Resolution
 Less Time Consuming: people resolve their dispute in short period as compared to courts
 Cost effective method: it saves lot of money if one undergoes in litigation process.
 It is free from technicalities of courts; here informal ways are applied in resolving dispute.
 People are free to express themselves without any fear of court of law. They can reveal the true
facts without disclosing it to any court.
 Efficient way: there are always chances of restoring relationship back as parties discuss their
issues together on the same platform.
 It prevents further conflict and maintains good relationship between the parties.
 It preserves the best interest of the parties.

References:

https://singhania.in/alternative-dispute-resolution-in-india-a-brief-overview/

https://www.mondaq.com/india/Litigation-Mediation-Arbitration/654324/Alternate-Dispute-
Resolution-ADR-In-India

https://www.drishtiias.com/to-the-points/Paper2/alternative-dispute-resolution-adr-mechanisms-
paper-2

https://blog.ipleaders.in/adr-alternative-dispute-resolution/

https://hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-resolution.html

https://slideplayer.com/slide/17070661/

Alternate Dispute Resolution Mechanism

The Concept & its efficacy:
“It is the spirit and not the form of law that keeps the justice alive.” LJ Earl Warren

The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a
new mechanism of dispute resolution that is non adversarial. A dispute is basically ‘lis inter partes’ and
the justice dispensation system in India has found an alternative to Adversarial litigation in the form of
ADR Mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in
dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have
the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control,
gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of
justice in each individual case. The resolution of disputes takes place usually in private and is more
viable, economic, and efficient. ADR is generally classified into at least four types: negotiation,
mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well,
but for present purposes it can be regarded as a form of mediation

Need of ADR in India:

The system of dispensing justice in India has come under great stress for several reasons mainly because
of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a
tremendous increase in recent years resulting in pendency and delays underlining the need for
alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief
Ministers and the Chief Justices of States in a conference held in New Delhi on 4 th December 1993 under
the chairmanship of the then Prime Minister and presided over by the Chief Justice of India.

It said: “The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to
bear the entire burden of justice system and that a number of disputes lent themselves to resolution by
alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of
disputants taking advantage of alternative dispute resolution which provided procedural flexibility,
saved valuable time and money and avoided the stress of a conventional trial”.

In a developing country like India with major economic reforms under way within the framework of the
rule of law, strategies for swifter resolution of disputes for lessening the burden on [1]the courts and to
provide means for expeditious resolution of disputes, there is no better option but to strive to develop
alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of
disputes through arbitration, conciliation, mediation and negotiation.2

Impact/resulting acts of ADR:

The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial
system. It is a fast track system of dispensing justice. There are various ADR techniques viz. arbitration,
mediation, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-
annexed ADR and summary jury trial.

These techniques have been developed on scientific lines in USA, UK, France, Canada, China, Japan,
South Africa, Australia and Singapore. ADR has emerged as a significant movement in these countries
and has not only helped reduce cost and time taken for resolution of disputes, but also in providing a
congenial atmosphere and a less formal and less complicated forum for various types of disputes.
The Arbitration Act, 1940 was not meeting the requirements of either the international or domestic
standards of resolving disputes. Enormous delays and court intervention frustrated the very purpose of
arbitration as a means for expeditious resolution of disputes. The Supreme Court in several cases
repeatedly pointed out the need to change the law. The Public Accounts Committee too deprecated the
Arbitration Act of 1940. In the conferences of Chief Justices, Chief Ministers and Law Ministers of all the
States, it was decided that since the entire burden of justice system cannot be borne by the courts
alone, an Alternative Dispute Resolution system should be adopted. Trade and industry also demanded
drastic changes in the 1940 Act. The Government of India thought it necessary to provide a new forum
and procedure for resolving international and domestic disputes quickly.

Thus “The Arbitration and Conciliation Act, 1996”came into being. The law relating to Arbitration and
Conciliation is almost the same as in the advanced countries. Conciliation has been given statutory
recognition as a means for settlement of the disputes in terms of this Act. In addition to this, the new
Act also guarantees independence and impartiality of the arbitrators irrespective of their nationality.
The new Act of 1996 brought in several changes to expedite the process of arbitration. This legislation
has developed confidence among foreign parties interested to invest in India or to go for joint ventures,
foreign investment, transfer of technology and foreign collaborations.

The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In
conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that
resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do not develop
strained relations; rather they maintain the continued relationship between themselves.

Arbitration and Conciliation Act, 1996

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation.
(Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.)

Arbitration:
The process of arbitration can start only if there exists a valid Arbitration Agreement between the
parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing.
The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer
to a separate document signed by the parties containing the arbitration agreement. The existence of an
arbitration agreement can also be inferred by written correspondence such as letters, telex, or
telegrams which provide a record of the agreement. An exchange of statement of claim and defence in
which existence of an arbitration agreement is alleged by one party and not denied by other is also
considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not
cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are
only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable
doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as
required by the arbitration agreement. A sole arbitrator or panels of arbitrators so appointed constitute
the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration
process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to
challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the
tribunal rejects the request, there is little the party can do accept to approach a court after the tribunal
makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil
court of original jurisdiction for setting aside the award.

Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected,
the award is binding on the parties and is considered as a decree of the court.

Conciliation
Conciliation is a less formal form of arbitration. This process does not require an existence of any prior
agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred
but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects
an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and the
points at issue. Each party sends a copy of the statement to the other. The conciliator may request
further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties
may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of
settlement and send it to the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both.

Note that in USA, this process is similar to Mediation. However, in India, Mediation is different from
Conciliation and is a completely informal type of ADR mechanism.

Mediation
Mediation, a form of alternative dispute resolution (ADR) or “appropriate dispute resolution”, aims to
assist two (or more) disputants in reaching an agreement. The parties themselves determine the
conditions of any settlements reached— rather than accepting something imposed by a third party. The
disputes may involve (as parties) states, organizations, communities, individuals or other representatives
with a vested interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue between
disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed
matter. Normally, all parties must view the mediator as impartial.

Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace,
community and family matters.

A third-party representative may contract and mediate between (say) unions and corporations. When a
workers’ union goes on strike, a dispute takes place, and the corporation hires a third party to intervene
in attempt to settle a contract or agreement between the union and the corporation.

Negotiation
Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action,
to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the
primary method of alternative dispute resolution.

Negotiation occurs in business, non-profit organizations, government branches, legal proceedings,

among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The
study of the subject is called negotiation theory. Those who work in negotiation professionally are called
negotiators. Professional negotiators are often specialized, such as union negotiators, leverage buyout
negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats,
legislators or brokers

Lok Adalat:
“While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok
Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian
approach”.
It roughly means “People’s court”. India has had a long history of resolving disputes through the
mediation of village elders. The system of Lok Adalats is an improvement on that and is based on
Gandhian principles. This is a non-adversarial system, where by mock courts (called Lok Adalats) are held
by the State Authority, District Auth[2]ority, Supreme Court Legal Services Committee, High Court Legal
Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as
they thinks fit. These are usually presided by retired judge, social activists, or members of legal
profession. It does not have jurisdiction on matters related to non-compoundable offences.

There is no court fee and no rigid procedural requirement (i.e. no need to follow process given by Civil
Procedure Code or Evidence Act), which makes the process very fast. Parties can directly interact with
the judge, which is not possible in regular courts.

Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A
case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some
chance of settlement after giving an opportunity of being heard to the other party.

The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to
the court. However, if a compromise is reached, an award is made and is binding on the parties. It is
enforced as a decree of a civil court. An important aspect is that the award is final and cannot be
appealed, not even under Article 226 because it is a judgement by consent.

All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to
be a Civil Court.

Lok Adalat (people’s courts), established by the government, settles dispute through conciliation and
compromise. The First Lok Adalat was held in Chennai in 1986. Lok Adalat accepts the cases which could
be settled by conciliation and compromise and pending in the regular courts within their jurisdiction.

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other
members, usually a lawyer and a social worker. There is no court fee. 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. The procedural
laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok
Adalat.

Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. 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.
Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and
matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an
approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

Evolution and Codification of ADR in India

The process of arbitration is not alien to India. It always had been practiced since time immemorial. In
India, people believed in resolving disputes within the four walls because this was somewhere
considered as an element to protect their dignity and personality in the society. Hence, the mechanism
gained significance in India since Ancient times

Ancient India
In ancient India when there was Kulas, people used to live in joint families with their clans and when
there was caste system prevalent in the society. The disputes among the kulas were resolved by the
head of the of the family, clan or Kula. Likewise, when there was common trade, corporations or Shrenis
among the people, they used to appoint person to resolve the disputes within the Shrenis.

Pre- Independence: British rule

During the British rule in India, many legislations were introduced and a drastic change came in the
administration of India. In 1772, the courts were empowered to refer disputes to arbitration either at
the request of the parties or by its own discretion. Then after a decade, in 1859 The Code of Civil
Procedure was enacted, sections 312 to 327 of the act mentioned arbitration but in 1882 the sections
relating to arbitration was repealed.

In 1899 The Indian Arbitration Act, 1899 was enacted to give effect to alternate dispute mechanism in
India. The act was based on the English legislation.

Then in 1908, CPC was again amended and section 89 with second schedule gave wide powers to the
courts to refer the disputes to ADR mechanism. Then, The Indian Arbitration Act, 1899 and section 89
read with second schedule of Code of Civil Procedure, 1908 were two effective legislation to deal with
arbitration.
Thereafter, in 1937 Geneva Convention was signed and adopted by India and a parallel legislation was
introduced in the form of The Arbitration (Protocol and Convention) Act, 1937. In 1940, The Indian
Arbitration Act, 1899 and section 89 with second schedule of CPC was repealed and replaced by The
Arbitration Act, 1940.

In local levels Panchayats were very effective in resolving the disputes in villages in India

Post- Independence Era

The Arbitration (Protocol and Convention) Act, 1937 for the enforcement of foreign awards and The
Arbitration Act, 1940 for referring disputes to ADR mechanism were presently in force in India. Then in
1961, India became signatory to the New York Convention and The Foreign Award (Recognition and
Convention) Act, 1961 was enacted.

In 1981, in M/S Guru Nanak Foundation vs. Rattan Singh & Sons, the Supreme Court described the
Arbitration Act, 1940 in off- quoted passage. It observed that “the way in which the proceedings under
the act are conducted and without an exception challenged in courts, has made lawyers laugh and legal
philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under
the act have become highly technical and accompanied by unending prolixity, at every stage providing a
legal trap to the unwary.”

In 1985, the UNCITRAL model law was adopted and signed by India on International commercial
arbitration.
In 1996, finally The Arbitration (Protocol and Convention) Act, 1937; The Arbitration Act, 1940 and The
Foreign Award (Recognition and Convention) Act, 1961 was repealed and consolidated in a single piece
of legislation following the UNCITRAL model law, the act was called the Arbitration and Conciliation Act,
1996. To make the act more effective and efficient Section- 89 with Order- X (Rule- 1A to 1C) was re-
introduced in CPC in 2002. The act of 1966 was amended twice in 2015 and 2019. However, to deal with
ADR mechanism we have a consolidated, single, effective, efficient and a good piece of legislation.

Evolution of ADR in India

Codification of ADR in India

Tracing the enactment of Arbitration and Conciliation Act, 1996