Introduction

The aim of law

Delivery is justice within a reasonable time is a fundamental right under the Constitution.

In Hussainara Khatoon case, Sheela Barse case, it was held that speedy trial and delivery of justice
within a reasonable time are the basis of a fair trial.

Justice Warren Burger says “….the obligation of our profession is, or has long thought to be, to serve as
healers o human conflict. To fulfill our traditional obligation, we should provide mechanisms that can
produce an acceptable result in the shortest possible time, with the least possible expense and, with a
minimum stress on participants. That is what justice is all about.”
Judicial system under strain

 expensive, inaccessible, ineffective

 increasing pendency

 lack of sufficient resources

 vacancies in institutions

 multiplication of the number of courts/appeals

 multiplication of laws and creation of new rights has escalated the burden on
courts
Justice YV Chandrachud- “The legal system of India, in its present form, will
collapse under its own weight within the next ten years. I believe people will lose
confidence in the system of administration of justice.”

Traditionally, litigation in a formal court was considered as the sole mechanism for
dispute resolution in the Anglo-American model of legal systems. It was regarded as
the most impartial, determinative, and binding.

However, given the constraints stated above, people began to explore alternatives.
Thus emerged ADR mechanisms.
 ADR
ADR is a generic acronym that stands for an array of DR mechanisms that are alternatives to formal court
litigation for resolution of legal disputes. It is consensual, non-adversarial, flexible.

Various ADR techniques are- arbitration, mediation, conciliation, court-annexed arbitration, mediation-
arbitration, mini-trial, private judging, etc.

Traditionally, ADR processes were solely voluntary or consensual means of dispute settlement. Parties had to
agree to choose these processes consensually. But under modern approach, many legal systems legislatively
require certain disputes to be attempted to be solved by ADR processes first. Under such laws, Courts are
vested with powers to compulsorily refer disputes to ADR if they think the matters are fit or such.
ADR itself could be court-annexed, or private.

Private ADR is designed to be independent of formal court system- commercial

arbitration, conciliation, mediation as agreed by parties.

Court-annexed- judicial settlement wherein a neutral third party appointed by the

Court assists the disputants in reaching a mutually acceptable solution – improve
access to courts while reducing court backlog and preserving important social
relationships for disputants.
Various ADR processes can also be distinguished on the basis of their binding and
non-binding character.

Negotiation, Mediation, Conciliation are non-binding forms- the success of this

process is wholly dependent on the willingness of the parties to reach a voluntary
agreements.

On the other hand, the results of arbitration are generally binding on the parties.
Arbitration is a private adjudication process entered by parties by an agreement
between them and the award given by the arbitrator is final and binding upon the
parties.
Advantages of ADR
 Private process- confidentiality is maintained

 Expeditious

 Informal

 Flexible due to lack of procedural technicalities- For instance, it can be used at any time, even during
pendency of Court proceedings. However, recourse to ADR as soon as the dispute arises usually confers the
maximum benefits.

 Decision-making process is controlled by the parties

 Amicable-relationship of the parties remains secure

 Promotes creative realistic solutions

 Freedom to litigate is not affected by ADR proceedings.

 Reduces workload of courts thereby allowing courts to focus on important matters

Disadvantages of ADR

 Difficult task despite cooperation because of unequal bargaining power between

the parties- the weaker party may require court protection.
 Settlement may not result in a binding solution- waste of time and resources.
Scope and differences of major ADR
processes
Arbitration

It is a private adjudicatory process wherein parties, by agreement decide to refer their

dispute to be settled by a neutral adjudicator through a binding final decision called the
award.

Once a dispute is referred to arbitration, the case will go outside the stream of litigation
permanently and will not come back to courts except for legally permissible remedies.

The arbitrator plays the role of an adjudicator and will also have the power to grant
interim remedies.
Mediation

It is a structured, facilitative negotiation process in which the disputing parties

engage the assistance of a neutral third party to help them arrive at an agreed
resolution of the dispute.

The mediator has no authority to make binding decisions on the parties. He uses
certain procedures, techniques, skills to help them negotiate an agreed resolution. The
mediator only plays a facilitative role.
Conciliation

It is also a facilitative negotiation process involving the assistance of a neutral third party.

However, when compared to a mediator, the conciliator plays a more pro-active interventionist role by
suggesting possible solutions to help achieve a settlement. Therefore, the difference between conciliator
and mediator lies in the fact that the conciliator can make proposals for a settlement and formulate or
reformulate terms of settlement while the mediator would merely facilitate a settlement between the
parties.

Another difference when compared to mediation is that conciliation is used in agencies that administer
rights granted under a legislation, and in tribunals and courts. For instance, the Industrial Disputes Act
1947 and the Family Courts Act 1984. Where law ordains conciliation for the protection of family life or
preservation of industrial peace, conciliation no longer remains a voluntary process.
Judicial Settlement

Judicial settlement is a compromise entered by the parties with court assistance-

either by the same judge or another judge to whom the matter was referred. Black’s
Law Dictionary defines ‘judicial settlement’ as “the settlement of a civil case with the
help of a judge who is not assigned to adjudicate the dispute.
Negotiation
It is a process initiated by the parties themselves to resolve a dispute. One disputant takes
initiative to talk to the other disputant, re-establish the process of communication, and come to
a settlement. No third party is acts as the negotiator. However, there maybe a third party
involved in negotiations as a trusted friend, lawyer, accountant without there being a
formalized structure for such assistance.
Other emerging ADR options
 Mini-trial in which parties present arguments and evidence to a dispute-resolution practitioner or a
judge who would then provide advice as to the possible and desirable outcomes and modes of
achieving these outcomes.
 Med-Arb- Mediation-Arbitration could take two forms. Either the mediator, by agreement, acts as
a mediator first and then the arbitrator if unresolved issues persist. Or a separate arbitrator is pre-
selected to deal with unresolved issues post-mediation.
 Arb-Med- Arbitration-Mediation- An Arbitration hearing is conducted and an award follows. The
parties then conduct mediation. If the dispute persists, then the arbitral award is binding.
 MEDALOA- ‘Mediation and Last Offer Arbitration’- At the conclusion of an unsuccessful
mediation, the mediator considers each party’s last offer and then makes a decision as to which
offer is reasonable enough to be accepted as a settlement. He cannot propose a different result.
Objectives Arbitration Litigation Mediation and Negotiation
  Conciliation

Speed 1 0 3 3
Minimize cost 1 0 2 3
Confidentiality 3 0 3 3
Amicability 1 0 3 3
Neutrality of 2 3 1 0
Opinion

Evidence and 3 3 1 0
Discovery

Interim measures 3 3 0 0

Precedential value 0 3 0 0

Vindication 2 3 1 0
Binding value 3 3 0 0
Analyze the goals and impediments to suggest the most effective and least effective dispute
resolution processes.

1) Escobar Pvt. Ltd., an electronic toys manufacturing company registered in Columbia entered
into a licensing agreement with Cali Pvt Ltd., and Indian company for manufacturing and sale of
its toys in India in 2017. The agreement had no clause on dispute settlement or choice of law or
jurisdiction. In a dispute regarding payment of fees and royalties, the parties negotiated but
failed to reach a settlement. Escobar wrote to Cali to submit their dispute to arbitration at the
Columbian International Arbitration Centre. Advice Cali

Client Goals- Speedy resolution, business interest between the companies should not be affected
issue of independence and impartiality in submitting the dispute to arbitration in Columbia,
protection of confidential information sources

Impediments- cost of arbitration in Columbia, agreement has no dispute resolution clause, time
wasted in negotiations without a solution
2) Reena is an accountant at Mcmahon Industries. She is an attractive, slightly
overweight, single woman. She was made the object of jokes around the office, some
of them of an explicit sexual nature. No action was taken despite letters to the HR
Department and the Executive Director of the company. Advise her.
Client Goals- very angry, wishes that the result of this dispute should benefit all
females in adverse work environments, does not want monetary compensation only
penalty on the employer
Impediments- Stopped going to work, is on unpaid leave, has money to support
herself and the case, has good education and experience to get a job anywhere