Alternative Dispute Resolution
Introduction to ADR
" I realized that the true function of a lawyer was to unite parties driven asunder. The
lesson was so indelibly burnt into me that a large part of my time during the twenty years
of my practice as a lawyer was occupied in bringing about private compromises of
hundreds of cases. I lost nothing thereby - not even money, certainly not my soul "
- Mahatma Gandhi
Brief :
Justice stands for the fair and impartial treatment of all individuals under the law. Indian
Judiciary seeks social, economic, and political justice to ensure equality among citizens[1]. But
due to the inefficiency of our judicial system in resolving disputes and pending cases, an
effective mechanism of Alternative Dispute Resolution was introduced. India is a country of vast
civilization and culture, hence several mechanisms for settling disputes have evolved and been
altered gradually over time. The concept of an alternative dispute resolution system provides a
substitute for the conventional methods of resolving legal disputes. Here, the proceedings are
informal without any procedural technicalities. It is a very inexpensive and Confidential method
of resolving disputes. This method gained enormous acceptability and holds an important place
in dispensing justice to the citizens.
The National Alternative Dispute Resolution Advisory Council ( NADRAC ) defined ADR as an
'umbrella term for the process, which infers that the matter between the disagreeing parties is to
be resolved by the nonpartisan assists.
This system comprises binding and non - binding forms of ADR. Mediation and Conciliation are
non - binding forms of ADR. Arbitration on the other hand can be binding or non - binding.
Binding Arbitration, bounds the conflicting parties to follow the third party decision, even if they
disagree with the results. In non-binding arbitration, the conflicting parties may reject the
decision of the third party.
Definition / Meaning :
The procedure of resolving legal disputes without litigation ( through the intervention of the third
party ) is known as the Alternative Dispute Resolution System (ADRS). It included arbitration,
conciliation, judicial settlement, mediation, and lok adalats. This system provides speedy and
effective relief to the litigants. This system aims to reduce the pendency in and burden upon the
courts. It is the most placid way of resolving conflict where there is acceptance of desired results
by conflicting parties in a less time consuming and cost-effective manner.
The formal definitions of ADR :
● It's a method that usually involves a neutral third party, that is, a skilled helper
who either assists the parties of a dispute to reach a decision by agreement or
facilitates in arriving at a solution to the problem between the party to the dispute.
[2]
● ADR typically includes a wide range of dispute resolution processes and
techniques that act as a means for disagreeing parties to come to an agreement
sort of litigation: a collective term for the ways that parties can settle disputes,
with the help of a third party.[3]
What is the need for ADR in India?
The courts in India are overburdened with the backlog of cases and there is no speedy trial for
resolving conflicts between the parties. According to a report, currently, there is a backlog
of approximately three crore cases in courts across the country [4]. The table below shows
a proximate data on both the time and cost for resolving disputes-
[5]
The formal Litigating process is time-consuming with no guaranteed outcome. The justice
delivery institutions are facing serious and solemn issues in delivering justice, solely due to
delays in resolving disputes related to civil and criminal matters. Serious concerns have been
shown by authorities over delays, expense, and congestion. Thus, an alternative dispute
resolution system is being formulated and implemented on a large scale in order to meet the
desired requirements and solidify the effectiveness of our justice delivery system. It provides an
alternative to all the traditional justice delivery methods. It emphasizes on a consensual
resolution of disputes and helps in settling disputes through an alternate means.
IPR cases, family matters, fraudulent cases and other civil disputes are few specimens that are
being negotiated through ADR.
Important provisions related to ADR :
● Section 89, Civil Procedural Code,1908 which encourages settlement of disputes
outside the court through arbitration, conciliation, mediation, etc.
● The Legal Service Authority Act, 1987.
● The Arbitration and Conciliation Act,1996.
Characterstics Of
ADR
Self Restriction A Detailed
Extensive Procedure for
Explanator on Judicial
Act the conduct
y Statutes Powers of Arbitration
Enhancing Internation
Summary Specific
the power alization of
Power of Conciliator
of the Internation
the court y Provisions
Arbitrator al Laws
Mechanism of ADR :
Alternative dispute resolution system broadly classified into two categories Court - annexed
options and community-based dispute resolution mechanism.
● Court - annexed includes mediation/conciliation, aims at providing mutually acceptable
solutions where a neutral third party assists the disputants in reaching out to the solution
along with a summary jury trial, a mini-trial and other techniques. Supporters argue that
such a method decreases the cost and time of litigation, improving access to justice and
reduces the backlog of cases, while at the same time preserving important social
relationships for disputants[6].
● Community-based dispute resolution mechanism (Lok Adalat), here trained mediators to
resolve the conflict that in an early period tends to be resolved by Panchayats ( a council
of village or caste elders ).
The following are the modes of ADR that are practiced in India:-
1. Arbitration
2. Mediation
3. Judicial settlement
4. Mediation
5. Lok - Adalat
Arbitration is emerging as the preferred dispute resolution mechanism in India and it has
become one of the top three seats for arbitration in the world. [7]
Advantages of ADR :
● Confidential procedure - Generally, ADR is a private procedure and the parties
approve to keep their actions confidential.
● Simple and flexible Procedure - ADR is a more adaptable process. It involves only the
parties to the conflict to freely come and examine the issue according to their
requirements and motive.
● Maximum chance of restoring a relationship - It facilitates in sustaining a healthier
relationship among conflicting parties. It helps people to cooperate instead of creating
disputes and disapprovals.
● Less expensive - It is cost-effective process. It did not allow the conflicting parties to
disburse immense capital on nonpartisans and miscellaneous expenses that one has to
withstand under prosecution.
● Quick resolution - It is a very less time consuming procedure. It helps in resolving
disputes in a very short-span of time as compared to the justice dispensing system by
courts.
● Settlement - ADR aims at achieving resolution or settlement. These settlements
generate good outcomes rates up to 85 percent .
● Maximum participation of parties - Here, access to justice is considerably simpler as
compared to other litigating processes. Those who cannot afford to lose time, fees and
to procure a solution without getting into the complex procedure of the court, opts ADRS.
Disadvantages of ADR -
● No Guaranteed Resolution - Here, the resolutions are not guaranteed. They do not
always leads to a resolutions.
● Possibility of biased decisions.
● Decisions are final - The results are final (no appeal ) and have to be approved by both
the parties. On the other hand, decisions of the court can be appealed to a higher court.
● Informal - Here, there is more opportunity of misuse of powers
● Lack of Binding Precedents - Here, the decisions lack the precedential value.
● Lack of power to establish legal precedents
Conclusion :
The following points can be concluded -
● The shortcomings of the formal justice delivery system lead to the formation of an
informal justice delivery system called an alternative dispute resolution system (ADRS).
● It is very inexpensive, user-friendly and easily perceived to be dominated by the esoteric
system of law.
● Conflict perseverance is the main objective of ADR.
● Despite the historic resistance ADR has gained worldwide acceptance.
● The code of civil procedure,1908 has also been amended and section 89 has been
introduced for the smooth functioning of the Justice dispensing system.
● ADR is not superseded to the judicial system , it is favorable to the court system.
References -
[1]-https://en.m.wikipedia.org/wiki/Preamble_to_the_Constitution_of_India
[2]- Tania Sourdin, Alternative Dispute Resolution, P.4.
[3]- Australian Securities and Investment Commission - Complaint Resolution Scheme (6th
January 2009) at the Wayback Machine.
[4]-https://m.economictimes.com/news/politics-and-nation/over-3-crore-court-cases-pending-
across-country/articleshow/45401641.cms.
[5]-https://niti.gov.in/writereaddata/files/document_publication/Arbitration.pdf
[6], [7] -https://m.economictimes.com/news/company/corporate-trends/arbitration-now-a-
preferred-adr-mechanism-in-india-survey/articleshow/20291689.cms
