JAMIA MILLIA ISLAMIA

Faculty of law

CLINICAL LAW ASSIGNMENT-1

Topic: Analysing the concept and implementation of ADR in India.

Submitted to-

Prof. Eqbal Hussain

Submitted by-
Abhishek Kumar Mishra

ROLL NUMBER-1

STUDENT ID- 20188881

B.A.LL.B (Hons) Self Finance Batch

7th Semester

Batch-2018-2023

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 ACKNOWLEDGEMENT
I would like to express my special thanks to my teacher Prof. Eqbal Hussain who gave me the
golden opportunity to prepare assignment on the topic “Analysing the concept and
implementation of ADR in India”. In the process of doing this assignment I did a lot of research
and came across much valuable information for which I am very thankful to my sir. I would
also like to thanks my friend who helped me to complete this assignment within limited time
frame.

ABHISHEK KUMAR MISHRA

B.A.LL.B (SELF FINANCE)

7th SEMESTER

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 Table of Contents

Historical Backgrounds of ADR in India............................................................................... 4

Introduction of ADR ................................................................................................................ 5

Modes and practices of ADR in India .................................................................................... 6

1. Arbitration: ......................................................................................................................... 6

A. Ad Hoc Arbitration...................................................................................................... 7

B. Institutional Arbitration ............................................................................................... 7

C. Statutory Arbitration ................................................................................................... 7

D. Fast track arbitration.................................................................................................... 7

2. Mediation: .......................................................................................................................... 8

3. Conciliation: ....................................................................................................................... 8

4. Negotiation: ........................................................................................................................ 9

5. Lok Adalats: ....................................................................................................................... 9

What is the concept of ADR? ................................................................................................ 10

LEGISLATIONS OF ADR IN INDIA ................................................................................. 14

1. Code of Civil Procedure................................................................................................ 14

2. Indian Arbitration Act, 1899 ......................................................................................... 15

3. Arbitration (Protocol and Convention) Act 1937 ......................................................... 15

4. The Arbitration Act of 1940 ......................................................................................... 15

5. Arbitration and Conciliation Act, 1996 ........................................................................ 16

Suggestion for improving mechanisms. ............................................................................... 17

Implementation of ADR in India .......................................................................................... 18

Problems in Implementation of ADR in India .................................................................... 19

Conclusion .............................................................................................................................. 26

Bibliography ........................................................................................................................... 28

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Topic- Analysing the concept and implementation of ADR in India.

Historical Backgrounds of ADR in India

In India, the law and practice of private and transactional commercial disputes without court
intervention can be dated back to ancient times. Arbitration or mediation as an alternative to
dispute resolution by municipal courts has been prevalent in India from Vedic times. The
earliest known treatise is the Bhradarnayaka Upanishad, in which various types of arbitral
bodies viz (i) the Puga (ii) the Sreni (iii) the Kula are referred to. These arbitral bodies, known
as Panchayats, dealt with variety of disputes, such as disputes of contractual, matrimonial, and
even of a criminal nature. The disputants would ordinarily accept the decision of the panchayat
and hence a settlement arrived consequent to conciliation by the panchayat would be as binding
as the decision that was on clear legal obligations.

The Muslim rule in India saw the incorporation of the principles of Muslim law in the Indian
culture. Those laws were systematically compiled in the form of a commentary and came to be
known as Hedaya. During Muslim rule, all Muslims in India were governed by Islamic laws-
the Shari’ah as contained in the Hedaya. The Hedaya contains provisions for arbitration as well.
The Arabic word for arbitration is Tahkeem, while the word for an arbitrator is Hakam. An
arbitrator was required to posses the qualities essential for a Kazee– an official Judge presiding
over a court of law, whose decision was binding on the parties subject to legality and validity
of the award. The court has the jurisdiction to enforce such awards given under Shari’ah though
it is not entitled to review the merits of the dispute or the reasoning of the arbitrator. ADR
picked up pace in the country, with the coming of the East India Company. The British
government gave legislative form to the law of arbitration by promulgating regulations in the
three presidency towns: Calcutta, Bombay and Madras. Bengal Resolution Act, 1772 and
Bengal Regulation Act, 1781 provided parties to submit the dispute to the arbitrator, appointed
after mutual agreement and whose verdict shall be binding on both the parties. These remained
in force till the Civil Procedure Code 1859 and were extended in 1862 to the Presidency towns.
After independence as stated in the 222nd Report of the Law Commission of India, the
Constitution has guaranteed access to justice for all, primarily through Article 39A, which
states that everyone must have an equal opportunity of getting justice and this must not be
denied to any citizen by reason of economic or other sort of disabilities. The report further
states that ‘access to justice’ for the common masses in India means access to the courts of law.

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But even that has been hindered, due to factors like poverty, illiteracy, ignorance, social and
political backwardness etc. In a developing country like India, many people still live-in
poverty. When their rights get violated, they often do not have the money to fight long battles
in the Court. They do not have the money to afford a lawyer. They do not know the legal system
and procedures. Therefore, they often think that the court system is an inconvenience. These
kinds of inefficiencies are shared reasons among many countries, which is why ADR is being
explored. The courts also have too many pending cases and these cases keep going on for many
years which is a tremendous burden to the courts. These reasons prompted the Indian
Government to enact Section 89 of the Code of Civil Procedure, 1908 and replace the earlier
Arbitration Act,1940 with The Arbitration and Conciliation Act 1996, in accordance with the
mandates of the United Nations Commission on International Trade Law (UNCITRAL).

Introduction of ADR

Alternative Dispute Resolution (ADR) refers to an array of methods for resolving legal disputes
without resorting to the court system. ADR plays a pivotal role in the American legal process,
but it is often overshadowed by Hollywood’s glamorous portrayal of jury trials. One might
imagine that all legal disputes are battled out in large courtrooms filled with jurors and
spectators. In reality, about five percent of civil cases ever make it to trial. In some states, that
rate has reached as low as 0.2 percent. The same is true of criminal cases, with only 10 percent
reaching trial. The other 90 to 99.8 percent of legal disputes are resolved through some form
of ADR.

ADR methods have gained substantial traction over the past 30 years. They are increasingly
popular with clients, attorneys, and judges alike. There are four primary reasons for their rise
in popularity. First, ADR increases court efficiency. The general public has never been more
litigious. Court dockets are bursting at their seams, and there are only so many judges available
to handle the ever-increasing caseload. As a result, many judges now issue court orders
requiring the parties to engage in some form of ADR before allowing a case to proceed to trial.

Second, ADR is less costly than trial. Trial is by far the most expensive stage of litigation. It
often involves the additional expense of expert witnesses, who can charge over $1000.00 per
hour for their services. In addition, most plaintiff’s attorneys charge a contingency fee that
significantly increases if the case reaches the trial stage. Attorneys often spend well over half
of their billable hours in trial or in trial preparation. At the end the day, clients are generally
happy to avoid these trial-related expenses.

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Third, ADR is generally less risky than trial. At trial, a judge or a jury decides the case, which
may lead to unintended outcomes. Jury trials, in particular, are known to be a bit of a “coin
toss”—sometimes literally. In Kentucky, a man was convicted of murder when the jury flipped
a coin after reaching a stalemate in deliberations. Of course, when the judge discovered the true
nature of the conviction, he ordered a new trial. Still, the point is well taken—trial offers no
guarantee of a fair or favorable decision. Most forms of ADR reduce the amount of risk the
parties undertake by leaving the outcome entirely in their hands.

Finally, ADR proceedings are private. Court records and proceedings are open to the public,
and by virtue of its adversarial nature, litigation tends to flush out cherished secrets or
embarrassing facts and allegations. Unfortunately for the parties, the media salivate over such
“news worthy” information, which usually ends up making headlines. Parties engage in ADR
in order to keep their reputations or trade secrets intact while they work toward a resolution.

Modes and practices of ADR in India

ADR can be broadly classified into two categories: court-annexed options (Mediation,
Conciliation) and community-based dispute resolution mechanism (Lok-Adalat). The
following are the modes of ADR practiced in India:

1. Arbitration.
2. Mediation.
3. Conciliation.
4. Negotiation.
5. Lok Adalat

1. Arbitration:

The definition of ‘arbitration’ in section 2(1) (a) verbatim reproduces the text of article 2(a) of
the Model Law-‘arbitration means any arbitration whether or not administered by a permanent
arbitral institution’. It is a procedure in which the dispute is submitted to an arbitral tribunal
which makes a decision (an “award”) on the dispute that is binding on the parties. It is a private,
generally informal and non-judicial trial procedure for adjudicating disputes. There are four
requirements of the concept of arbitration: an arbitration agreement; a dispute; a reference to a
third party for its determination; and an award by the third party. The essence lies in the point
that it is a forum chosen by the parties with an intention that it must act judicially after taking

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into account relevant evidence before it and the submission of the parties. Hence it follows that
if the forum chosen is not required to act judicially, the process it is not arbitration.

Types of arbitration are:

A. Ad Hoc Arbitration - An ad hoc arbitration is one which is not administered by an

institution and therefore, the parties are required to determine all aspects of the
arbitration like the number of arbitrators, manner of their appointment, etc. Provided
the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can
be more flexible, cheaper and faster than an administered proceeding. The advantage
is that, it is agreed to and arranged by the parties themselves. However, the ground
realities show that arbitration in India, particularly ad hoc arbitration, is becoming quite
expensive vis-à-vis traditional litigation.
B. Institutional Arbitration- An institutional arbitration is one in which a specialized
institution with a permanent character intervenes and assumes the functions of aiding
and administering the arbitral process, as according to the rules of that institution. It is
important to note that these institutions do not arbitrate the dispute, it is the arbitrators
who arbitrate, and so the term arbitration institution is inapt and only the rules of the
institution apply. Incorporation of book of rules in the “arbitration agreement” is one of
the principle advantages of institutional arbitration. Institutional Arbitration,
throughout the world, is recognized as the primary mode of resolution of international
commercial disputes. It is an arbitration administered by an arbitral institution. Further,
in many arbitral institutions such as the International Chamber of Commerce (ICC),
before the award is finalized and given, an experienced panel scrutinizes it. As a result,
the possibilities of the court setting aside the award is minimal.
C. Statutory Arbitration - When a law specifies that if a dispute arises in a particular case
it has to be referred to arbitration, the arbitration proceedings are called “statutory
arbitration”. Section 2(4) of the Arbitration and Conciliation Act 1996 provides, with
the exception of section 40(1), section 41 and section 43, that the provisions of Part I
shall apply to every arbitration under any other act for the time being in force in India.
D. Fast track arbitration - Fast track arbitration is a time-bound arbitration, with stricter
rules of procedure, which do not allow any laxity for extensions of time, and the
resultant delays, and the reduced span of time makes it more cost effective. Sections
11(2) and 13(2) of the 1996 Act provides that the parties are free to agree on a procedure
for appointing an arbitrator and choose the fastest way to challenge an arbitral award

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 respectively. The Indian Council of Arbitration (ICA) has pioneered the concept of fast-
track arbitration in India and under its rules, parties may request the arbitral tribunal to
settle disputes within a fixed timeframe.

2. Mediation:

Mediation is a process in which the mediator, an external person, neutral to the dispute, works
with the parties to find a solution which is acceptable to all of them.[26] The basic motive of
mediation is to provide the parties with an opportunity to negotiate, converse and explore
options aided by a neutral third party, to exhaustively determine if a settlement is possible.
Mediation is negotiation carried out with the assistance of a third party. The mediator, in
contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.
Despite the lack of ‘teeth’ in the mediation process, the involvement of a mediator alters the
dynamics of negotiations. The concept of mediation is not foreign to Indian legal system, as
there existed, different aspects of mediation. The Village Panchayats and the Nyaya Panchayats
are good examples for this. A brief perusal of the laws pertaining to mediation highlights that
it has been largely confined to commercial transactions. The Arbitration and Conciliation Act,
1996 is framed in such a manner that it is concerned mainly with commercial transactions that
involves the common man rather than the common man’s interest.

In India, mediation has not yet been very popular. One of the reasons for this is that mediation
is not a formal proceeding and it cannot be enforced by courts of law. There is a lack of
initiative on the part of the government or any other institutions to take up the cause of
encouraging and spreading awareness to the people at large.

3. Conciliation:

Conciliation is “a process in which a neutral person meets with the parties to a dispute which
might be resolved; a relatively unstructured method of dispute resolution in which a third party
facilitates communication between parties in an attempt to help them settle their differences”.
This consists in an attempt by a third party, designated by the litigants, to reconcile them either
before they resort to litigation (whether to court or arbitration), or after. The attempt to
conciliate is generally based on showing each side the contrary aspects of the dispute, in order
to bring each side together and to reach a solution. Section 61 of the 1996 Act provides for
conciliation of disputes arising out of legal relationship, whether contractual or not and to all
proceedings relating thereto. After its enactment, there can be no objection, for not permitting
the parties to enter into a conciliation agreement regarding the settlement of even future

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disputes. There is a subtle difference between mediation and conciliation. While in meditation,
the third party, neutral intermediary, termed as mediator plays more active role by giving
independent compromise formulas after hearing both the parties; in conciliation, the third
neutral intermediary’s role, is to bring the parties together in a frame of mind to forget their
animosities and be prepared for an acceptable compromise on terms midway between the
stands taken before the commencement of conciliation proceedings.

4. Negotiation:

Negotiation-communication for the purpose of persuasion-is the pre-eminent mode of dispute

resolution. Compared to processes using mutual third parties, it has the advantage of allowing
the parties themselves to control the process and the solution.

Essentials of Negotiation are:

It is a communication process;

It resolves conflicts;

It is a voluntary exercise;

It is a non-binding process;

Parties retain control over outcome and procedure;

There is a possibility of achieving wide ranging solutions, and of maximizing joint gains. In
India, Negotiation doesn’t have any statutory recognition. Negotiation is self counseling
between the parties to resolve their dispute. Negotiation is a process that has no fixed rules but
follows a predictable pattern.

5. Lok Adalats:

Lok Adalat was a historic necessity in a country like India where illiteracy dominated other
aspects of governance. It was introduced in 1982 and the first Lok Adalat was initiated in
Gujarat. The evolution of this movement was a part of the strategy to relieve heavy burden on
courts with pending cases. It was the conglomeration of concepts of social justice, speedy
justice, conciliated result and negotiating efforts. They cater the need of weaker sections of
society. It is a suitable alternative mechanism to resolve disputes in place of litigation. Lok
Adalats have assumed statutory recognition under the Legal Services Authorities Act, 1987.

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These are being regularly organized primarily by the State Legal Aid and the Advice Boards
with the help of District Legal Aid and Advice Committees.

Legal Services Authorities Act, 1987:

The Legal Services Authorities Act, 1987 was brought into force on 19 November 1995. The
object of the Act was to provide free and competent legal services to the weaker sections of the
society to ensure that opportunities for securing justice are not denied to any citizen. The
concept of legal services which includes Lok Adalat is a revolutionary evolution of resolution
of disputes. Though settlements were affected by conducting Lok Nyayalayas prior to this Act,
the same has not been given any statutory recognition. But under the new Act, a settlement
arrived at in the Lok Adalats has been given the force of a decree which can be executed
through Court as if it is passed by it. Sections 19, 20, 21 and 22 of the Act deal with Lok Adalat.
Section 20 provides for different situations where cases can be referred for consideration of
Lok Adalat. Honorable Delhi High court has given a landmark decision highlighting the
significance of Lok Adalat movement in the case of Abdul Hasan and National Legal Services
Authority v. Delhi Vidyut Board and Others. The court passed the order giving directions for
setting up of permanent Lok Adalats.

What is the concept of ADR?

“Litigation has not kept up with modern, fast-moving society… there have been revolutionary
changes in the business practices since the basic court structure was adopted from English
Common Law… Compared to modern business, Civil Courts have changed very little…
Alternative dispute resolution allows the lawyers to use new processes, encourages problem-
solving attitude and an openness to compromise” – Robert Coulson

The adversarial system of adjudication as adopted in India has been borrowed from the
democracies of the west; the United Kingdom being the cardinal source. The adaptability of
this method of imparting justice divorced from the ground realities has often been a subject of
deepened controversies. Partly, the current ailments of the judicial processes, in particular, the
mounting arrears of cases in all forms of the judicial tier is attributed to this setup. The complex
procedures from the initiation to the final adjudication of a suit lead to inordinate delays in the
working of the judiciary. Nani Palkhiwala once describing the pathetic condition of the
litigation in the country observed, “…The law may or may not be an ass but in India, it is a
snail; it moves at a pace which would be regarded as unduly slow in the community of snails.
A lawsuit once started in India is the nearest thing to eternal life ever seen on this earth….”.

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This has thus initiated a need to recognize other systems of the traditional justice delivery
system at least in the procedural respects, to tackle the aforementioned problem. In this
backdrop, there has always been a dire need for a robust system of Alternative Dispute
Resolution (ADR) procedures- a mode of adjudication, which has always been the part and
parcel of the Indian judicial social set up. The present-day adjudicatory system is the legacy of
British colonial rule that reigned over India for centuries. There are many sides to the existing
judicial system, but its shortcomings have become more prominent than its achievements. The
inherent shortcoming of this system of justice dispensation lies with its formalities and
technicalities and on top of it, it is costly and time-consuming. Anyone would stand testimony
to the fact that in Indian courts, a case takes approximately 15 to 20 years to be disposed of
(sometimes, even a lifetime!) and then, of course, one has the recourse of appeals, reviews,
etc., which further prolongs final decision of the case. It is a fact that a large number of cases
are pending for their disposal at different levels in various courts. Long pendency of matters in
various courts frustrates the litigant public and also shakes their belief in the efficacy of the
judicial system. This system of justice dispensation consumes, to a great extent, time over
procedural wrangles, technicalities of law, and its costlier nature further delays the discretion
of justice to the needy. It is a well-known maxim of law “justice delayed is justice denied” and
our system just confirms to the same. It would be deleterious to the efficacy of, not only judicial
adjudication but also maintenance of ‘rule of law’ if we continue with the existing Formal
Legal System (FLS). The judicial process is set in motion by the action of an aggrieved party.
Each party’s case is presented before the learned judge in the straightjacket of rules of
procedural and substantial law by advocates since the common man is not well versed with the
court crafts and the legal language to be used. The judge understands the dispute involved and
then pronounces the decree keeping in mind the known legal concepts, precedents, arguments
advanced, and the evidence led before him. The parties are then bound by the verdict and may
face legal sanctions if not complied with. Even though the dispute gets adjudicated the
interpersonal relationship of the parties worsens and the disputes between the parties remain
there. Thus, what the FLS aims at is the adjudication of the dispute and not the resolution of
disputes. Humans are not known to throw up their hands in despair when any challenge arises.
To counter the challenges of ever-increasing pendency in courts, tardy procedures involved in
litigation, etc., new procedures which are more informal cost-effective and speedy have been
looked for and all these procedures have come to be known by a compendious expression ADR.
Seekers of justice are in millions and it is becoming rather difficult for the Courts to cope up
with the ever-increasing cases with the present infrastructure and manpower. Courts are
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clogged with cases because of the ever-increasing number of cases the Court system is under
great pressure. Therefore, if there was at the threshold a permanent mechanism or machinery
to settle the matters at a pre-trial stage, many matters would not find their way to the Courts.
Similarly, if there are permanent forums to which Courts may refer to cases, the load of cases
could be taken off the Courts. The ADR process is extra-judicial. It can be used in almost all
contentious matters, which are capable of being resolved under the law by agreement between
the parties. It can be employed with very encouraging results in several categories of disputes,
especially civil, commercial, industrial, and family disputes. In particular, these techniques
have been shown to work across the full range of business disputes, banking, contract of
performance and interpretation, construction contracts, intellectual property rights, insurance
coverage, joint ventures, partnership differences, personal injury, product liability, professional
liability, real estate, and securities. The processes like arbitration and mediation have been
perceived as a valuable complement to this system not just because they help prevent some
cases going to trial, but more widely because they speed up the process of settlement and
thereby reducing the cost and time allotted in litigation. There is a striking contrast between
this reality and the lack of attention devoted by most lawyers to the processes, problems, and
skills involved in settling although trial attorneys are overwhelming dissatisfied with the typical
ad hoc process of settlement and parties complain that compromise comes too late, is too
expensive, and too stressful. Further, the urge to reduce disputes to mere private affairs and
ensure active involvement in the proceedings at all stages can only be possible under the ADR
method of dispute resolution.

The arbitration system that was proposed and is being followed in India is a very quick and
somewhat cost-effective method of dispute resolution. It is detached from the delays and the
hefty cost of litigation which form the litigation system. ADR is not an alternative to the court
system but only meant to supplement the same aiming on less lawyering. The primary object
of ADR movement is avoidance of vexation, expense, and delay and promotion of the ideal of
‘access of justice’ to all. To put it otherwise, ADR aims at providing Cheap, Simple, Quick,
and Accessible justice. In its philosophical perception, ADR is considered to be the mode in
which the dispute resolution is qualitatively distinct from the judicial process. It is a process
where disputes are settled with the assistance of a neutral third person generally of parties’ own
choice. This neutral person is generally aware and familiar with the nature of the dispute and
of the context in which such disputes normally arise. The proceedings under these procedures
are mostly informal devoid of procedural wrangles and technicalities and are conducted in a

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manner agreed to by the parties. Having recourse to ADR by no means intends to minimize the
role of our Hon’ble Courts but it should be given a pragmatic view and may be considered as
a supplement to the existing legal system so that our courts are less burdened and also the idea
of “access to justice by all” shall be achieved. Due to the recommendations of the Law
Commissions as well as the Malimath Committee Report, Section 89 was inserted by the CPC
(Amendment) Act, 1999 via Section 7 of the Amendment Act with effect from 1-7-2002.
Undoubtedly, the legislative initiative towards the introduction of Section 89 CPC is the boldest
step taken to counter the growing menace of court backlogs. It is in this backdrop that it can be
seen that ADR procedures are distinguished from the usual formal judicial processes and
emphasizes on vivacious measures to impart justice through ADR to take the ADR culture even
closer to the masses. Perhaps when the existing judicial forums are enveloped in delay,
disenchantment towards the justice rendered by them, the introduction of court-sponsored ADR
through Section 89 CPC seems the only means to alleviate and revamp the ailing judicial
system. Based on the recommendations made by the Law Commission of India and Malimath
Committee, Section 89 of CPC is a legislative bid to promote ADR. A plain reading of section
89 shall provide that if it appears to the court that there exists an element of settlement that is
acceptable to the parties then the court shall formulate terms of the settlement and give them
to the parties for their observations. After receiving the observations from the parties, the court
shall reformulate the terms of the settlement and refer the same for arbitration, conciliation,
judicial settlement, and mediation. It is clear from this section that the types of ADR open to
the Court are four; (1) Arbitration; (2) Conciliation; (3) Judicial Settlement including
settlement through Lok Adalat and (4) Mediation. This provision is laudable considering that
before this provision was introduced, the last two aforementioned types of ADRs were not
recognized by the law in India. However, this provision has been criticized on several grounds
including the ground that this provision lacks sufficient detail and does not provide enough
guidelines to effectively carry on the ADRs mentioned. This lacuna in the law needs to be
addressed before ADRs, other than arbitration and conciliation, can become effective tools in
the efforts to promote access to justice. Our Constitution under Article 39A and Article 21
provides for free legal aid to the indigent persons and right to life respectively. Since our courts
have been overburdened and face the crisis of a large number of pending cases, and the law has
to help the poor who do not have the means i.e., economic means, to fight their causes, the
concept of ADR has been recognized constitutionally in India to meet the ends of justice. The
ADR involving a distinct structural process with a third party intervention seems a viable

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option to take off the load from the overheated judicial system.No wonder, the Supreme Court
in M/s. Guru Nanak Foundation v. M/s. Rattan Singh & Sons, observed,

“Interminable, time consuming, complex and expensive court procedures impelled jurists to
search for an alternative forum, less formal, more effective and speedy for resolution of
disputes avoiding procedural claptrap and this led to the Arbitration Act 1940…”

At the brink years of independence Pandit Jawaharlal Nehru, the first Prime Minister, speaking
in the Constituent Assembly concerning the justice delivery processes had urged to tackle the
problem of the “poor and starving”, lest “all our paper constitutions will become useless and
purposeless.” It is this very aspect of the concern for the poor, which is largely manifested in
the constitution itself. The mandates of social justice, equality, equal justice, and free legal aid
are provisions well-knit to serve the needs of the poor. However, despite the promises, the great
anxiety and warning given for the cause of the poor, at the commencement of the constitution
of India, the administration of justice to the common poor men remained neglected and its
beneficiaries turned out to be men having money power and lately the muscle and contact
power. The failures of this very constitutional machinery necessitate an urgent need for reform,
in the aspect of the adoption of the ADR mechanisms.

The insertion of Section 89 and the rules, if fairly and frequently utilized by the courts, there is
every scope for the litigation to come to an end much faster and at a lesser cost. This will go a
long way in reducing the burden on the courts also. It is, however, to be noted that the benefits
of Section 89 CPC have not percolated as originally anticipated by the legislature. The
complexities have been still immense.

In Sukanya Holdings Pvt. Ltd. v Jayesh H. Pandya, the Supreme Court said that section 89 of
the CPC cannot be resorted to for interpreting Section 8 of the Arbitration and Conciliation
Act, 1996 as it stands on a different footing and it would be applicable even in cases where
there is no arbitration agreement for referring the dispute for arbitration. Further for that
purpose, the court must apply its mind to the condition contemplated under section 89 of the
CPC and even if the application under section 8 of the aforementioned Act is rejected, the court
is required to follow the procedure prescribed under the said section.

LEGISLATIONS OF ADR IN INDIA

1. Code of Civil Procedure

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 The Code of Civil Procedure, 1859 in its sections 312 to 325 dealt with arbitration in
suits while sections 326 and 327 provided for arbitration without court intervention.
The Code of Civil Procedure (Act 5 of 1908) repealed the Act of 1882. The Code of
Civil Procedure, 1908 has laid down those cases must be encouraged to go in for ADR
under section 89(1).[7] Under the First Schedule, Order XXXII A, Rule 3 a duty is cast
upon the courts that it shall make an endeavor to assist the parties in the first instance,
in arriving at a settlement in respect of the subject matter of the suit. The second
schedule related to arbitration in suits while briefly providing arbitration without
intervention of a court. Order I, Rule 1 of the schedule says that where in any suit, all
the parties agree that any matter in difference between them shall be referred to
arbitration, they may, at any time before judgment is pronounced; apply to the court for
an order of reference. This schedule, in a way supplemented the provisions of the
Arbitration Act of 1899.
2. Indian Arbitration Act, 1899
This Act was substantially based on the British Arbitration Act of 1889. It expanded
the area of arbitration by defining the expression ‘submission’ to mean “a written
agreement to submit present and future differences to arbitration whether an arbitrator
is named therein or not”.
3. Arbitration (Protocol and Convention) Act 1937
The Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the
Execution of Foreign Arbitral Awards 1927 were implemented in India by the
Arbitration (Protocol and Convention) Act, 1937. This Act was enacted with the object
of giving effect to the Protocol and enabling the Convention to become operative in
India.
4. The Arbitration Act of 1940
The Arbitration Act, 1940, dealt with only domestic arbitration. Under the 1940 Act,
intervention of the court was required in all the three stages of arbitration in the tribunal,
i.e. prior to the reference of the dispute, in the duration of the proceedings, and after the
award was passed. This Act made provision for- a) arbitration without court
intervention; b) arbitration in suits i.e., arbitration with court intervention in pending
suits and c) arbitration with court intervention, in cases where no suit was pending
before the court. Before an arbitral tribunal took cognizance of a dispute, court
intervention was required to set the arbitration proceedings in motion. The existence of
an agreement and of a dispute was required to be proved. During the course of the
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 proceedings, the intervention of the court was necessary for the extension of time for
making an award. Finally, before the award could be enforced, it was required to be
made the rule of the court. This Act did not fulfil the essential functions of ADR. The
extent of Judicial Interference under the Act defeated its very purpose. It did not provide
a speedy, effective and transparent mechanism to address disputes arising out of foreign
trade and investment transactions.
5. Arbitration and Conciliation Act, 1996
The government enacted the Arbitration and Conciliation Act, 1996 in an effort to
modernize the 1940 Act. In 1978, the UNCITRAL Secretariat, the Asian African Legal
Consultative Committee (AALCC), the International Council for Commercial
Arbitration (ICCA) and the International Chamber of Commerce (ICC) met for a
consultative meeting, where the participants were of the unanimous view that it would
be in the interest of International Commercial Arbitration if UNCITRAL would initiate
steps leading to the establishment of uniform standards of arbitral procedure. The
preparation of a Model Law on arbitration was considered the most appropriate way to
achieve the desired uniformity. The full text of this Model Law was adopted on 21st
June 1985 by UNCITRAL. This is a remarkable legacy given by the United Nations to
International Commercial Arbitration, which has influenced Indian Law. In India, the
Model Law has been adopted almost in its entirety in the 1996 Act.

This Act repealed all the three previous statutes. Its primary purpose was to encourage
arbitration as a cost-effective and quick mechanism for the settlement of commercial
disputes. It covers both domestic arbitration and international commercial arbitration.
It marked an epoch in the struggle to find an alternative to the traditional adversarial
system of litigation in India. The changes brought about by the 1996 Act were so drastic
that the entire case law built up over the previous fifty-six years on arbitration was
rendered superfluous. Unfortunately, there was no widespread debate and
understanding of the changes before such an important legislative change was enacted.
The Government of India enacted the 1996 Act by an ordinance, and then extended its
life by another ordinance, before Parliament eventually passed it without reference to
Parliamentary Committee.
Arbitration, as practiced in India, instead of shortening the lifespan of the dispute
resolution, became one more “inning” in the game. Not only that, the arbitrator and the
parties’ lawyers treated arbitration as “extra time” or overtime work to be done after
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 attending to court matters. The result was that the normal session of an arbitration
hearing was always for a short duration. Absence of a full-fledged Arbitration Bar
effectively prevented arbitrations being heard continuously on day-to-day basis over
the normal working hours, viz. 4-5 hours every day. This resulted in elongation of the
period for disposal. Veerappa Moily also said in the ADR congress held in the year
2010 that the 1996 Act, although modeled along international standards, has so far
proved to be insufficient in meeting the needs of the business community, for the speedy
and impartial resolution of disputes in India. The Law Commission of India prepared a
report on the experience of the 1996 Act and suggested a number of amendments. Based
on the recommendations of the Commission, the Government of India introduced the
Arbitration and Conciliation (Amendment) Bill, 2003, in the Parliament. The standing
committee of law ministry felt that provisions of the Bill gave room for excessive
intervention by the courts in arbitration proceedings.

Suggestion for improving mechanisms.

The evolution of ADR mechanisms was not of that much success. Thereby, the trend is the
imposition of responsibility and duty on Court

i) Courts are authorized to give directives for the adoption of ADR mechanisms by the parties
and for that purpose Court has to play important role by way of giving guidance. Power is also
conferred upon the courts so that it can intervene in different stages of proceedings. But these
goals cannot be achieved unless requisite infrastructure is provided, and institutional
framework is put to place.

ii) The institutional framework must be brought about at three stages, which are:

Awareness: It can be brought about by holding seminars, workshops, etc. ADR literacy
program has to be done for mass awareness and awareness camp should be to change the
mindset of all concerned disputants, the lawyers and judges. Acceptance: In this regard training
of the ADR practitioners should be made by some University together with other institutions.
Extensive training would also be necessary to be imparted to those who intend to act as a
facilitator, mediators, and conciliators. Imparting of training should be made a part of
continuing education on different facets of ADR so far as judicial officers and judges are

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concerned. Implementation: For this purpose, judicial officers must be trained to identify cases
which would be suitable for taking recourse to a particular form of ADR.

iii) ADR Mechanisms to be made more viable: The inflow of cases cannot be stopped because
the doors of justice cannot be closed. But there is a dire need to increase the outflow either by
strengthening the capacity of the existing system or by way of finding some additional outlets.

iv)Setting up of Mediation Centres in all districts of each state with a view to mediate all
disputes will bring about a profound change in the Indian Legal system. These Mediation
centres would function with an efficient team of mediators who are selected from the local
community itself.

v) Not many Indians can afford litigation. This kind of state of affairs makes common people,
especially rural people, cynical about judicial process. We must take the ADR mechanism
beyond the cities. Gram Nyayalayas should process 60 to 70 percent of rural litigation leaving
the regular courts to devote their time to complex civil and criminal matters.

vi) More and more ADR centres should be created for settling disputes out-of-court. ADR
methods will achieve the objective of rendering social justice to the people, which is the goal
of a successful judicial system.

vii) The major lacuna in ADR is that it is not binding. One could still appeal against the award
or delay the implementation of the award. “Justice delayed is justice denied.” The very essence
of ADR is lost if it is not implemented in the true spirit. The award should be made binding on
the parties and no appeal to the court should be allowed unless it is arrived at fraudulently or if
it against public policy.

Implementation of ADR in India

ADR is a means to speedy disposal of justice and the first to achieve that was taken in 1940
when the very first arbitration Act was introduced. There were many loopholes in the Act which
led to it not being fully implemented and so the Act was repealed and a new Act was introduced
in the year 1996 and was based on the principle and structure of the UNCITRAL law model.
Many amendments were made and all the committee recommendations were looked upon and
the fact this was being used by many corporates and businessmen. This also included providing
this redressal mechanism for the weaker section of the society. Nonetheless, it could be seen
that this has been limited only to the corporates and the businessman and lok adalat even though
it has been adopted way before has not yet been implemented at the grassroot level very

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effectively and that section of the society still has to appear before the court and go through the
long and unending processes and the stages of the court of law. For ADR to be implemented
effectively and properly, there is a need for analysing the problem and finding a solution for it.

Problems in Implementation of ADR in India

Any implementation is usually confronted with problems. ADR is no exception to this rule.
Some of the problems faced during implementation are enumerated as under:

(1) Attitudes: Although Indian law favours dispute resolution by arbitration, Indian sentiment
has always abhorred the finality attaching to arbitral awards. A substantial volume of Indian
case law bears testimony to the long and ardous struggle to be freed from binding arbitral
decisions. Aided and abetted by the legal fraternity, the aim of every party to arbitration
(domestic or foreign) is: "try to win if you can, if you cannot do your best to see that the other
side cannot enforce the award for as long as possible." In that sense, arbitration as a means of
settling disputes is a failure-though it is being increasingly regarded as a useful mechanism for
resolving disputes. The trouble is that neither the private sector nor the public sectors in India
are as yet sufficiently infused with the "spirit of arbitration." An arbitration award should only
be permitted to be set aside for reasons extraneous to its contents-such as, lack of jurisdiction
of the arbitrator, fraud or corruption of the arbitrator or of the other party, or a fundamental
miscarriage of justice in the conduct of arbitral proceedings. Jurisdiction to correct patent legal
errors on the face of the award was a peculiarly English innovation. To have imported this
questionable jurisdiction into litigous India (as we did under the Arbitration Act, 1940) was a
great mistake. Then, thin dividing line between the merits of an award and errors of law
apparent on its face are often blurred- few questions of fact continue to remain so after being
churned up in the mind of a skilled lawyer! These basic infirmities in the law of arbitration,
and the approach of users, left their mark on domestic arbitration under the Arbitration Act,
1940. First and foremost, there is a need to change our traditional approach to resolving
disputes, even a need to change our basic attitudes. Perhaps the legendary basketball coach of
Temple University, John Chaney, said it best when he said that "winning is an attitude." He
might well have been speaking about dispute resolution and ADR. We need to redefine the
very meaning of what it is to "win." Consistent with what our clients want and deserve, the
ultimate "win" requires our understanding of the clients' interests and goals and our ability to
solve their problems. The spirit of ADR mechanisms is to create a WIN-WIN situation, but the
attitude to people is changing it into a WIN-LOSE situation, which is not very different from

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a litigation. In so many large international arbitrations the defendant will do everything to
postpone the moment of the award; at and before the hearing, the parties will deploy all
concievable, and some inconcievable, procedural devices to gain an advantage; the element, of
mutual respect is lacking; and the loser rather than paying up with fortitude, will try either to
have the award upset, or to atleast have its enforcement long postponed. It is in this background
that the new Indian law (of arbitration and conciliation) was conceived and enacted. But it is
not enough to have a new law-it is necessary for judges and lawyers to realise that the era of
court-structured and court controlled arbitration is effectively at an end. Our attitudes require
readjustment; we need to re- adjust to the spirit of ADR, and adhere to its underlying
philosophy, which is that of utmost good faith of the parties.

(2) Lawyer and Client Interests: Lawyers and clients often have divergent attitudes and
interests concerning settlement. This may be a matter of personality (one may be a fighter, the
other a problem solver) or of money. In some circumstances, a settlement is not in the client's
interest. For example, the client may want a binding precedent or may want to impress other
potential litigants with its firmness and the consequent costs of asserting claims against it.
Alternatively, the client may be in a situation in which there are no relational concerns; the
only issue is whether it must pay out money; there is no pre judgement interest; and the cost of
contesting the claim is less than the interest on the money. In these, and a small number of
situations, settlement will not be in the client's interest. Still, a satisfactory settlement typically
is in the client's interest. It is the inability to obtain such a settlement, in fact, that impels the
client to seek the advice of counsel in the first place. The lawyer must consider not only what
the client wants but also why the parties have been unable to settle their dispute and then must
find a dispute resolution procedure that in likely to overcome the impediments to settlement.
Note, however, that, even though it may initially appear that the parties seek a settlement,
sometimes, an examination of the impediments to settlements reveals that atleast one party
wants something that settlement cannot provide (eg. Public vindication or a ruling that
establishes an enforceable precedent.) An attorney who is paid on an hourly basis stands to
profit handsomely from a trial, and maybe less interested in settlement than the client. On the
other hand, an attorney paid on a contingent fee basis is interested in a prompt recovery without
the expense of preparing for or conducting a trial, and maybe more interested in settlement than
is the client. It is in part because of this potential conflict of interest that most processes that
seek to promote settlement provide for the clients direct involvement. For lawyers, this means
new approaches that initially seem almost counterintuitive. For example, the recovery of large

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sums of money is usually regarded as the ultimate "win" for plaintiffs in commercial cases.
Yet, Wall Street values long-term streams of revenue even more highly than large sums of
cash. Perhaps the restructuring of a long-term relationship would offer a better result. Once in
mediation, lawyers usually try to exert a high degree of control over the process, not unlike in
a deposition or at trial. However, direct involvement of the client in the mediation process is
often the best way to succeed. Lawyers also frequently engage in a "we-they" approach to
negotiations that rarely results in a zero-sum gain. Lawyers need to have a better understanding
of the importance of integrative bargaining, where lawyers can sit on the same side of the table
and try to "expand the pie."

Lawyers also need to reflect upon the meaning of Ethical Consideration, which imposes a duty
to represent a client zealously. Effective mediation advocates need to abandon any desire for
revenge in favour of a more goal-oriented approach if they are to secure the "win" that best
serves their client's interests. In many instances, it is not the lawyer but the angry client who
wants revenge. For these clients, every new case becomes a matter of principle until the client
receives the lawyer's third or fourth bill then the client wants to spell the word "principle"
differently. Here, even more so, the lawyer has a responsibility to make an early and realistic
assessment of the dispute and to serve as an anchor for the client. These differences in interest
need to be sorted out.

(3) Legal Education : Law schools train their students more for conflict than for the arts of
reconciliation and accommodation and therefore serve the profession poorly. Already, lawyers
devote more time to negotiating conflicts than they spend in the library or courtroom and
studies have shown that their efforts to negotiate were more productive for the clients. Over
the next generation, society's greatest opportunities will in tapping human inclinations towards
collaboration and compromise rather than stirring our proclivities for competition and rivalry.
If lawyers are not leaders in marshalling co-operation and designing mechanisms which allow
it to flourish, they will not be at the centre of the most creative social experiments of our time.
A serious effort to provide cheaper methods of resolving disputes will require skilled mediators
and judges, who are trained to play a much more active part in guiding proceedings towards a
fair solution. In short, a just and effective legal system will not merely call for a revised
curriculum; it will entail the education of entire new categories of people. For law schools,
there is a need to recognize that the demands of the marketplace have forever changed the
dynamics of dispute resolution. Obviously, an understanding of the adversarial system, stare
decisis, and the process of litigation remain critical. At the same time, students need to enhance

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their skills as negotiators and to appreciate, for example, the value of listening or the advantage
of making the "first credible offer." Law students also need to understand the suitability and
advocacy issues in ADR at more sophisticated levels and to understand the important keys to
problem solving. It is time that our law schools began to take the lead in helping to devise such
training.

(4) Impediments to settlement : Just as there may be problems in the implementation

techniques, there are impediments even after that stage, i.e. during the time of settlement. Some
of them are:

(i) Poor communication: The relationship between the parties and/or their lawyers may be so
poor that they cannot effectively communicate. Neither party believes the other. Inability to
communicate clearly and effectively, which impedes successful negotiations, is often, but not
always, the result of a poor relationship. If, for example, the parties come from different cultural
backgrounds, they may have difficulty in understanding and appreciating each other's concerns.
Or, if there had been a long history of antagonism between the key players, all efforts to
communicate are likely to be hampered by antagonism.

(ii) The need to express emotions: At times, no settlement can be achieved until the parties
have had the opportunity to express their views to each other about the dispute and each other's
conduct. Such venting, combined with the feeling that one has been heard by the other party,
has long been recognized as a necessary step in resolving family and neighbourhood disputes.
Business disputes are no different. After all, they do not take place between disembodied
corporations but between people who manage those corporations, and who may have as much
need to vent as anyone else involved in a dispute.

(iii) Different views of facts: Usually in a dispute, there are two or more parties, each believing
that they are the hurt party in some way or the other. Each believes that the other is the wrong
doer. To this belief, they have their own justifications. Just as each one of them has a different
perspective on what the result of the dispute should be, they also have their own view regarding
the facts of the case. Both parties have their own version as to what the facts are and reconciling
these different views is itself a major problem.

(iv) Different views of legal outcome if settlement is not reached: Disputants often agree on
facts but disagree on their legal implications. One party asserts that, on the basis of the agreed
upon facts, he has a 90 percent likelihood of success in court; the other party, with equal

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fervour, asserts that she has a 90 percent chance of success. While there may be a legitimate
dispute over the likely outcome, both these estimates cannot be right.

(v) Issues of principle: If each of the disputing parties is deeply attached to some fundamental
principle that must be abandoned or compromised in order to resolve the dispute, then
resolution is likely to be difficult. Two examples: a suit challenging the right of neo-Nazis to
march into a town where many Holocaust survivors live; and a suit by a religious group
objecting to the withdrawal of life-support systems from a comatose patient. In view of the
intensity of feelings in cases such as these, it is unlikely that evaluative techniques will be
helpful in reaching a settlement.

(vi) Constituency pressures: If one or more of the negotiators represents an institution or group,
constituency pressures may impede agreement in two ways: different elements within the
institution or group may have different interests in the dispute, or the negotiator may have
staked her political or job future on attaining a certain result.

(vii) Linkage to other disputes: The resolution of one dispute may have an effect on other
disputes involving one or both parties. If so, this linkage will enter into their calculations, and
may so complicate negotiations as to lead to an impasse. For example, an automobile
manufacturer in a dispute with one of its dealers concerning the dealer's right to sell autos made
by the other companies may ultimately be willing for reasons specific to that dealer-to allow it
to do so. But the manufacturer may so fear the effect of such an agreement on similar disputes
with other dealers that the parties arrive at an impasse. It is possible that the manufacturer did
not make this concern explicit in its negotiations with the dealer because it did not want the
dealer to know it was engaged in similar disputes elsewhere.

(viii) Multiple Parties: Where there are multiple parties, with diverse interests, the problems
are similar to those raised by diverse constituencies and issue linkages.

(ix) The "Jackpot" syndrome: An enormous barrier to settlement often exists in those cases
where the plaintiff is confident of obtaining in a Court a financial recovery far exceeding its
damages, and the defendant thinks it is unlikely. For example, the case may be one in which
the controlling statute provides for the discretionary award of punitive damages to the
successful plaintiff. If the underlying damage claim is for Rs. 10 lakh, and the plaintiff thinks
that Rs. 50 lakh in punitive damages is a real possibility while the defendant does not, the vast
disparity in case valuation may make settlement close to impossible.

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(5) Ignorance: One of the major reasons for the failure in implementation is the ignorance of
the existing provisions of law. Legislators have made the necessary laws, but have never
thought of implementing them at the grass- root level. They do not help in building up the
awareness of those laws, so that people will utilise them. ADR provisions are well known only
in the big business circles. Most of the educated elite are also unaware of the availability and
possibility of such mechanisms in India, let alone the rural sector. Most of the rural segment,
after all these years of independence, is now understanding the formal legal system and is
making use of it at a time when the country and the world at large is reverting back to the old
community-based problem solving and other ADR techniques so well known in rural India.
Ignorance of laws is not an excuse in our country. However, when no awareness is present,
how would people know about it and utilise it?

(6) Corruption: Corruption is not a new issue in our country. It has always been a parasite to
the nation and is sucking out the very purpose of independence. Today, not a single work gets
done without having to bribe the way through. People have stopped challenging it as without
being a part of it, life becomes difficult. ADR mechanisms have a very great risk of being
ridden by corruption. For instance, in cases of negotiation between a rich educated person and
poor illiterate man over a land dispute, chances of the negotiator being bribed by the rich person
is very high. Thus, corruption can become a raging problem in ADR.

(7) Though recourse to ADR as soon as the dispute arises may confer maximum advantages on
the parties; it can be used to reduce the number of contentious issues between the parties; and
it can be terminated at any stage by any one of the disputing parties. However, there is no
guarantee that a final decision may be reached.

(8) ADR procedures are said to be helpful in reaching a decision in an amicable manner.
However, the decisions arrived at after a non-litigative procedure are not binding as they are
voluntary. This makes the entire exercise futile as parties do not stick to their decision resulting
in a waste of time and money.

(9) ADR procedure permits parties to choose neutrals who are specialists in the subject matter
of the disputes. This does not mean that there will be a diminished role for lawyers. They will
continue to play a central role in ADR processes; however, they will have to adapt their role
ADR requirements. Neutrals and trained ADR experts are very few to cater to the vast
population.

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(10) Since the ADR proceedings do not require a very high degree of evidence, most of the
facts regarding the dispute which would have been proved otherwise continue to be a bane in
the discussion which may lead to dissatisfaction.

(11) In ADR, the parties can choose their own rules or procedures for dispute settlement.
Arriving at them is the major hurdle.

(12) ADR programmes are flexible and not afflicted with rigourous rules of procedure. There
is, therefore, a possibility of the parties going back on the agreed rules and programmes. This
creates a delay and slows the process of dispute resolution.

(13) Flexibility and unconfirmed procedures make it extremely difficult to quote and use
precedents as directives.

(14) ADR procedures were introduced to lessen the burden of the courts. However, since there
is an option to appeal against the finality of the arbitral award to the courts, there is no
difference in the burden.

(15) There are also some situations under which an amicable settlement through ADR is not
favoured. They are:

- One party may be owed money and simply be looking for the final and enforceable decision
which can be obtained by resorting directly to litigation. Any ADR procedure only
compromises his situation.

- A party may owe money and seek to use amicable settlement as a delay and discovery
mechanism-the other party may, therefore, be concerned about the delay, incurring extra costs
and being disadvantaged in the subsequent litigation

- Adjudicative methods may be most appropriate for resolving some situations, such as
frivolous claims, claims which compromise a particular principle, cases which involve bodily
injury or alleged criminality.

All these problems are not permanent in nature. They all have solutions. An attempt to make
suggestions for the solutions of the above listed problems has been made below. This list of
suggested solutions is merely illustrative and not exhaustive. An in-depth research for this is
vital.

It is felt that an attitudinal change towards ADR would result in active implementation of ADR
and the burden on the courts will reduce. Yet, whether it is in the urban segment or in the rural

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segment, there is still a lack of knowledge about ADR. A need for instilling awareness is
imperative to bring in a change in the attitudes. The urban sector which has a higher literacy
rate could be reached by inserting slides in movie theatres, having advertisements in television
channels and newspapers, conducting periodical seminars and having a dedicated helpline. It
is the rural segment whose attitude is difficult to change. From the initial gramasabha system,
it took many years for them to adopt litigation. To revert back to the old system, which is in
fact an ADR concept would require tremendous amount of communication by trained
professionals be spelling the strengths of the system. An insight into the advantages of
conciliation and negotiation would bring in the desired change-change of attitude. To keep
active here is awareness, by interactive communication. A dedicated helpline would exhilarate
the process of attitudinal change by giving clarity to communication. 'People are generally
ignorant about legal terminology and the opportunities available in dispute resolution. The
other gnarling issue is corruption. To combat these two forces, imparting knowledge is a must.
Driving ignorance away would infact, help in curtailing corruption too. The NGOs should put
in their efforts in providing a knowledge base to the needy. A committed person in each NGO,
working in rural areas, should help in reaching the goal quickly. The major lacuna in ADR is
that it is not binding. One could still appeal against the award or delay the implementation of
the award. "Justice delayed is justice denied." The very essence of ADR is lost if it is not
implemented in the true spirit. The award should be made binding on the parties and no appeal
to the court should be allowed unless it is arrived at fraudulently or if it against public policy.
Rules of procedure are being formulated on a case-by-case basis and the rules made by the
parties themselves, with may be, some intervention of legal professionals. However, a general
guideline and a stipulated format would assist in bringing clarity to the formulation of an ADR
award. This would also help in cutting down ignorance and assist in better negotiation. Legal
education and law schools should focus on the arts of conciliation and negotiation and not
merely on litigation. Lawyer client interests should also be moulded towards a primary focus
on ADR failing which the recourse should be towards litigation.

Conclusion

At the end I would like to say Alternative Dispute Resolution (ADR) refers to an array of
methods for resolving legal disputes without resorting to the court system. As we have
discussed about the origin, and development of ADR mechanism. Chief Justice Bhagwati said
in his speech on Law Day, "I am pained to observe that the judicial system in the country is on
the verge of collapse. These are strong words I am using but it is with considerable anguish

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that I say so. Our judicial system is creeking under the weight of errors." Arrears cause delay
and delay means negating the accessibility of justice in true terms to the common man.
Countless rounds to the Courts and the lawyers' chambers can turn any person insane. Even
then loitering and wasting time in the corridors of Courts has become a way of life for a
majority of Indians who day by day are becoming litigious. Some of the main reasons for delay
in the disposal of cases are abnormal increase in the number of cases going to Courts and
Tribunals, mainly due to faulty legislation enacted hurriedly, arbitrary administrative orders,
increased consciousness of one's rights and gambler's instinct in a litigant due to multiplicity
of appeals and revisions provided in law." The disputants want a decision and that too as
quickly as possible. As the problem of overburdened Courts has been faced all over the world,
new solutions were searched. Various Tribunals were the answer to the search. In India, we
have a number of Tribunals. However, the fact of the matter is that even after the formation of
so many Tribunals, the administration of justice has not become speedy. Thus, it can be safely
said that the solution lies somewhere else. All over the globe the recent trend is to shift from
litigation towards Alternative Dispute Resolution. It is a very practical suggestion, which if
implemented, can reduce the workload of Civil Courts by half. Thus, it becomes the bounden
duty of the Bar to take this onerous task of implementing ADR on itself so as to get matters
settled without going into the labyrinth of judicial procedures and technicalities. The Bar
should be supported by the Bench in this herculean task so that no one is denied justice because
of delay. It is important here to mention the statement made by John F. Kennedy in this respect:
"Let us never negotiate out of fear but let us never fear to negotiate.

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