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Alternative Dispute Resolution in India

2013- 12- 15 17:12:37 GKToday

ADR or "Alt ernat ive Disput e Resolut ion" is an at t empt t o devise machinery
which should be capable of providing an alt ernat ive t o t he convent ional
met hods of resolving disput es. ADR of f ers t o resolve mat t ers of lit igant s,
whet her in business causes or ot herwise, who are not able t o st art any
process of negot iat ion and reach any set t lement . It has st art ed gaining
ground as against lit igat ion and arbit rat ion.

ADR and Constitution

ADR f irst st art ed as a quest t o f ind solut ions t o t he perplexing problem

of t he ever increasing burden on t he court s. It was an at t empt made by
t he legislat ors and judiciary alike t o achieve t he "Constitutional goal"
of achieving Complet e Just ice.
Alt ernat ive Disput e Resolut ion in India was f ounded on t he
Const it ut ional basis of Art icles 14 and 21 which deal wit h Equality before
Law and Right to life and personal liberty respectively.
ADR also t ries t o achieve t he Direct ive Principle of St at e Policy relat ing
t o Equal just ice and Free Legal Aid as laid down under Art icle 39-A of t he
Const it ut ion.

T he acts

T he Act s which deal wit h Alt ernat ive Disput e Resolut ion are Arbit rat ion
and Conciliat ion Act , 1996 and t he Legal Services Aut horit ies Act , 1987.
Sect ion 89 of t he Civil Procedure Code, 1908 makes it possible f or
Arbit rat ion proceedings t o t ake place in accordance wit h t he Act s
st at ed above.

Advantage of Alternate Dispute Resolution:

It is less expensive.
It is less t ime consuming.
It is f ree f rom t echnicalit ies as in t he case of conduct ing cases in law
Court s.
T he part ies are f ree t o discuss t heir dif f erence of opinion wit hout any
f ear of disclosure of t his f act bef ore any law Court s.
T he last but not t he least is t he f act t hat part ies are having t he f eeling
t hat t here is no losing or winning f eeling among t he part ies by at t he
same t ime t hey are having t he f eeling t hat t heir grievance is redressed
and t he relat ionship bet ween t he part ies is rest ored.
Legislative recognition of Alternative Dispute Redressal

T he Legal Services Aut horit ies Act , 1987 brought about t he

est ablishment of Lok Adalat System f or set t lement of disput es
cheaply and expedit iously and also in t he spirit of compromise by give
and t ake f ormula.
Sect ion 30 of t he Arbit rat ion and Conciliat ion Act , 1996 encourages
arbit rat ors, wit h t he agreement of t he part ies, t o use mediat ion,
conciliat ion or ot her procedures at any t ime during t he arbit rat ion
proceedings t o encourage set t lement .
Furt her st ill, t he Civil Procedure Code (Amendment ) Act , 1999 carries
Sect ion 89 which is designed t o enable t he court s t o bring about a
set t lement of disput e out side t he Court . As and when t he Amendment
comes t o be enf orced, t he f our met hods list ed in t he sect ion and known
as court -ordered or court - annexed ADRs would become st at ut ory
alt ernat ives t o lit igat ion f or set t lement of disput es and would be legally
enf orceable
It is now made obligat ory f or t he Court t o ref er t he disput e af t er issues
are f ramed f or set t lement wit h t he concurrence of t he part ies eit her by
way of :
Arbit rat ion,
Conciliat ion,
Judicial set t lement including set t lement t hrough Lok Adalat , or
Mediat ion

Where t he part ies f ail t o get t heir disput es set t led t hrough any of t he
Alt ernat ive Disput e Resolut ion met hods, t he suit would come back t o proceed
f urt her in t he Court it was f iled.

Justice Malimath Committee Report (1989-90)

T he Malimat h Commit t ee undert ook a comprehensive review of t he working

of t he court syst em, part icularly all aspect s of arrears and Law's delay and
made various usef ul recommendat ions f or reducing lit igat ion and making
just ice readily accessible t o t he people at t he minimum cost o t ime and
money. It underlined t he need f or alt ernat ive disput e resolut ion mechanism
such as mediat ion, conciliat ion, arbit rat ion, Lok Adalat s et c. as a viable
alt ernat ive t o t he convent ional court lit igat ion.

Various Kinds of ADR Mechanism

Arbit rat io n:

Arbit rat ion is t he process of hearing and det ermining of a disput e bet ween
part ies by persons chosen or agreed t o by t hem. T he object of arbit rat ion is
t o obt ain t he f air resolut ion of disput es by an impart ial t ribunal wit hout
unnecessary delay and expense.
Co nciliat io n:

Conciliat ion is t he process of f acilit at ing an amicable set t lement bet ween t he
part ies. Unlike t he Arbit rat ion t here is no det erminat ion of a disput e. T here
need not be a prior agreement and it cannot be f orced on a part y not
int ending f or conciliat ion. T he proceedings relat ing t o Conciliat ion are dealt
under sect ions 61 t o 81 of Arbit rat ion and Conciliat ion Act , 1996.

Me diat io n:

Mediat ion aims t o assist t wo (or more) disput ant s in reaching an agreement .
T he part ies t hemselves det ermine t he condit ions of any set t lement s reached
rat her t han accept ing somet hing imposed by a t hird part y. T he disput es
may involve (as part ies) st at es, organizat ions, communit ies, individuals or
ot her represent at ives wit h a vest ed int erest in t he out come. Mediat ors use
appropriat e t echniques and/or skills t o open and/or improve dialogue bet ween
disput ant s, aiming t o help t he part ies reach an agreement (wit h concret e
ef f ect s) on t he disput ed mat t er.