"Justice Delayed is Justice Denied
Indian judiciary is one of the Oldest Judicial System. Many developments are
being done in our system to make access to justice much efficient. But still,
the courts are logged with number of pending cases. To deal with such a
situation, Alternative Dispute Resolution can be helpful mechanism; it resolves
conflict between the transacting parties in a peaceful manner by arriving at an
amendable settlement which is accepted by both the parties.
It resolves disputes of all types including civil, commercial, family, etc. ADR
procedures are often collaborative and allow the parties to understand each
other's position. It aims to maintain peace and cooperation between parties and
prevents hostility among them. The purpose of solving dispute through ADR is to
lower the burden upon the courts and provide cost effective, early access and
speedy trial to the cases. In India, ADR is established based on Article 14 and
Article 21 of the Constitution of India.
This article tries to give a good and detailed overview of the Alternative
dispute mechanism (hereinafter referred to as ADR) Systems of India in
particular and the world over in general. This article zeros in on the important
aspects of the ADR methods, like the usefulness of these methods for the
resolution of various legal matters, the efficiency of methods, pros and cons of
each of these methods etc.
It also covers a comparative analysis of various ADR mechanisms. I hope, this
article shall enlighten the layman and all other stakeholders concerned in a big
way thereby enabling them to unfold new paradigms of ADR methods and resolutions
Human Conflicts are inexorable because society is a multifarious web of social
relations. Disputes in the same way are inescapable. We cannot avoid disputes
but an attempt must be made to resolve them speedily and inexpensively, so that
the precious time of courts is public is not wasted. Therefore, Dispute
resolution is an indispensable process for making social life peaceful. It is
the sin qua non of social life and security of social order, without which it
may be difficult for the individuals to carry on the life together.
Alternate Dispute Resolution is one of the most efficacious mechanisms to
resolve legal disputes in confidential way using different modes. It is free
from technicalities of courts; here informal ways are applied in resolving
dispute. People is free to express themselves without any fear of court of law.
They can reveal the true facts without disclosing it to any court.
ADR is a bouquet that consists of various techniques being utilized to determine
disputes involving a structural process with a third-party intrusion. It is an
attempt to devise feasible and fair alternative to our conventional judicial
system. It can be categorized into three categories namely: informal techniques,
advance techniques and hybrid techniques.
Informal methods consist of the following: Forceful private enforcement,
escaping, belief in God's justice, decision by society's representative body
Advance methods can be classified as: Negotiation, mediation and conciliation
A hybrid dispute resolution method combines elements of two or more
traditionally separate processes into one like Mediation-Arbitration, Mini
trial, Neutral Listener Agreement, Rent a judge etc.
In India, laws relating to resolution of disputes have been amended from time to
time to facilitate speedy dispute resolution in sync with the changing times.
The Judiciary has also encouraged out-of-court settlements to alleviate the
increasing backlog of cases pending in the courts. Adding to it, the Arbitration
Act, 1940 was also repealed and a new and effective arbitration system was
introduced by the enactment of The Arbitration and Conciliation Act, 1996.
Likewise, to make the ADR mechanism more effective and in coherence with the
demanding social scenario, the Legal Services Authorities Act, 1987 has also
been amended from time to time to endorse the use of ADR methods. Section 89 of
the Civil Procedure Code, 1908 provides that opportunity to the people, if it
appears to court there exist elements of settlement outside the court then court
formulate the terms of the possible settlement and refer the same for:
Arbitration, Conciliation, Mediation or Lok Adalat. ADR also strive to achieve
equal justice and free legal aid provided under Article 39-A relating to
Directive Principle of State Policy (DPS)
With the development ADR, their methods, and in order to improve access to
justice, ADR is an absolute necessity in the present scenario.
Sir Francis Bacon also explained the concept of ADR stating that:
"It is generally better to deal by speech than by letter and by mediation of a
third man than by man's self"
Therefore, Legal recognition should be given to all ADR methods as they are
viable and convenient and help to ease the burden of the courts.
This Article will discuss in detail the "Art and Heart" of ADR which is the wide
range of techniques which are present and are used in an effective way.
Historical Background Of Adr
In the ancient period dispute between parties were settled by assemblies of
learned men in a locality who knew law. The practise is still prevalent in this
contemporary society but its scope has widened... Earlier it was only the work
of judiciary to solve dispute between parties. The delay in delivery of Justice
was the biggest challenge before the Indian Judicial system. But after the
evolution of ADR methods, the amicable settlement of disputes became possible
without the intervention of Court. It enabled speedy justice to the society. It
also helped the Judiciary by reducing its burden.
ADR is not a new concept for the society. ADR has been a spoke in the wheel of
the larger formal legal system in India since time immemorial. The earliest
evolution of the concept of arbitration can be traced back to the time when King
Solomon settled the dispute between two mothers where each one was claiming the
right on the baby boy and the issue was who the true mother of a baby boy was.
In the ancient and medieval periods disputes were resolved in an informal manner
by a neutral third person who was either an elderly person or village chief.
Adr During British Period
The British East India Company opened their first trading Centre at Surat,
Gujarat in 1612. This was as per the deed of right Mughal Emperor Jehangir
granted to them. Their first major interference with the internal politics of
India was when they supported Mir Kasim, a minister of Bengal, militarily to
sabotage Siraj-ud-Daula, the Nawab. On 23rd June, 1757, the Nawab was defeated
by a joint military action of Robert Clive's troops and those of Mir Kasim in a
battle at Plassey.
And this was the turning point where the British formally entered the political
arena of India and began to play a direct role in the administrative supremacy.
They managed to bring under their administrative control most of the princely
states of India either by direct annexation using force or by giving military
support. They brought Punjab also under their control in 1849.
Along with Punjab, the North West Frontier Province, which is now under
Pakistan, was also brought under them. And in those states where a legitimate
heir apparent to the crown was not available, they were brought under the
Judicial administration was changed during British period. The current judicial
system of India is very close to the judicial administration as prevailed during
The system of alternate dispute redressal was found not only as a convenient
procedure but was also seen as a politically safe and significant in the days of
However, with the advent of the British Raj these traditional institutions of
dispute resolution somehow started withering and the formal legal system
introduced by the British began to rule. ADR in the present form picked up pace
in the country, with the coming of the East India Company. Modern arbitration
law in India was created by the Bengal Regulations. The Bengal Regulations of
1772, 1780 and 1781 were designed to encourage arbitration.
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. Hence, there were several
Regulations and legislation that were brought in resulting considerable changes
After some other provisions from time-to-time Indian Arbitration Act,1899 was
passed, based on the English Arbitration Act of 1889. It was the first
substantive law on the subject of arbitration but its application was limited to
the Presidency - towns of Calcutta, Bombay and Madras. Act, however suffered
from many defects and was subjected to severe judicial criticisms.
The Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of
1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second
Schedule of the Code of Civil Procedure, 1908. It amended and consolidated the
law relating to arbitration in British India and remained a comprehensive law on
Arbitration even in the Republican India until 1996.
Bodies such as the panchayat, a group of elders and influential persons in a
village deciding the dispute between villagers are very common even today. The
panchayat has, in the recent past, also been involved in caste disputes. In 1982
settlement of disputes out of courts started through Lok Adalat's. The first Lok
Adalat was held on March 14, 1982 at Junagarh in Gujarat and now it has been
extended throughout the country. By the enactment of the Legal Services
Authorities Act, 1987, which came into force from November 9, 1995, the
institution of Lok Adalat's received statutory status. To keep pace with the
globalization of commerce the old Arbitration Act of 1940 is replaced by the new
Arbitration and Conciliation Act, 1996.
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:
- Lok Adalat
The dictionary meaning of 'arbitration' is the process of solving an argument
between people by helping them to agree to an acceptable solution Arbitration is
a part of the Alternative Dispute Resolution mechanism that benefits parties who
want to avoid the normal lengthy recourse to the local courts for settlement of
disputes. It is in fact a legal technique for the resolution of dispute outside
the courts, wherein the parties to a dispute refer it to one or more persons
namely arbitrator(s) by whose decision (the "award") they agree to be bound.
Many disputes like consumer complaints, family disputes, construction disputes,
business disputes can be effectively resolved through ADR. It can be used in
almost every kind of dispute which can be filed in a court as a civil dispute.
Advantages Of Arbitration:
Arbitration is preferred over traditional litigation because Arbitration is
generally less expensive than litigation. It provides for faster resolution of
dispute through flexible time schedule and simpler rules.
A Court is burdened with a number of cases taken up for hearing every day. An
arbitrator conducts only the proceedings referred to him by the parties which
allows the arbitrator to pass sound judgments.
The arbitration legal process is more confidential than a trial.
There is a level of finality to the arbitration process. Because it cannot be
appealed, both parties can move on following the outcome.
Disadvantages Of Arbitration:
Just like how a coin as two sides Arbitration also has its own disadvantages.
Some advantages itself become disadvantages in some situations.
As we already discussed that arbitral award cannot be appealed by either of the
parties. This is an advantage as well as disadvantage in Arbitration. Since
there is no appeal, even if one party feels that the outcome was unfair, unjust,
or biased, they cannot question it.
Since Arbitration itself is cost-efficient it won't be helpful if minimal money
Unlike a typical court here in arbitration there is no scope for
cross-examination. Arbitrators rely on documents provided by the parties.
In litigation court there are certain rules of evidence laid down for accepting
evidence which is not the case in Arbitration. 8
An Overview Of The Arbitration And Conciliation Act, 1996:
The Arbitration and Conciliation Act, 1996 contains the law relating to
arbitration. This Act came into force on January 25th 1996. This act gives the
provisions for International Commercial arbitration, domestic arbitration and
also enforcement of foreign Arbitral awards. It is based on the UN model law so
as to equate with the law adopted by the United Nations Commission on
International Trade Law (UNCITRAL).
The main object of Arbitration Act is to regulate law relating to:
Types Of Arbitration In India:
- Domestic Arbitration
- International Commercial Arbitration
- Enforcement of Foreign Arbitral Award
Domestic Arbitration as the name suggests is that type of
Arbitration, which takes place in India, wherein both the parties belong to
India and the conflict has to be decided in accordance the substantive law of
India. The term 'domestic arbitration' has not been defined in the Arbitration
and Conciliation Act, 1996.
However, when reading Section 2 (2) (7) of the Act
1996 together, it is implied that domestic arbitration means an arbitration in
which the arbitral proceedings must necessarily be held in India, and according
to Indian substantive and procedural law, and the cause of action for the
dispute has completely arisen in India, or in the event that the parties are
subject to Indian jurisdiction.
The arbitration that takes place within the territory
of India or outside India or it has any element which has foreign origin is
termed as International Arbitration. The facts and circumstances of the disputes
between the parties decide that of which origin the law should apply to the
Generally, in India the Arbitration processes are classified into three: 9
- Institutional arbitration
- Ad hoc arbitration
- Fast track arbitration
Refers to the arbitration process which is carried out
by an arbitration institution. These institutions have their own set of rules
and give a framework for the arbitration to settle the dispute between the
parties. The parties have the choice of specifying, in the arbitration
agreement, to refer the differences to be determined by an elected arbitral
Ad Hoc Arbitration:
Refers to the process in which the parties mutually arrange
the arbitration for the settlement of the dispute. The parties are free to
submit their own set of rules and procedures as they don't have to follow any
set guidelines of any arbitration institution. The essence of the ad hoc
arbitration is the geographical jurisdiction.
Arbitration is the remedy to the lengthy and tedious process of
arbitration. The time is the main essence of fast-tracks arbitration. In this
process, all the methods which consume time in an arbitration process have been
removed and the process is made much simpler. The arbitration process is also
called private process as it is not similar to the court proceedings it takes
Process Of Arbitration In India:
Arbitration arises due to dispute between parties. So, to start arbitration
there must be an arbitration clause in the agreement entered into by the
The following steps are involved in an Arbitration:
Landmark Judgment On Arbitration:
Bhatia International Vs Bulk Trading S. A. & Anr ((2002) 4 Scc 105)
- The parties must have entered into an agreement containing arbitration
clause. Arbitration clause in simple words states that in case any dispute
arises between the parties, it must be resolved through the process of
- Section 21 of the 1996 Act states that a notice is to be given by the
aggrieved party to the opposite party invoking the arbitration proceedings.
It is in line with the principles of natural justice.
- After the respondent receives notice from the aggrieved party about the
commencement of arbitration, both the parties will appoint an arbitrator
according to section 11 of the 1996 Act.10
- According to section 23 of the 1996 Act both the parties draft their
statement of claims which contains all the documents which they think are
relevant to the case and also all the evidences proving their statements.
- Thereafter, the arbitral tribunal will hear both the parties and examine
evidences. The tribunal will decide whether documents produced are
admissible or not.
- After hearing both the parties and examining all the issues a final
award will be given by the arbitrator. This award shall be made in writing
and shall be signed by all the members of the Tribunal. This award shall be
final and binding on both the parties.
Neither of the parties can appeal the award before arbitral tribunal however,
they can challenge it in the court.
- After the award is passed it has to be executed according to sections 35
and 36 of the Act.
This case is of momentous significance in the field of arbitration as it
empowers the Indian courts to intervene in international commercial arbitrations
held outside India irrespective of the proper law governing the arbitration
agreement. The extent of intervention extends from the grant of interim measures
and the appointment of arbitrators to the vacatur of an award resulting from
Brief Facts Of The Case:
Bhatia International (appellant) (Indian party) and Bulk Trading SA (respondent)
(Foreign party) entered into a contract with an arbitration clause providing for
arbitration as per the rules of the International Chamber of Commerce (ICC). A
sole arbitrator was appointed by the ICC on request of the respondent and the
parties agreed for arbitration to be held in Paris.
Thereafter, the respondent
filed an application under Section 9 of the Act in the District Court, Indore,
for obtaining an order of injunction restraining the appellant from transferring
its business assets and properties located in India. The appellant (Indian
party) contended that Part 1 of the Act containing Section 9 applies only to
arbitrations conducted in India. Hence, an appeal was made to the Supreme Court
for deciding whether an Indian court can provide interim relief under Section 9
in cases where an international commercial arbitration is held outside India.
- Whether Indian Courts have power to grant interim relief under section 9
of the Arbitration and Conciliation Act 1996?
In this case the Supreme Court found that Part 1 applied to International
Arbitrations, despite the fact that it seemed to apply to only domestic
arbitrations. Nevertheless, the court held that Part 1 applied to international
arbitrations unless the parties expressly or impliedly excluded the provision.
This case has given Indian courts the opportunity to intervene in a foreign
award as it were an Indian award. Essentially, Bhatia International case granted
courts the authority to claim jurisdiction over international arbitration
agreements and set aside arbitral awards from foreign-seated panels when such a
dispute involved an Indian party.13
In simple words conciliation is a process of settlement of disputes outside the
court. In this process a third party called the 'conciliator' is involved to
assist the parties to a dispute in reaching a mutually agreed solution. The
conciliator is appointed by the consent of both the parties. The conciliator may
express his opinion about the merits of the dispute to help the parties reach a
settlement. The conciliator does not take any decision in this matter.
Conciliation is one of the non-binding procedures i.e., the outcome is not
binding on the parties.
The part 3 of the Arbitration and Conciliation Act, 1996, pertains to provisions
with respect to Conciliation from section 61 to Section 81.
Difference Between Arbitration And Conciliation
Advantages And Disadvantages Of Conciliation:
- Arbitration is a method used to resolve disputes where both the parties
present their case to an arbitrator who pronounces a decision and enforces
such decision. Whereas, conciliation involves a neutral third party who
assists the parties to arrive at a mutual agreement.
- The decision of the arbitrator is similar to a judgment given by the
court. A conciliator, however, does have the right to enforce the decision.
- In order to settle the dispute through arbitration prior agreement is
required whereas to settle the dispute through conciliation prior agreement
is not required.
- An arbitrator is a neutral party and is not allowed to suggest parties
regarding the alternatives. Whereas, conciliator can give suggestions,
consider alternatives to resolve the dispute.
- Conciliation is an informal process with simple procedures and can be
availed by layman too.
- The selection of the conciliators depends upon the parties. The parties
can choose conciliator on the basis of their availability, experience in
particular field, previous track records of the cases, knowledge in subject
- Conciliation is cost effective and affordable compared to court
- The process of conciliation is private in nature hence the documents,
evidences submitted are highly confidential.
Process Of Conciliation:
- Conciliator is not a legally qualified person for resolving disputes.
His decision is not binding upon the parties.
- As the procedure is informal and non-binding there is high possibility
of delivering injustice.
- Since the decision is at the discretion of the parties, there is a
possibility that a settlement between the parties may not arise.
- Commencement Of Conciliation Proceedings:
Section 62 of the Arbitration and Conciliation Act (Hereinafter, referred to as
Act) talks about commencement of the conciliation proceedings. In order to begin
the proceedings either of the parties must send a written invitation to the
other party. The proceedings will start only if the other party accepts such
invitation. If the other party does not give reply within 30 days it shall be
assumed that invitation is not accepted.
- Appointment Of Conciliators:
Section 64 of the Act talks about appointment of conciliators. After the parties
have agreed to go for conciliation the next step is to appoint the conciliators.
If the parties agree they can appoint a sole conciliator. If the parties agree
upon appointing two conciliators, each party shall appoint one conciliator each.
- Submission Of Written Statement To The Conciliator:
It is necessary that both the parties must file a written statement each to the
conciliator, Narrating their set of facts.
- Conduct Of The Conciliation Proceedings;
Sections 67(3) and 69(1) of the Act talks about the conduct of conciliation
proceedings. The conciliator may talk to the parties separately or together as a
round table proceeding. Finding an amicable solution is important at the end.
- Administration Assistance:
Section 68 of the act talks about the administrative assistance. The parties may
seek administrative assistance from any recognized institution if necessary. For
such assistance consent of the parties is required.
The word "negotiation" is from the Latin expression, "negotiatus", which means
"to carry on business". "Negotium" means literally "not leisure". Negotiation is
the simplest means for redressal of disputes. It is a non-binding, Equalization
process which involves direct interaction of the disputing parties wherein a
party offers a negotiated settlement drawn on an objective evaluation of both
parties The parties engage in the dispute with each other until they reach a
desirable outcome for all involved.
The aim of negotiation is the settlement of
disputes by exchange of views and issues concerning the parties. A
well-conducted negotiation may allow both sides to win by making the sum for
both sides greater than either could possess alone. In the language of academics
this is called "synergy Negotiation can be used either to resolve any existing
problem or a future relationship.
In this mode, the parties begin their talk without the interference of a third
person. If there is understanding, Good communication, Objectivity, Willingness
and element of patience between the parties, this mode of redressal of dispute
is most suitable. In India, Still Negotiation doesn't have any statutory
recognition i.e. through way of legislation
Advantages Of Negotiation:
Disadvantages Of Negotiation
- � It can open wide new areas of interests to both parties and helps them maintain a healthy relationship.
- � It is swift, economical, uncomplicated, and private.
- � It improves communication maximizing the odds of a positive outcome.
- � In court proceedings, the judge decides. In negotiation, the decision is in the hands of the parties.
- � It allows parties to tailor the decision to their own needs. They have greater control over procedure and final outcome.
- � It is a voluntary and non-binding based technique.
Stages Of Negotiation
The process includes following stages:
- The parties to the dispute may not come to a settlement.
- Lack of legal protection of the parties to the conflict.
- Imbalance of power between the parties is possible in negotiation.
The process of negotiation begins with the signal of communication from one party to the other showing a willingness to bargain. This stage involves ensuring the important facts of the dispute and its situation in order to clarify the position of both the parties.
Once it has been established that negotiation is the appropriate course of action, the further arrangement shall be made in that course with the other party included. The arrangement includes:
- Outlining the scope of negotiation
- Forming a timetable as to whether or not there will be a fixed duration of negotiation
- Ensuring that all the interested parties are identified and have been consulted
- Choosing a location which is feasible to both the parties
- Clarification Of Goals:
Clarification is one of the crucial parts of the negotiation process as without it, misunderstandings and disagreements are likely to continue, which may result in problems and barriers to reaching a beneficial outcome.
- Negotiate Towards A Win-Win Outcome:
This stage focuses on what can be termed as a Win-Win outcome, wherein both parties may have the satisfaction that they have gained something positive through the process and both parties may feel that their point has been considered.
A proper agreement can be achieved only when both the parties understand each
other's point of view and interest are considered simultaneously.17
Implementation Of Course Of Action:
Once agreement is reached a proper course
of action has to be implemented so that the decision can be carried out.
Qualities And Strategies Of An Negotiator:
- A good negotiator must know his subject thoroughly. He should remain
faithful to the facts and collect data. He should attack the problem after
identifying the issues. Successful negotiator should never be intimidated.
He should be patient and should analyse every detail properly with great precaution. He
should also have planning skill. A sense of humour and a positive attitude are
necessary, as they make both the parties feel comfortable with each other. He
should always emphasize on balance and should not make concessions until the
- The entire success of the negotiation depends on the strategies the
negotiator uses. An effective communicator with skills of comprehending the
problem must be there. Suitable location has to be picked for negotiation. .
The best alternative to Negotiated settlement and the Worst alternative to
Negotiated Settlement are considerable points a negotiator must detect and
discuss at all stages.
"Skills and Values: Alternative Dispute Resolution: Negotiation, Mediation,
Collaborative Law, and Arbitration" - Arbitration Law review
Mediation can be defined as a voluntary process of dispute resolution where a
neutral third party (the mediator) with the use of effective and specialized
communication and negotiation techniques aids the parties in arriving at an
amicable settlement without recourse to the court of law. The mediator helps the
parties find common ground and assists with drafting a settlement agreement. He
interprets concerns, relay information between the parties, frame issues, and
define the problems. He helps the parties to explore their choices and
ultimately help control the outcome and results.
A mutual agreement taken via mediation is binding upon the parties.
In India, mediation is legitimised by Section 89 of the Civil Procedure Code,
1908 which states that the court can refer the parties to mediation or
arbitration if there is existence of elements in a settlement which should be
acceptable to the parties involved. Industrial Disputes Act, 1947 is the first
legislation which gives legal recognition to the mediation. Section 4 of this
Act speaks about "appointment of an independent and impartial mediator" for the
process of mediation.
Advantages Of Mediation:
Mediation is a cost-effective, confidential and swift way of resolving a
dispute. Mediations put dispute resolution into the hands of the disputing
parties. Parties have their voluntary participation in the mediation process.
The mediator has to act impartially and neutrally. The responsibility for
defining the problem, setting the agenda and agreeing the solution rests with
the people in the dispute. No court rules or legal precedents are involved in
mediation. The relationships between the parties are also preserved in this
Process Of Mediation
Reaching A Settlement
- Convening The Mediation Process
- Reference to the ADR by the court : The court is required to direct the
parties to opt for any of the five modes of alternative dispute resolution
and to refer the case.
- Initiation Of Mediation Process
The mediator gives an introduction among him and also requests the parties to
introduce themselves to gain rapport and trust.
- Opening Statements
The mediator's opening statement is intended to explain to the parties:
- The concepts, processes and stages of mediation,
- The role of the mediator, advocates and parties and
- The advantages and ground rules of mediation. The doubts regarding these
are also clarified.
- Setting The Agenda::
It involves setting down the order in which negotiation is to proceed and gives
the parties a standard using which they can individually evaluate the progress
of the negotiations.
- Facilitation Of Negotiation And Generation Of Options:
- Joint Session:
The purpose of the joint session is to gather information.
The mediator provides an opportunity for the parties to hear and understand
each other's perspectives, relationships and feelings.
At the completion of the joint session, the mediator may also suggest
meeting each party with their counsel separately.
- Separate Session:
The separate sessions are meant for the mediator to understand the dispute at
a deeper level.
It helps the mediator to understand the underlying interests of the parties,
identify areas of dispute, differential priorities and common interests, and to
shift the parties to a mood of finding mutually-acceptable solutions.
The mediator offers options which he feels bests satisfies the underlying
interests of the parties.
- By helping parties to understand the reality of their situation and give
up rigid positions, the mediator creates creative options for settlement.
- In case negotiations fail, the case is sent back to the referral court.
Landmark Judgement Related To Mediation
Salem Bar Association v. Union of India (2003) 1 SCC 49
- Once the terms of the settlement have been agreed to, the parties are
reassembled. The parties, with the mediator's aid, write down the terms of
the settlement and sign the agreement. The settlement has the binding nature
of a contract and is enforceable in a court of law. In case no settlement is
reached between the parties, the case is returned to the referral court.
- The proceedings of the mediation are kept confidential and cannot be
revealed even to the court. 22
A committee was formed to ensure that the 1999 and 2002 Amendments to the Civil
Procedure Code are effectively implemented and result in quicker dispense of
justice. II. The report was submitted in three parts, (a) Consideration of
various grievances (b) Draft Rules for ADR and mediation (c) Case management
conferences III Writ Petitions were filed challenging the Amendments made to the
Code of Civil Procedure by way of Amendment 46 of 1999 and Amendment 22 of 2002.
. The validity of this report and the amendments was challenged before the
Court, in the matter.
Whether the 1999 and 2002 Amendments to the Civil Procedure Code
were constitutionally valid?
The attention of the Hon'ble Supreme Court was drawn to Section 89 of
the Code of Civil Procedure.
The Hon'ble Supreme Court observed that the provision of Section 89 of the Code
of Civil Procedure has been inserted to ensure that all the cases which are
filed in the courts need not necessarily be decided by the courts. The Hon'ble
Supreme Court opined the need to promote Alternate Dispute Resolution. It
therefore, considered Section 89 to be a welcome step. It was therefore
suggested by the Hon'ble Supreme Court, that a Committee be constituted so as to
ensure that the amendments made to the Code of Civil Procedure become effective
and result in quicker dispensation of justice.
Article on "India: Mediation : Current Jurisprudence And The Path Ahead" By
Geetanjali sethi Case analysis in Bharati Law review 2016
The Lok Adalat is a significant mode of alternative dispute resolution
mechanism. It is an old form of adjudicating system prevailed in ancient India
which is still relevant even today. It is interesting to note that the Lok
Adalat system settles disputes by way of negotiation, persuasion, mediation and
conciliation with the actively involvement of the advocates, judges, eminent
social workers and concerned parties.
So, it is worthy to say that Lok Adalat
effectively works to implement the views of our nation's father Mahatma Gandhi
as he said, "I had learned the true practice of law. I had learnt to find out
the better side of human nature and to enter hearts, I realized that the true
function of the lawyer was to unite parties given as under. The lessen was so
indelibly burnt into me that the 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
As, it is a known fact that the Indian courts are over burdened with the
backlog of cases and the regular courts are to decide the cases involve a
lengthy, expensive and tedious procedure. In such situation, the emergence of Lok Adalat is a ray of hope for needy of justice. 25 The Lok Adalat system has
got its statutory recognition under the Legal Services Authorities Act, 1987
(for brevity 'the Act').
The preamble of the said Act emphasizes that the Lok
Adalat's should be constituted to provide economical and competent legal
services to the weaker sections of the society to perform Constitutional
obligation on behalf of the State.
The meaning of the term 'Lok Adalat' in literally is 'People's Court' because
the term comprises two words namely 'Lok' and 'Adalat', Lok stands for the
people and Adalat means the court. So, it is meant people's court.26
Article on "India: Mediation : Current Jurisprudence And The Path Ahead" By
Jurisdiction Of Lok Adalat:
Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of:
Organization Of Lok Adalat:
At The State Authority Level:
- Any case pending before any court.
- Any matter which is not brought before, any Court and still at a Pre-litigative stage.
- It can compromise and settle even criminal cases, which are compoundable
under the relevant laws. Lok Adalat's do not have the statutory power to
entertain any case or matter relating to an offence not compoundable by law.
The Member Secretary of the State Legal Services Authority organizing the Lok
Adalat would constitute benches of the Lok Adalat, each bench comprising of a
sitting or retired judge of the High Court or a sitting or retired judicial
officer and any one or both of- a member from the legal profession; a social
worker engaged in the upliftment of the weaker sections and interested in the
implementation of legal services schemes or programmes.
At High Court Level:
The Secretary of the High Court Legal Services Committee would constitute
benches of the Lok Adalat, each bench comprising of a sitting or retired judge
of the High Court and any one or both of- a member from the legal profession; a
social worker engaged in the upliftment of the weaker sections and interested in
the implementation of legal services schemes or programmes.
At District Level:
The Secretary of the District Legal Services Authority organizing the Lok Adalat
would constitute benches of the Lok Adalat, each bench comprising of a sitting
or retired judicial officer and any one or both of either a member from the
legal profession; and/or a social worker engaged in the upliftment of the weaker
sections and interested in the implementation of legal services schemes or
programmes or a person engaged in para-legal activities of the area, preferably
At Taluk Level:
The Secretary of the Taluk Legal Services Committee organizing the Lok Adalat
would constitute benches of the Lok Adalat, each bench comprising of a sitting
or retired judicial officer and any one or both of either a member from the
legal profession; and/or a social worker engaged in the upliftment of the weaker
sections and interested in the implementation of legal services schemes or
programmes or a person engaged in para-legal activities of the area, preferably
National Lok Adalat:
National Level Lok Adalats are held for at regular intervals where on a single
day Lok Adalats are held throughout the country, in all the courts right from
the Supreme Court till the Taluk Levels wherein cases are disposed of in huge
numbers. From February 2015, National Lok Adalats are being held on a specific
subject matter every month.
Permanent Lok Adalat:
The other type of Lok Adalat is the Permanent Lok Adalat, organized under
Section 22-B of The Legal Services Authorities Act, 1987. Permanent Lok Adalats
have been set up as permanent bodies with a chairman and two members for
providing compulsory pre-litigative mechanism for conciliation and settlement of
cases relating to Public Utility Services like transport, postal, telegraph etc.
Procedure At Lok Adalat:
- Here, the application can be filed by the both the parties to dispute or
they can verbally express their willingness to the court to refer the matter
- Any party can also file an application for referring the dispute to Lok Adalat
after the court hearing all the parties, if there are chances for settlement.
- Lok Adalat while deciding the matter under the Legal Services Authority Act,
1987 shall deal the matter with utmost care, expedition to arrive at a
compromise between the parties and shall be guided by the principles of natural
- When no compromise or settlement is accomplished, the matter shall be
referred back to the court. Then the case will proceed in the Court from the
stage immediately before the reference.
Further no Court Fee is required to be paid by the parties. The parties can be
represented by a legal counsel hired by them but in case, due to some reasons if
they cannot afford a legal counsel themselves then, a counsel can be provided by
the Legal Aid Committee.
Award Passed By Lok Adalat:
Every award of the Lok Adalat shall be deemed to be a Decree of a Civil Court
and shall be final and binding on all the parties to the dispute, and no appeal
shall lie to any court against the award.
An Overview Of The National Legal Services Authority Act, 1987:
The National Legal Services Authority (NALSA) has been constituted under the
Legal Services Authorities Act, 1987 to provide free Legal Services to the
weaker sections of the society. The Chief Justice of India is the
Patron-in-Chief and the Senior most Hon'ble Judge, Supreme Court Of India is the
Executive Chairman of the Authority.
Public awareness, equal opportunity and deliverable justice are the cornerstones
on which the NALSA is based. The principal objective of NALSA is to provide free
and competent legal services to the weaker sections of the society and to ensure
that opportunities for securing justice are not denied to any citizen by reason
of economic or other disabilities, and to organize Lok Adalats for amicable
settlement of disputes. Apart from the abovementioned, functions of NALSA
include spreading legal literacy and awareness, undertaking social justice
- Citation:AIR 2014 SC 1863
- Supreme Court Of India
- Judges: K S Radhakrishnan & A K Sikri
This case was filed by the National Legal Services Authority of India (NALSA) to
legally recognize persons who fall outside the male/female gender binary,
including persons who identify as "third gender".
Here, the court had to decide whether persons falling outside the male/female
gender can be legally recognized as "third gender".
The court referred to an "Expert Committee on Issues Relating to Transgender"
constituted under the Ministry of Social Justice and Empowerment to develop its
judgement. This was a landmark decision where the apex court had legally
recognized "third gender" for the first time and discussed the matter at length.
The court held that the persons belonging to "third gender" are equally entitled
to fundamental rights and citizenship under the constitution. Further, it
directed state governments to develop mechanisms to realise the rights of "third
With the advent of the alternate dispute resolution, there is new avenue for the
people to settle their disputes. The settlement of disputes in Lok Adalat
quickly has acquired good popularity among the public and this has really given
rise to a new force to ADR and this will no doubt reduce the pendency in law
Courts. There is an urgent need for justice dispensation through ADR mechanisms.
More people should settle their disputes through ADR mechanisms which in turn
will reduce burden on courts and ensure sound administration of justice.
The ADR movement needs to be carried forward with greater speed. This will
considerably reduce the load on the courts apart from providing instant justice
at the door-step, without substantial cost being involved. If they are
successfully given effect then it will really achieve the goal of rendering
social justice to the parties to the dispute.
- � The courts are authorized to give certain directives for the ADR adoption by the parties and for that purpose court has to play an important role by way of giving guidance.
- The institutional framework must be brought about at three stages, which are:
- � Awareness 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.
- � 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.
- � The inflow of cases cannot be stopped because the doors of justice cannot be closed. But there is an urgent need to increase the outflow either by strengthening the capacity of the existing system or by way of finding some alternative mechanism such as ADR.
- � 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.
Written By: Varenya Bhamidipati
- Supakar, Dr. Shraddhakara. (1986). Law of Procedure and Justice in Ancient India. New Delhi: Deep & Deep Publication.
- As per the economic times' report, there are 58.94 lakh cases pending in High Courts and more 4.10 crore cases pending in the district and subordinate courts across the country, as on 21st March, 2022. As per the website of
Supreme Court Of India there are 70,632 cases pending, as on 01st April 2022.
- Nripendra Nath Sircar, Law of Arbitration in British India (1942), p. 6 cited in 76'th Report of Law Commission of India, 1978, p. 6, para 1.14
- Alternate Dispute Resolution, in Rao, P.C. and Sheffield, William. (1997) Alternative Dispute Resolution: What it is and How it Works, New Delhi: Universal Law Publishing Co., p. 79.
- "Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough." - Abraham Lincoln 
- 'Adr A Garland Of Diverse Mechanisms'
- "I realized that the true fiction of a lawyer was to unite parties� A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul." � Mahatma Gandhi
- S K Chowdary & K H Saharay- Arbitration Law- Eastern Law House, 32nd Edition 199
- Ashwini K Bansal � Arbitration Procedure and Practise � Lexis Nexis, 1st Edition 2009
- The Arbitration and Conciliation Act, 1996, No. 26 Acts of Parliament, 1996 (India).
- See Bhatia International, 4 S.C.C. 105, at 32; see also The Arbitration and Conciliation Act, No.26 of 1996, (Aug. 16, 1996), available at http://keralamediation.gov.in/AC%20Act.pdf. (Part 1- Arbitration- Chapter 1: 2. Definitions. - (1) In this Part, unless the context otherwise requires, . . .f) "International commercial arbitration" means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is- (i)
An individual who is a national of, or habitually resident in, any country
other than India; or (ii) A body corporate which is in corporate in other
- Bhatia International v. Bulk Trading  4 SCC 105
[Supreme Court Of India]. 13 Art. 1 (2) UNCITRAL Model Law 1985. 14 9: "A
party may, before, or during arbitral proceedings or at any time after the
making of the arbitral award but before it is enforced... apply to a court
for an interim measure of protection
- Avtar Singh, Law of Arbitration and
Conciliation, (Lucknow: Eastern Book Company) 2007 Pg. 436
Negotiation-Mode Of Alternative Dispute Resolution (ADR)" Article by
Ranganath "Comparative analysis of ADR methods" by STA law firm
- If two
friends ask you to judge a dispute, don't accept, because you will lose one
friend; on the other hand, if two strangers come with the same request,
accept because you will gain one friend" - Saint Augustine
- Consilia omnia
verbis prius experiri, quam armis sapientem decet" which means that an
intelligent man would prefer negotiation before using arms
- The convening of the mediation is often the most difficult and
challenging part of the mediation process.
- www.adrservices.com www.lawshelf.com
- An introduction to Alternative Dispute Resolution- Anupam Kurlwal
- 2019 Scc Online Sc 315 (2010)8scc24 (2003)1scc49
- LOK ADALAT
- Anurag K. Agarwal, "Strengthening Lok Adalat Movement in India," AIR
2006 Jour 33. 44. Abraham Lincoln � "Discourage litigation persuade your
neighbours to compromise whenever you can. Point out to them the nominal
winner is often a real loser; in fees, expenses and waste of time. As a
pacemaker, the lawyer has a superior opportunity of being a good person",
See Supra note 9,
- N.C. Jain, "Legal Aid, Its Scope and Effectiveness of the Legal Aid
Rules in This Regard," AIR 1996 Jour 185.
- To the poor the courts are a maze, if he pleads there all his life, Law
is so lordly, And loath to end his case, Without money paid in the presents,
Law listeneth to few." Pier's Plowman
- K. Gupteshwar, "The Statutory Lok Adalat: Its Structure and Role," 30
JILI, 174 at 177-178 (1988). 48. Shiraj Sidhva, "Quick, Informal, Nyaya,"
Lexet Juris, 39 (1988)
- BA.LLB (Hons.) ICFAI Law school,
Email: [email protected]
, Ph no: 6300508552
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