Since time immemorial, humans have had disputes and fights. The only difference
is earlier wars were fought to establish who is right or wrong or people had to
go to the king's darbaar to get it solved. With time, jurisprudence and judicial
system evolved and then came litigation. In this method, parties resolve
conflicts by contending on the basis of their rights, there is an impartial and
impartisan judge who would hear those contentions from both the sides and then
deliver a reasoned decision. With time, people realized that not every dispute
has to go to the traditional courts and that's when ADR (Alternative Dispute
Resolution) came into the picture.
Meaning of Alternative Dispute Resolution & Key differences in Mediation,
Arbitration and Conciliation
ADR or Alternative Dispute Resolution includes the methods of mediation,
conciliation, arbitration, settlement by judiciary and any other process of
resolving disputes. It does not involve courts; and is governed by certain
rules. With the advent of technology and passing of time, ADR has become a
viable career option for many judicial practitioners and law students.
an involvement of a third party which helps in solving the disputes amicably.
The judgement or the decision delivered is enforceable by law. The third party
involved is called mediator or arbitrator. The third party is called a Mediator
in case of mediation and Arbitrator in case of arbitration. In mediation, the
award is not binding whereas in arbitration the award is binding on the parties.
Moreover, in arbitration there can be more than one arbitrators whereas in
mediation there can be only a single mediator. Arbitration is somewhat similar
to a court procedure whereas mediation has a more informal procedure and the
central focus is on resolving the dispute between parties amicably. Conciliation
is also a completely different process wherein there is an expert that is
appointed and that expert is shouldered with the responsibility of maintaining
the confidentiality of both the parties.
It is regulated by Civil Procedure
Code, 1908. The expert is known as the conciliator and he has an active role to
play in the process. This article will delve into the intricacies of ADR and its
evolution in today's corporate world where corporate firms are in fashion.
Recently, the Mediation Bill, 2023 was also passed by the Lok Sabha which seeks
to modernize the process of mediation in India.
Evolution of ADR methods: Ancient Times
Alternative dispute resolution has been present in the judicial fabric of India
since ancient times. Its earliest mentions can be found in the Bhradarnyaka
Upanishad which mentions Puga, Shreni, and Kula. Earlier also, many disputes in
the villages, municipalities were solved by the method of panchayats. This was
and still is a form of ADR. They used to deal with a myriad of disputes,
commercial, matrimonial, contractual, civil, and criminal and everything else
you can think of.
In Muslim law, similar provisions find a mention in the Hedayas which are one of the principal sources of their laws. Fast forwarding
the timeline, then came the British Rule in India which brought with itself
specific laws and provisions dedicated to ADR mechanisms. Such mechanisms were
brought into effect in Calcutta, Bombay and Madras. Let's understand these
provisions with the help of pointers.
Timeline of evolution of Provisions for ADR in India
As discussed above, ADR has developed hugely before and after independence of
India from the British Rule. Let us understand such evolution with the help of
The first such legislation which opened the doors for ADR in India was the
Bengal Regulation Act 1781 and Bengal Resolution Act 1771. These acts contained
specific and \
However, even though both of these acts remained in force and then came
the Civil Procedure Code, 1908 which is still in force. No article on ADR is
complete without the mention of Section 89 (1) which shouldered the courts to
enact specific provisions for ADR mechanisms. The constitutionality of Section
89 was challenged in the case of Salem Advocate Bar Assn. v. Union of India. The
honorable Supreme Court however upheld the constitutionality of Section 89. The
court also observed that the provisions relating to Alternative Dispute
Resolution were very successful in foreign countries and henceforth India should
also keep such provisions in the judicial books of the country so as to prosper
in the judicial world. The court said that such purpose can only be met by
keeping the Section 89 intact. The court also ordered to constitute a committee
to review the difficulties and hurdles that were there in amendment and
enforceability of such provisions. The committee subsequently submitted its
report and the court ordered all the High courts to enact special provisions
dedicated to ADR methods.
After this, the Indian Arbitration Act 1899 came which was inspired and derived
from its British Counterparts. This act gave a beautiful explanation of
'submission' which basically meant a written agreement that you will refer the
matter of disputes of past and future to a third person called arbitrator even
if it is not specified who will be the arbitrator.
Subsequently, the Arbitration Act of 1937 which basically helped in implementing
the Geneva Protocol on Arbitration Clauses 1923.
Cutting to the present, the act that governs the ADR mechanisms in present and
times is Arbitration and Conciliation Act, 1996 which is the modern legislation
related to ADR in India.
This act of 1996 was also amended in 2015 to streamline the methods of
arbitration, mediation and conciliation. This amendment enhanced the
enforceability of arbitral awards and also dealt with the problem of burgeoning
burden on Indian Courts to deal with tons of cases. It also sought to enhance
the time taken to resolve the disputes taken to arbitration.
It is also important to mention the UNCITRAL (the United Nations Commission on
International Trade Law) Model which is followed in today's times. It is the
Meta model that governs the international standards that have to be followed by
the countries of the world when framing laws and guidelines relating to
alternative dispute resolution. In 1996, India embraced the UNCITRAL Model Law
on International Commercial Arbitration, aligning its arbitration laws with
international standards and promoting arbitration as a preferred method of
dispute resolution for international business transactions.
Emerging Trends of ADR in India
After the Covid-19 pandemic struck the whole world with its proliferation in
every nook and corner of countries, the Indian Judicial System recognized the
importance and boons that ADR mechanisms brought with it. Due to shut down of
in-person court proceedings, there was a huge backlog of cases.
The courts in order to deal with this vice brought many developments in ADR
mechanisms in India. The courts have also observed that ADR methods are
efficacious and money � saving since the proceedings are not as long as
traditional dispute resolution systems (litigation).
Let us understand some recent developments
- Virtual Alternative Dispute Resolution:
Virtual ADR is an interesting method. This method is hassle-free and very
efficacious. The reason being it doesn't require any party or attorney to
travel from one place to another due to jurisdictions. Both parties are free
to communicate with each other through video conferencing, which allows them
both to hear and see each other.
However it is important to note that the development of Virtual ADR is still
at the bottom of the barrel since there are problems such as
troubleshooting. These hurdles must be addressed urgently in order to
develop such methods to new heights.
It is also important to note that there are still some lawyers in India who
are practicing for 20-30 years and it might be a little difficult for them
to adapt to the changes that technology has brought home with it. Online
Virtual ADR might still be a far-fetched dream in India.
- The 2021 Amendment to the Arbitration and Conciliation Act, 1996:
The act was amended in 2021 for the third time in 6 years owing to the
recent developments that the pandemic brought with itself. The act was
omitted by way of this amendment from the 8th Schedule. Another interesting
amendment is that the courts have now been empowered to stay an arbitral
award if the court has a prima facie evidence that the contract on which the
award was based is tainted and tarnished by 'fraud' or 'corruption'.
- Emergency Arbitration:
As we know lakhs of people in India were struck with the malaise of Covid
-19 Pandemic due to which there was a pressing need for urgent disposal of
cases of ADR. Henceforth, a new concept called emergency arbitration emerged
which meant basically utilizing arbitrators to deal with cases which called
for an urgent resolution. The Court in Future Retails V Amazon held that
emergency arbitration is a legitimate method and recognized emergency
arbitrators as legitimate arbitrators under Indian law.
Recently, honorable Chief Justice of India, Justice Chandrachud also observed
that ADR methods are hassle-free and the Indian judiciary must become malleable
enough to adapt with the changes that the onset of technology has brought in the
country. The courts have again and again observed that Indian judicial system
must become paper-less in order to prevent wastage of papers and make the
disposal of cases easier. This end can be met by the means of Alternative
The evolution of ADR in India reflects a dynamic shift in the approach to
dispute resolution, embracing alternative dispute resolution methods that are
efficient, flexible, and in tune with the needs of a rapidly changing society.
From ancient panchayats to the modern arbitration and mediation mechanisms,
India's ADR journey exemplifies a rich blend of tradition and progress.
This article showed how the trajectory of ADR mechanisms in India has taken a
shift and revolutionized the way cases are dealt. It is a very efficacious
method and Indian judicial system can benefit a lot with the overall development
of such methods and mechanisms. However there are certain gaps and hurdles that
need to be addressed.
Award Winning Article Is Written By: Ms.Diya Saraswat, 2nd Year BA-LLB student at VIPS, Pitampura
Authentication No: AG360415806999-26-0823