Professional Documents
Culture Documents
SUBMITTED TO:
MR.VIJYANT SINHA
SUBMITTED BY:
ANUPAMA
SOUMYA
FIRST
SEMESTER(2016-2021)
1
ALTERNATIVE DISPUTE RESOLUTION
ROLL NUMBER-
1613
2
ALTERNATIVE DISPUTE RESOLUTION
ACKNOWLEDGEMENT
I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.
3
ALTERNATIVE DISPUTE RESOLUTION
RESEARCH METHODOLOGY
This project is based upon doctrinal method of research. This project has been done after
a thorough research based upon intrinsic and extrinsic aspects of the project.
Sources of Data:
The following secondary sources of data have been used in the project-
1. Articles.
2. Books
3. Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily
analytical.
Mode of Citation:
The researchers have followed a uniform mode of citation throughout the course of this
project.
4
ALTERNATIVE DISPUTE RESOLUTION
TABLE OF CONTENT
Acknowledgement
Research methodology
Introduction .................................................................................
...................05
Brief history of
ADR ....................................................................................... 06
Overview of
ADR .............................................................................................
07
Implementation of ADR in
India...................................................................... 19
Suggestions...................................................................................
.....................24
5
ALTERNATIVE DISPUTE RESOLUTION
Conclusion.....................................................................................
.................... 26
Bibliography..................................................................................
.................... 27
INTRODUCTION
Gandhiji said: "I had learnt the true practice of law. I had learnt to find out the better side
of human nature, and to enter men's hearts. I realized that the true function of a lawyer
was to unite parties given as under. The lesson was so indelibly burnt unto 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."1
Conflict is a fact of life. It is not good or bad. However, what is important is how we
manage or handle it. Negotiation techniques are often central to resolving conflict and as
a basic technique these have been around for many thousands of years. Alternative
Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques
designed to resolve issues in controversy more efficiently when the normal negotiation
process fails. Alternative Dispute Resolution(ADR) is an alternative to the Formal Legal
System. It is an alternative to litigation. It was being thought of in view of the fact that
the Courts are over burdened with cases. The said system emanates from dissatisfaction
of many people with the way in which disputes are traditionally resolved resulting in
criticism of the Courts, the legal profession and sometimes lead to a sense
of alienation from the whole legal system- thus, the need for Alternative Dispute
Resolution.
1 http://www.ebc-india.com/lawyer/articles/2002v1a3
6
ALTERNATIVE DISPUTE RESOLUTION
With the spread of ADR programs in the developed and developing world, creative uses
for and designs for ADR systems are proliferating. Successful programs are improving
the lives of individuals and meeting broad societal goals. There is a critical mass of ADR
experience, revealing important lessons as to whether, when and how to implement ADR
projects.
It is against this backdrop, that this research paper intends to discuss the various
ADRmechanisms, the provisions present in India and the World over, and its peculiarity,
implementation and problems in the Indian context. The various remedies to the situation
have also been discussed.
7
ALTERNATIVE DISPUTE RESOLUTION
ADR originated in the USA in a drive to find alternatives to the traditional legal system,
felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to
relationships, and limited to narrow rights-based remedies as opposed to creative
problem solving. The American origins of the concept are not surprising, given certain
features of litigation in that system, suchas: trials of civil actions by a jury, lawyers'
contingency fees, lack of application in full of therule "the loser pays the costs".
Beginning in the late nineteenth century, creative efforts to develop the use of arbitration
andmediation emerged in response to the disruptive conflicts between labor and
management. In1898, Congress followed initiatives that began a few years earlier in
Massachusetts and NewYork and authorized mediation for collective bargaining disputes.
In the ensuing years, special mediation agencies, such as the Board of Mediation and
Conciliation for railway labor, (1913) (renamed the National Mediation Board in 1943),
and the Federal Mediation and Conciliation Service (1947) were formed and funded to
carry out the mediation of collective bargaining disputes. Additional state labor
mediation services followed. The 1913 New lands Act and later legislation reflected the
belief that stable industrial peace could be achieved through the settlement of collective
bargaining disputes; settlement in turn could be advanced through conciliation,
mediation, and voluntary arbitration.2
In developing countries where most people opt for litigation to resolve disputes, there is
excessive over-burdening of courts and a large number of pending cases, which has
ultimately lead to dissatisfaction among people regarding the judicial system and its
ability to dispense justice. This opinion is generated largely on the basis of the popular
belief, Justice delayed is justice denied.Many countries such as India, Bangladesh and
Sri Lanka have adopted the Alternative Dispute Resolution Mechanism. However, it is
for time to see how effective the implementation of these mechanisms would be in these
countries.3
2 http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/adr_history
3 http://www.adrgroup.co.uk
8
ALTERNATIVE DISPUTE RESOLUTION
9
ALTERNATIVE DISPUTE RESOLUTION
OVERVIEW OF ADR:
4 http://www1.worldbank.org/publicsector/legal/ADR
10
ALTERNATIVE DISPUTE RESOLUTION
a) Arbitration:
Arbitration, in the law, is a form of alternative dispute resolution
specifically, a legal alternative to litigation whereby the parties to a dispute agree to
submit their respective positions (through agreement or hearing) to a neutral third party
(the arbitrator(s) or
arbiter(s)) for resolution.
Species of arbitration:
i) Commercial arbitration:
Arbitration can be carried out between private individuals, between states, or between
states and private individuals. In the case of arbitration between states, or between states
and individuals, the Permanent Court of Arbitration and the International Center for the
Settlement of Investment Disputes (ICSID) are the predominant organizations.
5 Ibid
11
ALTERNATIVE DISPUTE RESOLUTION
Arbitration is also used as part of the dispute settlement process under the WTO Dispute
Settlement Understanding.
A growing trend among employers whose employees are not represented by a labor
union is to establish an organizational problem-solving process, the final step of which
consists of arbitration of the issue at point by an independent arbitrator, to resolve
employee complaints concerning application of employer policies or claims of employee
misconduct. Employers in the United States have also embraced arbitration as an
alternative to litigation of employees' statutory claims, e.g., claims of discrimination, and
common law claims,claims of defamation6.
Some state court systems have promulged court-ordered arbitration; family law
(particularly child custody) is the most prominent example.
Judicial arbitration is often merely advisory, serving as the first step toward
resolution, but not binding either side and allowing for trial de novo. Arbitration is a
growing field with a lot of potential insolving disputes in a speedy manner.
b) Mediation:
Mediation is a process of alternative dispute resolution in which a neutral third
party, the mediator, assists two or more parties in order to help them negotiate an
agreement, with concrete effects, on a matter of common interest.
Disputes resolved by mediation7:
Aviation ,Banking and finance,Boundary Disputes,Broker liability ,Business
Disputes ,Charities,Clinical & Medical Negligence ,Competition,Commercial
contracts,Insolvency and Bankruptcy,Insurance & Reinsurance Intellectual Property,
Trade Mark and Copyright, Libel & Defamation etc.
The eldest branch of mediation applies to business and commerce, and still this one is the
widest field of application, with reference to the number of mediators in these activities
and to the economical range of total exchanged values.
c) Conciliation:
6 http://www1.worldbank.org/publicsector/legal/ADR
7 http://www.adrgroup.co.uk/types
12
ALTERNATIVE DISPUTE RESOLUTION
A conciliator assists each of the parties to independently develop a list of all of their
objectives (the outcomes which they desire to obtain from the conciliation). The
conciliator then has each of the parties separately prioritize their own list from most to
least important.
d)Expert Determination:
e) Negotiation:
Negotiation is the process whereby interested parties resolve disputes, agree upon
courses of action, bargain for individual or collective advantage, and/or attempt to craft
outcomes which serve their mutual interests. Given this definition, one can see
negotiation occurring in almost all walks of life, from parenting to the courtroom.10
8 http://en.wikipedia.org/wiki/Conciliation
9 http://en.wikipedia.org/wiki/Expert_determination
13
ALTERNATIVE DISPUTE RESOLUTION
In the advocacy approach, a skilled negotiator usually attempts to obtain the most
favorable outcomes possible for that party.
Traditional negotiating is sometimes called win-lose because of the hard-ball style of the
negotiators whose motive is to get as much as they can for their side. In the Seventies,
practitioners and researchers began to develop win-win approaches to negotiation. This
approach, referred to as Principled Negotiation, is also sometimes called mutual gains
bargaining.
The mutual gains approach has been effectively applied in environmental situations as
well as labor relations where the parties (e.g. management and a labor union) frame the
negotiation as problem solving.
f) Early Neutral Evaluation (ENE):
g) Fact-finding:
11 http://www.spea.indiana.edu/icri/terms.htm#ENE
12 http://www.spea.indiana.edu/icri/terms
14
ALTERNATIVE DISPUTE RESOLUTION
j)Mini-trial:
k) Ombudsperson:
14 http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/05
15
ALTERNATIVE DISPUTE RESOLUTION
Enumerated above are most of the ADR mechanisms that are practised
in countries all over the world against the backdrop of their different
socio-economic-politico-cultural scenarios.
16
ALTERNATIVE DISPUTE RESOLUTION
INTERNATIONAL ORGANISATIONS:15
17
ALTERNATIVE DISPUTE RESOLUTION
The other treaties governing ADR in various states would include the
United States Code Title 9, The Agreement relating to the Applicationof
the European
Convention on International Arbitration (Paris, 1962), The European
Convention
18
ALTERNATIVE DISPUTE RESOLUTION
ADR uses the principles of natural justice in consonance with the Rule
of Law, in order to create a favourable atmosphere of a win-win
situation. This is much needed in countries like India where litigation
causes a great deal of animosity between the parties due to the agony
caused by the long-standing litigation. ADR, thus, gains its momentum
in India today.16
19
ALTERNATIVE DISPUTE RESOLUTION
before Law and Right to life and personal liberty respectively. These
Articles are enshrined under Part III of the Constitution of India which
lists the Fundamental Rights of the citizens of India. ADR also tries to
achieve the Directive Principle of State Policy relating to Equal justice
and Free Legal Aid as laid down under Article 39-A of the Constitution.
The Acts which deal with Alternative Dispute Resolution are Arbitration
and Conciliation Act, 1996 (discussed in detail later) and the Legal
Services Authorities Act, 1987. Section 89 of the Civil Procedure Code,
1908 makes it possible for Arbitration proceedings to take place in
accordance with the Acts stated above.
20
ALTERNATIVE DISPUTE RESOLUTION
Arbitration, 1985 and UNCITRAL Conciliation Rules, 1980. Its had been
recommended by General Assembly of the United Nations that all
countries should give due consideration to the said Model Law in view
of the desirability of uniformity of the law of arbitral procedures and
the specific needs of the international commercial arbitration
practices.
It has also recommended the use of the said Rules in cases where a
dispute arises in the context of international commercial relations and
the parties seek on amicable settlement of that dispute by recourse to
conciliation. These rules are believed to make a significant contribution
to the establishment of a unified legal framework for the fair and
efficient settlement of disputes arising in international commercial
relations. These objectives have been laid down in the Preamble to the
Arbitration and Conciliation Act, 1996.
21
ALTERNATIVE DISPUTE RESOLUTION
18 http://www.dca.nic.in/cir/anr2gc1099.html
19
http://www.ce9.uscourts.gov/Web/OCELibra.nsf/0/9ce38a05659d753988256949006625a5
22
ALTERNATIVE DISPUTE RESOLUTION
1. Central, State, District and Taluk Legal Services Authority has been
created
who are responsible for organizing Lok Adalats at such intervals and
place.
2. Conciliators for Lok Adalat comprise the following: -
A. A sitting or retired judicial officer.
B. other persons of repute as may be prescribed by the State
Government in consultation with the Chief Justice of High Court.
23
ALTERNATIVE DISPUTE RESOLUTION
2. Discovery of documents.
3. Reception of evidences.
4. Requisitioning of Public record.
24
ALTERNATIVE DISPUTE RESOLUTION
Problems in implemenation :
Any implementation is usually confronted with problems. ADR is no
excaption to this rule. Some of the problems faced during
implementation are enumerated as under:
20 http://www.dca.nic.in/cir/anr2gc1099
25
ALTERNATIVE DISPUTE RESOLUTION
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 clients interest. Still, a satisfactory
settlement typically is in the clients 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 over come 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 sums of money is
usually regarded as the ultimate "win" for plaintiffs incommercial
cases. Yet, Wall Street values longterm 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
26
ALTERNATIVE DISPUTE RESOLUTION
22
http://www.ce9.uscourts.gov/Web/OCELibra.nsf/0/9ce38a05659d753988256949006625a
23 http://www.findarticles.com/p/articles/mi_qa3923/is_200102/ai_n8950563/pg_2
27
ALTERNATIVE DISPUTE RESOLUTION
24 Frank E.A. Sander &Stephen B. Goldberg, Fitting the forum to the fuss, 1 st ed. 1997,
p.338
28
ALTERNATIVE DISPUTE RESOLUTION
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
majoe problem.
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?
29
ALTERNATIVE DISPUTE RESOLUTION
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. Thiscreates a delay and slows
the process of dispute resolution.
30
ALTERNATIVE DISPUTE RESOLUTION
SUGGESTIONS:
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, 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 bespelling the strengths of the system.
An insight into the advantages of conciliation andnegotiation would bring in the desired
change change of attitude. To keep active here is awareness, by interactive
communication. A dedicated helpline would exhilerate the process of attitudinal change
by giving clarity to communication.
People are generally ignorant about legal terminology and the opportunities available in
dispute resoolution. 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 fradulently or if it against public policy.
31
ALTERNATIVE DISPUTE RESOLUTION
Legal education and law schools shoul 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.
32
ALTERNATIVE DISPUTE RESOLUTION
CONCLUSION:
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
33
ALTERNATIVE DISPUTE RESOLUTION
Bibliography:
Internet sites:
http://www.icadr.org/news-speechcjhc.html
http://pib.nic.in/feature/feyr2002/fjan2002/f140120021.html
http://www1.worldbank.org/publicsector/legal/adr.htm
http://www1.worldbank.org/publicsector/legal/ADR%20Workshop.pdf
http://lawcommissionofindia.nic.in/alt_dis.pdf
http://www.hindu.com/thehindu/mp/2003/01/08/stories/200301080022
0400.htm
http://www.ielrc.org/content/n0401.htm
http://kelsa.nic.in/lokadalat.htm
http://www.britishcouncil.org/adr.doc
http://www.adrgroup.co.uk/history.html
http://www.adrgroup.co.uk/types.html
http://courts.state.de.us/Courts/Superior
%20Court/ADR/ADR/adr_history.htm
http://en.wikipedia.org/wiki/Arbitration
http://www.spea.indiana.edu/icri/terms.htm#ENE
http://ridgewood.ca/blog/2005/01/community-based-conflict-
resolution.htm
http://dateyvs.com/gener01.htm
http://www.laws4india.com/acts/arbitrationact/arbc2.pdf
http://www.isdls.org/projects_india.html
http://www.isdls.org/conferences_india2003.html
http://www.asci.org.in/WSGov/GOV_pubs_7.html
http://www.dca.nic.in/cir/anr2gc1099.html
http://www.ebc-india.com/lawyer/articles/2002v1a3.
34
ALTERNATIVE DISPUTE RESOLUTION
http://www.findarticles.com/p/articles/mi_qa3923/is_200102/ai_n89505
63/pg_2
http://www.ficci.com/icanet/judgement.htm
http://www.worldlii.org/catalog/50140.html
http://www.adrgroup.co.uk
http://www.spea.indiana.edu/icri/terms
Books:
Alternative dispute resolution, Ed. P.C. Rao and William Sheffield, 1st
ed. 1997, Universal
Law Publishing Co. Pvt. Ltd., Delhi
S.R. Myneni, Arbitration, Conciliation and Alternative Dispute
Resolution Systems, 1st ed.
2004, Asia Law House, Hyderabad
35