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Chapter:-I

INTRODUCTION
Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the
courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation,
and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue
to plague litigants, more states have begun experimenting with ADR programs. Some of these
programs are voluntary; others are mandatory.

ADR is a term used to describe several different methods of resolving legal disputes without
going to court. The rising cost of litigation is making traditional lawsuits impractical for many
individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in
delays of a year or more for private parties to have their cases heard by a jury.

The ADR movement in the United States was launched in the 1970s, beginning as a social
movement to resolve community-wide civil rights disputes through mediation, and as a legal
movement to address increased delay and expense in litigation arising from an overcrowded
court system

Arbitration is a process of judging and settling of disputes by a person not acting as a an judge
appointed by law, but by a person or a group of person jointly accepted by the parties in disputes
as having the authority to examine the dispute and give judgment. The arbitrator appointed may
have a legal background, but this is not an essential requirement for acting as an arbitrator. Such
arbitration judgment, generally called awards, are limited to decision involving monetary matters
and meeting of contractual, commercial and social obligations.

The concept of Lok Adalat is an innovative Indian contribution to the world jurisprudence. Lok
Adalat means peoples’ court. India as a long tradition and history of such methods practiced in
the society at grass root level. These are called Panchayat and legally it’s called arbitration. In
Lok Adalat justice is dispensed.

Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.3
of the European Convention on Human Rights regarding criminal law cases. Especially for
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citizens who do not have sufficient financial means, the provision of legal aid to clients by
governments will increase the likelihood, within court proceedings, of being assisted by legal
professionals for free (or at a lower cost) or of receiving financial aid.1

Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving
disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in
population, the vast changes brought about by scientific, technological and other developments,
and the all round enlarged field of human activity reflected in modern society, and the
consequent increase in litigation in Courts and other forums demand that the service of
competent persons with expertise in law is required in many stages and at different forums or
levels and should be made available.

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Chapter: II

ALTERNATIVE DISPUTE RESOLUTION

INTRODUCTION

Alternative dispute resolution (ADR) (also known as external dispute resolution in some
countries, such as Australia includes dispute resolution processes and techniques that act as a
means for disagreeing parties to come to an agreement short of litigation. It is a collective term
for the ways that parties can settle disputes, with (or without) the help of a third party. Despite
historic resistance to ADR by many popular parties and their advocates, ADR has gained
widespread acceptance among both the general public and the legal profession in recent years. In
fact, some courts now require some parties to resort to ADR of some type, usually mediation,
before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008)
expressly contemplates so-called "compulsory" mediation; this means that attendance is
compulsory, not that settlement must be reached through mediation). The rising popularity of
ADR can be explained by the increasing caseload of traditional courts, the perception that ADR
imposes fewer costs than litigation, a preference for confidentiality, and the desire of some
parties to have greater control over the selection of the individual or individuals who will decide
their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales
is one) are strongly in favour of this (ADR) use of mediation to settle disputes. 2Alternative
Dispute Resolutions ("ADR") are alternative methods that; an independent, objective and
impartial third party provides the parties of the legal dispute to reach an agreement about the
dispute by bringing them together and communicating with each other.

Dispute resolution in Turkey is a fundamental duty of State. For any dispute arising from a legal
relationship between the concerned parties, application to the state courts is the initial and
essential judicial remedy.

Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the
courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation,

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and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue
to plague litigants, more states have begun experimenting with ADR programs. Some of these
programs are voluntary; others are mandatory.3

WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)?

ADR is a term used to describe several different methods of resolving legal disputes without
going to court. The rising cost of litigation is making traditional lawsuits impractical for many
individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in
delays of a year or more for private parties to have their cases heard by a jury. New types of
proceedings have been developed in response, and they are proving beneficial, saving time and
money for everyone involved. These include arbitration, mediation, and additional kinds of ADR
designed for specific cases and subject matters.

The basic goals of ADR include:

1. To create a speedier and more efficient forum in which to resolve civil disputes;
2. To lower the costs of the arbitration process, which continue to rise under the
present system;
3. To reduce overcrowding in the public courts;
4. To allow the parties involved in the dispute greater control over the resolution
process;
5. To provide a more confidential forum of debate;
6. And, to allow the mediator and the parties involved to work more closely
together toward a satisfactory resolution.
Obviously, this list is not all–inclusive, but it provides a basic framework of what
exactly alternative dispute resolution seeks to accomplish.4

The term can refer to everything from facilitated settlement negotiations in which disputants are
encouraged to negotiate directly with each other prior to some other legal process, to arbitration
systems or minitrials that look and feel very much like a courtroom process. Processes designed

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to manage community tension or facilitate community development issues can also be included
within the rubric of ADR. ADR systems may be generally categorized as negotiation,
conciliation/mediation, or arbitration systems. Negotiation systems create a structure to
encourage and facilitate direct negotiation between parties to a dispute, without the intervention
of a third party. Mediation and conciliation systems are very similar in that they interject a third
party between the disputants, either to mediate a specific dispute or to reconcile their
relationship. Mediators and conciliators may simply facilitate communication, or may help direct
and structure a settlement, but they do not have the authority to decide or rule on a settlement.
Arbitration programs may be either binding or non-binding. Binding arbitration produces a third
party decision that the disputants must follow even if they disagree with the result, much like a
judicial decision. Non-binding arbitration produces a third party decision that the parties may
reject.5

KEY FEATURE OF ALTERNATIVE DISPUTE RESOLUTION

APPROCHES

Alternative Dispute Resolution comprises various approaches for resolving disputes in a non-
confrontational way, ranging from negotiation between the two parties, a multiparty negotiation,
through mediation, consensus building, to arbitration and adjudication The report introduces the
key skills required, with particular attention to their important role in the process of negotiation
and mediation, with examples of their application in national and international water conflicts.
Conflict is endemic to human society, among individuals and groups, and it is important to
manage it. We find stories in the Bible, in the Islamic culture, among Native Americans, First
Nations in Canada, and many other traditions that describe processes that have been used from
the earliest times to find peaceful solutions to various disputes, and much can be learned from
the past. In recent decades, the various conflict resolution approaches have become a widely
accepted field both of academic study and of practice, with official and/or legislative functions in
many countries. In international relations, they plays an increasing role in containing, managing
and resolving potential sources of conflict. The report reviews its complex development. While

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conflict can be dangerous, it also carries the possibility of producing creative cooperation in a
win–win solution. The key to this is for participants to engage as joint problem solvers, seeking
to resolve the dispute, and to try and “enlarge the pie” rather than acting as adversaries
andaggravating the situation. Alternative Dispute Resolution is of two historic types. First,
methods for resolving disputes outside of the official judicial mechanisms. Second, informal
methods attached to or pendant to official judicial mechanisms. There are in addition free-
standing and or independent methods, such as mediation programs and ombudsman offices
within organizations. The methods are similar, whether or not they are pendant, and generally
use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.

For example, freeform negotiation is merely the use of the tools without any process. Negotiation
within a labor arbitration setting is the use of the tools within a highly formalized and controlled
setting.6

A mediator can play a valuable role in this process, facilitate a negotiation process which has
come to a dead end, helping the parties concerned to focus on their essential interests rather than
defend (or attack) fixed positions. The principles and procedures of consensus building are dealt
with in some detail. The report outlines the principles of negotiation, based on interests and
needs of the parties, the use of proper communication, and maintenance of a working
relationship as an essential component for reaching a durable agreement. It lists and considers
the essential skills needed by negotiators and mediators, and points the different cultural
expectations (national, regional, religious, or professional) and the psychological aspects that
affect perceptions and communications. It outlines a range of strategies for and approaches to
mediation, and the ethical problems that may arise. ADR traditions vary somewhat by country
and culture. There are significant common elements which justify a main topic, and each country
or region's difference should be delegated to sub-pages.

HISTORICAL BACKGROUND
Dispute resolution outside of courts is not new; societies world-over have long used non-judicial,
indigenous methods to resolve conflicts. What is new is the extensive promotion and

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proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR
as a tool to realize goals broader than the settlement of specific disputes. The ADR movement in
the United States was launched in the 1970s, beginning as a social movement to resolve
community-wide civil rights disputes through mediation, and as a legal movement to address
increased delay and expense in litigation arising from an overcrowded court system. Ever since,
the legal ADR movement in the United States has grown rapidly, and has evolved from
experimentation to institutionalization with the support of the American Bar Association,
academics, courts, the U.S. Congress and state governments. For example, in response to the
1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to
reduce cost and delay in civil litigation, most district courts have authorized or established some
form of ADR. Innovations in ADR models, expansion of government-mandated, court-based
ADR in state and federal systems, and increased interest in ADR by disputants has made the
United States the richest source of experience in court connected ADR. While the court-
connected ADR movement flourished in the U.S. legal community, other ADR advocates saw
the use of ADR methods outside the court system as a means to generate solutions to complex
problems that would better meet the needs of disputants and their communities, reduce reliance
on the legal system, strengthen local civic institutions, preserve disputants' relationships, and
teach alternatives to violence or litigation for dispute settlement. In 1976, the San Francisco
Community Boards program was established to further such goals. This experiment has spawned
a variety of community-based ADR projects, such as school based peer mediation programs and
neighborhood justice centers. In the 1980s, demand for ADR in the commercial sector began to
grow as part of an effort to find more efficient and effective alternatives to litigation. Since this
time, the use of private arbitration, mediation and other forms of ADR in the business setting has
risen dramatically, accompanied by an explosion in the number of private firms offering ADR
Services. The move from experimentation to institutionalization in the ADR field has also
affected U.S. administrative rule-making and federal litigation practice. Laws now in place
authorize and encourage agencies to use negotiation and other forms of ADR in rulemaking,
public consultation, and administrative dispute resolution. Internationally, the ADR movement
has also taken off in both developed and developing countries. ADR models may be straight-
forward imports of processes found in the United States or hybrid experiments mixing ADR
models with elements of traditional dispute resolution. ADR processes are being implemented to
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meet a wide range of social, legal, commercial, and political goals. In the developing world, a
number of countries are engaging in the ADR experiment, including Argentina, Bangladesh,
Bolivia, Colombia, Ecuador, the Philippines, South Africa, Sri Lanka, Ukraine, and Uruguay. 7

TYPES OF ALTERNATIVE DISPUTE RESOLUTION

The main types of ADR that deal with consumer disputes are conciliation, arbitration or
mediation and are usually provided by trade associations. If you wish to use one of these
schemes, you should ask the suppliers whether they are members of a trade association and, if so,
contact the trade association to find out whether it has a conciliation and/or arbitration service.
Some trade associations are part of the Trading Standards Institute Consumer Codes Approval
Scheme (CCAS). Any traders who are part of this scheme agree to provide good standards of
service and must provide ADR for disputes between consumers and traders.

CONCILITION
In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator
is usually a member of the trade association. Both you and the supplier will be asked to give
written details of the complaint, including any evidence, and the conciliator will give an opinion
on the best solution. Any decision is not binding and won't prevent you from taking court action.
If you disagree with the opinion offered, you can then proceed to the arbitration stage or consider
suing in court. There is usually no charge for conciliation. In conciliation, the resolution of the
dispute by the parties themselves is the essential point.

In opposition to the mediation method, conciliation is based on right and rightfulness and the
history of the dispute is taken into consideration. At the same time, conciliation method is less
flexible than mediation method and is mostly based on provisions of law.

NEGOTIATION

Negotiation is a type of ADR which is generally referred to initially in case of a dispute and it
covers all methods of ADR. This type of ADR aims for the parties to settle the dispute between
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the same by negotiating and deliberating with each other with the attendance of their attorneys if
needed, without intervention of any third party.

Negotiation is a kind of ADR method that each party tries to obtain a benefit for themselves at
the end of the process by persuading the other party to act in the way the former desires.

ARBITRATION
While arbitrations are technically voluntary, many people agree to participate in arbitrations
before a dispute even arises. For example, many formal contracts require that any dispute
arising out of the contract be arbitrated. In an arbitration, the parties agree to have their case
heard by an impartial person, the arbitrator, who issues a final and binding decision. Typically,
an arbitration case is heard much faster than a court case would be heard and is less expensive
than a formal litigation. It is the process of refering a dispute to an impartial intermediar y chosen
by the parties who agree in advance to abide by the arbitrator’s award that is issued after a
hearing at which all parties have the opportunity to be heard. Arbitration resembles traditional
civil litigation in that a neutral intermediary hears the disputants’ arguments and imposes a final
and binding decision that is enforceable by the courts. One difference is that in arbitration the
disputants elect to settle anyfuture disputes by arbitration before a dispute actually arises,
whereas with civil litigation the judicial system is generally chosen by a disgruntled party after a
dispute has materialized. Another difference is that the disputants to an arbitration select the
intermediary who will serve as arbitrator, whereas parties to civil litigation have little to no
control over who will preside as the judge in judicial proceedings.Arbitration is a procedure for
settling disputes in which both you and the supplier usually agree to accept the decision of the
arbitrator as legally binding. This means you cannot take court action, except to enforce the
award if the supplier doesn't pay. The arbitrator will usually be a member of the Chartered
Institute of Arbitrators and often acts independently of the trade association. The arbitrator will
make a decision based on the written evidence presented by you and the supplier. The decision is
confidential and cannot be made public without the supplier's agreement. You will have to pay a
registration fee which may be refunded if you are successful. Some contracts for services and
delivery notes include an arbitration clause stating that you will refer any dispute to arbitration.
Although this is binding once you have signed the agreement, if the total cost is below the small
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claims limit (£10,000), you cannot be forced to arbitrate unless you gave your agreement after
the dispute arose.