TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION SYSTEM

1) ARBITRATION

The globalization of economy is taking place at a rapid pace. The business transactions and
disputes are also increasing. The commercial establishments and businessmen cannot afford to
lose time in avoidable litigation and they are increasingly moving towards ADR System. The
arbitration among all the methods of ADR is the most popular. The construction contracts
usually have an arbitration clause. After the enactment of the Arbitration and Conciliation Act,
1996 the arbitration proceedings have taken a new dynamic shape. There is no need to get the
award of the arbitral tribunal to be made the rule of the Court. This is going to save a lot the
precious time. The arbitration has four commendable factors to it. The speed, finality, cheapness
and fair justice. The arbitration is a process and recognized mode of dispute resolution. The
dispute may be existing one or shall arise in future. The method applied in arbitration is both fair
and equitable. The dispute is resolved between the disputing parties through a person or persons
or an institutional body without recourse to litigation who are known as Arbitrator. The
Arbitrator pursuant to an agreement between the parties initiates the process of arbitration. The
arbitration law has got statutory recognition and the proceedings under the Act except few
stages, is equally good as under judicial proceedings. There is equality of opportunities during
the proceedings to both the parties.

Nature of Arbitration

The settlement of disputes by an elder man at village level in India was a common feature. The
people before the advent of the independence always resorted to amicable settlement instead of
going to Courts of laws. The usefulness and effectiveness of amicable settlement of disputes was
based upon high level of objectivity, impartiality and integrity of that elder man who is famous
and renowned as 'Headman' of the village as contrasted with the present day situation. It would
be pertinent to refer an Episode of Sattiganahalli village in C. R.Patna taluk, where a father acted
as 'Arbitrator or Judge' gave a decision against his own son on a complaint of having brought
coconut from the garden belonging to another person. The father while acting as decision-maker
fined his own son though it might have exchequer his own pocket. The village had earned a
name and fame for avoiding any dispute in the Courts of law. The spelled amount as fine was
considered to be a fair adjudication with supporting reasons, which was also reduced in writing
that was beyond the expectation of the society.

Meaning of Arbitration

The word arbitration has not been defined in the Indian Statutes relating to Arbitration to the
complete satisfaction, which may expose its real meaning and senses. The definition provided
under the Arbitration and Conciliation Act, 1996 seems to be very narrow and pedantic. The Act
under Section 2 (1) (a) defines that arbitration "means any arbitration whether or not
administered by permanent arbitral institution.
The word arbitration according to oxford dictionary means the official process of settling an
argument or disagreement by some body that is called an 'Arbitrator' and not involved in the
dispute in question. The arbitrator means and is a person who is chosen to settle disagreement.
The word arbitration as has been defined in the Arbitration and Conciliation Act, 1996, as 'any
arbitration whether or not administered by permanent arbitral institution' which from definition
point of view does not serve the literary or academic purpose. Whereas the word "Arbitral
Tribunal" means a sole Arbitrator or a panel of Arbitrators'.
The word Arbitration has been defined by his lordship Mr. Justice Romilly M.R. in Collins V
Collins as under:
"Arbitration is a reference to the decision of one or more persons, either with or without an
umpire, of a particular matter in difference between the parties.

Essentials of Arbitration
i. There must be 'dispute' between the parties.
ii. The dispute must either 'exist or may arise in future.
iii. There must be two or more parties to conflict or dispute in question.
iv. There must be an 'agreement' between the parties to refer the dispute for arbitration.

2) CONCILIATION

The Part 3 of the Arbitration and Conciliation Act, 1996 deals with Conciliation. Conciliation
means settling of dispute without litigation. It is a process by which discussion between parties is
kept going through the participation of a conciliator. The main difference between Arbitration
and Conciliation is that in arbitration proceedings is the award is the decision of Arbitral
Tribunal while in case of conciliation the decision is that of the parties arrived at with the
assistance of the conciliator.
The conciliation is a non-binding procedure in which an impartial and neutral third party
assists the disputing parties to reach a mutually satisfactory and agreed settlement of the dispute.
The parties competent to contract can seek conciliation and resort to an amicable settlement of
their disputes. They may belong to the same or different nationalities. The dispute, which has
either arisen or may arise in future between the parties, can be settled. The dispute may be in
respect of the defined legal relationship, whether contractual or not, can be settled by
conciliation. The parties should agree to seek an amicable settlement of that dispute by
conciliation. The conciliation means to console for settlement of the conflict by mutual
agreements. The settlement means 'right settlement' on give and take basis. The 'right' means
'just' from both parties point of view with a view to ensure future harmonious relationship
between the parties eliminating the possibility of litigation on the subject matter.
3) MEDIATION

The procedure in Alternative Dispute Resolution System combines two or more well-established
procedures. The ADR procedure is divided into two categories.Adjudicatory and
nonadjudicatory.
The arbitration is adjudicatory process whereas the conciliation, mediation and negotiations are
non-adjudicatory processes. The mediation is also a non-adjudicatory and non-binding procedure
as in conciliation proceedings.
Similarly, an impartial third party is involved to act as Mediator in the mediation
proceedings. The mediation and conciliation may be spelled out and are inter-changeable
expressions because in both the procedures a successful completion of the proceedings results in
a mutually agreed and acceptable settlement of dispute between the parties. The mediation, in
some jurisdictions, is treated as distinct from conciliation inasmuch as in mediation the emphasis
is on more positive role of the neutral third party than in conciliation. In U.S.A. the procedure of
conciliation is described as mediation in which a positive role is played by the neutral in assisting
the parties to arrive at an agreed settlement".

Mediation in Family Dispute Cases

Family is the most important social institution. We are dependent on our families, both for
financial and emotional stability. From the transition of joint families to nuclear families, the
ideas and beliefs of family members have changed drastically; and in recent times, family
disputes have escalated. With the Indian judicial system already burdened with the pressure of
pending family dispute cases, there is an urgent need to resolve such matters through alternate
dispute resolution methods, beyond the scope of litigation.

‘Discourage litigation; persuade your neighbours to compromise whenever you can. Point out to
them how the normal winner is often a loser in fees, expense, cost and time.’ ~ Abraham Lincoln

As rightly quoted by Sir Abraham Lincoln,the conventional litigation recourse demands huge
investments in terms of money and time. Thus we need better resolution methods which facilitate
a speedy justice delivery system. The emergence of Alternate Dispute Resolution (ADR)
methods one being, mediation has aided in helping the judiciary to cope with the pending cases
and to evolve a speedy justice delivery mechanism. Apart from a speedy trial, there are
numerous advantages of using this process, especially in the matters of family law disputes.
Common examples when family mediation is held are: when parties are separating or when
parties are already separated but want to negotiate terms of meeting their needs and interests.
Mediation is a settlement process in which either parties or Courts engage a mediator who acts as
a no-bias third party and helps both the parties to reach a harmonious solution. In the case of, K.
Srinivas Rao vs D.A. Deepa, the Supreme Court of India made it necessary for divorce cases to
go through the process of mediation if there is any scope of settlement between the parties.

Mediation not only helps to save the matrimonial bond, but it also tries to act their best for the
interest of children. In the case of Gaurav Nagpal vs Sumedha Nagpal, the Supreme Court
remarked: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the
courts relating to divorce or judicial separation. The provisions relating to divorce in HMA
categorise situations in which a decree for divorce can be sought for. Merely because such a
course is available to be adopted, should not normally provide an incentive to persons to seek a
divorce, unless the marriage has irretrievably broken. Efforts should be to bring about
conciliation to bridge the communication gap which leads to such undesirable proceedings.
People rushing to courts for breaking up of marriages should come as a last resort, and unless it
has an inevitable result, courts should try to bring about conciliation. The emphasis should be on
saving of marriage and not breaking it. As noted above it is more important in cases where the
children bear the brunt of dissolution of marriage.’

Procedure for Mediation:

There are two manners in which the mediation can be initiated:
a) Parties can voluntarily refer their case to private mediation.
b) The court can refer the parties to mediation. (Section 89 of the Civil Procedure Code)

Laws Governing Mediation in India

Mediation first came to be legally recognised as a method of dispute resolution in the Industrial
Disputes Act, 1947.
In 1999, the Code of Civil Procedure Amendment Act was passed by the Parliament. It provided
for Section 89 of the Code of Civil Procedure, 1908 which allowed the courts to refer to
alternative dispute resolution (ADR) methods to settle pending disputes.
Under this, consent of the parties was made mandatory and the court could refer cases for
arbitration, conciliation, judicial settlement through Lok Adalat, or mediation.
Moreover, the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under r.
5(f)(iii). These allow the court to refer cases for mediation even when the parties are not ready
for reference for mediation if there is an element of settlement.

4) Negotiation

The negotiation is another form of an Alternative Dispute Resolution System. Like conciliation
and mediation, negotiation is also a non-binding procedure but a suitable formula for dispute
resolution. The discussions between the parties are initiated with the object to reach a
compromise settlement through amicable devices. The difference lies in the sense that the
conciliation and mediation is always initiated with the intervention of third independent and
impartial person. The negotiations may be initiated with or without the intervention of the third
party. The main purpose and thrust of all these forms is to arriving at a negotiated settlement of
the disputes. The negotiation is the process of conferencing with another so as to arrive at an
amicable settlement about subject-matter of controversy. The most important factor in
negotiation by the parties or with the intervention of third party facilitation is that the disputants
always retain control over the process.

5) MEDIATION-ARBITRATION

Mediation-Arbitration ['Med-arb'] is designed to bring together the benefits of both mediation

and arbitration in one forum. The parties use one neutral person as both Mediator and Arbitrator.
'Med-arb' is a procedure where conciliation, mediation or arbitration alone has not been able to
settle the dispute within time frame. 'Med-arb' is two step processes.
First using mediation and then using formal arbitration to decide any of issues not settled
at the mediation stage. The parties are encouraged to be more honest with each other during
mediation. They are enriched with sense that neutral person will resolve all unsettled matters
without biased. The 'Med-arb' is binding decision including agreements achieved during the
mediation phase and the arbitration decision and the decision is enforceable as an ordinary
arbitration award.

6) MINITRIAL

The mini-trial is a device introduced in recent years to avoid lengthy and expensive litigation
between corporate parties. In mini-trial, the parties to the dispute choose an impartial third party
who may be an eminent lawyer, law professor, or former judge of any Court. The person who is
an authority in the area of dispute resolution is always preferred in mini-trial. The mini-trial takes
one day or less in dispute resolution. It consists of the lawyers for the two parties making their
presentation before the impartial adviser .The respective attorney argues the case on behalf of the
litigant parties. He explains their case to the adversarial questions of the other side and expose
every support that why they should win the case.

7) MEDOLA

A procedure in which if the parties fail to reach an agreement through mediation, a neutral
person, who may be the original mediator or an arbitrator, will select between the final
negotiated offers of parties such selection being binding on the parties.

8) LOK ADALAT

‘We are moving towards a time when it will be impossible for the courts to cope up with the
dockets. If something is not done, the result will be a production of line of justice that none of us
would want to see’In any civilized society, the rule of law is of paramount importance in order to
maintain the rule and order in the society of else it would lead to chaos. Imagine a society where
there is no rule of law and where there is no one to maintain the order in the society. Such
society where rights of people are blatantly trampled upon, where there is no regard for
individual freedoms, such a society cannot exist for long and perishes to its own vices.
For the upholding of rule to law, the system of courts or tribunals which can upheld it and ensure
peace in the society are required. The system of courts is a relatively modern concept solely
meant for access to justice by those who rights are violated or who have been aggrieved in one
way or other, however, in India, particularly in the Hindu Jurisprudence, this system has found
its place since the Vedic times when the Kings used to adjudicate dispute which would arise
between his subjects and justice was easily accessible to everyone.

In the modern times, the Magna Carta is one of such documents which emphasises on the
importance of access to justice. The seven hundred years old clarion call of the Magna Carta-“To
no one will we sell, to no one will we refuse or delay the right to justice” very pertinently
embodies the principles of legal aid.

CONCEPT OF LOK ADALAT

The emergence of alternative dispute resolution has been one of the most significant movements
as a part of conflict management and judicial reform, and it has become a global necessity. Out
of this necessity, the need was felt for alternative means of dispute resolution in India which
would help ease the staggering burden of pending cases on hand while efficiently delivering a
solution to the satisfaction of the parties involved on the other.
The word Lok Adalat literally translates to “people’s court” however Lok Adalat is not a court of
law in the true sense and accepted norm and connotation of the word. Lok Adalat can be defined
as “a forum where voluntary effort aimed at bringing about settlement of disputes between the
parties is made through conciliatory and pervasive efforts”.
Lok Adalat does not only minimize litigation expenditures, but also saves valuable time of the
parties and their witnesses and facilitates inexpensive and prompt remedy appropriately to the
satisfaction of both the parties.

Lok Adalat (People’s Court) concept and philosophy is an innovative Indian contribution to the
world jurisprudence. The system of Lok Adalats is the outcome of the beliefs of Mahatma
Gandhi who once famously said “India lives in its villages” and advocated for a ‘village based
political formation’ i.e. Panchayati Raj (Rule by the panchayats) and Gram Swarajya. (Villages
ruled independently). Thus, we have Article 40 of our Constitution which provides that“the
State shall take steps to organize village Panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.”
Subsequently, the Balwantrai Mehta Committee (1957)was formed which recommended a three-
tier Panchayati Raj system in the form of Gram Panchayats (village level), Panchayat Samiti
(block level) and Zilla Parishad (district level). Government of India is committed to legal aid.
During the past few decades, efforts have been made to revamp the judicial system and to make
it more efficient. It was with the same intention that Article 39A was introduced in the
Constitution of India which provides for Free Legal Aid and makes a directive to the State to
ensure free legal aid to those who otherwise cannot afford it.
The Legal Services Authority Act, 1987 was one such attempt in this direction which provides
for establishment of judicial services authority which has been diligently involved in providing
access to justice by those who cannot afford it for one reason or another.
The restructuring of the judicial system forms part of an effective legal services programme as it
tends to include every form of legal assistance which brings justice close to people, particularly
to the rural people. The poor and the disadvantaged are cut off from the legal system by reason
of its expensiveness and dilatoriness and also because of the nature of the legal and judicial
system. The legal system is so complex that it intimidates those who do not know of the nuances
of this system and is a chief reason why people tend to avoid entering into litigation even when
their rights are encroached upon. The Lok Adalats are an innovative form of voluntary efforts for
amicable settlement of disputes between the parties. It provides speedy and inexpensive justice at
the very door-step of the people. It has gained popularity both in rural as well as urban areas.