Concept of ADR

Meaning, Nature and Genesis of Alternative

Dispute Resolution
Dr Ashu Dhiman
Lawyer as a Peace maker
“Discourage litigation. Persuade your neighbours to
compromise whenever you can. Point out to them how
the nominal winner is often the real loser- in fees and
expenses and waste of time. As a peace maker the
lawyer has a superior opportunity of being a good
man. There will still be enough business” – Abraham
Lincoln
Alternate Dispute Resolution- Meaning
The process for settling a dispute without litigation by
various methods like arbitration, mediation,
negotiation, conciliation and Lok Adalat is Called
Alternate Dispute Resolution.
The term Alternate Dispute Resolution comprised of
Alternate (which directly indicates to be something
other than state sponsored mechanism i.e
Litigation) + Dispute Resolution (which indicates
the peaceful resolution of the dispute in consensual
sense).
Definition of ADR

Alternative Dispute Resolution includes alternative

methods of helping people resolve legal problems
before going to court. There is an involvement in of an
independent third person, called a “neutral” who tries
to help resolve or narrow the areas of conflict in ADR.
Alternate Dispute Resolution means the wide variety
of methods by which conflicts and disputes are
resolved other than through litigation.
Alternative Dispute Resolution 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.
Alternate dispute Resolution does wonders to help
reducing the burden of litigation from the courts of law
and has proved to be a peaceful mechanism to resolve
the disputes.
Alternate dispute Resolution (ADR) may be termed as
alternative of the conventional techniques of dispute
resolution such as litigation. It is a motion for evolving
constructive approach and mindset towards dispute
resolution. Therefore ADR means and include:
A substitute to long established litigation method.
It consists of mechanisms and techniques for resolving
disputes other than ordinary exercise of litigation.
It is a non- judicial process.
It is not an alternate to traditional method in restrictive
sense.
Salem Bar Association vs. Union of India
The Supreme Court of India in Salem Bar Association
vs. Union of India ((2005) 6 SCC 344), has requested
prepare model rules for Alternative Dispute Resolution
and also draft rules of mediation under section 89(2)
(d) of Code of Civil Procedure, 1908.
Nature of ADR
‘Alternative dispute resolution’ is a combination of words
that literally means to solve the dispute by alternative
mechanisms. As mentioned above, these are techniques
of dispute settlement outside of the traditional
government judicial process and solve disputes by
mutual understanding between the parties. ADR is extra
support to the judicial system by easing the burden on the
same. It is less expensive and time-efficient.
According to Justice Mustafa Kamal, “it is a non-formal
settlement of legal and judicial dispute as a means of
disposing of cases quickly and inexpensively”
Advantages of ADR
ADR can be initiated at any time, when the parties to dispute desire to
do so.
This mechanism provides the speedy justice as compared to the
litigation process. It is less time consuming and cost effective too.
ADR is a flexible mechanism.
A neutral person helps both the parties in reaching to a peaceful
conclusion to the dispute.
 ADR methods reduce the burden of courts and pendency of cases.
ADR Reduce the gravity of contentious issues between the parties.
The results of the ADR process can be kept confidential if the parties
so choose.
Parties have an increased chance of preserving their business and
social relationship.
Disadvantages of ADR
With the exception of arbitration, where the arbitrator makes a binding decision, the
ADR process may not always yield a resolution. This means that money and time
could be invested in a process that does guaranteed resolution
The finality and binding nature of an arbitrator’s decision can sometimes be viewed
as a disadvantage because it may not always please the parties and courts will often
refuse to review it.
The neutral party – arbitrator, mediator, conciliator, will charge a fee for their time
and expertise and depending on their popularity, these fees may be substantial. A
judge, on the other hand, charges no fee for his decision.
An arbitration clause in a contract is usually binding and courts will not waive it
unless both parties request for litigation.
There is limited protection offered to the parties, especially with respect to
discovery, as the common rules governing discovery in litigation do not apply.
A mediator, conciliator or arbitrator can only resolve matters which are civil in
nature or which concern money. So, they cannot make authoritative injunctive
orders.
GENESIS/ DEVELOPMENT OF A.D.R.:
The force of Alternate Dispute Resolution originated in the
United States of America to discover the options of the
time consuming and highly-priced conventional legal
system. The agreement of legal disputes out of doors the
traditional legal method is prevalent in India. In the early
village systems, the disputes become settled via way of
means of the elders and senior-most contributors of the
village community. Since the Vedic length while arbitration
and mediation had been the principle types of dispute
resolution. The early treaty of the arbitration became
Bhradarnayaka Upanishad which consisted of diverse
lessons arbitral bodies prevalent in the Vedic era.
Alternate dispute resolution gained immense importance during
the Mughal regime when the Muslim laws were incorporated in
Indian culture. The laws of Muslims were systematically
compiled in a commentary titled as Hedaya which contained
provisions relating to arbitration. According to Hedaya, an
arbitrator also known as Hakam was to possess qualities of
a Kazi– judge, and his decision was considered to be binding on
parties subject to the legality and validity of the award.
 On the advent of the Britishers in India, a formal legal system
was developed and the alternate dispute resolution diminished.
But the formal legal system was time-consuming and expensive.
So people again started adopting the A.D.R. methods and it again
picked up the pace.
The British Government promulgated the Bengal
Resolution Act, 1722 which had the provision of
referring the dispute to an arbitrator. Later on, the
Code of Civil Procedure was promulgated by the
British Government which also had provisions
regarding A.D.R
Pre-independence legislations that were
promulgated by the British
Code of Civil Procedure:  The code of civil procedure which become
promulgated in 1859 consisted of segment 312-315 treated the arbitration in
suits and sections 316 and 317 which treated arbitration out of doors
courtroom docket intervention. Section 89 of the Code of Civil Procedure of
1908, consisted of diverse dispute decision mechanisms particularly
arbitration, mediation, conciliation, and Lok Adalat.
Indian Arbitration Act, 1899: The act is an adoption from British
Arbitration Act, 1889, and also the act was solely confined to the presidency
cities i.e. Calcutta, Bombay, and Madras. the most feature of the act was that
the name of the intermediator was to be mentioned within the agreement
and the sitting judge also can be the arbitrator..
Arbitration (Protocol and Convention) Act, 1937: This act was
implemented with the object to give effect to the Geneva Protocol on
Arbitration Clauses, 1923, and Geneva Convention on the Exchange of
Foreign Arbitral Award, 1927.
Arbitration Act, 1940: The act restricted solely domestic arbitration. As per the
provisions of the act, the intervention of the court was needed throughout the
continuing of arbitration. once the approaching of the UNCITRAL model, the govt of
India created a brand new Arbitration and Conciliation Act, 1996 that concerned
provisions for the international commercial arbitration.
Post- Independence when a formal judicial system was established it was observed
that the pendency of cases is increasing day by day and then the present judicial
system is incapable of handling the immense workload.
Justice Malimath Committee (1989) undertook a comprehensive review of the
operating of the court system and created observations on the delay when {making a
decision|when deciding} of the case and made recommendations for reducing
proceedings and making justice steady on the market to the people. The committee
underlined the ideas of mediation, arbitration, conciliation, and institution of Lok
Adalats.
In the year 1997, the Chief Ministers of States and Chief Justices of the High court
decided to adopt alternate dispute resolution as a means for the settlement of certain
disputes as the system was less expensive and less time-consuming.
Conclusion
The apex court in the case of M/s Guru Nanak Foundation v. M/s
Rattan Singh & Sons (1982 SCR (1) 842) stated that “Interminable,
time consuming, complex and expensive Court procedures impelled
jurists to search for an alternative forum, less formal, more effective
and speedy for resolution of disputes avoiding procedural claptrap
and this led them to Arbitration Act, 1940 (Act for short). However,
the way in which the proceedings under the Act are conducted and
without an exception challenged in Courts has made lawyers laugh
and legal philosophers weep. Experience shows and law reports bear
ample testimony that the proceeding under the Act has become highly
technical accompanied by unending prolixity, at every stage providing
a legal trap to the unwary. Informal forum chosen by the parties for
expeditious disposal of their disputes has by the decisions of the
Courts been clothed with ‘legalese’ of unforeseeable complexity.”