JAMIA MILLIA ISLAMIA

CLINAL COURSE- III

TOPIC:- ALTERNATIVE MODES OF DISPUTE RESOLUTION IN INDIA

Submitted By- IRAM PEERZADA Submitted to-

B.A.LL.B.(Hons.) Prof.Dr. Nuzhat Parveen Khan

IX SEMESTER

SECTION ‘B’
 ACKNOWLEDGEMENT

I am highly obliged and grateful to my teachers who have been a constant source of imparting
knowledge and have encouraged for learning the beautiful concept of the topic of my project.

Special regards to the University, Jamia Millia Islamia,

Dean, Faculty of Law, JMI, Dr. Prof. Nuzhat Parveen Khan,

Arif Sir,

My classmates and Friends

“I realized that the true function of a lawyer was to unite
parties... The lesson was so indelibly burnt into me that a
large part of my time during the twenty years of my
practice as a lawyer was occupied in bringing about private
compromise of hundreds of cases. I lost nothing thereby not
even money; certainly not my soul”.
--- Mahatma Gandhi
 CONTENTS

 History of Alternative Dispute Resolution in India

 ADR and Constitution
 Legislative recognition of Alternative Dispute Redressal
 Legal recognition of ADR system in India
 Need for ADR
 Various ADR mechanisms
 Different modes of ADR
 Arbitration
 Mediation
 Conciliation
 Evolution of Mediation in India
 Judicial Settlement
 Judicial Settlement Guidelines
 An Analysis on ADR mechanisms in Indian Judiciary
 Lok Adalat
 Difference between Mediation and other Dispute Resolution Process
 Difference between Concilliation and Mediation
 Difference between Mediation and Arbitration
 Difference between Mediation and Lok Adalat
 Advantages of ADR
 Suggestions by the Law Commission of India
 Conclusion
History of Alternative Dispute Resolution in India

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. In modern times, the existing judicial system finds it difficult to cope
with the ever increasing burden of civil litigation. Not many in India can afford litigation due to
the usual delays in the process of justice and huge expenses. This makes people look down
upon the judicial process. Most people do not prefer taking recourse to and try to stay away
from anything that is remotely related to litigation. This scenario is not only related to India.
Almost all countries all over the globe have been facing similar situations.

During the early 1980s, a strong demand for ADR in the corporate world gained momentum
and serious efforts were made to grow and find more efficient and effective alternates to
litigation. Thereafter, society had witnessed an explosion in the number of private use of
arbitration and mediation as ADR was introduced and adopted in the community.

The ADR procedures consist of negotiation, conciliation, mediation, arbitration and an array of
hybrid procedures, including mediation and last offer arbitration(MEDOLA), mini-trial, med-arb
and neutral evaluation. ADR techniques are extra judicial in character. They can be used in
almost all matters which are capable of being resolved, under law, by an agreement between
the parties. However, it is to be kept in mind that ADR is not intended to replace altogether the
traditional means of resolving disputes by means of litigation. It offers only alternative options
to litigation. ADR may not be apt for every dispute even in other areas; even if appropriate, it
cannot be invoked unless both parties to a dispute are genuinely interested in a settlement.

Alternative Dispute Resolution (hereinafter referred to as “ADR”) is a term for describing

process of resolving civil disputes in place of litigation and includes arbitration, mediation,
conciliation, expert determination and early neutral evaluation by a third person.1 As the name
suggest, it simply refers to an alternate way to settle conflicts which a person or corporate
entity might encounter.

The National Alternative Dispute Resolution Advisory Council (“NADRAC”) of Australia has
defined ADR as “an umbrella term for processes, other than judicial determination, in which an
impartial person assists those in a dispute to resolve the issues between them.” In fact, ADR is
increasingly referred to as ‘appropriate dispute resolution’, in recognition of the fact that such

1
https://astrealegal.com/alternative-dispute-resolutionin-india
approaches are often not just an alternative to litigation, but may be the most optimum way to
resolve a dispute.2

The formal justice system was a comparatively latter development in a legal landscape where
dispute resolution, was an age old method to resolve conflicts routinely practised world-over
across various societies and communities. What is newly emerging today however is the
extensive preferment and proliferation of ADR models in the domestic and international market
over traditionally redressing it to a court of law.

There are numerous reasons for the advent of ADR; primarily, the lay man is daunted by the
court and its formal procedure. He would rather live with his problems by reaching a
compromise than approach a court of law to seek justice especially when the path to achieve
the same is littered with various obstacles including overburdened judges, complex legal
procedure which is time-consuming and the sky high expenses that come with bringing a
matter before the court.

The great Abraham Lincoln, 16th President of the United States of America had himself said –

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out
to them how the nominal winner is often a real loser— in fees and waste of time. As a
peacemaker, the lawyer has a superior opportunity of being a good man. There will still be
business enough.”

The ‘ADR Timeline’ in the early pages of the book begins in 1800 BC when dispute resolution
was practiced by the Phoenicians, the Greeks, the Indians and the Irish. The rich traditions of
Chinese mediation and Muslim tahkim, different as they are from modern conceptions of ADR,
necessarily receive shorter shrift than they deserve. Among the intriguing historical illustrations
of ‘ADR’ phenomena are the role of Mohammed in averting war over the reconstruction of
Kaaba, and the use of symbolic contests to resolve land disputes in West Francia in the middle
ages.

Thus, as pointed out above, the ADR system is not a new experience for the people of this
country also. It has been prevalent in India since time immemorial. Legal history indicates that
down the ages man has been experimenting with procedure for making it easy, cheap, unfailing
and convenient to obtain justice. Procedure for justice is indicative of the social consciousness
of the people.

The Gupta Empire had a separate and distinct judicial system. At the lowest level of the judicial
system was the village assembly or trade guild. These were the councils appointed to settle the

2
National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms (2003)
disputes between the parties that appear before them. There were separate councils appointed
to decide various matters that came before them. Thus, if people could not reach to any
amicable settlement, it was resolved by the councils.

During the Mughal Dynasty, most villagers resolved their cases in the village courts itself and
appeal to the caste courts, the arbitration of an impartial umpire (“Salis”), or by a resort to
force.

The Maratha Empire established Panchayats; they were the first instrument of the civil
administration of justice under the Marathas to adjudicate cases of simple and minor nature.
The disputing parties were to sign an agreement regarding the abiding of the rules and
regulations of the Panchayat. It was up to the Panchayat to study the case and pass its
judgement impartially or without any bias to any party. A “Mamlatdar”, the higher officer in the
succession of judicial administration was to confirm the judgement. Generally, the
Mamlatdarand the Panchayat used to adjudicate the cases, which were upheld by the Maratha
Government.

With the advent of the British Raj these traditional institutions of dispute resolution somehow
started withering and the formal legal system introduced by the British began to rule. Alternate
Dispute Resolution in the present form picked up pace in the country, with its creation by the
Bengal Regulations. The Bengal Regulations were designed to encourage arbitration. After
several Regulations containing provisions relating to arbitration Act VIII of 1857 codified the
procedure of Civil Courts except those established by the Royal Charter, which contained
Sections dealing with arbitration in suits as well as sections which provided for arbitration
without the intervention of the court. Thereafter, the Indian Arbitration Act, 1899 was passed
which was based on the English act by the same name. It was the first substantive law on the
subject of arbitration but its application was limited to the Presidency – towns of Calcutta,
Bombay and Madras.

In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in
the law of arbitration. The Arbitration Act of 1940 was enacted replacing the Indian Arbitration
Act of 1899 and certain parts of the Civil Procedure Code, 1908. It amended and consolidated
the law relating to arbitration in British India and remained a comprehensive law on Arbitration
even in the Republican India until 1996.

Further, bodies such as the Village Panchayat; a group of elders and influential persons in a
village deciding the dispute between villagers are not uncommon even today. The Panchayat
has, in the recent past, also been involved in caste disputes. In 1982, settlement of disputes out
of courts started through LokAdalats. The first LokAdalat was held on March 14, 1982 at
Junagarh in Gujarat and now it has been extended throughout the country. Initially, LokAdalats
functioned as a voluntary and conciliatory agency without any statutory backing for its
decisions. By the enactment of the Legal Services Authorities Act, 1987, the institution of Lok
Adalats received statutory status.

To keep pace with the globalization of commerce the old Arbitration Act of 1940 is replaced by
the new Arbitration and Conciliation Act, 1996. Settlement of matters concerning the family has
been provided under the amendment of the Code of Civil Procedure in 1976. Provisions are
made under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 for making
efforts for reconciliation. Under Family Courts Act, 1984 it is the duty of family court to make
efforts for settlement between the parties. Introduction of Section 89 by way of the 1999
Amendment in the Code of Civil Procedure, 1908 is a radical advancement made by the Indian
Legislature in embracing the system of “Court Referred Alternative Disputes Resolution”.

The Arbitration and Conciliation Act, 1996 also contains provision relating to conciliation in
contractual matters arising out the legal relationship, the arbitral proceedings being informal,
less expansive and relatively speedier, have proved to be an efficient alternative means for the
redressal of disputes and differences between the parties.3 Like arbitration , conciliation and
mediation as an alternative means of settlement of disputes also needs to popularized
commenting on this point, the former Chief Justice of India Justice A.M.Ahmadi observed, –

“while we encourage ADR mechanisms, we must create a culture for settlement of disputes
through these mechanisms, Unless the members of the Bar encourage their clients to settle
their disputes through negotiations, such mechanisms cannot succeed.

3
https://astrealegal.com/alternative-dispute-resolutionin-india
ADR and Constitution

ADR first started as a quest to find solutions to the perplexing problem of the ever increasing
burden on the courts. It was an attempt made by the legislators and judiciary alike to achieve
the “Constitutional goal” of achieving Complete Justice.

Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14
and 21 which deal with Equality before Law and Right to life and personal liberty respectively.

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 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.

Advantage of Alternate Dispute Resolution:

 It is less expensive.
 It is less time consuming.
 It is free from technicalities as in the case of conducting cases in law Courts.
 The parties are free to discuss their difference of opinion without any fear of disclosure
of this fact before any law Courts.
 The last but not the least is the fact that parties are having the feeling that there is no
losing or winning feeling among the parties by at the same time they are having the
feeling that their grievance is redressed and the relationship between the parties is
restored.

Legislative recognition of Alternative Dispute Redressal

The Legal Services Authorities Act, 1987 brought about the establishment of Lok Adalat System
for settlement of disputes cheaply and expeditiously and also in the spirit of compromise by
give and take formula.

Section 30 of the Arbitration and Conciliation Act, 1996 encourages arbitrators, with the
agreement of the parties, to use mediation, conciliation or other procedures at any time during
the arbitration proceedings to encourage settlement.

Further still, the Civil Procedure Code (Amendment) Act, 1999 carries Section 89 which is
designed to enable the courts to bring about a settlement of dispute outside the Court. As and
when the Amendment comes to be enforced, the four methods listed in the section and known
as court-ordered or court- annexed ADRs would become statutory alternatives to litigation for
settlement of disputes and would be legally enforceable

It is now made obligatory for the Court to refer the dispute after issues are framed for
settlement with the concurrence of the parties either by way of:

 Arbitration,
 Conciliation,
 Judicial settlement including settlement through Lok Adalat, or
 Mediation

Where the parties fail to get their disputes settled through any of the Alternative Dispute
Resolution methods, the suit would come back to proceed further in the Court it was filed.

Justice Malimath Committee Report (1989-90)

The Malimath Committee undertook a comprehensive review of the working of the court
system, particularly all aspects of arrears and Law’s delay and made various useful
recommendations for reducing litigation and making justice readily accessible to the people at
the minimum cost o time and money. It underlined the need for alternative dispute resolution
mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative
to the conventional court litigation.
LEGAL RECOGNITION OF ADR SYSTEM IN INDIA

Arbitration and conciliation Act, 1996

This Act provides certain powers to the judiciary as well as concerned authorities to make a
settlement of the case at the option of the parties involved. Section 30 of the Act deals with
provisions wherein the arbitrator, with the consent of the parties, undergo mediation,
conciliation or other such proceedings at any time of arbitration to encourage settlement of the
dispute.4 But the Act also states that for enforcement of any such provisions of the Act, there
must be an ‘arbitration agreement’ between both the parties in writing. In fact, the process of
arbitration is being done mainly for civil cases which involve monetary settlement among the
parties. While referring the term conciliation, it will be clear that this system of resolving
disputes is much informal than arbitration. There is no need for agreements between the
parties of a dispute. During any time of judicial proceedings, a party can request for conciliation
to the other party and then a conciliator may be appointed. After going through the facts of the
case, the conciliator calls up for a meeting between two parties jointly or individually. Then if
the dispute is resolved, a settlement document is prepared by enclosing the details regarding
the settlement.

Apart from these two machineries, there are certain other prominent systems under the head
of ADR, which involves Lok adalat as well as Mediation. Lok adalat is generally known as
‘people’s court’. This is a non-adversarial system wherein mock courts are held by State
authority, District Legal Services authority, Taluk legal service committee as well as Supreme
Court and High Court legal services committees. It has no jurisdiction over any non-
compoundable offences. One of the merits of this system is that the parties can directly contact
with the judges which is not possible in regular courts. The focus of adalat is on compromise
and if not, the case will be returned to the courts and if compromised, it will be a decree equal
to the civil court and no appeal is applicable even under Article 226 as the decree made is upon
the consent of both the parties.

On the other hand, mediation plays yet another role in the field of ADR wherein a negotiation is
done between the parties with the help of a mediator who is a third party to them. The main
object of undergoing mediation proceeding is to protect the best interest of the parties. It does
not cover any legal provisions so that the parties will be not held inside certain limitations of
such legal matters. It provides a friendly talk between the parties and a means of counselling so
that the real issue faced by them will be found out and the dispute among them will be
resolved easily. There are certain types of mediation which are termed as court referred
mediation and private mediation. Same theory which is applicable to Lok adalath is applied

4
http://www.gktoday.in/alternative-dispute-resolution/
here also, i.e., if the parties arrives at a settlement, no person can file an appeal to a higher
court in any manner.5

ADR system in India

There is a long and old tradition in India of the encouragement of dispute resolution outside the
formal legal system. Disputes were quite obviously decided by the intervention of elders or
assemblies of learned men and other such bodies. Nyaya Panchayats at the grass root level
were there even before the advent of the British system of justice. However, with the advent
of the British Raj, these traditional institutions of dispute settlement somehow started
withering and the formal legal system introduced by the British began to rule on the basis of
the concept of omissions of rule of law and the supremacy of law.

It was only after Independence, the fact that the formal legal system will not be in a position to
bear the entire burden and the system requires drastic changes. The mounting arrears in the
courts, inordinate delays in the administration of justice and expenses of litigation have
gradually undermined the people’s faith in the system. Today, therefore, the issue is to
examine and choose a right formal legal system, such as Alternative Dispute Resolution
procedures and to organise the same on more scientific lines.

5
http://mediationbhc.gov.in/PDF/concept_and_process.pdf
NEED FOR ADR

Alternative dispute Resolution methods are being increasingly acknowledged in the field of law
and commercial sectors both at National - 18 and International levels. Its diverse methods can
help the parties to resolve their disputes at their own terms cheaply and expeditiously.
Alternative dispute Resolution techniques are in addition to the Courts character. Alternative
dispute Resolution techniques can be used in almost all contentious matters, which are capable
of being resolved, under law, by agreement between the parties. Alternative dispute Resolution
techniques can be employed in several categories of disputes, especially civil, commercial,
industrial and family disputes.6

From the study of the different alternative dispute Resolution it is found that, alternative
dispute Resolution methods offer the best solution in respect of commercial disputes where
the economic growth of the Country rests. Alternative Dispute Resolution originated in the USA
(United States of America) in a drive to find alternatives to the traditional legal system, felt to
be adversarial, costly, unpredictable, rigid, over professionalized, 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, such as: trials of civil actions by a jury, lawyers' contingency fees, lack of application in
full of the rule "the loser pays the costs".

Actually informal dispute resolution has a long tradition in many of the world societies dating
back to 12th century in China, England and America. The business world has rightly recognized
the advantages that the alternative dispute resolution in one of or other is a right solution. It is
felt that it is less costly, less adversarial and thus more conducive to the preservation of
business relationship which is of vital importance in the business world. The use of alternative
dispute resolution has grown tremendously in the international business field in recent years.
The growth has been permitted by several factors including tremendous expansion of
international commerce and the recognition of global economy. Many governments around the
world have supported the demand for alternative dispute resolution as an efficacious way of
handling international commercial disputes. We find that alternative dispute resolution has also
become a common provision in United States trade treaties and the United State has been the
strongest supporter of international commercial alternative dispute resolution. Many experts in
this field are of the strong opinion that the impact of alternative dispute resolution on
international commerce is great and will continue to expand. Numbers of alternative dispute
resolution institutions are being established. In this background, the necessity for setting up the

6
Hindu Marriage Act 1955, Industrial Disputes Act 1947, The Code Of Civil Procedure, The Family Courts Act
1984
International Centre for Alternative Dispute Resolution, though was felt for quite some time,
came to be true by the inauguration of the International Centre in India.

Disputes resolution is an indispensable process for making social life peaceful. Dispute disturbs
the integration of the group and since social stability is required for the social order, in every
society efforts have been made to bring about resolution of conflict between antagonistic
groups. Disputes resolution process tries to resolve and checks conflicts, which enables persons
and group to maintain co-operation. It can thus be alleged that it is the sine qua none of social
life and security of the social order, without which it may be difficult for the individuals to carry
on the life together.7

Mahatma Gandhi

“I realized that the true function of a lawyer was to unite parties... The lesson was so indelibly
burnt into me that a large part of my time during the twenty years of my practice as a lawyer
was occupied in bringing about private compromise of hundreds of cases. I lost nothing thereby
not even money; certainly not my soul”.

Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and
mediation emerged in response to the disruptive conflicts between labor and management. In
1898, Congress followed initiatives that began a few years earlier in Massachusetts and New
York 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.8

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”. However, the blame for the large number of pending cases in these developing
countries or docket explosion, as it is called, cannot be attributed to the Courts alone. The
reason for it being the non-implementation of negotiation processes before litigation. It is

7
Park and Burgess, Introduction to the science of Sociology. p 735
8
http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/adr_history.htm
against this backdrop that the mechanisms of alternative dispute resolution are being
introduced in these countries.

These mechanisms, which have been working effectively in providing an amicable and speedy
solution for conflicts in developed economies, are being suitably amended and incorporated in
the developing countries in order to strengthen the judicial system. Many countries such as
India, Bangladesh and Sri Lanka have adopted the alternative dispute resolution mechanism.
Alternative Dispute Resolution in India is an attempt made by the legislators and judiciary alike
to achieve the “Constitutional goal” of achieving Complete Justice in India. Alternative Dispute
Resolution first started as a quest to find solutions to the perplexing problem of the ever
increasing burden on the courts. A thought-process that started off to rectify docket explosion,
later developed into a separate field solely catering to various kinds of mechanisms which
would resolve disputes without approaching the Formal Legal System. The reasoning given to
these alternative dispute resolution mechanisms is that the society, state and the party to the
dispute are equally under an obligation to resolve the dispute as soon as possible before it
disturbs the peace in the family, business community, society or ultimately humanity as a
whole. In a civilized society, principles of natural justice along with the “Rule of Law” should
result in complete justice in case of a dispute. Rule of Law is defined as the state of order in
which events conform to the law. It is an authoritative, legal doctrine, principle, or precept
applied to the facts of an appropriate case. These definitions give us the indication that the Rule
of Law is an authoritative concept which might lead to a win-lose situation in cases of dispute.
Therefore, alternative dispute resolution uses the principles of natural justice in consonance
with the Rule of Law, in order to create a favorable 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 longstanding litigation. Alternative Dispute
Resolution, thus, gains its momentum in India today.9

In India, adversary method of resolving a dispute is predominantly followed. The Britishers

primarily introduced this method of resolving the disputes for the first time in India. In this
method, the parties to the dispute compete with each other to get a favorable decision. This
leads to win or lose situation between the litigants ensuing animosity between them. Hence,
the shortcoming of such a system is that the congenial atmosphere of the society is said to be
affected. The Society makes efforts to control the dispute and the conflict, but irony is that the
society, itself has created situation that leads to the dispute and perhaps cannot avoid doing so.
By assigning different status to different occupations, society has laid the basis for jealousy,
greed and resentments. By giving authority to one person over the other, society opens the
doors for abuse of authority and consequently relation. By creating ends that are competitive,

9
http://www.icadr.org/news-speechcjhc.html
society makes it possible for competition to take the form of dispute. Despite some of its
negative effects of litigations it cannot be denied that it is one of the most reliable sources of
resolution of dispute among the public and has proved to be an outstanding method to the
satisfaction of everyone. It is a unifying factor, which handles the disputes in accordance with
uniform national standard. This is the reason why it is still functioning as a primary source of
resolution of the dispute among the people.

In India, the quest for justice has been an ideal, which the citizens have been aspiring for
generations down the line. Our Constitution reflects this aspiration in the Preamble itself, which
speaks about justice in all its forms: social, economic and political. Justice is a constitutional
mandate. About half a century of the Constitution at work has tossed up many issues relating to
the working of the judiciary; the most important being court clogging and judicial delays.
Particularly disturbing has been the chronic and recurrent theme of a near collapse of the
judicial trial system, its delays and mounting costs. Here, the glorious uncertainties of the law
frustrated the aspirations for an equal, predictable and affordable justice is also a question,
which crops up often in the minds of the people. We are a country of a billion people. The
fundamental question is:

How do we design and structure a legal system, which can render justice to a billion people?
The possibility of a justice-delivery mechanism in the Indian context and the impediments for
dispensing justice in India is an important discussion. Delay in justice administration is the
biggest operational obstacle, which has to be tackled on a war footing. As Justice Warren
Burger10 , observed in the American context:

“The harsh truth is that we may be on our way to a society overrun by hordes of lawyers,
hungry as locusts, and bridges of judges in numbers never before contemplated. The notion —
that ordinary people want black-robed judges, welldressed lawyers, and fine paneled
courtrooms as the setting to resolve their disputes, is not correct. People with legal problems
like people with pain, want relief and they want it as quickly and inexpensively as possible.”

Therefore, this explains the need for Alternative Dispute Resolution in India. In a country, which
aims to protect the socioeconomic and cultural rights of citizens, it is extremely important to
quickly dispose the cases in India, as the Courts alone cannot handle the huge backlog of cases.
This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution.
These are the reasons behind the introduction of Alternative Dispute Resolution in India.

Alternative Dispute Resolution techniques can be resorted to in almost all types of contentious
matters capable of resolution by agreement between parties under the law where both parties
are generally interested in a settlement. Conflict is a fact of life. It is not good or bad.

10
The former Chief Justice of the American Supreme Court
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 refers to a variety of streamlined resolution
techniques designed to resolve issues in controversy more efficiently when the normal
negotiation process fails. Alternative Dispute Resolutions 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 overburdened with cases. Alternative Dispute Resolution only offers an alternative
option to litigation, it is intended only to supplement and not supplant the legal system. It can
be invoked in civil, commercial, industrial and family disputes. It is particularly useful in all types
of business disputes and is considered to offer the best solution in respect of commercial
disputes of international character. Even if the alternative dispute resolution proceeding fails, it
is never a waste since it helps the parties to see each other’s view point and understand the
case better.

At present, there is a single hierarchy of Courts in India. India's judicial system is made up of the
Supreme Court of India at the apex of the hierarchy for the entire country and various High
Courts at the top of the hierarchy in each State and Union Territories. These Courts have
jurisdiction over a State, a Union Territory or a group of States and Union Territories. Below the
High Courts are a hierarchy of Subordinate Courts such as the Civil Courts, Family Courts,
Criminal Courts and various other District Courts. The High Courts are the principal Civil Courts
of original jurisdiction in the State, and can try all offences including those punishable with
death.

The goal of Alternative Dispute Resolution is enshrined in the Indian Constitution’s preamble
itself, which enjoins the State: “to secure to all the citizens of India, justice-social, economic,
and political— liberty, equality, and fraternity.11 Alternative Dispute Resolution in India was
founded on the Constitutional basis of Articles 14 and 21 which deal with Equality 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. Alternative
Dispute Resolution 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. The Legal Services Authorities Act, 1987 has also been amended from time to
time to endorse use of alternative dispute resolution methods.

11
The Preamble of Indian Constitution.
Section89 of the Code of Civil Procedure as amended in 2002 has introduced conciliation,
mediation and pre-trial settlement methodologies for effective resolution of disputes.
Mediation, Conciliation, Negotiation, Mini-Trial, Consumer Forums, Lok Adalat’s and Banking
Ombudsman have already been accepted and recognized as effective Alternative dispute
resolution methodologies.

In India, with major economic reforms under way within the framework of rule of law,
necessitates the need of strategies for swifter resolution of disputes. It is required for lessening
the burden on the Courts and for providing expeditious means of resolution of disputes. At this
juncture, there is no better option but to strive to develop alternative modes of dispute
resolution by establishing facilities for providing settlement of disputes through Arbitration,
Conciliation, Mediation and their hybrid techniques. The acceptance of process of alternative
dispute resolution techniques is not intended to supplant altogether the traditional means of
resolving disputes by means of litigation.12 It only offers alternatives to litigation. There are a
large number of areas like Constitutional law and the Criminal law cases where alternative
dispute resolution methods cannot substitute Courts. In those situations, one has to take
recourse of the existing traditional modes of dispute resolution through Court of Law.

Alternative dispute resolution has greatly expanded over the last several years to include many
areas in addition to the traditional commercial dispute in the form of arbitration; mediation has
become an important first step in the dispute resolution process. Arbitrators and mediators
have an important role in resolving disputes. Mediators act as neutrals to reconcile the parties’
differences before proceeding to arbitration or litigation. Arbitrators act as neutral third parties
to hear the evidence and decide the case. Arbitration can be binding or non-binding.

On account of arrears of pending cases and experience litigations compel to search for
alternative means. The present days crumbling administration of justice is also a factor which
makes alternative dispute resolution acceptable. At present, there are over 2.5 crore cases
pending in various courts all over the country. In a democracy, this situation may lead to the
failure of the administration of justice. Justice delayed is justice denied, this legal maxim speaks
for itself in the context of clogging the judicial system. The judicial system today lacks judicial
officers, staff and proper infrastructure to deal with the backlog cases which is being stretched
for years and decades without reaching a final decision. Such situations call for ADR to step in
where the justice system fails.

12
Food Corporation of IndiaVs.Joginder Pal, AIR 1989 S.C. 1263.
Thus to sum it up we can say that ADR is needed to counter the following situations:

 Arrears of pending cases

As stated earlier a load of pending cases is way too much for the present justice delivery system
to handle. This makes the justice system sluggish and technically dead. Overpopulation and
modern complications of human life make the judicial system prone to collapse in future if
there are no alternative and effective means to be adopted. This is why ADR steps in to
efficiently resolve disputes harmoniously.

 Repeated Adjournments

The practice of seeking adjournments is prevalent specifically in our country. It is a true fact
that unwarranted adjournment makes the life of litigation, it is, however, being prolonged than
being extended due to repeated adjournments granted.

 Sluggish Government Machinery

It is to be noted that the ‘State’ is the major litigant because in most of the litigations the State
is an essential party. It has been seen that the Government machinery specifically the Judiciary
is not well equipped. A number of vacant posts of judges are lying vacant on account of the
governmental heedlessness. Lack of required infrastructure is further aggravating the course of
litigation. On account of overpopulation and a tremendous increase in commercial activities, it
is quite natural that the number of litigations also increase resulting in a massive backlog of
cases.

 Concentration of Litigation

The concentration of cases on a particular advocate badly affects his/her functioning and
he/she finds himself/herself in such a demanding position that he/she is expected to make an
effective presentation of the case. To avoid such problems, it is most desirable to pursue
alternative resolution in the form of ADR.
Various Kinds of ADR Mechanism

 Arbitration:

Arbitration is the process of hearing and determining of a dispute between parties by persons
chosen or agreed to by them. The object of arbitration is to obtain the fair resolution of
disputes by an impartial tribunal without unnecessary delay and expense.

 Conciliation:

Conciliation is the process of facilitating an amicable settlement between the parties. Unlike the
Arbitration there is no determination of a dispute. There need not be a prior agreement and it
cannot be forced on a party not intending for conciliation. The proceedings relating to
Conciliation are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996.

 Mediation:

Mediation aims to assist two (or more) disputants in reaching an agreement. The parties
themselves determine the conditions of any settlements reached— rather than accepting
something imposed by a third party. The disputes may involve (as parties) states, organizations,
communities, individuals or other representatives with a vested interest in the outcome.
Mediators use appropriate techniques and/or skills to open and/or improve dialogue between
disputants, aiming to help the parties reach an agreement (with concrete effects) on the
disputed matter.

There are various important judgements for the cases which involve section 89 of CPC. In the
case of Afcons infrastructure and Anr v. Cherian Varkey construction co13, Supreme Court held
that “all suits of civil nature, in particular, the following categories of cases are normally
suitable for ADR process”:

 Cases relating to trade, commerce and contract

 Cases arising from strained or sourced relationships
 In cases wherein there is a need for continuation of pre –existing relationship in spite of
disputes
 Cases relating to tortious liability
 All consumer disputes

13
Afcons infrastructure Ltd and Anr v. Cheriyan Varkey construction co: Civil Appeal no: 6000 of 2010
Supreme Court also held that enumeration of the above said cases are only indicative and not
intended to be exhaustive or rigid. In many other cases as in Jagdish Chander v. Ramesh
Chander,14 Supreme Court held that “there cannot be a reference to arbitration under section
89 of CPC unless there is consent of the parties for such a reference”.

Different Modes of Alternative Dispute Resolution (ADR)

Dispute resolution is an indispensable process for making social life peaceful. Dispute resolution
process tries to resolve and check conflicts, which enables persons and group to maintain co-
operation. It can thus be alleged that it is the sin qua non of social life and security of the social
order, without which it may be difficult for the individuals to carry on the life together.15

Alternative Dispute Resolution (ADR) is a term used to describe several different modes of
resolving legal disputes. It is experienced by the business world as well as common men that it
is impracticable for many individuals to file law suits and get timely justice. The Courts are
backlogged with dockets resulting in delay of year or more for the parties to have their cases
heard and decided. To solve this problem of delayed justice ADR Mechanism has been
developed in response thereof.

Alternative dispute redessal method are being increasingly acknowledged in field of law and
commercial sectors both at National and International levels. Its diverse methods can helps the
parties to resolve their disputes at their own terms cheaply and expeditiously.

Alternative dispute redressal techniques are in addition to the Courts in character. Alternative
dispute redressal techniques can be used in almost all contentious matters, which are capable
of being resolved, under law, by agreement between the parties. Alternative dispute redressal
techniques can be employed in several categories of disputes, especially civil, commercial,
industrial and family disputes.16

Form the study of the different alternative dispute redressal techniques in the proceedings
chapters it is found that, alternative dispute redressal methods offers the best solution in
respect of commercial disputes where the economic growth of the Country rests.

14
2007 (5) SCC 719
15
Park and Burger, Introduction to the Science of Sociology p. 735

16
Hindu Marriage Act 1955, Industrial Dispute Act, 1947, The Code of Civil Procedure, The Family Court Act,
1984.
The goal of Alternative dispute redressal is enshrined in the Indian Constitution’s preamble
itself, which enjoins the state: “to secure to all the citizens of India, justice-social, economic and
political-liberty, equality and fraternity”.17

The Law Commission of India has maintained that, the reason judicial delay is not a lack of clear
procedural laws, but rather the imperfect execution, or even utter non-observance, thereof.
18The Law Commission of India in its 14 th Report categorically stated that, the delay results not

from the procedure laid down by the legislations but by reason of the non-observance of many
of its important provisions particularly those intended to expedite the disposal of proceedings.
Given the huge number of pending cases, the governance and administrative control over
judicial institutions through manual processes has become extremely difficult.19 The Supreme
Court made it clear that this stage of affair must be addressed: ‘An independent and efficient
judicial system in one of the basic structures of our constitution… It is our Constitutional
obligation to ensure that the backlog of cases is declared and efforts are made to increase the
disposal of cases.”20

Wide range of process are defined as alternative dispute redressal process often, dispute
resolution process that are alternative to the adjudication through Court proceedings are
referred to as alternative dispute resolution methods. These methods usually involve a third
party referred to as neutral, a skilled helper who either assists the parties in a dispute or
conflict to reach at a decision by agreement or facilitates in arriving at a solution to the problem
between the party to the dispute.21

The alternative disputes resolution mechanism by the very methodology used, it can preserve
and enhance personal and business relationships that might otherwise be damages by the
adversarial process. It is also flexible because it allows the contestants to choose procedures,
which fir the nature of the dispute and the business context in which it occurs.

The term “Alternative Disputes Resolution” takes in its fold, various modes of settlement
including, Lok Adalats, arbitration, conciliation and Mediation. This technique of Alternative
Disputes Resolution has been used by many countries for effective disputes resolution. The
most common types of Alternative Disputes Resolution is Mediation. In, fact mediation had

17
The Preamble of Indian Constitution
18
Law Commission of India, 77 th Report, pr. 4.1.
19
In all, 33,79,033 cases are pending before the High Courts. As on December 31, 2004, the total number of civil
cases are pending before the subordinate judiciary is 82,36,254 and criminal cases pending are 1,95,85,776. The
total pendency thus is 2,78,22,030. This shows that out of the total national pendency at the subordinate Courts
level, 70% is criminal cases and the remaining is civil cases. The total number of district and subordinate Courts are
12,401. These Courts are located in 2,066 towns.
20
Brij Mohan Lal vs. Union of India & Other (2002-4-scale-433), May 6, 2002
21
Tania Sourdin, Alternative Dispute Resolution. p. 4
been described by some as the most Appropriate Dispute Resolution method. Mediation as a
tool for dispute resolution is not a new concept. To put it in simple terms, mediation is an
amicable settlement of disputes with the involvement of a neutral third party who acts as a
facilitator and is called a ‘Mediator”.

ADR is usually less formal, less expensive and less time-consuming then regular trial. ADR can
also give people more opportunity to determine when and how their dispute will be resolved.
DIFFERENT TYPES OF ALTERNATIVE DISPUTE RESOLUTIONS: -

The most common types of ADR for civil cases are Arbitration, Conciliation, Mediation, Judicial
Settlement and Lok Adalat.

In India, the Parliament has amended the Civil Procedure Code by inserting Section 89 as well
as Order 10 Rule 1-A to 1-C. Section 89 of the Civil Procedure Code provides for the settlement
of disputes outside the Court. It is based on the recommendations made by the Law
Commission of India and Malimath Committee. It was suggested by the Law Commission of
India that the Court may require attendance of any party to the suit or proceedings to appear in
person with a view to arriving at an amicable settlement of dispute between the parties and
make an attempts to settle the dispute between the parties amicably. Malimath Committee
recommended to make it obligatory for the Court to refer the dispute, after issues are framed,
for settlement either by way of Arbitration, Conciliation, Mediation, Judicial Settlement through
Lok Adalat. It is only when the parties fail to get their disputes settled through any of the
alternate disputes resolution method that the suit could proceed

further. In view of the above, new Section 89 has been inserted in the Code in order to provide
for alternative dispute resolution.

It is worthwhile to refer Section 89 of the Civil Procedure Code, which runs as follows: -

Sec. 89. Settlement of disputes outside the court. –

(1) Where it appears to the Court that there exist elements of a settlement which may be
acceptable to the parties, the Court shall formulate the terms of settlement and give them to
the parties for their observations and after receiving the observations of the parties, the Court
may reformulate the terms of a possible settlement and refer the same for –

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) where a dispute has been referred –

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987)
and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok
Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and
such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok
Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed."

On perusal of the aforesaid provisions of Section 89, it transpires that it refers to five types of
ADR procedures, made up of one adjudicatory process i.e. arbitration and four negotiatory i.e.
non adjudicatory processes such as Conciliation, Mediation, Judicial Settlement and Lok Adalat.
The object behind Section 89 is laudable and sound. Resort to ADR process is necessary to give
speedy and effective relief to the litigants and to reduce the pendency in and burden upon the
Courts.

Section 89 has to be read with Rule 1-A of Order 10, which runs as follows: -

Order 10 Rule 1-A. Direction of the Court to opt for any one mode of alternative dispute
resolution. --After recording the admissions and denials, the Court shall direct the parties to the
suit to opt either mode of the settlement outside the Court as specified in sub- section (1) of
section 89. On the option of the parties, the Court shall fix the date of appearance before such
forum or authority as may be opted by the parties.

Order 10 Rule 1-B. Appearance before the conciliatory forum or authority. --Where a suit is
referred under rule 1A, the parties shall appear before such forum or authority for conciliation
of the suit.

Order 10 Rule 1-C. Appearance before the Court consequent to the failure of efforts of
conciliation. --Where a suit is referred under rule 1A and the presiding officer of conciliation
forum or authority is satisfied that it would not be proper in the interest of justice to proceed
with the matter further, then, it shall refer the matter again to the Court and direct the parties
to appear before the Court on the date fixed by it.

On joint reading of Section 89 read with Rule 1-A of Order 10 of Civil Procedure Code, it
transpires that the Court to direct the parties to opt for any of the five modes of the Alternative
Dispute Resolution and on their option refer the matter.
Thus, the five different methods of ADR can be summarized as follows: -

1. Arbitration

2. Conciliation

3. Mediation

4. Judicial Settlement &

5. Lok Adalat

ARBITRATION:

Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of
disputes outside the courts, where the parties to a dispute refer it to one or more persons –
arbitrators, by whose decision they agree to be bound. It is a resolution technique in which a
third party reviews the evidence in the case and imposes a decision that is legally binding for
both sides and enforceable. There are limited rights of review and appeal of Arbitration awards.
Arbitration is not the same as judicial proceedings and Mediation.

Arbitration can be either voluntary or mandatory. Of course, mandatory Arbitration can only
come from statute or from a contract that is voluntarily entered into, where the parties agree
to hold all existing or future disputes to arbitration, without necessarily knowing, specifically,
what disputes will ever occur.

The advantages of Arbitration can be summarized as follows: -

a) It is often faster than litigation in Court.

b) It can be cheaper and more flexible for businesses.

c) Arbitral proceedings and an arbitral award are generally non-public, and can be made
confidential.

d) In arbitral proceedings the language of arbitration may be chosen, whereas in judicial

proceedings the official language of the competent Court will be automatically applied.

e) There are very limited avenues for appeal of an arbitral award.

f) When the subject matter of the dispute is highly technical, arbitrators with an appropriate
degree of expertise can be appointed as one cannot choose judge in litigation.

However, there are some disadvantages of the Arbitration, which may be summarized as
follows: -
a) Arbitrator may be subject to pressures from the powerful parties.

b) If the Arbitration is mandatory and binding, the parties waive their rights to access the
Courts.

c) In some arbitration agreements, the parties are required to pay for the arbitrators, which add
an additional cost, especially in small consumer disputes.

d) There are very limited avenues for appeal, which means that an erroneous decision cannot
be easily overturned.

e) Although usually thought to be speedier, when there are multiple arbitrators on the penal,
juggling their schedules for hearing dates in long cases can lead to delays.

f) Arbitration awards themselves are not directly enforceable. A party seeking to enforce
arbitration award must resort to judicial remedies.

In view of provisions of Section 89 of the Civil Procedure Code, if the matter is referred to the
Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will govern the
case.

CONCILIATION:

Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a
conciliator, who meets with the parties separately in order to resolve their differences. They do
this by lowering tensions, improving communications, interpreting issues, providing technical
assistance, exploring potential solutions and bring about a negotiated settlement. It differs
from Arbitration in that.

Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt
to resolve their dispute by conciliation. The process is flexible, allowing parties to define the
time, structure and content of the conciliation proceedings. These proceedings are rarely
public. They are interest-based, as the conciliator will when proposing a settlement, not only
take into account the parties' legal positions, but also their; commercial, financial and /or
personal interests.22 The terms conciliation and mediation are interchangeable in the Indian
context. Conciliation is a voluntary process whereby the conciliator, a trained and qualified
neutral, facilitates negotiations between disputing parties and assists them in understanding
their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement.
Conciliation involves discussions among the parties and the conciliator with an aim to explore
sustainable and equitable resolutions by targeting the existent issues involved in the dispute

22
http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/
and creating options for a settlement that are acceptable to all parties. The conciliator does not
decide for the parties, but strives to support them in generating options in order to find a
solution that is compatible to both parties. The process is risk free and not binding on the
parties till they arrive at and sign the agreement. Once a solution is reached between the
disputing parties before a conciliator, the agreement had the effect of an arbitration award and
is legally tenable in any court in the country.23

Most commercial disputes, in which it is not essential that there should be a binding and
enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable
where the parties in dispute wish to safeguard and maintain their commercial relationships.

The following types of disputes are usually conducive for conciliation:

• commercial,

• financial,

• family,

• real estate,

• employment, intellectual property,

• insolvency,

• insurance,

• service,

• partnerships,

• environmental and product liability.

Apart from commercial transactions, the mechanism of Conciliation is also adopted for settling
various types of disputes such as labour disputes, service matters, antitrust matters, consumer
protection, taxation, excise etc

23
http://www.ficci-arbitration.com/htm/whatisconcialation.htm
Conciliation proceedings24:

Either party to the dispute can commence the conciliation process. When one party invites the
other party for resolution of their dispute through conciliation, the conciliation proceedings are
said to have been initiated. When the other party accepts the invitation, the conciliation
proceedings commence. If the other party rejects the invitation, there are no conciliation
proceedings for the resolution of that dispute. Generally, only one conciliator is appointed to
resolve the dispute between the parties. The parties can appoint the sole conciliator by mutual
consent. If the parties fail to arrive at a mutual agreement, they can enlist the support of any
international or national institution for the appointment of a conciliator. There is no bar to the
appointment of two or more conciliators. In conciliation proceedings with three conciliators,
each party appoints one conciliator. The third conciliator is appointed by the parties by mutual
consent. Unlike arbitration where the third arbitrator is called the Presiding Arbitrator, the third
conciliator is not termed as Presiding conciliator. He is just the third conciliator. The conciliator
is supposed to be impartial and conduct the conciliation proceedings in an impartial manner.
He is guided by the principles of objectivity, fairness and justice, and by the usage of the trade
concerned and the circumstances surrounding the dispute, including any previous business
practices between the parties. The conciliator is not bound by the rules of procedure and
evidence. The conciliator does not give any award or order. He tries to bring an acceptable
agreement as to the dispute between the parties by mutual consent. The agreement so arrived
at is signed by the parties and authenticated by the conciliator. In some legal systems, the
agreement so arrived at between the parties resolving their dispute has been given the status
of an arbitral award. If no consensus could be arrived at between the parties and the
conciliation proceedings fail, the parties can resort to arbitration.

A conciliator is not expected to act, after the conciliation proceedings are over, as an arbitrator
unless the parties expressly agree that the conciliator can act as arbitrator. Similarly, the
conciliation proceedings are confidential in nature. Rules of Conciliation of most of the
international institutions provide that the parties shall not rely on or introduce as evidence in
arbitral or judicial proceedings,

(a) the views expressed or suggestions made for a possible settlement during the conciliation
proceedings;

(b) admissions made by any party during the course of the conciliation proceedings;

(c) proposals made by the conciliator for the consideration of the parties;

24
Conciliation as an Effective Mode of Alternative Dispute Resolving System Dr. Ujwala Shinde Principal I/C Shri.
Shivaji Maratha Society’s Law College Pune University Maharashtra. India
(d) the fact that any party had indicated its willingness to accept a proposal for settlement
made by the conciliator; and that the conciliator shall not be produced or presented as a
witness in any such arbitral or judicial proceedings.

Conciliation has received statutory recognition as it has been proved useful that before
referring the dispute to the civil court or industrial court or family court etc, efforts to concile
between the parties should be made. It is similar to the American concept of court-annexed
mediation. However without structured procedure & statutory sanction, it was not possible for
conciliation to achieve popularity in the countries like USA & also in other economically
advanced countries

Justice M. Jagannadha Rao has, in the article “CONCEPTS OF CONCILIATION AND MEDIATION
AND THEIR DIFFERENCES”, stated as under:25

“In order to understand what Parliament meant by ‘Conciliation’, we have necessarily to refer
to the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act. It is true, section 62 of
the said Act deals with reference to ‘Conciliation’ by agreement of parties but sec. 89 permits
the Court to refer a dispute for conciliation even where parties do not consent, provided the
Court thinks that the case is one fit for conciliation. This makes no difference as to the meaning
of ‘conciliation’ under sec. 89 because; it says that once a reference is made to a ‘conciliator’,
the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be gathered from the 1996
Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act is, it may be noted,
based on the UNCITRAL Rules for conciliation.

Now under section 65 of the 1996 Act, the ‘conciliator’ may request each party to submit to
him a brief written statement describing the “general nature of the dispute and the points at
issue”. He can ask for supplementary statements and documents. Section 67 describes the role
of a conciliator.

Sub-section (1) states that he shall assist parties in an independent and impartial manner.
Subsection (2) states that he shall be guided by principles of objectivity, fairness and justice,
giving consideration, among other things, to the rights and obligations of the parties, the usages
of the trade concerned and the circumstances surrounding the dispute, including any previous
business practices between the parties. Subsection (3) states that he shall take into account
“the circumstances of the case, the wishes the parties may express, including a request for oral
statements”.

25
Judge, Supreme Court of India. See http://lawcommissionofindia.nic.in/ adr_conf/concepts
%20med%20Rao%201.pdf
 Subsection (4) is important and permits the ‘conciliator’ to make proposals for a settlement. It
states as follows:

“Section 67(4) - The conciliator may, at any stage of the conciliation proceeding, make
proposals for a settlement of the dispute. Such proposals need not be in writing and need not
be accompanied by a statement of the reasons therefor.”

Section 69 states that the conciliator may invite parties to meet him.

Sec. 70 deals with disclosure by the conciliator of information given to him by one party, to the
other party.

Sec. 71 deals with cooperation of parties with the conciliator, sec. 72 deals with suggestions
being submitted to the conciliator by each party for the purpose of settlement.

Finally, Sec. 73, which is important, states that the conciliator can formulate terms of a possible
settlement if he feels there exist elements of a settlement. He is also entitled to ‘reformulate
the terms’ after receiving the observations of the parties. Subsection (1) of sec. 73 reads thus:

“Sec. 73(1) settlement agreement.

(1) When it appears to the Conciliator that there exist elements of a settlement which may be
acceptable to the parties, he shall formulate the terms of a possible settlement and submit
them to the parties for their observations. After receiving the observations of the parties, the
Conciliator may reformulate the terms of a possible settlement in the light of such
observations.”

The above provisions in the 1996 Act, make it clear that the ‘Conciliator’ under the said Act,
apart from assisting the parties to reach a settlement, is also permitted to make “proposals for
a settlement” and “formulate the terms of a possible settlement” or “reformulate the terms”.
This is indeed the UNCITRAL concept.”

MEDIATION:

Now, worldwide mediation settlement is a voluntary and informal process of resolution of

disputes. It is a simple, voluntary, party centered and structured negotiation process, where a
neutral third party assists the parties in amicably resolving their disputes by using specified
communication and negotiation techniques. Mediation is a process where it is controlled by the
parties themselves. The mediator only acts as a facilitator in helping the parties to reach a
negotiated settlement of their dispute. The mediator makes no decisions and does not impose
his view of what a fair settlement should be.26

In the mediation process, each side meets with a experienced neutral mediator. The session
begins with each side describing the problem and the resolution they desire – from their point
of view. Once each sides’ respective positions are aired, the mediator then separates them into
private rooms, beginning a process of “Caucus Meeting” and thereafter “joint meetings with
the parties”. The end product is the agreement of both the sides. The mediator has no power to
dictate his decision over the party. There is a win – win situation in the mediation.

The chief advantages of the mediation are : -

1. The agreement which is that of the parties themselves;

2. The dispute is quickly resolved without great stress and expenditure;

3. The relationship between the parties are preserved; and

4. The confidentiality is maintained.

26
An Article “Disputes among Business Partners should be Mediated or Arbitrated, Not Litigated” by William
Sheffield, Judge, Supreme Court of California (Ret.) published in book “Alternative Dispute Resolution – What it is
and how it works” Edited by P. C. Rao and William Sheffield, page No.291
EVOLUTION OF MEDIATION IN INDIA27

The first elaborate training for mediators was conducted in Ahmedabad in the year 2000 by
American trainers sent by Institute for the Study and Development of Legal Systems (ISDLS). On
27th July 2002, the Chief Justice of India, formally inaugurated the Ahmedabad Mediation
Centre, reportedly the first lawyer-managed mediation centre in India. The Chief Justice of India
called a meeting of the Chief Justices of all the High Courts of the Indian States in November
2002 at New Delhi to impress upon them the importance of mediation and the need to
implement Sec. 89 of Civil Procedure Code. Institute for Arbitration Mediation Legal Education
and Development (AMLEAD) and the Gujarat Law Society introduced, in January 2003, a thirty-
two hours Certificate Course. The Chennai Mediation Centre was inaugurated on 9th April 2005
and it started functioning in the premises of the Madras High Court. This became the first
Court-Annexed Mediation centre in India. MCPC has been taking the lead in evolving policy
matters relating to the mediation. The committee has decided that 40 hours training and 10
actual mediation was essential for a mediator. The committee was sanctioned a grant-in-aid by
the department of Legal Affairs for undertaking mediation training programme, referral judges
training programme, awareness programme and training of trainers programme. With the
above grant-in-aid, the committee has conducted till March 2010, 52 awareness programmes/
referral judges training programmes and 52 Mediation training programmes in various parts of
the country. About 869 persons have undergone 40 hours training. The committee is in the
process of finalising a National Mediation Programme. Efforts are also made to institutionalise
its functions and to convert it as the apex body of all the training programmes in the country.
The Law Commission prepared consultation papers on Mediation and Case Management and
framed and circulated model Rules. The Supreme Court approved the model rules and directed
every High Court to frame them.28 The Law Commission of India organised an International
conference on Case Management, Conciliation and Mediation at New Delhi on 3rd and 4th May
2003, which was a great success. Delhi District Courts invited ISDLS to train their Judges as
mediators and help in establishing court-annexed mediation centre. Delhi High Court started its
own lawyers managed mediation and conciliation centre. Karnataka High Court also started a
court-annexed mediation and conciliation centre and trained their mediators with the help of
ISDLS. Mandatory mediation through courts has now a legal sanction. Court-Annexed
Mediation and Conciliation Centres are now established at several courts in India and the
courts have started referring cases to such centres. In Court-Annexed Mediation the mediation
services are provided by the court as a part and parcel of the same judicial system as against
Court-Referred Mediation, wherein the court merely refers the matter to a mediator. One
feature of court-annexed mediation is that the judges, lawyers and litigants become

27
https://india.gov.in/official-website-delhi-mediation-centre
28
http://highcourtmediationcentrelucknow.gov.in/
participants therein, thereby giving them a feeling that negotiated settlement is achieved by all
the three participants in the justice delivery system. When a judge refers a case to the court-
annexed mediation service, keeping overall supervision on the process, no one feels that the
system abandons the case. The Judge refers the case to a mediator within the system. The
same lawyers who appear in a case retain their briefs and continue to represent their clients
before the mediators within the same set-up. The litigants are given an opportunity to play
their own participatory role in the resolution of disputes. This also creates public acceptance for
the process as the same time-tested court system, which has acquired public confidence
because of integrity and impartiality, retains its control and provides an additional service. In
court-annexed mediation, the court is the central institution for resolution of disputes.29 Where
ADR procedures are overseen by the court, at least in those cases which are referred through
courts, the effort of dispensing justice can become well-coordinated. ADR services, under the
control, guidance and supervision of the court would have more authenticity and smooth
acceptance. It would ensure the feeling that mediation is complementary and not competitive
with the court system. The system will get a positive and willing support from the judges who
will accept mediators as an integral part of the system. If the reference to mediation is made by
the judge to the court annexed mediation services, the mediation process will become more
expeditious and harmonised. It will also facilitate the movement of the case between the court
and the mediator faster and purposeful. Again, it will facilitate reference of some issues to
mediation leaving others for trial in appropriate cases. Court annexed mediation will give a
feeling that court’s own interest in reducing its caseload to a manageable level is furthered by
mediation and therefore reference to mediation will be a willing reference. Court annexed
mediation will thus provide an additional tool to the same system providing continuity to the
process, and above all, the court will remain a central institution for the system. This will also
establish a public-private partnership between the court and the community. A popular feeling
that the court works hand-in-hand with mediation facility will produce satisfactory and faster
settlements.

29
http://supremecourtofindia.nic.in
JUDICIAL SETTLEMENT:

Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one of the mode
of alternative dispute resolution. Of course, there are no specified rules framed so far for such
settlement.

However, the term Judicial Settlement is defined in Section 89 of the Code. Of course, it has
been provided therein that when there is a Judicial Settlement the provisions of the Legal
Services Authorities Act, 1987 will apply. It means that in a Judicial Settlement the concerned
Judge tries to settle the dispute between the parties amicably. If at the instance of judiciary any
amicable settlement is resorted to and arrived at in the given case then such settlement will be
deemed to be decree within the meaning of the Legal Services Authorities Act, 1987. Section 21
of the Legal Services Authorities Act, 1987 provides that every award of the Lok Adalat shall be
deemed to be a decree of the Civil Court.
JUDICIAL SETTLEMENT GUIDELINES30

The following are guidelines for judicial settlement ethics:

1. Separation of Functions:

Where feasible, the judicial functions in the settlement and trial phase of a case should be
performed by separate judges.

2. Impartiality and Disqualification:

A judge presiding over a settlement conference is performing judicial functions and, as such,
the applicable provisions of the code of judicial conduct, particularly the disqualification rules,
should apply in the settlement context.

3. Conference Management:

Judges should encourage and seek to facilitate settlement in a prompt, efficient, and fair
manner. They should not, however, take unreasonable measures that are likely under normal
circumstances to cause parties, attorneys, or other representatives of litigants to feel coerced
in the process. The judge should take responsibility in settlement conferences.

4. Setting Ground Rules on Issues Such as Confidentiality, Disclosure and Ex Parte

Communications:

In settlement conferences, judges should establish ground rules at the onset, either orallyor in
writing, informing parties and their attorneys of the procedures that will be followed. The rules
should include ground rules governing issues such as confidentiality, disclosure of facts and
positions during and after conferences, and ex parte communications.

5. Focusing the Discussions:

A judge should use settlement techniques that are both effective and fair, and be mindful of
the need to maintain impartiality in appearance and in fact.

6. Guiding or Influencing the Settlement:

The judge should guide and supervise the settlement process to ensure its fundamental
fairness. In seeking to resolve disputes, a judge in settlement discussions should not sacrifice
justice for expediency.

7. Sanctions or Other Penalties Against Settlement Conference Participants:

30
Goldschmidt and Milford, Judicial Settlement Ethics, American Judicature Society,1996, grant SJI-95-03C-082
from the State Justice Institute; see http://www.judiciary.state.nj.us/ civil/ Judicial SettlementGuidelines.pdf
A judge should not arbitrarily impose sanction or other punitive measures to coerce or penalize
litigants and their attorneys in the settlement process.
AN ANALYSIS ON EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN
INDIAN JUDICIARY31:

The Law Commission of Indian has maintained that, the reason for judicial delay is not a lack of
clear procedural laws, but rather the imperfect execution, or even utter non-observance,
thereof.32 The Law Commission of Indian in its 14th Report categorically stated that, the delay
results not from the procedure lay down by the legislations but by reason of the non-
observance of many of its important provisions particularly those intended to expedite the
disposal of proceedings. Given the huge number of pending cases, the governance and
administrative control over judicial institutions through manual processes has become
extremely difficult.33 The Supreme Court made it clear that this state of affairs must be
addressed: “An independent and efficient judicial system is one of the basic structures of our
Constitution…It is our Constitutional obligation to ensure that the backlog of cases is decreased
and efforts are made to increase the disposal of cases.34

The analysis of the Law Commission of India reports sheds light on the factors contributing
towards delays and huge backlog of cases before the Courts. The prominent contributory
factors are the frequent adjournments at the instance of the clients and lawyers35, the boycotts
of the Courts by the lawyers, shortage of presiding officers of the Tribunals and Courts36, lack of
adherence to basic procedures and principles of case management and disposal.37 The
Government is also known to be a huge contributor to delays, in matters where it is a party at
various stages from evading notices, replying to notices and replying without application of
mind, unnecessarily appealing even when the laws are clearly in favour of the other side.38 The
improper management of Court diary, absence of strict compliance with the provisions of Code
of Civil Procedure such as, provisions of the Order 10 Code of Civil Procedure relating to
examination of parties before framing issues, to ensure narrowing and focusing the area of
controversy, the laxity in enforcing the provisions of Order 8, R 1, Code of Civil Procedure by
allowing repeated adjournments with Order 17, Rule 1, Code of Civil Procedure to be read with
the proviso to Order 17, Rule 2 where Clause (b) for giving adjournments also are the

31
ADR and Access to Justice: Issues and Perspectives, ByHon’ble Justice S.B.Sinha, Judge Supreme Court of India
32
Law Commission of India, 77th Report, pr.4.1..
33
In all, 33,79,033 cases are pending before the High Courts. As on December 31, 2004, the total number of civil
cases pending before the subordinate judiciary is 82,36,254 and criminal cases pending are 1,95,85,776. The total
pendency thus is 2,78,22,030. This shows that out of the total national pendency at the subordinate Courts level,
70% is criminal cases and the remaining is civil cases. The total number of district and subordinate Courts are
12,401. These Courts are located in 2,066 towns.
34
Brij Mohan Lal Vs. Union of India & Others (2002-4-Scale-433), May 6, 2002.
35
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344
36
120th Law Commission Report (1987)
37
77th Law Commission Report (1978)
38
Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39
prominent contributors to the problem of delays and the resultant judicial arrears. The Code of
Civil Procedure (Amendment Act) 2002, Act No. 22 was sought to bring a change in the
procedure in suits and civil proceedings by way of reducing delays and compressing them into a
year's time from institution of suit till disposal and delivery of judgment, yet the revised
procedures are also not strictly adhered to. As a result, the time taken in the final disposal of
the cases by the Courts still runs into years by unduly lengthy and winded examination and
cross examination of witnesses,39 protracted arguments40, inadequate electronic connectivity
and use of information technology and so forth. The problem judicial delay and judicial arrears
are spreading like epidemic at every level of the judicial system and thus it is a major cause of
concern for the very survival of the entire process of litigation.

Alternative dispute resolution was at one point of time considered to be a voluntary act on the
apart of the parties which has obtained statutory recognition in terms of Code of Civil
Procedure Amendment Act, 1999, Arbitration and Conciliation Act, 1996, Legal Services
Authorities Act, 1997 and Legal Services Authorities (Amendment) Act, 2002. The Parliament
apart from litigants and the general public as also the statutory authorities Like Legal Services
Authority have now thrown the ball into the court of the judiciary. What therefore, now is
required would be implementation of the Parliamentary object. The access to justice is a
human right and fair trial is also a human right. In some countries trial within a reasonable time
is a part of the human right legislation. But, in our country, it is a Constitutional obligation in
terms of Article 14 and 21. Recourse to alternative dispute resolution as a means to have access
to justice may, therefore, have to be considered as a human right problem. Considered in that
context the judiciary will have an important role to play.

Even before the existence of Section 89 of the Civil Procedure Code, there were various
provisions that gave the power to the courts to refer disputes to mediation, which sadly have
not really been utilized. Such provisions, inter alia, are in the Industrial Disputes Act, the Hindu
Marriage Act and the Family Courts Act and also present in a very nascent form via Section 80,
Order 32 A and Rule 5 B of Order 27 of the Code of Civil Procedure. A trend of this line of
thought can also be seen in ONGC Vs. Western Co. of Northern America and ONGC Vs. Saw
Pipes Ltd. Industrial Disputes Act, 1947 provides the provision both for conciliation and
arbitration for the purpose of settlement of disputes.

Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before
granting relief under this Act, the Court shall in the first instance, make an endeavor to bring
about a reconciliation between the parties, where it is possible according to nature and
circumstances of the case.

39
The 14th and 77th Law Commission Reports.
40
79th Law Commission Report (1979) on delays and arrears.
For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period
and refer the matter to person nominated by court or parties with the direction to report to the
court as to the result of the reconciliation. [Section 23(3) of the Act].

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with
a view to promote conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matter connected therewith by adopting an approach
radically different from that ordinary civil proceedings.41 Section 9 of the Family Courts Act,
1984 lays down the duty of the family Court to assist and persuade the parties, at first instance,
in arriving at a settlement in respect of subject matter. The Family Court has also been
conferred with the power to adjourn the proceedings for any reasonable period to enable
attempts to be made to effect settlement if there is a reasonable possibility.

Section 80(1) of Code of Civil Procedure lays down that no suit shall be instituted against
government or public officer unless a notice has been delivered at the government office
stating the cause of action, name, etc. The object of Section 80 of Code of Civil Procedure – the
whole object of serving notice u/s 80 is to give the government sufficient warning of the case
which is of going to be instituted against it and that the government, if it so wished can settle
the claim without litigation or afford restitution without recourse to a court of laws.42

The object of section 80 is to give the government the opportunity to consider its or his legal
position and if that course if justified to make amends or settle the claim out of court.43 Order
23 Rule 3 of Code of Civil Procedure is a provision for making an decree on any lawful
agreement or compromise between the parties during the pendency of the suit by which claim
is satisfied or adjusted. The scheme of Rule 3 of Order 23 proves that if the court is satisfied
that a suit has been adjusted wholly or partly by and lawful agreement or compromise, the
court shall pass a decree in accordance to that. Order 23, Rule 3 gives mandate to the Court to
record a lawful adjustment or compromise and pass a decree in term of such compromise or
adjustment.

Order 27 Rule 5B confers a duty on court in suit against the government or a public officer to
assist in arriving at a settlement. In a suit where Government or public officer is a party it shall
be the duty of the Court to make an endeavor at first instance, where it is possible according to
the nature of the case, to assist the parties in arriving at a settlement. If it appears to the court
in any stage of the proceedings that there is a reasonable possibility of a settlement, the court
may adjourn the proceeding to enable attempts to be made to effect settlement.

41
K.A.AbdulJalees v. T.A.Sahida (2003) 4 SCC 166
42
GhanshyamDass v. Domination of India, (1984) 3 SCC 46
43
Raghunath Das v. UOI AIR 1969 SC 674
Order 32A of Code of Civil Procedure lays down the provision relating to “suits relating to
matter concerning the family”. It was felt that ordinary judicial procedure is not ideally suited to
the sensitive area of personal relationships. Litigations involving affairs of the family seem to
require special approach in view of the serious emotional aspects involved. In this
circumstances, the objective of family counseling as a method of achieving the object of
preservation of family should be kept in forefront. Therefore, Order 32A seeks to highlight the
need for adopting a different approach where matters concerning the family are at issue,
including the need for effort to bring about amicable settlement.

The provisions of this Order applies to all proceedings relating to family, like guardianship,
custody of minor, maintenance, wills, succession, etc., Rule 3 imposes a duty on the Court to
make an effort of settlement by way of providing assistance where it is possible to do so. The
Court may also adjourns the proceeding if it thinks fir to enable attempt to be made to effect a
settlement where there is a reasonable possibility of settlement.

In discharge of this duty Court may take assistance of welfare expert who is engaged in
promoting the welfare of the family. [Rule 4]

The concept of employing alternative dispute resolution has undergone a sea change with the
insertion of S.89 of Code of Civil Procedure by amendment in 2002. As regards the actual
content, s.89 of Code of Civil Procedure lays down that where it appears to the court that there
exists element of settlement, which may be acceptable to the parties, the Court shall formulate
the terms of the settlement and give them to the parties for their comments. On receiving the
response from the parties, the Court may formulate the possible settlement and refer it to
either:- Arbitration, Conciliation; Judicial Settlement including settlement through Lok Adalats;
or Mediation. As per sub-section (2) of Section 89, when a dispute is referred to arbitration and
conciliation, the provisions of Arbitration and Conciliation Act will apply. When the Court refers
the dispute of Lok Adalats for settlement by an institution or person, the Legal Services
Authorities, Act, 1987 alone shall apply. Supreme Court started issuing various directions as so
as to see that the public sector undertakings of the Central Govt. and their counterparts in the
States should not fight their litigation in court by spending money on fees on counsel, court
fees, procedural expenses and waiting public time.26

In ONGC v. Collector of Central Excise44, there was a dispute between the public sector
undertaking and Government of India involving principles to be examined at the highest
governmental level. Court held it should not be brought before the Court wasting public money
any time.

44
see Oil and Natural Gas Commission v. Collector of Central Excise, 1992 Supp2 SCC 432, Oil and Natural Gas
Commission v. Collector of Central Excise, 1995 Supp4 SCC 541 and Chief Conservator of Forests v. Collector,
(2003) 3 SCC 472
In ONGC v. Collector of Central Excise,45 dispute was between government department and
PSU. Report was submitted by cabinet secretary pursuant to Supreme Court order indicating
that an instruction has been issued to all departments. It was held that public undertaking to
resolve the disputes amicably by mutual consultation in or through or good offices empowered
agencies of govt. or arbitration avoiding litigation. Government of India directed to constitute a
committee consisting of representatives of different departments. To monitor such disputes
and to ensure that no litigation comes to court or tribunal without the Committee’s prior
examination and clearance. The order was directed to communicate to every High Court for
information to all subordinate courts.

In Chief Conservator of Forests v. Collector46 were relied on and it was said that state/union
govt. must evolve a mechanism for resolving interdepartmental controversies- disputes
between department of Government cannot be contested in court.

In Punjab & Sind Bank v. Allahabad Bank47, it was held that the direction of the Supreme Court
in ONGC III48 to the government to setup committee to monitor disputes between government
departments and public sector undertakings make it clear that the machinery contemplated is
only to ensure that no litigation comes to court without the parties having had an opportunity
of conciliation before an in-house committee.

In the judgment of the Supreme Court of India in Salem Bar Association vs. Union of India49, the
Supreme Court 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. The rule is
framed as “Alternative Dispute Resolution and Mediation Rules, 2003”.

Rule 4 of the Alternative Dispute Resolution and Mediation Rules, 2003”, lays down that the
Court has to give guidance to parties (when parties are opting for any mode of Alternative
Dispute Resolution) by drawing their attention to the relevant factors which parties will have to
take into account, before they exercise their opinion as to the particular mode of settlement,
namely;

(i) It will be to the advantage of the parties, so far as time and expense are concerned, to opt
for one of these modes of settlement rather than seek a trial on the disputes arising in the suit;

45
1992 Supp2 SCC 432,[ ONGC I]
46
(2003) 3 SCC 472 ONGC I AND II
47
(2006) (3) SCALE 557
48
(2004) 6 SCC 437
49
(2005) 6 SCC 344
(ii) Where there is no relation between the parties which requires to be preserved, it will be in
the interests of the parties to seek reference of the matter to arbitration as envisaged in clause
(1) of sub-section (1) of sec.89.

(iii) Where there is a relationships between the parties which requires to be preserved, it will be
in the interests of the parties to seek reference of the matter to conciliation or mediation, as
envisaged in clauses (b) or (d) of sub-section (1) of sec.89. The Rule also says that Disputes are
arising in matrimonial, maintenance and child custody matters shall, among others, be treated
as cases where a relationship between the parties has to be preserved.

(iv) where parties are interested in a final settlement which may lead to a compromise, it will
be in the interests of the parties to seek reference of the matter to judicial settlement including
Lok Adalat as envisaged in clause (c) of sub-section(1) of section 89. According to Rule 8, the
provisions of these Rules may be applied to proceedings before the Courts, including Family
courts constituted under the Family Courts (66 of 1984), while dealing with matrimonial, and
child custody disputes.

There is need for greater use of alternate dispute resolution. Alternative dispute resolution is
required when there is need for

(i) going into lesser depth of procedures, or more informal and less technical procedures, or
special procedures;

(ii) the decision-maker or facilitator to be familiar with the or otherwise conversant with the
subject. In many technical matters, it eliminates the need to give evidence or even ‘educate’
the decision-maker thereby enabling lesser costs, and greater speed and accuracy; and

(iii) adopting and encouraging ‘give and take’ by each. This occurs in many situations,
particularly where reasoning/ moral justification advanced by one is likely to persuade the
other to more readily relent. It is wrong to send parties to alternative dispute resolution simply
because the courts are not able to decide the cases in a reasonable time. The principle behind
alternative dispute resolution as also the need thereof must be understood in its correct
perspective. To emphasize further, pressing for alternative dispute resolution systems without
first resolving the problem of delays before the courts is only driving people to alternative
dispute resolution out to helplessness and giving them a feeling that “It takes so long for the
court to decide and the cost of attending to all the hearings is so much that it is as good as
justice denied.

So whatever little alternative dispute resolution has to offer, we might as well accept, and more
than that, we cannot except”. Although alternative dispute resolution systems are essential,
and great attention and effort must go towards them to make successful, it is necessary that
apart from many other factors, improvement in the functioning of the courts is brought first.
Thereafter alternative dispute resolution be encouraged, but confined to matters where it is
more suitable/ appropriate as compared to the ’efficient and proper’ court procedures. It
should not merely be regarded as an escape route form the inability of the courts to dispense
justice in time.
LOK ADALAT:

The concept that is gaining popularity is that of Lok Adalats or people’s courts as established by
the government to settle disputes through conciliation and compromise. It is a judicial
institution and a dispute settlement agency developed by the people themselves for social
justice based on settlement or compromise reached through systematic negotiations. The first
Lok Adalats was held in Una aim the Junagadh district of Gujarat State as far back as 1982. Lok
Adalats accept even cases pending in the regular courts within their jurisdiction.

Section 89 of the Civil Procedure Code also provides as to referring the pending Civil disputes to
the Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of the Legal
Services Authorities Act, 1987 will apply. So far as the holding of Lok Adalat is concerned,
Section 19 of the Legal Services Authorities Act, 1987 provides as under: -

Section 19 Organization of Lok Adalats .

(1) Every State Authority or District Authority or the Supreme Court Legal Services Committee
or every High Court Legal Services Committee or, as the case may be, Taluka Legal Services
Committee may organise Lok Adalats at such intervals and places and for exercising such
jurisdiction and for such areas as it thinks fit.

(2) Every Lok Adalat organised for an area shall consist of such number of:-

(a) serving or retired judicial officers; and

(b) other persons, of the area as may be specified by the State Authority or the District
Authority or the Supreme Court Legal Services Committee or the High Court Legal Services
Committee, or as the case may be, the Taluka Legal Services Committee, organising such Lok
Adalat.

(3) The experience and qualifications of other persons referred to in clause (b) of sub-section
(2) for Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as
may be prescribed by the Central Government in consultation with the Chief Justice of India.

(4) The experience and qualifications of other persons referred to in clause (b) of sub-section
(2) for Lok Adalats other than referred to in sub-section (3) shall be such as may be prescribed
by the State Government in consultation with the Chief Justice of the High Court.

(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of -

(i) any case pending before it; or

(ii) any matter which is falling within the jurisdiction of, and is not brought before any court for
which the Lok Adalat is organised :

Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating
to an offence not compoundable under any law.

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two
other members, usually a lawyer and a social worker. There is no court fee, thus making it
available to those who are the financially vulnerable section of society. In case the fee is already
paid, the same is refunded if the dispute is settled at the Lok Adalat. The Lok Adalat are not as
strictly bound by rules of procedure like ordinary courts and thus the process is more easily
understood even by the uneducated or less educated. The parties to a dispute can interact
directly with the presiding officer, which is not possible in the case of normal court proceedings.

Section 21 of the Legal Services Authorities Act, 1987 is also required to be referred to here
which runs as follows: -

Section 21 Award of Lok Adalat .

(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case
may be, an order of any other court and where a compromise or settlement has been arrived
at, by a Lok Adalat in a case referred to it under subsection (1) of section 20, the court-fee paid
in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of
1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute,
and no appeal shall lie to any court against the award.

In view of the aforesaid provisions of the Legal Services Authorities Act, 1987 if any matter is
referred to the Lok Adalat and the members of the Lok Adalat will try to settle the dispute
between the parties amicably, if the dispute is resolved then the same will be referred to the
concerned Court, which will pass necessary decree therein. The decree passed therein will be
final and binding to the parties and no appeal will lie against that decree.

On the flip side, the main condition of the Lok Adalat is that both parties in dispute have to be
agreeable to a settlement. Also, the decision of the Lok Adalat is binding on the parties to the
dispute and its order is capable of execution through legal process. No appeal lies against the
order of finality attached to such a determination is sometimes a retarding factor for however
be passed by Lok Adalat, only after obtaining the assent of all the parties to dispute. In certain
situations, permanent Lok Adalat can pass an award on merits, even without the consent of
parties. Such an award is final and binding. From that, no appeal is possible.50

This is not to the say that Lok Adalat don’t have many advantages. Lok Adalat are especially
effective in settlement of money claims. Disputes like partition suits, damages and even
matrimonial cases can also be easily settled before a Lok Adalat as the scope for compromise is
higher in these cases. Lok Adalat is a definite boon to the litigant public, where they can get
their disputes settled fast and free of cost. The appearance of lawyers on behalf of the parties,
at the Lok Adalats in not barred.

Lok Adalat are not necessarily alternatives to the existing courts but rather only supplementary
to them. They are essentially win-win systems, an alternative to ‘Judicial Justice’, where all the
parties to the dispute have something to gain. There are certain hybrids of Alternative Dispute
Resolution that also deserve a mention. These processes have evolved in combination of
various Alternative Dispute Resolution mechanisms with the ultimate objective of achieving a
voluntary settlement. The purpose of many of these hybrids is that the principle objective of
achieving a settlement is kept in mind and all permutations and combinations should be utilized
towards that objective to reduce the burden of the adjudicatory process in courts. The different
Alternative Dispute Resolution processes and their hybrids have found solutions to different
nature of disputes and thus the knowledge of these processes can be a significant aid.

50
ADR – Its Facets, by Snajay Kishan Kaul. J. Chairman, Overseeing Committee Delhi High Court, Mediation and
conciliation centre written in SAMADHAN –Reflections – 2006 – 10 page.
DIFFERENCE BETWEEN MEDIATION AND OTHER DISPUTE RESOLUTION PROCESS: -

The alternative dispute resolution procedures can be broadly classified into two groups, first
those that are adjudicative and adversarial, and second those, which are consensual and non-
adversarial. The latter group includes mediation.51

Sir Robert A. Baruch Bush and Joseph P. Folger, in, “The promise of mediation” say that, in any
conflict, the principal objective ought to be to find a way of being neither victims nor
victimizers, but partners in an ongoing human interaction that is always going to involve
instability and conflict.52

There are several types of different dispute redressal methods that have evolved owing to the
different needs and circumstances of the society. The study of the differences between them
will help the disputant in choosing the best and the apt method of resolving their disputes
according to their needs. The dominant form of dispute redressal method that is broadly
adopted for the resolution of a dispute is, by filing of case before the Court of law. With the bird
eye view, it can be said that, in the process of adjudication through Court of law, someone has
to lose among the disputing party. The litigation route has now become slow, expensive, and
uncertain in its outcome. The Courts and Tribunals do not 'resolve' a dispute, but they only
“decide” a dispute or “adjudicate” on them.

Whereas, in the case of mediation, the parties can try to agree with one another, were a
mediator acts as a facilitator. Mediation has the advantage as it can lead to finality because, it
allows for informed and un-coerced decisions to be taken by everyone involved. Disputes are
resolved in the process of mediation through consensual interaction between the disputants.53
The mediator in promoting or in other words, facilitating resolution of the dispute by the
parties themselves does not purport to decide the issue between them. Mediation is more
flexible, quick and less expensive than the process of the study reveals that, litigation produces
provides for fair and just results, but it is procedurally disadvantages as compared to mediation.

Mediation affords a far greater degree of flexibility, relative informality, confidentiality and
control over its resolution.

Comparative study of the process of ‘mediation’ and ‘arbitration’ shows that, mediation is a
form of expedited negotiation. The parties control the outcome. Mediator has no power to
decide. Settlement in the dispute is done only with party approval. Exchange of information is
voluntary and is often limited. Parties exchange information that will assist in reaching a
resolution. Mediator helps the parties define and understand the issues and each side's
51
Manka, ADR: What Is It And Why Do You Need To Know? 47 J Mo Bar 623, 625.
52
See Robert A. Baruch Bush and Joseph P. Folger, The promise of mediation (1994) at 229- 59.
53
Tania Sourdin, Alternative Dispute Resolution,(2002) p 2,3.
interests. Parties vent feelings, tell story, and engage in creative problem solving. Mediation
process is informal and the parties are the active participants. Joint and private meetings
between individual parties and their counsel are held in this process. Outcome based on needs
of parties. Result is mutually satisfactory and finally a relationship may be maintained or
created.

Mediation when compared with arbitration is of low cost. It is private and confidential.
Facilitated negotiation is an art. Mediator is not the decision maker. Mediator is a catalyst. He
avoids or breaks an impasse, diffuse controversy, encourages generating viable options. He has
more control over the process. The process of mediation gives the parties many settlement
options. Relationship of parties is not strained in the process of mediation. There is a high
degree of commitment to settlement. Parties’ participation is there in the decision making
process. Thus, there is no winner and no loser in this process, only the problems are resolved.
In this process the disputed parties maintains the confidentiality of proceedings.54

The Arbitration and Conciliation Act, 1996 has provided for the legislative framework of the
processes of arbitration and conciliation in India. The process of ‘arbitration’ is adjudicative in
nature as the arbitrators control the outcome. Arbitrator is given power to decide. Arbitration
award is final and is a binding decision. Often extensive discovery is required in this process.
Arbitrator listens to facts and evidence and renders an award. The parties present the case, and
testify under oath. The process of arbitration is formal. The attorneys can control the party
participation. Evidentiary hearing is given in this process. No private communication with the
arbitrator is possible. Decision is in the form of award based on the facts, evidence, and law.
The process of arbitration is more expensive than mediation, but less expensive than traditional
litigation. It is a private process between the arbitrator and the disputed parties but in some
cases, decisions are publicly available. Thus, it is an informal procedure, which involves
decision-maker impasse when it is submitted to an Arbitrator. The parties have less control in
the proceedings and the final award, as the decision making process is with the arbitrator.55

The ‘Conciliator’ under the Arbitration and Conciliation Act, 1996, apart from assisting the
parties to reach a settlement, is also permitted to make “proposals for a settlement” and
“formulate the terms of a possible settlement” or “reformulate the terms”. ‘Conciliation’, is a
procedure like mediation but the third party called the conciliator, takes a more interventionist
role in bringing the two parties together and in suggesting possible solutions to help the
disputed parties to reach a settlement. The difference between the process of mediation and
conciliation lies in the fact that, the ‘conciliator’ can make proposals for settlement, ‘formulate’
or ‘reformulate’ the terms of a possible settlement, while a ‘mediator’ would not do so but

54
L, Boulle, Mediation: Principles, process, practice (Butterworths, Sydney,1996) p10-14.
55
P. C. Rao, Secretary General ICADR , Alternative Dispute Resolution (1997) at 19-25.
would merely facilitate a settlement between the parties. Under Section 30 and Section 64(1)
and Section 73(1) of the Arbitration and Conciliation Act, 1996, the conciliator has a greater or a
pro-active role in making proposals for a settlement or formulating and reformulating the terms
of a settlement. A mediator is a mere facilitator. The meaning of these words in India is the
same in the UNCITRAL56 and Conciliation Rules and in UK and Japan. Conciliation and Mediation
process is distinguishable from Arbitration as the parties’ willingness to submit to mediation or
conciliation does not bind them to accept the recommendation of the conciliation or mediator
but an arbitrator’s award, by contrast, is binding on the parties.57

DIFFERENCE BETWEEN CONCILIATION AND MEDIATION58 :

Under our law and the UNCITRAL model, the role of the mediator is not pro-active and is
somewhat less than the role of a ‘conciliator’. We have seen that under Part III of the
Arbitration and Conciliation Act, the ’Conciliator’s powers are larger than those of a ‘mediator’
as he can suggest proposals for settlement. Hence the above meaning of the role of ‘mediator’
in India is quite clear and can be accepted, in relation to sec. 89 of the Code of Civil Procedure
also. The difference lies in the fact that the ‘conciliator’ can make proposals for settlement,
‘formulate’ or ‘reformulate’ the terms of a possible settlement while a ‘mediator’ would not do
so but would merely facilitate a settlement between the parties. Brown quotes59 , which offers
a range of dispute resolution processes, facilitative, evaluative and adjudicative. It is there
stated that conciliation “is a process in which the Conciliator plays a proactive role to bring
about a settlement” and mediator is “a more passive process”.

This is the position in India, UK and under the UNCITRAL model.

However, in the USA, the person having the pro-active role is called a ‘mediator’ rather than a
‘conciliator’. Brown says60 that the term ‘Conciliation’ which was more widely used in the
1970s has, in the 1970s, in many other fields given way to the term ‘mediation’. These terms
are elsewhere often used interchangeably. Where both terms survived, some organizations use
‘conciliation’ to refer to a more proactive and evaluative form of process. However, reverse
usage is sometimes employed; and even in UK, ‘Advisory, Conciliation and Arbitration Service’
(ACAS) (UK) applies a different meaning. In fact, the meanings are reversed. In relation to
‘employment’, the term ‘conciliation’ is used to refer to a mediatory process that is wholly

56
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
57
Robert Merkin, Arbitration Law edn 2004,p 168, para 6.6.
58
Justice M. Jagannadha Rao, Judge Supreme Court of India. See http://lawcommissionofindia.nic.in/
adr_conf/concepts%20med%20Rao%201.pdf
59
(at p 127) the 1997 Handbook of the City Disputes Panel, UK
60
Page 272, ibid.
facilitative and non-evaluative. The definition of ‘conciliation’ formulated by the ILO (1983) is as
follows: “the practice by which the services of a neutral third party are used in a dispute as a
means of helping the disputing parties to reduce the extent of their differences and to arrive at
an amicable settlement or agreed solution. It is a process of orderly or rational discussion under
the guidance of the conciliator.”

However, according to the ACAS, ‘mediation’ in this context involves a process in which the
neutral “mediator takes a more pro-active role than a conciliator for the resolution of the
dispute, which the parties are free to accept or reject. (The ACAS role in Arbitration,
Conciliation and Mediation, 1989). It will be seen that here, the definitions, even in UK, run
contrary to the meanings of these words in UK, India and the UNCITRAL model.

The National Alternative Dispute Resolution Advisory Council, (NADRAC), Barton Act 2600,
Australia61 in its recent publication (ADR terminology, a discussion Paper, at p 15) states that
the terms “conciliation” and “mediation” are used in diverse ways. ( The ‘New” Mediation:
Flower of the East in Harvard Bouquet: Asia Pacific Law Review Vol. 9, No.1, p 63-82 by
Jagtenbury R and de Roo A, 2001). It points out that the words ‘conciliation’ and ‘counselling’
have disappeared in USA. In USA, the word ‘conciliation’ has disappeared and ‘mediation’ is
used for the neutral who takes a pro-active role. For example:

“Whereas the terms ‘conciliation’ and ‘conselling’ have long since disappeared from the
literature in reference to dispute resolution services in the United States and elsewhere, these
terms have remained enshrined in Australian family laws, with ‘mediation’ grafted on as a
separate dispute resolution service in 1991.”

Conversely, policy papers in countries such as Japan still use the term ‘conciliation’ rather than
‘mediation’ for this pro-active process62 report of Justice System Reform Council, 2001,
Recommendations for a Justice System to support Japan in the 21st Century). NADRAC refers,
on the other hand, to the view of the OECD (The Organisation for Economic Co-operation and
Development) Working Party on Information, Security and Privacy and the Committee on
Consumer Policy where ‘conciliation’ is treated as being at the less formal end of the spectrum
while ‘mediation’ is at the more formal end. Mediation is described there as more or less active
guidance by the neutrals. This definition is just contrary to the UNCITRAL Conciliation Rules
which in Art 7(4) states “Article 7(4). The conciliator may, at any stage of the conciliation
proceedings, make proposals for a settlement of the dispute….”

61
www.nadrac.gov.au
62
www.kantei.go.jp/foreign/judiciary/2001/0612.
In an article from US entitled “Can you explain the difference between conciliation and
mediation”63 , a number of conciliators Mr.Wally Warfield, Mr. Manuel Salivas and others treat
‘conciliation’ as less formal and ‘mediation’ as pro-active where there is an agenda and there
are ground rules. In US from the informal conciliation process, if it fails, the neutral person
moves on to a greater role as a ‘conciliator’.

The above article shows that in US the word ‘mediator’ reflects a role which is attributed to a
pro-active conciliator in the UNCITRAL Model. In fact, in West Virginia, ‘Conciliation’ is an early
stage of the process where parties are just brought together and thereafter, if conciliation has
not resulted in a solution, the Mediation programme is applied which permits a more active
role.64 The position in USA, in terms of definitions, is therefore just the otherway than what it is
in the UNCITRAL Conciliation Rules or our Arbitration and Conciliation Act, 1996 where, the
conciliator has a greater role on the same lines as the ‘mediator’ in US.

Under our law, in the context of sec. 30 and sec. 64(1) and sec. 73(1) of the 1996 Act, the
conciliator has a greater or a pro-active role in making proposals for a settlement or
formulating and reformulating the terms of a settlement. A mediator is a mere facilitator. The
meaning of these words in India is the same in the UNCITRAL and Conciliation Rules and in UK
and Japan. But, in USA and in regard to certain institutions abroad, the meaning is just the
reverse, a ‘conciliator’ is a mere ‘facilitator’ whereas a ‘mediator’ has a greater pro-active role.
While examining the rules made in US in regard to ‘mediation’, if we substitute the word
‘conciliation’ wherever the word ‘mediation’ is used and use the word ‘conciliator’ wherever
the word ‘mediator’ is used, we shall be understanding the said rules as we understand them in
connection with ‘conciliation’ in India.

63
http://www.colorodo.edu/conflict/civil-rights/topics/1950.html
64
http://www.state.wv.us/wvhic/Pre-Determination/20comc.htm
DIFFERENCE BETWEEN THE MEDIATION AND ARBITRATION

TOPIC MEDIATION ARBITRATION

Structure of Process Introduction to joint sessions, Claims/ Counter claims,

Causes, Agreement Examination of witnesses,
Arguments
Nature of Process Negotiatory , Collaborative Adjudicatory , Directive

Procedure Non procedural Procedural rules and rules of

evidence
Neutral third party Facilitator Adjudicator

Role of parties/ Advocates Active and Direct Active only during Evidence

Level of formality Informal Formal

DIFFERENCE BETWEEN MEDIATION AND LOK ADALAT

TOPIC MEDIATION LOK ADALAT

Forum Private conferences Only in court premises

Morphology Structured process Persuasion and discussion
Who controls the process Mediator controls structured Presiding officer. Process is
process not structured.
Selection of neutral third party Generally parties Parties do not have say in
selection
Time Reasonable time Time constrains
Who control the Outcomes Parties Presiding officer
Confidentiality Private Public
Depth of Analysis Detailed analysis discussion Casual of facts and law
Types of disputes All types of disputes Recovery / claims disputes
Role of parties Active and direct No Active and direct
ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION:

The benefits or advantages that can be accomplished by the alternative dispute resolution
system are summed up here briefly:

1. The concept of Alternative Dispute Resolution is usually thought of as a voluntary chosen by

the parties because of its greater efficacy and economy.

2. Wide range of process are defined as alternative dispute resolution process often, dispute
resolution process that are alternative to the adjudication through Court proceedings are
referred to as alternative dispute resolution methods. These methods usually involve a third
party referred to as neutral, a skilled helper who either assists the parties in a dispute or
conflict to reach at a decision by agreement or facilitates in arriving at a solution to the problem
between the party to the dispute.

3. Reliable information is an indispensable tool for adjudicator. Judicial proceedings make

halting progress because of reluctance of parties to part with inconvenient information.
Alternative dispute resolution moves this drawback in the judicial system. The truth could be
difficulty found out by making a person stand in the witness-box and he pilloried in the public
gaze. Information can be gathered more efficiently by an informal exchange across the table.

Therefore, alternative dispute resolution is a step towards success where judicial system has
failed in eliciting facts efficiently.65

4. In Mediation or Conciliation, parties are themselves prodded to take a decision, since they
are themselves decision-makers and they are aware of the truth of their position, the obstacle
does not exist.

5. The alternative dispute resolution mechanisms by the very methodology used in it can
preserve and enhance personal and business relationships that might otherwise be damaged by
the adversarial process. The method has strength because it yields enforceable decisions, and is
backed by a judicial framework, which, in the last resort, can call upon the coercive powers of
the State. It is also flexible because it allows the contestants to choose procedures, which fit the
nature of the dispute and the business context in which it occurs. The process of alternative
dispute resolution mechanisms is facilitative, advisory and determinative in nature.

6. The formality involved in the alternative dispute resolution is lesser than traditional judicial
process and costs incurred are very low in alternative dispute resolution.

7. While the cost procedure results in win-lose situation for the disputants.

65
Tania Sourdin , Alternative Dispute Resolution. p 4.
8. Distinct advantages of alternative dispute redressal methods over traditional Court
proceedings are its procedural flexibility. It can be conducted at any time, and in any manner to
which the parties agree. It may be as casual as a discussion around a conference table or as
structured as a private Court trial. Also unlike the Courts, the parties have the freedom to
choose the applicable law, a neutral party to act as Arbitrator or as the Conciliator in their
dispute, on such days and places convenient to them and fix the fees payable to the neutral
party. Alternative dispute resolution methods being a private process between the disputed
parties and the arbitrator, mediator or the conciliator it offers confidentiality, which is generally
not available in Court proceedings. While a Court procedure results in a win-lose situation for
the disputants, in the alternative dispute resolution methods such as Mediation or Conciliation,
it is a win-win situation for the disputants because the solution to the dispute emerges with the
consent of the parties.

9. Alternative dispute resolution systems will help ‘de-congest’ courts.

10. If the alternative dispute resolution systems in operation :

(i) the parties/ disputants will, more likely than not, realize that there exists no real dispute
between them; and

(ii) making an attempts operates as a pre-litigation that may ensure.

11. Finality of the result, cost involved is less, the time required to be spent is less, efficiency of
the mechanism, possibility of avoiding disruption.

12. The Alternative dispute resolution process enables each party to more correctly understand
his case, claim and defense in the backdrop of the admitted facts. Further, it enables each to
access its 'strength’ – from a combination of three factors;

(i) tenability in law/ or prospects of success;

(ii) morality and fairness; and

(iii) the need to overcome technical issues without stifling fairness. With a clear understanding
of these three factors and a balance between them, each party arrives at his notional ‘figure’
for settlement.

Some of the disadvantages that are found on the methods of alternative methods of dispute
resolution are that, the arbitrators is not subject to overturn on appeal may be more likely to
rule according to their personal ideals. Large corporations may exert inappropriate influence in
consumer disputes, pressuring arbitrators to decide in their favor or lose future business. The
burden of paying remuneration for the arbitrators is upon the parties to the dispute, which may
sometime be felt as a burden by the disputants. The parties can cure these difficulties by
prudently entering into the contract and deciding the terms of referring the dispute, before
choosing the alternative dispute redressal forum. The advantages of alternative dispute
resolution methods are so prominent that there is global need and trend to adopt alternative
dispute resolution methods to resolve the dispute as it is quick as well as cheaper than that of
adjudication through Courts of Law. As argued by the father of our Nation Mahatma Gandhi,
the role of law, is to unite the parties and not to riven them.66 As compared to Court
procedures, considerable time and money can be saved in solving the disputes through
alternative dispute resolution procedures67 , which can help in reducing the workload of regular
Courts and in long run can pave way in solving the problem of judicial arrears before the Courts
of law.68

66
Mahatma Gandhi, The story of my experiments with truth 258 (1962).
67
Hiram Chodosh, Global Justice Reform: A Comparative Methodology (2005).
68
A study on the role of alternative dispute resolution methods in reducing the crisis of judicial delays and
arrears with special reference to Pondicherry, by D. Umamaheswari.
SUGGESTIONS BY THE LAW COMMISSION OF INDIA

India now has the wholehearted legislative approval for beneficial law reforms contained in the
Code of Civil Procedure, 1908, The Arbitration and Conciliation Act, 1996 and the Legal Services
Authorities Act, 1987. It is, therefore, necessary to provide guidelines and promote the reforms
extensively by utilising the provisions made in the last-mentioned Act.

 The provisions made in the Arbitration and Conciliation Act, 1996 regarding the process
of conciliation are required to be made applicable to mediation also because there is no
real difference between the two. The High Courts can frame rules under Section 89 (2)
(d) read with Section 122 of the Code of Civil Procedure to make mediation procedures
effective immediately.
 In order to establish ADR as a viable alternative, it is crucial to provide education about
benefits of the process to the community, the members of the Bar and the Courts. It will
be necessary to familiarise the potential consumers of mediation services with the
nature of the process, the ways mediation can benefit them and ways it differs from
arbitration and trial. Equally important is to promote and encourage the managerial
qualities of a judge. Coordinated efforts will have to be promptly started to effectively
use the ADR provisions incorporated in the Code of Civil Procedure, 1908.
 Brochures explaining the availability of mediation and other ADR methods must be
published and handed over to the plaintiffs at the time of filing of the suits and to the
defendants along with the summons of the suit. Directions to the Principal Judges of all
courts in any acceptable modes are required to be issued to all the courts in their
jurisdictions to assign the cases to specific courts and keep the track thereof from the
beginning and enforce the case management techniques.
 To achieve the success in reforms’ implementation, pilot projects in some selected cities
can be introduced so as to utilise the experience later in other courts. A few courts can
be selected to follow mediation and case management procedures on experimental
basis and judges who are allotted such work can be specially selected on the basis of
their aptitude and they can be specially trained for the assignments.
 Cases for the reference to mediation can be categorised initially to include cases having
minimum discovery requirements and maximum settlement elements, such as cases
relating to money recovery, loan default, family disputes, etc.
 A panel of mediators should be immediately formed and for the purpose, programmes
for imparting basic training and orientation to the intending mediators should be
organised. Community leaders, experienced and respected businessmen, retired judges,
experts in different fields, retired bureaucrats and lawyers can be persuaded to serve as
mediators. Bar Councils, Bar Associations and Judicial Academies can join hands to
organise workshops and conferences on the subjects.
  Retired judges, desiring to act as mediators can be persuaded to consciously address a
general concern over the difference between the mindset of a Judge and of a Mediator.
Appointment of retired Judges as mediators can inspire great confidence in the
mediation process amongst the participants with a familiarisation programme with
mediation process to avoid any role confusion.
 International organisations like Asian Development Bank and World Bank, which have
large funds for the developmental purposes, should be approached to provide and
promote international training facilities, to set up pilot projects and specialised
infrastructural facilities for exchange of knowledge and experience and also organise
regional conferences and training the trainers programmes. Formation of joint Bench-
Bar Committees to implement the reformative provisions of law may prove very useful.
 The courts in which the pilot projects are to work, are to be provided with computers
and case tracking facilities and there shall be effective supervision of the pilot projects.
Apart from that, in courts, there shall be intensive training imparted about the basic
ideas to the persons who are going to be in-charge, so that the case management
principles and the schedules and the ADR processes are well-administered.
 State, Municipal Corporations and Government Corporations, who are the largest
litigants, should be drawn into the process of Mediation by framing appropriate
schemes.
 Till Court annexed mediation programmes and proper infrastructural facilities are
established it would be appropriate at least to provide mediation facilities through
private reliable mediation centres run by the Bar Associations and/or non-Governmental
organisations and appropriate funds or grants can be provided to them. It is advisable to
provide such mediation facilities at the doorsteps of the courthouses.69

69
http://lawcommissionofindia.nic.in
CONCLUSION

Alternative Dispute Resolution, since its introduction in the Indian Judicial system, has come a
long way. Mediation centres all over the country have opened up for fast and effective
resolution of disputes. Delhi is one of the cities whose Mediation centre has seen a lot of
success stories in the last decade. Delhi has become one of the first cities in India to
“effectively” reduce its pendency of cases through mediation. The mediation centres in Delhi’s
six district courts have settled over 1 lakh cases in the past ten years and have contributed
significantly in bringing down the pendency in city courts. A variety of cases such as
matrimonial disputes, property rows, minor criminal cases, civil cases and accident cases,
besides old ones and pre-litigation matters, too, have been settled by the six mediation
centres.70

Apart from Delhi, some other states where mediation is gaining ground are Karnataka, Kerala
and Tamil Nadu.

Thus, we can undoubtedly say that ADR as a dispute resolution process has come a long way
and is seeing more and more success stories day by day. It is a boon to the Judicial system. It is
expected that in the near future mediation and other ADR systems will play a big role in fixing
the justice delivery system and making it more efficient by solving the arrears of pending cases
which the judiciary is overburdened with at present.

70
http://timesofindia.indiatimes.com/city/delhi/Mediation-centres-gain-ground-over-1L-cases-solved-in-10-
yrs/articleshow/49306101.cms
“The Law of Win-Win says, “Let’s not do it your
way or my way; let’s do it the best way”.
--- Greg Anderson
 JAMIA MILLIA ISLAMIA

CLINICAL COURSE- III

Topic- Alternative Dispute Resolution in India

Submitted By- Ruchi Sharma Submitted To-

B.A.LL.B.(Hons.) Prof. Dr. Nuzhat Parveen Khan

Semester- IX

Section ‘B’