INTRODUCTION

“Discourage litigation, persuade your neighbours to compromise whenever you can point out to
them how the normal winner is often a looser in fees, expenses, cost and time. As a peace maker,
the lawyer has a superior opportunity of being a good man. There will be business enough.”

- Abraham Lincoln (1809-1865).

 In a rapidly developing society human needs are bound to multiply resulting into conflict of
interests. People become more conscious about their individual rights and litigation becomes an
inevitable part of their life due to rising incidence of disputes among them. The problem is
further compounded when there is lack of discipline in the litigation process and judicial
mechanism finds it difficult to cope up with the enormous caseload. Particularly, in a modern
technologically and economically well advanced society, litigation is a primary means of
resolving disputes. When it fails to meet the need of the people there is oblivious need to search
for new alternative methods of dispute resolution. It is in this context that the alternative modes
of dispute resolution have gained primacy in the present millennium.

The legal system in India is viewed by many as part of ‘colonial legacy’. Undoubtedly, judiciary
is the important institution which has withstood many challenges during the last-more than fifty
years to retain its integrity. But with the mounting pressure of cases especially criminal cases, the
workload of judiciary increased leaps and bound and it has now reached a stage of unmanageable
magnitude and the cases remain undecided for years together for one reason or the other.
The constitution of India ensures “equal access to justice for all”. 1 But the ground reality is that
the law hardly reaches the vulnerable sections of the society here majority of the people are
illiterate, rustic and rural and are ignorant about existence of their legal rights and remedies. And
those who are aware of their right find it difficult to get them translated into reality because of
the legal and procedural ordeals on has to undergo in the process of litigation. The crises
therefore, call for an urgent solution. The cause for such backlog of cases is institutional and the
delay in disposal of the cases is due to procedural laws.2

Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that
are out of court proceedings. Due to fact that pendency of court cases and suits have gone
through roofs, ADR has gained paramount significance in almost every civilized dispensation.
ADR is generally classified into at least four types: negotiation, mediation, collaborative law,
and arbitration. Sometimes a fifth type, conciliation, is included as well, but for present purposes
it can be regarded as a form of mediation.

A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal
matters. Mediation is the most sought after form of ADR, where the issue of criminal justice is
concerned.

DEFINITION OF ADR

Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes in
place of litigation and includes arbitration, mediation, conciliation, expert determination and
early neutral evaluation by a third person. 3 In India, The Arbitration and Conciliation Act, 1996
is a long leap in the direction of Alternative Dispute Resolution system. It is based on
UNCTRAL model.4Prior to the enactment of The Arbitration and Conciliation Act, 1996, none
of these forms of ADR except arbitration had any statutory basis in India. Mediation and
1
The preamble to the constitution of India promises to secure socio-economic and political justice and equality of
status and of opportunity to all the citizens. Art. 39-A contains a directive principle which holds that the state will
ensure that the legal system operates in a manner so as to promote justice to all and to ensure that no citizen is
denied the opportunities of securing justice by reason of economic or any other disability. In addition, Art. 14 of Part
III of the Constitution ensures” Equality before Law and Equal Protection by Law” to all citizens which can only be
realized by providing “equal access to justice”. The SC also enunciated on this principle in Maneka Gandhi vs UOI
(1978) 1 SCC 248, Sheela Barse v. State of Maharashtra AIR 1983 SC 378 , State of Haryana v. Darshana Devi AIR
1979 SC 855.
2
[Report on National Juridicare Equal Justice – Social Justice, Ministry of Law, Justice and Company Affairs
(1977)
3
Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.
Conciliation require an independent third party as mediator or conciliator to assist the parties to
settle their disputes. The expert determination requires independent experts in the subject of
disagreement of the parties to decide the case. Such expert is chosen jointly by the parties and his
decision is binding.

 The objective of ADR as the phrase itself suggest is to resolve disputes of all sorts outside the
traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging from
the purely consensual mode of resolution of disputes to an executive procedure like arbitration,
conciliation or negotiation. ADR thus offers an alternative route for resolution of disputes. The
emphasis in the ADR, which is informal and flexible, is on “helping the parties to help
themselves”5.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. Like arbitration, conciliation and mediation as an alternative means of
settlement of disputes also needs to be popularized.

CHARACTERISTICS OF ADR

Although the characteristics of arbitration, mediation, negotiation and other forms of community
justice vary, all share a few common elements of distinction from the formal judicial structure.
These elements permit them to address development objectives in a manner different from
judicial systems. The common characteristics of ADR are given below:

1. ADR operates without formal representation.

2. ADR program applied the doctrine of Equity.6
3. ADR system includes more direct participation by the disputants in the process.7
4. Gives opportunity for communication between the disputants.
5. Neutral case evaluation system.
6. ADR includes early neutral evaluation.
4
United Nations Commission on International Trade Law (UNCITRAL) prepared a Model Law on international
commercial arbitration in 1985. The General Assembly of the United Nations has recommended that all member
countries should give due consideration to the Model Law, for the desirability of uniformity of the Law of Arbitral
Procedures and the specific needs of International Commercial Arbitration Practice. The United Nations
Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation.
5
Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008.
6
S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications Allahabad, First
edition, 2012, p.03.
7
Ibid
 7. Make scope for family group conference.

The nature of ADR mechanisms can be ascertained from the above mentioned characteristics.
The primary object of ADR movement is avoidance of vexation, expense and delay and
promotion of the ideal of “access of justice” for all. ADR system seeks to provide cheap, simple,
quick and accessible justice. ADR is a process distinct from normal judicial process. Under this,
disputes are settled with the assistance of third party, where proceedings are simple and are
conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the
disputes expeditiously with less expenditure of time, talent money with the decision making
process towards substantial justice, maintaining to confidentiality of subject matter. So, precisely
saying, ADR aims at providing justice that not only resolves dispute but also harmonizes the
relation of the parties.

THE PROBLEM
The present traditional adjudicatory system has failure to provide easy, cheap and expeditious
access to justice. As a result of which, a common man has started looking it, as a foe rather than
a friend. On the other hand India is the largest Democratic Republic Secular State, which has
adopted and followed the doctrine of Welfare State. Consequently Parliament has enacted a
number of legislations to protect poor litigant from inordinate delay, even then there is no change
in the position and there is no speedy disposal of cases and the courts are suffocated by an
already large number of pending cases.

HYPOTHESIS
It is hypothesised that the existing Indian judicial system has some structural defects and it can
be strengthened by creating an alternative forum to settle the pending cases amicably outside the
court hall, with assistance of arbitration and other alternate dispute resolution systems and
thereby regaining faith in judiciary and that the cases can be solved without delay and without
much cost.
OBJECTIVES OF THE STUDY
The present study had the following objectives:

1. The primary objective is to make a critical analysis of the present judicial system, to
understand the reasons for its failure and examine the need to make a paradigm shift in
the dispensation of justice through innovative methods.
2. To study the evolution of Indian judicial system and trace the phases of its growth.
3. To study the present Indian judicial system in order to ascertain factors which cause delay
in the disposal of pending cases.
4. To study alternative dispute resolution methods existing under the present Indian judicial
system, in order to ascertain their scope and usefulness.
5. Lastly to make apt suggestions for improving the system of administration of justice.

METHODOLOGY
The methodology adopted for the study is completely doctrinal, involving content analysis, for
which original sources were consulted for critical appraisal. Relevant books, articles, empirical
studies, reports, statistical data etc., have been studied to get the true picture of the problem and
to outline the remedial measures for it. The standard forms of citations and references are used in
the study.

IMPORTANCE OF THE STUDY

The importance of the study lies in the fact that it analyses the inherent defects present in Indian
judicial system and offers valuable suggestions for its improvement. It explores the ways by
which alternative disputes resolution methods could be appropriately employed for securing
justice and promise harmony in the society. It is believed that the study will be to be useful to
advocates, judges, litigants, academicians, social activists, especially voluntary organizations in
terms of settling dispute in speedy way without incurring much cost and thereby reduce
unnecessary delay in resolving the dispute which is presently found in the present Indian judicial
system. Lastly, the importance of the study lies in the fact it makes original contribution in the
field of law and serves the cause of justice on the basis of equality.

SCHEME OF THE STUDY

The investigation into the problem is planned and spreads in following chapters:

CHAPTER-1: Introduction –This Chapter elucidates the problem, the objectives of the study,
importance and the methodology.

CHAPTER -2: Evolution of the Indian Judicial System – In this chapter an attempt has been
made to trace the origin and development of Indian judicial system through different periods i.e.
the ancient India, the Mughal and the British India period. Further the study also focuses on
nature, gradation, jurisdiction, composition, powers and functions of courts of ancient India.
Apart from this, the study also focuses upon the procedure which was followed by these courts.

CHAPTER-3: The Present Indian Judicial System: An Analysis –In this chapter the present
Indian judicial system has been analysed with reference to the hierarchy of the courts. Further the
study also focuses upon the judicial procedure followed by these courts, scope for ADR in the
existing administration of justice, the lacunae existing in the present Indian judicial system,
which cause inordinate delay in the disposal of cases.

CHAPTER-4: An Overview of Alternative Dispute Resolution System - Under this chapter

different ADRs Mechanisms like negotiation, mediation, conciliation, and arbitration, Lok
Adalats and Permanent Lok Adalat, Mini- Trial, Med- Arb, E.N.E, DRB & DAB along with
lacunae involved in these mechanisms have been analysed thoroughly and critically.

CHAPTER- 5: Mediation & Conciliation – This chapter elaborately deals with two ADR
mechanisms i.e. mediation & conciliation. This chapter first of all explains the concept and
process involved in both mechanism, there advantages and disadvantages. In the end of the
chapter issues and concerns pertaining to mediation and conciliation are also analysed.

CHAPTER- 6: Lok Adalats and Permanent Lok Adalats – Chapter 6 elaborately deals with
Lok Adalats and Permanent Lok Adalats as ADR mechanisms. This chapter, in the beginning
explains the concept, evolution, law, practices and procedures of Lok Adalats and Permanent
Lok Adalats along with the advantages offered by them as ADR fora.

CHAPTER- 7: Arbitration –This Chapter deals with the adjudicatory ADR mechanism –
Arbitration. This chapter first of all gives an insight of the concept of arbitration, types of
arbitration and the historical background of arbitration in India. It then expounds the process of
arbitration, which is governed by the Arbitration and Conciliation Act, 1996, referring to the
relevant statutory provisions and the significant judicial pronouncements.

CHAPTER- 8: Alternative Dispute Resolution under Section 89 of the Code of Civil

Procedure, 1908 –It expounds the contribution of section 89 CPC to ADR jurisprudence. In the
beginning it explains the nature and ambit of section 89 CPC and highlights the reasons for
incorporating section 89 CPC in the statute book. This chapter then proceeds to outline the
procedure enshrined under section 89 CPC and also gives an insight into the role of referral
judges in ensuring that the salutary objective behind the incorporation of section 89 CPC is
accomplished. This chapter then proceeds to discuss and analyse the available ADR mechanisms
under section 89 CPC with special reference to Judicial Settlement as an ADR mechanism.

CHAPTER- 9: Conclusion & Suggestion –In the first part of this chapter an earnest attempt
has been made to assimilate the broad and generalized propositions and conclusions embodied in
all the preceding chapters with brevity and precision. The second part of the chapter
comprehensively expounds some of the plausible legislative, administrative and other allied
remedial measures for rectifying the flaws observed during the research and also contains an
exposition of a whole gamut of other suggestions for the better and effective implementation and
systematic growth of ADR in India from a pragmatic point of view.