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ADR - An Alternative Method to Avoid Litigation: India vs Abroad

To be, or not to be: that is the question: ……for who would bare the whips and scorns of time, the oppressor's wrong, the proud man's contumely, the pangs of despised love, the law's delay...- William Shakespeare

It is an uncontroversial fact that our country is suffering from acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences and conflict. Even our judiciary is suffering from docket explosion of pending cases. To solve the problem of delayed Justice ADR mechanism has been developed in response thereof.

Dispute resolution is an indispensable process for making social life peaceful. It tries to resolve and check conflicts, which enable persons and group to maintain co-operation. Alternative Dispute Resolution is a term used to describe several different modes of resolving legal disputes.

The goal of ADR is enshrined in the Indian constitution's preamble itself, which enjoin the state to secure to all the citizens of India, Justice- social, economic and political- liberty, equality and fraternity.

This paper gives a comparative study of the working of the ADR in various countries with specific focus to India.

This paper is basically analytical and descriptive in nature. In this paper, the author makes a humble attempt to review the existing literature on ADR in India and other countries. Further, the paper also identifies the gaps that may be taken up for further investigation and research.

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. -- ABRAHAM LINCOLN[1]

Dispute is certitude of Life. It is not good or bad. However, it is of paramount importance that how we administer it. It can be either through Litigation i.e. in the Court of Law or by way of Alternative Dispute Resolution (ADR) mechanism.

ADR refers to a variety of streamline resolution techniques formulated to resolve disputes in controversy in a more organized manner when the normal negotiation process fails. ADR is a substitute to the formal legal system. It was being thought of in view of the fact that the Courts are exhausted with cases. The said system emanates from resentment of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a sense of isolation from the whole legal system- thus, the want of Alternative Dispute Resolution.

ADR is an attempt to devise machinery which should be capable of providing an alternative to the conventional methods of settling disputes. An alternative means the privilege of choosing one of the two things or courses offered at one's choice. It does not mean the choice of an alternative Court but something which is an alternative to Court procedures or something which can operate as Court annexed procedure.[2]

ADR originated in the USA 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 right-based remedies as opposed to creative problem- solving. The American origin of the concept is not surprising, given certain features of litigation in that system, such as: trial of civil action by a jury, lawyers' contingencies fees and lack if application in full of the rule the loser pays the costs.[3]

Objectives and Scope of ADR

Justice consists not in being neutral between right and wrong but in finding out the right and upholding it, wherever found, against the wrong. - THEODORE ROOSEVELT[4]

The original focus of ADR was educating parties to recognize their self interest in avoiding adversarial litigation, so many ADR ideas and procedures are either voluntarily efforts of a single party or depend on the mutual agreement of all the parties.

These includes dispute avoidance, dispute management, creative forms of voluntarily settlement, mini trial, consensual reference to a private Judge, contractual or voluntarily Arbitration and Mediation. The substantial merit of each of these ideas may have been overlooked in the past because the focus was on formal litigation but the ADR movement may increase the extent they are used.[5]

The primary objective of ADR system is avoidance of vexation, expense and delay and promotion of the ideal of access to Justice. ADR is an attempt to device machinery which should be capable of providing an alternative to the controversial methods of resolving disputes. An alternative means the choice of an alternative Court but something which is an alternative to Court procedures or something which can operate as Court annexed procedure.

Under ADR, a dispute may be settled out of Court and that to without litigation, however ADR system applies to only those disputes, as have arisen out of a legal relationship which may or may not be contractual.

ADR system is mainly remarkable for using of neutral third person to help the parties to conclude their dispute within a time and gain the benefit. The popularity of the mechanism increasing from last two decades mainly. It helps to increased access to Justice for the people who cannot use the Court system. ADR flourishes because it avoids rigidity and inflexibility which is inevitable in the litigation process. Hence, ADR has proved an appropriate way to maintain social peace in society. One can say that ADR is one medicine to curb many types of disorders and disputes efficiently.[6]

Thus to summarize the above discussion, ADR shall be instrumental in tackling the menace and monstrosity of what is known as Docket Explosion-, An unmanageable upsurge in the number of pending cases, before regular Courts.[7]

Benefits of ADR Mechanism:

  • Flexible: ADR provides a more flexible, alternative solution for a wide variety of disputes whether small or large.
  • Economies of Cost: The ADR processes are very cheaper and less formal then traditional litigation as it is successful in avoiding expenses incurred for engaging Court barristers or solicitors.
  • Speedy Process: ADR is far quicker than the traditional litigation methods of going to Courts, certain types of ADR supply very quick solution and ensure that the legal system can operate more quickly with lesser damage.
  • Freedom of Parties to Litigate: The freedom of parties to litigate is not affected by ADR proceedings. Even a failed ADR proceeding is never a waste either in terms of money or time spent on it, since it helps parties to appreciate each other's case better.
  • Confidentiality: The results can be kept confidential to the parties so that the information disclosed during negotiations or Arbitration hearing cannot be used later even if litigation ensures. The final outcome can also be made private if the parties so stipulate and agree, on the other hand, most trials and related proceedings are open to the public and the press.
  • Control of Parties Over Process: One of the foremost advantage of the ADR process is that dispute remains under the control of the parties themselves and any settlement entered into is their own and does not represent a dictate from an outsider.
  • Reduction of Work-Load of Courts: ADR helps in reduction of work-load of Courts as the petty cases are easily solved through ADR process and thus helps Court to focus on most important issues and cases.
  • Free from Prejudice: Since both the parties of ADR come to terms on mutually agreeable terms and that too out of their own free will, without having any fear of consequences of winning or losing, the system on a whole is quiet free from prejudice.
  • Win-Win Strategy: The ADR follows the strategy of win-win as the parties are brought to settlement where nobody losses as this process mainly focuses on solving problems rather than solving winners or losers.
  • Expertise: ADR procedure permits to choose neutrals who are specialists in the subject matter of the dispute.
The ADR mechanism is much advantageous and compliment to traditional legal system. The framework of ADR mechanism has emerged comprehensive but its success depends much on the will of the people to work it up in the right sprit and with good faith. The parties have to be made aware and educated about the advantage of adopting ADR mechanism.[8]

ADR in Purview of India

To quote, Former Chief Justice P.N. Bhagwati I am pained to observe that the judicial system in the country is almost on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creaking under the weight of arrears.[9]

We are a country of billion people. People have started thinking whether the constitution has failed or we have failed the constitution. This is a time to think about the question, whether the Justice delivery system is failed or we have failed the Justice delivery system.

Equal Justice for all is prominent principle on which entire system of administration of Justice is based. There is a long old tradition on India that encourage to solve the dispute by the formal legal system where disputes were decided by the panchayats. Disputes are not avoidable and need to be resolved in a judicious manner so there is a need for an adequate and effective dispute resolution mechanism.

Our legal pattern of resolving dispute has resulted in abundance of pending cases, which rightly justify the maxim Justice delayed is the Justice denied the legal proceedings in a Court of law get stretched down the years consuming, lot of money and which ultimately leads to disruption in business and carrier.

In India, we have endless laws but not Justice. Unfortunately, the Judicial System in India is based on evidence and facts, not on conscience or moral, so it should be easier instead of saying that Justice delayed is Justice denied, we should say delayed Justice is the Injustice.

It is an uncontroversial fact that our country is suffering from acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences, conflicts. Even our judiciary is suffering from population problem i.e. docket explosion of pending cases. Reports by Sengupta[10] also indicates that there are over 27 million cases that are still pending in Indian Courts and over 6 million have been pending for more than 5 years.

In managing these Courts there are only 16000 Courts and insufficient Judges for handling these disputes.
The ministry of Law and Justice has released data of the latest pendency of cases in the Supreme Court and the High Courts. The data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court's 31,16,492 civil and 10,37,465 criminal cases are pending.[11]

In Surjeet Singh case[12], the Supreme Court expressed its anguish for such long delay, as the particular case was lying pending in the civil Court at Patiala with no sights of its finalization.
It is under these circumstances that from time to time attempts have been made to persuade the disputing parties to resort to a method popularly known as ADR to dissolve the disputes. In commercial world where time is money, there is a general feeling that litigation should be best avoided by process of ADR in all commercial contracts, thus ousting the jurisdiction of the Court.

Evolution of the Concept of ADR in India:

ADR is nothing new to India. It was since the ancient India that the law of Arbitration was very popular and were highly accessible. While dealing with such cases on Arbitration, the awards were known as decision of Panchayat's. The decision was of binding nature in law in-force in those times. The head of the family, the chief of the community or selected in-habitants of the village act as Panchayat's.[13]

The Hindu considered Panchayat's as the lowest tribunal and as such its award was subject to appeal. The Bengal Regulation of 1781 imported the idea that it was the tribunal of the parties' own choice, hence in the absence of misconduct the parties were bound by its decision. Then the Regulation of 1787 empowered the Court to refer certain suits to Arbitration but no provision was made in the regulation for cases wherein difference of opinion among the arbitrator arose.

The Bengal Regulation XVI of 1793 empowered Courts to refer matters to Arbitration with the consent of the parties where the value of the suit did not exceed Rs. 200/- and the suits were for accounts, debts, partnership etc. Regulation XV of 1795 extended the Regulation of 1793 to Banaras.[14]

By 1816, the Madras Regulations IV of 1816 and V of 1816 empowered Panchayat's to settle dispute by them. In Bombay Regulations IV and VII of 1827, similar provisions were made.
Thereafter, The Arbitration Act, 1877 came as a complete code in itself, it made rules as to appeal and the Code of Civil Procedure was not applicable to matters covered by the Arbitration Act. The laws relating to Arbitration was incorporated in Chapter VI of the Code of Civil Procedure, 1859 (Section 312-327). [15]

The Law of Arbitration in the British Rule in India was comprised in two enactments. One was the Indian Arbitration Act, 1899, which was based on the English Arbitration Act, 1899. The Arbitration Act 1899 extended to the precedency town and to such others areas as it might be extended by the appropriate provincial government. Outside the scope of operation of Arbitration Act 1899, the Second Schedule to the Code of Civil Procedure Code, 1908 was applicable.

The Schedule related mostly to Arbitration in suits. The Schedule contained an alternative method also, whereby the parties to a dispute or any of them might file the concerned Arbitration agreement before a Court having jurisdiction, which Court following a certain procedure referred the matters to an arbitrator. [16]

The Arbitration Act, 1940 consolidated and amended the law relating to Arbitration very exhaustively. This Act repealed Section 89, Section 104 Clauses (1) (a) to (f) and the Second Schedule to the Civil Procedure Code, 1908. The Civil Justice Committee recommended various changes in Arbitration Act of 1899. The recommendations were scrutinized together and Arbitration bill sought to consolidate and standardized the law relative to Arbitration throughout British India in details and was called the Arbitration Act of 1940.[17]

The Arbitration Act, 1940 dealt with only domestic Arbitration. In so far as International Arbitration was concerned, there was no substantive law in the subject. However, enforcement of foreign award in this country was governed by two enactments, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.[18]

The Arbitration Act, 1940 has been described in the opt-quoted passage from the case of Guru Nanak Foundation v. Ratan Singh and Sons[19] as follows:
However, the way in which the proceedings under the act are conducted and without an exception challenged in Courts made lawyers laugh and legal philosophers weep. Experience shows and laws reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary.[20]

The Arbitration Act, 1940 was holding the filed for nearly half a century but with the phenomenal growth of commerce and industry the effect of globalization requires substantial changes and the Act was not meeting the requirement of either the international or domestic standards of resolving disputes. Enormous delay and Court intervention frustrated the very purpose of Arbitration as a means of expeditious resolution of dispute. The Supreme Court in several cases repeatedly pointed out the need to change the law.[21]

In modern India for the first time where ADR as method of Conciliation has been effectively introduced and recognized by law was in Labour Law, namely Industrial Dispute Act, 1947. Conciliation has been statutorily recognized as an effective method of dispute resolution in relation to dispute between workers and management.[22]

Thus The Arbitration and Conciliation Act, 1996 came into being. The law relating to Arbitration and Conciliation is almost the same as in the advanced countries. The new Act guaranties independence and impartialities irrespective of their nationalities. It brought in several changes to expedite the process of Arbitration. This also developed confidence among foreign parties' interest to invest in India.[23]

The emergence of ADR has been one of the most significant moments as a part of conflict management and judicial reforms and it has been a global necessity. ADR thus has been a vital, vociferous, vocal and vibrant part of our historical past. Modern ADR is a voluntary system, according to which the parties enter a structured negotiation or refers their dispute to a third party for a valuation and/or facilitation of resolution.[24]

Recommendations of Justice Malimath Committee:

The Indian Judicial System has been stretched almost to a breaking point right from apex Court to lower subordinate Court, thus with a view to remedy this anomaly, the Malimath Committee also known as the Arrears' Committee, undertook a comprehensive review of the working of the Court system, particularly all aspects of arrears and law's delaying while addressing such concern.

It also made various useful recommendation for reducing litigation and making Justice readily accessible to people at minimum cost of time and money.[25]

This committee while agreeing with the law commission recommended that Conciliation Courts should be established all over the country with power, authority and jurisdiction to initiate Conciliation proceeding in all types of proceedings at all levels and that the amendment suggested by the law commission should be carried out to enable the scheme and to function effectively. The Conciliation procedure should also be made applicable to Motor Accident Claims tribunals.

The Committee submitted its comprehensive report and identified the cause of accumulation of arrears:

  1. Appeals against order of quasi-judicial forums going to High;
  2. Accumulation of First Appeals;
  3. Litigation Explosion;
  4. Inadequate number of Judges;
  5. Unnecessary Adjournment;
  6. Lack of Modern Infrastructure in the High Courts;
Thus to summarize, this committee 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.

Constitutional Mandates:

Equality is the basis of all modern system of jurisprudence and administration of Justice….in so far as a person is unable to obtain access to a Court of law for having his wrongs redressed or for defending himself against a criminal charge, Justice becomes unequal.…. Unless some provision is made for assisting the poor to pay the cost of litigation…. he is denied equality in the opportunity to seek Justice.-- M.C. Setalvad, (Former Attorney General of India)

Preamble: Our Constitution reflects this aspiration in the preamble itself, which speak about Justice in all its form: Social, Economic, Political. The preamble secures to all the citizens of India - Justice - Social, Economic, Political, Liberty, Equality and Fraternity. The expression Justice includes legal aid camps, family Courts, meditation centers, commercial Arbitration etc. which are but various facets of effective ADR system.[26]

Article 21: It declares in a mandatory tone that no person shall be deprived of his life or his personal liberty except according to procedures established by law.

In Hussainara Khatoon (No. I) v. Home Secretary, Bihar [27] it has been interpreted that Right to Speedy Trial is also a part of Right to Life and Personal Liberty. The Supreme Court has allowed Art. 21 to stretch arms as wide as legitimately can.

Article 39-A: Free Legal Aid: It obligates the state to secure that the operation of the legal system which promote Justice on the basis of legal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme or in any other way, to ensure that opportunities for securing Justice are not denied to any citizen by reason of economic or other disabilities.[28]
Thus promotion is most important function of state and ADR mechanism helps in it. Hence much legislation like Arbitration and Conciliation Act, 1996; Section 89 of CPC; Legal Services Authority Act, 1987 has been passed to promote Justice.[29]

Judicial Interpretation

In E.Venkatakrishna v. Indian Oil Corporation Ltd[30]
It was held that, whenever there is an Arbitration clause in a contract, aggrieved parties must have recourse to the provisions of the Arbitration act and that being a complete code in itself, parties cannot approach High Court, with a petition under Art-226.

In Oil and Natural Gas Commission v. CCE[31]
In one of the orders passed in this judgment it was recorded that the cabinet secretary has issued instructions to all departments of Government of India as well as PSU's that all disputes regardless of type, should be resolved amicably by mutual consultation or through good offices of empowered agencies of the government or through Arbitration and recourse to litigation should be eliminated.

In Deco Mica Ltd v. UOI [32]
In this case, the Court held that ADR is inevitable in one form or the another form in view of global unquestionable phenomenon because Court of Law sometimes becomes suit for life, litigation in the present set up and mechanism has become expensive and time consuming and dispensation of Justice has become slow. It is reported that out of 192 Countries, which are members of UN, 133 Countries have successfully implemented ADR in one form or the other, with encouraging and rewarding success.

ADR in International Scenario:

The history of ADR forum at international level can be traced back from the period of Renaissance, when Catholic Popes acted as Arbitrators in solving conflicts arising between European Countries. The basic idea is to facilitate dispute settlement rather than executing, enforcing and overarching international legal order.

One major reason for this character of the international adjudication is lack of authority granted to International Courts as reflected in the most meagre and rare submission of states to jurisdiction according to Article 36 clause 2 of ICJ statute. The other major reason is that international laws in coherent structure is more apt and ready to settle dispute than to enforce coherent doctrine rarely endorsed by the states as the ultimate standard of their international behavior.[33]

ADR has given fruitful results not only in international political arena but also in international business world in settling commercial disputes among many cooperative houses.[34] ADR is now a growing and accepted tool of reform for dispute management in American and European countries along with U.K., Canada, Hong Kong, Australia, New Zealand.

When the entire world was moving in favor of speedy resolution of commercial disputes, the United Nations Commission on International Trade Law way back in 1985 adopted the UNCITRAL Model Law of International Commercial Arbitration and since then a number of countries have given recognition to that model in their respective legislative system. An important feature of the said model is that it has harmonized the concept of Arbitration and Conciliation in order to designate it for universal application.[35]

International Treaties and Conventions:

  1. The Geneva Protocol on Arbitration Clause of 1923: The first international convention on commercial Arbitration was the Geneva Protocol of 1923. Its main purpose was to secure recognition of the validity of the international Arbitration agreements and to ensure that, if the parties commenced litigation the Court would refer the parties to Arbitration.[36] In this protocol, each contracting state reserves the right to limit the obligation mentioned above the contracts which are considered as commercial under its national law.
  2. The Geneva Convention On Execution of Foreign Arbitral Awards of 1927: In the territories of any high contracting parties to which this convention applies, an arbitral award made in pursuance of an agreement whether relating to existing or future differences covered by the protocol on Arbitration clause mentioned in previous treaty, be recognized as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the high contracting parties to which the present convention applies and between persons who are subject to the jurisdiction of one of the high contracting parties.[37]
  3. The New York Convention On Recognition and Enforcement of Foreign Arbitral Awards of 1958: The dissatisfaction from the Geneva Conventions resulted in the replacement of Geneva treaties and led to the formation of New York Convention by the International Chambers of Commerce who drafted the amended convention in 1955 and was discussed in UN-HQ in 1958. The 2 basic actions contemplated were – recognition and enforcement of foreign arbitral award defined in Article I. The general obligation for the contracting states to recognize such an awards binding and to enforce them in accordance with their rules of procedure laid down in Article III. On the other hand, second action is referral by a Court to Arbitration. Article II, para 3 provides that Court of a contracting state, when seized of a matter in respect of which the parties have made an Arbitration agreement, must, at the request of one of the parties, refer them to Arbitration.[38]
  4. European Convention on International Commercial Arbitration of 1961:  In this convention foreign nationals are given the right to be designated as Arbitrators. The Arbitrator's decision on the delay on raising the plea, will, however, be subjected to judicial control in taking a decision concerning the existence or validity of an Arbitration agreement, Courts of contracting states shall examine the validity of such agreement with reference to the capacity of the parties, under the laws applicable to them.

    Under this convention the parties shall be presumed to have agreed that reasons shall be given for an award unless they expressly declare that reasons shall not be given, or have assented to an arbitral procedure under which is not customary to give reasons for awards, provided that in this case neither party request before the end of the hearing or if there has not been a hearing then before the making of the award, that reasons be given. It also provides grounds for setting aside the Arbitral award as the Article deals with the final clauses.
  5. Washington Conventions on Settlement of Investment Disputes Between States and National of Other State of 1965: ICSID- International Centre for Settlement of Investment Disputes is an international Arbitration institution which facilitates Arbitration and Conciliation of legal disputes between international investors and between contracting states and national of other contracting states. It does not conduct the proceedings itself, but offers institutional and procedural support to Conciliation commissions, tribunal and other committees which conduct such matters. It also conducts advisory activities and research and publishes it. Although the proceedings takes place in Washington but the parties may agree that proceedings be held at other possible alternative Arbitration forums.[39]
  6. Moscow Convention On Settlement By Arbitration of Civil Law Disputes Resulting From Relations of Economic and Scientific Technical Cooperation of 1972: In the MASCOW convention, all disputes between economic organizations resulting from contractual and other civil law cases arising between them in the course of economic and scientific and technical cooperation of the countries, parties to the present convention shall be subject to Arbitration proceedings. The Arbitration award rendered by Arbitration Courts shall be final and binding. The parties shall execute them voluntarily and shall be recognized without any further procedure and shall be subject to enforcement in any country party to the conventions in the same manner as Judgements passed by the state Courts of the country of execution and which has come into legal force.[40]
  7. UNCITRAL Arbitration Rules of 1976: Adopted by UNCITRAL on 28th of April 1976, the UNCITRAL Arbitration rules provides a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in Ad-hoc Arbitrations as well as administered Arbitrations. The rules cover all aspects of the arbitral process, providing a model Arbitration clause, setting out procedural rules regarding appointment of Arbitrators and conduct of arbitral proceedings and establishing rules in the relation to the form, effect and interpretation of the award.[41]
  8. UNCITRAL Convention Rules of 1980: Adopted by UNCITRAL on 23rd July 1980, the UNCITRAL Conciliation rules provides a comprehensive set of procedural rules upon which parties may agree for the conduct of Conciliation proceeding arising out of there commercial relationship. The rules cover all aspect of Conciliation process, providing a modal Conciliation clause, defining when Conciliation is deemed to have commenced and terminated and addressing procedural aspect relating the appointment and role of conciliators and the general conduct of proceeding. The role also addressed issue such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial and arbitral proceeding whilst the Conciliation is in progress.[42]
  9. UNCITRAL Arbitration Rules as Revised in 2010: The UNICITRAL Arbitration rules, as revised, includes provisions dealing with, amongst others, multiple parties to Arbitration and joinder, liability and a procedure to object to experts appointed by the arbitral tribunal. A number of innovative features contained in the rules aims to enhance procedural efficiency, including revised procedures for the replacement of an arbitrator, the requirement for reasonableness of cost, and a review mechanism regarding the cost of Arbitration. The revised rule will continue to contribute to the development of harmonious international economic relations.[43]

ADR Mechanism in Different Countries:
A brief look at the international scenario of ADR mechanism reveals the popularity of its usage in various countries. The seed of ADR in the U.S.A can be traced back in the early Dutch and British colonial periods in the New York City. Shortly, after independence the ADR found its place in number of applications for example, The Patent Act of 1790, congress also provides for an Arbitration system of competing Patent claims.

In the late 19th century congress organized Mediation process for the collective bargaining disputes and special Mediation agencies like BMC for railway labour and FMCS were formed to carry out negotiation regarding employment. In the early 20th century, ADR served as a litigation alternative. Later on several Arbitration laws were enacted including a federal cognate, the federal Arbitration act.

With the formation of American Arbitration Association in 1926, to guide arbitrators and for developing rules on proper method of Arbitration throughout the 20th century, ADR grew in popularity at state and federal government level. Towards 21st century, American Bar Association showed that majority of law schools had some form of ADR related programs including extra-curricular competitions. Today Arbitration exists at all level of US legal professions to offer ADR mechanism to individual and businesses. Thus, ADR as a legal system has become firmly entrenched in the United States.[44]

In Japan, Mediation was used as a primary means of conflict resolution. Judges intervene extensively during the In-Court settlement; every Japanese Judge is expected, both by law and litigants, to move a case towards settlement, this has a force of statutory law. At least 40% of the cases are settled. The Judge, who decides to switch from litigation to a settlement mode, takes of his robe and acts as a mediator.

In China, the ADR theory is quite different from that under the western legal system. Although a similar independent ADR institution now exists in China. The general idea of ADR under the PRC legal system is actually amalgamated into the judicial or Arbitration process in hearing. The People's Meditation System is the ADR formality for Chinese parties and its ‘oriental experience' has won high praise in international judicial circle.

ADR in china is more often conducted by the same Court or tribunal during or after the hearing rather than by an independent organ before the hearing. The less confrontational nature of such Mediation methods can also help preserve the commercial relationship between the disputing parties.[45]

In France, legal recognition of Mediation in Francophone Europe started in the early 1990's. A huge increase in the number of divorces in the 1980's and the concern of public authorities of the cost of these procedures was one important factor for a rapid introduction of Mediation into civil law procedures. Mediation was formally recognized by Loi. Under Mediation a Judge hearing a matter can appoint a third person for up to 3 months with the consent of the parties and can be extended to another 3 months if Mediator requests.

Arbitration in civil and commercial affairs is mainly organized in section 1442- 1491 of new Code of Civil Procedure. Arbitrators are free to fix procedure and have right to exercise their instructions and are assimilated to regular magistrates.[46]

In Russia, there is a growing interest in the out of Court method of dispute resolution. Thus, two of the most important factors reflecting the current position of ADR in Russia are realization by the society of the need to create a parallel system of non-formal jurisdiction; and legislative tendencies toward development of alternative forms and improvement of proceedings. The long felt need of Russian society to create an alternative sphere is reflected in the current flurry of such practices, and in the emergence of the so called public movement for alternative dispute resolution.

Russia does not have varied methods of ADR. Arbitration is most widely used form of ADR, and is actively used in commercial dispute resolution. Aside from this, a certain type of reconciliatory proceedings has been created as a sort of claim order of dispute settlement, friendly negotiations and Mediation directly initiated by parties to a legal conflict.[47]

The Hong Kong International Arbitration Centre, most probably the largest Arbitration service center in Asia, has held the view as Arbitration as compared to litigation has become very popular for resolving the disputes. Similarly, conciliate and Mediation finds an increasing measure of support in future.[48]

Modes of ADR
Alternative Dispute Resolution circumscribes a diversity of proficiency. One can say that the art and heart of ADR is a range of mechanism. Thus ADR involves not only the application of new or different methods to resolve disputes, but also the selection or design of a process which is best suited to the particular dispute and the parties in dispute.

Arbitration- Arbitration is method of dispute resolution where a neutral person called an ‘arbitrator' hears arguments and evidences from each side and then decides the outcome of the dispute which is binding.[49]

Mediation- Mediation involves a third party who is unconnected to the dispute taking part and therefore neutral. It appears to help the parties in reaching an agreement. This person is called mediator, is not entitled to give his personal opinions about the dispute in question but simply to mediate between the disputant.

Negotiation- The word negotiation comes from Latin word negotium. This process consists in an informal approach between the parties themselves or their lawyers. This is the quickest and cheapest form of solving the dispute. There is not a third entity controlling the affected persons' decision.

Conciliation- It means to assemble or win over. It is managed by the conciliator, who has similar duty to the mediator but the conciliator is entitled to suggest solutions to the case and to approach the parties' possessions.

Law derives its authority from the obedience of the people. However, the corpulent blockage and sluggish delay of our judicial system defeats the very purpose of a fair and just system of law. The procedural rigidity and extravagant expenses involved in the judicial system make inroads into our legal structure, as the faith of the people in our Judicial system slowly wanes away.
Not even the invading armies can stop an idea whose time has come, the time for Alternative Dispute Resolution, as a means to assist regular Court litigation has arrived. The concept of resolution of disputes through modes other than, those involving time consuming technical procedures, though initially starts on an experimental basis, has in fact gained immense popularity.

In the ultimate analysis it may be concluded that widening gap between the common people and the judicially is indeed a serious cause of concern of all those who deal with administration of Justice. The concept of ADR and its various types of modes should be deeply ingrained in the minds of litigants, Lawyers and the Judges so as to ensure that ADR methods in desperation of Justice are frequently adopted.

The effective utilization of ADR mechanism would go a long way in plugging the loop hole which is obstructing the path of Justice.
The reality today is that we are all interdependent and have to co-exist on this small planet. Therefore, the only sensible and intelligent way of resolving differences and clashes of interests, whether between individuals or nations, is through dialogue. ---- Dalai Lama

  1. Ankush Kumar, Arbitration as an ADR Mechanism, ACADEMIA (Feb. 9, 2018, 11:12 P.M.),
  2. DR. AVTAR SINGH, LAW OF ARBITRATION AND CONCILIATION (INCLUDING ADR SYSTEMS), 391, (Eastern Book Company, Lucknow, 7th Edition (2006)).
  3. Medha Nishita, Alternative Dispute in India, FRDINDIA, (Feb. 9, 2018, 11:12 P.M.),
  4. Quoted in the Theodore Roosevelt Centennial CD-ROM- 26th president of U.S.
  5. Journal of dispute resolution, Volume 1985, Article 5, Issue 1985.
  6. Gunjan Singal, Role of Alternative Dispute Resolution as a Mechanism for Administration of Justice, SHODHGANGA, (Feb. 9, 2018, 11:12 P.M),
  7. D.K. Sharma, Lok Adalat The Mission-2002, AIR, 56, (1997).
  8. Y.K.J. Sabharwal, Alternative Dispute Resolution, NYAYA DEEP. Vo.6 Jan., 56, (2005).
  10. A. Sengupta, Hidden Factors That Slow Our Courts and Delay Justice, (Feb. 9, 2018, 11:12 P.M),
  11. Parul Sharma, Data-on-disposal-and-pendency-of-cases-in-supreme-Court-and-highCourts-with-reasons-for-mounting-pendency-of-cases, ITAONLINE, (Feb. 9, 2018, 11:12 P.M),
  12. Surjeet Singh and others v. Harbans Singh and others, 1996, AIR SC 135 (India).
  13. O.P. TEWARI, The Arbitration & Conciliation Act With Alternative Dispute Resolution, 2-4, (4th Ed. 2005 Reprint 2007, Allahabad Law Agency, Faridabad).
  14. Ibid
  15. Ibid
  16. Ibid
  17. Ibid
  18. A.K. Ganguli, The Proposed Amendments to The Arbitration and Conciliation Act, 1996- A Critical Analysis, 45 JILI, 3-4, (2003).
  19. Guru Nanak Foundation v. Ratan Singh and Sons, 1981, 4 SCC 634 (India).
  20. K.K.Venugopal, Rendering Arbitration in India Swift Effective, NYAYA DEEP, Vol. VI, Issue: 01, Jan., 125, (2006).
  21. Dixit Sujoy, Alternative Dispute Resolution Mechanism, LEGALSERVICESINDIA, (Feb. 9, 2018, 11:12 P.M),
  22. Dr. Avtar Singh, Law of Arbitration and Conciliation (including ADR systems), 393, (Eastern Book Company, Lucknow, 7th Edition (2006)).
  23. Dixit Sujoy, Alternative Dispute Resolution Mechanism, LEGALSERVICESINDIA, (Feb. 9, 2018, 11:12 P.M),
  24. Dilip, J. Deshmukh Raosaheb, Efficacy of Alternative Disputes Resolution Mechanisms in Reducing Arrears of Cases, NYAYA DEEP, Vol. X Issue: 2 Apr., 26-27, (2009).
  25. Hon'ble Justice V.S. Malimath, Recommendations of the Malimath Committee on reforms of Criminal Justice System, (2003).
  26. P.N. Bhagawati, need to create adequate and effective delivery system of Justice, Social Justice-Equal Justice, Chapter VI, 33.
  27. Hussainara Khatoon (No. I) v. Home Secretary, Bihar, AIR 1979 SC 1360.
  28. This Directive Principle was inserted by the Constitution 42nd Amendment Act, 1976, No. 1, Acts of Parliament, 1976 (India).
  29. Dr. Anupam Kurlwal, An Introduction Of Alternative Dispute Resolution System, 114, (Ed. 1, Central Law Publications, 2011).
  30. E. Venkatakrishna v. Indian Oil Corporation Ltd, (1989), AIR Kant (1) Arb35Lr 270
  31. Oil and Natural Gas Commission v. CCE, (1995), Supp (4) SCC 541 (India).
  32. Deco Mica Ltd v. Union of India, (2002), (144) ELT 18 (Guj.)
  33. Mukesh Gaur, International Alternative Dispute Resolution, UNICH, (Feb. 9, 2018, 11:12 P.M),
  34. Dixit Sujoy, Alternative Dispute Resolution Mechanism, LEGALSERVICESINDIA, (Feb. 9, 2018, 11:12 P.M),
  35. Dilip, B. Bhosale J., Alternative Dispute Resolution: An Effective Alternative, Indian Bar Review, Vol. XXX (1), 1, (2003).
  36. Geneva Protocol, 1923.
  37. Geneva Convention, 1927.
  38. The New York Convention, 1958.
  39. Ashish Roy, The Washington Convention of 1965 (ICSID), SLIDESHARE, (Feb. 10, 2018, 09:20 P.M.),;
  40. Moscow Convention, 1972.
  41. UNICITRAL Arbitration Rules, 1976.
  42. UNCITRAL Conciliation Rules, 1980.
  43. UNCITRAL Arbitration Rules, (as revised in 2010).
  44. Michael and Brianna, Brief history of ADR in US, CADMUSJOURNAL, (Feb. 10, 2018, 09:20 P.M.),
  45. Yamming Wei, New Development of ADR in China, STF, (Feb. 10, 2018, 09:20 P.M.),
  46. Advct Dutta, Origin of ADR system in India, ACADMIA, (Feb. 10, 2018, 09:20 P.M.),
  47. Annual Survey of International & Comparative Law, Vol. 7 [2001], Iss. 1, Art. 3, 8-10, (2001).
  48. Shreya, Alternative Dispute Resolution, LAWSTUDENTHELPER, (Feb. 10, 2018, 09:20 P.M.),
  49. Col. Mistry, Alternative Dispute Resolution Methods, INBRIEF, (Feb. 10, 2018, 09:20 P.M.),
Written By:
  1. Mr. Sparsh Agarwal - 5th Year Students, Amity Law School, Amity University, Noida &
  2. Ms. Shruti Khandelwal - 5th Year Students, Amity Law School, Amity University, Noida

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