ADR – UNIT – I

ADR and Access to Justice: Issues and Perspectives1

Introduction
Justice is the foundation and object of any civilized society. The quest for justice has been an
ideal which mankind has been aspiring for generations down the line.

Preamble to our Constitution reflects such aspiration as “justice-social, economic and

political”. Article 39-A of the Constitution provides for ensuring equal access to justice.
Administration of Justice involves protection of the innocent, punishment of the guilty and
the satisfactory resolution of disputes.

The world has experienced that adversarial litigation is not the only means of resolving
disputes. Congestion in court rooms, lack of manpower and resources in addition with delay,
cost, procedure speak out the need of better options, approaches and avenues. Alternative
Dispute Resolution mechanism is a click to that option.

Mahatma Gandhi had put in correct words as : “I had learnt the true picture of law. I had
learnt to find out the better side of human nature and to enter men's heart. I realised that the
true function of a lawyer was to unite partie riven asunder. 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 compromised of hundred of cases. I lost nothing thereby-
not even money-certainly not my soul.”

Can't we strive for better 'Access to Justice'?

This has been rightly said that: 'An effective judicial system requires not only that just results
be reached but that they be reached swiftly.' But the currently available infrastructure of
courts in India is not adequate to settle the growing litigation within reasonable time. Despite
the continual efforts, a common man may sometimes find himself entrapped in litigation

for as long as a life time, and some times litigation carries on even on to the next generation.
In the process, he may dry up his resources, apart from suffering harassment. Thus, there is a
chain reaction of litigation process and civil cases may even give rise to criminal cases.
Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are
concerned with administration of justice.

1
Hon’ble Justice S.B.Sinha, Judge Supreme Court of India at http://www.tnsja.tn.gov.in/article/ADR-
%20SBSinha.pdf
In this context, there is an imminent need to supplement the current infrastructure of courts
by means of Alternative Dispute Resolution (ADR) mechanisms. Apart from bringing
efficiency in working of the judiciary, measures are being taken all over the world for
availing ADR systems for resolving pending disputes as well as at pre-litigation stage. Efforts
towards ADR have met with considerable success and good results elsewhere in the world,
especially in the litigation-heavy United States, where professional teams of mediators and
conciliators have productively supplemented the dispute resolution and adjudication process.

In 1995 the International Center for Alternative Dispute Resolution (ICADR) was
inaugurated by Shri P.V.Narasimha Rao, the Prime Minister of India had observed:

While reforms in the judicial sector should be undertaken with necessary speed, it does not
appear that courts and tribunals will be in a position to hear the entire burden of the justice
system. It is incumbent on government to provide a reasonable cost as many modes of
settlements of disputes as are necessary to cover the variety of disputes that arise. Litigants
should be encouraged to resort to alternative dispute resolution sot hat the court system
proper would be left with a smaller number of important disputes that demand judicial
attention.

Problems of Formal Legal system:

Awareness: The lack of awareness of legal rights and remedies among common people acts as
a formidable barrier to accessing the formal legal system.

Mystification: The language of the law, invariably in very difficult and complicated English,
makes it unintelligible even to the literate or educated person. Only few attempts have been
made at vernacular sing the language of the law and making it simpler and easily
comprehensible to the person.

Delays: The greatest challenge that the justice delivery system faces today is the delay in the
disposal of case and prohibitive cost of litigation. Alternative dispute resolution wads thought
of as a weapon to meet this challenge. The average waiting time, both in the civil and
criminal subordinate courts, can extent to several years. This negates fair justice. To this end,
there are several barricades. The judiciary in India is already suffering from a docket
explosion. In fact, as on 31 st October 2005, the number of cases pending before the Supreme
Court was 253587003. The huge backlog of cases only makes justice less accessible.
The delay in the judicial system results in loss of public confidence on the confidence on the
concept of justice.

Expenses and Costs: We are all aware of the ineffectiveness of our cost regime-even the
successful litigant is unable to recover the actual cost of the litigation. The considerable delay
in reaching the conclusion in any litigation adds to the costs and makes the absence of an
effective mechanism for their recovery even more problematic.

What is Alternative Dispute Resolution system?

ADR is not a recent phenomenon as the concept of parties settling their disputes

themselves or with the help of third party, is very well-known to ancient India. Disputes were
peacefully decided by the intervention of Kulas (family assemblies), Srenis (guilds of men of
similar occupation), Parishad, etc.,

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 agree3d 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 provide justice that not only resolves
dispute but also harmonizes the relation of the parties.

What are the mechanisms of ADR?

● Arbitration
● Mediation
● Conciliation/Reconciliation
● Negotiation
● Lok Adalat
ADR can be broadly classified into two categories; court-annexed options (it includes
mediation, conciliation) and community based dispute resolution mechanism (LokAdalat).

What are the functions of ADR?

1. ADR is not to supplant altogether the traditional legal system, but it offers an
alternative form to the litigating parties.

2. ADR tends to settle the disputes in a neutral and amicable fashion

3. ADR can be seen as integral to the process of judicial reform signifying the “access to
justice approach”.

4. The very raison d’etre of the ADR is an effort towards the etiology of malise and its
elimination rather than treatment of its symptoms. That means, this approach seeks for a
better and longer lasting solution.

5. ADR can be viewed as a compromise where non loses or wins, but everyone walks out a
winner.

Advantage of ADR

Justice Warren Burger, the former CJI of American Supreme Court had observed:

“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 well-dressed lawyers, fine paneled court rooms
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”.

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

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

halting progress because of reluctance of parties to part with inconvenient information. ADR
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, ADR is a
step towards success where judicial system has failed in eliciting facts efficiently.

2. 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.

3. The formality involved in the ADR is lesser than traditional judicial process and costs
incurred is very low in ADR
4. While the cost procedure results in win-lose situation for the disputants

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

An analysis on Evolution of ADR mechanisms in Indian Judiciary

ADR 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 CPC 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 Art.14
and 21. Recourse to ADR 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 (CPC), 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 CPC. 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.
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. [K.A.Abdul Jalees v. T.A.Sahida
(2003) 4 SCC 166].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 CPC – 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. [Ghanshyam Dass
v. Domination of India, (1984) 3 SCC 46].

The object of s.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. -
[Raghunath Das v. UOI AIR 1969 SC 674]

Order 23 Rule 3 of CPC 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.

Order 32A of CPC 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 ADR has undergone a sea change with the insertion of

S.89 of CPC by amendment in 2002. As regards the actual content, s.89 of CPC 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. (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, [1992 Supp2 SCC 432],[ ONGC I] there was a
disputes between the public sector undertaking and GOI 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. In ONGC v. Collector of Central Excise, [1995 Supp4 SCC
541] (ONGC II) dispute was between govt. dept and PSU. Report was submitted by cabinet
secretary pursuant to SC order indicating that instructions has been issued to all depts. It was
held that public undertaking to resolve the disputes amicably by mutal consultation in or
through or good offices empowered agencies of govt. or arbitration avoiding litigation. GOI
directed to constitute a committee consisting of representatives of different depts. 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 HC for information to all subordinate courts. In Chief Conservator of Forests v.
Collector (2003) 3 SCC 472, ONGC I AND II were relied on and it was said that state/union
govt. must evolve a mechanism for resolving interdepartmental controversies- disputes
between dept. of Govt cannot be contested in court.

In Punjab & Sind Bank v. Allahabad Bank, 2006(3) SCALE 557 it was held that the
direction of the Supreme Court in ONGC III [(2004) 6 SCC 437], to the govt. to set up
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 India
(2005) 6 SCC 344, the Supreme Court has requested prepare model rules for ADR 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 ADR ) 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;

(ii) where there is no relation between the parties which requires to be presented 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 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.

Different modes of justice delivery mechanism of ADR:

The Constitution of India calls upon the state to provide for free legal aid to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic
inability. India socio-economic conditions warrant highly motivated and sensitized legal
service programs as large population of consumers of justice (heart of the judicial anatomy)
are either poor or ignorant or illiterate or backward, and as such, at a disadvantageous
position. The State, therefore, has a duty of secure that the operation of legal system promotes
justice on the basis of equal opportunity.

Alternative dispute resolution is, neatly, worked out in the concept of Lok Adalat. It has
provided an important juristic technology and vital tool for easy and early settlement of
disputes. It has gain proved to be a successful and viable national imperative and
incumbency, guest suited for the larger and higher section so the present society of Indian
system.

The concept of legal services which includes Lok Adalat is a “revolutionary evolution of
resolution of disputes”. Lok Adalats provide speedy and inexpensive justice in both rural and
urban areas. They cater the need of weaker sections of society.

The object of the Legal Services Authority Act, 1987 was to constitute legal services
authorise is for providing free and competent legal services to the weaker sections of the
society; to organise Lok Adalats to ensure that the operations of the legal system promoted
justice on a basis of equal opportunity.

Under the Act permanent Lok Adalat is to set up for providing compulsory pre-litigation
mechanism for conciliations and settlement of cases relating too public utility services. The
concept of Lok Adalat is no longer an experiment in India, but it is an effective and efficient,
pioneering and palliative alternative mode of dispute settlement which is accepted as a viable
economic, efficient, informal, expeditious form of resolution of disputes. It is hybrid or
admixture of mediation, negotiation, arbitration and participation. The true basis of settlement
of disputes by the Lok Adalat is the principle of mutual consent, voluntary acceptance of
conciliation with the help of counsellors and conciliation. It is a participative, promising and
potential ADRM. It revolves round the principle of creating awareness amongst the
disputants to the effect that their welfare and interest, really, lies in arriving, at amicable,
immediate, consensual and peaceful settlement of the disputes.

Shri M.C.Setalvad,former Attorney General of India has observed: “....equality is thebasis of

all modern systems 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 men for the payment of Court fees and lawyer’s fees and other
incidental costs of litigation, he is denied equality in the opportunity to seek justice.”
The great advantage of arbitration is that it combines strength with flexibility. Strength
because, it yields enforceable decisions and is backed by judicial framework which , in the
last resort, can call upon the coercive powers of the state. Flexible because it allows the
contestants to choose the procedure which fit nature of the dispute and the business context in
which it occurs. Arbitration Act, 1940. Arbitration acknowledged the pivotal role of the partie
sin resolving their disputes. But this Act did not fulfill the essential functions of ADR The
extent of Judicial Interference under the Act defeated the very purpose of speedy justice. The
Act 1996 came into effect to remove few of its difficulties and judicial intervention was
limited to some extent. But Arbitration had some ailments: (I) traditional adversarial system
is run in a arbitration proceedings; (II) proceedings are delayed as both parties take lot o time
presenting their submissions; (III) the cost of arbitration is much more than the order ADR
process, thereby, it does not attract the poor litigants; (IV) participatory role of the parties are
neglected as the

submissions are mode by the party counsels.

Mediation can be defined as a process to resolve a dispute between two or more

parties in the presence of a mutually accepted third party who through confidential discussion
attempts to help the parties in reaching a commonly agreed solution to their problems. The
biggest advantage of mediation is that the entire process is strictly confidential. Mediation
saves time and financial and emotional cost of resolving a dispute, thereby, leads to
reestablishment of trust and respect among the parties.

Other advantages are:

An interest-based procedure is followed as distinct from a right-based procedure

adopted by a court Emotions and feelings between parties can be preserved causing minimum
stress and heartache.

There is possibility of resolving multiple disputes. A properly conceived mediation as method

of alternative dispute resolution will ensure wide access to justice for all sections of the
people. This system has assumed a great importance as Lok Adalats are regular features in
various parts of the country. Except litigants who stand to gain by delaying the process of
justice, others do not perhaps enjoy taking recourse of litigation that consumes innumerable
number of years and considerable amounts by way of expenses. Martin Luther King had said
''The bank of Justice shall not be bankrupt'' . This is only possible if we develop effective and
efficient mechanism of alternate dispute resolution by setting up of extra mediation centers at
all level in the country.

There is a subtle difference between mediation and conciliation. While in meditation, the
third party, neutral intermediary, termed as mediator plays more active role by giving
independent compromise formulas after hearing both the parties; in conciliation, the third
neutral intermediary's role, mainly is to bring the parties together in a frame of mind to forget
their animosities and be prepared for an acceptable compromise on terms midway between
the stands taken before the commencement of conciliation proceedings.

Three reasons why mediation or conciliation is not gaining momentum:

Lack of institutionalization

Lack of case management

Excessive interlocutory appeals

Out of the methods of ADR, mediation and conciliation are the most suited methods for a
country like India because by and large people in India at least in the rural areas would like to
settle their disputes amicably. But in urban areas case is different where in commercial
disputes, litigants want quick disposal of cases, would like the same to be done under a legal
framework and with the intervention of professionals and so, these litigants prefer arbitration.

Not many Indians can afford litigation. This kind of state of affairs makes common people,
especially rural people, cynical about judicial process.

We must take the ADR mechanism beyond the cities. Gram Nayalas should process 60 to 70
percent of rural litigation leaving the regular courts to devote their time to complex civil and
criminal matters. With a participatory, flexible machinery available at the village level where
non-adversarial, settlement-oriented procedures are employed, the rural people will have fair,
quick and inexpensive system of dispute settlement.

Rent and eviction constitute a considerable chunk of litigation in urban courts and they take
on an average time period of three years or more than that. The Law Commission felt that an
alternative method for these disputes is imperative.

Panchayati Raj or self-governance at the village level is in revolutionary process in our

democratic governance. Along with powers of administration, system of self-government
dispute resolution can also be delegated to these institutes. If the object of judicial reform is
fair, quick and inexpensive justice to the common people, there can be no better way to
pursue the objective than to invoke participatory systems at the grass root level for simpler
disputes so that judicial time at higher levels is sought only for hard and complex litigation.

According to Law Commission recommendation a very simple procedure envisaging quick

decision, informed by justice, equity and good conscience. The CPC and Evidence Act not to
be applied to proceedings before those. In respect of jurisdiction, the Commission preferred
criminal jurisdiction covering boundary disputes, tenancies, irrigation disputes, minor
property disputes, family disputes, wage disputes irrespective of pecuniary value of the
dispute. It would be wise to avoid to confer criminal jurisdiction of Gram Nyayalayas in the
initial stage. In districts, towns and other urban areas where the nature of disputes are
quantitatively different form rural areas, the litigations are of money suits, suits on mortgage,
succession and inheritance suits, rent and eviction suits, matrimonial disputes. The staggering
number if pendency of suits seeks for an alternative.

Few maladies and its ailments:

We have already examined in the ''evolution of ADR mechanisms'' that initially the ADR
mechanisms were tried to be implemented with much emphasis on Statutes by way of
inserting the ADR clauses in those statutes. But these process and policy was not of that
much success. Thereby, the trend is the imposition of responsibility and duty on Court and in
this process Courts are authorised to give directives for the adoption of ADR mechanisms by
the parties and for that purpose Court has to play important role by way of giving guidance,
etc. Power is also conferred upon court so that it can intervene in different stages of
proceedings.

But these goals cannot be achieved unless requisite infrastructure is provided and

institutional frame work is put to place. A judicial impact assessment is carried out in U.K. by
preparing a financial memorandum whenever a new Bill is introduced. The Financial
memorandum indicates the amount of expenditure that is likely to be incurred as a result of
any statute or amendment in the existing statute.

Before bringing in S.89 of the CPC and other Statutes, no assessment was carried out as
regards financial implications or the infrastructural requirements too make it effective. For
example: For meditation, trained mediator will be required and expenses will have to be
incurred for their training. Most of our courts do not have adequate space even for their
existing work, and thus, it may not be possible to accommodate them to provide for suitable
accommodation of the ADR regime all these have to be complied with and this is not too late
to make these arrangement.

Mediation/Conciliation/reconciliation is carried out in a matrimonial matter in child custody

case. Usually in the Dist. Courts, there is no space available for children to meet his parents.
Some meetings are held in the Chambers of the Judges not only at the district level but also at
the High Court.

Conciliation is provided for under the Industrial Disputes Act and it takes place in the office
of the Conciliation Officer or in the premises of the management which does not give a fair
chance to the workmen to negotiate. There should be a neutral space for such mediation or
negotiation.

The institutional framework must be brought about at three stages. The first stage is to bring
awarenesss, the second awareness and the third implementation.

Awareness: in view of this holding seminars, workshops, etc. would be imperative. A ADR
literacy programme has to be done for mass awareness. Awareness camp should be to change
the mindset of all concerned disputants, the lawyers and judges.

Our lack of awareness would be tested from the fact that how many of us are aware that in
terms of Sec.7(hb) of the Notaries Act, 1952 one of the functions of a notary is to act as an
arbitrator, conciliator, if so required.

Acceptance: In this regard training of the ADR practitioners should be made by some
University together with other institution. Extensive training would also be necessary to be
imparted to those who intend to act as a facilitator, mediators, conciliators.

Industrial dispute Act, 1947 provides for appointment of conciliator who although are
''charged with the duty of mediating in the promoting the settlement of industrial disputes''
failed in performing their duties as they do not have requisite training. Similarly matrimonial
courts and family courts are unable to effectively settle the dispute as they do not have either
the requisite training or the mindset there of.

Imparting of training should be made a part of continuing education on different facets of

ADR so far as judicial officers and judges are concerned.
Implementation: for this purpose, judicial officers must be trained to identify cases which
would be suitable for taking recourse to a particular form of ADR. In the decision

of House of Lords in Dunnett V. Railtrack ill (In railway administration, [2002]2 All ER
850, the Court had noticed that: “the encouragement and facilitating of ADR by the court in
an aspect of active case management which in turn is an aspect of achieving the overriding
objective. The parties have a duty to help the court in furthering that objective and therefore,
they have a duty to consider seriously the possibility of ADR procedures being utilized for
the purpose of resolving their claim or particular issues within it when encouraged by the
court to do so.”

How to make ADR mechanisms more viable?

We cannot stop the inflow of cases because the doors of justice cannot be closed. But there is
a dire need to increase the outflow either by strengthening (both qualitatively and
quantitatively) the capacity of the existing system or by way of finding some additional
outlets. In this situation ADR mechanism implementation can be such a drastic step for which
three things are required most:

• Mandatory reference to ADRs

• Case management by Judges

• Committed teams of Judges and Lawyers

Equal justice for all is a cardinal principle on which entire system of administration of justice
based. It is too deep rooted in the body and spirit of common law as well as civil law
jurisprudence that the very meaning which we ascribe to the word “justice” embraces it. We
cannot conceive justice which is not fair and equal. Effective access to justice has thus come
to be recognized as the most basic requirement, the most basic human right, in modern
egalitarian legal system which purports to guarantee and not merely proclaims legal rights to
all.

We should aim to achieve earlier and more proportionate resolution of legal problems and
disputes by:
• Increasing advice and assistance to help people resolve their disputes earlier
and more effectively;
• Increasing the opportunities for people involved in court cases to settle their
disputes out of court; and
• Reducing delays in resolving those disputes that need to be decided by the
courts.
To implement the noble ideas and to ensure the benefits of ADR to common people, the four
essential players (government, bench, bar litigants) are required to coordinate and work as a
whole system.

Case management includes identifying the issues in the case; summarily disposing of some
issues and deciding in which order other issues to be resolved; fixing timetables for the
parties to take particular steps in the case; and limiting disclosure and expert evidence.

• Government: Govt has to support new changes. If the govt support and implements
changes, ADR institutes will have to be set up at every level from district to national level.

• Bench: unless mindset of the judges are changed, there will be no motivation for

the lawyers to go to any of the ADR methods.

• Bar: the mindset of the members of the Bar is also to be changed accordingly

otherwise it would be difficult it is difficult to implement ADR. The myth that ADR was
alternative decline in Revenue or Alternative Drop in Revenue is now realizing that as more
and more matters get resolved their work would increase and not decrease.

• Litigants: few parties are usually interested in delay and not hesitate in taking a stand so as
to take the benefit if delay. Parties have to realize that at the end,

litigation in court may prove very costly to them in terms of both cost and

consequence.

Conclusion and suggestion:

ADR is quicker, cheaper, more user-friendly than courts. It gives people an involvement in
the process of resolving their disputes that is not possible in public, formal and adversarial
justice system perceived to be dominated by the abstruse procedure and recondite language of
law. It offers choice: choice of method, of procedure, of cost, of representation, of location.
Because often it is quicker than judicial proceedings, if can ease burdens on the Courts.
Because it is cheaper, it can help to curb the upward spiral of legal costs and legal aid
expenditure too, which would benefit the parties and the taxpayers.
In this juncture, few things are most required to be done for furtherance of smooth ADR
mechanisms. Few of them are:

Creation of awareness and popularizing the methods is the first thing to be done.

NGOs and medias have prominent role to play in this regard.

For Court- annexed mediation and conciliation, necessary personnel and infrastructure

shall be needed for which government funding is necessary.

Training programmes on the ADR mechanism are of vital importance. State level

judicial academies can assume the role of facilitator or active doer for that purpose.

While the Courts have never tired of providing access to justice for the teeming millions of
this country, it would not be incorrect to state that the objective would be impossible to
achieve without reform of the justice dispensation mechanism. There are two ways in which
such reform can be achieved- through changes at the structural level, and through changes at
the operational level. Changes at the structural level challenge the very framework itself and
requires an examination of the viability of the alternative frameworks for dispensing justice.
It might required an amendment to the Constitution itself or various statutes. On the other
hand, changes at the operational level requires one to work within the framework trying to
indentify various ways of improving the effectiveness of the legal system.

Needless to say, this will considerably reduce the load on the courts apart from providing
instant justice at the door-step, without substantial cost being involved. This is also avoid
procedural technicalities and delays and justice will hopefully be based on truth and morality,
as per acknowledged considerations of delivering social justice.
 Alternative Dispute Resolution in India
By - Sujay
The concept of Conflict Management through Alternative Dispute Resolution (ADR) has
introduced a new mechanism of dispute resolution that is non adversarial. A dispute is
basically ‘lis inter partes’ and the justice dispensation system in India has found an alternative
to Adversarial litigation in the form of ADR Mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal with the underlying
issues in dispute in a more cost-effective manner and with increased efficacy. In addition,
these processes have the advantage of providing parties with the opportunity to reduce
hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a
peaceful manner, and achieve a greater sense of justice in each individual case. The
resolution of disputes takes place usually in private and is more viable, economic, and
efficient. 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

Need of ADR in India:

The system of dispensing justice in India has come under great stress for several reasons
mainly because of the huge pendency of cases in courts. In India, the number of cases filed in
the courts has shown a tremendous increase in recent years resulting in pendency and delays
underlining the need for alternative dispute resolution methods. It is in this context that a
Resolution was adopted by the Chief Ministers and the Chief Justices of States in a
conference held in New Delhi on 4th December 1993 under the chairmanship of the then
Prime Minister and presided over by the Chief Justice of India.

It said: "The Chief Ministers and Chief Justices were of the opinion that Courts were not in a
position to bear the entire burden of justice system and that a number of disputes lent
themselves to resolution by alternative modes such as arbitration, mediation and negotiation.
They emphasized the desirability of disputants taking advantage of alternative dispute
resolution which provided procedural flexibility, saved valuable time and money and avoided
the stress of a conventional trial".

In a developing country like India with major economic reforms under way within the
framework of the rule of law, strategies for swifter resolution of disputes for lessening the
burden on [1]the courts and to provide means for expeditious resolution of disputes, there is
no better option but to strive to develop alternative modes of dispute resolution (ADR) by
establishing facilities for providing settlement of disputes through arbitration, conciliation,
mediation and negotiation.2

Impact/resulting acts of ADR:

The technique of ADR is an effort to design a workable and fair alternative to our traditional
judicial system. It is a fast track system of dispensing justice. There are various ADR
techniques viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private
judging, final offer arbitration, court-annexed ADR and summary jury trial.

These techniques have been developed on scientific lines in USA, UK, France, Canada,
China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant
movement in these countries and has not only helped reduce cost and time taken for
resolution of disputes, but also in providing a congenial atmosphere and a less formal and less
complicated forum for various types of disputes.

The Arbitration Act, 1940 was not meeting the requirements of either the international or
domestic standards of resolving disputes. Enormous delays and court intervention frustrated
the very purpose of arbitration as a means for expeditious resolution of disputes. The
Supreme Court in several cases repeatedly pointed out the need to change the law. The Public
Accounts Committee too deprecated the Arbitration Act of 1940. In the conferences of Chief
Justices, Chief Ministers and Law Ministers of all the States, it was decided that since the
entire burden of justice system cannot be borne by the courts alone, an Alternative Dispute
Resolution system should be adopted. Trade and industry also demanded drastic changes in
the 1940 Act. The Government of India thought it necessary to provide a new forum and
procedure for resolving international and domestic disputes quickly.

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. Conciliation has
been given statutory recognition as a means for settlement of the disputes in terms of this Act.
In addition to this, the new Act also guarantees independence and impartiality of the
arbitrators irrespective of their nationality. The new Act of 1996 brought in several changes
to expedite the process of arbitration. This legislation has developed confidence among
foreign parties interested to invest in India or to go for joint ventures, foreign investment,
transfer of technology and foreign collaborations.

The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In
conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that
resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do
not develop strained relations; rather they maintain the continued relationship between
themselves.

Arbitration and Conciliation Act, 1996

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of
Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva
Conventions.)

Arbitration:

The process of arbitration can start only if there exists a valid Arbitration Agreement between
the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be
in writing. The contract, regarding which the dispute exists, must either contain an arbitration
clause or must refer to a separate document signed by the parties containing the arbitration
agreement. The existence of an arbitration agreement can also be inferred by written
correspondence such as letters, telex, or telegrams which provide a record of the agreement.
An exchange of statement of claim and defence in which existence of an arbitration
agreement is alleged by one party and not denied by other is also considered as valid written
arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the other party
does not cooperate, the party can approach the office of Chief Justice for appointment of an
arbitrator. There are only two grounds upon which a party can challenge the appointment of
an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper
qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or
panels of arbitrators so appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the
arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if
a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before
the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to
approach a court after the tribunal makes an award. Section 34 provides certain grounds upon
which a party can appeal to the principal civil court of original jurisdiction for setting aside
the award.

Once the period for filing an appeal for setting aside an award is over, or if such an appeal is
rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation

Conciliation is a less formal form of arbitration. This process does not require an existence of
any prior agreement. Any party can request the other party to appoint a conciliator. One
conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all
must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute
and the points at issue. Each party sends a copy of the statement to the other. The conciliator
may request further details, may ask to meet the parties, or communicate with the parties
orally or in writing. Parties may even submit suggestions for the settlement of the dispute to
the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms
of settlement and send it to the parties for their acceptance. If both the parties sign the
settlement document, it shall be final and binding on both.

Note that in USA, this process is similar to Mediation. However, in India, Mediation is
different from Conciliation and is a completely informal type of ADR mechanism.

Mediation

Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution",

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. Normally, all parties must view the mediator as impartial.

Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic,
workplace, community and family matters.

A third-party representative may contract and mediate between (say) unions and corporations.
When a workers’ union goes on strike, a dispute takes place, and the corporation hires a third
party to intervene in attempt to settle a contract or agreement between the union and the
corporation.

Negotiation

Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses

of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy
various interests. It is the primary method of alternative dispute resolution.

Negotiation occurs in business, non-profit organizations, government branches, legal

proceedings, among nations and in personal situations such as marriage, divorce, parenting,
and everyday life. The study of the subject is called negotiation theory. Those who work in
negotiation professionally are called negotiators. Professional negotiators are often
specialized, such as union negotiators, leverage buyout negotiators, peace negotiators,
hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers

Lok Adalat:

“While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards
ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987
is a uniquely Indian approach”.

It roughly means "People's court". India has had a long history of resolving disputes through
the mediation of village elders. The system of Lok Adalats is an improvement on that and is
based on Gandhian principles. This is a non-adversarial system, where by mock courts (called
Lok Adalats) are held by the State Authority, District Auth[2]ority, Supreme Court Legal
Services Committee, High Court Legal Services Committee, or Taluk Legal Services
Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually
presided by retired judge, social activists, or members of legal profession. It does not have
jurisdiction on matters related to non-compoundable offences.

There is no court fee and no rigid procedural requirement (i.e. no need to follow process
given by Civil Procedure Code or Evidence Act), which makes the process very fast. Parties
can directly interact with the judge, which is not possible in regular courts.

Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties
agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the
court sees some chance of settlement after giving an opportunity of being heard to the other
party.

The focus in Lok Adalats is on compromise. When no compromise is reached, the matter
goes back to the court. However, if a compromise is reached, an award is made and is binding
on the parties. It is enforced as a decree of a civil court. An important aspect is that the award
is final and cannot be appealed, not even under Article 226 because it is a judgement by
consent.

All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat
is deemed to be a Civil Court.

Lok Adalat (people’s courts), established by the government, settles dispute through
conciliation and compromise. The First Lok Adalat was held in Chennai in 1986. Lok Adalat
accepts the cases which could be settled by conciliation and compromise and pending in the
regular courts within their jurisdiction.

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. If the case is
already filed in the regular court, the fee paid will be refunded if the dispute is settled at the
Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while
assessing the merits of the claim by the Lok Adalat.

Main condition of the Lok Adalat is that both parties in dispute should agree for settlement.
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 the Lok Adalat.
Lok Adalat is very effective in settlement of money claims. Disputes like partition suits,
damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for
compromise through an approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and
free of cost.

Addressing the Issues Pertaining to ADR2

The reasons for choosing or not choosing ADR

The alternative mechanisms of dispute resolution are less expensive, quicker, and less
intimidating than the machinery of courts. They do not involve court fees, the procedure
adopted in these forums is less technical and presence of lawyers is not mandatory. Parties
can go directly and plead before these forums. Also, they are more sensitive to the concerns
of the disputing parties. They dispense better justice, result in less alienation between the
parties and satisfy their desire to retain a certain degree of control over the process of
resolution[1 - Union Minister Arun Jaitley, March 14, 2001; See http://pib.nic.in.].

Whether the defects of the court system influence the choice?

With the adoption of the Constitution guaranteeing freedoms to the citizens and the
establishment of an independent and powerful judiciary, with powers of judicial review, the
spread of literacy and the considerable increase in the level of awareness of their social,
economic and political rights by larger sections of the population, the demands on the justice
delivery and dispute resolving institutions came under tremendous pressure, as reflected in
the number of cases that are taken to the courts. The most telling index of the malaise is the
sheer size and number of cases pending in courts. While the number of the fresh institution of
cases steadily increased, the rate of disposal of cases, especially at lower levels, remained
static or worse. All this prompted the search for alternatives to court litigation. Also, the
justice system is top heavy – lawyers, courts, and outdated legal practices and jargon
dominate it. Traditional civil litigation imposes substantial costs and delays long before a trial
commences. Further, the congestion of trial calendars in most courts, caused in part by a

2
By Madonna Jephi -January 12, 2019 (http://lawtimesjournal.in/addressing-the-issues-pertaining-to-adr/)
substantial criminal docket, contributes substantially to that cost and delay. In this
environment, alternative processes for dispute resolution offer many advantages.

The realization was there that it is in no-one’s interest to create a litigious society. The
government wanted people to make responsible choices about whether a case is worth
pursuing; whether to proceed by negotiation, court action, or in some other way; and how far
to take a relatively minor issue. This has led to the Government focusing on legal aid
spending on social welfare schemes and improving the range of options available to people
for resolving disputes without a formal court adjudication process. Therefore, several
different models of ADR, including mediation, arbitration and ombudsman schemes, are
being made available to citizens. ADR offers a number of possible advantages. It can be less
formal and adversarial; and in some cases, it may allow disputes to be resolved more quickly
and cheaply.

Whether any cultural or mental factors influence the choice of ADR?

The interest in ADR movement in this country also stems from a desire to revive and reform
old and traditional mediation mechanism, that was in place before the advent of British rule.
The mediation, conciliation and negotiation adopted by various ADR providing forums
preserve important social relationships between disputing parties. All this has led to an
increase in the number of filing of suits and complaints before these forums.

Whether the cost and time are comparative advantages of ADR to litigation?

Time Since every person’s time has value in social life and the value is measured in terms of
either utility or in money, a person, who is capable of producing a most socially useful
product or service with appropriate skill or specialization, his time is more valuable than a
person, who has no such skill or specialization. This is also applicable in case of a company
or an Institution. If such individuals or company are locked up in any dispute, the same will
result in wasting of their time in an unproductive arena by diverting their mental and physical
faculties from other than their own useful purposes or faculties. The time that is wasted in
this manner is nothing but wasting more of the social energies in the wasteful expenditure,
which does not contribute to the wealth of the country. Any effort in a reduction in wastage
of one’s time in mundane and unproductive litigation is definitely a contributing factor for the
efficiency and growth of an individual and the State. The need for ADR has become more
urgent to Indian people in view of the opening up of the borders to the global competition.
There is the desirability of disputants taking advantage of ADR, which provides procedural
flexibility, saves valuable time and money and avoids the stress of a conventional trial.

Whether there are any institutional constraints on the existing ADR?

Arbitration, once considered an alternative to litigation, is now afflicted by the same

problems of cost, delay, complexity, and dependence on legal representation. Many questions
remain regarding their actual success in increasing efficiency and in providing broader access
to justice. Even though participants are generally pleased with the conciliatory,
comprehensible, and flexible procedures of ADR, but the efficiency gains are minimal. The
study of those cases, which were appealed from the arbitral tribunal to the Supreme Court of
India led to the conclusion that the aggregate costs for the courts, and average time to
disposition of cases, had not declined. A second challenge concerns the consequences of
ADR on access to justice. Critics argue that the restoration of traditional dispute resolution
mechanisms, as for example in India, subjects women to the application of discriminatory
social norms rather than the relatively fair justice of a rights-based legal system[2]. Coming
to the effectiveness of ADR, unlike a judge, a mediator or arbitrator has no power to order a
party to appear and defend a claim. Nor can a mediator or arbitrator compel the losing side to
comply with a decision. Sometimes the desire to remain on good terms with the other party or
to preserve one’s reputation provides the incentive to submit to an ADR process and abide by
its outcome.

Whether people trust ADR?

Even though with the emerging globalization, more and more matters are being taken out of
the normal courts and vested in regulators[3 - Electricity Regulatory Commissions, now
set-up in almost every state in India.]. people still faith in the higher judiciary. This is
evident from the number of appeals that come before the high courts and the Supreme Court
of India from awards of arbitrator and appellate tribunal bodies. (0 Whether people trust
ADR? Even though with the emerging globalization, more and more matters are being taken
out of the normal courts and vested in regulators. Y’ people still faith in the higher judiciary.
This is evident from the number of appeals that come before the high courts and the Supreme
Court of India from awards of arbitrator and appellate tribunal bodies.

Can the court system be replaced by the ADR?

The justice system has to serve everyone, regardless of means. Modem ways of funding
litigation, like ‘no win, no fee’ agreements, and a new “fast-track” court system, leading to
fixed-cost hearings, has thrown open access to justice to people on modest income who do
not qualify for legal aid, and dare not risk going to court at their own expense because of the
unpredictable cost. These changes will help to create a justice system that is no longer
daunting, uncertain and prohibitively expensive that ordinary people have no real access to
justice. People will be able to find out what their rights are, and if necessary protect and
enforce them, at a predictable and reasonable cost in a system which serves everyone. These
speedier justice delivery systems, through the process of reduction in procedural
technicalities, help to reduce the large number of cases on hand. ADR procedures help in the
reduction of the work-load of the courts and thereby help them to focus attention on the cases
which ought to be decided by courts. 106 All this only goes to prove that the existence of
both, court system, as well as ADR providing forms, has become life support system of
justice system of the country.

International Conference on ADR, Conciliation, Mediation and Case Management

Organised By the Law Commission of India at New Delhi on May 3-4, 2003.

Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India

The need for alternatives to the formal legal system has engaged the attention of the legal
fraternity, comprising judges, lawyers and law researchers for several decades now. This has
for long been seen as integral to the process of judicial reform and as signifying the `access-to
justice’ approach. In their monumental comparative work on civil justice systems, Mario
Cappelletti and Bryant Garth point out that the emergence of the right of access to justice as
“the most basic human right” was in recognition of the fact that possession of rights without
effective mechanisms for their vindication would be meaningless.1 It was not enough that
the state proclaimed a formal right of equal access to justice. The state was required to
guarantee, by affirmative action, effective access to justice. Beginning about 1965, in the
U.S.A, the U.K. and certain European countries, there were three practical approaches to the
notion of access to justice. The ‘first wave’ in this new movement was legal aid; the second
concerned the reforms aimed at providing legal representation for ‘diffuse’ interests,
especially in the areas of consumer and environmental protection; and the third, “the `access–
to–justice approach,’ which includes, but goes much beyond, the earlier approaches, thus
representing an attempt to attack access barriers in a more articulate and comprehensive
manner.”2 The last mentioned approach “encourages the exploration of a wide variety of
reforms, including changes in the structure of courts or the creation of new courts, the use of
lay persons and paraprofessionals both on the bench and in the bar, modifications in the
substantive law designed to avoid disputes or to facilitate their resolution, and the use of
private and informal dispute resolution mechanisms.

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1 M. Cappelletti and B. Garth, “Access to Justice - the worldwide movement to make rights effective: a general
report” in M. Cappelletti and B. Garth (eds.), Access to Justice–A World Survey, Volume I, Sijthoff &
Noordhoff – Alphanaanderijan (1978), 5 at 8-9. This shift occurred, according to the authors, simultaneous with
the emergence in the twentieth century of the “welfare state”.

2 Id. at 21. The authors explain (at 49): “We call it the `access-to-justice’ approach because of its overall
scope; its method is not to abandon the techniques of the first two waves of reform, but rather to treat those
reforms as but several of a number of possibilities for improving access.”

This approach, in short, is not afraid of comprehensive, radical innovations, which go beyond
the sphere of legal representation.”3

In India too the need to evolve alternative mechanisms simultaneous with the revival and
strengthening of traditional systems of dispute resolution have been reiterated in reports of
expert bodies. Reference in this context may be made to the Report of the Committee on
Legal Aid constituted by the State of Gujarat in 1971 and chaired by Justice P.N. Bhagwati
(as he then was) which inter alia recommended adaptation of the `neighbourhood law
network’ then in vogue in the U.S.A; the Report of the Expert Committee on Legal Aid:
Processual Justice to the People, Government of India, Ministry of Law, Justice and
Company Affairs (1973) (1973 Report) which was authored primarily by its Chairman Justice
V.R.Krishna Iyer (as he then was) which while urging ADR (lok nyayalayas) in identified
groups of cases exhorted the preservation and strengthening of gram nyayalayas; and the
Report of two-member Committee of Justices Bhagwati and Krishna Iyer appointed to
examine the existing legal aid schemes and suggest a framework of a legal services
programme that would help achieve social objectives [Report on National Juridicare Equal
Justice – Social Justice, Ministry of Law, Justice and Company Affairs (1977) (1977
Report)]. The last mentioned report formulated a draft legislation institutionalising the
delivery of legal services and identifying ADR, conciliation and mediation as a key activity
of the legal services committees. Each of these reports saw the process of improving access to
justice through legal aid mechanisms and ADR as a part of the systemic reform of the
institution of the judiciary coupled with substantive reforms of laws and processes. The
present have of legal reforms have only partly acknowledged and internalised the
recommendations in these reports. Still, the implementation of the reforms pose other kinds
of challenges. The attempt through the introduction of S.89 of the Code of Civil Procedure
1908 (CPC) is perhaps a major step in meeting this challenge.

The reasons for the need for a transformation are not much in dispute. The inability of the
formal legal system to cope with the insurmountable challenge of arrears argues itself.

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3 Id. at 52.

The Parliamentary Standing Committee on Home Affairs found that as of 2001, there were in
21 High Courts in the country, 35.4 lakh cases pending. 4 Of the 618 posts of High Court
judges there were 156 vacancies as on January 1, 2000. 5 The position in the subordinate
courts was even more alarming. There was a backlog of over 2 crore (20 million) cases for as
long as 25 to 30 years.6 Of these, there were over 1.32 crore (13.2 million) criminal cases and
around 70 lakhs (7 million) civil cases.7 The total number of subordinate judges 8 in all the
states and union territories in the country, as of September 1999 was 12,177.9

Despite this severe strain on resources, the performance of the subordinate judiciary has been
remarkable. A joint study by the Indian Law Institute and the Institute of Developing
Economies, Japan in March 2001, revealed that in a single year (1998) the number of cases
disposed of by the district and subordinate courts was 1.36 crores (13.6 million). 10 At the end
of every year, however, the pendency of cases remains at the figure of around 20 million,
which means the subordinate judiciary is running hard to remain at the same place.11

In its 120th Report in 1988, the Law Commission of India had recommended that “the state
should immediately increase the ratio from 10.5 judges per million of Indian
 ----------------------------------------------------------------------------------------------

4 J.Venkatesan, “Panel concern over backlog in courts”, The Hindu, New Delhi, March 10, 2002, 12: “The
Committee was particularly disturbed by the fact that cases were pending for over 50, 40 and 30 years in the
High Courts of Madhya Pradesh, Patna, Rajasthan and Calcutta. And more than 5 lakh cases were pending for
over 10 years – 2 lakhs in Allahabad, 1,46,476 in Calcutta 28,404 in Bombay and 5,050 in Madras.”

5 Indian Law Institute, Judicial System and Reforms in Asian Countries: The Case of India, Institute of
Developing Economies, Japan External Trade Organisation (IDE-JETRO), (March 2001) 39.

6 Ibid.

7 Id. at 35.

8 Id. at 6: This would include district and sessions judges, additional district and sessions judges,
subordinate/assistant sessions judges, chief judicial magistrates, metropolitan magistrates and judicial
magistrates. 9 First National Judicial Pay Commission Report (1999) 1229. The judge strength rose from 9232
in 1985 to 12771 in September 1995.

10 Indian Law Institute, Judicial System and Reforms in Asian Countries: The Case of India, Institute of
Developing Economies, Japan External Trade Organisation (IDE-JETRO), (March 2001) 37.

11 The same study (id. at 36) points out that at the end of 1998, there were 1.93 crore cases (19.3 million) which

were pending in the subordinate courts for less than ten years .

population to at least 50 judges per million within the period of next five years.” 12 In 2001,
the ratio remains at 12 or 13 judges per million population. 13 While it is debateable whether
this relating of the number of judges should be to the population as a whole or to the number
of cases in the various courts, there is no gainsaying that judicial officers are not paid very
well and work in deplorable conditions where basic infrastructure is unsatisfactory or
inadequate.14

All of the above should in fact persuade prospective and present litigants, as well as those
engaging with the formal legal system as judges and lawyers, to reservedly embrace the
notion of ADR, conciliation and mediation. However, it does appear there are many more
factors that ail the formal legal system which, if not adequately addressed in the proposed
alternative system, may hinder the move for transformation. This assumes particular
significance in the context of suggestions that the ADR, mediation or conciliation processes
should be court-annexed and institutionalised . I propose to highlight here a few of these
factors.
`Hidden’ and other costs One disincentive for a person to engage with the legal system is the
problem of uncompensated costs that have to be incurred. Apart from court fees, cost of legal
representation, obtaining certified copies and the like, the system fails to acknowledge, and
therefore compensate, bribes paid to the court staff, 15 the extra `fees’ to the legal aid

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12 120th Report of the Law Commission of India on Manpower Planning in the Judiciary: A Blueprint¸
Ministry of Law, Justice and Company Affairs, Government of India (1987), 3.

13 Recently, the Chief Justice of India said: “The reason why we do not have more judges across the board is
because the States are simply not willing to provide the finances that are required…The expenditure on the
judiciary in terms of the GNP is only 0.2 per cent; and, of this, half is recovered by the states through court fees
and fines. Given the attitude of the states, is it any wonder that the jails of our country are filled to the brim,
largely with undertrials.?”: “Speech by Hon’ble Mr.S.P.Bharucha, Chief Justice of India on 26th November
2001 (Law Day) at the Supreme Court” (2001) 8 SCALE J-13 at J-14.

14 This led to a public interest litigation by the All India Judges Association in the Supreme Court claiming
better conditions of work as well as an increased and uniform pay structure. See orders in All India Judges
Association v. Union of India (1992) 1 SCC 119; (1993) 4 SCC 288; (2000) 1 SCALE 136 and (2002) 3
SCALE 291.

15 For a study pointing to corruption prevalent in the district and subordinate courts in Delhi see, V.N.Rajan
and M.Z.Khan, Delay in Disposal of Criminal Cases in the Sessions and Lower Courts in Delhi, Institute of

Criminology and Forensic Science, (1982). The authors point out (at 42) “It was seen that those who
greased the palm of the readers and peons were able to get adjournments readily while others waited

lawyer,16 the cost of transport to the court, the bribes paid (in criminal cases) to the
policemen for obtaining documents, copies of depositions and the like or to prison officials
for small favours.17 In some instances, even legal aid beneficiaries may not get services for
`free’ after all.18 It is important to acknowledge the existence of a general distrust of the legal
system including it processes and institutions which are mystifying, alienating and
intimidating; distaste of lawyers and courts as they seem imposing and authoritarian; seeing
the whole legal process as of nuisance value resulting in irreversible consequences, an
uninvited `trouble’ that has to be got rid of. Unless frontally addressed, a court annexed or an
institutionalised ADR, mediation or conciliation system may soon be undermined by the
same problems that afflict the formal legal system. The attraction of the alternative system
would then lie in the promise of not only reduced costs and uncertainties but importantly a
liberation from the stranglehold of the `court annexed bureaucracy’.
The Law and Poverty Dimension There is an imperative need to acknowledge that those who
are economically and socially disadvantaged see the entire legal system as irrelevant to them
as a tool of empowerment and survival. The economically disadvantaged litigant is,
notwithstanding the present concerted moves to reach legal aid through a geographically wide
network of legal aid

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outside the court helplessly. To those who were unwilling to part with money, these court officials were not
prepared even to tell whether the presiding officer would come and the cases would be heard or not.”

16 Siraj Sait, “Save the legal aid movement”, The Hindu, June 29, 1997, V: “What is galling is that many
sleazy lawyers who get legal aid cases tell the poor victims that if they want result they must pay them extra
over what the Tamil Nadu Legal Aid Board pays them.”

17Kumkum Chadha, The Indian Jail: A Contemporary Document, Vikas Publishing Pvt. Ltd., 31 where she
talks of the system of a `setting’ for various tasks involving the prisoner having to depend on the jail official in
Tihar Jail in Delhi: “A minimum `setting’ even for the official to consider the request is Rs.500.”(emphasis in
original) William Chambliss, “Epilogue- Notes on Law, Justice and Society”, in William Chambliss (ed.),
Crime and the Legal Process, McGraw Hill Book Co. (1969) points out (at 421): “When a police force or an
entire legal system is found to be engaged in a symbiotic relationship with professional criminals, the cause of

this unfortunate circumstance is seen as residing in the inherent to 900 corruptibility of the individuals
involved.”

18 An empirical study of the working of legal aid schemes in Punjab showed that beneficiaries of legal aid
complained that “they were provided only the services of a counsel and nothing beyond” and that they “had to
spend amounts varying between Rs.100 for their cases in lower courts”: Sujan Singh, Legal Aid: Human right to
Equality, Deep and Deep, (1998), 272.

institutions,19 unable to effectively access the system as they encounter barriers in the form
of expenses, lawyers and delays. The formal system, as presently ordered, tends to operate to
the greater disadvantage of this class of society which then looks to devising ways of
avoiding it rather than engaging with it. Without fundamental systemic changes, any
alternative system, however promising the results may seem, is bound to be viewed with
suspicion. The participatory nature of an ADR mechanism, which offers a level playing field
that encourages a just result and where the control of the result is in the hands of the parties,
and not the lawyers or the judges, would act as a definite incentive to get parties to embrace
it.
 The Parallel system The noted economist Hernando de Soto, in a path-breaking study of
encroachments in Lima in Peru, points out that although the parallel system began as a by-
product of the formal system, it has for long been the only system with which the police, the
lawyers, the judiciary and the litigant are prepared to readily engage.20 A similar systematic
study in several areas of disputes in India might well reveal the same position. For many a
litigant, the engagement with the parallel system is not a matter of choice. For the others it
becomes a source of additional means of livelihood. On the other hand, the formal legal
system also appears to be in the stranglehold of those for whom the economic stakes in
working the system to suit their ends is too high to permit any meaningful change that can
threaten their source of living. The attitude towards maintaining the status quo therefore gets
firmly entrenched. The resultant cynicism that has set into the system, coupled with a
skepticism of all reform requires to be rooted out gradually but firmly if the reform agenda
has to be implemented progressively. This would require building in deterrent disincentives
for engaging with the parallel system that presently poses a serious threat to the legitimacy of
the formal system. This may have to be coupled with an audit of the formal system, both
financial and social, to pinpoint those areas that

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19 The Legal Services Authorities Act 1987 mandates the setting up o legal aid committees at the state, district
and taluka levels. These are apart from committees annexed to each of the High Courts and the Supreme Court.

20 Hernando de Soto, The Other Path, Harper & Row (1989). This seminal work could form a model for
initiating a study of the working of the criminal justice system. This might reveal the actual costs involved in
several stages of the system.

require immediate attention and correction. Since the legitimacy of the ADR mechanism is
premised on parties consenting to the process, the costs of engaging with either the parallel
system or benefiting from the ills of the formal system have to be raised considerably high to
drive the parties to consent to the ADR processes.

From an economic point of view, it should be possible to argue that those litigants who as a
class or group burden the court system the most should either bear the proportionate
`carrying’ costs of the litigation load or mandatorily be driven to an ADR process. For
instance, if the government is the major litigant in the courts, it should not be open for the
government to both avoid the costs of the litigation it generates and also resist attempts at
being driven to ADR processes. On the other hand it might well take the lead in offering to
participate in such processes in all prospective and current litigation which involves the
government as a party.

Audit of Lok Adalat mechanisms

It is a fact that a large number of civil disputes pending in the courts, and to a small extent
petty criminal matters, have been `disposed of’ through the lok adalats that are a permanent
`embedded’ feature of the functioning of legal services authorities. While one point of view
sees this as a success, another questions whether the lok adalat as presently institutionalised is
really a tool of `case management’ which essentially addresses the problems of an over-
burdened judiciary and not so much as an instrument of justice delivery for the litigant. If the
`success’ of the lok adalat stems from negative reasons attributable to the failures of the
formal legal system, the utility of this mechanism may also be short-lived. In other words if
the incentive for litigants to accept lok adalat decisions is that if they didn’t they would be
faced with the prospect of further delays, uncertainties and costs, it constitutes a confirmation
for them that the formal legal system is unable to provide an acceptable quality of legal
services or justice. This in turn would not augur well for the legitimacy of the system in the
long run. What this then means is that there has to be a gradual but conscious effort to
offering positive reasons, and not negative ones, for litigants to be willing consumers of the
ADR processes. An audit of the existing ADR mechanisms from the point of view of
`customer satisfaction’ would help shape the programmes for the future in order to maximise
the `success’.

An ADR system that is both transparent and accountable is in the circumstances imperative
in order to make the crucial difference to those presently engaged in the formal legal system
which is largely perceived as lacking in this area. As has been pointed out by several
speakers, a successful implementation of ADR processes will have to be preceded by an
identification of categories of cases or specific dispute areas that are most amenable to their
introduction.

Despite the challenges that face the ADR processes today, the benefits in the long run that
they are capable of generating appear to outweigh the factors that may in the short run deter
their enforcement. We have listened to many positive experiences of ADR in the past two
days and this should encourage us to move forward with the reform process. The diverse
nature of the country’s population defies any uniform approach or set pattern and this is
perhaps the biggest strength of the ADR mechanisms. Their flexibility and informality, the
scope they offer for innovation and creativity, hold out the promise of a great degree of
acceptability lending them the required legitimacy. Their utility as a case management tool
cannot be overemphasised. ADR processes provide the bypasses to handle large chunks of
disputes thus leaving the formal legal system to handle the more complex litigation. Even
while they do not offer to be a panacea for all the ills of the formal legal system, ADR
processes offer the best hope yet of complementing and helping to fortify the formal legal
system.

On Line Dispute Resolution (ODR)3

 The Need for an Online Dispute Resolution Mechanism

The Fourth Industrial Revolution – driven by rapid technological change and digitalization –
has already had a profound impact on global trade, economic growth, and social progress. E-
commerce has generated trillions of dollars in economic activity in recent years and continues
to accelerate due to the ability of data to move across the borders. It underpins new business
models, boosting global GDP by 10% in the last decade alone.

3
https://www.drishtiias.com/daily-updates/daily-news-editorials/the-need-for-an-online-dispute-resolution-
mechanism
Recently, the government of India announced policy initiatives designed for large e-
commerce platforms. Still, there is a long way to go when it comes to online dispute
mechanism.

 What is ODR?

Online Dispute Resolution (ODR) has been defined to mean utilizing information technology
to carry out alternative dispute resolution. ODR is a means of dispute settlement whether
through conciliation or arbitration, which implies the use of online technologies to facilitate
the resolution of disputes between parties. The information management and communication
tools in ODR may apply to all or part of the proceedings, and also have an impact on the
methods by which the disputes are being solved.

 ODR in India

United Nations Commission on International Trade Law (UNCITRAL) has adopted the
UNCITRAL Model Law on International Commercial Arbitration in 1985 and the
UNCITRAL Conciliation Rules in 1980.

The General Assembly of the United Nations has recommended the use of the said Model
Law and Rules in cases where a dispute arises in the context of international commercial
relations and the parties seek an amicable settlement of that dispute by recourse to
conciliation.

India has also incorporated these uniform principles of alternative dispute resolution in the
Arbitration and Conciliation Act, 1996 that was amended in the year 2015. The Arbitration
Act provides for alternative dispute resolution mechanisms like arbitration, conciliations etc
for national and international stakeholders.

Measures have been taken by the Ministry of Law and Justice to introduce Online Dispute
Resolution through mediation, arbitration, and conciliation.

 Need

Disputes resolution is a tricky affair for all stakeholders including courts, government,
companies, individuals, international organizations, etc.

This is more so where the conflict of law is involved as different countries may have different
laws for dispute resolution.
To reduce the hardships of such disputes, countries should adopt a model code of conduct
that was incorporated in their respective domestic laws.

Indian judicial system is already burdened with piles of cases, things will become much
worse with the issues of increasing e-commerce disputes.

For limiting the role of national courts and to give primacy to the will of the parties in
establishing the procedure for the settlement of their disputes.

Securing procedural fairness by means of a limited number of provisions from which the
parties could not agree to depart.

Putting in place rules which advance arbitration, even if the parties have not reached
agreement on all relevant procedural matters.

In spite of the drawbacks linked with online arbitration, it remains one of the most significant
methods of resolving Business to Business (B2B) and Business to Consumer (B2C) disputes
in the current era.

 Challenges

Arbitration proceedings have not been widely practiced in India. To add to it, a still spreading
technology of access to internet connectivity in the remote areas impedes a quick and
welcoming approach towards online arbitration/ODR proceedings in the Indian milieu.

Infrastructural and institutional limitations curtail the rapid growth of ODR in almost all
developing countries including India.

Online arbitration is not found to be a suitable option for criminal matters and matrimonial
disputes. Also, the education barrier and lack of access to technology is another main
drawback behind the implementation of online arbitration in India.

The ODR mechanism has not been able to inculcate trust and confidence amongst people for
obvious constraints of technology, awareness and apprehensive, sceptical approach of people.
The trust and confidence in such an online methodology can be developed only with time and
built on experience.

Limited by lack of physical existence and face-to-face interaction between the parties to the
dispute. Also, the mechanism is also deemed to be limited to resolve disputes of online
business and transaction.
The uneven distribution of technology, internet and e-commerce opportunities in the
developing countries impedes the acceptance and recognition of ODR mechanism.

Lack of training to lawyers impedes quick and healthy acceptance of the phenomenal dispute
resolution mechanism and thus, there is a need to spread awareness through seminars,
training, and campaigns to make lawyers and people legally conscious of the possible
measures of dispute resolution.

 Way Forward

Measures should be taken to face the upcoming challenges. If measures towards the same are
not taken, then ODR proceedings in India may only be limited to theories redundant and
unused.

There is a crying need to develop an appropriate complaint handling mechanism to address

disputes that arise on e-commerce platforms.

Any such system we build should be capable of functioning online and operating at a scale
that enables it to deal with the high volume of disputes they will doubtless need to process.
Ideally, they should be capable of processing some portion of the disputes using automated
decision-making algorithms that leverage the digital nature of the platform and the underlying
e-commerce transactions.

If we can build a system that addresses these needs of the platform economy, there is no
reason why some or all of these processes cannot, in time, be applied to traditional disputes as
well.