NAME : MANISHA VERMA

COLLEGE : SARSUNA LAW COLLEGE

SEMESTER : VI
UID : 20261127141

COURSE TITLE : ALTERNATIVE DISPUTE RESOLUTION

COURSE CODE : LB606CL

PROJECT NAME : EVOLUTION OF ALTERNATIVE

DISPUTE RESOLUTION SYSTEM IN
OUR MODERN SOCIETY
FACULTY NAME : S. S. B. MADAM
 INDEX OF CONTENTS

Sl. Particulars From To

1. Introduction 3 3

2. Meaning of Alternative Dispute Resolution 4 4

3. Evolution of Alternative Dispute Resolution 5 7

4. Various Modes of Alternative Dispute Resolution 8 9

5. Bibliography / Citations 10 10

6. Acknowledgement 11 11

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 1. INTRODUCTION

The justice delivery system is vital to the promotion of public interest and the maintenance of
social order. Since the beginning, some sort of dispute resolution has been needed. For the
administration of justice, an efficient mechanism for resolving disputes is needed. The courts
use ethical principles to administer justice, which exposes social values. Every civilised
society is built on the basis of justice. While litigation is the most common form of dispute
resolution in India, other forums are also commonly used.

To seek justice in the courts, one must first go through the time-consuming and costly legal
process. In addition, a substantial portion of India’s population is illiterate and lives in
poverty. As a result, they are utterly unaware of court proceedings, and when met with
judicial machinery, they are scared and perplexed. Outside of the formal legal system, India
has a long history of promoting dispute resolution. The provision of judicial and non-judicial
dispute-resolution systems to which all people have fair access for the resolution of legal
disputes and the protection of their constitutional and legal rights is one of the most essential
duties of a welfare state.

Alternative Disputes Resolution is a kind of technique which acts as a means to settle a

dispute between two parties outside the ordinary law courts. At present times this system of
disputes resolution has been adopted as a tool to help the courts of justice in solving issues
without any unnecessary delay. The primary function of courts is to administer justice
between the parties who are before it. It is an obligation upon the courts to settle the litigation
within a reasonable time period which is a hallmark of effective justice delivery system.

In India, the introduction of ADR in the administration of justice has made significant
progress in order to ensure effective settlement of disputes between the parties. There are
several alternatives available to the parties to dispute by means of which disputes between
them are resolved. It is pertinent to mention here that by the inclusion of ADR practices the
pendency of cases before the courts have lessen the burden of courts to a great extent which
is a remarkable feature of this mechanism. The concept of ADR has achieved great
importance because of historical reasons. It was realized that the regular court practice is not
only time consuming but it is expensive as well because of which alternative method of
solving disputes came into existence. This system of resolving disputes has been
acknowledged not only at domestic level but it has achieved global acceptance too.

The main purpose of ADR is to resolve the conflict in a more effective and expeditious
manner. It aims to provide a remedy to an aggrieved party which is cheap, speedy and less
formalistic.

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 2. MEANING OF ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution is a way to resolve disputes without dragging it into the court.
It is cost-effective, time-saving, and also decreases the burden of the court. The MNCs and
other companies frequently use this method to resolve the disputes between them, as it
maintains their secrecy so that the disputes don’t affect their reputation. ADR is mainly of
two types: mediation and arbitration. These methods of ADR provide settlement between the
parties so that no party has to bear all the loss and both of them come to a mutual settlement
through which both get benefited. These processes are used by private entities and are mainly
helpful in solving disputes which arise between family members, neighbours, partners,
businesses, etc.

The term alternative dispute resolution has been explained as a dispute resolution method that
is very small of or alternative to costly and time-consuming justice delivery system. The
ADR refers to the whole thing which encourages settlement negotiation in which parties are
encouraged to discuss without deviation to each other any other lawful method, to arbitration
method or mini-trials that is similar to the court proceeding system. This method has planned
to handle all the problems of society or to make possible societal development issues within
the ambit of ADR. Ultimately ADR system wishes to make available inexpensive, easy, rapid
and easy to get to justice. ADR method is non-judicial body in nature and suitable for all
litigious issues which can be resolved under the law by agreement between the parties.

An alternative which means, that the parties have freedom of choosing alternative to litigation
at their own choice. It does not mean the choice an alternative court but something which is
an alternative to court procedure or something which can operate as court annexed
procedure. Dispute must be resolved at minimum possible cost both in the term of money so
that more time and more resources are spared for constructive pursuits. All the legal systems
are trying to attain legal idea that whenever there is wrong there must be a remedy so that no
one shall have to take law into his own hands. Court has become over crowded with litigation
and large numbers of cases are pending in the court which ultimately leads to dissatisfaction
among the people regarding the justice delivery system and its ability to dispense justice. It is
important that this dissatisfaction can be restored and mechanism be adopted which do not
have complexities of long drown litigation procedure but be as effective and binding on the
parties adopting it.

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 3. EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION

Though arbitration prevailed in India, in the form of panchayats (which have been now given
recognition in the Constitution of India) before the Britishers came in and established their
authority. Alternate Dispute Resolution method is not a fresh practice for the people of India.
In India, this alternative system was practiced from ancient time and at that time arbitration,
conciliation and mediation were only the method or alternative to settlement of dispute
without intervention of formal legal method. In the ancient and medieval periods disputes
were resolved in an informal manner by an impartial third person who was either an elderly
person or village chief. The early Aryans were of the opinion to resolve the disputes through
wisdom, reason, and prudence. This was the pillar for mediation which is used till now.

In 1923, the League of Nations gathered and agreed to the Geneva Convention. The Geneva
Convention also contained clauses for arbitration. The first arbitration dedicated provision in
the Civil Procedure Code, 1908 which had Section 89 providing for arbitration but the same
was repealed by Section 49 and Schedule III to the Arbitration Act, 1940. Prior to enactment
of the Arbitration Act, 1940, the Britishers enacted Arbitration (Protocol and Convention)
Act, 1937 wherein the Preamble of the Act stated that India was signatory as a State to the
Protocol on arbitration as established by League of Nations. The League of Nations intended
to bring the world closer through trade which made it realise the importance of arbitration. As
a result, the Protocol on Arbitration Clauses, 1923 came into existence. There were several
lacunae in the Protocol, hence, a need for amendment was felt.

The League of Nations came up with another Convention for Enforcement of Foreign
Arbitral Awards which was lacking in the 1923 Convention. This Convention of 1927 is also
known as the Geneva Convention of 1927. This Convention formed the basis for other
enactment i.e., the Arbitration (Protocol and Convention) Act, 1937. Section 3 of the
Arbitration (Protocol and Convention) Act, 1937 refers to the existence of the Arbitration
Act, 1899.

The Arbitration Act, 1940 came into picture repealing all the previous laws governing
arbitration. The Arbitration (Protocol and Convention), 1937 failed to achieve its objective.
Then after several years of work, in 1958, the world came up with a convention i.e., the New
York Convention, which is still running its course till date. Then, the Arbitration Act, 1940
was repealed and replaced by the Arbitration Act, 1960. The New York Convention inspired
another legislation in the Foreign Awards (Recognition and Enforcement) Act, 1961 which
was lacking in the Arbitration Act, 1960.

In 1981, in Guru Nanak Foundation v. Rattan Singh, Desai J. observed with regards to the
1961 Act that the arbitration system has become ineffective. It observed that “the way in
which the proceedings under the act are conducted and without an exception challenged in
courts, has made lawyers laugh and legal philosophers weep. Experience shows and law
reports bear ample testimony that the proceedings under the act have become highly
technical and accompanied by unending prolixity, at every stage providing a legal trap to the
unwary.” The point was that even in cases if the arbitrator passed an arbitral award, the

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parties used the provisions of the Act to challenge the award. This observation presented the
1961 Act as an additional layer which party may choose or not, prior to the litigation process.
The lacunae in the provisions of the 1961 Act, made it redundant and people ended up
approaching the courts for litigation.

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 Code of Civil Procedure (Amendment)
Act 1999, Arbitration and Conciliation Act 1996, Legal Services Authorities Act, 1997 and
Legal Services Authorities (Amendment) Act, 2002. The Parliament apart from litigants and
the general public as also the statutory authorities like Legal Services Authority have now
thrown the ball into the court of the judiciary. What therefore, now is required would be
implementation of the Parliamentary object. The access to justice is a human right and fair
trial is also a human right.

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

The 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 endeavour to bring about a reconciliation between the parties, where it
is possible according to nature and circumstances of the case.

Also, 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.

Arbitration as a process was meant to be cost effective and time efficient, but the 1961 Act
failed miserably to achieve this objective. This Act would be further repealed and replaced by
the Arbitration and Conciliation Act, 1996. In 1985, United Nations Commission on
International Trade Law (UNCITRAL) presented a comprehensive model for arbitration. The
present Arbitration and Conciliation Act, 1996 is based on that UNCITRAL model. The
Arbitration and Conciliation Act, 1996 has been subjected to two more amendments in 2015
and 2019.

Today with the backlog of cases in courts across the country slowly being reduced, ADR is
increasingly being explored, however; ADR in India is still relatively in its infancy stage.

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Laws Related to ADR in India

• Civil Procedure Code 1908

• India Arbitration Act, 1899
• The Arbitration (protocol and convention) act 1937
• The Arbitration Act of 1940
• Arbitration and Conciliation Act, 1996

The Indian Legal System has a huge number of pending cases due to an increase in offenses
and the long procedures used by the court to solve a case. It is very important to lower the
burden of cases by not dragging petty issues before the court and handling such cases outside
the court. ADR plays a very important and effective role in Indian society. It has undoubtedly
a positive effect on Indian society as it helps to resolve disputes quickly and at less cost.
There are certain cases that individuals can solve through settlements. This is important as it
saves time and money and also the relation between the parties. In courts, one party wins and
the other loses due to which all the consequences are faced by the losing party which builds
the enmity between the parties but through ADR methods, both the parties understand each
other’s conditions and come to a mutual settlement.

Thus, it creates a win-win situation for both parties. The other main effect of ADR is that it
maintains the privacy of both parties. If the case is brought before the court, then it becomes
public as all the proceedings are noted and published. Thus, the dispute between the parties
becomes public while resolving through ADR, privacy is maintained and the details of the
dispute are kept secret.

Thus, ADR is a very important method to resolve the disputes that are not that serious to be
dragged before the court. Also, in Indian society, it has a positive effect as it saves time,
money, and relation.

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 4. VARIOUS MODES OF ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution is kind of method where an independent person assist citizen
in dispute, strive to the issues among them. An ADR aid disputant to settle their dispute
outside the courtroom and it is very flexible and can be used for almost any kind of dispute.

Kinds of alternative dispute resolution practice are as follows –

Arbitration – Arbitration, a type of alternative dispute resolution (ADR), is a strategy for

resolving conflicts outside of the court system in which the parties to a disagreement refer it
to one or more people, known as arbitrators, to whom they intend to be bound by their
judgement. It is a method of dispute settlement in which a third person examines the evidence
in the case and renders a legally enforceable decision for both parties. Arbitration awards
have limited right of review and appeal. In India, if the matter is referred to arbitration, then
the provisions of the Arbitration and Conciliation Act, 1996 will apply.

The main types of ADR are as under:

▪ Voluntary Arbitration;
▪ Compulsory Arbitration.
▪ Other Types of Arbitration
▪ Ad-hoc Arbitration;
▪ Institutional Arbitration;
▪ Statutory Arbitration;
▪ Domestic or International Arbitration

Conciliation – It is a form of alternative dispute resolution in which the parties to a dispute

hire a conciliator to help them resolve their issues individually. They do this by reducing
conflicts, strengthening coordination, identifying problems, offering technical assistance,
discussing possible solutions and bringing about a negotiated settlement. In this manner, it is
a bit different from Arbitration. It is a consensual process in which the parties involved are
free to reach an agreement and try to resolve their disagreement through conciliation. The
method is versatile, which helps the parties to determine the time, duration and content of the
conciliation procedure. Those proceedings are seldom public. These are interest-based, as the
conciliator must take into account not only the legal positions of the parties but also their;
economic, financial and/or personal interests when negotiating a settlement. In the Indian
sense, the terms conciliation and mediation are synonymous. Conciliation is a cooperative
mechanism through which the conciliator, a qualified and professional neutral, facilitates
negotiations between the disputing parties and assists them in recognizing their differences
and desires in order to reach an arrangement that is mutually acceptable. Once a settlement
has been found before a conciliator between the parties to the conflict, the resolution has the
effect of an arbitration award and is legally tenable in any court in the country. Many trade
disputes, in which it is not necessary that a binding and enforceable decision should take
place, are subject to conciliation. Conciliation may be especially appropriate where the
parties to the conflict seek to preserve and sustain their commercial relations.

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Mediation – Today, mediation is a voluntary and informal method of dispute resolution
throughout the world. It is a simple, voluntary, party-centred and structured negotiation
process in which a neutral third party helps parties resolve their disputes friendly through the
use of specified communication and negotiation techniques. Mediation is a process where the
parties are themselves in control of it. The mediator’s role is strictly that of a facilitator,
assisting the parties in reaching a negotiated settlement of their disagreement. The mediator
takes no decisions and does not enforce his opinion on what should be a fair settlement. Both
sides meet with an experienced neutral mediator during the mediation process. The session
starts with each side explaining the issue from their point of view, and the remedy they seek.
Once the respective view of each party is discussed, the mediator then splits them into private
rooms, initiating a “caucus conference” process and then “joint meetings with the parties.”
Both sides agree to the limit. The mediator does not have the power to dictate his decision
regarding the party. Mediation allows a conflict to be handled swiftly, with minimal stress
and expense, while still preserving the parties’ relationship and maintaining anonymity.

Judicial settlement – Section 89 of the Code of Civil Procedure also refers to judicial
settlement as one of the alternative modes of resolution of disputes. There are, of course, no
specific rules for such settlements framed up to now. The term “Judicial Settlement” is
however specified in Section 89 of the Code. It was provided that the provisions of the Legal
Services Authority Act, 1987, would apply when there is a judicial settlement. This means
that the Judge concerned, seeks to settle the dispute between the parties in a legal settlement
amicably. Such settlement shall be deemed to be an agreement within the scope of the Legal
Services Authority Act, 1987, if any friendly settlement is resorted to and reached in the case
at question. Section 21 of the Legal Services Authorities Act, 1987 specifies that each Lok
Adalat award shall be deemed a Civil Court decree. India has no written guidance on judicial
settlement

Lok Adalat – The idea that is gaining popularity is that of Lok Adalats or the courts of the
people as formed by the government to settle disputes through conciliation and compromise.
It is a judicial body and a dispute settlement organization established for social justice by the
citizens themselves, based on the settlement or agreement obtained through formal
negotiations. The first Lok Adalats was conducted as far back as 1982 in Una village of
Junagadh (Gujrat). Adalats also recognize cases within their jurisdiction which are pending in
regular courts. Section 89 of the Code of Civil Procedure also provides for the appeal to the
Lok Adalat of pending Civil disputes. When the matter is referred to the Lok Adalat then it
will follow the provisions of the Legal Services Authorities Act, 1987. The holding of Lok
Adalat is governed by Section 19 of the Legal Services Authorities Act, 1987.

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 5. BIBLIOGRAPHY / CITATIONS

References:

1. https://blog.ipleaders.in/models-of-alternative-dispute-resolution/
2. Legal Studies and Research
3. https://www.scconline.com/blog/post/2021/02/07/evolution-of-adr-mechanisms-
in-india/
4. www.lawoctopus.com
5. www.legalservicesindia.com
6. https://viamediationcentre.org/readnews/MzEx/Evolution-and-Codification-of-
ADR-mechanism-in-India

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 6. ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to our teacher for their guidance and constant supervision as well as for
providing necessary information regarding the project & also for their support in completing
the project.

I would like to express my gratitude towards my parents &friends for their kind co-operation
and encouragement which help me in completion of this project.

My sincere thanks and appreciation also goes to my colleagues in developing the project and
people who have willingly helped me out with their abilities.

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