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“Law Master’s” Publication “Introduction to ADR”
Prof. S.D. Bhosale
(..1..)
Introduction
(Alternative Dispute Resolution)
QUESTION BANK
Q. 1. Explain the concept of ADR and its growing importance in dispute resolution.
Q. 2. Give the meaning of alternative dispute resolution (ADR) system. State which
disputes are suitable to ADR process?
Q.3. What is Alternative Dispute Resolution (ADR)? For which disputes it is more
suitable?
Short Notes
1. Alternative Dispute Resolution in Co-operative and Banking matters.
2. Need of ADRs.
3. Co-operative matters.
4. ADR in consumer matters.
Table of Content
Introduction ....................................................................... Error! Bookmark not defined.
(Alternative Dispute Resolution).........................................................................................1
I. Introduction:-....................................................................................................................2
II. History of alternative dispute resolution in India:-.........................................................3
III. Need for the Alternative Dispute Resolution:-..............................................................3
1. Less time consuming:-.................................................................................................3
2. Cost effective:-.............................................................................................................3
3. Free from technicalities:-.............................................................................................4
4. People can freely express themselves:- .......................................................................4
5. Effective way of dispute resolution:-...........................................................................4
6. Preserve interest of parties:- ........................................................................................4
IV. Various Modes of alternate dispute resolution:- ...........................................................4
(a) Arbitration:-................................................................................................................4
(b) Conciliation:-..............................................................................................................4
(c) Mediation:- .................................................................................................................4
(d) Negotiation:- ..............................................................................................................4
(e) Lok-Adalat:- ...............................................................................................................5
place in coming topics):- .....................................................................................................5
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“Law Master’s” Publication “Introduction to ADR”
Prof. S.D. Bhosale
“Don’t fight; let us resolve the dispute amicably.”
I. Introduction:-
In India, presently, we have almost four crore pending cases before the Supreme
Court, various High Courts, and a number of District and Subordinate Courts. Indian
judiciary is overburdened. Moreover, it takes a lot of time and cost in deciding cases
before a Court. The maxims “delay defeats justice” and “justice delayed is justice
denied” suggest that delay in disposal of cases defeats justice. Delay in deciding cases
is the biggest drawback of the administration of justice in India as well as worldwide.
Delay, expensive, overburdened and rigidness are main drawbacks of a conventional
judicial system worldwide. It makes justice unavailable to all, specifically to poor
persons.
Therefore, a dire need was felt to provide cheap, simple, quick and accessible
justice to all. To achieve these objects, some alternatives to conventional judicial
system were found out. These alternatives to the conventional judicial system are
popularly known as “Alternative Dispute Resolution” or “ADR” in short. It includes
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“Law Master’s” Publication “Introduction to ADR”
Prof. S.D. Bhosale
arbitration, conciliation, mediation, Lok-Adalat, negotiation etc.
II. History of alternative dispute resolution in India:-
The first law on alternate dispute resolution in India was the Indian Arbitration
Act, 1940. The Act was dealing with the domestic arbitration i.e. arbitration between
the parties within India. The second law in India on the point of international
arbitration was the Arbitration (Protocol and Convention) Act, 1937 and the Foreign
Awards (Recognition and Enforcement) Act, 1961.
The abovementioned Acts in flux of time were found unable to achieve its
objectives. Therefore, the Indian government brought Arbitration and Conciliation
Ordinance, in 1996. The ordinance was enacted into law in August 1996. The Act is
very important step towards settlement of dispute amicably. The Act, provides for
settlement of dispute outside the court through the means of arbitration, conciliation,
mediation, etc.
The Law Commission of India in its 129th report in 1988, had advocated the need
for amicable settlement of disputes between the parties. Moreover, the Malimath
Committee in 1989, had recommended to make it mandatory for the courts to refer
disputes pending before them, to resolve through alternate means after framing of
issues. The committee suggested that the alternate dispute resolution is viable
alternative to conventional court litigations.
After taking into consideration various reports of committees, S. 89 of the Civil
Procedure Code, 1908 was amended in the year, 1999 and was given effect from
01/07/2002. S. 89 provides for settlement of dispute outside the Court through,
arbitration, conciliation, judicial settlement, mediation etc. Moreover, Order X rules
1-A to 1-C also deal with the powers of a court to refer the matter for settlement.
The Constitution of India also directs that the justice should be made available to
poor and needy.
III. Need for the Alternative Dispute Resolution:-
the needs of present days to have ADR.
1. Less time consuming:-
Parties to the dispute resolve their disputes in short period of time compared to
courts.
2. Cost effective:-
ADR saves lot of money of the disputing parties.
1 Alternative dispute resolution for short is called as “ADR".
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“Law Master’s” Publication “Introduction to ADR”
Prof. S.D. Bhosale
3. Free from technicalities:-
ADR is free from technicalities of courts, because informal ways are applied to
arrive at amiable settlement.
4. People can freely express themselves:-
The disputing parties are free from fear of Court, therefore, they can freely
express themselves. They can reveal the true facts without disclosing it to any court.
5. Effective way of dispute resolution:-
There is always a chance of restoring relations of the partiers back. It is because,
the parties discuss their issues together. It prevents further conflict between the parties
and helps in maintaining a good relationship between them.
6. Preserve interest of parties:-
It preserves the best interest of the parties.
IV. Various Modes of alternate dispute resolution:-
The settlement of disputes outside the court can be made through-
(a) Arbitration:-
Arbitration is a procedure in which a dispute is submitted by agreement of the
parties to one or more arbitrators who make a binding decision on the dispute.
It is a form of alternate dispute resolution. It is a way to resolve dispute outside
the court. The dispute is decided by one or more persons known as ‘arbitrator’,
‘arbitrators’ or ‘arbitral tribunal’. The Arbitrator renders the ‘arbitration award’ (i.e.
judgment) which is legally binding on both sides to the dispute and is enforceable in the
court.
(b) Conciliation:-
‘Conciliation’ is an impartial process whereby the parties to the dispute use a
conciliator, who meets with the parties both separately and together in an attempt to
resolve their differences. Thus the conciliator acts to bring parties to the dispute at
amicable settlement among themselves.
It is a non-binding process. The conciliator cannot pass an award to bind both
parties. Neither is it enforceable in Court.
(c) Mediation:-
Mediation is the procedure in which parties discuss their disputes with the
assistance of a trained impartial third person or persons, who assist them in reaching a
settlement.
(d) Negotiation:-
‘Negotiation’ is a process in which decisions and deliberations take place
between the parties or representatives of the parties specifically without intervention of
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“Law Master’s” Publication “Introduction to ADR”
Prof. S.D. Bhosale
a third party. The representatives to the negotiation are called ‘negotiators’.
(e) Lok-Adalat:-
The ‘Lok-Adalat’ means ‘people’s Court’. Through it, the disputes pending
before the court or even the future dispute (which has not yet reached at court) are
settled through negotiation, conciliation, etc., with the assistance of specifically trained
and experienced conciliators. This is called as a judicial settlement.
These topics are discussed in detail at appropriate places in the notes.
V. Role of Alternative dispute resolution in different matters (Discussed at
appropriate place in coming topics):-
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