project on alternate dispute resolution

7/27/2019 Project on Alternate Dispute Resolution

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Acknowledgement

I would like to take this opportunity to thank everyone who put forth their time

and efforts to help me to develop this project. This project took a long time from

the collection of information to the compilation.

This project could not have been made without the guidance of our teacher,

Ms. Pooja Bharadwar, who not only served as our supervisor, worked extra time

for our convenience but also encouraged us to work hard. Thank you Maam.


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Index

S. No. Contents Page No.

1. Research Methodology 3

2. Chapter 1: Definition of ADR 4

3. Chapter 2: Growth of ADR 7

4. Chapter 3: ADR in India 9

5. Chapter 4: Advantages & Disadvantages 12

6. Chapter 5: Impact 14

7. Bibliography 16


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Research Methodology

Objective

The objective of the research project is to find:

- What is Alternative Dispute Resolution Mechanism?- The advantages and disadvantages of ADR.- The impact of ADR on our legal system.

Limitation

The scope and limitations of the research project are as follows:

- The project includes the meaning of Alternative Dispute Resolution.- It includes a brief history of the growth of ADR.- It includes the growth of ADR in India.- It includes the impact of ADR on the Indian Legal System.

Research Questions

- How can ADR help in speeding up the legal process?- What kinds of ADR mechanisms are available to people?- What is the scope of ADR in India?- How does ADR mechanism help in solving disputes?

Resources

Secondary Sources

- Internet- Articles- Newspapers- Books


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the traditional dispute resolution mechanisms. The ADR process usually results in

improved communications between disputing parties and is therefore better for

ongoing relationships, increases workplace morale and can make you feel

better about coming to work, results in participant satisfaction, solutions tend tobe durable or long lasting since they have the buy in of all parties involved,

publicity is avoided and most importantly, the parties retain control of the

outcome.

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. See conciliation for further details.) ADR can

be used alongside existing legal systems such as Sharia courts within common

law jurisdictions such as the UK.

The salient features of each type are as follows:

1. In negotiation, participation is voluntary and there is no third party whofacilitates the resolution process or imposes a resolution. (NBa third

party like a chaplain or organizational ombudsperson or social worker or

a skilled friend may be coaching one or both of the parties behind the

scene, a process called "Helping People Help Themselves".

2. In mediation, there is a third party, a mediator, who facilitates theresolution process, but does not impose a resolution on the parties. In

some countries, ADR is synonymous with what is generally referred to

as mediation in other countries.

3. In collaborative law orcollaborative divorce, each party has an attorneywho facilitates the resolution process within specifically contracted terms.

The parties reach agreement with support of the attorneys and mutually-
http://en.wikipedia.org/wiki/Mediationhttp://en.wikipedia.org/wiki/Mediationhttp://en.wikipedia.org/wiki/Collaborative_lawhttp://en.wikipedia.org/wiki/Collaborative_divorcehttp://en.wikipedia.org/wiki/Collaborative_divorcehttp://en.wikipedia.org/wiki/Collaborative_lawhttp://en.wikipedia.org/wiki/Mediationhttp://en.wikipedia.org/wiki/Mediation


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agreed experts. No one imposes a resolution on the parties. However, the

process is a formalized process that is part of the litigation and court

system. Rather than being an Alternative Resolution methodology it is a

litigation variant that happens to rely on ADR like attitudes and processes.4. In arbitration, participation is typically voluntary, and there is a third party

who, as a private judge, imposes a resolution. Arbitrations often occur

because parties to contracts agree that any future dispute concerning

the agreement will be resolved by arbitration. This is known as a 'Scott

Avery Clause'. In recent years, the enforceability of arbitration clauses,

particularly in the context of consumer agreements, has drawn scrutiny

from courts. Although parties may appeal arbitration outcomes to courts,such appeals face an exacting standard of review.
http://en.wikipedia.org/wiki/Arbitrationhttp://en.wikipedia.org/wiki/Standard_of_reviewhttp://en.wikipedia.org/wiki/Standard_of_reviewhttp://en.wikipedia.org/wiki/Arbitration


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Chapter 2

Alternate Dispute Resolution : Growth

Over the past two decades there has been an explosion in the number of cases

filed in High Courts across the country, and even the Supreme Court. This is a

result not only of the growing economy of this country, but also the growing

number of individuals and businesses across the country involved in litigation. As

the number of cases have grown, courts have looked for a method by which

they can reduce the number of cases on their docket short of a full trial and

decision on the merits. The method to accomplish this is ADR.

In addition to the Courts desire to clear their docket of cases is the interest of

individuals and businesses in reducing the cost of litigation and obtaining a

certainty of result. For those who have been through litigation, the cost of such

litigation can be expensive. This cost includes not only attorneys fees, but also

disbursements made to conduct litigation from the expense of depositions, to

copying costs, to expert witness fees to basic lost time expense for personnel of

a business. Since the discovery phase of litigation is often equal to or greater

than the cost of a trial, ADR is often seen as a tool to reduce costs. As a result,

the interest in ADR has exploded.

Finally, ADR can be less confrontative than an actual trial. Because of this, ADR

appeals to some people who wish to avoid conflict and confrontation. This

desire to avoid confrontation in an every increasingly confrontational world has

also encouraged the development and trend toward ADR.

The modern trend to resolve disputes is to use some method of ADR. While ADR

shows great promise in reducing the costs of litigation, the costs and benefits to

each party must be analyzed in light of the facts and circumstances involving


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that case to determine what method of ADR is appropritate. However, since the

rules now require some method of ADR, a party to litigation should anticipate

that they will be involved in ADR during the course of litigation.


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Chapter 3

Alternative Dispute Resolution : ADR in India

Alternative dispute resolution in India is not new and it was in existence even

under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act,

1996 has been enacted to accommodate the harmonisation mandates of

UNCITRAL Model. To streamline the Indian legal system the traditional civil law

known as Code of Civil Procedure, 1908 has also been amended and section 89

has been introduced. Section 89 (1) of CPC provides an option for the

settlement of disputes outside the court. It provides that where it appears to the

court that there exist elements, which may be acceptable to the parties, the

court may formulate the terms of a possible settlement and refer the same for

arbitration, conciliation, mediation or judicial settlement.

Due to extremely slow judicial process, there has been a big thrust on Alternate

Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act,

1996 is a fairly standard western approach towards ADR, the Lok Adalat systemconstituted under National Legal Services Authority Act, 1987 is a uniquely Indian

approach.

Concept of the Lok Adalat was also started in India. Etymologically, Lok Adalat

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,

whereby mock courts are held by the State Authority, District Authority, 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


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of legal profession. It does not have jurisdiction on matters related to non-

compoundable offences.

While in regular suits, the plaintiff is required to pay the prescribed court fee, in

Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no

need to follow process given by Civil Procedure Code or Indian 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 of the Constitution of India because it is a judgment

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.

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


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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 ofa 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 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.


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Chapter 4

Alternative Dispute Resolution : Advantages & Disadvantages

For many reasons, advocates of ADR believe that it is superior to lawsuits and

litigation. First, ADR is generally faster and less expensive. It is based on more

direct participation by the disputants, rather than being run by lawyers, judges,

and the state. In most ADR processes, the disputants outline the process they will

use and define the substance of the agreements. This type of involvement is

believed to increase people's satisfaction with the outcomes, as well as their

compliance with the agreements reached.[5]

Most ADR processes are based on an integrative approach. They are more

cooperative and less competitive than adversarial court-based methods like

litigation. For this reason, ADR tends to generate less escalation and ill will

between parties. In fact, participating in an ADR process will often ultimately

improve, rather than worsen, the relationship between the disputing parties. This

is a key advantage in situations where the parties must continue to interact after

settlement is reached, such as in child custody or labor management cases.[6]

ADR does have many potential advantages, but there are also some possible

drawbacks and criticisms of pursuing alternatives to court-based adjudication.

Some critics have concerns about the legitimacy of ADR outcomes, charging

that ADR provides "second-class justice." It is argued that people who cannot

afford to go to court are those most l ikely to use ADR procedures. As a result,

these people are less likely to truly "win" a case because of the cooperativenature of ADR.[7]

Similarly, critics believe that ADR encourages compromise. Compromise can be

a good way to settle some disputes, but it is not appropriate for others. In serious

justice conflicts and cases of intolerable moral difference, compromise is simply


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not an option because the issues mean too much to the disputants. Another

concern is that ADR settlements are private and are not in the public record or

exposed to public scrutiny. This could be cause for concern in some cases. For

example, using ADR to settle out of court could allow a company to resolvemany instances of a defective product harming consumers, without the issue

getting any public exposure. On the other hand, a court ruling could force the

company to fix all problems associated with the bad product or even to remove

it from the market.


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Chapter 5

Alternative Dispute Resolution : Impact

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.


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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 forsettlement 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.


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Bibliography

- http://www.cdc.gov- http://www.courts.ca.gov- http://www.legal-dictionary.thefreedictionary.com- http://www.beyondintractability.org- http://www.litigation-essentials.lexisnexis.com- http://www.lawyers.findlaw.com- http://www.legalservicesindia.com

- The Hindu- Times of India

-

Alternative Dispute ResolutionSridhar, Madabhushi.

- Alternative Dispute Resolution - Grenig, Jay E.

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