ALTERNATIVE DISPUTE RESOLUTION: INDIAN

PERSPECTIVE

ARBITRATION & MEDIATION ( CSD PAPER)

SUBMITTED TO- SUBMITTED BY-

Mr. AMRIT SUBHADARSHI UTKARSH RAJ
1582122
BBA LLB ‘B’ (2015-20)
 INTRODUCTION
Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System. It is an
alternative to litigation. It was being thought of in view of the fact that the Courts are over
burdened with cases. The said system emanates from dissatisfaction of many people with the
way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal
profession and sometimes lead to a sense of alienation from the whole legal system- thus, the
need for Alternative Dispute Resolution.

EXPLANATION OF ADR MECHANISM

A) Arbitration: Arbitration, in the law, is a form of alternative dispute resolution —
specifically, a legal alternative to litigation whereby the parties to a dispute agree to
submit their respective positions (through agreement or hearing) to a neutral third party
(the arbitrator(s) or arbiter(s)) for resolution.
Species of arbitration;-
 Commercial arbitration: Agreements to arbitrate were not enforceable at common
law, though an arbitrator's judgment was usually enforceable (once the parties had
already submitted the case to him or her). During the Industrial Revolution, this
situation became intolerable for large corporations. Arbitration appeared to be
faster, less adversarial, and cheaper. Since commercial arbitration is based upon
either contract law or the law of treaties, the agreement between the parties to
submit their dispute to arbitration is a legally binding contract. All arbitral
decisions are considered to be "final and binding." This does not, however, void
the requirements of law.
 Labor Arbitration: A growing trend among employers whose employees are not
represented by a labor union is to establish an organizational problem-solving
process, the final step of which consists of arbitration of the issue at point by an
independent arbitrator, to resolve employee complaints concerning application of
employer policies or claims of employee misconduct.
 Judicial Arbitration: Some state court systems have promulged court-ordered
arbitration; family law (particularly child custody) is the most prominent example.
 Judicial arbitration is often merely advisory, serving as the first step toward
resolution.

b) Mediation: Mediation is a process of alternative dispute resolution in which a neutral

third party, the mediator, assists two or more parties in order to help them negotiate an
agreement, with concrete effects, on a matter of common interest; lato sensu is any
activity in which an agreement on whatever matter is researched by an impartial third
party, usually a professional, in the common interest. Here are some types of Disputes
resolved by mediation:
 Aviation Banking and finance, Boundary Disputes Broker Liability, Business
Disputes Charities, Clinical & Medical Negligence Competition, Commercial
agencies Commercial contracts, Construction & Development Corporate finance,
Distribution agreements Employment Services, etc.

C) Negotiation: Negotiation is the process whereby interested parties resolve disputes,

agree upon courses of action, bargain for individual or collective advantage, and/or
attempt to craft outcomes which serve their mutual interests. It is usually regarded as a
form of alternative dispute resolution. Given this definition, one can see negotiation
occurring in almost all walks of life, from parenting to the courtroom.In the Seventies,
practitioners and researchers began to develop win-win approaches to negotiation.Judge
hosted settlement conference: In this court-based ADR process, the settlement judge (or
magistrate) presides over a meeting of the parties in an effort to help them reach a
settlement. Judges have played a variety of roles in these conferences, articulating
opinions about the merits of the case, facilitating the trading of settlement offers, and
sometimes acting as the mediator.

Implementation of ADR in India:

The implementation of Alternative Dispute Resolution mechanisms as a means to achieve

speedy disposal of justice is a crucial issue. The sea-change from using litigation as a tool
to resolve disputes to using Alternative Dispute Resolution mechanisms such as
 conciliation and mediation to provide speedy justice is a change that cannot be easily
achieved. The first step had been taken in India way back in 1940 when the first
Arbitration Act was passed. However, due to a lot of loop-holes and problems in the
legislation, the provisions could not fully implement. However, many years later in 1996,
The Arbitration and Conciliation Act was passed which was based on the UNCITRAL
model, as already discussed in the previous section of the paper. The amendments to this
Act were also made taking into account the various opinions of the leading corporate and
businessmen who utilize this Act the most.

Problems in implementation and suggestions:

Any implementation is usually confronted with problems. ADR is no exception to this

rule.
Some of the problems faced during implementation are enumerated as under:
 Attitudes: Although Indian law favors dispute resolution by arbitration, Indian
sentiment has always abhorred the finality attaching to arbitral awards.
 Lawyer and Client Interests: Lawyers and clients often have divergent attitudes
and interests concerning settlement. This may be a matter of personality (one may
be a fighter, the other a problem solver) or of money.
 Legal Education: Law schools train their students more for conflict than for the
arts of reconciliation and accommodation and therefore serve the profession
poorly. Already, lawyers devote more time to negotiating conflicts than they
spend in the library or courtroom and studies have shown that their efforts to
negotiate were more productive for the clients.

Thus, it becomes the bounden duty of the Bar to take this onerous task of implementing ADR on
itself so as to get matters settled without going into the labyrinth of judicial procedures and
technicalities. The Bar should be supported by the Bench in this herculean task so that no one is
denied justice because of delay.