1. Dr Ashu Dhiman
Concept of ADR
Meaning, Nature and Genesis of
Alternative Dispute Resolution
2.
3. Lawyer as a Peace maker
“Discourage litigation. Persuade your neighbours
to compromise whenever you can. Point out to
them how the nominal winner is often the real
loser- in fees and expenses and waste of time. As
a peace maker the lawyer has a superior
opportunity of being a good man. There will still
be enough business” – Abraham Lincoln
4. Alternate Dispute Resolution-
Meaning
The process for settling a dispute without
litigation by various methods like arbitration,
mediation, negotiation, conciliation and Lok
Adalat is Called Alternate Dispute Resolution.
5. The term Alternate Dispute Resolution comprised
of Alternate (which directly indicates to be
something other than state sponsored
mechanism i.e Litigation) + Dispute
Resolution (which indicates the peaceful
resolution of the dispute in consensual
sense).
6. Definition of ADR
Alternative Dispute Resolution includes
alternative methods of helping people resolve
legal problems before going to court. There is an
involvement in of an independent third person,
called a “neutral” who tries to help resolve or
narrow the areas of conflict in ADR. Alternate
Dispute Resolution means the wide variety of
methods by which conflicts and disputes are
resolved other than through litigation.
7. Alternative Dispute Resolution refers to any
means of settling disputes outside of the
courtroom. ADR typically includes early neutral
evaluation, negotiation, conciliation, mediation,
and arbitration. As burgeoning court queues,
rising costs of litigation, and time delays
continue to plague litigants, more states have
begun experimenting with ADR programs.
Some of these programs are voluntary; others
are mandatory.
8. Alternate dispute Resolution does wonders to
help reducing the burden of litigation from the
courts of law and has proved to be a peaceful
mechanism to resolve the disputes.
9. Alternate dispute Resolution (ADR) may be
termed as alternative of the conventional
techniques of dispute resolution such as
litigation. It is a motion for evolving constructive
approach and mindset towards dispute
resolution. Therefore ADR means and include:
A substitute to long established litigation method.
It consists of mechanisms and techniques for
resolving disputes other than ordinary exercise
of litigation.
It is a non- judicial process.
It is not an alternate to traditional method in
restrictive sense.
10. Salem Bar Association vs. Union
of India
The Supreme Court of India in Salem Bar
Association vs. Union of India ((2005) 6 SCC
344), has requested prepare model rules for
Alternative Dispute Resolution and also draft
rules of mediation under section 89(2)(d) of Code
of Civil Procedure, 1908.
11. Nature of ADR
‘Alternative dispute resolution’ is a combination of
words that literally means to solve the dispute by
alternative mechanisms. As mentioned above,
these are techniques of dispute settlement
outside of the traditional government judicial
process and solve disputes by mutual
understanding between the parties. ADR is extra
support to the judicial system by easing the
burden on the same. It is less expensive and
time-efficient.
According to Justice Mustafa Kamal, “it is a non-
formal settlement of legal and judicial dispute as
a means of disposing of cases quickly and
12. Advantages of ADR
ADR can be initiated at any time, when the parties to
dispute desire to do so.
This mechanism provides the speedy justice as compared
to the litigation process. It is less time consuming and cost
effective too.
ADR is a flexible mechanism.
A neutral person helps both the parties in reaching to a
peaceful conclusion to the dispute.
ADR methods reduce the burden of courts and pendency
of cases.
ADR Reduce the gravity of contentious issues between the
parties.
The results of the ADR process can be kept confidential if
the parties so choose.
Parties have an increased chance of preserving their
business and social relationship.
13. Disadvantages of ADR
With the exception of arbitration, where the arbitrator makes a
binding decision, the ADR process may not always yield a
resolution. This means that money and time could be invested in
a process that does guaranteed resolution
The finality and binding nature of an arbitrator’s decision can
sometimes be viewed as a disadvantage because it may not
always please the parties and courts will often refuse to review it.
The neutral party – arbitrator, mediator, conciliator, will charge a
fee for their time and expertise and depending on their popularity,
these fees may be substantial. A judge, on the other hand,
charges no fee for his decision.
An arbitration clause in a contract is usually binding and courts
will not waive it unless both parties request for litigation.
There is limited protection offered to the parties, especially with
respect to discovery, as the common rules governing discovery
in litigation do not apply.
A mediator, conciliator or arbitrator can only resolve matters
which are civil in nature or which concern money. So, they
cannot make authoritative injunctive orders.
14. GENESIS/ DEVELOPMENT OF
A.D.R.:
The force of Alternate Dispute Resolution
originated in the United States of America to
discover the options of the time consuming and
highly-priced conventional legal system. The
agreement of legal disputes out of doors the
traditional legal method is prevalent in India. In
the early village systems, the disputes become
settled via way of means of the elders and senior-
most contributors of the village community. Since
the Vedic length while arbitration and mediation
had been the principle types of dispute resolution.
The early treaty of the arbitration became
Bhradarnayaka Upanishad which consisted of
15. Alternate dispute resolution gained immense
importance during the Mughal regime when the
Muslim laws were incorporated in Indian culture. The
laws of Muslims were systematically compiled in a
commentary titled as Hedaya which contained
provisions relating to arbitration. According to Hedaya,
an arbitrator also known as Hakam was to possess
qualities of a Kazi– judge, and his decision was
considered to be binding on parties subject to the
legality and validity of the award.
On the advent of the Britishers in India, a formal legal
system was developed and the alternate dispute
resolution diminished. But the formal legal system
was time-consuming and expensive. So people again
started adopting the A.D.R. methods and it again
picked up the pace.
16. The British Government promulgated the Bengal
Resolution Act, 1722 which had the provision of
referring the dispute to an arbitrator. Later on, the
Code of Civil Procedure was promulgated by the
British Government which also had provisions
regarding A.D.R
17. Pre-independence legislations that
were promulgated by the British
Code of Civil Procedure: The code of civil procedure
which become promulgated in 1859 consisted of segment
312-315 treated the arbitration in suits and sections 316
and 317 which treated arbitration out of doors courtroom
docket intervention. Section 89 of the Code of Civil
Procedure of 1908, consisted of diverse dispute decision
mechanisms particularly arbitration, mediation, conciliation,
and Lok Adalat.
Indian Arbitration Act, 1899: The act is an adoption from
British Arbitration Act, 1889, and also the act was solely
confined to the presidency cities i.e. Calcutta, Bombay,
and Madras. the most feature of the act was that the name
of the intermediator was to be mentioned within the
agreement and the sitting judge also can be the arbitrator..
Arbitration (Protocol and Convention) Act, 1937: This
act was implemented with the object to give effect to the
Geneva Protocol on Arbitration Clauses, 1923, and
Geneva Convention on the Exchange of Foreign Arbitral
Award, 1927.
18. Arbitration Act, 1940: The act restricted solely domestic arbitration. As
per the provisions of the act, the intervention of the court was needed
throughout the continuing of arbitration. once the approaching of the
UNCITRAL model, the govt of India created a brand new Arbitration and
Conciliation Act, 1996 that concerned provisions for the international
commercial arbitration.
Post- Independence when a formal judicial system was established it
was observed that the pendency of cases is increasing day by day and
then the present judicial system is incapable of handling the immense
workload.
Justice Malimath Committee (1989) undertook a comprehensive
review of the operating of the court system and created observations on
the delay when {making a decision|when deciding} of the case and
made recommendations for reducing proceedings and making justice
steady on the market to the people. The committee underlined the ideas
of mediation, arbitration, conciliation, and institution of Lok Adalats.
In the year 1997, the Chief Ministers of States and Chief Justices of the
High court decided to adopt alternate dispute resolution as a means for
the settlement of certain disputes as the system was less expensive and
less time-consuming.
19. Conclusion
The apex court in the case of M/s Guru Nanak
Foundation v. M/s Rattan Singh & Sons (1982 SCR
(1) 842) stated that “Interminable, time consuming,
complex and expensive Court procedures impelled
jurists to search for an alternative forum, less formal,
more effective and speedy for resolution of disputes
avoiding procedural claptrap and this led them to
Arbitration Act, 1940 (Act for short). However, 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 proceeding under the Act has
become highly technical accompanied by unending
prolixity, at every stage providing a legal trap to the
unwary. Informal forum chosen by the parties for
expeditious disposal of their disputes has by the
decisions of the Courts been clothed with ‘legalese’ of
