ALTERNATIVE DISPUTE RESOLUTION IN INDIA A CRITICAL STUDY

CHAPTER 1 INTRODUCTION

a) Significance of the topic:

The concept of Alternative Dispute Resolution (ADR) has a long history and dating back to Jay treaty of 1974 between U.S.A. & U.K., which gave a tremendous boost to arbitration procedures across the world. The proposed topic is mainly concentrated on impact of ADR methods on courts such as arbitration conciliation & legal aid through Lok Adalat, mediation.

In early years of Independence there was much open discussion of the need for large scale reform of the legal system. There was some outspoken criticism that the system was entirely unsuited to Indian conditions and should be radically altered or abandoned. Critical discussion focused on adjective law on court administration (delay, expense and corruption) complexity of procedure, unsuitability of rules evidence, the adversarial rather than conciliatory character of the proceedings, and the nature of penalties. Technique of ADR is an effort to design workable and fair alternative to our traditional judicial system. These techniques have developed on scientific lines in U.S.A,

U.K, CHINA etc. With new avenues for mobility and advancement in the society, there were new methods of conflict, acquisition and pursuit of status. These new methods worked out to be new weapons in the hands of powerful persons to harass and intimidate their opponents. The legal system is a hierarchical network, which radiates out from the cities and through which authoritative doctrine flows outward through which authoritative doctrine flows outward from governmental centers. The business world has rightly recognized the advantages that the ADR in one form or other as a right solution. It is felt that it is less costly, less adversarial and thus more conductive to the preservation of business relationship which is vital importance in the business world. The growth has been permitted by several factors including tremendous expansion of international commerce and the recognition of global economy. The Supreme Court in several cases repeatedly pointed out the need to change the law. ADR is not to supplement traditional method of resolving disputes through litigation. The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. Parties are free to withdraw at any stage of time. The Government of India introduced The Arbitration and Conciliation Act, 1996. Once the award is given it becomes a decree of the court as per section 36 of the Act.

At the present day, the pressure on the regular courts is increasing day by day. The number of cases in arrears at various courts is indeed staggering. To reduce the pressure on the regular courts, it is absolutely necessary to encourage the ADR system of settlement of disputes.

The most significant aspect of recent amendment to the code of civil procedure is the introduction of court annexed Alternative dispute resolution mechanisms. The thorough change of the section 89 envisaged a new role to the judge of a civil court. The presiding officer is now expected to play a very active and pro-resolution role in tackling the civil disputes and show greater initiative in non-litigative methods to bring in reconciliation between the disputing parties. Section 89 specifically deals with the settlement of disputes outside the court. Where it appears to the court that there exists elements of a settlement which may be acceptable to the parties, the court may reformulate the terms of a possible settlement and refer the same for a) arbitration b) conciliation c) judicial settlement including settlement through Lok Adalat d) mediation

Conciliation is generally used as a synonym for mediation. Conciliation is an appropriate expression where the law provided for it. If a third party involves formally without being provided by any law that can be called mediation. The civil procedure code, 1908 under 32A provides for conciliation between the parties. Now section 89 provides a strong base for sponsoring the conciliation process with the support of the pro-active judge, who find the conciliator and direct the parties the support of the statutory obligation. The oldest provision for conciliation is section 12 of the Industrial Disputes Act, 1947. Conciliation method is quite appropriate and only measure to be resorted to tackle the domestic problems, where the rights take a secondary stage and

the possible welfare of child and need to protect the marriage as an institution is given priority unless there are compelling reason to dissolve the marriage. Even for a peaceful separation the conciliation as a pre-condition for mutual consent divorce application is a practical problem solving approach. The process of conciliation received staturoy recognition in the code of Civil procedure, 1908(XXXIIA rule3), in Industrial Disputes Act, 1947(section 12) and the Hindu Marriage Act, 1955(section 23). Now the proceedings relating to conciliation are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996. For Lok Adalat is a very useful experiment that succeeded in clearing the long pending cases. The success is one fo the main reasons for transforming occasional, specific or special Lok Adalats in to a permanent institution. National Legal Services Authority (NALSA) Act is recently amended in July 2002 and Supreme court found its earliest opportunity to hold it constitutionally valid and now there is no hitch in launching the permanent Lok Adalats (PLA). Bar Council of India opposed the change and the structure of PLA. The NALSA Act was passed in 1987 to provide free legal services to weaker sections of society and to ensure that they denied justice by reason of economic or other disabilities.

Disputes have been referred as: 1) For arbitration or conciliation, the provisions of the arbitration and conciliation act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that act.

2) To Lok Adalat, the account shall refer the same to Lok Adalat in accordance with the provisions of sub-section(1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat.

3) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat under the provisions of the Act.

4) For mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.

The foregoing analysis clearly shows that the ADR method is much more beneficial to the public than the adversarial system of settlement of disputes. This is because in the former, the time consumed is not very long and expenses are also quite small. On the other hand, under the later system, it takes quite a few decades for settlement of litigation. In fact, there are cases which have been settled after 30-40 years in a traditional type of settlement of disputes. The ADR methods are quite effective in particular in following types of litigations:i) ii) iii) Family matters like divorce, maintenance etc. Partition matters like among members of a joint family. For settlement of industrial disputes between the employers and employees.

In fact, the Industrial Disputes Act provides for settlement of disputes through mediation and conciliation. Thus, in certain fields, it is always desirable to get the disputes settled through negotiation, arbitration, conciliation etc, rather than to seek settlement through adversarial system which is long protracted, strenuous, tiresome and cumbersome. The topic is of great contemporary importance and accordingly it has been selected as the subject matter of present thesis.

b) Objectives of the study: 1) To trace the historical background of ADR methods. 2) To analyze the methods prevailing in ADR. 3) To study the settlement of domestic and international disputes by different modes of ADR. 4) To promote reforms in the system of settlement of disputes and its healthy development within the framework of the social and economic needs of the community. 5) To establish facilities and provide administrative and other support services for holding ADR proceedings. 6) To compare the study of ADR methods and to reduce the burden on courts. 7) To study the provisions of the constitution with respect to ADR.

c) Hypothesis: The dispute is basically a difference of opinion resulting in differences regarding the interests rights and liabilities. Dispute is different from conflict with reference to the seriousness and timing. The dispute may develop into conflict. Every dispute has to be

curbed at the earliest level from growing into a very serious problem. Because of dispute, the efficient business relationships and more fulfilling interpersonal relationship should not be lost. Thus there is a need for dispute resolution process, which can protect the relationships and at the same time find a workable solution to the problem at an early stage.

The foundation of democratic civilization is rule of law, which means governance not by persons by principles or a system or by the developed constituting. In the context of judiciary, rule of law means independent judiciary. The rule of law and principles of natural justice are inherently related to each other. It is position from excesses of power by the authorities or who are in a commanding position. It means fairness, equity and equality, reasonableness. It is also called natural law. The article 21 and 14 of Indian constitution embody these principles of natural justice and rule of law. Fairness when accused in deprived of liberty Article 21. The absence of discriminatory class legislation is found in Article 21.

For the implementation of ADR methods, the following measures may be adopted:

1. Steps to be taken to promote peoples participation and to promote self reliant development and create legal awareness and respect for right of others. 2. Educate the both parties about the ADR processes in order to improve cooperation, positive attitude, and trust.

3. Establish efficient management in organizations is useful in resolving interpersonal conflict, employment relationships, and business dealings. 4. Creating goodwill to avoid the appeal on decided judgments and avoiding prolonged battle. 5. Categorization of disputes and their remedies through innovative methods. 6. The members to be appointed from jurists, who have fair knowledge the natural principles of justice and law. 7. Suggestive methods for more flexible alternative, for a wide variety of disputes, small as well as large.

d) Review of Literature: There were several important and authoritative books on the subject. The various important books together with articles and analysis published in journals and newspapers have been carefully studied and analyzed. A detailed list of the books reviewed is brought pout in the bibliography at the end of the dissertation.

e) Methodology followed: There are different types of methods that can be adopted in the preparation of thesis. These methods are broadly divided into 2 categories a) Traditional b) Scientific

The traditional methods are a) Philosophical b) Institutional c) Legal d) Historical

The scientific methods adopt an empirical approach i.e., an analysis of facts based upon the evidence of existing facts and material. In the preparation of present thesis both kinds of approaches have been adopted. Thus a historical cum analytical approach has been followed in the preparation of present thesis. Where required the comparative approach has also been adopted to bring about the clear meaning of provisions of the act by comparing them with similar provisions under other systems.

f) Sources of information: The information for the thesis can be collected by following any of the two approaches a) A doctrinal approach; b) A non-doctrinal approach. Doctrinal approach is also known as fundamental approach. It is also described as textual in nature. It consists of 2 kinds of sources a) Primary b) Secondary. The primary sources are concerned with legislation and case law. The secondary sources are concerned with articles published in leading journals, law reviews text books etc. The non-doctrinal approach is known as functional or contextual. It deals with social values, constitutional interrelations, principles of justice, good conscience etc. In the preparation of the present thesis mainly the doctrinal approach has been adopted and the necessary material equity has been drawn from both primary and secondary sources.

g) Scheme of study / Chapterization:

Chapter I: INTRODUCTION In this chapter, the significance of the topic & objectives of the study are brought out.

Chapter II: SALIENT FEATURES OF TRADITIONAL METHODS OF SETTLEMENT OF DISPUTES In this chapter, an attempt has been made to trace the following:i) The meaning and scope of traditional methods of settlement of disputes through courts. ii) Salient features of adversarial system for settlement of disputes.

Chapter III: ADR METHODS WITH REFERENCE TO ARBITRATION AND CONCILIATION TECHNIQUES In this chapter, the various kinds of alternative methods for settlement of disputes are discussed in detail. The methods as laid down in this chapter on arbitration and conciliation as a mode of settlement of disputes are discussed.

Chapter IV: MODES OF ADR AND ITS ROLE IN RESOLVING DISPUTES WITH REFERENCE TO LOK ADALATS AND FAMILY COURTS In this chapter, an attempt is made to bring out the role played by Lok Adalats in the settlement of disputes as an alternative method for settlement through courts.

Chapter V: JUDICIAL RESPONSE ON ADR METHODS FOR SETTLEMENT OF DISPUTES In this chapter, an attempt has been made to bring out a few important decisions of the courts on alternative disputes resolution methods.

Chapter VI: CONCLUSION In this chapter, an attempt is made to bring out the summary of thesis together with the observations, findings and suggestions of the research scholar. Every effort has been made to make the thesis as exhaustive and comprehensive as possible.

CHAPTER 2 SALIENT FEATURES OF TRADITIONAL METHODS OF SETTLEMENT OF DISPUTES

In this chapter an attempt has been made to trace the following:-

i)

The meaning and scope of traditional methods of settlement of disputes through courts.

ii) iii)

Salient features of adversarial system of settlement of disputes. The weaknesses and drawbacks of the traditional type of deciding disputes.

i) The meaning and scope of traditional methods of settlement of disputes through courts: Settlement of disputes through courts is always a cumbersome affair. There are a number of functionaries involved in the process of settlement of disputes through courts.

a) The presentation of plaint by the plaintiff for the commencement of the suit. b) The defendant who has to file the written statement within the prescribed period of the time. c) Settlement of issues by the court d) Presentation of arguments by the parties. e) The decision of the court.

Thus, a number of steps are involved in the method of settlement of disputes through courts. Every step in the system is beset with a number of complicated and cumbersome procedures. Example if the plaint is not properly prepared, it may either have to be amended or it would even be rejected by the court.

Further the defendant has to prepare the reply statement in accordance with the requirements of the court which is again very lengthy and is not intelligible to a layman.

ii) Salient features of adversarial system for settlement of disputes : In an adversarial system, the court is guided by the procedures laid down under the Evidence Act and the civil procedure code.