ALTERNATIVE DISPUTE

RESOLUTION

RELEVANCE OF A.D.R AND IT’S COMPARISON

WITH JUDICIAL PROCEEDINGS

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 CONTENTS

INTRODUCTION…………………………………………………….3
CONCEPT OF A.D.R…………………………………………………4
BRIEF HISTORY OF A.D.R…………………………………………7
RELEVANCE OF A.D.R IN THE PRESENT SCENARIO………..9
DRAWBACKS OF LITIGATION………………………………….10
A.D.R. VS. LITIGATION DEBATE……………………………….13
BENEFITS OF A.D.R……………………………………………….15
RECOMMENDATIONS……………………………………………21
CONCLUSION………………………………………………………22

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"I am pained to observe that the judicial system in the country is almost on
the verge of collapse. These are strong words I am using but it is with
considerable anguish that I say so. Our judicial system is creaking under the
weight of arrears."

- Former Chief Justice P.N. Bhagwati

INTRODUCTION
Denial of ‘timely justice’ amounts to denial of ‘justice’ itself. These two are
integral to each other. Timely disposal of cases is essential for maintaining the rule
of law and providing access to justice which is a guaranteed fundamental right.
However, the judicial system is unable to deliver timely justice because of huge
backlog of cases for which the current judge strength is completely inadequate.
Further, in addition to the already backlogged cases, the system is not being able to
keep pace with the new cases being instituted. Here the concept of ADR comes
into picture. The term alternative dispute resolution also refers to any means of
settling disputes outsides the formal Courts/ Tribunals established by the State in
exercise of its sovereign function to decide disputes between citizens and also
disputes between itself and citizens. It is an alternative to the Formal Legal
System. The said system emanates from dissatisfaction of many people with the
way in which disputes are traditionally resolved by Courts and the multiple number
of disadvantages involved with the traditional dispute resolution through Courts.
Litigation involves a lot of delay given the appeals/revision/review,etc.. In short,
delay has become synonymous with dispute resolution in Courts, because the
existing justice system is not able to cope up with the ever increasing burden of
cases.
To deal with the situation of pendency of cases in courts, ADR plays a significant
role by its diverse techniques. Alternative Dispute Resolution mechanism provides
newly developed techniques to the judiciary which helps in reducing the burden on
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the courts. It provides various modes of settlement including, arbitration,
conciliation, mediation, negotiation and lok Adalat.
The importance of ADR in the present era cannot be emphasized more as the
growing need of faster justice delivery and technical subject matter is cornering the
outdated methods of justice delivery by Courts. In most of parts of the world, rapid
development has meant increased case loads for already overburdened courts,
further leading to notoriously slow adjudication. As a result, alternative dispute
resolution mechanisms have become more crucial especially for matters requiring
faster decision making.
So Alternate Dispute Resolution is necessary as a corollary to existing method of
dispute resolution such as litigation. It is a movement with a drive from evolving
positive approach and attitude towards resolving a dispute.1 However, the need of
the hour is to use these alternative means of dispute resolution with caution and
care and to ensure that it furthers the ends of justice.

CONCEPT OF A.D.R.

Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution

techniques designed to resolve issues in controversy more efficiently when the
normal negotiation process fails. Alternative Dispute Resolution (ADR) is an
alternative to the Formal Legal System. Alternative dispute Resolution techniques
are in addition to the Courts in character. Alternative dispute Resolution
techniques can be employed in several categories of disputes, especially civil,
commercial, industrial and family disputes2.

The following are the main modes of ADR practiced :

1. Arbitration
2. Mediation
3. Conciliation

1
https://www.lawctopus.com/academike/arbitration-adr-in-india/#_edn1.
2
Hindu Marriage Act 1955, Industrial Disputes Act 1947, The Code Of Civil Procedure, The Family
Courts Act 1984.
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4. Negotiation
5. Lok Adalat (INDIA)

ARBITRATION
In this technique of resolution parties refer their dispute to one or more persons
called arbitrators. Decision of arbitrator is binding on parties and their decision is
called ‘Award’. The object of Arbitration is to obtain fair settlement of dispute
outside of court without necessary delay and expense. Any party to a contract
where arbitration clause is there, can invoke arbitration clause either himself or
through their authorized agent which refer the dispute directly to the arbitration as
per the Arbitration clause3.

According to BLACK’S LAW Dictionary, ‘Arbitration’ is a process of dispute

resolution in which a neutral third party called arbitrator, renders a decision after a
hearing at which both parties have an opportunity to be heard.

MEDIATION

Mediation is another alternative method of Dispute resolution where a neutral

third party aims to assist two or more disputants in reaching an agreement. It is an
easy and uncomplicated party centered process where third party acts as a mediator
to resolve dispute amicably by using appropriate communication and negotiation
techniques. This process is totally controlled by the parties. Mediator’s work is
just to facilitate the parties to reach settlement of their dispute. Mediator doesn’t
impose his views and make no decision about what a fair settlement should be.

Examples of Disputes that can be better resolved by mediation:

 Aviation, Banking and finance

 Business Disputes
 Clinical & Medical Negligence
 Competition Commercial agencies
 Commercial contracts
 Construction & Development
3
https://blog.ipleaders.in/adr-alternative-dispute-resolution.
[5]
  Corporate finance
 Employment
 Energy
 Engineering & Manufacturing, etc.

NEGOTIATION

Negotiation-communication for the purpose of persuasion-is the pre-eminent mode of

dispute resolution. Compared to processes using mutual third parties, it has the
advantage of allowing the parties themselves to control the process and the solution4.

Essentials of Negotiation are:

 It is a communication process;
 It resolves conflicts;
 It is a voluntary exercise;
 It is a non-binding process;
 Parties retain control over outcome and procedure;

In India, Negotiation doesn’t have any statutory recognition. Negotiation is self

counseling between the parties to resolve their dispute. Negotiation is a process that
has no fixed rules but follows a predictable pattern.

CONCILIATION

Conciliation is a form of arbitration but it is less formal in nature. It is the process of

facilitating an amicable resolution between the parties, whereby the parties to the
dispute use conciliator who meets with the parties separately to settle their dispute.
There is no need of prior agreement and it cannot be forced on party who is not
intending for conciliation.

4
Mauro Rubino-Sammartano, Wolters Kluwer (India) Pvt. Ltd., New Delhi, International Arbitration
Law and Practice, at 13, (2nd Ed., 2007)

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There is a subtle difference between mediation and conciliation. While in meditation,
the third party, neutral intermediary, termed as mediator plays more active role by
giving independent compromise formulas after hearing both the parties; in
conciliation, the third neutral intermediary’s role, is to bring the parties together in a
frame of mind to forget their animosities and be prepared for an acceptable
compromise on terms midway between the stands taken before the commencement of
conciliation proceedings5.

The party initiating conciliation shall send to the other party a written invitation to
conciliate under this part, briefly identifying the subject of the dispute.

LOK ADALAT
Lok Adalat is a forum where the disputes pending in the court of law or at pre
litigation stage are settled/compromised amicably. Lok Adalat is one of the
alternative dispute redresseal mechanisms. Lok Adalat is a non adversarial system,
whereby mock courts (called Lok Aalats) are held by the State Authority, District
Authority, Supreme court Legal Services committee, High court Legal Services
committee, or Taluk Legal Services committee. The governing statute in regard to
Lok Adalats is Legal Services Authorities Act, 1987.

Brief History of ADR

ADR originated in the USA in a drive to find alternatives to the traditional legal
system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised,
and limited to narrow rights-based remedies as opposed to creative problem
solving.
Beginning in the late nineteenth century, creative efforts to develop the use of
arbitration and mediation emerged in response to the disruptive conflicts between
labour and management. Actually informal dispute resolution has a long tradition
in many of the world societies dating back to 12th century in China, England and
America and India.

5
Krishna Sarma, Momota Oinam & Angshuman Kaushik, “Development and Practice of Arbitration in
India –Has it Evolved as an Effective Legal Institution”.
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INDIA
In India too there is a long and unbroken tradition of the resolution of disputes
outside the formal legal system. The concept of parties settling their disputes by
reference to a person or persons of their choice or private tribunals was well known
to ancient India. Long before the king came to adjudicate on disputes between
persons such disputes were quite peacefully decided by the intervention of the
Kulas, Srenis, Parishads and such other autonomous bodies. There were Nyaya
Panchayats at grass root levels before the advent of the British system of justice6.
In the present era Alternative Dispute Resolution in India was founded on the
Constitutional basis of Articles 14 and 21. Alternative Dispute Resolution also tries
to achieve the Directive Principle of State Policy relating to Equal justice and Free
Legal Aid as laid down under Article 39-A of the Constitution.
The law relating to arbitration was originally governed by the provisions contained
in different enactments, including those in the Code of Civil Procedure.
The first Indian Arbitration Act was enacted in 1899, which was replaced by the
Arbitration Act 1940. There was much delay in settlement of disputes between
parties in law courts, which prevented investment of money in India by other
countries. India has undertaken major reforms in its arbitration law in the recent
years as part of economic reforms initially in 1991. The Arbitration and
Conciliation Act of 1996 was thus enacted by the Parliament bringing in
substantial reforms in arbitration, regarding domestic and international disputes.
This enactment has further been amended by Arbitration and Conciliation
(Amendment Act), 2015.

6
P.C. Rao, “ Alternatives to Litigation in India”, in P.C. Rao and William Sheffield(ed.), Alternative
Dispute Resolution; What it is and How it works, p. 27.
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RELEVANCE OF ADR IN THE PRESENT SCENARIO:
Alternative Dispute Resolution is an attempt made by the legislators and judiciary
alike to achieve the goal of achieving Complete Justice. ADR first started as a
quest to find solutions to the perplexing problem of the ever increasing burden on
the courts. A thought-process that started off to correct and find measures to the
problems of traditional litigation, later developed into a separate field solely
catering to various kinds of mechanisms which would resolve disputes without
approaching the Formal Legal System.
The reasoning given to these ADR mechanisms is that the society, state and the
party to the dispute are equally under an obligation to resolve the dispute as soon
as possible before it disturbs the peace in the family, business community, society
or ultimately humanity as a whole.
The utter failure of the traditional litigation system in keeping up with the
mounting arrears of cases has necessitated the need of A.D.R. The need for
alternatives to formal legal system has engaged the attention of legal fraternity,
comprising judges, lawyers, and legal researchers for several decades now. This
has been seen as integral to the process of judicial reform as signifying access to
justice approach.7
Today ADR is not only relevant but necessary to provide complete justice as the
Court based litigation system suffers various shortcomings, the only immediate
resort left is to adopt ADR. In a time when time is money, especially in
commercial disputes ADR should be mandatorily be made the option. Also, in
matters relating to industrial and labour disputes ADR be made the option.

7
Dr. S. Murlidhar, “Need for Alternatives in Legal System” , Conference organized by Law
Commission of India.
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DRAWBACKS OF COURT ADMINISTERED DISPUTE RESOLUTION

1. DELAY : The greatest challenge that the justice delivery system faces today
is the delay in the disposal of cases and prohibitive cost of litigation.
Alternative dispute resolution wads thought of as a weapon to meet this
challenge. The average waiting time, both in the civil and criminal matters,
can extend to several years which negates fair justice.
The judiciary in India is already suffering from a docket explosion. The
Parliamentary Standing Committee on Home Affairs found that as of 2001,
there were 21 High Courts in the country with 35.4 lakh cases pending8 and around
3.3 crore cases are pending over all Courts of the country. A contributory to the
delay in disposal is the low judge population ratio. As per Report of
Commission of empowerment of women in 2013, there are in 13 Judges for
every one million population in India, as compared to an average of 50 judges per
one million population in developed countries9.The reference to the number of
judges in following countries helps in comparing the situation of these countries
with India. It is as follows:

COUNTRY JUDGES PER MILLION

Australia 41
Canada 75
England 51
U.S.A. 107

8
J. Venkatesan, "Panel Concern over Backlog in Courts", The Hindu, New Delhi, March 10th, 2003
9
R.C. Lahoti : “Envisioning justice in the 21st century” 2004(7) SCC Journals p 13.
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2. EXPENSES AND COSTS: We are all aware of the ineffectiveness of our cost
regime. Even the successful litigant is unable to recover the actual cost of the
litigation. The considerable delay in reaching the conclusion in any litigation adds
to the costs and makes the absence of an effective mechanism for their recovery
even more problematic. It is specially burdensome to the poor litigants.
‘The Access to Justice’ Survey by Bengaluru based NGO ‘Daksh’ in collaboration
with NLU, Delhi revealed that in across 305 Courts spread in 24 States of our
country , found that cost incurred by litigants on Court fees and other expenses
amounted to around Rs. 30,000 Crore.

3. COMPLEX AND FORMAL PROCEDURES: The procedures observed by

Courts are extremely formal and complex to understand for a common litigant. In
perpetuating such rigid procedures, we forego the possibility of amicable
settlement, which can only be achieved through a moderate amount of flexibility.
Further, apart from adding to the delay of the litigation system, rigid procedures
are responsible for the apprehension of ordinary persons who shy away from
courts, fearful of the sacrosanct procedures of which they know nothing. It creates
barriers in effective delivery of justice.

4. LACK OF CONFIDENTIALITY: The matters that are tried before Courts

lack confidentiality. They are conducted in full view of every one, as Court
proceedings are public in nature. In contrast, the proceedings under all the modes
of alternative dispute resolution take place in private proceedings.

5. LACK OF SPECIALIZED KNOWLEDGE: The Judges are not experts in

every field, they are only experts of law. So, in matters that are technical or require
some specialized knowledge are not suitable to be conducted through Courts. In
such cases A.D.R. should be resorted to as proceedings under it are private and
confidential.

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6. SCOPE OF APPEALS: The scope of appeals under the hierarchy of Courts
provides multiple options relating to Appeals, Second appeals, revision, review,
S.L.P., etc. which contributes to delay of the case and harassment of the litigants.

7. ADVERSARIAL TO INTEREST OF POORS: More benefit to wealthier

party is an added advantage in litigation. Litigation is not a process of solving
problems, but a process of winning arguments. Wealthier party is enable and
affordable to hire an experienced and good lawyer to engage in the lawsuit. Judge
can be easily convinced by a good lawyer whom has strong convincing skill.
Justice Brennan of the U.S. Supreme Court has stated: "Nothing rankles more in
the human heart than a brooding sense of injustice...when only the rich enjoy the
law as a luxury and the poor who need it the most cannot have it because its
expenses put it beyond their reach."

The need for alternative dispute resolution in a country like India is that in a
country, which aims to protect the socio-economic rights of citizens, it is extremely
important to quickly dispose the cases. As the Courts alone cannot handle the huge
backlog of cases, this can be effectively achieved by applying the mechanisms of
alternative dispute resolution. These are the reasons behind the introduction of
alternative dispute resolution in India.
The decision of the Supreme Court in Konkan Railway Corpn. Ltd. v. M/S.
Mehul Construction Co.10 summarizes the need of alternative means of dispute
resolution in India:
“The increasing growth of global trade and the delay in disposal of cases in Courts
under the normal system in several countries made it imperative to have the
perception of an alternative Dispute Resolution System, more particularly, in the
matter of commercial disputes. When the entire world was moving in favour of a
speedy resolution of commercial disputes, the United Nations Commission on
International Trade Law way back in 1985 adopted the UNCITRAL Model Law of
International Commercial Arbitration and since then number of countries have

10
2002 AIR SC 778.
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given recognition to that Model in their respective legislative system. With the said
UNCITRAL Model Law in view the present Arbitration and Conciliation Act of
1996 has been enacted in India replacing the Indian Arbitration Act, 1940, which
was the principal legislation on Arbitration in the country that had been enacted
during the British Rule. With that objective when UNCITRAL Model has been
prepared and the Parliament in our country enacted the Arbitration and
Conciliation Act of 1996 adopting UNCITRAL Model, it would be appropriate to
bear the said objective in mind while interpreting any provision of the Act. The
Statement of Objects and Reasons of the Act clearly enunciates that the main
objective of the legislation was to minimise the supervisory role of Courts in the
arbitral process.”

In 1989, the Government of India, on the advice of E.S. Venkataramiah, then Chief
Justice of India, constituted Arrears Committee (1989-1990) under the
Chairmanship of Justice Malimath, who was the Chief Justice of the Kerala High
Court. The terms of reference of the Committee were inter alia, to suggest ways
and means, to reduce and control the arrears in the High Courts and the subordinate
Courts.
The Law Commission of Indian has maintained that, the reason for judicial delay is
not a lack of clear procedural laws, but rather the imperfect execution, or even utter
non-observance, thereof11. The prominent contributory factors are the frequent
adjournments at the instance of the clients and lawyers, the boycotts of the Courts
by the lawyers, shortage of presiding officers of the Tribunals and Courts12, lack of
adherence to basic procedures and principles of case management and disposal.
In the backdrop of these problems alternative means of dispute redressal are
mandated.

11
Law Commission of India, 77th Report, pr.4.1.
12
120th Law Commission Report (1987)
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THE ADR vs LITIGATION DEBATE
Simply stated, litigation is a formal, generally public process which resolves
disputes through a court with a judge. It is subject to strict rules imposed by law
governing the conduct of the proceeding, such as the formal rules of evidence.
Arbitration is private process whereby parties work with a neutral third party to
hear both sides and make a final and binding decision, using agreed-upon rules
governing how the process will work. Mediation is a negotiation facilitated by a
neutral third party. The mediator does not impose a decision, but helps the parties
come to an amicable resolution.
The A.D.R. methods of dispute resolution no doubt have certain added advantages
over the traditional court system.
 The ambit of remedies that can be provided by Courts is very limited. The
court is not in a position to try to salvage a relationship, whether it is
commercial or domestic.
 The court’s decision is also binary in nature, one is right and one is wrong.
This polarizes the parties, creates the need for self-justification and escalates
the dispute into an emotionally charged process.
 Alternative dispute resolution offers efficiency and can enhance the quality
of dispute resolution by permitting a wider array of outcomes and more
client participation.
Our Courts follow the adversarial method of adjudication, whereas the
alternative methods are non-adversarial. The basic difference between adversarial
and non-adversarial methods of dispute resolution is as follows: In adversarial
system disputant wins, the other must lose and disputes are resolved by a third
party through application of some principle of law. on the other hand, in the case of
alternative dispute resolution all the parties can benefit through a creative solution
to which each agrees and the situation is unique and therefore, need not be
governed by any general principle except to the extent that the parties accept it.
In devising a system of alternative dispute resolution, two principles must be
adhered to. Firstly, such a system must remedy the self-reinforcing problems
which beset the traditional litigation system. However, it is of utmost
importance that at the same time, the peremptory norms of law, such as those
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of judicial accountability and integrity, are not lost in our impassioned search
for an alternative. Therefore, it is imperative that the system of ADR
overcomes the litigative impediments through the permissible means, ensuring
that the pillars of justice do not crumble in the name of an efficient alternative
system.
Secondly, It must be thoroughly understood that ADR is not intended to
replace nor supplant the courts of the land. It is not an 'alternative' in such a
restrictive sense. The need for public adjudication and normative judicial
pronouncements on the momentous issues of the day, is fundamental to the
evolution of the laws of the land. ADR is necessary to complement and preserve
this function of the Courts. The objective of ADR is the provision of an outlet
where petty and non-contentious disputes can be disposed of, in a simple and
speedy manner.13
Thus, a system of ADR has certain instrumental and intrinsic functions. It is
instrumental insofar as it enables the amicable settlement of disputes through
means which are not available to courts. It is intrinsic because it enables the parties
themselves to settle their disputes.
In Vide Mury Exportation v. Khaitan and Sons14, it was held that, litigation and
arbitration are both methods of resolving disputes, one in a court of law while the
other through a private tribunal.
Benefits of Alternative means of dispute resolution:
For many types of disputes, arbitration offers a better alternative to litigation. Its
advantages include:
1. Flexibility and control: Parties can set terms in their arbitration contract
governing how the process will work. This includes establishing rules
regarding discovery, hearings, time limitations and other matters. Also, there
is flexibility in the way solutions are found.
The rigidity of precedents as used in adversarial method of dispute
resolution will not come in the way of finding solutions to the disputes in a
creative way.

13
https://www.manupatrafast.com/articles/
14
AIR 1956 Cal 644.
[15]
2. Speed : The time within which arbitration proceedings conclude is far shorter
than a normal litigation, the reason being evidence as taken in Courts is not
followed as well as rules of procedure applicable to Courts are not applicable to
proceedings under alternative means of dispute redressal.
3. Low cost: Less time spent to resolve a dispute means lower costs for lawyers
fees. In addition, discovery is much more limited in arbitration, and appeals are
very limited, so those costs are all saved.
4. Simplified rules of evidence and discovery: Typically, there are limits on the
nature and scope of discovery and time limits on how long the process can take.
Issues are handled through phone calls rather than multiple hearings, subpoenas,
depositions, interrogatories and the like. And, the strict rules of evidence don’t
apply.
5. Privacy and confidentiality: Arbitrations are private with only designated
parties in attendance and the proceedings are strictly confidential. In contrast,
litigation is open to be public.
In Moti Ram v. Ashok Kumar & Ors.15, it was held that ADR proceedings are
private and confidential in nature . These proceedings are without prejudice in the
sense that oral and written exchanges between parties cannot be relied upon in any
subsequent legal proceedings.
6. Arbitrator selection: Parties can choose an arbitrator with subject matter
expertise as opposed to being assigned a judge randomly. This is particularly
important in complex cases requiring specialized knowledge and cases of technical
nature. This not only reduces the difficulty in decision making but also improves
the quality of judgement.
7. Finality: Appeal rights are very limited in arbitration, so disputes are finally
resolved more quickly.
8. Party autonomy: Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved than
would be the case in court litigation. Increased party autonomy can also result in a

15
2011 1 SCC 466.
[16]
faster process, as parties are free to devise the most efficient procedures for their
dispute. This can result in material cost savings.
9. Enforceability of Awards: The United Nations Convention for the Recognition
and Enforcement of Foreign Arbitral Awards of 1958, known as the New York
Convention, generally provides for the recognition of arbitral awards on par with
domestic court judgments without review on the merits. This greatly facilitates the
enforcement of awards across borders. Whereas in litigation it is difficult to get
judgements of one country enforced in other countries.

Arbitration Litigation
Nature

Private - between the

Type of Proceeding Public - in a courtroom
two parties
Type of Proceeding Civil – private Civil and criminal
Limited evidentiary
Evidence allowed Rules of evidence allowed
process
How arbitrator/judge Court appoints judge - parties
Parties select arbitrator
selected have limited input
Formality Informal Formal
Appeal available Usually binding Appeal possible

Waiting time for the case As soon as arbitrator Must wait for the case to be
to be heard selected; short scheduled; long
Costs Lower fees Costlier

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 The primary object of ADR is avoidance of vexation, expense, and delay and
promotion of the ideal of “access to justice” for all. There are, of course,
circumstances in which court litigation is preferable to ADR. For example, ADR's
consensual nature makes it less appropriate if one of the two parties is extremely
uncooperative, which may occur in the context of an extra-contractual
infringement dispute.
In addition, a court judgment will be preferable if, in order to clarify its rights, a
party seeks to establish a public legal precedent rather than an award that is
limited to the relationship between the parties.
Also, in certain nature of disputes the process of Litigation is the obvious
choice like criminal matters and constitutional matters. The ADR mechanisms
are resorted to work in business disputes, banking, contract performance, property
rights, joint ventures, partnership differences, etc.
In any event, it is important that potential parties, and their advisors are aware of
their dispute resolution options in order to be able to choose the procedure that best
fits their needs16.

In Afcons Infrastructure Ltd. V. Cherian Varkey Constructions Co.(P) ltd. &

ors,17 “the supreme Court held that the following category of cases can be settled
through ADR process –
1. All cases relating to trade, commerce, and contracts, including –
 Disputes arising out of contracts
 Disputes relating to specific performance,etc.

2. All cases arising from strained or soured relationships

3. All cases where there is a need for continuation of the pre-existing
relationship in spite of the disputes.
4. All cases relating to tortuous liability, including –
 Claims for compensation in motor accidents/other accidents;
5. All consumer disputes including –
16
Wipo website
17
(2010) 8 SCC 24
[18]
  Disputes where a trader/supplier/manufacturer/service provider is keen
to maintain his business/professional reputation and credibility or
product popularity; and
6. All offences which are compoundable.”

Alternative Dispute Resolution is not intended to supplant altogether the traditional

means of litigation. It offers only alternative options to litigation. There are still a
large number of important areas, including constitutional law and criminal law, in
respect of which there is no substitute for Court decisions.
The need of the hour is to make alternative means of dispute resolution simpler and
easily accessible to common man. Also, there is need to bring a change in the
approach of Courts as well as parties towards these methods of dispute resolution.
In Food Corporation of India v. Joginderpal Mohinderpal18, the Supreme Court
observed: “We should make the law of arbitration simple, less technical and more
responsible to the actual realities of the situations, but must be responsive to the
canons of justice and fair play and make the arbitrator adhere to such process and
norms which will create confidence, not only by doing justice between the parties,
but by creating sense that justice appears to have been done.”

Nani Palkhiwala, the eminent jurist has once said "If I were appointed a dictator
of this country, in the short period between my appointment and my assassination,
I would promulgate a law making all commercial disputes compulsorily referable
to Arbitration."
This reflects the importance of alternative means of dispute redressal and that how
alternative means of dispute resolution by being mandatory in certain nature of
cases help the Courts in the long run by reducing their burden.
The long drawn nature of litigation which ironically subverts the ends of justice
due to delay makes it viable for parties to resort to alternate dispute resolution
would indeed curb delays and the limitations of the traditional system.

18
(1989) 2 SCC 347
[19]
The current need to promote settlement of disputes through ADR is to promote a
healthy ADR culture, along with a sound substantial law to meet the requirements
of the times and also create awareness and willingness on part of parties to resort to
ADR for their dispute resolution.

RECOMMENDATIONS

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In the backdrop of evolution of arbitration along with the present legislative and
institutional framework in the country, there are three fronts on which intervention
is needed:
 Streamlining the governance framework for arbitration. Under governance,
restructuring would be needed on legislative, executive and judicial fronts.
 Create a suitable positive infrastructure to promote arbitration. This would
include both physical infrastructure as well as human capital.
 Promoting both domestic arbitration and international arbitration.
The main recommendation to bring reform in the judicial framework is to
implement recommendations of Justice A.P. SHAH Committee (Law
Commission Report No. 245): “Arrears and Backlog: Creating Additional
judicial Manpower” and also recommendations of Law Commission REPORT
NO. 120, “Manpower Planning in Judiciary”. These recommendations include:
1. Creation of Special Traffic Courts to deal with matters of traffic and
Chalans.
2. Appointment of more judges and filling of vacancy at all levels.
3. Increase in age of retirement of judges of subordinate Courts upto 62 Years.
4. Increase in the staff of Courts and other additional members required.
5. Provision for training of Judges.
India must learn from the example of other countries where ADR is so Successful.
Like United States where ADR enjoys a high success rate. As per REPORT OF
U.S. DEPT. OF JUSTICE, the success rate of A.D.R. proceedings in 2017 was
that 75 percent cases were resolved that were voluntarily referred to A.D.R. and
out of cases referred to A.D.R. by Court 55 percent were resolved.
Another story of success in A.D.R. is that of Singapore. As per the 2010
International Arbitration Survey, Singapore is the regional leader in Asia for seat
of arbitration.
India must learn from the example of these countries to make use of ADR to
achieve complete justice and aid the Courts in dispensation of justice.

[21]
 CONCLUSION

In my opinion, Alternative Dispute Resolution (ADR) is a better alternative in a

wide range of conflicts, such as commercial disputes, insurance problems and
family disputes, consumer disputes, and other issues requiring technical
knowledge. No doubt ADR is not a suitable solution for every kind of dispute
such as criminal disputes; or interpretation of Constitutional matters, etc. these will
almost always require a full Court hearing. Alternative Dispute Resolution is not an
alternative to the court system but only meant to supplement the same.
In the aspect of certain conflicts, there are some common agreed benefits of ADR
as compared to litigation that makes me believe that ADR is better option to
litigation. Using ADR system, parties are able to play a proactive role and have a
greater say in dispute resolution. This let’s both sides increase their understanding
of each other’s position. It helps to find a solution that is more beneficial to the
parties. It will not be out of place to say that the field of ADR is bound to grow by
leaps and bounds in time to come.
The current need to promote settlement of disputes through ADR is to promote a
healthy ADR culture, along with a sound substantial law to meet the requirements
of the times and also create awareness and willingness on part of parties to resort to
ADR for their dispute resolution.

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