India, a developing country, has made substantial progress in the areas of providing health, education and other necessities of life to its citizen. There is phenomenal increase of professionals, entrepreneurs and businessmen. Every individual is working hard to become financially independent. There is growth in financial resources of people, their consciousness about their rights and will to enforce such rights has increased. The commerce has grown tremendously which is now a universal phenomena. Technology affects the pattern of working of people. There is ever growing need of new legislations to regulate new emerging situations. Similarly, there is ever existing need to update the existing laws to meet the new emerging situations. Those who do not match this changing scenario are bound to mis-match and faulter. The government machinery is required to be responsive to the needs of a conscious society which invariably lags behind. Whenever there is infraction of rights of people at the hands of others, invariably at the hands of Government or its agencies, it gives rise to litigation.

Past trends have shown that litigation is ever growing. The number of cases filed in courts are increasing year by year despite best efforts being made by the Courts and by the Governments to ensure that litigation is curtailed. Data available on website of Punjab & Harayana High Court showing year-wise institution, disposal and increase in pendency of cases can be quoted as an example :

Picture of other States is no good. In June, 2018 the Chief Justice of India had sounded the alarm on rising pendency considering the problem of backlog of cases touching 3.3 crore cases. While 2.84 crore cases were pending in the subordinate courts, the backlog clogging the High Courts and Supreme Court was 43 lacs and 57,987 cases, respectively. According to National Judicial Data Grid, the five States which account for the highest pendency were Uttar Pradesh (61.58 lacs), Maharashtra (33.22 lacs), West Bengal (17.59 lacs), Bihar (16.58 lacs) and Gujarat (16.45 lacs). There were large number of under-trials languishing in jails across the country as they do not get bail and many of them spend more than their sentence once they are convicted. Of all the pending cases, 60% are more than two years old, while 40% are more than five year old. In the Supreme Court, more than 30% of pending cases are more than five years old. In the Allahabad High Court, 15% of the appeals have been pending since 1980s, while in the MP High Court, 70,000 are pending since 1994. Therefore, overall picture is very grim.

The above figures reveal that invariably there has been consistent higher institution of cases year after year. There has also been great effort at disposal of cases but the disposal has not matched the institution and finally the pendency has grown. If the present dispensation is not able to dispose of the number of cases that are filed every year despite the fact that every court is over-worked with ever growing cause lists, courts function beyond their time schedules, hence, some extra-ordinary steps need to be taken.

The judiciary has adopted multi-pronged strategies to handle the litigation. There is lot of emphasis on Alternate Dispute Resolution (ADR). The government has introduced amendments in Arbitration & Conciliation Act, 1996 to ensure that wherever there is an agreement between the parties to get the disputes resolved through arbitration, such disputes should get resolved at a faster pace but lot more needs to be done in this regard. After an award is passed, a statutory right to file objections is available. Objections are maintainable before principle court of original Civil Jurisdiction i.e. the District Judge. Thus upon case being decided by arbitrator, the litigation enters mainstream of court process at Divisional Level. This mechanism is helping only at first stage decision.

Mediation is also being resorted to extensively for which mediation cells have been set up in almost all the courts. Through this process, a team of trained mediators is available and the disputes can be got resolved by the people through this mode. It is a job of an independent Mediator to sensitise the disputing parties about the strengths and weaknesses of their dispute. The parties are required to be told that if left to be decided through court process there is inherent risk of relief being granted, about the delays which are bound to occur and about the right available with a losing party to approach higher courts and by convincing the parties a permanent quietus to a lis can be given. Quite a substantial number of cases are getting resolved through mediation process. Having felt necessity of pre-litigation mediation, Mediation & Conciliation Committee of Punjab & Haryana High Court in October, 2014, launched the concept of Pre-litigation Mediation on the same lines as was being followed by Delhi High Court Mediation Centre. Under this concept of Mediation, a party has the option to make an application to the Mediation Cell by paying a nominal fee of Rs.10,000/- for seeking mediation in a dispute and in case matter gets settled, such settlement is at par with an award rendered in arbitral proceedings in terms of section 74 of Arbitration and Conciliation Act, 1996. So even if there is no arbitration agreement, still a party can opt for resolution of dispute by Pre-litigation Mediation mechanism. A wide publicity in this regard is being made so that public is made conscious of this mode of settlement of disputes. This system needs to be widened and strengthened so that litigation burden on regular courts could be drastically reduced.

The Central Government has also recognized the need of having adequate mechanism to settle the disputes at pre-mediation stage itself. A very important amendment came about in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018. Section 12-A in Chapter III-A on Pre-Institution Mediation And Settlement which is a step in right direction, is to the following effect:-

“12A. (1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

(2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987, for the purposes of pre-institution mediation.

(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987, the Authority authorised by the Central Government under sub-section (2) shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1)

Provided that the period of mediation may be extended for a further period of two months with the consent of the parties

Provided further that, the period during which the parties remained occupied with the pre-institution mediation, such period shall not be computed for the purpose of limitation under the Limitation Act, 1963.

(4) If the parties to the commercial dispute arrive at a settlement, the same shall be reduced into writing and shall be signed by the parties to the dispute and the mediator.

(5) The settlement arrived at under this section shall have the same status and effect as if it is an arbitral award on agreed terms under sub-section (4) of section 30 of the Arbitration and Conciliation Act, 1996.”

This legislation is certainly going to cause big dent on the litigation of a category covered under the provisions of Commercial Courts Act. This concept needs to be introduced to all the category of cases being filed in regular courts, of course with exception qua few identified category of cases.

Similar provisions exist in The Micro, Small and Medium Enterprises (MSME) Development Act, 2006 which mandate conciliation when disputes arise on payments to MSMEs. Its only when mandatory conciliation fails that the disputes are referred for statutory arbitration. Section 18 of the 2006 Act is reproduced as under:-

“18. Reference to Micro and Small Enterprises Facilitation Council.

(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council.

(2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.

(3) Where the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the disputes as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section (1) of section 7 of that Act.

(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises Facilitation Council or the centre providing alternate dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator under this section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India.

(5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.”

This measure of mandatory pre-litigation conciliation by the Micro and Small Enterprises Facilitation Council. has gone a long way in protecting the interest of Micro Small and Medium Enterprises and their disputes are getting resolved expeditiously.

For carrying out pre-litigation mandatory mediation there may be necessity of involving experts. During the hearing, there may be necessity of calling oral/documentary evidence from different departments and necessity of having expert opinions may be required with a focus on resolution of dispute. The type of cases that can be easily handled may be those involving insurance, employment, business and other civil disputes. The process of mediation saves both money and time. Pre-litigation would provide quicker resolution to a dispute. The time thus saved on handing new emerging litigation can be utilized by the courts on deciding old pending cases and the litigation which flows in regular courts. Otherwise there does not seem to be any possible solution to the problem of deciding pending cases. Option must also be given to those litigants whose cases are pending for years together and there is hardly any likelihood of those cases being taken up by the courts for decision to make an effort at mediation by getting the cases referred to Mediation. Some incentive to Bar would work miracles.

A statutory duty must be case on the Advocates to apprise the potential litigant that mediation is a process adopted to arrive at amicable resolution of dispute. The parties themselves or through Advocates must spell out their dispute in detail to the other side with corroborative evidence. In case provision is in place to ensure fixed professional fee to the Advocates handling matters at pre-litigation stage, surely the majority of disputes would get resolved at this stage itself. Many issues can be settled through this process even if the mediation did not result in a final decision and the left out issues can be got settled through the court process. This exercise carried out at pre-litigation stage would still assist the Court in a big way inasmuch as the material collected through mediation process can be made basis and be made admissible in evidence in evidence before court of law and the court may proceed to adjudicate only the left out issues of fact and law which were left unresolved through mandatory pre-litigation exercise.

By way of pre-litigation mediation, a potential litigant is required to be provided with an option and opportunity to have a formal process involving several steps to be taken prior to litigation. Necessary amendments can be introduced to various statutes, as has been done by the Central Govt. under Commercial Courts Act and MSME Act, discussed above. Such provisions made in the land laws will go a long way in resolving various boundary related issues. It should be made a mandatory condition for every litigant to have the dispute raised through Advocate by giving out complete detail of the dispute, supporting evidence and the settled legal position on the issue. Such a notice should be examined by the opposite party and its Advocate and a mandatory response must transact in this regard between the parties. The area how Advocates would conduct the matter can also be specified and regulated. It can be made a statutory duty of the Advocates representing respective parties to certify the actual dispute on facts and on law. It is only thereafter that consensus report of both the Advocates on the gist of dispute on facts and law alongwith documentary evidence should be placed before a “Designated Authority” may be under the Legal Services Authority Act and/or before the Mediators who may make their best efforts to get the dispute resolved obviating necessity of approaching the Court. When all efforts at settlement fail only then the dispute must enter the Court process. Law needs to be amended and made harsher that in case a party ultimately is found to have acted unreasonably and with dishonesty in not settling the dispute through mandatory pre-litigation stage mechanism and fails in court, must be burdened with exemplary consequences.

It would be apt to discuss the litigation policy adopted by Italian Government. In 2014 The Italian government enacted a Decree (later to converted into Law) laying down urgent measures to reform the Italian civil judicial system and to deal with the backlog of pending cases. According to the Decree’s explanatory report, it was necessary and critical for Italy to reduce the duration of Italian court proceedings in order to put an end to its violations of the “reasonable time” requirement for a fair trial set forth in Article 6(1) of the European Convention on Human Rights. Moreover, the government aims to transform the Italian justice system from a burden on the country’s growth to a driving force to assist in resolving the nation’s economic crisis. The new measures were designed to reduce the workload of Italian courts by diminishing the average time required to obtain a decision in civil cases. This would make Italy a more attractive country for foreign investment and work toward the ultimate goal of accelerating economic growth. The Decree was also inspired by a decision to leverage the professional capabilities and skills of Italian lawyers in the judicial system. The main changes introduced by the Decree included:

• The possibility to refer pending cases to arbitration conducted by panels comprising lawyers who have been members of the relevant Italian bar for more than three years (Articles 1 and 9);

• The introduction of the so-called “settlement negotiation assisted by legal counsel” or “assisted negotiation” as an out-of-court means to resolve disputes, which would become a mandatory prelitigation step for disputes pertaining to certain specific matters (Articles 2-5);

• The possibility to interrupt statute of limitations by inviting the counterparty to proceed with assisted negotiation (Article 8);

• A reduction in the number of cases in which the judge may order that each party bear its own costs, thereby discouraging potential losing parties from bringing proceedings as a dilatory tactic (Article 13);

• The possibility to convert ordinary proceedings into summary proceedings to accelerate the taking-of-evidence phase (Article 14);

• The introduction of written affidavits to accelerate the hearing-of-witnesses phase (Article 15);

• Reductions in the periods during which Italian courts are closed in summer, judicial deadlines and hearings are suspended, and judges take holiday leave (Article 16);

• An increase in the interest rate applicable to pending legal proceedings to limit the use of vexatious litigation by debtors as a means of delaying payments (Article 17); and

• Measures directed to simplify enforcement proceedings and make them more effective (Article 18-20).

Mediation policies in some of the countries, like Italy, mandate mediations through various mechanisms, which is working well and is highly successful.

In India also there is a dire need for a comprehensive policy on pre-litigation mediation rather than selective, half-hearted and disconnected steps making no big difference. The role and professional responsibilities of Advocates, Mediators and other Experts with consequential responsibility of Government as a major litigant, the rights and obligations of parties in the process, and the outcome of the mediation agreement need to be well defined to get desired result. It has to be a collective action by Legislature, Executive and Judiciary that this monster of pendency of cases can be managed. It is not possible only for the ill-equipped Judiciary to handle this alarming situation.

The 1990s brought liberalization to India, and with it came a docket explosion crisis, the ramifications of which we are still dealing with. S. 89 was inserted in the Code of Civil Procedure through its 1999 Amendment Act,^[1] based on the recommendations of the Malimath Committee report and the 129thLaw Commission Report, in response to this crisis. The aim was to increase access to justice through reducing costs and pendency.^[2] A specific provision was required as litigantsdid not refer to these much when left to their own devices due to reasons such as ignorance, reluctance or indifference.^[3]

In light of the above, S. 89, CPC enables courts to determine whether a matter can be resolved through ADR. It provides for reference to arbitration, conciliation, judicial settlement (may also be brought about through a Lok Adalat) and mediation. Eliciting parties’ consent on the method of dispute resolution to be adopted is preferred but not necessary.^[4]

The effect of referring a dispute to each of these methods is different. For example, a case can only be referred to arbitration if both parties consent to it. Once it is so referred, it goes “outside the stream of the court”^[5] and is decided finally by the arbitral tribunal itself, based on the provisions of the Arbitration and Conciliation Act, 1996 [“AC Act”].^[6] On the other hand, a mediation settlement will have to be confirmed by the court. While the scheme of the section is fairly simple prima facie, lacunae in drafting have created some complications.^[7]

Deliberation on Section 89, CPC was initiated in Salem Advocate Bar Association v. Union of India, 2003 (1) SCC 49.. The constitutional validity of the section was upheld and the intent behind its inclusion lauded. Criticism was muted as S. 89, CPC was a recent insertion at the time. It was opined that the section had not been very effective as its modalities were yet to be determined. A committee was set up to draft model rules, and the apex court recommended the adoption of these rules by the various High Courts so as to give effect to section 89(2)(d), CPC.

In the subsequent decision of Salem Advocate Bar Association v. Union of India, 2005 (6) SCC 344, [“Salem II”] the apex court purposively reinterpreted S. 89, CPC to reduce anomalies. For instance, the words shall and may in S. 89, CPC and Rules IA-IC, Order X, CPC were read harmoniously and it was determined that may was intended to refer to only the reformulation of terms of a potential settlement by the court. There was also an attempt to resolve the issue created by inclusion of the phrase “terms of settlement” in the section. The section mandates formulation of settlement at the pleadings stages. However, this is not feasible since, firstly, there would not have been adequate application of mind of the judge at the pleadings stage, and, secondly, determining terms of settlement is the domain of the ADR forum. So, a plain reading of the section creates the futile situation wherein courts are expected to do the ADR forums job before referring a matter to it. In light of the above, “terms of settlement” was interpreted as summary of disputes.

The court further replaced the definition of mediation in the section with that suggested in the model mediation rules.

The subsequent decision in Afcons Infrastructure Ltd v. Cherian Varkey Construction Co (P) Ltd , 2010 8 SCC 24, [“Afcons case”]. is the most recent landmark judgement on the issue. The primary issue herein was whether the court could refer a case to arbitration without the consent of both parties. However, there was also an extensive discussion on the scope of S. 89, CPC. It was noted that the language of S. 89(1), CPC is borrowed entirely from S. 73(1), AC Act which is in reference to a conciliator in the final stages of conciliation and hence unsuitable vis-a-vis a court of law referring disputes to be resolved through an ADR method. Thus, the phrase “terms of settlement” was interpreted in light of the decision in Salem II.

The mix-up between the terms judicial settlement and mediation in sub clauses (c) and (d) of S. 89(2) CPC was recognized as a drafting error. It was also opined that a matter referred to a Lok Adalat under section 89 would be different from a matter taken to a Lok Adalat independently as the former would still need to be placed before the court subsequent to the Lok Adalat passing its award. However, this aspect of the judgment has been subsequently disputed due to the fact that it is in conflict with section 21, LSA Act.^{[8] [9]}

Beyond Supreme Court judgments, further confusion exists section 89(2)(c) and 89(2)(d) even if the words mediation and judicial settlement are switched as in that case, a mediation agreement will get the same status as one reached through a Lok Adalat. However, as per S. 21, Legal Services Authorities Act, 1987 [“LSA Act”], an award passed by a Lok Adalat is given the same status as a decree passed by a civil court, while a mediation agreement has to be confirmed by court.^[10]” Another strand of opposition exists in the form of those who opine that the distinction between mediation and conciliation is a false one and hence there is no need for a separate mediation clause.^[11]” The Law Commission of India has even recommended the deletion of the provision for mediation under section 89(1) because that is an option that is always open to the court anyway, leaving no need or reason to codify it.^[12]”

The issue vis-a-vis court fees which has arisen in light of S. 16, Court Fees Act, 1870^[13] must also be resolved. The intent behind the section is to avoid penalizing litigants who choose ADR, and also incentivizing them, by ensuring a refund of court fees. However, a plain reading of the section itself gives rise to a problem. Section 89, CPC is supposed to be a mandatory provision if the court feels that there is a chance of settlement. So, cases are referred for ADR mandatorily. That does not always translate into a settlement taking place between the parties. If such a thing happens in case of mediation, conciliation or Lok Adalats, then parties can come back to court. Nonetheless, in this case, they would have been refunded their court fee so they would have their case tried for free.^[14] In Nutan Batra v. Buniyaad Associates, 2018 SCC Online Del 12916., the Delhi High Court clarified that S. 16, Court Fees Act must not be given a literal interpretation which would entitle a plaintiff to refund irrespective of successful settlement through ADR methods.

Despite the above criticisms, it cannot be denied that S. 89, CPC is an admirable attempt to reduce the burden on courts^[15] and make justice a reality for litigants. The model that it attempts to replicate has been very successful in various jurisdictions. California is a very successful example of this with no arrears of cases older than two years. In fact, in San Diego, 97% of all civil cases are settled through methods of ADR.^[16] Further, the section has facilitated the increased use of ADR methods by parties to legal disputes. For instance, there is an increased trend of mediation in matrimonial disputes. Such avenues are also being preferred by parties who prefer confidentiality.^[17] Further, implementation has become more practicable in light of the apex courts interpretation of the section, thus ensuring an overall positive impact. In brief, section 89 is an attempt at innovative legislation to solve a problem that is plaguing the Indian legal system and is only set to become bigger in the coming years. One can then safely surmise that the idea behind section 89, CPC is one that is not only laudable it is also desperately needed.

[1] Rules 1A-1C, CPC And Section 16, Court Fees Act, 1870 [“Court Fees Act”] were incorporated along with Section 89 and are intended to be read together; MULLA ON THE CODE OF CIVIL PROCEDURE, Vol 1, 874, (BM Prasad ed., 18th edn., 2011).

[2] MP Jain, THE CIVIL PROCEDURE CODE, 251, (2004).

[3] R.V. Raveendran, Section 89 CPC: Need For An Urgent Relook, SCC(J) 2007 (4) 23, 23.

[4] 238th Report of the Law Commission of India, Amendment of Section 89 of the Code of Civil Procedure, 1908 and Allied Provisions, 10, 2011.

[5] Para 9, Salem Advocate Bar Association v. Union of India, 2003 (1) SCC 49.

[6] 176th Report of the Law Commission of India, The Arbitration and Conciliation (Amendment) Bill, 2001, 32, 2001.

[7] It has been described as “not very happily worded” and having been “drafted in a hurry”; supra note 3, at 24.

[8] Supra note 4, at 19.

[9] The section provides that a Lok Adalats award will be deemed to be the decree of a civil court.

[10] Supra note 4, at 19.

[11] Supra note 3, at 23.

[12] 163rd Report of the Law Commission of India, The Code of Civil Procedure (Amendment) Bill, 1997, 21, 1998. However, there have not been too many takers for this particular point of view.

[13] This section is not in effect in all states as many of them have their own Court Fees Act. A lot of these state acts do not have a corresponding provision; supra note 3, at 30.]

[14] Supra note 3, at 24.

[15] A Xavier, Mediation: Its Origin and Growth in India, 27(2), HAMLINE JOURNAL OF PUBLIC LAW & POLICY, 275, 281, (2006).

[16] Justice MS Shah, Study of the American Legal System for Procedural Reforms in Civil Courts in India, available at http://gujarathighcourt.nic.in/mediation/study1.htm.

[17] BS Hanasi, A Critical Study of the Alternate Dispute Resolution System in India (with special focus on Lok Adalats), 222, 2008.

What is Alternative Dispute Resolution System?

Alternative Dispute Resolution (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional, third party, who helps the parties to resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADA are mediation and arbitration, there are many other forms: judicial settlement conferences, fact-finding, ombudsmen, special masters. Though often voluntary, ADA is sometimes mandated by the courts, which require that disputants try mediation before they take their case to court.

ADR in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 (ACA) has been enacted to accommodate the harmonization mandates of United Nations Commission on International Trade Law (UNCITRAL) Model. To streamline the Indian legal system, the traditional civil law known as the Code of Civil Procedure, (CPC) 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 ADA mechanisms in India. While ACA is a fairly standard western approach towards ADA, the Lok Adalat system constituted under the National Legal Services Authority Act, 1987 is a uniquely Indian approach.

The main objectives of the Act are:

a) To cover international and domestic arbitration comprehensively.

b) To minimize the role of courts and treat arbitral award as a decree of court.

c) To introduce the concept of conciliation.

d) To provide speedy and alternative solution to the dispute.

Alternative Dispute Resolution Mechanism

Arbitration – It is one of the cardinal mechanisms in alternative dispute machinery, whereby the dispute is submitted to one or more arbitrators, who are duly appointed by both the parties. The process of arbitration can start only if there exists a valid arbitration agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by the other is also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing an arbitrator and if the other party does not cooperate, the party can approach the office of the Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator reasonable doubt in the impartiality of the arbitrator and lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitutes the arbitration tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

The tribunal can give its verdict in the form of “arbitral award”, which is legally binding on disputed parties. Arbitration is very common in business transactions, but unknown to many that it is the oldest method of resolving disputes, which had been enshrined since ancient history.

Mediation – Is a non-binding process in which a third party called “mediator” helps the disputed parties to reach a settlement.

Mediation is the technical term in international law which signifies the interposition by a neutral and friendly state between two states at war or on the eve of war with each other, of its good offices to restore or to preserve peace. The mediation is a process, facilitation, an empowerment. The core value of mediation is that the process provides the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, the mediator, to exhaustively determine if a settlement is possible. It is a process of empowerment of the parties to control their destiny in their dispute.

Thus, mediation is necessarily a process of negotiation by which the participant together with the assistance of a neutral person attempts to resolve the dispute. The third party mediator makes effort by negotiations with the participants to systematically identify and isolate disputed issues in order to develop options consider alternatives and to reach a congenital agreement that will accommodate their needs and rights. The third party mediator lacks authority to decide but only facilitate to create congenial environment to enable the party to resolve their dispute amicably themselves.

Mediation provides a forum for principled negotiations. These negotiations may at times become frustrating and troubling, but with the mediators help the parties keep moving forward. Principled negotiations stimulate exploration of settlement alternatives and an opportunity to evaluate those alternatives, weighing them against the likely outcome of going to trial and viewing proposals through the lenses of reality. Mediation compared to litigation, trial and appeal is a veritable bullet train to certainty and finality. If the dispute settles at the mediation, it settles on a basis acceptable to the parties; the spectre of trial is removed; and the threat of being tied up on appeal is eliminated.

I would conclude by saying that mediation is extremely relevant to the justice delivery in India since it not only brings an end to the litigation pending before the Courts but it also has cascading effects of bringing an end to bad-blood between the parties and making them useful members of the Society.

Conciliation – This mechanism is also non-binding on the parties. It is a process by which a third party called “conciliator” meets disputed parties separately in order to resolve their differences. He neither gives verdict nor makes any award. Conciliation is a less formal form of arbitration. This process does not require existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

Lok Adalat – It is also called “peoples court”. It was established by the Government under the Legal Services Authorities Act, 1987 to facilitate inexpensive and prompt settlement of pending suits by conciliation and compromise. This forum is very effective in settlement of money claims, partition suits and matrimonial cases. India has had a long history of resolving disputes through the mediation of village elders. These are usually presided over by a retired judge, social activists, or members of the legal profession. It does not have jurisdiction on matters related to non-compoundable offences.

There is no court fee and no rigid procedural requirement (i.e. no need to follow process given by the Civil Procedure Code or the Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts.

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 against, not even under Article 226 of the Constitution, because it is a judgement 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.

Ombudsman – it is an external agency appointed by the government to probe into administrative lapses. It is a mechanism by which an aggrieved party can claim relief against abuse of discretionary power by government authority. Sweden was the first country to adopt this institution in 1809 followed by Finland, Denmark, Norway, New Zealand, Australia and the Scandinavian countries. The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer or CVO) for redressal of grievances and complaints from individuals in banking, insurance and other sectors being serviced by both private and public bodies and corporations. The CVC (Central Vigilance Commission) was set-up on the recommendations of Santhanam Committee (196264).

In India, Ombudsman is called Lokpal or Lokayukta. An Administrative Reforms Commission (ARC) was set up on 5 January, 1966 under the chairmanship of Morarji Desai. It recommended two-tier machinery: Lokpal at the Centre (Parliamentary commissioner as in New Zealand) and one Lokayukta each at the State level for redressal of peoples grievances. However, the jurisdiction of the Lokpal is not extended to judiciary like in New Zealand. The Central Government introduced the first Lokpal Bill and Lokpal and Lokayuktas Bill in 1968. The new Bill is under discussion.

The Lokayukta institution has come into existence in different years, in different States in India. Orissa is the first state to present a Bill on establishment of Lokayukta in 1970. However, Maharashtra is the first state to have established the institution in 1972. Thereafter, this institution was established in different States in different years. The structure of the Lokayukta is not uniform across all the states. Some states have Upa-Lokayukta under Lokayukta and in some states the Lokayukta does not have suo motu powers of starting an enquiry.

Negotiation – It is a non-binding process of resolving disputes, by which parties to a dispute interact with one another and try to work out a settlement without the intervention of a third party. The importance of negotiation in concise can be aptly put in the words of former US President John F. Kennedy “Let us negotiate with fear but let us not fear to negotiate”. It 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 ADA. Given this definition, one can see negotiation occurring in almost all walks of life, from parenting to the courtroom.

Practitioners and researchers began to develop win-win approaches to negotiation. This approach, referred to as principled negotiation, is also sometimes called mutual gains bargaining.

Collaborative Law – It is a voluntary dispute resolution process by which parties to a dispute are represented by their own lawyers, to facilitate discussion in accordance with an agreement. It has been an effective mechanism in the context of divorce and family law. Collaborative law is practised internationally in countries like the USA, UK and the list goes on with the inclusion of countries such as France, Germany, Austria, Australia, Scotland, Switzerland and Hong Kong. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach an agreement with the support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes resolution on the parties. However, the process is a formalized process that is part of the litigation and the court system. Rather than being an alternative resolution methodology it is a litigation variant that happens to rely on ADA like attitudes and processes.

Conclusion

Because justice is not executed speedily men persuade themselves that there is no such thing as justice. Sharing the same sentiments, Chief Justice Bhagwati said in his speech on Law Day, “I am pained to observe that the judicial system in the country is 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 creeking under the weight of errors.”

The disputants want a decision and that too as quickly as possible. As the problem of overburdened Courts has been faced all over the world, new solutions were searched. Various Tribunals were the answer to the search. All over the globe the recent trend is to shift from litigation towards Alternative Dispute Resolution. It is a very practical suggestion, which if implemented, can reduce the workload of Civil Courts by half. 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.

It is important here to mention the statement made by John F. Kennedy in this respect: “Let us never negotiate out of fear but let us never fear to negotiate.”

Bibliography:

• Bawa, Siddhartha. 2006. Law of Arbitration and Conciliation. Delhi: New Era law Publications.

• Singh, Avtar. 2007, Law of Arbitration and Conciliation, Lucknow: Eastern Book Company.

• Tripathi, S.C. 2005. The Arbitration and Conciliation Act, 1996 with Alternative Means of Settlement of Disputes. Delhi: Central Law Publication.

I. Introduction:

The implementation of Alternative Dispute Resolution mechanisms a means to achieve speedy disposal of justice is a crucial issue. The sea-change from using litigation as a tool to resolve disputes by 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 lot of loop-holes and problems in the legislation, the provisions could not be fully implemented. However, many years later in 1996, The Arbitration and Conciliation Act was passed which was based on the UNCITRAL model. The amendments to this Act were also made taking into account the various opinions of the leading corporates and businessmen who utilised this Act the most. Sufficient provisions have been created and amended in the area of Lok Adalats in order to help the rural and commoner segments to make most use of this unique Alternative Dispute Resolution mechanism in India. Therefore, today the provisions in India sufficiently provide for Alternative Dispute Resolution. However, its implementation has been restricted to just large corporates or big business firms. Lok Adalats, though a very old concept in Indian Society, has not been implemented to its utmost level. People still opt for litigation in many spheres due to a lot of drawbacks. Provisions made by the legislators need to be utilised. This utilisation can take place only when a definite procedure to increase the implementation of ADR is followed. In order to have such an implementation programme, it is necessary to analyse what the problems are and how to rectify them.

II. Problems in implementation of ADR System :

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:

(1) Attitudes: Although Indian law favours dispute resolution by arbitration, Indian sentiment has always abhorred the finality attaching to arbitral awards. A substantial volume of Indian case law bears testimony to the long and ardous struggle to be freed from binding arbitral decisions. Aided and abetted by the legal fraternity, the aim of every party to arbitration (domestic or foreign) is: “try to win if you can, if you cannot do your best to see that the other side cannot enforce the award for as long as possible.” In that sense, arbitration as a means of settling disputes is a failure-though it is being increasingly regarded as a useful mechanism for resolving disputes. The trouble is that neither the private sector nor the public sectors in India are as yet sufficiently infused with the “spirit of arbitration.” An arbitration award should only be permitted to be set aside for reasons extraneous to its contents-such as, lack of jurisdiction of the arbitrator, fraud or corruption of the arbitrator or of the other party, or a fundamental miscarriage of justice in the conduct of arbitral proceedings. Jurisdiction to correct patent legal errors on the face of the award was a peculiarly English innovation. To have imported this questionable jurisdiction into litigous India (as we did under the Arbitration Act, 1940) was a great mistake. Then, thin dividing line between the merits of an award and errors of law apparent on its face are often blurred- few questions of fact continue to remain so after being churned up in the mind of a skilled lawyer! These basic infirmities in the law of arbitration, and the approach of users, left their mark on domestic arbitration under the Arbitration Act, 1940.[1]

First and foremost, there is a need to change our traditional approach to resolving disputes, even a need to change our basic attitudes. Perhaps the legendary basketball coach of Temple University, John Chaney, said it best when he said that “winning is an attitude.” He might well have been speaking about dispute resolution and ADR. We need to redefine the very meaning of what it is to “win.” Consistent with what our clients want and deserve, the ultimate “win” requires our understanding of the clients’ interests and goals and our ability to solve their problems. The spirit of ADR mechanisms is to create a WIN-WIN situation, but the attitude to people is changing it into a WIN-LOSE situation, which is not very different from a litigation. In so many large international arbitrations the defendant will do everything to postpone the moment of the award; at and before the hearing, the parties will deploy all concievable, and some inconcievable, procedural devices to gain an advantage; the element, of mutual respect is lacking; and the loser rather than paying up with fortitude, will try either to have the award upset, or to atleast have its enforcement long postponed. It is in this background that the new Indian law (of arbitration and conciliation) was conceived and enacted. But it is not enough to have a new law-it is necessary for judges and lawyers to realise that the era of court-structured and court controlled arbitration is effectively at an end. Our attitudes require readjustment; we need to re- adjust to the spirit of ADR, and adhere to its underlying philosophy, which is that of utmost good faith of the parties.

(2) 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. In some circumstances, a settlement is not in the client’s interest. For example, the client may want a binding precedent or may want to impress other potential litigants with its firmness and the consequent costs of asserting claims against it. Alternatively, the client may be in a situation in which there are no relational concerns; the only issue is whether it must pay out money; there is no pre judgement interest; and the cost of contesting the claim is less than the interest on the money. In these, and a small number of situations, settlement will not be in the client’s interest.[1]

Still, a satisfactory settlement typically is in the client’s interest. It is the inability to obtain such a settlement, in fact, that impels the client to seek the advice of counsel in the first place. The lawyer must consider not only what the client wants but also why the parties have been unable to settle their dispute and then must find a dispute resolution procedure that in likely to overcome the impediments to settlement. Note, however, that, even though it may initially appear that the parties seek a settlement, sometimes, an examination of the impediments to settlements reveals that atleast one party wants something that settlement cannot provide (eg. Public vindication or a ruling that establishes an enforceable precedent.)

An attorney who is paid on an hourly basis stands to profit handsomely from a trial, and maybe less interested in settlement than the client. On the other hand, an attorney paid on a contingent fee basis is interested in a prompt recovery without the expense of preparing for or conducting a trial, and maybe more interested in settlement than is the client. It is in part because of this potential conflict of interest that most processes that seek to promote settlement provide for the clients direct involvement. For lawyers, this means new approaches that initially seem almost counterintuitive. For example, the recovery of large sums of money is usually regarded as the ultimate “win” for plaintiffs in commercial cases. Yet, Wall Street values long-term streams of revenue even more highly than large sums of cash. Perhaps the restructuring of a long-term relationship would offer a better result.

Once in mediation, lawyers usually try to exert a high degree of control over the process, not unlike in a deposition or at trial. However, direct involvement of the client in the mediation process is often the best way to succeed. Lawyers also frequently engage in a “we-they” approach to negotiations that rarely results in a zero-sum gain. Lawyers need to have a better understanding of the importance of integrative bargaining, where lawyers can sit on the same side of the table and try to “expand the pie.”

Lawyers also need to reflect upon the meaning of Ethical Consideration, which imposes a duty to represent a client zealously. Effective mediation advocates need to abandon any desire for revenge in favour of a more goal-oriented approach if they are to secure the “win” that best serves their client’s interests. In many instances, it is not the lawyer but the angry client who wants revenge. For these clients, every new case becomes a matter of principle until the client receives the lawyer’s third or fourth bill then the client wants to spell the word “principle” differently. Here, even more so, the lawyer has a responsibility to make an early and realistic assessment of the dispute and to serve as an anchor for the client. These differences in interest need to be sorted out.[1]

(3) 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. Over the next generation, society’s greatest opportunities will in tapping human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry. If lawyers are not leaders in marshalling co-operation and designing mechanisms which allow it to flourish, they will not be at the centre of the most creative social experiments of our time.[1]

A serious effort to provide cheaper methods of resolving disputes will require skilled mediators and judges, who are trained to play a much more active part in guiding proceedings towards a fair solution. In short, a just and effective legal system will not merely call for a revised curriculum; it will entail the education of entire new categories of people. For law schools, there is a need to recognize that the demands of the marketplace have forever changed the dynamics of dispute resolution. Obviously, an understanding of the adversarial system, stare decisis, and the process of litigation remain critical. At the same time, students need to enhance their skills as negotiators and to appreciate, for example, the value of listening or the advantage of making the “first credible offer.” Law students also need to understand the suitability and advocacy issues in ADR at more sophisticated levels and to understand the important keys to problem solving. It is time that our law schools began to take the lead in helping to devise such training.[1]

(4) Impediments to settlement [1] : Just as there may be problems in the implementation techniques, there are impediments even after that stage, i.e. during the time of settlement. Some of them are :

(i) Poor communication : The relationship between the parties and/or their lawyers may be so poor that they cannot effectively communicate. Neither party believes the other. Inability to communicate clearly and effectively, which impedes successful negotiations, is often, but not always, the result of a poor relationship. If, for example, the parties come from different cultural backgrounds, they may have difficulty in understanding and appreciating each other’s concerns. Or, if there had been a long history of antagonism between the key players, all efforts to communicate are likely to be hampered by antagonism.

(ii) The need to express emotions : At times, no settlement can be achieved until the parties have had the opportunity to express their views to each other about the dispute and each other’s conduct. Such venting, combined with the feeling that one has been heard by the other party, has long been recognized as a necessary step in resolving family and neighbourhood disputes. Business disputes are no different. After all, they do not take place between disembodied corporations but between people who manage those corporations, and who may have as much need to vent as anyone else involved in a dispute.

(iii) Different views of facts : Usually in a dispute, there are two or more parties, each believing that they are the hurt party in some way or the other. Each believes that the other is the wrong-doer. To this belief, they have their own justifications. Just as each one of them has a different perspective on what the result of the dispute should be, they also have their own view regarding the facts of the case. Both parties have their own version as to what the facts are and reconciling these different views is itself a major problem.

(iv) Different views of legal outcome if settlement is not reached: Disputants often agree on facts but disagree on their legal implications. One party asserts that, on the basis of the agreed upon facts, he has a 90 percent likelihood of success in court; the other party, with equal fervour, asserts that she has a 90 percent chance of success. While there may be a legitimate dispute over the likely outcome, both these estimates cannot be right.

(v) Issues of principle : If each of the disputing parties is deeply attached to some fundamental principle that must be abandoned or compromised in order to resolve the dispute, then resolution is likely to be difficult. Two examples: a suit challenging the right of neo-Nazis to march into a town where many Holocaust survivors live; and a suit by a religious group objecting to the withdrawal of life-support systems from a comatose patient. In view of the intensity of feelings in cases such as these, it is unlikely that evaluative techniques will be helpful in reaching a settlement.

(vi) Constituency pressures: If one or more of the negotiators represents an institution or group, constituency pressures may impede agreement in two ways: different elements within the institution or group may have different interests in the dispute, or the negotiator may have staked her political or job future on attaining a certain result.

(vii) Linkage to other disputes: The resolution of one dispute may have an effect on other disputes involving one or both parties. If so, this linkage will enter into their calculations, and may so complicate negotiations as to lead to an impasse. For example, an automobile manufacturer in a dispute with one of its dealers concerning the dealer’s right to sell autos made by the other companies may ultimately be willing for reasons specific to that dealer-to allow it do so. But the manufacturer may so fear the effect of such an agreement on similar disputes with other dealers that the parties arrive at an impasse. It is possible that the manufacturer did not make this concern explicit in its negotiations with the dealer because it did not want the dealer to know it was engaged in similar disputes elsewhere.

(viii) Multiple Parties: Where there are multiple parties, with diverse interests, the problems are similar to those raised by diverse constituencies and issue linkages.

(ix) The “Jackpot” syndrome: An enormous barrier to settlement often exists in those cases where the plaintiff is confident of obtaining in a Court a financial recovery far exceeding its damages, and the defendant thinks it is unlikely. For example, the case may be one in which the controlling statute provides for the discretionary award of punitive damages to the successful plaintiff. If the underlying damage claim is for Rs. 10 lakh, and the plaintiff thinks that Rs. 50 lakh in punitive damages is a real possibility while the defendant does not, the vast disparity in case valuation may make settlement close to impossible.

(5) Ignorance: One of the major reasons for the failure in implementation is the ignorance of the existing provisions of law. Legislators have made the necessary laws, but have never thought of implementing them at the grass- root level. They do not help in building up the awareness of those laws, so that people will utilise them. ADR provisions are well known only in the big business circles. Most of the educated elite are also unaware of the availability and possibility of such mechanisms in India, let alone the rural sector. Most of the rural segment, after all these years of independence, is now understanding the formal legal system and is making use of it at a time when the country and the world at large is reverting back to the old community-based problem solving and other ADR techniques so well known in rural India. Ignorance of laws is not an excuse in our country. However, when no awareness is present, how would people know about it and utilise it?

(6) Corruption: Corruption is not a new issue in our country. It has always been a parasite to the nation and is sucking out the very purpose of independence. Today, not a single work gets done without having to bribe the way through. People have stopped challenging it as without being a part of it, life becomes difficult. ADR mechanisms have a very great risk of being ridden by corruption. For instance, in cases of negotiation between a rich educated person and poor illiterate man over a land dispute, chances of the negotiator being bribed by the rich person is very high. Thus, corruption can become a raging problem in ADR.

(7) Though recourse to ADR as soon as the dispute arises may confer maximum advantages on the parties; it can be used to reduce the number of contentious issues between the parties; and it can be terminated at any stage by any one of the disputing parties. However, there is no guarantee that a final decision may be reached.[1]

(8) ADR procedures are said to be helpful in reaching a decision in an amicable manner. However, the decisions arrived at after a non-litigative procedure are not binding as they are voluntary. This makes the entire exercise futile as parties do not stick to their decision resulting in a waste of time and money.

(9) ADR procedure permits parties to choose neutrals who are specialists in the subject matter of the disputes. This does not mean that there will be a diminished role for lawyers. They will continue to play a central role in ADR processes; however, they will have to adapt their role ADR requirements. Neutrals and trained ADR experts are very few to cater to the vast population.

(10) Since the ADR proceedings do not require a very high degree of evidence, most of the facts regarding the dispute which would have been proved otherwise continue to be a bane in the discussion which may lead to dissatisfaction.

(11) In ADR, the parties can choose their own rules or procedures for dispute settlement. Arriving at them is the major hurdle.

(12) ADR programmes are flexible and not afflicted with rigourous rules of procedure. There is, therefore, a possibility of the parties going back on the agreed rules and programmes. This creates a delay and slows the process of dispute resolution.

(13) Flexibility and unconfirmed procedures make it extremely difficult to quote and use precedents as directives.

(14) ADR procedures were introduced to lessen the burden of the courts. However, since there is an option to appeal against the finality of the arbitral award to the courts, there is no difference in the burden.

(15) There are also some situations under which an amicable settlement through ADR is not favoured. They are:

– One party may be owed money and simply be looking for the final and enforceable decision which can be obtained by resorting directly to litigation. Any ADR procedure only compromises his situation.

– A party may owe money and seek to use amicable settlement as a delay and discovery mechanism-the other party may, therefore, be concerned about the delay, incurring extra costs and being disadvantaged in the subsequent litigation

– Adjudicative methods may be most appropriate for resolving some situations, such as frivolous claims, claims which compromise a particular principle, cases which involve bodily injury or alleged criminality.

All these problems are not permanent in nature. They all have solutions. An attempt to make suggestions for the solutions of the above listed problems has been made below. This list of suggested solutions is merely illustrative and not exhaustive. An in-depth research for this is vital.

It is felt that an attitudinal change towards ADR would result in active implementation of ADR and the burden on the courts will reduce. Yet, whether it is in the urban segment or in the rural segment, there is still a lack of knowledge about ADR. A need for instilling awareness is imperative to bring in a change in the attitudes. The urban sector which has a higher literacy rate could be reached by inserting slides in movie theatres, having advertisements in television channels and newspapers, conducting periodical seminars and having a dedicated helpline. It is the rural segment whose attitude is difficult to change. From the initial gramasabha system, it took many years for them to adopt litigation. To revert back to the old system, which is in fact an ADR concept would require tremendous amount of communication by trained professionals be spelling the strengths of the system. An insight into the advantages of conciliation and negotiation would bring in the desired change-change of attitude. To keep active here is awareness, by interactive communication. A dedicated helpline would exhilarate the process of attitudinal change by giving clarity to communication.

‘People are generally ignorant about legal terminology and the opportunities available in dispute resolution. The other gnarling issue is corruption. To combat these two forces, imparting knowledge is a must. Driving ignorance away would infact, help in curtailing corruption too. The NGOs should put in their efforts in providing a knowledge base to the needy. A committed person in each NGO, working in rural areas, should help in reaching the goal quickly.

The major lacuna in ADR is that it is not binding. One could still appeal against the award or delay the implementation of the award. “Justice delayed is justice denied.” The very essence of ADR is lost if it is not implemented in the true spirit. The award should be made binding on the parties and no appeal to the court should be allowed unless it is arrived at fraudulently or if it against public policy.

Rules of procedure are being formulated on a case by case basis and the rules made by the parties themselves, with may be, some intervention of legal professionals.

However, a general guideline and a stipulated format would assist in bringing clarity to the formulation of an ADR award. This would also help in cutting down ignorance and assist in better negotiation.

Legal education and law schools should focus on the arts of conciliation and negotiation and not merely on litigation. Lawyer client interests should also be moulded towards a primary focus on ADR failing which the recourse should be towards litigation.

Conclusion

Because justice is not executed speedily men persuade themselves that there is no such thing as justice. Sharing the same sentiments, Chief Justice Bhagwati said in his speech on Law Day, “I am pained to observe that the judicial system in the country is 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 creeking under the weight of errors.” Arrears cause delay and delay means negating the accessibility of justice in true terms to the common man. Countless rounds to the Courts and the lawyers’ chambers can turn any person insane. Even then loitering and wasting time in the corridors of Courts has become a way of life for a majority of Indians who day by day are becoming litigious. Some of the main reasons for delay in the disposal of cases are abnormal increase in the number of cases going to Courts and Tribunals, mainly due to faulty legislation enacted hurriedly, arbitrary administrative orders, increased consciousness of one’s rights and gambler’s instinct in a litigant due to multiplicity of appeals and revisions provided in law.”

The disputants want a decision and that too as quickly as possible. As the problem of overburdened Courts has been faced all over the world, new solutions were searched. Various Tribunals were the answer to the search. In India, we have a number of Tribunals. However, the fact of the matter is that even after the formation of so many Tribunals, the administration of justice has not become speedy. Thus, it can be safely said that the solution lies somewhere else. All over the globe the recent trend is to shift from litigation towards Alternative Dispute Resolution. It is a very practical suggestion, which if implemented, can reduce the workload of Civil Courts by half. 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. It is important here to mention the statement made by John F. Kennedy in this respect: “Let us never negotiate out of fear but let us never fear to negotiate.