In this blogpost, Sreeraj.K.V, Student of Government Law College, Kerala, writes an article on the topic Concept of ADR in the present legal system of India. The topic covers the importance of ADR, major provisions under the Arbitration and conciliation Act, advantages of arbitration as well as major cases which made the system much more important.

IMG-20151029-WA0013_2

One of the main drawbacks of India’s legal system and law enforcement agencies are a lack of effective delivery of legal remedies to the people in need. Pending cases are comparatively much more than the cases settled. The main reason behind such a phenomenon is that increase in the number of offences as well as time taking to solve the cases from the part of the judiciary. In such a situation, Alternative Disputes Resolution mechanism plays an important role in resolving disputes among people which is less important when compared to serious offences so that court can save its valuable time as well as parties affected will be delivered with an effective solution for their disputes.

Looking to its legal aspects, we have Arbitration and conciliation Act, 1996 to deal with various provisions relating to the alternative disputes resolution mechanism in India. Along with that, section 89(1) of the Code of Civil Procedure, 1908 deals with an option of the parties to make a settlement of their dispute outside the court. This states the importance of such machinery wherein parties can arrive at a solution for their problems by themselves.

Arbitration and conciliation Act, 1996

This Act provides certain powers to the judiciary as well as concerned authorities to make a settlement of the case at the option of the parties involved. Section 30 of the Act deals with provisions wherein the arbitrator, with the consent of the parties, undergo mediation, conciliation or other such proceedings at any time of arbitration to encourage settlement of the dispute. [1] But the Act also states that for enforcement of any such provisions of the Act, there must be an ‘arbitration agreement’ between both the parties in writing. In fact, the process of arbitration is being done mainly for civil cases which involve monetary settlement among the parties.  While referring the term conciliation, it will be clear that this system of resolving disputes is much informal than arbitration. There is no need for agreements between the parties of a dispute. During any time of judicial proceedings, a party can request for conciliation to the other party and then a conciliator may be appointed. After going through the facts of the case, the conciliator calls up for a meeting between two parties jointly or individually. Then if the dispute is resolved, a settlement document is prepared by enclosing the details regarding the settlement.

Apart from these two machineries, there are certain other prominent systems under the head of ADR, which involves Lok adalath as well as Mediation. Lok adalath is generally known as ‘people’s court’. This is a non-adversarial system wherein mock courts are held by State authority, District Legal Services authority, Taluk legal service committee as well as Supreme Court and High Court legal services committees. It has no jurisdiction over any non-compoundable offences. One of the merits of this system is that the parties can directly contact with the judges which is not possible in regular courts.  The focus of adalath is on compromise and if not, the case will be returned to the courts and if compromised, it will be a decree equal to the civil court and no appeal is applicable even under Article 226 as the decree made is upon the consent of both the parties.

On the other hand, mediation plays yet another role in the field of ADR wherein a negotiation is done between the parties with the help of a mediator who is a third party to them. The main object of undergoing mediation proceeding is to protect the best interest of the parties. It does not cover any legal provisions so that the parties will be not held inside certain limitations of such legal matters. It provides a friendly talk between the parties and a means of counselling so that the real issue faced by them will be found out and the dispute among them will be resolved easily. There are certain types of mediation which are termed as court referred mediation and private mediation. Same theory which is applicable to Lok adalath is applied here also, i.e., if the parties arrives at a settlement, no person can file an appeal to a higher court in any manner. [2]

Advantages of Alternative Disputes Resolution

  • Cost effective and less time-consuming procedures
  • People’s chance of revealing the true fact
  • Preserving the best interest of the parties
  • Informal way of resolving disputes
  • Provides confidentiality in its nature
  • Prevents further conflicts and preserves good relation among the parties

As mentioned before, there are certain provisions in connection with ADR even in the Code of Civil Procedure, 1908. Section 89(1) of the code deals with the power of the court to refer the dispute for settlement for a purpose of an amicable, peaceful and mutual settlement between the parties without the intervention of the court. This section states that if there are favourable elements in the case which a court can prefer it for settlement, court may formulate various terms of settlement to the parties and if it’s agreed by them, then the court can proceed for an out of court settlement which includes:

  • Arbitration
  • Conciliation
  • Judicial settlements through Lok Adalath
  • Mediation

There are various important judgements for the cases which involve section 89 of CPC. In the case of Afcons infrastructure and Anr v. Cherian Varkey construction co[3], Supreme Court held that “all suits of civil nature, in particular, the following categories of cases are normally suitable for ADR process”:

  1. Cases relating to trade, commerce and contract
  2. Cases arising from strained or sourced relationships
  3. In cases wherein there is a need for continuation of pre –existing relationship in spite of disputes
  4. Cases relating to tortious liability
  5. All consumer disputes

Supreme Court also held that enumeration of the above said cases are only indicative and not intended to be exhaustive or rigid. In many other cases as in Jagdish Chander v. Ramesh Chander,[4] Supreme Court held that “there cannot be a reference to arbitration under section 89 of CPC unless there is consent of the parties for such a reference”.

Conclusion

Facts and circumstances mentioned above make a clear picture that the system of alternative disputes resolution plays a vital role in dealing with disputes among two parties as well as its effective resolution. In fact, dispute among married couples as well as a dispute regarding property is the major area which is now being focused by the Courts and judicial agencies where effective dispute resolution is possible. The impact of such mechanisms is, people get a speedy redressal opportunity and also a friendly atmosphere apart from the rigid rules and regulations of the courts. The current status gives us an idea that there is a drastic increase even in this field of law as the people started understanding the pure concept of this as well as its effectiveness in the enforceability of law through a different perspective so that the term ‘democracy’ gains much more importance in the life of the people as well as in the society.

[1] Retrieved on : http://www.gktoday.in/alternative-dispute-resolution/

[2] Retrieved on: http://mediationbhc.gov.in/PDF/concept_and_process.pdf

[3] Retrieved on: http://www.mondaq.com/india/x/137680/Arbitration+Dispute+Resolution/Parties+Must+Agree+To+Have+Their+Disputes+Resolved+Through+Arbitration+Even+Under+Section+89+Of+CPC

Afcons  infrastructure Ltd and Anr v. Cheriyan Varkey construction co: Civil Appeal no: 6000 of 2010

[4] Jagdish chander v. Ramesh Chander 2007 (5) SCC 719

Advertisement

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

Latest Posts

2 COMMENTS

LEAVE A REPLY