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Acknowledgement

I would like to take this opportunity to thank everyone who put forth their time and efforts to help me to develop this project. This project took a long time from the collection of information to the compilation. This project could not have been made without the guidance of our teacher, Ms. Pooja Bharadwar, who not only served as our supervisor, worked extra time for our convenience but also encouraged us to work hard. Thank you Maam.

Index

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Contents

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1. 2. 3. 4. 5. 6. 7.

Research Methodology Chapter 1: Definition of ADR Chapter 2: Growth of ADR Chapter 3: ADR in India Chapter 4: Advantages & Disadvantages Chapter 5: Impact Bibliography

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Research Methodology
Objective The objective of the research project is to find: What is Alternative Dispute Resolution Mechanism? The advantages and disadvantages of ADR. The impact of ADR on our legal system.

Limitation The scope and limitations of the research project are as follows: The project includes the meaning of Alternative Dispute Resolution. It includes a brief history of the growth of ADR. It includes the growth of ADR in India. It includes the impact of ADR on the Indian Legal System.

Research Questions How can ADR help in speeding up the legal process? What kinds of ADR mechanisms are available to people? What is the scope of ADR in India? How does ADR mechanism help in solving disputes?

Resources Secondary Sources Internet Articles Newspapers Books

Chapter 1 Alternate Dispute Resolution : Definition

Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as grievances and complaints; however, it does not displace those traditional processes. It includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions are strongly in favour of the use of mediation to settle disputes. ADR is generally voluntary. ADR empowers and enables the participating parties to develop and seek mutually acceptable solutions, which they choose to meet their needs. Generally, ADR uses a neutral third party to help the parties communicate, develop ideas and resolve the dispute. Some reasons for using ADR are that it is faster, less costly, less formality involved, less confrontational or adversarial, it encourages creativity and searching for practical solutions, it avoids the unpredictability involved when decisions are rendered as a result of

the traditional dispute resolution mechanisms. The ADR process usually results in improved communications between disputing parties and is therefore better for ongoing relationships, increases workplace morale and can make you feel better about coming to work, results in participant satisfaction, solutions tend to be durable or long lasting since they have the buy in of all parties involved, publicity is avoided and most importantly, the parties retain control of the outcome. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as Sharia courts within common law jurisdictions such as the UK.

The salient features of each type are as follows: 1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves". 2. In mediation, there is a third party, a mediator, who facilitates the resolution process, but does not impose a resolution on the parties. In some countries, ADR is synonymous with what is generally referred to as mediation in other countries. 3. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys and mutually-

agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes. 4. In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements, has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.

Chapter 2 Alternate Dispute Resolution : Growth

Over the past two decades there has been an explosion in the number of cases filed in High Courts across the country, and even the Supreme Court. This is a result not only of the growing economy of this country, but also the growing number of individuals and businesses across the country involved in litigation. As the number of cases have grown, courts have looked for a method by which they can reduce the number of cases on their docket short of a full trial and decision on the merits. The method to accomplish this is ADR. In addition to the Courts desire to clear their docket of cases is the interest of individuals and businesses in reducing the cost of litigation and obtaining a certainty of result. For those who have been through litigation, the cost of such litigation can be expensive. This cost includes not only attorneys fees, but also disbursements made to conduct litigation from the expense of depositions, to copying costs, to expert witness fees to basic lost time expense for personnel of a business. Since the discovery phase of litigation is often equal to or greater than the cost of a trial, ADR is often seen as a tool to reduce costs. As a result, the interest in ADR has exploded. Finally, ADR can be less confrontative than an actual trial. Because of this, ADR appeals to some people who wish to avoid conflict and confrontation. This desire to avoid confrontation in an every increasingly confrontational world has also encouraged the development and trend toward ADR. The modern trend to resolve disputes is to use some method of ADR. While ADR shows great promise in reducing the costs of litigation, the costs and benefits to each party must be analyzed in light of the facts and circumstances involving

that case to determine what method of ADR is appropritate. However, since the rules now require some method of ADR, a party to litigation should anticipate that they will be involved in ADR during the course of litigation.

Chapter 3 Alternative Dispute Resolution : ADR in India

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, 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 Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach. Concept of the Lok Adalat was also started in India. Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members

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of legal profession. It does not have jurisdiction on matters related to noncompoundable offences. While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow process given by Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party. 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, not even under Article 226 of the Constitution of India because it is a judgment 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. The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India. It said: "The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a

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number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial". In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation.

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Chapter 4 Alternative Dispute Resolution : Advantages & Disadvantages

For many reasons, advocates of ADR believe that it is superior to lawsuits and litigation. First, ADR is generally faster and less expensive. It is based on more direct participation by the disputants, rather than being run by lawyers, judges, and the state. In most ADR processes, the disputants outline the process they will use and define the substance of the agreements. This type of involvement is believed to increase people's satisfaction with the outcomes, as well as their compliance with the agreements reached.[5] Most ADR processes are based on an integrative approach. They are more cooperative and less competitive than adversarial court-based methods like litigation. For this reason, ADR tends to generate less escalation and ill will between parties. In fact, participating in an ADR process will often ultimately improve, rather than worsen, the relationship between the disputing parties. This is a key advantage in situations where the parties must continue to interact after settlement is reached, such as in child custody or labor management cases.[6] ADR does have many potential advantages, but there are also some possible drawbacks and criticisms of pursuing alternatives to court-based adjudication. Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides "second-class justice." It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly "win" a case because of the cooperative nature of ADR.[7] Similarly, critics believe that ADR encourages compromise. Compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply

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not an option because the issues mean too much to the disputants. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny. This could be cause for concern in some cases. For example, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market.

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Chapter 5 Alternative Dispute Resolution : Impact

The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial system. It is a fast track system of dispensing justice. There are various ADR techniques viz. arbitration, mediation, conciliation, mediationarbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR and summary jury trial. These techniques have been developed on scientific lines in USA, UK, France, Canada, China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant movement in these countries and has not only helped reduce cost and time taken for resolution of disputes, but also in providing a congenial atmosphere and a less formal and less complicated forum for various types of disputes. The Arbitration Act, 1940 was not meeting the requirements of either the international or domestic standards of resolving disputes. Enormous delays and court intervention frustrated the very purpose of arbitration as a means for expeditious resolution of disputes. The Supreme Court in several cases repeatedly pointed out the need to change the law. The Public Accounts Committee too deprecated the Arbitration Act of 1940. In the conferences of Chief Justices, Chief Ministers and Law Ministers of all the States, it was decided that since the entire burden of justice system cannot be borne by the courts alone, an Alternative Dispute Resolution system should be adopted. Trade and industry also demanded drastic changes in the 1940 Act. The Government of India thought it necessary to provide a new forum and procedure for resolving international and domestic disputes quickly.

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Thus "The Arbitration and Conciliation Act, 1996"came into being. The law relating to Arbitration and Conciliation is almost the same as in the advanced countries. Conciliation has been given statutory recognition as a means for settlement of the disputes in terms of this Act. In addition to this, the new Act also guarantees independence and impartiality of the arbitrators irrespective of their nationality. The new Act of 1996 brought in several changes to expedite the process of arbitration. This legislation has developed confidence among foreign parties interested to invest in India or to go for joint ventures, foreign investment, transfer of technology and foreign collaborations. The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do not develop strained relations; rather they maintain the continued relationship between themselves.

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Bibliography

http://www.cdc.gov http://www.courts.ca.gov http://www.legal-dictionary.thefreedictionary.com http://www.beyondintractability.org http://www.litigation-essentials.lexisnexis.com http://www.lawyers.findlaw.com http://www.legalservicesindia.com

The Hindu Times of India

Alternative Dispute Resolution Sridhar, Madabhushi. Alternative Dispute Resolution - Grenig, Jay E.