SUBJECT: ALTERNATIVE DISPUTE RESOLUTION

TOPIC: ANALYSIS ON DIFFERENT ALTERNATIVE METHODS

OF DISPUTE SETTLEMENT

SUBMITTED TO:

Asst. Prof. – Ms. Aprajita Verma

SUBMITTED BY:

Monisha Khushalani

COURSE / SEMESTER

B.A. LL.B/ 8th Semester

SESSION: 2019-2020

1
 CERTIFICATE

I hereby certify that Monisha Khushalani, of Indore Institute of Law, Indore under
department of B.A. LL.B (HONS.) has undergone this project at our organization to
fulfil the requirements for project & presentation. I worked on “Analysis on different
alternative methods of dispute settlement” Project during this period under the
supervision of Ms. Aprajita Verma. During her tenure with us, we found her sincere and
hard working. We wish her a great success in the future.

Date: 07/05/20

Signature of Faculty :

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 DECLARATION

I hereby declare that this project report submitted by me to the department of B.A.LL.B
(HONS.) Indore Institute of Law, Indore is a bonafide work undertaken by me and it is
not submitted to any other University or Institution. All information in these documents
has been obtained and presented in accordance with academic rules and ethical conducts.
I also declare the, as required by these rules and conduct, I have fully cited and
referenced all material and results that are not original to this work.

Name:
Monisha Khushalani
Signature:

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 ACKNOWLEDGEMENT

It is not possible to prepare a project report without the assistance and encouragement of
other people. This is certainly no exception. On the very outset of this project I would
like to extend my sincere and heartfelt obligation towards all the personages who helped
me in this endeavour. Without their active guidance, help, co-operation and
encouragement I would not have made headway in this project. I am ineffably thankful
to Ms. Aprajita Verma Ma’am for conscientious guidance and encouragement to
accomplish this assignment. I extend my gratitude to INDORE INSTITUTE OF LAW
for giving me this opportunity. I also acknowledge with a deep sense of reverence, my
gratitude towards my friends and members of my family who have always supported me
morally as well as economically.

Thanking You

………………

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TABLE OF CONTENTS

1. Abstract

2. Introduction

3. The Nature and Concept of Alternative Dispute Resolution

4. The Objectives of Alternative Dispute Resolution system

5. Alternative methods Dispute settlement

5.1. Arbitration
5.2. Conciliation
5.3. Mediation
5.4. Negotiation
5.5. Mediation-Arbitration
5.6. Mini-Trial
5.7. Ombudsperson
5.8. Lok Adalats

6. Basic ingredients in Alternative Dispute Settlement

7. Case Laws

8. Conclusion

9. Plagiarism Report

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1. ABSTRACT

Disputes tend to arise when there is any kind of disagreement between two people or parties.
Not all people prefer the option of courts. Alternative dispute resolution is the procedure for
settling disputes without litigation, such as arbitration, mediation, conciliation or negotiation.
Dispute settlement procedures are usually less costly and more expeditious. They are
increasingly being utilized in disputes that would otherwise result in litigation, including
high-profile labor disputes, divorce actions, and personal injury claims. One of the primary
may prefer settlement proceedings is that, unlike adversarial litigation, settlement procedures
are often collaborative and allow the parties to understand each other’s positions. It also
allows parties to come up with more creative solutions that a court may not be legally
allowed to impose.

2. INTRODUCTION

India is one of the largest democratic countries in the world having its own Constitution. The
rights and interest of the people have been protected in the forms of fundamental rights under
Part III and Directive Principle of State Policy under Part IV of Constitution of India. The
utmost efforts of our Parliamentarians and Legislators taking aid of these provisions are to
look upon the interest of economically poor and downtrodden. Dr. B.R.Ambedkar, Chairman,
Constitution Drafting Committee while explaining the two fold object in framing the
Constitution has said:
"It is no use giving a fixed, rigid form to something which is not rigid, which is
fundamentally changing and must, having regard to the circumstances and the times, keep on
changing. I have said that our object in framing this Constitution is really twofold: (i) to lay
down the form of political democracy, and (ii) to lay down that our ideal is economic
democracy and also to prescribe that every government whoever it is in power, shall strive to
bring about economic democracy, much of the misunderstanding under which most members
are labouring will disappear"1.
The advancement and efforts towards achieving the political and economic democracy are the
means to the ends of social justice. The variation and amendments in the rules and regulations
from time to time is an inevitable requirement to achieve the social development and ends of
the justice to the people. But in the quest of Welfare State our Parliament and State
Legislature have produced the plethora of rules and regulations to regulate the code of
conduct of the people. But the things have become more complicated and complexed2.
The gradual swelling of urban population is causing factor for developing materialism in our
country, which has created the endless evils generating civil and criminal disputes. The
1
Constitution Assembly Debates, Vol. VII, p-495
2
Devendra Nath Mishra, Arbitration as a mode of Alternative Dispute Resolution (ADR) - Its Necessity and Implications,
A.I.R. 2001, Journal, p-250

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competing interest and lack of means to fulfil the needs of inhabitants giving rise to clash and
conflict in the society and that is to be addressed through legal action. Sometimes the dispute
falls under both the categories of offences and the proceedings have to be initiated under both
civil and criminal law. The ever increasing unemployment problem in our country is another
factor leading to conflicts and criminality. The pollution of politics, white-collar crimes by
the politicians, businessmen and other high profiles are also contributing factors in generation
of crisis in the country, which ultimately has resulted in creation of plethora of cases to the
Courts. Indian Judiciary [both Civil and Criminal Courts] have been overcrowded with the
litigation in which hundreds of cases are undesirable and relates to trifling issues. The recent
origin and expansion of information technology in India has made addition of cybercrimes
and other related offences, which has further increased the burden and work load on Indian
Judiciary. In this way situation is aggravating day by day3. In the pursuit of the social,
economic and political development and flourishing of trade and merchandised activities all
over the country, there has been endless clash of interest between the persons inter se and the
State on the other side. The increase of litigation and pendency of cases has also been
continuously pilling up before the alternative Forums, Courts and Tribunals. The staggering
pendency of the cases without effective remedy for their speedy disposal has brought the
administration of justice to halt. There has been public outcry and criticism that access to
justice is only confined to rich, affluent and elitist class. The poor, needy and down trodden
in the social strata are very often priced out of justice"4.

3. THE NATURE AND CONCEPT OF ALTERNATIVE DISPUTE

RESOLUTION

a) The Alternative Dispute Resolution System is simple and free from procedural
technicalities
The methodology applied and techniques used in mechanism of ADR to settle the disputes
between the parties do not follow the ticklish procedure adopted by the Judicial Courts. The
mechanism of ADR system does not partake the course of judicial process. It is completely
different and divorced from judicial technicalities. The ADR process is very simple, cheap,
easy, and speedy and result oriented in disposal of the cases. The ADR techniques are extra
judicial in character. These are the main reasons for recognition of ADR techniques5.

b) The Mechanism of Alternative Dispute Resolution System consists of various simple

methods
The Mechanism of Alternative Dispute Resolution System does not have single form or rigid
application in one particular way. There is an array of hybrid procedure for settlement of

3
Ibid
4
See, Hrudaya Ballav Dass, Alternative Dispute Resolution - Its social-Legal Dimension, A.I.R. 2004, Journal, p-218
5
See, P.C.Rao & William Sheffield, Alternative Dispute Resolution : What it is and How it Works, Reprint, 2002, p-25

7
disputes outside the Court. The ADR consists of various alternative techniques and forms.
For example Arbitration, Conciliation, Negotiations, Mediation, Judicial Settlement, Mini
Trial, Med-Arbitration and Settlement Conferences and Neutral Evaluation are the forms of
ADR techniques. These techniques are much acceptable both to the judiciary and common
man. The ADR techniques may be used in contentious matters, which are capable of being
resolved under the law, by agreement or mutual settlement between the parties6.

c) The Alternative Disputes Resolution System covers civil and commercial nature of
Disputes
The Mechanism of ADR System through various alternative techniques have been employed
with very encouraging results in several categories of disputes. The disputes may be civil in
nature, commercial, and industrial or may relate to family or matrimonial causes. The
application of the ADR methodology has also shown favourable results in the disputes
relating to the business activities and commercial ventures. The mechanism of ADR System
may be able to yield expected results in the bank cases, contractual performance, and
contracts in constructions, the cases of intellectual property rights, the insurance coverage,
and business activities in joint venture, the cases of partnership arising out of personal
differences, personal injury, product liability, professional liability, real estate and securities.
The mechanism of ADR System is not intended to supplant altogether the traditional or
existing means of dispute resolution. It offers only alternative options to litigation. The
application of ADR techniques in dispute resolution aims at rendering justice expeditiously.
The proceedings adopted through these alternative techniques are informal devoid of
procedural technicalities and less expensive. The dispute resolution through ADR aims at
substantial justice and the procedural technicalities are always managed in the manner
acceptable to the parties. It is contrite proposition that when there is dispute between the
parties, they lose their mutual confidence. The dispute resolution through ADR enables the
litigants to regain the mutual confidence among them lost during conflict7.

d) The role of third person is basic concept in Alternative Dispute Resolution

The ADR process in philosophical perceptions is considered to be the mode in which dispute
resolution process is qualitatively distinct from a judicial process. The disputes are settled
with the assistance of a neutral third person. The third neutral person is selected or appointed
by the parties of their own choice and without fear or favour in order to avoid any sort of
bias. He is generally familiar with the nature of disputes and bone of contention between the
parties. The neutral person is also well conversant about the relationships of the parties with
each other. The involvement of third neutral person is inevitable requirement in the entire
process. He is known as Conciliator, Mediator or Negotiator. He assists the parties in an
independent and impartial manner and bring both the parties close for negotiations and
settlement. He endeavours them to reach an amicable settlement in peaceful manner. The
settlement through conciliation or mediation is guided by the principles of objectivity,
fairness and justice. The ADR process during settlement always gives consideration to the

6
Ibid
7
Supra Note 14, at p-83.

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rights and objections of the parties and heard on common platform in the presence of
adversaries8.

e) The basic concept of Alternative Dispute Resolution System is to resolve dispute

The ADR is a generic term and refer to a wide array of practices in different forms. The
settlement with judicial help and min-trials are also the forms of ADR system apart from
conciliation, negotiation, and mediations. The judicial settlement and min-trial are important
to settle the disputes in business venture9. What so ever may be the techniques used, the basic
concept in ADR is to manage and resolve disagreements between the parties at lowest cost
and with little adverse impact on business activities. The dispute resolution in ADR system
does not mean temporary settlement but to end the controversy in perpetuity. It maintains
cordiality and harmonious relationships between the parties10 The alternative methods of
dispute resolution are non-adversarial and reach speedier results because the neutral person,
whether Arbitrator, Conciliator or Mediator, as the case may be, always help to formulate the
result oriented discussions during the process settlements.

f) The Alternative Dispute Resolution System is to avoid scope of future litigation

The litigation in the Court is always governed by the set of rules and regulations under the
substantive or procedural laws. For example criminal trials are governed by Criminal
Procedure Code and cases of civil nature are governed by Civil Procedure Code or other
subsidiary laws like Revenue or Land Laws, House Rents Acts etc. But there is always scope
of further litigation by way of appeals, reviews or revisions. But the scope of further litigation
in any form is not available in the concept of ADR techniques. These techniques are applied
and used keeping in view business environment and other allied activities, issues involved
and likelihood of settlement apart from the nature of relationship between the parties. These
are the main considerations in compromise settlement in order to end the litigation on
permanent basis.

g) The Alternative Disputes Resolution System is an 'art' of settlement

The Mechanism of ADR system and reconciliation between the parties is judicious
application of techniques. All these techniques are employed amicably in dispute resolution.
Because application of these techniques is an art instead of science. These techniques cannot
be employed precisely in mathematical terms. It always requires human touch and expression
of profound love towards both the parties11. The good behaviour ship, attitudes and
benevolence of various participants in reconciliation between the litigants becomes relevant
and important in order to make the ADR techniques effective.

8
Id, at p-8
9
See, Ghanshyam Singh, Alternative Dispute Resolution: A Mechanism for Settlement of Commercial Disputes, Delhi Law
Review. Vol. XVIII, (1996), P237
10
See, 4 Am Jurl"'^ Ed., (1995), p-64.
11
Raman Rao, Conciliation and Arbitration, U.S.A and India - A Comparative Sfucfy, (1963), p-35.

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4. THE OBJECTIVES OF ALTERNATIVE DISPUTE RESOLUTION
SYSTEM

 The main object of Mechanism of ADR system is not to replace the judicial
process or procedural laws.
 The mechanism of alternative techniques does not denigrate the existing system
adopted by the regular Courts under procedural codes.
 The ADR System provides cheap and speedy justice to the disputant.
 It aims at to settle the dispute on less lawyering.
 Its main object is to settle the issue amicably by way of compromise settlement,
conciliation, mediations and negotiations.
 The parties may resort to settlement under Arbitration and Conciliation Act, 1996.
 The utmost objective behind the policy is to avoid the trial and decision in the
Courts through unscrupulous evidences.

5. ALTERNATIVE METHODS OF DISPUTE SETTLEMENT

5.1. ARBITRATION

5.1.1. Meaning of Arbitration

i. The word arbitration according to “oxford dictionary” means “the official process
of settling an argument or disagreement by somebody who is called an
'Arbitrator' and not involved in the dispute in question”. The arbitrator means and
is a person who is chosen to settle disagreement.
ii. The word arbitration as has been defined in the Arbitration and Conciliation Act,
1996, as “any arbitration whether or not administered by permanent arbitral
institution which from definition point of view does not serve the literary or
academic purpose. Whereas the word "Arbitral Tribunal" means a sole Arbitrator
or a panel of Arbitrators”
iii. The word Arbitration has been defined by his lordship Mr Justice Romilly M.R. in
Collins v Collins12 as under: "An Arbitration is a reference to the decision of one
or more persons, either with or without an umpire, of a particular matter in
difference between the parties"13.

5.1.2. Essentials of Arbitration

12
(1858)26Beav. P-306.
13
Collins Vs Collins, (1858) 26 Beav, p- 306 at 312-3

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 i. There must be 'dispute' between the parties.
ii. The dispute must either ‘exist or may arise in future’.
iii. There must be two or more parties to conflict or dispute in question.
iv. There must be an 'agreement' between the parties to refer the dispute for
arbitration.
v. There must be ‘Arbitrator or Arbitrators or umpire’.

5.1.3. Role of Arbitrator

i. The role of Arbitrator is vital in arbitration proceedings.

ii. He should not be biased. It is axiomatic that the power predicates accountability.
iii. An arbitrator is substitute for a civil judge to determine civil disputes inter se
between the parties.
iv. The Arbitrator is required to be an independent and impartial judge during
determination of the disputes referred to him.
v. If he fails or neglects to act as expected of him, the award may be set aside. He is
public servant as postulated by Indian Penal Code and is personally accountable
for damages consequent on his conduct amounting to breach of conduct or in
tort14.

5.2. CONCILIATION
The conciliation is a non-binding procedure in which an impartial and neutral third party
assists the disputing parties to reach a mutually satisfactory and agreed settlement of the
dispute. The parties competent to contract can seek conciliation and resort to an amicable
settlement of their disputes. They may belong to the same or different nationalities.
The dispute, which has either arisen or may arise in future between the parties can be settled.
The dispute may be in respect of the defined legal relationship, whether contractual or not,
can be settled by conciliation. The parties should agree to seek an amicable settlement of that
dispute by conciliation. The conciliation means to console for settlement of the conflict by
mutual agreements. The settlement means 'right settlement' on give and take basis. The 'right'
means 'just' from both parties point of view with a view to ensure future harmonious
relationship between the parties eliminating the possibility of litigation on the subject matter.
According to Simkin, "Conciliation is a mild form of intervention limited primarily to
scheduling conferences, trying to keep the disputants talking, facilitating other procedural
niceties, carrying messages back and forth between the parties, and generally being a 'good
fellow' who tries to keep things calm and forward looking in a tense situation"15.
The conciliation means an 'assisted bargaining process' between the two. The conciliation
involves the intervention of a third party whose fresh point of view, suggestions, proposals,

14
M.A.Sujan, Accountability of an Arbitrator, A.I.R , 2002, Journal, p
15
William E.Simkin, Mediation and the Dynamics of Collective Bargaining, (1971), p-26.

11
broad knowledge and dignity of office are intended to facilitate agreement between the
disputants. The Conciliator has no power of decision.
The conciliation stresses the power of diplomacy and of mental acuteness as contrasted with
the judicial process and decision making aspect of adjudication and arbitration. The
conciliation process requires involvement of Conciliator who is knowledgeable and
experienced person.
The person to be appointed or acting as Conciliator should possess these basic qualities:
i. He must possess knowledge and experience of compromise settlements,
ii. He should have broad thinking with objectivity.
iii. He must maintain independence and impartiality.
iv. He should have capability to employ the conciliation techniques efficiently like
persuasion, rationalization, suggestions and coercion on equal footings on both the
parties''16.
The conciliation is unstructured process of facilitating communication between the parties.
But it facilitates easy access of communication between the disputants during conciliation
proceedings. The conciliation, in an action brought under Age Discrimination in Employment
Act, has been defined as an attempt to reach a reasonable, voluntary and mutual
understanding. In conciliation proceedings one party is required by law to attempt
conciliation and the Court and Conciliator evaluates the party's efforts with an eye to the
conduct of the other party17.

5.3. MEDIATION
The procedure in Alternative Dispute Resolution System combines two or more well-
established procedures. The ADR procedure is divided into two categories. Adjudicatory and
non-adjudicatory. The arbitration is adjudicatory process whereas the conciliation, mediation
and negotiations are non-adjudicatory processes. The mediation is also a non-adjudicatory
and non-binding procedure as in conciliation proceedings.
Similarly, an impartial third party is involved to act as Mediator in the mediation
proceedings. The mediation and conciliation may be spelled out and are inter-changeable
expressions. Because in both the procedures a successful completion of the proceedings
results in a mutually agreed and acceptable settlement of dispute between the parties. The
mediation, in some jurisdictions, is treated as distinct from conciliation in as much as in
mediation the emphasis is on more positive role of the neutral third party than in
conciliation18. In U.S.A. the procedure of conciliation is described as mediation in which a
positive role is played by the neutral in assisting the parties to arrive at an agreed settlement.
The mediation is rapidly growing ADR option. It is a form of assisted negotiations in which
the parties agree to enlist the help of a neutral third party. His task shall be to assist the parties
in their quest for a voluntary settlement. The mediation is a process in which a neutral person
intervening has to assist negotiating parties in reaching mutually acceptable terms of
16
V.P.Gupta, Law and Practice of Industrial Disputes with Central, Punjab and Haryana Rules, (1984), p-19
17
Supra Note 57, at p-71
18
Supra Note 84, p-23

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settlement. The purpose of mediation is to bring the dispute to an end through mutual
resolution as early as possible. The parties and Mediator remains involved in the mediation
process until the proceedings are concluded to the complete satisfaction of both the parties.
The mediation has an immense potential of problem solving in situations where the
disputants are not able to reach an agreement on their own. The mediation is one of the best
form and means of ADR in family dispute resolution. The problem of family disorganization
or maladjustment is on uprising swing, which consists of marital adjustment, judicial
separation and divorce, family division between the co-shareholders, intolerable environment
and unpleasant conditions at home or juvenile delinquency, which may lead to criminality at
home and in the society.
The mediation offers a multifaceted proactive role in understanding, focussing and finalizing
issues and then giving all the help needed for finding out a negotiated settlement. Third
person who is not involved in conflict is expected to play a catalytic role with his fairness,
objectivity, unbiased stand, neutrality and independence. Moreover, the mediation is free
from rigid rules of CPC and Evidence Act. It provides multiple options and means to achieve
compromise settlements between conflicting parties. However, mediation in family disputes
resolution will yield good results if applied with care and cautions19.

5.4. NEGOTIATION
The negotiation is another form of an Alternative Dispute Resolution System. Like
conciliation and mediation, negotiation is also a non-binding procedure but a suitable formula
for dispute resolution. The discussions between the parties are initiated with the object to
reach a compromise settlement through amicable devices.
The difference lies in the sense that the conciliation and mediation is always initiated with the
intervention of third independent and impartial person. The negotiations may be initiated with
or without the intervention of the third party. The main purpose and thrust of all these forms
is to arriving at a negotiated settlement of the disputes. The negotiation is the process of
conferencing with another so as to arrive at an amicable settlement about subject-matter of
controversy.
The most important factor in negotiation by the parties or with the intervention of third party
facilitation is that the disputants always retain control over the process. The process of
negotiation and mediation is of educational one. The parties including middleman in
negotiations are qualified and enriched with academic and practical experiences. The
qualification and experience may help the parties to learn how to handle controversy and to
resolve future disputes more effectively by themselves.
The Judges, lawyers and other voluntary associations may help negotiations between the
disputant but these formulae are not used often enough or extensively to avoid litigation^''.
The honest, free and frank mind with broad senses of approach is the essential requirement,
which must possess in both the parties in order to end the task of dispute permanently.

19
Rajan Shriram Khanolkar, Mediation-The Best Means for Family Dispute Resolution, A.I.R. 2005, Journal, p-347

13
 5.5. MEDIATION-ARBITRATION
Mediation-Arbitration ['Med-arb'] is designed to bring together the benefits of both mediation
and arbitration in one forum. The parties use one neutral person as both Mediator and
Arbitrator. 'Med-arb' is a procedure where conciliation, mediation or arbitration alone has not
been able to settle the dispute within time frame.
'Med-arb' is two step processes. First using mediation and then using formal arbitration to
decide any of issues not settled at the mediation stage. The parties are encouraged to be more
honest with each other during mediation. They are enriched with sense that neutral person
will resolve all unsettled matters without biased. The 'Med-arb' is binding decision including
agreements achieved during the mediation phase and the arbitration decision and the decision
is enforceable as an ordinary arbitration award.

5.6. MINI-TRIAL
The mini-trial is a device introduced in recent years to avoid lengthy and expensive litigation
between corporate parties. In mini-trial, the parties to the dispute choose an impartial third
party who may be an eminent lawyer, law professor, or former judge of any Court. The
person who is an authority in the area of dispute resolution is always preferred in mini-trial.
The mini-trial takes one day or less in dispute resolution.
It consists of the attorneys for the two parties making their presentation not only before the
impartial adviser but also before the chief executives of the two parties or some other
executive who has been given the power to settle the case. The respective attorney argues the
case on behalf of the litigant parties. He explains their case to the adversarial questions of the
other side and expose every support that why they should win the case. The Executives on
hearing always arrive at a good settlement. The min-trial is primarily a structured negotiation
between business and disputing persons. If they fail to negotiate the process turns into
mediation with neutral adviser helping them.

5.7. OMBUDSPERSON
An Ombudsman is also a viable remedy and good alternative for the dispute resolution.
Ombudsperson serves as an alternative to the adversary system for resolving disputes. But the
Ombudsman do not take regular cases for decisions. The forum of Ombudsman decides the
cases between citizens and government agencies. An Ombudsman is generally an
independent and nonpartisan officer of the legislature.
He supervises the administration and deals with specific complaints from the public against
administrative injustice and maladministration. He has power to investigate, criticize and
publicize but not to reverse administrative action. An ombudsman proposes solutions to
specific complaints against government agencies. He cannot impose a decision on the
government and that is the deficiency in its working system.
He is empowered under the statutory provisions to request for relevant information from
government agencies. He can issue subpoenas and examine pertinent records or documents
related to the subject matter. If a government agency within his jurisdiction refuses to comply
14
with the ombudsman's proposed solution or general recommendation concerning an agency's
policies and practices, the ombudsman may report his findings and recommendations directly
and publicly to the legislature20.

5.8. LOK ADALATS

The Lok Adalat in India as the very name suggests, means "People's Court'21. The word 'Lok'
stands for people and the vernacular meaning of the term 'Adalat' suggests its meaning as the
Court. The Lok Adalat traditionally may mean Panchayat, which has taken the form of
arbitration. It is one of the fine and familiar forum, which has been playing an important role
in settlement of disputes22.
The Lok Adalat is a new system created for dispute resolution and speedy dispensation of
justice. The Lok Adalat system has not come into existence as a substitute to replace the
present judicial system but a supplementary to it.
The Lok Adalat system is giving a practical shape to the twin concept of Swaraj and
Sarvodaya propounded by the Father of the Nation. The concept of the Swaraj implies not
merely liberation from the foreign yoke but also emancipation from backwardness, poverty
and illiteracy. The Sarvoday means well-being of all and obliteration of the distinction
between haves and have-nots.
The concept of Lok Adalat implies dispute resolution by discussion, counselling, persuasion
and conciliation and providing justice to the people at the door step litigants with the mutual
and free consent of the parties. The justice system through Lok Adalat means participatory
justice in which people and judges participate and resolve their disputes by discussion and
mutual consent23.

6. BASIC INGREDIENTS IN ALTERNATIVE DISPUTE

SETTLEMENT

a) Good faith
The various alternative techniques in the process of ADR methodology are designed to
function within an adversarial context. These may be used whether parties are negotiating in
a hostile adversarial mode or a co-operative problem- solving mode. The most consensual

20
Id. at p-88
21
Dr. B.R.Sharma, Lok Adalats in India: Some Reflections, A.I.R.^994, Journal, p-167 at 168.
22
Prof. Anurag K. Agarwal, Strengthening 'Lok Adalat" Movement in India, A.I.R. 2006, Journal, p-33 at 35.
23
Prof. Paras Diwan, Justice at the door step of People : The Lok Adalat System, A.I.R. 1991, Journal, p-86

15
ADR processes would be enhanced by an obligation on participants to negotiate in good
faith.

b) The role and essence of third party

The ADR System is consisting of various techniques like conciliation, negotiation or
mediation, which is always conducted with the help of third person who is either appointed as
Conciliator, Mediator or Negotiator. The Mediator third party is committed to disputants with
laudable object to end their controversy. He has an ability to understand nature of conflict and
attend to the parties effectively giving equal opportunities of representing their cases.

7. CASE LAWS

7.1. M/s Guru Nanak Foundation v. M/s Rattan Singh & Sons
The Supreme Court of India in M/s Guru Nanak Foundation v M/s Rattan Singh & Sons24 has
emphasized the need of ADR system and observed that "Interminable, time consuming,
complex and expensive Court procedures impelled jurists to search for an alternative forum,
less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap
and this led them to Arbitration Act, 1940 (Act for short). However, the way in which the
proceedings under the Act are conducted and without an exception challenged in Courts, has
made lawyers laugh and legal philosophers weep. Experience shows and law reports bear
ample testimony that the proceeding under the Act have become highly technical
accompanied by unending prolixity, at every stage providing a legal trap to the unwary.
Informal forum chosen by the parties for expeditious disposal of their disputes has by the
decisions of the Courts been clothed with 'legalese' of unforeseeable complexity25.

7.2. State of Karnataka v. Shree Rameshwara Rice Mills

The Supreme Court in the State of Karnataka v. Shree Rameshwara Rice Mills26 has observed
that "Interests of justice and equity require that where a party to a contract disputes the
committing of any breach of conditions, the adjudication should be by an independent person
or body and not by the other party to the contract27.

24
A/.R1981 SCp-2075
25
M/s Guru Nanak Foundation v. M/s Rattan Singh & Sons, /\./.R 1981 SC p2075 at 2076
26
A.I.R. 1987 SC, p-1359
27
State of Karnataka v. Shree Rameshwara Rice Mills, A.I.R. 1987, SC, p1359.

16
8. CONCLUSION

However, the Mechanism of Alternative Dispute Resolution System consists of various

alternative techniques and different forums viz. arbitration, conciliation, mediation,
negotiations and mini trials including Lok Adalat. India is poor country and majority of the
litigants are poor and with rural backgrounds. This system is a viable substitute and an
effective instrument in providing speedy, cheap and timely justice Xo the litigants. It has
various advantages. The litigant can opt any of the various forums. The system does not mean
to replace the existing judicial system. But to aid and assist the existing judicial and justice
delivery system in providing timely relief.
The ADR System may be able to check the docket problem in the Courts. It ends the
controversy in perpetuity, which is the utmost advantage avoiding efflux of the cases by way
of appeals and revisions in the higher Courts. The system also works on the basis of justice,
equity and good conscience. The Mediator, Conciliator or Negotiator always works in good
faith, unbiased and to the advantage of both the parties. The parties are free to opt the forum
and mode of proceeding in any way mutually acceptable to both the parties. The system and
it’s proceedings always maintain confidentiality.

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Questions will in general emerge when there is any sort of difference between two individuals or
gatherings. Not all individuals favor the choice of courts. Elective debate goals is the strategy for
settling questions without prosecution, for example, discretion, intervention, pacification or
arrangement. Debate settlement methods are typically not so much exorbitant but rather more
quick. They are progressively being used in debates that would somehow or another outcome in
suit, including prominent work questions, separate from activities, and individual injury claims.
One of the essential may lean toward settlement procedures is that, dissimilar to antagonistic
prosecution, settlement systems are regularly community and permit the gatherings to see each
other's positions. It likewise permits gatherings to think of progressively innovative arrangements
that a court may not be legitimately permitted to force. India is one of the largest democratic
countries in the world having its own Constitution. The rights and interest of the people have
been protected in the forms of fundamental rights under Part III and Directive Principle of State
Policy under Part IV of Constitution of India. The utmost efforts of our Parliamentarians and
Legislators taking aid of these provisions are to

Sources Similarity

07_chapter 2.pdf - CHAPTER-II CONCEPT NATURE AND MEANING...

...i introduction : india is one of the largest democratic countries in the world having its own constitution.
the rights and interest of the people have been protected in the forms of fundamental rights under part iii 23%
and directive principle of state policy under part iv of constitution of india.
https://www.coursehero.com/file/51403626/07-chapter-2pdf/

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