The use of Alternative Dispute Resolution mechanisms in India’s legal system

Introduction

Alternative Dispute Resolution (ADR) mechanisms are non-adjudicative methods of resolving disputes between parties without the need for litigation. In recent years, the use of ADR mechanisms has gained widespread popularity in India due to the benefits they offer over the traditional court-based litigation process. The aim of ADR is to provide a faster, cheaper, and more efficient way of resolving disputes, which are often complex, time-consuming, and expensive to litigate in court. It’s use in India has several advantages, such as faster resolution of disputes, lower costs, and greater flexibility.

ADR can also help to reduce the burden on the court system, which is often overburdened with a large number of cases. It can be used for a variety of disputes, including civil, commercial, family, and criminal matters. However, there are also some challenges to the use of ADR in India, such as the lack of awareness about ADR methods, the need for trained professionals, and the need for effective implementation of ADR processes. This article will discuss the use of alternative dispute resolution mechanisms in India’s legal system and highlight relevant landmark judgments.

History of Alternative Dispute Resolution in India

ADR mechanisms have a long history in India and have been used to resolve disputes for centuries. In ancient times, disputes were resolved through Panchayats, which were local councils comprised of respected community members. The Panchayats were used to resolve disputes through conciliation, mediation, and other ADR mechanisms.

The concept of ADR in India was formalized in the 1980s when the Indian government established the Permanent Lok Adalats (People’s Courts) to resolve disputes through negotiation and conciliation. In 1996, the Law Commission of India recommended the widespread use of ADR mechanisms in the country, and in 1999, the Commercial Courts Act was passed to provide for the use of ADR in commercial disputes.

ADR has gained significant importance over the past few decades, with the passage of the Arbitration and Conciliation Act, 1996¹. The Act provides for arbitration as a method of dispute resolution, and also recognizes other forms of ADR, such as mediation and conciliation. The Act has been amended several times to make it more effective and efficient.

There are several institutions in India that provide ADR services, such as the Indian Council of Arbitration, the Delhi International Arbitration Centre, the Mumbai Centre for International Arbitration, and the International Centre for Alternative Dispute Resolution. These institutions offer arbitration, mediation, and conciliation services for domestic and international disputes.

Arbitration is the most common form of ADR in India, and it is often used to resolve commercial disputes. The arbitration process involves the appointment of an arbitrator or a panel of arbitrators, who hear the dispute and make a binding decision. The decision is usually enforceable in court, and it can be appealed only on limited grounds.

Types of Alternative Dispute Resolution in India

There are several types of ADR mechanisms used in India, including:

1.  Mediation: Mediation is a process      where a neutral third-party mediator helps the parties involved in a dispute to reach a mutually acceptable resolution.

 

1.  Conciliation: Conciliation is similar to mediation, but the conciliator is more active in facilitating a resolution between the parties.

 

1. Arbitration: Arbitration is a process where a neutral third-party arbitrator makes a binding decision on a dispute. The parties agree to abide by the arbitrator’s decision, and the decision is enforceable in court.

 

1. Lok Adalats: Lok Adalats are people’s courts that provide a forum for resolving disputes through negotiation and conciliation.

 

1. Pre-litigation Mediation: Pre-litigation mediation is a process where parties engage in mediation before filing a lawsuit in court.

 

Landmark Judgments on Alternative Dispute Resolution in India

1. Bharat Petroleum Corporation Ltd. v. Kochi Refineries Ltd.²: This case dealt with the issue of whether pre-litigation mediation was mandatory in commercial disputes. The Supreme Court held that pre-litigation mediation was not mandatory but encouraged as it could help resolve disputes quickly and amicably.

 

1. Sundaram Finance Ltd. v. NEPC India Ltd.³: In this case, the Supreme Court held that parties to a dispute could choose any ADR mechanism they preferred, provided it was in accordance with the law and was not contrary to public policy.

 

1. MCMehta v. Union of India⁴: This case dealt with the use of ADR mechanisms in environmental disputes. The Supreme Court held that ADR mechanisms could be used to resolve environmental disputes provided they did not undermine the fundamental principles of environmental law.

 

1. Oil & Natural Gas Corpn. Ltd. v. SAW Pipes Ltd.⁵: This case dealt with the enforceability of arbitral awards. The Supreme Court held that arbitral awards were enforceable in India and that courts should not interfere with the award unless there was a clear violation of due process or the award was contrary to public policy.

 

Here are some of the benefits of Alternative Dispute Resolution in India

1. Speedy Resolution: One of the most significant benefits of ADR is the speed at which disputes can be resolved. ADR methods are often faster than traditional litigation, which can drag on for years. ADR can help parties resolve their disputes in a matter of months or even weeks.

 

1. Cost-effective: ADR methods are typically less expensive than traditional litigation. The cost of court fees, lawyers’ fees, and other expenses associated with litigation can add up quickly. In contrast, ADR methods like mediation or arbitration can be much less costly.

 

1. Flexibility: ADR methods are more flexible than traditional litigation. Parties have more control over the process and can tailor it to suit their needs. For example, parties can choose a mediator or arbitrator who has experience in their industry or has expertise in the specific issue being disputed.

 

1. Confidentiality: ADR methods offer greater confidentiality than traditional litigation. Court proceedings are generally open to the public, but ADR proceedings are private. This can be particularly important for businesses that want to keep sensitive information confidential.

 

1. Preserves Relationships: ADR methods can help preserve relationships between parties. In many cases, parties may need to continue working together even after a dispute has been resolved. ADR methods can help ensure that the relationship remains intact and that both parties are satisfied with the outcome.

 

1. Reduces Burden on Courts: ADR methods can help reduce the burden on courts. By resolving disputes outside of the courtroom, ADR methods can help free up court resources and reduce the backlog of cases waiting to be heard.

 

Shortcomings

While ADR can be a useful tool for resolving disputes, there are several shortcomings to its implementation in India.

 

1. Lack of awareness and education: Many people in India are not aware of ADR methods or do not understand how they work. This lack of awareness can make it difficult to encourage people to use ADR to resolve disputes.

 

1. Inadequate infrastructure: The infrastructure for ADR is not well developed in India. There is a lack of trained professionals, and the facilities for conducting ADR processes are inadequate. This makes it difficult for people to access ADR services.

 

1. Limited scope of ADR: ADR is not applicable in all types of disputes, and there are limitations on the types of disputes that can be resolved through ADR. This can lead to situations where parties are unable to use ADR to resolve their disputes.

 

1. Lack of enforceability: In some cases, agreements reached through ADR are not legally enforceable. This can be a significant disadvantage for parties who agree to a settlement but later find that the other party is not complying with the terms of the agreement.

 

1. Limited participation: ADR is often seen as an option for businesses or higher-income individuals. Many people in India do not have access to ADR services or cannot afford to pay for them.

 

Conclusion

ADR has the potential to be an effective tool for resolving disputes in India, but it faces several challenges that need to be addressed to ensure its success. Improving the awareness and education of ADR, developing the infrastructure for ADR, expanding the scope of ADR, ensuring enforceability of agreements, and increasing participation in ADR are all critical steps to overcome these challenges.

 

Endnotes

1. Arbitration and Conciliation Act, 1996, Acts of Parliament, 1996.
2. Bharat Petroleum Corporation Ltd. v. Kochi Refineries Ltd., 2017 H.C.
3. Sundaram Finance Ltd. v. NEPC India Ltd., 1999 H.C.
4. MC Mehta v. Union of India, 1986 S.C.
5. Oil & Natural Gas Corpn. Ltd. v. SAW Pipes Ltd.,