A Pragmatic Analysis of the Alternative Dispute Resolution

As the title ‘A Pragmatic Analysis of the Alternative Dispute Resolution’ suggests, the article is related to the ADR methods and techniques. It provides holistic knowledge about the ADR process and discusses its various types, particularly in India. Further, the article deals with the reasons that hinder this ADR process and solutions for removing these resistances. Last but not least, it takes into consideration the draft of mediation bill 2022.

Though you could find already a lot of work done on this ADR topic. But this analysis is by far better as it takes a larger view by discussing all the important types ( including negotiation and Adjudication ) and the resistances that were not present in many of the articles. Also, the novelty of this article is in discussion the draft of MEDIATION BILL 2021 and present how it seeks to end many of the resistances and hindrances.

See you in the court.

But why?? Don’t we have other options available?

A Pragmatic Analysis of the Alternative Dispute Resolution

Very often in our daily life, we could hear the term ‘See you in the Court” that is when we want to seek the legal remedy for a dispute or violation. But due to the plethora of cases, the judiciary system is overloaded. Not only this, these legal suit takes a long time, even ranging to years and years, making them unviable for day-to-day business operations. Making way for the evolution of the ADR over the traditional litigation. 222nd Report of Law Commission of India^[1] states the ‘access to justice to everyone’, but this access to justice was hindered by many factors such as poverty, illiteracy, and backwardness.

Making the requirement of the ADR more. In India, Government knows the significance of ADR technology and constantly take measures to have the wider reach and adaptability of these methods. But many psychological and sociological obstructions resisted the people to adopt them. This segment first gives an idea over this Alternative Dispute Resolution with taking to account its several types. And then moving on to describe the resistance and flaws of the people in this resistance. Finally, upholding the recent proposition of the government measures and how that helps to lower this resistance and increase the fluidity of this process that not only out burden the judiciary but also helps the people to have the dispute solved more time efficiently.

I. Alternative dispute resolution (ADR)

Alternative dispute resolution (ADR) refers to a range of methods and strategies that allow legal issues to be resolved outside of the courts. As the term suggests, these were the alternative methods of resolving the disputes. It is often misunderstood that there are four main types of ADR: arbitration, mediation, conciliation and negotiation. But the scope of these Alternative Dispute resolving methods is much wider.

The term ADR can be said as an umbrella term to any strategy or methods that lead to resolving the dispute outside the court, and hence there is no strict classification of the types of ADR methods. These types of ADR can vary from country to country or place to place, taking into account its needs and requirements. Over the traditional judicial proceedings, this ADR process has many potential benefits, such as lower transaction costs and faster settlements.

ADR can be said as the measure of creation of resolutions that are better suited to the parties’ underlying interests and needs and improved ex-post compliance with the resolution’s terms[2]. In India, the provision related to these ADR are mentioned under Section 89 of CPC[3] and in The Arbitration and Conciliation Act, 1996[4]. In 1999, Parliament passed the Code of Civil Procedure Amendment Act. It was provided for Section 89 of the Code of Civil Procedure, 1908, to allow the courts to refer to alternative dispute resolution (ADR) methods to settle pending disputes.

II. Types of Alternate Disputes Resolution

As mentioned earlier, there was no specific list of the ADR methods. This segment takes into account four common and one specific type of ADR in India.

1. Adjudication

Adjudication is an Alternative Dispute Resolution that simple can be stated as a resolution where a neutral judge adjudicate or decide the matter after listening to the concerns of both sides. The judge, who is a neutral third-party nominated by the state, has the authority and obligation to oversee the proceedings and decide the issue. Though a simple question can be arises in the mind that if that simple that why it is not synonyms to the court trial. The answer to this is that in this, there is direct adjudication without cross-examining the term or going through the detailed investigation.

Here adjudicator relies on the party and, by analysing the terms of the contract by his skills and experience, decide the way out of the dispute. The court trial procedures are highly organised, with explicit rules controlling pre-trial discovery and the trial itself — for example, what are the evidence according to the law, in what manner and sequence that is shown, and how arguments are formed and presented. The adjudicator has the duty and will be accountable for creating a principled and reasoned judgement based on legal principles in reaching its decision. Thus, saving them time, money and effort work for the party.

2. Arbitration

Arbitration is a form of Alternative Dispute Resolution in which a neutral third party (the arbitrator), often chosen by the parties of the disputes, would pronounce the decision. In India, Arbitration was governed by “The Arbitration and Conciliation Act, 1996”. So, in this form of ADR, there requires a neutral third party (called the arbitrator) who is in charge of overseeing the process and making the appropriate judgments to resolve the disagreement. An arbitrator is usually a private individual chosen by the parties.

Arbitration is, in this sense, a contract creation, and the terms of the parties’ specific arbitration agreement are typically decisive. Parties frequently contract to arbitrate for future problems before any issue arises, but or can also be created after a dispute has developed, as the outcome of a dialogue between parties already in conflict. The procedural rules may be set by the parties in their arbitration agreement.

This arbitration is also sub-divided into two types.

Ad Hoc Arbitration – Under this, the parties of the disputes themselves decide the conduct of the arbitration proceeding without referring to the arbitral institution. And in case the parties are not able to settle a particular arbitrator or one of the parties were reluctant from it. Then, section 11 of The Arbitration and Conciliation Act 1996[5] will be invoked by the other party, under which the arbitrator for the dispute settlement will be appointed by the Chief Justice of the Supreme Court or his designate or the Chief Justice of the High Court or his designate.

Institutional Arbitration – In this type, the parties refer to the arbitration institution instead of deciding a particular arbitrator. This arbitration Institution was decided by the parties that which institution would administer the arbitration. The International Centre for Alternative Dispute Resolution and the Indian Council of Arbitration are examples of the Indan Institutes of Arbitration. These institutes owing to their experience, formulate rules that would be abided in future cases and situations.

These Arbitral decisions are generally binding on the parties. However, there exist Non- binding arbitrations as well. And even if there is binding arbitration, the party of the dispute can take the review of the court, demonstrating that the arbitrator was corrupt or biased.

3. Mediation

In this form of Alternative Dispute Resolution in which, a neutral third party aims to assist two or more disputants in reaching an agreement. It is a party-centred negotiation process where the third party acts as a mediator to resolve the dispute amicably by communicating and negotiating with them, identifying clear concerns, developing alternatives, and settling the real conflict. This method is totally party-centred. The mediator’s work is just to facilitate the parties to reach a settlement of their dispute. A mediator doesn’t impose his views and makes no decision about what a fair settlement should be.

The intermediate person can also be purposeful, court-approved, or specified in an agreement. Mediation received recognition for the first came as a method of dispute resolution in the Industrial Disputes Act, 1947[6]. Under the r. 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003 it is also stated the mandatory mediation under. This allows the court to refer cases for mediation when they feel there can be a settlement between the parties, even if the parties are not ready to do so.

BATNA- WATNA Analysis

Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA), as the name suggests, are the best and worst outcomes for an alternative path. In other words, it can be said that if a negotiated alternative way was taken, then what would be the wins and losses of each party. This analysis helps the party to have an informed decision as to what and how one alternative is better or worse than other alternatives. Thus, help to decide the way out of the dispute.In this technique, the mediator offers the best possible negotiable outcome or middle way, which favours both the party at the stake of best.

The term “mediation” is well known in international law. This is a technical term in international law, which means the intervention of a neutral and friendly state between two states at war or on the eve of war with each other, their good offices to restore or maintain peace.[7] The term is sometimes synonymous with intervention, but mediation differs from it in that it is a purely friendly act.

4. Conciliation

This is a non-binding ADR procedure where an outsider, usually known as a conciliator, helps the gatherings associated with settling important issues, proposing choices, prompting, and attempting to arrange/resolve through an understanding.

Since the middle person is associated with this strategy, he/she may have insight in tackling one of the issues, offer guidance to the gatherings and arrive at an answer to resolve the case. The middle person can separately meet with the parties to have purposeful talks, better interpret the clause and let the dispute settle in an amicable manner.

In India, conciliation is also governed under Section 61 of The Arbitration and Conciliation Act, 1996, which states that conciliation is provided for disputes arising out of legal relationships, whether they are contractual or not.

5. Negotiation

This is a simple technique in which the parties of the dispute would try to resolve it by negotiating the terms and conditions in order to facilitate the contract or build better connections. Negotiation does not necessitate the involvement of a neutral third party with decisional authority. Instead, the parties are responsible for determining the conditions of any resolution. It is voluntary in the sense that disagreeing parties are not often compelled to negotiate with one another.

The negotiating process is informal, with no set protocols or standards controlling the presenting of facts or arguments. Because the goal of negotiation is to reach a mutually acceptable resolution, the parties to a negotiation can shape that resolution to suit their own needs and interests, and they are under no obligation to reach a principled outcome, let alone one justified by a reasoned opinion applying formal legal norms. If a settlement is made, it is not normally susceptible to court scrutiny. Following then, the settlement agreement can be enforced as a contract. Negotiation is often conducted in private; the process is not open to the public.

6. Lok Adalats

Specific to India, Lok Adalat, or the People’s Courts, is another type of alternative dispute resolution in India. Section 19 to 22 of the Legal service Authorities act 1987[8] specially deals with the Lok Adalats. In a country like India, where there is rampant poverty and illiteracy, there needs a mechanism like the Lok Adalat that could ensure a safer side to the people having less or no knowledge of the legal mechanism, aiding them to settle the disputes at a pre-litigation stage amicably. Lok Adalat aims to ensure that an assistant to the defendant is available, where they may have their dispute resolved quickly and for free.

The national legal service authority of India, along with other legal services institutions, conduct these Lok Adalat. In the case of Abdul Hasan and National Legal Services Authority v. Delhi Vidyut Board and Others,[9] the court gave the directions for setting up the permanent Lok Adalats. The legal service authority act 1987 further states that the award or decision made by the Lok Adalat is deemed to be a decree of a civil court and is final and binding on all parties doe the parties are free to initial litigation by approaching the court of appropriate jurisdiction.

III. Resistance to the ADR

Alternative dispute resolution, or ADR as it has come to be known, is one of those subjects that receives almost universal endorsement in theory but substantially less in practice. It is said that the effectiveness of this alternative dispute resolution was curbed due to the presence of many sociological and psychological barriers[10] that hinders the process of societal participation and transformation.

1. Availability of the Risk – It is a psychological tendency that we choose the option that would result in the best outcome. And this tendency leads the people to choose the court trial, mere fact that the adjudicator that is the justice is of the more reliable and would take the better decision from any mediator or the conciliator. The presence of the court can be traced much back to the history that made its reliability in the heart of the people. The process of alternative resolution lacks this reliability. Making an apprehension in the minds that by choosing these methods, they were taking the more vulnerable route that could lead them to the ineffective decision. This psychological apprehension makes them take the traditional court trial over the other. Though many a time this fear falls right and the one would receive the better decision by the court trial. But when coupling this better decision with the time the one waits, efforts the one puts and expenditure the one occurred, then it proved to be disadvantageous.
2. Not being the Final resort of the dispute – The urge for the more and the fear that the decision was less accountable makes them to take the case again to the court trial. Thus, self-doubts or the client’s scepticism lower the effectiveness and reliability of the ADR, making them directly approach the court next time.
3. Risk of social evils – In the current times, corruption could be seen as one of the biggest social evils prevailing almost everywhere. And due to preserving inequality in the country, it became a more significant factor that deviates the people from these alternative dispute methods, feeling the stronger party might indulge in the unfair means.
4. Egotism – Egotism is another existing norm that hinders the mass utilisation of the ADR. There was a tendency in the minds of the people that the consultatory approach shows the weakness of the party. And so they retard from approaching these alternative or amicable measures and go for the fight of the court trial.
5. Lack of knowledge and awareness – If the resistance was not due to these psychological barriers, there comes the sociological hindrance. In countries like India, the majority of the population lives in the rural part having access to less education and knowledge. Making them not aware of the other processes or methods of resolving disputes except the court trial.
6. Manipulated by the hands of the lawyer – It seems that the prolonged justice fight would be beneficial for a lawyer, as he would be able to get more money from the client. This makes him suggest or influence the people against these more time and cost-efficient processes of ADR.
7. Unavailability of the effective Infrastructure – The chains of the traditional court and tribunal, from the one highest, i.e. supreme court, to the lowest, i.e. district court binding every corner of the country, is not an easy process. It takes time to set up that prevailing chain that binds every person of the country. Thus, the lack of this huge infrastructure sounds problematic many times. Sometimes, they possess knowledge and acceptance but lack the infrastructure of these dispute resolution near their living areas. Making the people move to the only available source to get justice, which is litigation.
8. Legal recognition – Last but not least is legal recognition. Many of the processes, such as mediation and negotiation, were still have not received any legal recognition in many countries, as to have any specified statute or act that legally governs the process. Thus, making them to seems to be a more unchosen option to the people

We saw how different sociological and psychological barriers coupled with less awareness and lacunae in the infrastructure hindered ADR. But at the same time, it also has to be noted that these barriers were interlinked and solving the can have multiple effects that automatically aside many.

The government of India has to set up more mediation centres, especially in the villages, with efficient teams of legal consultants that would provide better knowledge and guidance to the people. Thus, solving the problem of infrastructure and awareness. And as this knowledge and awareness grew coupled with the availability of the ADR mechanism, the psychological resistance of the people, either it was the risk or social evil, started to clear. Making way for diverse participation.

As the participation from the root corners of the country enhances, there would be seen the chain effect. The people would all around reconsider their ideology and think what matters more the ego or the effectiveness. And question themselves that for the small dispute, do they really have to wait for a long, fight the litigation for years with blocking the businesses.

One of the recent endeavours of the government to let these barriers out is by introducing the Draft of mediation bill 2021[11]. That possess the potential to solve these problems and made this effective mechanism to show the effectiveness.

IV. The Mediation Bill, 2021

In India, there are no proper rules that talk about the process of mediation. Through the government has released the mediation training manual of India, but still, lack of legislation and clearer framework makes many people reluctant to it and companies to choose venues other than India. This bill was proposed in the parliament that aims to frame the legislation that provides the legal sanctity and enforceability, with the clear knowledge of the laws for a legal mediation. Here are a few important points of the bill.

• Draft Bill partially refers to Article 2(3) of the Singapore Convention for the definition of mediation. It states that “mediation means a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, conciliation or an expression of similar import, whereby parties request a third person or persons (the mediator) to assist them in their attempt to reach an amicable settlement of the dispute”[12] which is mentioned under Section 4.
• The term “mediation” entails pre-litigation mediation, online mediation, and conciliation. So, the bill proposes pre-litigation mediation, that is, before the mediation to be done before the court trial. Also, for urgent relief, the litigants can approach the competent adjudicatory forums/courts.
• Section 22 of the Bill proposes to introduce a “Mediation Settlement Agreement” as a culmination of mediation-related disputes. This provides a legal sanctity to the mediation agreement. And the Agreement would be final and binding once the party agreed and signed it. This Agreement will be enforceable like a judgment or decree under the provisions of the Civil Procedure Code.
• Section 23(1)(iii) of the bill maintains the confidentiality of the parties to the dispute, as the document cannot be used as the evidence admissible in any court or tribunal.
• In case of fraud, corruption, gross impropriety or impersonation, Section 29(2) allows the aggrieved party to challenge it in a court or tribunal of competent jurisdiction.
• Schedule IV of the Draft Bill proposes to make the term mediation interchangeable with the conciliation.
• Chapter 7 of the Bill regulates online mediation, which includes pre-litigation mediation conducted through apps and computer networks.
• The successful mediation in the form of a Mediation Settlement Agreement (MSA) would be enforced by law.
• The draft bill also stated that the Mediation Settlement Agreement would be registered with the State/District/Taluk Legal Authorities within 90 days to have the authenticated records of settlements.
• Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
• The bill provides the establishment of the Mediation Council of India and community mediation. That regulates and promotes domestic and international mediation in India.

This legislation is necessary as the increasing number of the international trade and commerces it is necessary to have proper law and clarity regarding the mediation process just like the other country such as Singapore has. This bill would remove ambiguity and make their mind clear of the strength of the legal fraternity in India.

On the one hand, as discussed, this provides trust and framework to the international investors and the corporate regarding the laws and orders in India, which priorly they felt ambiguous and confusing. And on the other hand, this removes many existing barriers in the Indian subcontinent and enhances the people’s participation. Also, the bill discussed the process of e-mediation, which depicts the needed technology advancement to help the process faster, easier, and more reliable. Thus, if passed, this legislation would help enhance the Indian economy and quality of citizen’s life, which directly and indirectly helps to lessen the burden on the court, providing the settlement easier and faster.

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[1] Law Commission of India, Need for Justice-dispensation through ADR etc., Report No.222, (April 2009). Available Here

[2] Mnookin, Robert, “Alternative Dispute Resolution” (1998).Harvard Law School John M. Olin Center for Law, Economics and BusinessDiscussion Paper Series. Paper 232.

[3] Civil Procedure Code, 1908, § 89, Acts of Parliament, No. 05 of 1908 (India)

[4] The Arbitration and Conciliation Act, 1996

[5] The Arbitration and Conciliation Act 1996, § 11, Acts of Parliament, 1996 (India)

[6] Industrial Disputes Act, 1947, Acts of Parliament, 1947 (India)

[7] International Mediation in Armed Conflicts. Paras Sharma, Jan 22, 2021, Available Here

[8] Legal service Authorities act 1987, § 19-21, Acts of Parliament, 1987 (India)

[9] National Legal Services Authority v. Delhi Vidyut Board and Others, AIR 1999 Del 88.

[10] Marguerite Millhauser, The Unspoken Resistance to Alternative Dispute Resolution, 3

NEGOT. J. 29 (1987).

[11] PRS India, Bills & Acts, The Mediation Bill, 2021, Available Here

[12] ibid

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