ALTERNATE TO ALTERNATIVES: CRITICAL REVIEW OF

THE CLAIMS OF ADR

A Project submitted to Indore Institute of Law, Indore

B.B.A.LL.B.(Hons.)

Under the guidance and supervision of

Assistant Prof. Krutika Pandey Maam

Submitted By

Sakshi Agrawal

Subject- ADR

VIIIth Semester, IVth Year, B.B.A.LL.B.(Hons.)

2018- 2023

Indore Institute of Law, Indore

 CERTIFICATE

This is to certify that Ms. Sakshi Agrawal B.B.A.LL.B.(Hons.) 2018-2023 has

submitted his project titled ALTERNATE TO ALTERNATIVES: CRITICAL
REVIEW OF THE CLAIMS OF ADR in partial completion of the requirement
for the award of the degree of Laws to the Indore Institute of law, Indore under
my guidance and supervision. It is also affirmed that the project submitted by
her is an original, bona-fide and genuine piece of work.

Date: Assistant Prof.

Place: Indore Institute Of Law, Indore Ms. Krutika

Pandey
 DECLARATION

I hereby declare that the work embodied in this project entitled “ALTERNATE
TO ALTERNATIVES: CRITICAL REVIEW OF THE CLAIMS OF ADR”
researched and submitted by me to Indore Institute of Law, Indore in partial
fulfilment of requirement for the award of the degree of Laws, under the
guidance of Assistant Prof. Ms. Krutika Pandey maam , is an original and bona-
fide work carried out in academic interest. The views expressed in this work are
mine and do not represent any person, organization or community.

Ms. Sakshi Agrawal

B.B.A.LL.B.(Hons.),

VIIIth Semester
 ACKNOWLEDGEMENT

I am thankful to God Almighty for his choicest blessings which he has

abundantly showered upon me. I express my sincere and heartfelt gratitude to
my guide, Assistant Prof. Ms. Krutika Pandey, Indore Institute of Law, Indore.
The corrections and editions suggested by her have helped immensely into
shaping my project into the form it is today. She took interest in my work and
has given shape to my ideas with her rich and scholarly legal acumen and
academic experience without which the completion of this project would not
have been possible.

Thanking You

Ms. Sakshi Agrawal

 Table of Content

1. Abstract

2. Introduction

3. Archetypes of disputes determination

4. The quest for ADR Throughout the world,

5. Legitimization of ADR

6. Conclusion
Abstract

Discords are bound to arise in society and ingenious human minds have always devised ways
and means for resolution of conflicts. The phenomenon, law, itself can be seen as a result of
the quest to address potential problems. Nature has endowed people with rationality and they
have constantly attempted to discover methods of establishing a cohesive society. Dispute
resolution is one of the major functions of a stable society.

Through the medium of the State, norms and institutions are created to secure social order
and to attain the ends of justice or the least to establish dispute resolution processes. States
function through different organs and the judiciary is one that is directly responsible for the
administration of justice. In commonplace perception judiciary is the tangible delivery point
of justice. Resolving disputes is fundamental to the peaceful existence of society.

Therefore, effective and efficient systems for determination of disputes become an obvious
appendage. This working paper, to begin with, offers a macro understanding of the dispute
resolution methods existing in India. The emerging trend of Alternative Dispute Resolution
(ADR) will be the focus of the next section of the paper. The rationale of the ADR movement
will be critically explored to assess its usefulness in terms of realising the ends of justice in
the last part.

Archetypes of disputes determination

As diverse are the causes of disputes, varied are the models of resolving them. They are
categorised mainly into four: rights-based, power-based, interest-based and legislative. These
models promise results either on a win-lose or win-win proposition. The rights-based
approach is one that is adopted in litigation or adjudication. Parties to the dispute contest on
claims of ‘rights’ and the final decision is considered to be a vindication of the right agitated.
This model creates winners and losers.

Disputes could get settled within power structures, which are social, political or economic.
When one party is domineeringly situated over the other, the relative positions determine the
outcome of the dispute. This is referred to as the power-based model. This also creates a win-
lose situation. This model is used either independently or in combination with litigation. The
interest-based approach is the one that is accommodative of the interests of the parties to a
dispute. Rather than an endorsement of one’s right through adjudication, the conflict is
sought to be resolved by varied methods of intercession.

This method is designed to bring out a win-win situation. This model is based on a
consensual scheme where disputants themselves will be responsible for the result. In the
legislative model, rules or laws will be made by the competent authority to solve an impasse.
These rules could either provide a process by which disputes could be settled or could
determine the issue itself. This also would result in winner - looser situation or both the
parties may find themselves at the losing end. Litigation is the well-acclaimed process
through which dispute settlement is sought in independent India. It is a general perception
that people tend to trust institutionalised mechanisms, especially those established in the
public sphere for dispute resolution. On the other hand, it is also argued that the faith in the
present day justice administration system is gradually being eroded. There exists a
widespread feeling that the judicial system is on the verge of collapse. The existing crisis in
the judicial system, for some, is the justification for seeking alternatives. When litigation is
the mainstream and ADR, as the acronym suggests, the alternative, the legitimacy of the
existence of alternatives needs to be validly established. Here, alternative is sought to remedy
the problems existing in the conventional. It therefore becomes interesting and essential to
conceptualise ADR as currently understood to understand its character. This will lead to the
subsequent parts of the paper where the justifications for ADR is mapped and critically
analysed.

The quest for ADR Throughout the world,

ADR (the term is used here in a generic sense), is promoted as an escape route from the
exasperating processes of adjudication. The current phase of the ADR movement began in the
U.S during early 70’s. Problems outwardly similar in nature seem to set the search for
alternatives all over the world. ADR comparatively is described as opposite to conventional
judicial processes of dispute resolution. Court directed ADR and multi-door systems but pair
ADR with adjudication. They are designed to complement the dispute resolution process
through adjudication. ADR is considered to be a process in which a dispute is settled in the
active presence and involvement of a neutral agent. In its ideal form, ADR is perceived not
only as resolving the dispute but also as placing back the relationship of the parties status quo
ante the conflict. The Supreme Court of India has also suggested making ADR as ‘a part of a
package system designed to meet the needs of the consumers of justice’.

ADR is perceived both as a preventive measure and as a method for channel listing disputes
outside the formal justice system. The preventive function is achieved by providing facility
for pre-litigation counselling and mediating points. The channels to bypass the conventional
forms are provided mainly in two ways. It is either by integrating within the statute itself or
by providing means of dispute settlement in the shadow of law. Completely informal methods
are also prevalent in many societies. Historically speaking, India is considered to have rich
experience in informal methods of dispute resolution. The recent attempt of the West Bengal
Government to introduce a bill, which eventually failed, to give a legal framework to
alternative dispute resolution could be seen as reintroduction of a leaf from the past.

The Ministry of Panchayat Raj in India is contemplating the feasibility of reintroduction of

Nyay Panchayats in villages. The reasons advanced for the cause of ADR are strikingly
similar in most part of the world whether developed or developing. Court congestion, delays,
expenses and procedural inconveniences are the usual arguments that seek to justify the
search for alternatives. This is augmented by the cultural and access arguments. The
compelling claim of the need to facilitate trans-national trade and the resulting demand to
legalize the processes of ADR is also gaining momentum in India post liberalization.

The adoption of the new Arbitration Act (1996), conspicuously similar to the UNCITRAL
model, is a case in point. In the international scenario, one can find a host of documents that
pursue the cause of ADR and especially arbitration. The pressure on the judiciary due to large
number of pending cases has always been a matter of concern as that being an obvious cause
of delay. The culture of establishment of special courts and tribunals had started early in
independent India. The rationale for such an establishment ostensibly was speedy and
efficacious disposal of certain types of offences. Tribunals were also set up through statutes
to deal with specific issues as alternative to adjudication in regular court.

The delay and efficiency reasons were further supplemented by the need to include specialists
or persons well versed in the issue, in adjudicatory process as a means of achieving a just
end. Such reasons are still mooted as witnessed by the recent entanglement about the
qualification of the chairperson and members of Competition Commission. It is pertinent to
note here that although special fora were prescribed, the process therein remained more or
less adjudicatory. The trend next followed was the establishment of specialized fora to deal
with cases of the same genre. The founding of Labour Courts, Industrial Tribunals, Consumer
Forums, Motor Accidents Claims Tribunals, Family Courts etc. are examples of this phase.
The justification remained the same but the process of dealing with disputes began to undergo
transformation. A mixed process of mediation, adjudication and reduction of procedural
content are the highlights of this stage.

The next most celebrated and debated move was the introduction of Lok Adalats. The
Constitutional duty of the State to provide legal aid, prompted by the decisions of the apex
court, led to the formation of a Committee for Implementing Legal Aid Schemes (CILAS).
This entity mutated into the present Legal Services Authority (LSA). The functioning of Lok
Adalat is supported by LSA. The legal legitimacy of Lok Adalat flows from the Legal
Services Authorities Act, 1987. Establishment of Fast Track Courts is next in this list. The
posts of ombudsman for sectors like insurance, banking and lokayukt, are also conceived to
deal with particular issues, efficiently and expeditiously detouring the regular courts.

All these moves bear the brand of reform of the justice administration. Successive Law
Commissions have addressed the need for reform and have suggested multifaceted measures
to deal with the crisis. It therefore becomes manifest that there are problems in the justice
delivery system of the nation that are being consistently attempted to remedy. The existing
milieu - problems of the legal system and the experiences of establishing fora alternate to
regular courts - seemed to be perfect for the introduction of ADR as an alternate to the
mainstream. In common parlance, ADR is considered as a process that offers an alternative to
litigation. ADR processes are generally classified as mediation, conciliation, arbitration and
the hybrid and modern versions of these basic forms.

The reasons for introduction of ADR, as stated already are: delay, expenses and procedural
inconveniences. Looking back at the reform moves in India, one finds that the logic of
establishment of bodies from Special Courts to Fast Track Courts endorses the very same
causes that called for an alternative. Even the procedural component is tried to be simplified
in most of the fora. If that be the case, it becomes logical to call the resultant fora of the
reforms as ADR fora. A glance at the type of cases that are claimed to be successfully dealt
by an accepted ADR process, the Lok Adalat, will reveal that, among others, cases fall in the
category of motor accidents, family disputes, bank loans and workmen’s compensation.
The noticeable position that emerges from this observation is that the cases that get to the
alternate process of Lok Adalat are flowing from fora that are already established as
alternatives. Then a crucial question pops up, are we going on creating alternatives to
alternatives?

Legitimization of ADR

On a philosophical note, it is said that litigation that turns out winners and losers gains
nothing, not even the judgment holder. The reasons that support the search for alternatives
can be viewed at two levels. The indeterminacy in result, lack of finality due to the appellate
process, delay, expenses, vexatious character, stress involved in litigation and accessibility as
one; loss of social harmony as the other. The promise of ADR is that it is less expensive,
simple, quick and accessible. The latent but more germane rationale is its capacity to have a
flexible and responsive process, the possibility of achieving results that suit the society, social
harmony and the possibility of autonomy. Causes like docket explosion, backlog of cases are
the restated reasons for the promotion of ADR.

The experience of success of ADR globally is also a persuading point to many to advance
ADR. The hope of recreating the success story is of course appealing and tempting. These
being the reasons for the advocacy of ADR, it will be a worthwhile exercise to critically
analyse each argument to verify its grounds. The common argument that is undisputedly
accepted due to its deceptively obvious nature is over crowding of litigation and backlog of
cases. In reality this argument may well be true. Authentication is necessary for this argument
to become a valid justification for an alternative course.

The best possible data would be the number of cases filed, the number of pending cases and
the average disposal rate all over the nation. Data of average duration of litigation will also
help us arrive at a clearer picture. These data need to be analysed in the light of per capita
filing ratio considering the increasing amount of population as also directly matched with the
adult population who are the major potential litigants. This information again will have to be
appreciated in the light of increase in the number of courts and fora that offer resolution of
disputes. Unfortunately we lack comprehensive figures that will vouch the veracity of the
argument based on above mentioned statistical analysis but for the number of cases pending
in each strata of courts.
A reliable reference on this aspect is by a former Chief Justice of India who gave a picture of
comparative reduction in the backlog of cases with regard to the Apex Court. The reasons
attributed to the decline are the steps taken to modernize case management system and other
innovative measures. This gives a clear indication as to the direction bound to be taken at all
levels of the judiciary to address the problem of delay and backlog of cases. A glance at the
financial allocation to the judicial sector in successive planning commissions also becomes
relevant as it indicate only a negligible increase.

The development of infrastructural and other supportive facilities are also crucial to the
efficiency of the judiciary, especially in the lower rung where the number of filings are higher
and is the most accessible point. The pyramid structure of our judiciary creates bottlenecks at
different levels. This calls for maintaining a systematic ratio of appellate courts to
subordinate courts. At a higher level of judiciary, increasing the number of benches, at least
in the minimum, filling up of existing vacancies will go a long way in addressing the problem
in deliberation.

Aspect of selection and training of judicial officers of all levels should also be an integral part
of the move to reduce the backlog and enhancement of quality and efficiency. Judiciary
themselves point out abuse of the process of litigation and the lack of clarity in decisions as
reasons for backlog. The suggestion therefore, is reinforcement of the existing system, as it is
not the institution that is at fault, but the administration of which that needs change. This
argument stands vindicated by the previous discussion that the creation of alternate fora in
itself does not solve the problem as revealed by the data that shows the nature of disputes that
gets settled in Lok Adalat, an alternate forum.

The argument that ADR is better than litigation because it hands out a conclusive decision
without the possibility of appeal, is not always justified, as an appeal is a component of
ensuring justice. It is also not a correct position to assume that ADR process does not involve
appeal. Though on limited grounds some processes of ADR do design review of the final
decision, arbitration for example. Having said this, one must not lose sight of the fact that the
appeal possibilities in most of the cases are capable enough to stall delivery of justice.
Persons who would like to delay the final decision for obvious reasons use all available
dilatory tactics and appeal is one among them. Now the issue to be addressed here is how to
strike a balance so as not to detour the course of justice.
The argument that one form of process allows more appeal possibilities than the other is not
sufficient. If it is the misuse of appeal that is the cause of disquiet, streamlining the appeal
process is the answer. Deserving matters should reach higher courts, at the same time, such
recourse should not be a tool in the hands of manipulators. The answer to this problem is
definitely not by bypassing judiciary but by establishing a vigilant judiciary that uses its
discretion with responsibility.

The attempts to find answers for the problems existing in the present day legal system could
be categorized into two: 1) revivalist- attempting to traditionalize the system 2) approach of
fusion - wherein creative syntheses of Indian and Western methodologies are sought. The
Institute for the Study and Development of Legal System suggests a threetier reform action
plan. It is an integration of court administration, case management and consensual dispute
resolution (CDR). The implementations of these suggestions would be through the Ministry
of Law and Justice, Government of India, which is expected to pilot a series of amendments,
especially in procedural laws. The proposed picture seems to be very optimistic but needs the
right direction. A perusal of the document will reveal that the work has been steered by
propulsions post new economic policy.

Both the means and ends should be creditable for a process to be justified. The first two
proposals to streamline the judicial system is yesterday’s need. The proposal on CDR needs
further evaluation to see how pragmatic it could be. The suggestion is, for a court annexed
scheme, and making available opportunities for a selection of alternative processes. This
tends to be State centric and does not directly provide access, but indirectly facilitates
regaining the lost faith of the people by early disposal of the cases. This does not widen the
net of the centre of justice delivery. The proposed system needs a comparatively high initial
investment, which in the present economic trend will lead to privatisation of justice,
escalating the price tag. The experience of the working of the Lok Adalat is also said to be
not at optimal level, as infectious delay and backlog is affecting them as well. So, the answer
is elsewhere.

The search should start from the elemental position; what does one desire? When justice is
one’s right, access to it becomes an integral part of the right. How does one reach this desired
goal? What are the impediments involved? The solution ought to be specific to the existing
problems. A revival of the bygone culture would be an idealistic approach and a society
ridden by castes and partisan politics does not offer a potential ground. The existing system
cannot offer any solution in the present form either. This calls for a structure that is alternate
at the same time conducive to the demands of justice.

It is very apparent that having an efficient alternative to litigation that answers the problems
of access to justice is the need of the day. The enduring argument then is that creating
alternatives should not be to by-pass the problem. It does not rule out the possibility of
creating alternatives that can fabricate a structure with accessibility. The problems in the
model of litigation need to be addressed at different levels simultaneously, and is a process
that cannot be instant.

Conclusion

Therefore, it becomes imperative to search for alternatives that go concurrently with moves
for reforms in the existing system. The most compelling reasons to adopt an alternative
means, to the author, are dual; access to justice and social harmony. Though the issue of
access to justice could be well addressed by way of changes in the existing structure, social
harmony is something beyond the perception of litigation that creates winners and losers.
Looking through the models of dispute resolution, the one that is most congenial to social
harmony and cohesion invariably is the interest-based model.

Development of a model that is justice oriented and integrates the need of the respective
population should be the pursuit. A fine synchronization of litigation that will respond to the
rights of the people along with local level alternative methods of dispute resolution wherein
one can be responsible to oneself and to the society will be a model to aspire. Introspection
into what stimulates the expansion of ADR should not lead one to the sole reason of
adaptation headed for a ‘newly market-oriented society’ nor should it be a trade off of justice
for harmony. But access to justice and social solidarity should be the leadlight for such an
endeavour.