Alternative Dispute Resolution in India Legal Essay

Apoorva Purohit Linking Laws(360p)

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A very good evening to everyone. Welcome to Unacademy Linking Laws. Quickly give
confirmation that the audio is clear, video is clear, everything is okay.

If everything is fine, we can start the class. Just give me a confirmation through thumbs
up that everything is fine, video is clear, audio is clear. And then we will start with
today's topic which is a very important topic.

Alternative Dispute Resolution in India. What is the situation of ADR in India? What are
the things that are important for us from the legal and knowledge point of view? We will
cover everything. But quickly give me a confirmation that the audio is clear, video is
clear, everything is okay.

And then we will start the class. Okay, give me a confirmation quickly. Quickly.

Clear? Can you hear me? Is the video coming? Is everything fine? Thank you so much for
the confirmation. Today's topic is Alternative Dispute Resolution, ADR. We say it very
easily.

Before going to that topic, you should know why we are talking about it. Generally,
whenever court cases are discussed in India, whenever the legal system is discussed,
the word Sunny Deol's dialogue comes to everyone's mind. Date by date, date by date.

Correct? And this is one reason why many people are afraid of filing a court case. People
do not feel that no one goes to court for small things. And even if it is a big thing,
everyone thinks whether to file a case for it or not.

Because this harassment is one thing and the harassment in the court will be the date
that will be constantly received. Which you will be stuck in so many structures, that will
be a different thing. So all these situations had come in front of everyone that there is a
lot of trouble in the court.

So at least there are some types of disputes that we can solve without going to court.
What type of disputes will be there? Like matrimonial disputes, like family disputes, like
trade-related disputes. In all these disputes, we can also draw some suggestions outside
the court.

That thing is not possible in criminal cases, we already know. But the other things, like
let's say a matrimonial dispute, like let's say a business-related dispute. For those things,
you can also settle outside the court.
So what does it mean to settle outside the court? It can mean different things. Whether it
is about arbitration, whether it is about conciliation, whether it is about mediation,
whether it is about negotiation. There are different types of formats.

Choose the format that you like. For example, when you go to a restaurant where there
is a buffet system. There you choose what to eat.

There are so many options that you cannot eat everything. In the same way, when you
decide that we have to solve our dispute through the ADR mechanism. Whatever dispute
has happened between us, we will solve it through the ADR mechanism.

So there will be 4-5 options in front of you that what you have to choose. You choose
that. And according to that, you can solve your dispute.

Keep one thing clear in your mind that ADR is never seen for criminal cases. We will
come to this topic in a full-fledged way. But before that, this is me, I am Apoorva Prohit.

Local laws, legal updates, legal SA, that is my department. Apart from this, I am a Plus
Verified Educator on Unacademy app. You have to join this channel Unacademy Linking
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In this channel, you will get updates of all the educators in Unacademy Linking Laws.
Apart from this, there is another channel whose name is Linking Laws, I am Apoorva. You
can also join by searching for it.

Because I share my class PDF there. Or if there is any doubt, you can ask. Because it is
an open platform.

Alright. Without wasting time, let's see our structure once. Those who come daily, see
that ma'am brings the structure daily.

But it is important to bring it daily. First of all, introduction comes in the structure.
Whenever you are dealing with any topic, you will tell the introduction first.

And you also give the opening of the introduction along with the quote. So that you can
see the opening of your SA in a very explosive way. After that, in the introduction, you
will tell the meaning, scope, and extent.

Then you go to the background, where you talk about the historical importance of it. For
example, today's topic is ADR in India. Alternative Dispute Resolution in India.

So you put a quotation, whatever you know about ADR. After that, in the introduction,
you told the meaning of ADR. You told the scope, you told the extent.

In the background, you will tell the history of arbitration, history of conciliation or ADR of
India. Issues means what problems are coming to implement ADR 100% in India. After
that, what are the statute, case laws, what are the laws that exist for ADR.

Then at the end, what is the solution for the problems you told, so that we can
implement it better. And at the end, conclusion, whatever you have written, you have to
write it in 4-5 lines in the form of a sentence. So that is the basic structure, that is the
basic thing that you have to write.

Court, as I said before the introduction, you have to do a blast opening. You will do that
opening with quotation. So here I have written that the court of this country should not
be places where the resolution of dispute begins.

They should be the places where disputes end after alternative methods of resolution
have been considered and tried. That is, the court should not be such a place in India
where the dispute begins. The court should be such a place where you are coming to the
court after being fully trusted with the alternative dispute mechanism.

As an example, if there is a dispute between a husband and wife, then according to this
quotation, they should first sort all the ADR mechanisms. If work is not done from there,
then you go to the court. That is, the court should be an end mechanism.

Although it does not apply to criminal cases, so always remember that. The second thing
is the quotation of Mahatma Gandhi, I realized that the true function of a lawyer was to
unite parties. You read this quotation, there is no problem in it.

PDF, I will share. It means that the function of a lawyer should be how to unite the
parties. They should try on their own to make both sit and talk and reach a unity, reach a
resolution.

They should not be that we have to win a case against a party. This thing has been said
by Mahatma Gandhi and he has also included his experience in this thing. Now let's
come to the introduction.

Alternative Dispute Resolution is a technique to resolve disputes and disagreements

between parties by arriving at an amenable settlement through negotiation and
discussions. As I said, as soon as you hear the name of the court, you get a headache.
Then after the headache, the dialogue of Sunny Deol comes to mind, which is date by
date.

Then you feel that brother, who is now in the circle of the court. So here comes a
resolution of ADR for you. What is he doing? He can bring you to a settlement without
going to court, without your harassment.

In this, the convenience of both the parties is taken care of. It is not that one party lives
above, one party lives below. Whatever the convenience of both the parties is taken care
of, both the parties together appoint an arbitrator or appoint a mediator.
Whatever the appointment is, it is with the mutual agreement of both the parties. And
along with that, all the rules and regulations, whether it is about the place or the venue,
everything has its own say. That is, both the parties decide together who will make this
decision for us.

Or who will help us resolve the dispute in this. All these things are decided by the
parties. That is, the parties remain supreme.

In the ADR mechanism, we take care of the convenience of the parties the most. Which
is not there in the court. The convenience of the court is taken care of in the court.

Through negotiation, through discussions, you reach a settlement. It is an attempt to

establish an alternative mechanism other than the traditional method of dispute
resolution. So what happened to the traditional method? The court was dismissed.

Apart from the court dismissal, there should be some alternative, some other thing
where we can go. We already know what the situation of the court is in India. 4.5 crore
cases are pending in the Indian courts.

Somewhat 4.8 crore cases are pending in the Indian courts. And a lot of judges' seats are
vacant in the Indian courts. Whether it is a high court or a lower court.

The judges' seats are vacant everywhere. A lot of cases are pending. A lot of dates are
getting.

The parties are not serious either. A lot of things are happening. What happens with this
is that people get worried.

And either they go to the court and leave it in the middle. Who is involved in all this? So
then you should have an attempt that you have an alternative mechanism where you
can go. After this, the ADR mechanism offers to facilitate resolution to the matters of
business issues and others.

I have already told you that these matters do not look at criminal matters. It is not that
you have murdered someone, then you are saying that the victim's family does one
thing, Sultara outside the court. That thing is not possible.

What is the reason for that? Can anyone tell me the reason why we are not dealing with
criminal cases in ADR? Anyone? Can anyone tell me why we are not looking at criminal
matters in alternative dispute resolution matters? We are only looking at business
matters, matrimonial, family or civil. Here you write matrimonial, civil, family or business
trade. You are looking at these matters.

So my question to you is that why have we exempted criminal matters? Is there any
reason for this? Yes or no? Think quickly and tell me. It is just a matter of telling in one
word. Anyone? Okay, so you come to the mutually agreeable solution.

That is, the solution of both parties is heard. What do both parties want? For example, I
am also a party, Bishnu is also a party. So what is the mutual agreement between the
two of us? That solution is taken out.

Criminal is against the state. Very good. Very good.

Bishnu ji said something very on point. Criminal matters are against the state.
Understand this.

If, for example, crime is committed against me. And I forgive. Understand this.

A crime is being committed against me and a serious offense is being committed. Crime
is also domestic violence. But we put domestic violence in the matrimonial dispute.

So there is still settlement in it. According to the alternative dispute mechanism. But you
imagine as an example that a person has committed a murder.

The person who committed the murder is going to his family. The person who committed
the murder is saying that let's do one thing. I will give you so much money.

Let's finish the matter here. And the other party says no, no. Work will not be done with
so much money.

You do one thing. You give at least 10 crores. There are talks between these two.

There is a discussion. There is a negotiation. How much money do we have to decide?

Now assume these two parties.

The victim's family. The person who committed the murder. His family has come to a
resolution with the murderer through discussion.

Give us 10 crores. And we settle here. So has this thing settled there? No.

The criminal offence that you have committed. It has happened on the victim's family.
But it is also an offence against the state.

The family wants to forgive you. But the state will not be able to forgive you. The state
will say that you come to court.

We see what we will do. Understand this. Try to understand this very well once.

That the criminal offence is happening. And we are talking about hardcore criminal
offences. We are not talking about the family dispute or the offences that are coming in
the matrimonial dispute.
The criminal offences that are coming in this category. Where it is not possible at all.
That you forgive one party and the other party.

And that case gets let go. Because crime is against the state. Offence is against the
state.

And the state is the party that will decide whether you should be forgiven or not. And
that state will decide in court. When you will reach the court.

So this victim's family or any other family cannot decide whether you should let go or
not. Even if they decide. Suppose you have given 10 crore rupees.

You thought that I was left behind. Murder happened. We had a lot of money.

So we gave it. Now the matter is over. But the state can initiate action on you even then.

Because the victim's family does not have the locus. That they forgive you. And in a
criminal set up.

Whatever the process of the court can save it. Okay. After this, let's talk about the
background.

So it is not that ADR is a very fancy thing. Which is new in India. People would think that
it was a good traditional approach of the court.

And ADR is a very fancy thing. Which we must have adopted from abroad. So it is not
that ADR was always in India.

Always means as much as you can think. ADR system is not a new experience for the
people of this country. ADR is a very old thing for India.

And it is not that it is new. The oldest source you will get is. Bhadranayak Upanishad.

It tells you about the arbitral bodies. In which Puga, Shrini, Kula. Their reference has
been given.

Some disputes are small. They will be decided by the village members. The people will
decide for themselves.

So one type of arbitral body was talked about. At the time of Upanishad. That is, in the
Vedic period.

After that, it was also told in the Gupta Empire. That the lowest court in the judicial
system. Like we have a lower court here.

There is a higher court. So the lowest level of judicial system here. We gave that to the
village people.
That the people of the village will meet and decide. And how the people of the village will
decide. It is not that they are becoming judges.

They will decide through discussions and negotiations. That is, the word was not used.
Alternative dispute resolution.

But this thing has always existed in India. This concept was always there. Whether you
talk about the time of Upanishad.

Whether you talk about the time of the Gupta Empire. By the way, the king and the royal
family people decided. But there were many such disputes.

Which were of the family, which were of matrimonial nature. It was decided by the
villagers. The same thing was in the Mughal dynasty.

The village court was also established there. And the villagers themselves decided their
dispute in the village court. What happened after this was that the British king came.

And they started giving a lot of importance to the traditional court. When the Britishers
invaded India. So they gave importance to why it is necessary to be a court.

And why what you are doing among yourselves is wrong. However, after that the Bengal
Resolution came. And in the Bengal Resolution, I talked about ADR somewhere.

And the first arbitration act that we brought today. They had brought it above the Bengal
Resolution. After this, we come to the types of ADR.

Everyone knows about arbitration. Everyone knows about conciliation. But there is also
mediation, judicial settlement.

And there is also negotiation. So what are all these things and what is the difference
between them. We will understand that now.

I want to tell you once that everyone should definitely make notes. This thing confuses
people a lot. Everyone does not understand what is the difference between conciliation
and mediation.

Or what is the difference between mediation and negotiation. Or what is the difference
between the three. Even then people know the meaning of arbitration and judicial
settlement.

Because arbitration and conciliation act exist. We have understood arbitration from it.
And judicial settlement is a different thing in all of them.

There is no such thing as inter-confusing. So there is no confusion in this. There is mostly

confusion in these two or three things.
So we will see what is the difference between them. First of all, let's come to arbitration.
So you already know arbitration.

You must have read the arbitration and conciliation act in college. Or you must be
studying for Judiciary now. For BGS.

So in arbitration, both the parties decide that who will deal our dispute. Decides from the
beginning. Before the dispute, as an example, I come with Raj ji in a business
transaction.

And when we made an agreement that I will send him so much stuff on this date.
Whatever we made a contract, made an agreement. I inserted a clause in that
agreement.

Or made a separate agreement. That if there is any dispute related to this issue between
us. Then we will refer this arbitral tribunal.

So when we had made this transaction deal. Had drafted, had decided. At the same time,
we had decided that if there was any dispute.

Then we will go to arbitration. And this arbitral tribunal will be ours. Okay, after that
when the dispute came.

So we went to that arbitration tribunal. Now this arbitral tribunal. Almost functions like a
court.

At least if we talk about India, it functions like a court. It listens to both the parties, gives
a decision. And the award given.

Its binding nature is as much as that of a court decree. That is, whatever the arbitrator
said. Whatever decision was given.

The award given. We use the word award. That award will be of that binding nature.

Like a consent decree. Consent decree. For those who do not know, I will tell you.

Consent decree is that decree. Where both parties agree. Say that we reach this
resolution.

And the judge notes it down. And gives it the name of a consent decree. That this is our
decree.

Then it is a normal decree. The same nature remains in this too. So arbitration is the
strongest procedure among all of these.

That is, according to the binding nature. Or talk about the formal nature. The most
formal is also this.
And the most binding nature is also this. The court-like procedure is also followed here.
Although it is informal.

The court-like procedure does not mean that everything is going on like a court here. It is
very informal. Because the convenience of the parties is here.

Because the arbitral tribunal has also been decided by the party. If the sole arbitrator is
there, then the sole arbitrator has also been decided by the party. The venue or seat has
also been decided by the parties mutually.

What will be the rules? What procedure will be followed? That has also been decided by
the parties. Which is not in the court. So you are getting this benefit that all these things
are happening according to you.

But what is not getting the benefit? That arbitration has become court-like in practical
reality today. It took a lot of time. Because the first idea was that time will be saved.

So it has taken a lot of time in arbitration. The second thing is not even cost-effective.
Because the arbitrators have started taking a lot of money.

And a lot of complex system has been done. Almost the arbitrator is mostly a retired
judge. Or a lawyer who has been practicing for many years.

So their mind functions the same way as the lawyers of the court or the judges of the
court. So they have the same system approach that the court has. So this is the practical
reality.

But still there are some benefits. You have seen what are the benefits. A lot of attention
is being paid to the convenience of your parties.

The second is conciliation. Listen to the example of conciliation. This is a conciliator.

This is a conciliator. This is party 1. This is party 2. Both of them have appointed a
conciliator. If there is any dispute between us, then this C, the conciliator will listen.

Now when the dispute happened. So the role of the conciliator is one. You can say that it
will be of the elders of the house.

The role of the arbitrator is exactly like a judge. The role of the conciliator will be like an
elder. Like when there is a fight in your house.

So the fight between the brothers and sisters. So mom and dad do a little role of the
conciliator. Don't do this, don't do this.

You do this, you do that. So there is a proactive engagement of parents. That you don't
have to fight like this.
It's your fault, it's your fault. So it is a little advisory nature. What the conciliator said is
not binding on the parties.

This is just helping the parties to reach an agreement. The parties however are not
obliged and bound by the conciliation. In a sense that negotiations can be carried out
until the parties arrive at a mutually pleasing settlement.

And the conciliator is an active participant. That is, he is constantly intervening. He is

constantly telling who is right, who is wrong.

What should be done, what should not be done. All those things are done by the
conciliator. And when a settlement is told at the end.

So it is up to the parties whether to follow it or not. Both will be happy. Only then will
that thing be implemented properly.

Otherwise it will not be. Is it clear? Yes or no. Now tell me quickly that it is clear.

Yes or no. If it is clear so far, then we will talk about mediation. First tell me the meaning
of arbitration and conciliation.

We have understood. If it has come, then we will go to the third point which is mediation.
Once in short, first understand the difference between arbitration and conciliation.

Arbitration both the parties involved in the dispute choose a person to hear and
determine the dispute. When I did a transaction, during that transaction, I inserted a
clause that if there is a dispute in this transaction, then we will go to this arbitrator. So
when I made the agreement, during that time I also inserted the clause that if there is an
issue in the transaction, then we will go.

And when the issue happened, we went. This is of binding nature and follows the court-
like procedure. Almost court-like.

Not exactly court-like because the convenience of the party is being taken care of. The
venue party decides, the arbitral tribunal party decides, the dates party decides, the
rules party decides. So a lot of parties are making decisions, but the structure, the
system is very court-like.

That is, it is informal in comparison to the court, but it is formal in comparison to

conciliation, mediation and negotiation. Let this line process a little. Listen again,
arbitration is informal if we compare it with the court.

If you compare it with the court, then arbitration has become informal. But if you are
comparing arbitration with negotiation, if you are comparing arbitration with conciliation
and mediation, then arbitration is formal in comparison to them. In all ADR mechanisms,
the most formal structure is arbitration.
But if you compare it with the court, then it is informal in comparison to the court. Then
talk about conciliation. Here conciliation is one and two.

The role of the conciliator, for example, I have given you the role of the parents. When
the children fight, then what is the role of the parents? The same kind of role of the
conciliator is there. It is your fault, it is not your fault, do it well, do it well.

He keeps telling all these things, keep doing interventions. What the conciliator told in
the end, it is not binding to follow it. Now the most confusion that children have is in
conciliation and mediation.

Because there is a very minor difference. There is a very minor difference. There is also
a mediator like a conciliator.

Now how is the mediator different from the conciliator? I gave you the example that the
role of the conciliator will be like an elder or like a parent. Imagine the role of the
mediator like a referee. Listen to the example.

Imagine the role of the mediator like a referee. When two people are boxing, the referee
stands there. It is not that he is stopping, he is doing this, he is doing that.

He is just taking care of some things, facilitating. He is not giving any special advice. He
is doing it to you people, you tell what to do.

For example, there is a dispute between Sahilji and Bateshwarji. If they go to

conciliation, then the conciliator will do a lot of intervention. He will tell you to do this, do
that, do this, do that.

This should be done, that should be done. And in the end, he will also give you a
decision. What you have to follow or not to follow, that is up to you.

But if Sahilji and Bateshwarji go to mediation, then listen to what happens. So here the
mediator will tell them what to do. Sahilji will ask, okay, tell me, then you don't think so.

Bateshwarji, tell me. So that means your engagement is more, the mediator's
engagement is less. Are you understanding? On one side we are giving an analogy of an
elder, on one side I am giving you an analogy of a referee.

So from the analogy of a referee, you have to understand that the referee is only
facilitating you. That you tell your decisions, you tell your talks, you reach a mutual
settlement. The mediator helps you that the parties themselves reach a mutual
settlement.

They will not tell you that you have to do this. You will tell what you have to do. If you
have decided, if you can reach a win-win situation, where you tell that we are reaching
this situation.
Then it is very good. But if you are not able to reach, then the mediation is exhausted
there. Some of its meaning is not able to come out.

So the primary difference between conciliation and mediation is that conciliator is

proactive in conciliation. Mediation is not as proactive as mediator. Proactive in such a
way that it is facilitating parties, calling parties, helping parties to engage.

But in conciliation, the conciliator is also intervening, giving advice, doing a lot of things.
Did you understand yes or no? Tell me quickly. Is it clear so far? The most confusing
thing is conciliation and mediation.

If you understand this, then everything is easy. Just understand that the conciliator
interferes more, is more proactive, also gives advice. Do this, don't do this.

In the end, he also tells you what should happen according to you. In mediation, the
mediator sits like a third person, like a referee. And facilitates you to talk, you guys
engage.

Yes, now it is over. Poonam ji is telling in short. Judicial settlement, Lok Adalat, you know,
is in the pre-litigation stage.

And it has been established by the Legal Service Authority Act. Remember this much,
nothing special is important. Negotiation is different from all this.

No third party sits between the parties. For example, if there is some disagreement
between Sahilji and Bateshwarji, then they will sit together and talk. No third person is
sitting together.

They are sitting together, discussing, discussing, talking that we can reach a settlement
or not. If you can't reach, then you will go to court or you will go to some other
mechanism of ADR. But if you can reach, then it is very good.

So there is no third person here. No third person. Conciliator is proactive.

Mediator is facilitator. You can remember these three words. I have told for conciliator, it
is proactive, it does intervention.

I told for mediator, it is facilitator. There is no third party in negotiation. These are the
types and I hope it has been cleared.

Because it was very important, so I gave it more time. Now let's talk about the statutes,
i.e. what are the laws that deal with ADR. First of all, you must know the section 89 of
CPC.

Settlement of disputes outside the court. The court is telling you that if there is any
dispute, then you settle it outside the court. In this, you have been told whether to settle
through mediation, whether to settle through conciliation, whether to do it through the
local court, whether to do it through judicial settlement.

So this is told in 89 CPC. After that, you will also get CPC order 10. Examination of parties
by court is the order and its rule 1A says.

Direction of court to opt for one of the mode of ADR. What does the court do? Examine
the parties and see after examination that can any mode of ADR be adopted? If it can be
adopted, then go there. If it cannot be adopted, then come back to the court.

If you have gone there and there has been a failure, then it is okay. You come back to
the court. This is order 10.

In addition to this, order 32A which is talking about suit relating to family. In that too,
you will get rule 3 where the duty of the court is that you apply ADR modes. Because the
dispute is family, then in family disputes, we encourage the courts that you settle
outside the court.

Because our judicial system does not want that all family disputes and matrimonial
disputes are in the court. Because their solution can still come out. Unlike criminal cases,
unlike other cases.

So here the court has to put effort for settlement. In addition to this, Arbitration and
Conciliation Act 1996, Legal Service Authority Act through which we have established
Lok Adalat. So these are all statutes.

Now my question will be with you. I want to ask you that there is an article in the
constitution which is talking about ADR mechanism. Which article is that? There is an
article in the constitution which is talking about ADR mechanism.

Which article is that? Because everyone has read the constitution. So you can tell. Ms.
Niharika, you will get the PDF.

I will share it on my telegram channel. The name of the channel is Linking Laws. Ms.
Apoorva.

Quickly, I have asked you a question. I will ask you again. Which article in the
constitution is talking about ADR mechanism? And if you want a little hint, then I will tell
you that it is DPSP.

DPSP. Which one is talking about ADR mechanism? Think quickly. And if you do not
know, then write no, as if I tell you.

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