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Alternative Dispute Resolution which is commonly known as ADR is an alternative to the normal judicial process which aims to save time, Energy, money of the litigants which further facilitates speedy justice in the society. ADR is not a new concept for India. Its origin lies in ancient India and practiced as a grass root system called Panchayats. Earlier in villages the senior most members of the society act as a mediator to resolve disputes and to provide equitable solutions to the parties.

The present study has relied upon various research articles, Supreme Court Cases.

Methods which are adopted in the present subject:- 

1. Study of laws, Provisions etc. 

2. Analysis of Supreme Court Cases on Rights of the Child.

3. To make search through internet.

Arbitration

It is a process where disputes are resolved without getting into the procedural technicalities of the court by submitting dispute to one or more arbitrators who makes a binding decision on the dispute. Arbitration can only take place if both the parties agreed to it.

Lok Adalats

Lok Adalats is a system of ADR developed in India. It is a non adversial system whereby court sessions are held by the State Authority, District Authority, Supreme Court legal services committee, High Court legal services committee, or Taluk Legal services committee.

Advantages of ADR

1.  Party autonomy

Parties in ADR have more control over the resolution process. They can choose their mediator or arbitrator, set the schedule and often have more inputs into the final outcome.

2. Confidentiality

ADR proceedings are usually private and confidential, whereas court proceedings are typically a matter of public record. This can be beneficial for businesses that want to keep sensitive information out of the public eye.

3. Less expensive

ADR methods are often less expensive than going to court. They typically involve fewer legal fees, less formal proceedings and quicker resolution.

4. Speedy justice

ADR processes are generally faster than litigation, which can drag on for years. This speed can be particularly advantageous in business disputes or when time is of the essence.

5. Accessibility

ADR can be more accessible to individuals and businesses who may not have the resouces to engage in protracted court battles.

Disadvantages of ADR

1.  No guaranteed resolution

It may not always results in a legally binding resolution. Unlike litigation, where a courts decision is binding and enforceable, ADR methods such as mediation and arbitration rely on the voluntary agreement of the parties involved. If one party decides not to abide by the adr outcomes, enforcing it can be challenging, leading to potential disputes or the need for further legal action.

2. Lack of formal rules

One of the disadvantage of adr is the lack of formal rules and procedures. While this can allow for greater flexibility it can also lead to uncertainity and confusion about how the process will unfold.

3. Delay in resolving the disputes

If the issues are not resolved in adr the parties must opt for the law suit where the court procedure starts from then onwards. Hence there will be lot of wastage of time and also there will be delay in the disputes.

4. Vested Interests may play a role

There is a great chances in adr process that the neutral person  is more favourable to one party than  other. This will lead to partial decision which will eventually effects the principle of fair justice.

Legal Recognition of Alternative Dispute Resolution in India

1. Section 89 of Code of civil procedure

Section 89 of the Code of Civil procedure was introduced with a purpose of amicable, peaceful and mutual settlement between parties without intervention of the court. Section 89 of the Code of Civil Procedure States that:

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.

Section 89 came into being in its current form on account of the enforcement of the CPC (Amendment) Act, 1999 with effect from 1/7/2002.

Order 10 of Code of Civil Procedure

Rule 1A Direction of the court to opt for any one mode of alternative dispute resolution.—

After recording the admissions and denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.

Rule 1B. Appearance before the conciliatory forum or authority.—

Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit.

Rule 1C. Appearance before the court consequent to the failure of efforts of conciliation.—

Where a suit is referred under rule 1A, and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.

2. The Arbitration and Conciliation Act 1996

In India the first Arbitration Act was passed in the year 1899 and then after Arbitration Act 1940.Finally in the year 1996 Government came up with the Arbitration and Conciliation Act 1996 which is in continuance with the recent amendments of 2015 and 2019. The Arbitration and Conciliation Act is a legal framework that governs the resolution of disputes through arbitration and conciliation in India. Some of the key provisions and concept of the Act are as follows-

2.1. Definition of Arbitration

The dictionary meaning of Arbitration is “hearing and determining a dispute between the parties by a person or persons chosen by the parties”. According to section 2(1)(a) 0f the Arbitration and Conciliation Act 1996 , Arbitration  means any arbitration whether or not administered by permanent arbitral institution. This means it is not necessary to be administered by permanent arbitral institution.

2.2 Arbitration Agreement:

For referring disputes to arbitration there must be an arbitration agreement. Section 2(1)(b) of the Act states that “arbitration agreement” means an agreement referred to in section 7;

Section 7(1) says arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. It may be in the form of an arbitration clause in a contract or in the form of a separate agreement. It shall always be in writing .

2.3 Arbitral Tribunal

Section 2(1)(d) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators; Section 11 of the Arbitration and Conciliation Act, 1996 provides for the appointment of arbitrators as per which the parties can appoint persons of any nationality as arbitrators unless otherwise agreed by the parties. It gives liberty to the parties to decide on the procedure for the appointment of the arbitrators.

2.4 Arbitration Proceedings: The Act provides rules and procedures for conducting arbitration, including the presentation of evidence, hearings, and timelines for completing the process.

2.5 Interim Measures and Orders: Arbitrators have the authority to issue interim measures and orders to preserve assets or protect the rights of parties during the arbitration process.

Section 17 of the Act provides for Interim measures ordered by arbitral tribunal. Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. In Section 9 of the Act Court has also power to provide interim measures before or during arbital proceedings.

2.6 Enforcement of Arbitral Awards: Once the arbitral tribunal makes an award, it can be enforced like a court decree. The Act allows for enforcement in both domestic and international arbitration cases. Section 36 talks about Enforcement of Award. Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.

2.7 Challenges and Appeals: The Act provides a mechanism for challenging arbitral awards before the courts, but it limits the grounds on which an award can be challenged. It also allows for appeals to be made in certain situations. Section 37 provides provision for appealable orders. It says an Appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

(a) Granting or refusing to grant any measure under section 9;

(b) Setting aside or refusing to set aside an arbitral award under section 34.

An appeal shall also lie to a Court from an order granting of the arbitral tribunal.—

(a) Accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or

(b) Granting or refusing to grant an interim measure under section 17.

Sub- section (3) provides “No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court”.

2.8 International Arbitration: The Act distinguishes between domestic and international arbitration and incorporates provisions of the UNCITRAL Model Law to facilitate international arbitration proceedings.

Section 2(1)(f) states that “international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is—

(i) An individual who is a national of, or habitually resident in, any country other than India; or

(ii) A body corporate which is incorporated in any country other than India; or

(iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India; or

(iv) The Government of a foreign country;

2.9 Costs: The Act allows the arbitral tribunal to determine the costs of the arbitration, including attorney fees and other expenses.

3. The Legal Services Authority Act, 1987

The Legal Services Authority Act, 1987 is an important piece of legislation in India that was enacted to provide free legal services to the economically weaker sections of society and to ensure that justice is accessible to all. Here are the key points and provisions of the Legal Services Authority Act:

3.1 Objective: The primary objective of the Act is to ensure that justice is not denied to any citizen by reason of economic or other disabilities. It aims to provide equal opportunities for justice to all, irrespective of their financial or social status.

3.2 Establishment of Legal Services Authorities: The Act establishes two types of Legal Services Authorities at the national and state levels:

i. National Legal Services Authority (NALSA) at the national level.

ii. State Legal Services Authority (SLSA) in each state and Union Territory.

3.3 Composition of Authorities: NALSA is headed by the Chief Justice of India, and the SLSAs are headed by the Chief Justices of the respective High Courts. Other members include judges, lawyers, and social workers, all of whom work together to provide legal aid and services.

3.4 Free Legal Aid: The Act mandates that free legal aid and services should be provided to eligible persons, which include those from marginalized and weaker sections of society, women, children, members of scheduled castes and tribes, victims of trafficking, and more.

3.5 Legal Aid Clinics: The Act encourages the establishment of legal aid clinics at various levels, including district and taluk levels, to make legal services more accessible to the needy.

3.6 Legal Services to Victims: The Act provides for legal aid to victims of trafficking and other crimes, ensuring that they receive proper representation and support during legal proceedings.

3.7 Mediation and Lok Adalats: The Act promotes alternative dispute resolution mechanisms like mediation and Lok Adalats (people's courts) to resolve disputes amicably and reduce the burden on the formal justice system.

3.8 Role of Legal Aid Lawyers: The Act specifies the role and duties of legal aid lawyers, including their responsibility to represent clients effectively and ensure that justice is served.

3.9 Funding: The Act provides for funding for legal services authorities, both at the national and state levels, to carry out their functions effectively.

3.10 Awareness and Sensitization: The Act emphasizes the need for creating awareness about legal rights and services among the marginalized sections of society and conducting sensitization programs for the stakeholders in the justice system.

3.11 Review and Monitoring: The Act also establishes mechanisms for monitoring the implementation of legal aid programs and services.

The Legal Services Authority Act, 1987, has played a crucial role in promoting social justice and ensuring that access to legal services is not restricted by economic constraints. It has contributed to making the justice system more inclusive and responsive to the needs of the disadvantaged sections of society in India.

4. The Mediation Act, 2023 -

The Act was passed by the Rajya Sabha on August 1, 2023, the Lok Sabha on August 7, 2023, and was notified in the Gazette of India after receiving the assent of the President of India on September 15, 2023. First introduced in Parliament on December 20, 2021 (“2021 Bill”), the 2021 Bill was then referred to a Parliamentary Standing Committee (“Standing Committee”), which submitted its report to the Rajya Sabha chairperson on July 13, 2022.

The Act is introduced to promote and facilitate mediation as a means of dispute resolution (commercial or otherwise), enforcement of mediated settlement agreements, and to provide for a body for registration of mediators. The Act also aims to encourage community mediation and to make online mediation an acceptable and cost-effective process.

4.1. Applicability

Section 2 of the Act provides This Act shall apply where mediation is conducted in India, and—

(i) all or both parties habitually reside in or are incorporated in or have their place of business in India; or

(ii)  the mediation agreement provides that any dispute shall be resolved in accordance with the provisions of this Act; or

(iii)  there is an international mediation; or

(iv)  wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations and local bodies, including entities controlled or owned by such Government and where the matter pertains to a commercial dispute;

(v) to any other kind of dispute if deemed appropriate and notified by the Central Government or a State Government from time to time, for resolution through mediation under this Act, wherein such Governments, or agencies, public bodies, corporations and local bodies including entities controlled or owned by them, is a party.

4.2. Pre Litigation Mediation

The Act seeks to provide for voluntary and mutual consented pre-litigation mediation between the parties for settlement of any dispute before filing any suit or proceedings of civil or commercial The Act seeks to provide for voluntary and mutual consented pre-litigation mediation nature in any court.

Section 5 of the Act states that whether any mediation agreement exists or not, the parties before filing any suit or proceedings of civil or commercial nature in any court, may voluntarily and with mutual consent take steps to settle the disputes by pre-litigation mediation in accordance with the provisions of this Act: Provided that pre-litigation mediation in matters of commercial disputes of Specified Value shall be undertaken in accordance with the provisions of section 12A of the Commercial Courts Act, 2015, and the rules made thereunder. 

4.3. Mediator

As per Section 8 of the Act The parties shall be free to agree upon the name of mediator and the procedure for their appointment.  If the parties do not reach any agreement , then the party seeking initiation of mediation shall make an application to a mediation service provider for the appointment of a mediator. Upon receiving an application , the mediation service provider shall, within a period of seven days, appoint,—

(i) the mediator as agreed by the parties; or

(ii) in case the parties are unable to reach agreement as to the appointment of mediator or mediator agreed by them refuses to act as mediator, a mediator from the panel maintained by it, with his consent.

4.4. Mediation Proceeding

Chapter V deals with Mediation Proceedings. Section 15 provides The mediation process shall be conducted in the manner as may be specified. The mediator shall not be bound by the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872. The mediator with the consent of the parties shall determine the language or languages to be used in the mediation process. The Act also seeks to conclude the entire mediation in a time bound manner within 120 days which may be extended by a further period of 60 days.

4.5 Enforcement of Mediated Settlement Agreement

As per the provisions contained in the Section 27 of the Act, a Mediated Settlement Agreement will be final, binding and enforceable in the same manner as if it were a judgement or decree passed by the court.

4.6 Online Mediation

The Act allows for pre-litigation meditation to be conducted online under Section 30 thereby eliminating geographical barriers for the parties involved; however, this is subject to the parties ensuring the confidentiality of such mediation.

4.7 Community Mediation

The Act also provides for Community Mediation under Section 43. It states that Any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.

1. Code of Civil Procedure 1908

2. The Arbitration and Conciliation Act 1996

3. The legal services authority act 1987

4. The Mediation Act 2023

5. https://legalaffairs.gov.in

6. https://ghconline.gov.in