Consentia on Multidisciplinary Research

A STUDY ON THE EVOLUTION OF ADVERSARIAL SYSTEM AND THE RISE OF VARIOUS METHODS OF ALTERNATIVE DISPUTES RESOLUTION SYSTEM IN INDIA

INTRODUCTION

Citizens ordinarily sought remedy from courts for adjudication of disputes. But with the passage of time, the court system is becoming outdated. It is often said that our judiciary has come under great stress and is crumbling under its own weight. Alternative Dispute Resolution mechanism is now a widely accepted option to resolve disputes outside Courts.The same is quick, inexpensive, informal and is not bound by vices of procedural laws.

          EVOLUTION OF JUDICIARY IN INDIA

Without the limit of law, the ownership of property would cease and men would contend for their share as the wolves divide their substance. Without restraint of law, the trees might grow and reach above the sky, and without the limit of law, the ambition of man, with his present environment would never cease, till he managed the earth and stood above the sun.  Thus there was an urgent need for the regulation of those conflicting interests with the help of law.[1] In order to control the activities of man, laws were framed and courts were setup for protecting the rights of people and upholding the laws of the country.

Advocacy emerged as a profession with its roots in Europe and Rome where the institution of lawyers were engaged by litigants to represent their case before the court of law. Subsequently, legal profession took its form in other countries such as U.K, U.S.A, Australia etc which have greatly influenced the development of law in India to a large extent.

The genesis of law in India can be studied under the following stages:

  1. Judicial System in Ancient India
  2. Judicial System during the Mughul Rule in India
  3. Judiciary during the British Rule and present Scenario of Judicial System in India.
  4. Judicial System in Ancient India

Indian jurisprudence was found on the rule of law and administration of justice was the foremost function of the State. The view that the kings in ancient India were “oriental despots” who could do what they liked regardless of the law or the rights of their subjects has been refuted by many jurists. Law was considered to be most supreme than the King. The King had the right to rule the country if and only if he fulfilled his duties and the breach of any duty resulted in forfeiture of kingship. [2] Vedic Indian society did not have complex justice system. The plaintiff or defendant was himself allowed to present or defend his case.

The Court presided over by a King was the highest court. There were also others, some of them appointed by the king and others which were people’s courts recognised by the Smritis as having power to administer justice. These were in the ascending order:

i)               Kula (gatherings or family council): This used to be an assembly of impartial persons belonging to the family or caste of litigants, which functioned as Panchayatdars or Panchayat Mandalis and decided disputes among those belonging to the same family or caste.

ii)             Shreni (Corporation): These courts were made of corporations of persons following the same craft, profession or trade.

iii)           Gana (area assembly): These were assemblies of persons who belonged to one place but were of different castes and followed different vocations.

iv)           Adhikrita (courts appointed by the kings)

v)             Nripa( Courts of the King)

Apart from the above, there was the Pratistitha, a court established at a particular village or town. The Apratistitha was a mobile court, which moved from village to village. Court appointed by King and authorised to use the royal seal was called Mudrita and Sasita was the court over which the king presided.[3]

According to Brihaspati, there was a hierarchy of courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court. According to the Arthashastra of Kautilya, the realm was divided into administrative units called Sthaniya, Dronamukha, Khrvatika and Sangrahana (the ancient equivalents of the modern districts, tehsils and Parganas). Sthaniya was a fortress established in the center of eight hundred villages, a dronamukha in the midst of 400 villages, a kharvatika in the midst of 200 villages and a sangrahana in the center of ten villages. Law courts were established in each sangrahana, and also at the meeting places of districts (Janapadasandhishu). The Court consisted of three jurists (dhramastha) and three ministers (amatya).[4]

Law is supreme and it had to be strictly followed by the subjects in ancient India. Dharma prevailed and was laid down by the King and the Brahmanas who were well versed with Vedas and Upanishads. It has been laid down in Manusmriti that “ In the event of necessity to lay down or evolve a new point of law, the matter should be referred to an assembly (parishad) of ten or atleast three who practice Dharma in their day to day life and whatever is laid down by them should be accepted as having force of law” (Ch XII-113). It has further been laid down that “In the absence of so many qualified persons, a Brahmana who is well versed in the Vedas and a true follower of Vedas in day-to-day life is competent to declare the law” (Ch XII-113)[5].

The administration was justice was therefore delegated in order to deliver justice in an organised manner which would consider matters from nook and corner of the state. The King’s Court was considered as “the temple of justice” and people had high regard for the King and his decisions. Justice was solely based on the concept of Dharma in ancient India and the belief “Dharmo Rakhsathi Rakshitaha” was considered as universal truth. It is pertinent to mention here that the king was guided by judges and counsellors who played a vital role in preventing the king from committing any error or deviating from justice and equity. The judges were duty bound to be frank and fearless while pointing out at the mistakes of the King, if any, while delivering any judgments which are against justice and equity. The judges were Brahmins learned in Vedas who had to be impartial, God-fearing, having a control on their temper and leading a righteous life.

Brihaspati says: “A judge should be banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the confidence reposed in him by a trusting public.” A corrupt judge, a false witness, and the murderer of a Brahmin are in the same class of criminals.It was further stated byBrihaspati that “A judge or chief justice (Praadvivaka) who privately converses with a party before the case has been decided (anirnite), is to be punished like a corrupt judge.”[6]

There were two main laws i.e., Arthashastra and Dharmashastra accompanied by customs. The conflict would arise mainly in the interpretation of Arthashastra and Dharmashastra. However, if the conflict could not be resolved, Dharmashastra prevailed.

  1. Judicial System during the Mughul rule in India

The Sultanate period and Mughul period witnessed prominence of administration of justice in India. India was subjected to Mughul rule by members of Barlas Mongol Timurid Dynasty between 16th Century and 18th Century.

The Mughal Emperors were all powerful in administration. The Mughal emperors accepted two primary duties for themselves,Jahanbani (protection of the state) and Jahangiri (extension of the empire). Besides, they tried to generate those conditions whichwere conducive to economic and cultural progress of their subjects. The emperor was the head of the state. He was the law-maker, the chief executive, the commander-in-chief of the army and the final dispenser of justice.[7] Generally, the Muslim law of the Shariat was considered supreme over all persons and causes. Islamic jurisprudence is mainly derived from the Quran and Sunnat.

Babur was the founder of the Mughal Empire. He assumed the title of `Badshaah` which was continued by his successors. Akbar enhanced further the powers of the emperor when he himself took over the power of deciding the Islamic laws in cases of dispute. His ministers and nobles, of course, could advise him but he was the final arbiter in everything. From the time of Akbar, the emperor was regarded as God`s representative on earth. That is why Akbar started practices like Jharokha Darshan and Tula Dan. Even Aurangzeb who was a religious extremist was fully aware of this duty towards his subjects.[8]

Mughal Empire had an efficient system of administration of justice. The courts can be classified as follows:

  1. Courts administering religious law, with the Qazi as the presiding officer
  2. Courts dealing with secular cases, with governors and other officers as presiding officers
  3. Courts dealing with political cases, presided over by the emperor or his agents.[9]

The unit of judicial administration had Qazi-ul-Qazat at the highest level and he was the principal judicial officer. Every provincial capital had its Qazi appointed by Qazi-ul-quzat. A Qazi had to be a Muslim scholar of blameless life, thoroughly conversant with the prescriptions of the sacred Islamic law. Though there were courts of Qazis, lawyers were not employed in those courts.

There were criminal courts with Kotwal who took cognizance of cases. The Amin was expected to help Kotwal in his judicial and police duties. The Faujdar also dealt with criminal cases along with Kotwal. While the Kotwal was in charge of the police department in a town and its suburbs, the Faujdar’s jurisdiction was in the rural areas. The Kotwal had judicial powers to deal with offences particularly with regard to theft etc.,[10]

The plaintiff and defendants had to plead their own case in the mughul court. However, there were certain persons known as vakils who were invested with the authority to act for another but his role was limited to that of a negotiator. In the legal profession, during the muslim rule, there were vakils to argue the case before the court but there was no well defined legal profession as could be found later on during the British period. From the above discussion, it can be inferred that the judicial system during the Muslim period was unscientific, uncodified and was undeveloped which created a huge gap between the king and his subjects. After the death of Aurangzeb, the Mughal Empire collapsed within two generations.

Mughul justice was largely based on facts. Cases were decided quickly and execution were carried out without delay. Judges were knowledgeable and impartial.  Mughul justice was sometimes hasty. It can also be said that Mughul justice was not smooth, orderly, hierarchical and perfect. The Mughul judicial system was slowly removed because of its flaws and was replaced by English Courts. However, it has left an impact on the present judicial system in India.

  1. Judiciary during the British Rule and present Scenario of Judicial System in India.

Legal profession in India is a product of legal system which came into existence with the advent of British rule in India. The organisation and growth of a system of court with the superior court of record at the apex and the trial and district court at the base were introduced with the growth of British power in India.

The establishment of the first British Court at Bombay in 1672 by Governor Gerald Aungier with George Wilcox as the first Attorney General gave a new life to legal profession in India. However, the East India Company discouraged the growth of lawyering and encouraged litigants to manage their own cases and represent their case.

In 1726, a Court of Record called the Mayor Court was setup after King George I granted a charter for the said purpose. The charter also authorised the courts to frame rules of practice, appoint clerks and officers necessary for the administration of justice at Bombay, Madras and Fort William with English as the official language of the Court. The establishment of Mayor Court highlighted the importance of pleading a case as there existed Crown Courts with a right of Appeal to the Governor in Council and then to the Privy Council.  The Charter of 1726 introduced the uniform judicial system in Bombay, Madras and Fort William which were famously known as the Presidency Towns. However, there was no regulation of legal practitioners. This indicated that there was no regulation in legal training and legal profession. Thus in this era of Mayor Court, the legal profession was not paid much attention.

The passage of Regulating Act, 1773 completely replaced Mayor’s Court and provided for the establishment of the Supreme Court in the Presidency Towns in India which were similar to King’s Bench Division Courts of England which administered law and equity. The establishment of the Supreme Court started a new era of judicial system in India.

The Regulating Act, 1773 reveals that the establishment of the Supreme Court brought a new shine in the legal profession. The main advantages of this era were:

  1. For the first time the qualification of Chief Justice and puisne judges was prescribed.
  2. The charter brought recognition, wealth and prestige to the legal profession.
  3. The charter brought a steady flow of well trained barrister and solicitor.
  4. The charter empowered the Court to approve, admit and enrol advocates and Attorney to plead and act on behalf of suitors.
  5. The charter gave the Court authority to remove lawyers from the roll of the Court.
  6. The Charter prohibited those practitioners who were not properly admitted and enrolled.
  7. Charter employed the Supreme Court to settle the table fees to be allowed to such sheriff and other officers, clerks and attorneys for all or every part of the business to be done by them.[11]

While the Presidency Towns had the Supreme Court for administration of justice, the East India Company established Civil and Criminal Courts in Bengal, Bihar and Orissa. The civil court was known as Sadar Diwnani Adalat and the Criminal Court was known as Sadar Nizzamat Adalat. Vakils practicing before the Mughul Courts appeared before these Courts. Legal practice by vakils was unorganised and unregulated.  There was an urgent need for organization and control of law as a profession which was brought forth by Bengal Regulation of 1793 which regulated the appointment of vakils or native pleaders, their qualifications, conduct etc., and empowered the Sadar Diwani Adalat to enrol pleaders and to fix fees. Only Hindus and Muslims could be enrolled as pleaders.  Several rules were laid down to regulate the profession concerning receiving of retainers, execution of Vakalathnama and fees. Bengal Regulation also provided for punishment of legal practitioners by fine, suspension and dismissal for disrespect of court, fraud, wilful delaying of cases etc. Thus, Bengal Regulation created a foundation for an organised legal profession where only Hindus and Muslims were allowed to be enrolled as pleaders.

The Legal Practitioners Act brought a change in the legal setup of India. This Act gave an opportunity for the Barristers and Attorneys to be admitted as pleaders in the Company’s Courts, who were previously not entitled to practice before the Court, Subsequently vide Government of India Act, 1858, the Crown took over the charge from East India Company. The East India Company stepped towards a unified Judicial System by bringing an end to the existence of Mofussil Courts and Royal Courts in Presidency Towns. A special mention about the Legal Practitioners Act, 1879 has to be made here as it consolidated and amended law relating to legal practitioners and empowered the government of every other province to extend the provisions of the Act to provinces as well in cases of necessity. Further, it regulated the functions of legal practitioners and made provisions regarding their discipline and control.[12]

Sufficient improvement had been done but the legal profession was still not free from blemishes, one of them being the distinction between the Barristers and Vakils which was sought to be removed. The Indian Bar Council Act, 1926 was enacted in order to deal with the same and this facilitated the setting up of a unified Bar and also the establishment of a separate Bar Council for every High Court. No doubt, the Indian Bar Council Act, 1926 was a stepping stone towards a regulated Bar in India but the same was not without loopholes. Several attempts were made by means of private bills in the Legislature to promote reform but they remained unsuccessful.

The All India Bar Committee under the Chairmanship of Justice S.R. Das was constituted in 1953 and a Law Commission presided over by Attorney General of India Mr. M. C. Setalvad  was setup which proposed a unified all India Bar and the establishment, composition and functions of the state and All India Bar Councils. Subsequently, the Advocates Act, 1961 was enacted in order to implement the recommendations of the All India Bar Committee and of the Law Commission. The Act provides for the unification of the Bar and also the autonomy of the Bar. The Act provided for the distinction between advocates and senior advocates and the same was alleged as unconstitutional and attracted Article 14 of the Constitution. However, in J.R.Parashar v. Bar Council of India[13] the Delhi High Court rejected the contention and held that such distinction was not discriminatory.      

ADR during the British Rule in India

British rule contributed not only to the establishment of an organised judiciary in India but also introduced India to Alternative Dispute Resolution mechanisms such as Arbitration, Conciliation etc. The commencement of Bengal Regulation Act of 1772 led to the introduction of arbitration in India. Parties to a dispute relating to accounts etc could put forward their cause to arbitration, the award of which was converted into a decree of court of law. Additional changes were made in the Bengal Regulation Act in the years 1781 and 1782 which provided for the setting aside of arbitration awards on grounds of corruption or bias. The Governments of Madras and Bombay gave the power to Panchayats to resolve disputes by arbitration vide the Madras Regulation of 1816 and Bombay Regulation of 1827 respectively.

Further, the Civil Procedure Code of 1859 included arbitration under Chapter VI of the code. The Civil Procedure Code of 1859 was repealed and replaced by the Act of 1882 which was further replaced by the Code of Civil Procedure, 1908.

Arbitration and mediation in India have been in vogue since times immemorial. Arbitration was governed by the provisions contained in different enactments, including the provisions contained in the Code of Civil Procedure, 1908. The first Indian Arbitration Act enacted in 1899 was replaced by the Arbitration Act, 1940 which in turn was replaced by the Arbitration and Conciliation Act of 1996. The mediation of informal nature was being adopted at the village level to resolve petty disputes from times immemorial.[14]

The Present Scenario of the Judiciary in India

Every judicial system consists of two components- first a framework provided by law and second- the judges who work within the system. It has to be noted that even if the judicial system is perfectly structured, there may not be effective justice delivery system if the persons working as judicial officers do not have operational skill or are not enthused to deliver robust substantial justice. Thus the image of judiciary depends upon the persons who administer the laws than on the law they administer.[15]

Though legal profession is considered as a highly ethical and noble profession and a profession of great honour and dignity, the members of this profession are not held in high esteem. The profession has turned into a commercial organisation devaluing learning as such in its process and service to society is no more the motto with moral and ethical values vanishing.  But the trust and confidence of people in the judiciary to deliver true, fearless and impartial justice, which is the foundation of democracy and the bedrock of every civilised society is still keeping the legal profession and the judiciary alive. Judiciary has enjoyed immense public confidence. People have considered judiciary as the guardian of their rights and liberties.

For the above reason, the society and the law demands a very high standard of conduct, ethics, temper, courtesy, humility, integrity and fairness from the members of the judiciary. The delicate nature a judge’s duties requires certain degree of aloofness to be maintained by the judges, be they members of the higher judiciary or the lower judiciary. The seat of judges demands the highest quality of conduct, learning, dignity and character. The law and society expect from the holder of the high seat of justice to maintain high conduct as a rule, a tradition of isolation and aloofness.

The act of administering justice is considered to be a divine function and judiciary is designed to a service of great honour and dignity, but realism demands that we must acknowledge and not remain unaware of the fact that there has been a slow and gradual shrinkage of the image of the judiciary. In the recent era this great institution of justice has been under constant attacks. Therefore, it comes to be felt that the health of the judiciary is steadily deteriorating. This is a symbol of danger, because if people lose faith in the justice dispensed to them, the entire democratic set-up may crumble down.

Delay in justice is a perennial problem of Indian legal system, which is foremost responsible for affecting the image of the judicial wing of the Indian government. With the rapid increase in legislation targeted to fulfil the constitutional objectives, the pendency in courts has increased enormously. Even the Supreme Court of India is not immune from delays. The denial of justice through delay is the biggest mockery of law, but in India, it is not limited to mere mockery, the delay in fact is killing the entire justice dispensation system of the country.

One of the apparent reasons for delay in justice is the readiness with which adjournments are granted by courts and the determination with which advocates drag on cases for long years sometimes, even decades. Sometimes judges of superior courts retire or secure transfer without pronouncing pending judgements. Thus, the backlog may be partly blamed on the judges themselves who listlessly listen to hours of arguments, allow months and years of adjournments, on matters that would be disposed of in a fraction of the time period in the US and the U.K. There are subordinate courts where adjournments are liberal and there are no cases to hear in the afternoons. Further, there are infrastructure issues also that add up to the delay in delivering justice.

Justice P.N Bhagwathi opined that “There are a large number of cases pending in the subordinate courts of District Judges, Civil Judges and Munsiffs. It is not possible to cope with this large inflow of cases in the sub-ordinate courts unless and until we bring about structural changes, but even within the existing system, we can do much if we improve the salary and conditions of service of our sub-ordinate judges and provide them with better working conditions. We are unable to attract good talent in the subordinate judiciary because of rather poor remuneration system and unsatisfactory conditions of service of subordinate judges.  We do not have enough number of judges in the subordinate judiciary in many of the states nor do we have enough number of courts. The subordinate judges in quite a few states have no housing facilities and they have to depend on lawyers and sometimes the litigants to obtain housing accommodation and that too at an exorbitant rent which they can hardly afford. There are not even proper court buildings at many places. Moreover we do not give to our subordinate judges pre-appointment training or continuing in service training. We proceed on the assumption that as soon as they are appointed as subordinate judges, some divine wisdom descends upon them and they acquire skill and capacity to deliver justice. The reason for all this is that in many of the states, administration of justice has a low priority. When finances are needed for the purpose of improving the judicial system at the lower levels, there is reluctance to make such finances available. We do not seem to realise that it is subordinate courts which form the basis of the pyramid of justice and unless the base is strengthened, the pyramid is bound to crumble. It is often forgotten that the contact of the common man with the justice system occurs only at the level of subordinate courts; he has rarely occasion to go to the High Court and therefore, if we want to inspire confidence in the common man that he can get justice, it is imperative to strengthen the subordinate judiciary. There is also lack of appreciation on the part of many, that if there is a strong subordinate judiciary, the number of appeals to the High Courts will go down and the burden on the High Courts will be considerably reduced.”[16]

The number of cases pending in 2011 before the High Courts and Subordinate Courts were around 3.2 Crore while 56,383 cases were pending in the Supreme Court.[17] It is pertinent to mention here that the number of cases pending before the Supreme Court has gone up to 66,349 as on 01.01.2014.[18] The need for reducing the burden on courts and speedy disposal of cases is the need of the hour. Hence there was a need felt for alternative means for achieving the said purpose and the litigants desired to settle their disputes outside courts. This led to the adoption of Alternative Disputes Resolution (ADR) mechanisms such as Arbitration, Conciliation, Mediation, Negotiations, Judicial Settlements including Lok Adalat.

         

 

          ALTERNATIVE DISPUTE RESOLUTION AS A SUPPLEMENT TO LITIGATION

Courts in most of the developing countries in the world are currently confronted with serious crises such as delay in the resolution of the disputes and particularly the delay in disposal of the commercial and other civil matters. Civil litigation in India is notoriously known for pendency of cases flooded by adjournments, revisions, appeals, cross- appeals etc. On an average, a civil litigation takes 5-8 years for its final disposal. This has eroded public trust and public confidence in the justice delivery institutions. It obstructs economic growth, development and social justice to the citizens in a country. One of the causes for such backlog of cases and the delay in disposal of the cases is due to loop holes in procedural laws. In Surjeet Singh & others v. Harbans Singh & others[19] the Supreme Court expressed its anguish for long delay as the case was lying pending in civil court at Patiala since 1948 with no sight of its finalization. The search for a simple, quick, flexible and accessible dispute resolution system which would curb the delays of the court has resulted in the adoption of Alternative Dispute Resolution mechanisms.

Alternative Dispute Resolution is an alternative to the traditional process of dispute resolution through courts. It refers to a set of practices and techniques to resolve disputes outside the courts. It is mostly a non-judicial means or procedure for the settlement of disputes. Alternative dispute resolution mechanisms principally consist of mediation, negotiation and arbitration as techniques for resolution of disputes by the consenting parties. The purpose of ADR is to resolve the conflict in a more cost effective and expedited manner, while fostering long term relationships. ADR is usually less formal, less expensive and less time-consuming when compared to litigation. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution and at the same time come to an amicable settlement.

The preamble to the constitution of India promises to secure socio-economic and political justice and equality of status and of opportunity to all the citizens. Art. 39-A contains a directive principle which holds that the state will ensure that the legal system operates in a manner so as to promote justice to all and to ensure that no citizen is denied the opportunities of securing justice by reason of economic or any other disability.[20] ADR tries to achieve the Directive Principle of State Policy relating to equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution of India. Legislations such as Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987 deal with the same. Section 89 of the Code of Civil Procedure, 1908 makes it possible for ADR proceedings to take place in accordance with the legislations stated above.

          Various ADR Mechanisms Adopted In India

In a country, which aims to protect the socio-economic and cultural rights of citizens, it is extremely important to quickly dispose the cases in India, as the Courts alone cannot handle the huge backlog of cases. This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution. In ancient times, the responsibility of resolution of disputes was in the hands of powerful individuals such as Kings or on the shoulders of wise groups such as Panchayats. The foundation of ADR in India was laid down in mid 1990 after the influence of U.S.A. In 1988, the 11th Law Commission vide its 129th Report recommended for mediation as alternative to adjudication to manage urban litigation. In 1990, the 12th Law Commission vide 137th Report felt the need for creating an office of Ombudsman.[21] These acted as a step towards adopting ADR mechanism in India. Methods such as Arbitration, Conciliation, Mediation, Lok Adalat, Judicial Settlement etc. are practiced widely in India for reaching an amicable conclusion and resolving disputes outside courts. Negotiation is almost always attempted first to resolve a dispute which allows the parties to meet in order to settle a dispute.

The Malimath Committee underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.[22] Dispute resolution in India through alternative means is the need of the hour. The docket explosion in courts is reaching its peak. In order to avoid becoming the victim of delayed justice, litigants are choosing alternative means for resolving their disputes, some of which are explained in detail hereunder.

  1. Negotiation
  2. Mediation
  3. Conciliation
  4. Arbitration
  5. Lok Adalat
  6. Section 89 CPC

 

  1. NEGOTIATION

Negotiation is a non-binding process involving direct interaction of the disputing parties wherein a party offers a negotiated settlement drawn on an objective evaluation of both the parties. Objectivity and willingness to reach at and accept a negotiated settlement on the part of both the parties are indispensible needs of a successful negotiation. John F. Kennedy said   “Let us never negotiate out of fear but let us never fear to negotiate”.

Negotiation is a communication based technique which is voluntary and non-binding on the parties.  Negotiation means mutual respect of interests. There are a wide range of possible solutions which are swift, economical, private and uncomplicated. The parties have a greater control over the procedure and final outcome.

The negotiator adopts strategies and tackles other party’s interests. A good negotiator, from the opening move, can visualize the end result and also understand the range of the opponent from his opening step. The art and heart of negotiation is to treat rival as neighbour or brother and making it difficult for the opponent to break the relation on account of small things by generating an atmosphere of empathy over a cup of coffee or a business lunch.[23]  This is also known as BATNA (Best Alternative to a Negotiated Agreement) where the best deal of settlement is achieved by negotiations.

Negotiation can be conducted in any of the following manner:

  1. Direct Negotiation

According to this concept, negotiation is a discussion between two or more disputants who are trying to work out a solution to their problem.  Parties sit together and discuss the issues with open mind without a third party intervention. One of the disputants acts as a negotiator who will initiate ways of settling the dispute and coming to an amicable solution acceptable by both the parties.

 

  1. Triadic Negotiation

Negotiation by a negotiator who as a friend or well-wisher comes forward himself to settle the disputes amicably between the disputants is known as triadic negotiation.

 

  1. Positional Negotiation

Under this kind of negotiation, it is believed that negotiations are a competitive game in which the aim is to outsmart the other party by following well-known tactics which strengthens the likelihood of a person getting a greater slice of pie.  The aim of positional negotiation is to maximise one’s outcome.

 

  1. Principled Negotiation

This kind of negotiation suggests that one can avoid the gamesmanship and competitiveness inherent in positional negotiation method. The key is to look for settlement that will satisfy both the parties interest by keeping a clear sight on one’s best alternative to a negotiated agreement and on options for mutual gain.[24]

Negotiation is flexible and informal and provides abundant scope for a party to direct the proceedings to suit the part’s convenience. For instance parties are free to choose place, timing, agenda, subject matter and the participants. It is quick, inexpensive and less cumbersome than other dispute resolution methods. It protects the personal and business secrets. A negotiated settlement is conducive for preserving relations between parties and to avoid unnecessary anguish and expense. The drawback of negotiation is that a negotiation agreement is unenforceable because it lacks certainty. Negotiation involves a lot of flattery, bluff, arguments and intimidations.

  1. MEDIATION

Courts, with their traditional adversarial procedures are not always the best mechanism for solving minor disputes. At least for minor conflicts, the need of the time is to develop non-traditional procedure and the dispute resolution institutions, which do not rely upon adversary proceedings. Mediation is a better alternative dispute processing mechanism mainly for minor family disputes. It is a process by which a third person attempts to resolve a dispute by creating an environment of empathy and openness in the hope of assisting the parties to understand each other’s position and effect an agreement between them. Of the several ADR processes, mediation seems to be the most widely used one.

According to WIPO, “mediation is a non-binding procedure in which a neutral intermediary, the mediator, assists the parties in reaching a settlement of the dispute.”[25] In mediation, there is a third party called a mediator who facilitates the resolution process. Mediation provides an environment for principled negotiation.[26] Mediations sometimes lead to a lot of disagreements and heated arguments but mediator’s role helps the parties to move forward with mediation.

Mediation gives an opportunity to the parties to evaluate the alternatives and weighing them against the likely outcome of going to trial. Mediation enables the parties to settle the dispute in a manner acceptable to the parties. The threat of being a part two tier or three tier litigation is eliminated.

Stages in Mediation

The following are considered as the stages in Mediation:

  1. Selection of Mediation Centre
  2. Execution of Contract in Mediation
  3. Furnishing of information and correspondence
  4. Meeting of the parties
  5. Familiarising mediator with facts about the dispute
  6. Gathering information
  7. Facilitating negotiations
  8. A stage of Impasse
  9. Termination of mediation
  10. Post termination stage.

 

Who is a Mediator?

Mediator is a facilitator who may, in some models of mediation, also provide a non-binding evaluation of the merits of the dispute, if required, but cannot make any binding adjudicatory decisions. A mediator is expected to be understanding, impartial and trust-worthy who will keep the information confidential. Mediator assists each of the parties to independently develop a list of all their objectives and tries to bring a solution favourable to both the parties. Mediators are negotiators, experienced lawyers or business people having received specialised mediation training.

 

Highlights of Mediation

Mediation deals with the root causes of the problems or conflicts. Settlement through mediation is enables the parties to think about the main reasons of dispute. It improves the communicative capacity of the parties helping them to speak about the main problem. Mediation is voluntary. It allows the disputants to solve their problems themselves.

Mediators are considered as friends and the mediator makes sure that the disputes are settled in a friendly manner and disputants part as friends and not rivals. Mediators attempt to reduce social conflict before it escalates into violence. Mediation is faster, less expensive and better than adjudication before the court of law. The best aspect of mediation is that there is no winner or looser as in the court decisions. Both the parties are always winners.

Mediation may be any of the following:[27]

i)               Private Mediation

The parties may decide to go to a mediator in order to settle their dispute. This may be done by the parties without any compulsion from anybody. This is called Private Mediation.

ii)             Court-annexed Mediation

It means mediation ordered by or arranged through a State court and undertaken by a judicial officer or by a mediation centre approved by the court.

 

iii)           Co-mediation

Mediation by two or more mediators who may be from the same or different disciplines or share different tasks within the mediation or both is co-mediation.

 

iv)           Med-Arb

Mediation-Arbitration is a binding procedure where parties agree to settle their dispute first by attempting mediation within a specified time, failing which by arbitration. Unlike non-binding mediation, the mediator becomes an arbitrator and renders an enforceable decision following the mediation process on all issues where the parties fail to reach an agreement. Med-Arbitration thus blends negotiation, arbitration and mediation.

In the judgment of the Supreme Court of India in Salem Bar Association vs. Union of India[28], the Supreme Court has requested to prepare model rules for ADR and also draft rules of mediation under section 89(2)(d) of Code of Civil Procedure, 1908. The rule is framed as “Alternative Dispute Resolution and Mediation Rules, 2003”.

Mediation is the dispute resolution method which most of the parties adopt as it is less expensive and less time consuming. Mediation also keeps the parties away from the hassles of the court. Though there are a lot of merits in mediation as an alternative dispute resolution it is not free of any disadvantages. One of the demerits is that the recommendations by the mediator to the parties are not binding. The success of mediation completely depends upon the will of the parties to settle the dispute.

  1. CONCILIATION

Conciliation may be described as the method by which the parties to a dispute use the services or take assistance of a neutral or impartial third person or institution as a means of helping them to reduce the extent of their differences and to arrive at a amicable settlement or agreed solution. The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation rules by the General Assembly in order to apply these rules in cases where a dispute arises in the context of international commercial relations where the parties seek the aid of conciliation to resolve disputes. It is pertinent to mention here that Part III of the Arbitration and Conciliation Act, 1996 dealing with Conciliation is in accordance with the UNCITRAL Conciliation Rules.

According to Article 1.3 of the UNCITRAL Model Law on International Commercial Conciliation, 2002, “Conciliation means a process, whether referred to by expression, conciliation, mediation or expression of similar import, whereby parties request a third person or persons (the conciliator) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The Conciliator does not have the authority to impose upon the parties a solution to the dispute.[29]

Who is a Conciliator?

Conciliation is a voluntary, non-judicial, speedy and a confidential process. The unique character of conciliation is its flexibility, informality and simplicity. A conciliator is a neutral or impartial third party who assists the disputing parties in mutually reaching an agreed settlement of the dispute. He does the same in an independent and impartial manner.

A conciliator should also have knowledge in the following areas:

  1. General Laws;
  2. Causes and patterns of dispute;
  3. Negotiating procedures and practices and
  4. Human Resource Management.[30]

KINDS OF CONCILIATION[31]

An analysis of the above mentioned definition reveals that there can be two approaches to conciliation. The same is explained hereunder:

  1. Facilitative Conciliation

The conciliator under facilitative conciliation does not recommend solutions but only facilitates mutually agreeable settlements. Opinions and judgments are shunned and assistance for parties to clarify their communications, interests and priorities is given. The Conciliator helps the parties to explore possibilities of enhancing the mutual interests of the parties.

  1. Evaluative Conciliation

Here, the conciliator recommends resolutions or offers persuasive opinions on key issues. The Conciliator expresses his opinion on merits of the issue in dispute and tries to bring the parties to an amicable settlement.

  1. Voluntary Conciliation and Compulsory Conciliation

Conciliation may be voluntary or compulsory. In voluntary conciliation, the disputes are referred to a conciliator by the disputing parties of their own free will without any compulsion of law. On the other hand, under compulsory conciliation, the disputes are referred to a conciliator for a settlement under the compulsion of law.  For instance, Industrial Disputes are referred for Conciliation in the first instance under the Industrial Disputes Act, 1947.

 

STAGES OF CONCILIATON

The process of Conciliation passes through the following stages:

  1. Submission of statement of dispute by the parties
  2. Assistance by the conciliator in negotiations
  3. Settlement proposal by the conciliator
  4. Attendance of meetings by parties
  5. Formulation and submission of terms of possible settlement
  6. Reformulation if necessary
  7. Agreement for settlement and drawing up of settlement agreement

The Settlement Agreement as regards its legal effect is equal to an arbitral award on agreed terms. It can be treated as a decree of the Court and shall be enforceable as such if one of the parties does not unilaterally terminate the conciliation proceedings.

Provisions dealing with Conciliation under the Arbitration and Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 under Part III provides for Conciliation of disputes between parties. A brief note of the important provisions dealing with the same is mentioned hereunder:

Section 61 of the Arbitration and Conciliation Act, 1996 provides for application of Part-III of the Act to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.

Section 62 of the Act provides for commencement of conciliation proceedings. Section 63 provides for the number of conciliators and Section 64 provides for the appointment of conciliators. The parties may submit brief written statement describing the general nature of the dispute and the points at issue with a copy of such statement to the opposite party under Section 65 of the Act. It has to be noted that the provisions of the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 are not binding upon the conciliators as per the provisions of Section 66 of the Act.

The conciliator assists the parties in an independent and impartial manner in their attempt to arrive at an amicable settlement of their dispute. The conciliator is guided by the principles of objectivity, fairness and justice by taking into account the rights and obligations of the parties. The conciliators are free to conduct the proceedings, by taking into account, the circumstances of the case and willingness of the parties, including any request by a party that the conciliator should hear oral statement requiring speedy disposal/ settlement of the dispute.

The conciliator is free to make any proposal for settlement of dispute at any stage under Section 67 of the Act. Section 75 of the Act provides that the proceedings before conciliator shall be confidential. The parties shall keep all matters relating to the conciliation proceedings as confidential. The agreement is also confidential except where its disclosure is necessary for the purposes of implementation and enforcement of the settlement.

Section 73 empowers the conciliator to formulate the terms of a possible settlement and submit the same to the parties for their observance. On observance, if the parties agree, a written settlement agreement may be signed. The settlement agreement shall be final and binding on the parties and their representatives. The conciliator shall authenticate the settlement agreement and furnish a copy of such agreement to each of the parties under Section 73 of the Act.

The main drawback of Conciliation is the unilateral termination of conciliation proceedings which haunts the party who desires to settle the dispute against the notorious party. Further, the enforceability of the Settlement Agreement is dependent upon the acceptance and signature of the parties on the agreement. Industrial disputes, commercial disputes, consumer disputes etc can be conciliated.

  1. ARBITRATION

Arbitration is a method of settlement of disputes by which parties to dispute get the same settled through the intervention of a third person called the arbitrator without having recourse to the court of law. In the present globalised world, all business transactions have arbitration clauses in trade agreements and employment agreements also carry arbitration clauses.

With the advent of British rule in India and codification of laws, the provisions regarding arbitration were first contained in the Code of Civil Procedure of 1859. These provisions were in operation when the Indian Contract Act, 1872 came into force, which permitted settlement of contractual disputes by arbitration under Section 28 thereof. The Arbitration Act, 1899 was the first Indian Act, exclusively dealing with Arbitration, but that Act applied only to the Presidency towns of Calcutta, Bombay and Madras. For the rest of British India, law and procedure laid down by the Code of Civil Procedure, 1882 applied and after 1908, the new Code (enacted in 1908) was made applicable. It was in the year 1940 that the law of arbitration was consolidated and amended and an exhaustive code on the law of arbitration was enacted in the form of The Arbitration Act, 1940 (Act 10 of 1940).[32]

In our country, the statutory provisions on arbitration were contained in three different enactments i.e. the Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration Act, 1940 laid down the framework within which domestic arbitration was conducted in India, while the other two Acts dealt with foreign awards.  In order to consolidate and amend the law relating to domestic and international commercial arbitration, enforcement of arbitral awards and law relating to conciliation, the Arbitration and Conciliation Act, 1996 was enacted after repealing the Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on international commercial arbitration of 1985.

Arbitration may either be ad hoc or institutional. The Arbitration and Conciliation Act, 1996 recognizes the autonomy of the parties in the conduct of arbitral proceedings. It saves the time and money of the parties to dispute. A significant feature is the provision relating to the appointment of arbitrators by the Chief Justice of India (i.e. the Chief Justice of the Supreme Court of India) or the Chief Justice of a High Court or their nominees when the parties are not in a position to agree on a procedure for appointment of arbitrators. Further, the arbitrator in his arbitral award has to give reasons for passing an award. This thereby promotes transparency.  Yet another prominent feature of this Act is that it provides for finality of arbitral awards and will be enforced as if it was a decree of the court. Arbitration is widely accepted mode of dispute resolution mechanism especially in disputes relating to commercial dealings.

 

  1. LOK ADALAT

The Lok Adalat originated from the failure of the Indian legal system to provide fast, effective, and affordable justice.[33]  Lok Adalats is less expensive, less speculative, less glamorized, more participatory, more resolutions oriented or dispute solving mechanisms that work to serve the purpose of justice with humanity in mind.

By the 1980s, Lok Adalats had become increasingly publicized and important in dispute settlement.  The Legal Services Authorities Act, 1987 provided free and competent legal service to the “weaker” sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to see that operation of the legal system promotes justice on the basis of equal opportunity. This was to uphold Article 39 A of the Constitution of India. This was to uphold Article 39A of the Constitution of India. This statute also gave statutory authority to Lok Adalats, based on the practice of panchayats. Under this system, Lok Adalats are available at both the pre-litigation and litigation stages of dispute resolution.  This was made possible by the recent amendments to the Code of Civil Procedure, 1908 by including Section 89 in the year 2002.

In Lok Adalats, parties give their consent for the matter to be referred to Lok Adalat. The Lok Adalat comprises of a sitting or retired officer or any other person of repute who may be appointed by the State Government in consultation with the Chief Justice of the High Court. If the matter is not settled in the Lok Adalat then the same is referred back to court for adjudication. However, if the dispute is settled in Lok Adalat, the Court fees will be refunded.

Benefits of Lok Adalat

The following are considered as benefits of Lok Adalats:

  1. There is no Court Fee
  2. Direct consultation with a judge without procedural hassles
  3. Binding nature of Lok Adalat proceedings. 

 

Scope of Lok Adalat

Lok Adalats have been successful in the settlement of various types of claims, including: motor accident claims, matrimonial and family disputes, labour disputes, disputes relating to public services, bank recovery cases, partition suits etc.

ROLE OF SECTION 89 OF CIVIL PROCEDURE CODE IN PROMOTING ADR

The concept of employing ADR has undergone a sea change with the insertion of Section 89 of CPC by amendment in 2002. The courts also encourage the parties to use an ADR procedure in appropriate cases. The Governments including Central Government are committed to settle their legal disputes out of the court by ADR methods whenever the other party agrees for it. Normally ADR is an alternative way of settlement of the disputes or issues. ADR is simple, cheaper, quicker and less stressful to all parties, in comparison to adversarial litigation.

Section 89 of CPC lays down 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 observations 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 has been referred – (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 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 (39 of 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 (39 of 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 effect a compromise between the parties and shall follow such procedure as may be prescribed.

CONCLUSION

ADR is quicker, cheaper, user-friendly than courts. It gives people an involvement in the process of resolving their disputes that is not possible in public, formal and adversarial justice system. It offers choice of method, procedure, cost, representation and of location.

In order to facilitate smooth ADR mechanisms the following have to be kept in mind. They are as follows:

i)          Creation of awareness and popularizing the methods is the first thing to be done. NGOs and the media have prominent role to play in this regard.

ii)        For Court- annexed mediation and conciliation, necessary personnel and infrastructure shall be needed for which government funding is necessary.

iii)      Training programmes on the ADR mechanism are of vital importance. State level judicial academies can assume the role of facilitator or active doer for that purpose.

[1] Dr. Rajneesh Kumar Patel, “Administration of Justice in India- Ethics and Accountability”, Deep and Deep Publications Pvt. Ltd (2011), p.15.

[2] Justice S.S. Dhavan, “The Indian Judicial System – A Historical Survey”, http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf, p. 1

[3] B.R Agarwala, “Our Judiciary”, National Book Trust, New Delhi (1993), p. 5

[4] Supra at note 8, p.2

[5] Justice M. Rama Jois, “Ancient Indian Law- Eternal Values in Manu Smriti”, Universal Law Publishing Co. Pvt Ltd, Delhi (2010), p124

[6] Supra at note 8, p.3

[7] “Adminitration of Mughul Dynasty”, http://www.indianetzone.com/47/administration_mughal_dynasty.htm, p.1, last updated on 31.01.2012

[8]  Supra at note 8, p.1

[9]Supra at note 9, p 23

[10] Supra at note 9, p 29

[11] Supra at note 7, p.45

[12] Singh, M.P, Outlines of Indian Legal and Constitutional History, Universal Law Publishing Company, Delhi  (2010), p.173

[13] AIR 2002 Del 482

[14] http://lawcommissionofindia.nic.in/reports/report238.pdf

[15] Supra at note 7 p.122

[16] Supra at note 6, p.80

[17]http://articles.timesofindia.indiatimes.com/2011-12-20/india/30537308_1_subordinate-courts-pendency-crore-cases (last visited on 26.01.2014)

[18]http://supremecourtofindia.nic.in/pendingstat.htm (last visited on 26.01.2014)

[19] AIR 1996 SC 135

[20]http://astrealegal.com/alternative-dispute-resolution-in-india, p.1 (Last visited on 27.01.2013)

[21]R.D.Rajan, “A Primer on Alternative Dispute Resolution”, Barathi Law Publications, Tirunelveli (2005), p.398

[22] Supra at note 26, p.1

[23] Supra at note 6, p.18

[24] Karl Mackie, David Miles, William marsh, Tony Allen “ The ADR Practice Guide- Commercial Dispute Resolution”, Tottel Publishing Ltd, West Sussex (2007), p.24

[25] Supra at note 27, p. 277

[26] Supra at note 11, p.19

[27] Supra at note 27, p.294

[28]  (2005) 6 SCC 344

[29] Supra at note 27, p.229

[30] Supra at note 27, p.234

[31] Supra at note 27, p.230

[32] Jal Cooper, “ Developments In ADR in India”, http://www.ideaindia.com/developments-in-adr-in-india/p/1993/, p.1

[33] Girish Patel, Crippling Lok Adalats, India Together, Dec. 2007. Available at: http://www.indiatogether.org/2007/dec/hrt-adalat.htm.

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