Historical perspective of alternative dispute resolution.

DEFINITION OF ADR

ADR is Alternative Dispute Resolution and is used as a methods and procedure in order to resolve or sought out the disputes either as an other method as compared to the earlier dispute resolution mechanism of the court or in some cases as supplementary to such mechanism”. In other words, there processes are designed to aid parties in resolving their disputes without the need for a formal Judicial proceedings.

  1. Voluntary Structured Processes.
  2. ADR excludes litigation. Now a days, done along side litigation.
  3. ADR normally involves the presence of an impartial and Independent third party.
  4. Depending upon ADR process, the third party assist the other two parties to reach a decision, or makes a decision on their behalf.

NEED AND IMPORTANCE OF ADR

  1. Prevention of delay.
  2. Lesser formal procedural requirement.
  3. Less Expensive.
  4. Less time consumption.
  5. Swifter and expeditions dispute resolving method.
  6. Lesser burden on courts
  7. Fast track system of dispensing justice.
  8. Arbitration, Conciliation, Mediation Adalats, and negotiation.

HISTORICAL PERSPECTIVE OF ADR

IN ANCIENT INDIA

  • Existence of kings, Monarchs, and Empires.
  • Bhradasnayaka Upanishad – Arbitral bodies.
  • (I) Puga       (ii) The Sreni       (iii) The Kula
  • Panchayats – disputes of contractual, matrimonial, and even of a Criminal nature.
  • Parties are to accept the decision and settlement is mutually binding on them.
  • Ancient Indian Guilds – unique and multifaceted form of organization.
  • Combined the function of a democratic government, a trade union, a court of justice and a technological Institution.
  • Sanskrit writers – Srenya.
  • King would provide the guilds with Judicial functions 4th and 3th Century BC in order to settle the disputes.
  • An appeal to the Royal courts.
  • Disputes between several guilds were settled by means of Arbitration.
  • In the judicial agreement of the state, the guilds occupied a prominent place and performed the duties of a subordinate Judiciary subject to the supervision of Royal Authority.

DISPUTE SETTLEMENT DURING MAURYAN DYNASTY

  • King was the head of justice, the fountain head of law and all matters of grave consequences are decided by him.
  • Decision are taken by a body of Arbitrators, with a system of appeal to the king.
  • At the local levels, there were courts formed by citizens, apart from courts formed by trade guilds and village assemblies.
  • In all important cities and Headquarters, at least one court and one police head office were set up. Beside the functioning of these courts, trifle cases were settled by the elders of the village in their panchayats.

DISPUTE SETTLEMENT DURING GUPTA AGE

  • In Gupta period, the whole empire was divided into separate administrative divisions as Rajya, Rashtra, Desha etc. Gupta king were not used to impose the Complete authority over the subject instead of that believe in sharing of their powers with ministers and other high officers.
  • Large amount of power were transferred to the local bodies such as village panchayats and town councils.
  • This Empire had a distinct Judicial system.
  • Lowest level of the judicial system – village assembly or trade guild. These were the separate council appointed to settle the disputes between the parties that appear before them. Thus, if the people could not reach to any amicable settlement, it was resolved by the councils.

DISPUTE SETTLEMENT DURING MUGHALS

  • The Hedaya contain provisions for Arbitration.
  • In Arabic Arbitration named as “Tahkeem” , while the Arbitrator as “Hakam”. An Arbitrator was required to have the qualities of a Kazee – an official presiding over a court proceedings, and his decision was binding on the parties. The court has the jurisdiction on to enforce such awards given under Sharain though it is not entitled to review the merits of the dispute or the reasoning of the Arbitrator.
  • In Akbar times, Brahmans have the responsibility to solve the matters of Hindus. Akbar and Jahangir allowed subjects to directly Petition them.
  • Villagers resolved their cases in the village courts; itself and appeal to the caste courts or panchayats, the arbitration of an impartial umpire (Salis), or by a resort to force”.

DISPUTE SETTLEMENT DURING MARATHA

  • System stressed on enforcement of the civil suits – emphasis on amicable settlement of disputes.
  • Showed Consideration to the defeated party to ensure good relations between the parties in future.
  • Panchayat first instrument – Civil administration of justice under the Marathas.
  • Every village – patil; Every town –  Shete Mahajan – adjudicate cases of simple and minor nature.
  • The disputing parties were to sign and agreement regarding the abiding of the rules and regulations of the panchayats. It was panchayat to study the case and pass its Judgement impartially and without any bias to any party. Mamlat Das – higher officer in the succession of Judicial administration – should confirm the judgement.
  • In case the parties failed to settle their disputes amicably – move to the Arbitrator and get satisfactory settlement for both the parties.

BRITISH PERIOD

  • ADR mechanism were initiated by East India Company – British Raj.
  • Bengal Resolution Act, 1772.
  • Bengal Resolution Act 1772, 1780, and 1781 were designed to encourage Arbitration.
  • Parties present their case in front of Arbitrator who was appointed by the parties after mutual agreement and the decision of Arbitrator shall be binding upon the Parties.
  • Indian Arbitration Act, 1899 – first substantive law on Arbitration, confined it’s application to the presidency towns of Calcutta, Bombay and Madras.
  • Acts had defects and was subjected to severe Judicial criticism.
  • The Geneva Protocol on Arbitration causes 1923, and the Geneva convention on the Execution of Foreign Arbitral Awards 1927 were implemented in India by the Arbitration (protocol and convention) Act 1937.
  • The Arbitration act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and Section 89 and clauses (a) to (f) of Section 104 (1) and the second schedule of the code of civil procedure 1908.

PITFALL IN ARBITRATION ACT, 1940

  • Act was not meeting the international and domestic standards.
  • Enormous delay and court intervention frustrated the very purpose of Arbitration as a means for expedious resolution of disputes. The delays, which were found to have occurred before regular courts, also found to have got reflected in the Arbitration proceedings under the act of 1940.
  • The Supreme Court in several cases pointed out the need to change the law.
  • The Government of India though it necessary to provide a new forum and procedure for resolving International and domestic Disputes quickly.

POST – INDEPENDENCE PERIOD

  • Industrial Dispute Act, 1947.
  • The United Nations Commission on International Trade Law (UNICITRAL) produced a Model law on International Commercial Arbitration in 1985.
  • In 1989 the Departmental Advisory Committee on Arbitration law recommend that there should be enacted a new act to embody both the existing statutory law on Arbitration and the relevant common principles – the structure and language of the UNICITRAL Model law.
  • After the gap of seven years of this recommendation it was be implemented in the Arbitration and Conciliation Act, 1996.
  • The Arbitration and Conciliation Act, 1996, repealed all existing statutes governing the law of Arbitration.
  • The Arbitration and Conciliation Act, 1996 under part III consistent of commendable features of conciliation for dispute resolution – separation of chapter of conciliation from that of Arbitration has been incorporated with a view to boost the mechanism of ADR system in India.
  • The conciliation has got statutory recognition and became an effective instrument for dispute resolution.
  • The new Act of 1996, brought in several changes to expedite the process of Arbitration – stress upon its non – adversarial objectives.
  • Incorporation of Section 89 of Code of Civil Procedure, 1908, 1st July 2002 as  a part of this mechanism Industrial Dispute Act. Section 10 A, 11 (1956 Amend.) .
  • In dispute arising across national frontiers covering the field of Private International Law. ADR is of special significance to combat the problem of applicability of law and enforcement.

ADR IN MODERN TIMES

In India, there is a serious backlog of cases pending in the Indian Court both at the Supreme Court and the High Court level and it results in delayed in justice to the survivor. So, in order to tackle this situation of pendency of cases in the Indian Courts, ADR plays a very important role in India by its diverse techniques. Alternative Dispute Resolution mechanism comes up with scientifically developed techniques, which helps in lessen the burden of cases on the courts. ADR provides various methods of settlement including, arbitration, conciliation, mediation, negotiation. ADR can work as an alternative to long established litigation method.

CONCLUSION

Alternative Dispute Resolution (ADR) is a great for get the justice. It is because Alternative Dispute Resolution easy to settle out the problem as it is cost effective, speedy, expertise, accessibility, give maximum chances of restoring relationship between parties, simple and flexible procedure involved and less adversarial. In Alternative Dispute Resolution each conflict that happens will get solved with very simple steps. Alternative Dispute Resolution can resolve outside from court.

AUTHOR: Archi Agarwal, Research Board Member.

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