Resolution Of Disputes Through Private Dispute Resolution Processes - A Critical Study

Author: LawSphereX

Category: Arbitration & ADR

Published: 2026-08-23T20:56:01.921222+00:00

Updated: 2026-08-30T07:05:04.961Z

RESOLUTION OF DISPUTES THROUGH PRIVATE

DISPUTE RESOLUTION PROCESSES: A CRITICAL STUDY

Jai, BBA LLB (Hons.), LLM, Assistant Professor, MERI- PLI, Sampla

ABSTRACT

Resolution of a dispute can either be possible through violence or peaceful and fair processes of dispute resolution. Indian Judicial system (a peaceful process of dispute resolution) has made serious efforts for resolution of disputes through a well-established fair, unbiased and reasonable procedure. However, even after making extremely serious efforts on- record by the Indian Judicial Services civil claims are escalating at a very high pace whereas dispersal civil cases are very low, primarily due to increasing legal awareness, and a high escalation in commercial transactions (including ecommerce). Further, Covid- 19 has served as a major constraint in delay in delivery of justice across the globe. “Justice delayed is justice denied.

”- the Constitutional mandate of “Access to Justice to all” is of no value and significance unless the judicial delivery system doesn’t provide justice on reasonable time to all irrespective of social, political, economic or any other disparities of the people to a dispute. One important novel reform in securing “access to justice” is through alternate private dispute resolution services or processes, which has great tendency to cope up with ever increasing civil disputes. Alternate private dispute resolution (ADR) processes have a tendency to provide resolution to disputes in an amicable, inexpensive, fast and flexible manner. ADR processes have also been termed as “Appropriate Dispute Resolution Services” by several great jurists and learned judges. However, ADR services have not been successful in our country.

This paper seeks to explain the concept of ADR, its benefits and challenges to it in India. Keywords: “Alternate private dispute resolution processes”,” delay in justice”, “access to justice”, “appropriate dispute resolution services”.

INTRODUCTION

Whether Alternate Dispute Resolution (ADR) mechanisms have been successful in promoting “access to justice”, when there has been a chronic crisis in administration and delivery of civil justice in India? To address the chronic delay and crisis in the administration of civil justice in India, a range of legal reforms have been made. One such important reform is resolution of disputes by private tribunals through Alternate Dispute Resolution (ADR) processes in accordance to the provisions of Arbitration and Conciliation Act, 1996. 1 “Access to justice” is an integral part of human life. 2 Life of an individual shall not be construed to physical safety, life comes with a bundle of rights which makes it worth living, and denying “access to justice” will deeply affect the quality of human life.

3 India has the largest Constitution across the globe which guarantees to protect the fundamental/human rights and liberties of every individual within the territory of its application4, despite such guarantee a large portion of population in India finds it extremely hard to have “access to justice” to enforce their legal rights or get remedies. Article 14, Article 21 and Article 39A of the Constitution of India ensures “access to justice” irrespective of their social, economic, political or educational backwardness whereas Article 32 and Article 226 provides mechanism to avail remedies when fundamental rights of an individual are infringed. However, in India, 1,09,16,365 civil cases are pending before the Taluka and District Civil Courts out of which 701,321 civil cases have been pending for more than 10 years. (Anon n. d.

) Further, Covid- 19 pandemic became a major constraint before Indian Judiciary to deal with the chronic crisis in delivery of civil justice. Alternate Dispute Resolution (ADR) tribunals were intended to improve “access to justice” by providing amicable, informal, speedy, inexpensive and affordable resolution to disputes of civil nature, when the Civil Courts are flooded with pendency of litigation. India is among the fastest developing countries across the globe, thereby, increasing trade, commerce, awareness and education has made people more conscious about their legal rights. Therefore, there has been a considerable rise in disputes and litigation. Judicial mechanism in India finds it extremely difficult to cope up with enormous caseload due to a variety reasons, like, in India, an average District Court provides services to more than 1. 65 lakh people.

5 A number of tribunal have been

1 The Arbitration and Conciliation Act, 1996, S 11, No. 26, Acts of Parliament, 1996 (India).

2 INDIA CONST. art, 21.

3 Mayukha Parcha & Anicham Tamilmani, Access to Justice in India, Vol. II Issue I IJLMH 1, 6 (2018).

4 INDIA CONST. PART III.

5 Id.

established in India to deal with crisis in civil justice like Labour Court, Consumer Court, Family Courts, Lok Adalat, Human Rights Commission etc. , but the problem of delay in justice still persists. “Justice delayed is justice denied” is one the most fundamental principle of law. Therefore, ADR mechanisms have been found suitable in facilitating amicable, informal, fast, inexpensive and affordable “access to justice” not only in India but most of the countries. In India, people shall promote plurality of dispute resolution processes and mechanisms to have “access to justice” in true spirit. India is witnessing a tremendous increase in commercial transactions (including e- commerce) which sometimes require the adjudicator or mediator to have technical knowledge and expertise about the subject- matter of dispute.

Merchants and businessmen prefer settlement of their dispute using ADR mechanisms where an impartial person(s) of their choice having knowledge or expertise about the nature and subject matter of dispute can assist disputants in speedy, inexpensive and amicable settlement of their dispute instead of litigation which involves a lengthy procedure for resolution of dispute(s). 6 ADR basically refers to allowing parties to dispute to choose a dispute resolution process of their choice in order to incorporate the needs of disputants. 7 It is a private mechanism of dispute resolution outside court processes. ADR has emerged as a leading dispute resolution mechanism over past few decades in India. Traditionally, justice delivery was understood as a function of judiciary in India. Judiciary and Courts were considered as the primary venue for dispute resolution.

However, ADR mechanisms have served as a channel for shifting the burden civil justice from judicial courts to a wide range of private dispute resolution services, processes and mechanisms. 8 With developments in the sector of private dispute resolution services some scholars assert that litigation shall regarded as last resort to seek remedies. 9 In India, if money suits and claims pertaining to property rights are referred to private dispute resolution services like arbitration, mediation, conciliation or negotiation, it would reduce the files of various courts by about 50 percent. 10 ADR mechanisms have been providing an alternate platform to the state judicial services not only in India but in many other countries too.

11 In promoting and facilitating the use of private dispute resolution services, international organisations like United Nations Commission on International Trade Law (UNCITRAL) and International Chamber of

6 DR. N. V. PARANJAPE, LAW RELATING TO ARBITRATION AND CONCILIATION IN INDIA 430 (7th

ed. 2018). 7 T Zoroska Kamilovska, Privatization of Civil Justice: Is it Undermining or Promoting the Rule of Law?, Issue 1(6) AJEE 34, 37 (2020).

8 Id.

9 Peter L. Murray, Privatization of civil justice, WJILDR 134, (2007).

10 supra note 7, at 429.

11 Stempel, Jeffrey W., "Reflections of Judicial ADR and the Multi-door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood" (1996). Scholarly Works. 202.

Commerce (ICC) have significantly contributed to acceptance of ADR services at international as well as national level. 12 However, in India, whether ADR services are complimentary to the integrity of judicial mechanism or it raises doubts on the credibility of judicial services, remains an issue of concern. ALTERNATE DISPUTE RESOLUTION PROCESSES Negotiation is one of the most common and desirable form of private dispute resolution process where parties themselves control the process as well as the solution. 13 For instance, recently, Municipal Corporation workers in Haryana called off a 11 days strike, when they reached a consensually agreed solution on their dispute with the Government of Haryana through negotiations.

(Anon 2022) When parties to a dispute are not able to resolve dispute through negotiations and they bring a third neutral party for dispute resolution to whom disputants give control over dispute resolution process to assist disputants in resolving their dispute or power to impose resolution on the disputants or both. Where the third neutral party simply assists disputants to resolve dispute is called mediation or conciliation. 14 The process when disputants give third neutral party the authority or power to impose resolution of dispute on the disputants is known as arbitration. 15 Basically, the process of adjudication when performed by a private adjudicator is known as arbitration. Negotiations, arbitration, mediation and conciliation have been combined together in a variety of ways to make dispute resolution process “hybrid” suitable to the disputants.

For instance, section 30 of the Arbitration and Conciliation Act, 1996 provides- “(1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties; the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. 12 Dr. Nandkishor K. Ramteke, Alternate Dispute Resolution (ADR) Under International and National Context- An Overview, Vol. VII Issue IIJRAR 846, 846 (2020).

13 STEPHEN B. GOLDBERG, FRANK E. A. SANDER, NANCY H. ROGERS & SARAH RUDOLPH COLE,

DISPUTE RESOLUTION NEGOTIATION, MEDIATION, ARBITRATION AND OTHER PROCESSES 1- 9 (Wolters Kluwer Law & Business, 6th ed. 2012).

14 Id.

15 The Arbitration and Conciliation Act, 1996, S 36- 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, No. 26, Acts of Parliament, 1996 (India).

(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. (3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award. (4) An arbitral award on a-reed terms shall have the same status and effect as any other arbitral award on the substance of the dispute. ” Alternate Dispute Resolution (ADR) mechanisms have been really very efficient in adopting the use electronic communication services for dispute resolution. Today, Information and Communication Technology (ICT) has become an important part of human life.

Internet and Artificial Intelligence (AI) has enhanced Alternate Dispute Resolution (ADR) processes in delivering justice even during time of lockdowns brought by Covid -19 pandemic. 16 Courts, Tribunals and Commissions which provide justice to the aggrieved shall be understood as service not place. 17 Developments in ADR processes provides parties to a dispute with a variety of dispute resolution procedures which are suitable to them. However, the former CJI Mr. Justice Ahmadi has rightly observed that “while we encourage ADR mechanisms, we must create a culture of settlement of disputes through these mechanisms. Unless the members of the Bar encourage their clients to settle their disputes through negotiations, such mechanisms cannot succeed. ” ADR mechanisms have not been inclusive in providing amicable, fast, effective and inexpensive “access to justice” in India.

There are various barriers which stand in way of “access to justice” through private tribunals like, lack of awareness, inadequate infrastructure, judicial interference, lack of legal framework, untrained professionals etc. Significant developments have been made to promote “access to justice” through private ADR tribunals, yet there is a long way to make ADR services and Judicial Dispute Resolution (JDR) services to run on parallel tracks for providing an inclusive “access to justice” to the people of India. 16 Working Group II: Dispute Settlement | United Nations Commission On International Trade Law (Nov. 04, 2022), 11:00 AM), https://uncitral. un. org/working_groups/2/arbitration.

17 Richard Susskind, The Future of Courts, The Practice (Nov. 04, 2022, 11:14 AM),

https://thepractice.law.harvard.edu/article/the-future-of-courts/.

CHALLENGES

TO PRIVATE ALTERNATIVE DISPUTE RESOLUTION PROCESSES IN INDIA Private dispute resolution services have emerged as a good alternative to lengthy and excessive procedural judicial proceedings for providing “access to justice”. Unfortunately, Alternate Dispute Resolution (ADR) processes has not been embraced whole heartedly by a major portion of population in India. The primary reason for unpopularity of Alternate Dispute Resolution (ADR) processes is lack of promotion of ADR services by Bar and Bench to bring them within the reach of the people of India. This lack of promotion of ADR services by Bar and Bench may be attributed to the poor understanding of ADR processes and their benefits by judges and advocates who are commonly devoid of working of ADR processes and their benefits.

18 Lack of infrastructure and lack of awareness can also be attributed to the unpopularity of ADR services in India. There are numerous other reasons which are obstructing the “access to justice” through private dispute resolution tribunals in India. Therefore, to promote the true spirit of “access to justice”, Republic of India shall promote legal plurality where judicial dispute resolution services and alternate dispute resolution services operate simultaneously in promoting the true spirit of “access to justice”. Former CJI Hon’ble Justice S A Bobde at an “International Conference on in Era of Globalisation” stressed for the need to introduce a law that makes all the settlement agreement arrived from mediation process binding and enforceable.

He also spoke in favour of need of a pre- litigation mediation legislation to reduce the backlog of cases in the courts to save the time of both the courts and litigants. Therefore, there are certain lacunae and gaps in legislative enactments in India to promote “privatization of justice” in pragmatic sense. Lack of awareness is also a great challenge in promotion of use of Alternate Private Dispute Resolution Processes in use of resolution of disputes in an amicable manner. National courts are still considered as the primary platform for redressal of legal disputes. Usually, a dispute of civil nature is referred to ADR services by a referral order of court during pendency of litigation. However, as noted by lord Judge, Lord Chief Justice of England and Wales: “if only the parties had come together at an early stage, long before they saw their counsel, long before

18 Astha Dhawan, A Birds Eye View Of Current Scenario Of ADR In India, WHITECODE VIA MEDIATION &

ARBITRATION CENTER (Nov. 06, 2022, 09:18 PM), https://viamediationcentre. org/readnews/MTM2/A- Birds-Eye-View-of-Current-Scenario-of-ADR-in-India. they got to the door of court, their dispute could be resolved at a fraction of cost and without emotional expenditure and commitment of time and energy required by the litigation. ” Accreditation Requirements- Arbitrators, mediators and conciliators shall periodically go through training programmes to enhance their skills and knowledge in order to provide just, equitable, acceptable and efficient settlement to a dispute by assistance and adjudication. Every possible effort shall be made to appoint an impartial and neutral expert having expertise about the subject matter of dispute.

Regular training programmes and workshops shall be organized for arbitrators, mediators and conciliators to make them aware about the new amendments in laws, new innovation like Online Dispute Resolution, and their benefits in disputes resolution. Judicial Interference in enforceability of international as well as national arbitral awards has a tendency to scrap the Arbitration and Conciliation Act, 1996 and put back clock to where we started under the old Arbitration Act, 1940. - Advocate Fali Nariman. According to statements of objects and reasons of the 1996 Act, one of the objects of law is to curtail and minimize judicial interference. Indian Courts have also minimized their interference in ADR services, however there is still a scope for development.

Online Dispute Resolution (ODR) processes- Mechanisms and processes of dispute resolution have changed over time with the development in technology and society. It is well known fact that flexible nature of ADR services allows it to keep pace with development in technology. Today, paper currency has almost been replaced with digital currency. In this speedy and fast digital age people don’t want to get into conventional time-consuming judicial system for resolution of their disputes. ODR processes have several shortcomings and drawbacks. ODRMs still lack legislative recognition due to several issues and concerns which research thesis seeks to evaluate. Former CJI N. V. Ramana stressed on the need to increase the use of ADR processes which has a tendency to change judicial landscape, bringing justice to the millions and settling disputes without protracted legal proceedings.

CJI said “private dispute resolution services like negotiations, mediation and arbitration have a potential to transform the legal landscape of India by providing millions of people a platform to settle their differences. ” further, he added “most empowering methods of resolving dispute is through maximum participation of stakeholders. ” Basically, one of best benefit of ADR processes is a degree of control by disputants over the dispute resolution process and its outcome. There are numerous other

challenges

to the working of Private Alternate Disputes Resolutions. Pragmatically, addressing these challenges can promote “access as well as ease to justice” in India. Ultimately, this will promote the constitutional ideals of achieving “Justice, social, political and economic”, enriched in the preamble of Constitution of India.

CONCLUSION

Justice is a pre requisite in maintaining human dignity and quality of human life. However, in India, “access to justice” is extremely difficult due to lengthy procedures, long delays, procedural technicalities and various other factors in judicial dispute resolution processes. Denying “access to justice” frequently promotes violence, illegal workmen strikes and several other unlawful activities, which ultimately threatens “peace and development” in one of the fast growing progressive and developing nation in the world, which is India. Therefore, Legislature navigated an alternate route to restore the public confidence in “delivery of justice” and “access to justice”, through introduction of Alternative Dispute Resolution (ADR) processes and services. ADR basically refers to processes of resolving disputes using processes other than litigation.

However, ADR has been under- utilized in India due to a variety of factors like lack of expertise, lack of awareness, judicial interference etc. If ADR utilized to properly, ADR has the capability to change the legal landscape of India. ADR if utilized in an appropriate manner, it has capability to bring “access to justice” and “ease to justice” in India. Therefore, the State shall make every endeavour to make people of India to aware, utilize and take benefits of ADR.

REFERENCES

Books i) DANIEL SHAPIRO, NEGOTIATING THE NONNEGOTIABLE (Penguin Publishers, 2016). ii) DR. N. V. PARANJAPE, LAW RELATING TO ARBITRATION AND CONCILIATION IN INDIA (7th ed. 2018). iii) M P JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. 2018). iv) STEPHEN B. GOLDBERG, FRANK E. A. SANDER, NANCY H. ROGERS & SARAH RUDOLPH COLE, DISPUTE RESOLUTION NEGOTIATION, MEDIATION, ARBITRATION AND OTHER PROCESSES (Wolters Kluwer Law & Business, 6th ed. 2012). v) SUKUMAR RAY, ALTERNATIVE DISPUTE RESOLUTION ALONG WITH THE GRAM NYAYALAYAS ACT, 2008 (2nd ed. Eastern Law House 2020). vi) WILLIAM URY, GETTING TO YES WITH YOURSELF AND YOUR WORTHY OPPONENTS (1st ed. HapperCollins Publishers 2014). Journal Articles i) Dr. Nandkishor K. Ramteke, Alternate Dispute Resolution (ADR) Under International and National Context- An Overview, Vol. VII Issue IIJRAR (2020).

ii) Mayukha Parcha & Anicham Tamilmani, Access to Justice in India, Vol. II Issue I IJLMH (2018). iii) Peter L. Murray, Privatization of civil justice, WJILDR (2007). iv) Stempel, Jeffrey W. , "Reflections of Judicial ADR and the Multi-door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood" (1996). Scholarly Works. 202. v) T Zoroska Kamilovska, Privatization of Civil Justice: Is it Undermining or Promoting the Rule of Law? , Issue 1(6) AJEE (2020). Internet Sources i) Astha Dhawan, A Birds Eye View Of Current Scenario Of ADR In India, WHITECODE VIA MEDIATION & ARBITRATION CENTER, https://viamediationcentre. org/readnews/MTM2/A-Birds-Eye-View-of-Current- Scenario-of-ADR-in-India. ii) Haryana: Safai karamcharis call off 11-day strike after talks with government, THE ECONOMIC TIMES, https://economictimes. indiatimes.

com/news/india/haryanasafai-karamcharis-call-off-11-day-strike-after-talks-withgovernment/articleshow/95171912. cms. iii) National Judicial Data Grid, https://njdg. e-courts. gov. in. iv) Richard Susskind, The Future of Courts, The Practice https://thepractice. law. harvard. edu/article/the-future-of-courts/. v) Working Group II: Dispute Settlement | United Nations Commission On International Trade Law, https://uncitral. un. org/working_groups/2/arbitration.