Resolving Property Disputes In India - Lessons From Global ADR Practices And Pathways For Reform
Author: LawSphereX
Category: Property & Real Estate
Published:
Updated:
RESOLVING PROPERTY DISPUTES IN INDIA: LESSONS
FROM GLOBAL ADR PRACTICES AND PATHWAYS FOR
REFORM
Aadya Reeshma Prashanth, O.P. Jindal Global University
ABSTRACT
Every year in India, property disputes clog the courts, accounting for a staggering 76% of pending litigation. Such disputes, often span a number of decades, not only fuelling familial feuds, but also instigating a string of violence in their relation. Just between 2017 and 2021, in Uttar Pradesh alone, 3021 murders have been recorded within the context of disputes over property. In a legal system overwhelmed by inefficiencies and delays, can ADR mechanisms such as mediation and arbitration offer a lifeline? This paper explores the potential of Alternative Dispute Resolution (ADR) mechanisms – such as mediation and arbitration – as a supplementary solution for the resolution of property disputes in a more efficient and equitable manner.
Beginning with an overview of property law in India, the challenges posed by traditional litigation is highlighted, such as the delays, financial burdens and the emotional stress that accompany it. The analysis then extends to the limitations of ADR, be it the power imbalances, the issues with enforceability of arbitral awards and concerns with the accessibility of these mechanisms. This coupled with the overall lack of invalidity of ADR as a potential recourse is the reason for the recommendation that ADR be woven into the Indian legal framework. To emphasize the point, the paper then draws comparative insights from Ghana, Singapore, England and Wales, and Australia, examining innovative global ADR practices. Some of these practices are mandatory pre-litigation ADR, decentralized governance and more culturally adapted ADR frameworks.
The paper finally concludes by proposing actionable reforms for India, emphasizing the integration of ADR into its legal framework in order to reduce the judicial backlog, enhance accessibility to the different sections of India and deliver swifter justice.
1. Introduction
Every year in India, property disputes clog the courts, accounting for a staggering 76% of pending litigation1. Such disputes, often span a number of decades, not only fuelling familial feuds, but also instigating a string of violence in their relation. Just between 2017 and 2021, in Uttar Pradesh alone, 3021 murders have been recorded within the context of disputes over property2. In a legal system overwhelmed by inefficiencies and delays, can ADR mechanisms such as mediation and arbitration offer a lifeline? Property disputes are among the most prevalent and prolonged forms of litigation. This reflects the complexity in the nature of property law itself. At its core, the law of property does not simply govern tangible assets but also the relationships between individuals and their right over their assets.
Manifesting themselves in various forms, property disputes can range through conflicts over ownership, usage rights, landlord-tenant disagreements and even boundary issues, each bringing with itself significant legal and emotional issues. In the Indian context, the centrality of land to economic development, cultural identity and social status exacerbates disputes of this nature. From contested inheritance claims and boundary disputes to fraudulent declarations and breaches in agreements, property disputes often spiral into decade-long legal battles, the effects of such battles visible far outside of the court of law. This delays justice for the aggrieved parties adding burden to already over-strained judiciary. Specifically in the cases of family property disputes, their escalation to deeply divisive conflicts can sever family bonds while also consuming state time and resources.
The primary recourse for all such litigants to a property dispute is approaching the Court. However, this approach frequently proves to be a time-consuming and adversarial process. The legal system is designed such that there is no filter on the quality or merit of the application which get filed daily. So the new filings are an ongoing process and the proportionate disposal is minimal. 3 This explains the big – and quite well known – backlog of cases with the judiciary, 1 Pradeep Thakur, Property and family disputes account for 76% of litigation: India news - times of India, TIMES OF INDIA (Apr. 26, 2016, 6:03AM), https://timesofindia. indiatimes. com/india/property-and-family-disputesaccount-for-76-of-litigation/articleshow/51987414. cms. 2 Rohit Kumar Singh, Land, property disputes led to over 3K killings in U. P. from 2017 to 2021: NCRB Data, HINDUSTAN TIMES (Oct.
03, 2023, 10:25PM), https://www. hindustantimes. com/cities/lucknow-news/landproperty-disputes-led-to-over-3k-killings-in-u-p-from-2017-to-2021-ncrb-data-101696352143605. html. 3 Ajay Bhargava, Gathering dust, LAW ASIA (Mar. 5, 2024), https://law. asia/practical-challenges-tacklingdecades-old-cases/.
suggesting that it must be time to consider alternate forms of resolution. Alternative mechanisms like arbitration and mediation present a promising solution for expediting resolutions and alleviating judicial burdens. It would be insufficient to only consider the positives of ADR, making it necessary to explore the extent to which ADR can be an appropriate recourse and address the specific challenges that come along with the adoption of alternate dispute resolution mechanisms.
1.1 Foundations of Property Law in India
Property in India has always been a cornerstone of the Indian socio-economic system. Laws governing property were prevalent before any formal codification in India. Religious scriptures and customary practices played a big role in defining property rights. Pre-Mughal India saw the Artha-Shastra by Chanakya that offers insight into the legal and economic laws of that time period including techniques of revenue collection and land tenure systems. Then came the Mughal-introduced Islamic law which, in fusion with Hindu law, created a legal system for property rights and rules – the Zamindari system is one such system. It was under British colonial rule that such laws began to be codified, English common law concepts having heavy influence over the Indian system. Major legislative development in the 19th and early 20th centuries laid the foundation for property laws in India.
Standardization of rules relating to transfer and inheritance of property was provided by acts such as the Transfer of Property Act, 1882, and the Indian Succession Act, 1925. Such codifications were made with the aim of bringing clarity and uniformity to property transactions and ownership rights. 4 In the post-independence era, Indian law development went a little further toward correcting historical inequities and advancing social justice. Laws related to ceiling on landholdings and tenancy legislation attempted to redistribute land and dilute concentrations of ownership in the hands of vulnerable sections, thereby abolishing exploitative intermediaries. Such amendments showed the larger commitment of bringing property laws into alignment with the values of equity, economic development, and social betterment-although these are partially attained to date. 5
4 Monissha Mahajan, Understanding India’s property laws: A comprehensive guide, LHN LEGAL HELP NRI
(Apr. 19, 2024), https://legalhelpnri.com/property-laws-in-india/.
5 Ibid.
1.2 Types and Causes of Property Disputes in India
Indian property disputes come in many and fairly complex forms, typically based off of questions on ownership, inheritance, usage, land use, or transfer. Title disputes are among the most common of such property-based litigation, arising from conflicting claims of ownership. Forged documents, fraudulent transfers and incorrect property records are some of the primary reasons of title disputes, thereby requiring legal scrutiny under the Transfer of Property Act,
1882 and the Registration Act, 1908.
Inheritance disputes are another prominent category, which arise when two or more heirs contest the division or legitimacy of claims over inherited properties. Governed by laws such as the Indian Succession Act, 1925, and Hindu Succession Act, 1956, these disputes commonly involve challenges to wills or intestate succession rules. Partition suits, where co-owners, particularly heirs, disagree with property division, require judicial intervention to safeguard individual rights related to these.6 Default in rent, unauthorized subletting or cases of eviction are brought by landlords or tenants and their regulation is state-specific under their Rent Control Acts. Boundary disputes usually occur because the property lines are unclear and usually require presentation of deeds and surveys for resolution. Typically, under the Real Estate (Regulation and Development) Act,
2016 (RERA), builder-buyer disputes commonly arise due to delay, shoddy construction, or
failure to adhere to the contractual obligations.7 Other important causes include adverse possession where land occupation leads to a suit for eviction by the registered owner. The Limitation Act, 1963 governs adverse possession where a claim is made for the transfer of ownership based on continuous unauthorized possession for many years. The other cause is property fraud resulting from fraudulent transactions of property whereby the victims seek redress in court to recover their investments.
1.3 Judicial Challenges in Resolving Property Disputes
The most common form of property dispute resolution is with no doubt traditional litigation in
6 Editorial Team, Land dispute resolution in India: Expert legal help by LawCrust, LAW CRUST GLOBAL
CONSULTING COMPANY, https://lawcrust.com/land-dispute-in-india/ (Accessed: 12 December 2024).
7 ACM Legal, Understanding common types of property disputes in India, ACM LEGAL (Jun. 18, 2024)
https://www.acmlegal.org/blog/understanding-common-types-of-property-disputes-in-india/
India. Civil Courts, Consumer Forums and RERA (Real Estate Regulatory Authorities) grant litigants platforms of approachability and availability through the multitudes of disputes. However, the process involved with such litigation is more often than not long-drawn and inclusive of many difficulties, time and cost being among them. Some direct challenges of traditional litigation are as follows: Long-Winded Process - Litigation is known to be very slow. Property disputes are often decided after years, sometimes decades. The Indian courts are confronted with an enormous backlog of cases. This creates a long wait for the dates of hearings and delivery of judgments. After the allotment of a date, repeated rescheduling and procedural postponements make for a smothering long process, straining the pockets of the litigants and causing no small amount of emotional stress.
The Civil Procedure Code, in itself, allows for numerous forms of adjournments and postponements with the idea of benefitting the aggrieved party while also maintaining a level of fairness towards the defendant. While this is quite appreciable, the downside is the stretching of the judicial process for decades. Financial Burden – Such form of litigation is an expensive process, with costs often escalating due to delays and unforeseen complication. There are the costs of legal fees, documentation, and court-related expenditure that add up to a significant amount. Especially with regard to litigants from economically weaker sections, this process can be an extreme financial drain, made worse by the uncertainty8 of its result. Emotional and Relationship Strain9 – Litigation is a confrontational process that can irrevocably harm relationships between the parties involved10.
It may be a familial, professional or neighbourly relationship but the adversarial nature11 of the court proceedings is such that they often result in lasting divisions, the ramifications of which are visible long after the case closes. 12 The impersonal nature of court trials, which focuses solely on legal facts without
8 Advantages and disadvantages of taking a business dispute to court, SAC ATTORNEYS LLP,
https://www.sacattorneys.com/articles/advantages-and-disadvantages-of-taking-a-business-dispute-to-cou/ (Accessed: 12 December 2024).
9 Ibid.
10 Robertsons, Advantages and disadvantages of litigation: A quick guide, ROBERTSONS SOLICITORS (Feb. 14, 2022), https://robsols.co.uk/advantages-and-disadvantages-of-litigation-a-quickguide/#:~:text=Disadvantages%20are%20that%20it%20can,with%20another%20person%20or%20business.
11 Ibid.
12 Rachel King. The advantages and disadvantages of litigation, LINKEDIN (Jan. 05, 2023),
https://www.linkedin.com/pulse/advantages-disadvantages-litigation-rachel-king/.
creating dialogue or understanding, only adds to this process. Stress and Bureaucracy - The bureaucratic character of litigation also causes stress to the parties. The uncertainty of awaiting a court date or the judgment along with the rigid procedural practices of traditional courts leaves many individuals feeling helpless and frustrated. This stress can spill over into personal and professional lives, further compounding the negative effects of litigation. It is especially seen in the stretched-out timelines and the long lapse of time between dates that such stress and anxiety manifest. 13 Limited Communication and Impersonal Proceeding – There is a thin scope – if any – in litigation for open communication or any level of rapport building between disputing parties.
The judges in Court base their decisions solely on the basis of evidence and legal arguments leaving no room for empathy or collaborative problem solving. While this has served the legal system well and has ensured for the removal of biases and prejudices, it may be more destructive than constructive in the case of property disputes, especially considering the personal nature of property. In such cases it must be pondered whether the path of dialogue and mutual understanding could better lead to quicker and more amicable resolution. 14 Damaging for Social and Economic Productivity – Prolonged litigation affects not only the individuals involved in the case but also the larger socio-economic texture. Land disputes, as an example, can cause the stalling of development projects, the disruption of businesses and a wastage of resources.
Litigation often results in parties being unsatisfied with the outcome, creating a cycle of conflict and appeals. Considering these problems, it is clear that traditional litigation processes may not make for the most appropriate of recourses in the solving of property disputes effectively. ADR mechanisms such as mediation and arbitration offer a promising alternative by making the process faster, less adversarial, and cost-effective. Preserving relationships, reducing the emotional toll of disputes, and being less burdensome on the judicial system makes these approaches increasingly relevant to the Indian context. Whereas litigation is still necessary for some complex cases, ADR is an essential supplement to address the limitations of the traditional court processes.
13 Advantages and disadvantages of taking a business dispute to court, supra note 9.
14 Robertsons, supra note 11.
These diverse disputes uncover systemic shortcomings in the structure of Indian property law concerning legal, administrative, and procedural mechanisms. The socio-economic nature of disputes and the duration of the process contribute to increasing difficulties. Such problems need a healthy mix of legal processes with alternatives like ADR so that dispute resolution becomes faster and fairer.15
2. ADR as a Supplementary Mechanism in Property Law
Property disputes in India are a significant cause of judicial backlog, as these account for approximately 76% of the pending litigation. 16 The disputes range from ownership to inheritance and boundary disputes. Such cases often become long-drawn, emotionally exhausting, financially burdensome, and socially disruptive due to the adversarial nature of litigation and the complexity of such cases. Therefore, Alternative Dispute Resolution (ADR) seems to be a viable supplementary mechanism. ADR offers a medium for parties to the suit to amicably resolve disputes without resorting to the lengthy and strict procedures that seems to be the trademark of traditional courts. Because ADR mechanisms, including mediation and arbitration, allow parties to resolve disputes more speedily, at lower costs, and with greater communication, they are increasingly being used in India and around the world.
For instance, property inheritance or builder-buyer conflict disputes are increasingly being resolved through arbitration and mediation, which allows parties to have more control over the outcome and maintains relationships. 17 With its benefits, ADR is no panacea. Issues such as that of affordability, accessibility for economically weaker sections, and the competency of mediators or arbitrators have to be taken into account in order for ADR to emerge as a balanced and effective remedy for disputes related to properties. The example of Ghana, Africa may be taken where many scholars have advocated for the creation of ADR mechanisms to surmount the increasing and devastating impact of land disputes in the Sub-Saharan Africa.
Land disputes in these parts quite often turn into violent confrontations that ultimately result in the loss of life and property while also disrupting the normal socio-economic activities. The Ghana’s Land Act (2020) (Act 1036), too, mandates that
15 ACM Legal, supra, note 7.
16 Thakur, supra note 1.
17 The role of mediation and arbitration in real estate claims, PETERSON LLP (Sept. 02, 2024),
https://petersonlawllp.com/role-mediation-arbitration-real-estate-disputes/.
disputants to a land conflict explore ADR mechanisms at the first instance, before attempting to take the matter to the formal court system. 18 Ghana gives us an insight into some international experiences to consider the possibility of organized ADR systems for solving land disputes with as little damage to the social setup as possible. While ADR mechanisms hold promise, their implementation in India requires careful consideration of global precedents. Ghana’s mandatory ADR framework provides a compelling case for India to explore similar reforms. " The Ghana solution – that is, the system of approaching ADR mechanisms before resigning to a civil court can in fact serve to be a positive mandate for the Indian situation.
As has been extensively talked about, the fact of backlog of cases in the Indian judiciary is no secret, the reason for it having been discussed as there being no criteria for the filing of such cases to begin with. A recommendation to consider could be one where ADR served as a mandatory pre-litigation process to ensure that meritorious cases, those which could benefit from the expertise and objectivity of the judge, alone are filed with the Court, the others resolved preliminarily as a compromise by utilising alternative mechanisms.
2.1 Overview of ADR Mechanisms
ADR is the process that includes various methods of settling disputes, Gwhich are other than the traditional litigation process. Mediation, arbitration, conciliation, and negotiation are the four major kinds of ADR, with mediation and arbitration being the most common methods in property disputes. English Courts in particular, have had a long history of arbitrating property disputes. Many of such disputes, related to long-term commercial leases, the ownership of land, or interests in land have been adjudicated on for decades. While an arbitral tribunal cannot make orders binding statutory regulators or offices, such as a public land registry, whether in the United Kingdom or in another country, orders may be made that have the same effect as they bind the parties, wherever they are, in jurisdictions where the arbitral award is enforceable.
Arbitration, the most popular mode of ADR in India is governed by the Arbitration and Conciliation Act, 1996. It serves as a more formal process as compared to alternatives such as 18 Ernest Uwazie, Alternative dispute resolution in Africa: Preventing conflict and enhancing stability, AFRICA
CENTRE
(Nov. 30, 2011), https://africacenter.org/publication/alternative-dispute-resolution-in-africapreventing-conflict-and-enhancing-stability/.
mediation, wherein a neutral arbitrator delivers a binding decision on a dispute brought before them. The Indian Parliament, at the time of its enactment, modelled the Act according to the UNCITRAL (United Nations Commission on International Trade Law) guidelines to bring India's arbitration framework in line with the working standards of international jurisdictions. 19 Consequently in 2019, the Indian Parliament enacted the India International Arbitration Centre Act in order to legally provide for the establishment of an institution – the India International Arbitration Centre – in order to create an independent and autonomous regime for institutional arbitration. 20 In further strengthening institutional arbitration, an independent regime for resolution of disputes, including those involving property, has been created by the India International Arbitration Centre Act, 2019.
Mediation is a collaborative, more informal, process in which a neutral third party assists disputing parties in the discussions to come to a voluntary and consensual settlement. In this regard, the Mediation Bill 2021, aims to formally institutionalize mediation in India while stressing its function in preserving relationships and flexible solutions. Harvard Law School reports that about 80% of mediations result in successful agreements; therefore, mediation is efficient. 21 ADR's flexibility and affordability make it the most attractive platform for cases involving property-ownership, boundary disputes and builder-buyer disputes; however, its dependence upon skilled mediators and arbitrators and relative inaccessibility to economically disadvantageous sections can be deterrents.
2.2 Role of ADR in Property Law
In the current litigation system in India, property disputes are typically governed by the Transfer of Property Act 1882 and the respective Succession Laws. Further, Section 17 of the Registration Act deals with family settlement of the immovable property. These legislations include various provision relating to ownership, title, possession, transfer and other aspects of
19 Alternative dispute resolution in India, DEPARTMENT OF LEGAL AFFAIRS,
https://legalaffairs.gov.in/sites/default/files/Arbitration_Mediation.pdf (Accessed: 13 December 2024).
20 Ibid.
21 Laura Tweedy, The positive impact of mediation in property disputes, ADR ODR INTERNATIONAL (May. 03, 2019), https://www.adrodrinternational.com/the-positive-impact-of-mediation-in-property-disputes.
property transactions and disputes. 22 So the question to be asked at the bottom of it all, is whether there is an allowance for arbitration as a recourse within Indian legislations on property law. The general rule is that any civil or commercial dispute, whether based on a contract or not, that can be decided by a Court can also be arbitrated. 23 The question of ADR in property disputes is quite relevant to contemporary legal scholarship. As recent as 2020, the Supreme Court of India adjudicated on the question of whether landlordtenant disputes governed by the provisions of the Transfer of Property Act 1882, are arbitrable. The three-judge bench of the SC in this case overruled the ratio in Himangni Enterprises v Kamaljeet Singh Ahluwalia [(2017) 10 SCC 706] holding that such disputes can be arbitrated on.
Interestingly the judgement charts out a fourfold test24 to determines the non-arbitrability of a dispute, the bench assuming an ‘arbitrable, unless’ approach. The test used is as follows:
1. when cause of action and subject matter of the dispute relates to actions in rem, that
do not pertain to subordinate rights in personam that arise from rights in rem.
2. when cause of action and subject matter of the dispute affects third party rights;
have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable.
3. when cause of action and subject matter of the dispute relates to inalienable
sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and 4. when the subject-matter of the dispute is expressly or by necessary implication nonarbitrable as per mandatory statute(s). 22 Adv. Deepika Pandey, ‘Resolving Property Disputes in India: A Guide for Brothers to Achieve a Fair Settlement’, EZY LEGAL. https://www.ezylegal.in/blogs/resolving-property-disputes-in-india-a-guide-forbrothers-to-achieve-a-fair-settlement (Accessed: 13 December 2024). Arbitrability of disputes in India: Complete guide,
AGRUD
PARTNERS.
https://agrudpartners.com/arbitrability-of-disputes/#Other_Readings (Accessed: 13 December 2024). 24 Prachi Bhardwaj, ‘Landlord-tenant disputes under Transfer of Property Act are arbitrable’. SC lays down test for determining non-arbitrability of disputes,
SCC
TIMES
(Dec. 14, 2020) https://www.scconline.com/blog/post/2020/12/14/landlord-tenant-disputes-under-transfer-of-property-act-arearbitrable-sc-lays-down-test-for-determining-non-arbitrability-of-disputes/.
As is clear from the test above, the primary distinction that the Learned Bench makes, is that between an action in rem and an action in personam. This distinction traces its roots back to the Supreme Court’s 2011 judgement in Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. & Ors where the Court held that the arbitrability is determined on the basis of the ‘nature of rights’ involved in the dispute, also called the Booze-Allen Test. 25 If the dispute involves an action in rem i. e. , a person’s right against the world at large, the dispute is not arbitrable. On the other hand, if a dispute involves a right in personam, i. e. , rights against specific individuals, such as in a contract, the dispute is arbitrable. 26 The Booze Allen Test along with the fourfold test introduced in Vijay Drolia expands the scope of arbitration in Indian civil disputes.
Overruling restrictive judgements such that of the Delhi High Court’s 2012 judgment in HDFC Bank Ltd. v. Satpal Singh Bakshi which held that disputes falling under the jurisdiction of the Debt Recovery Tribunal created under the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 are non-arbitrable or – as mentioned previously – even the Supreme Court’s 2017 judgment in Himangni Enterprises v. Kamaljeet Singh Ahluwalia. 27 The current stance of the Supreme Court on the matter is that all civil disputes that fall within the scope of the Transfer of Property Act, 1882 are arbitrable in as much as there is no exclusive jurisdiction vested in another specific forum to apply and decide any special rights and obligations.
While the existing legal precedents are primarily about landlord-tenant disputes, I am of the opinion that the wording of the judgements could potentially include a wider scope of cases under its wing.
3. Limitations and Challenges of ADR in Property Law
While it is certainly important to discuss the good that a formalisation of ADR can do for Indian property law, it is a discussion incomplete if a better picture is not painted. To truly understand the feasibility of ADR in Indian property law, it is crucial to explore its limitations, not simply its advantages. We can understand some of the pitfalls of ADR as follows: Power Imbalances – A fairly significant challenge in ADR is the potential for power 25 Shahezad Kazi & Gladwin Issac, Supreme Court of India Clarifies ‘What is Arbitrable’ under Indian Law and Provides Guidance to Forums in Addressing the Question, S&R ASSOCIATES (Jan. 05, 2021), https://www.snrlaw.in/supreme-court-of-india-clarifies-what-is-arbitrable-under-indian-law-and-providesguidance-to-forums-in-addressing-the-question/.
26 Ibid.
27 Ibid.
imbalances between the parties to the suit. 28 Property disputes involving individuals of economically weaker sections or any parties less informed than the ones they’re up against could mean the dominant party exerting undue influence during mediation. Ideally this would not be an issue to consider in arbitration, however, the process being more informal than a traditional litigation procedure makes it more vulnerable to the inefficiencies and inequalities that a Court system tries to avoid. Absence of Precedent – Unlike Courts, where you can generally rely on years of precedents to help determine and guide how the process should turn out, ADR does not have a system of precedent. The Arbitrator involved can decide a case as they like based on their interpretation of the evidence and their sense of “fairness”.
29 Issues of Enforceability – ADR mechanisms such as mediation and conciliation are nonbinding unless formalized through a court order or legal agreement. While arbitration can be enforced legally, the purpose of the arbitral award is only achieved when both the parties comply. There have been multiple cases in the past where a party has had to approach the court seeking relief from the non-compliance of the other party of the arbitral award. 30 This defeats any advantage, be it in the time saved or the more personal touch of choosing arbitration over civil courts. Further, arbitration cannot grant injunction and therefore cannot compel a party to follow through on the arbitral award, relying heavily on the parties to honour the outcome with no pressure of any external force.
Costs and Accessibility – ADR is mostly marketed as a cost-effective alternative to taking the traditional litigation route. However, there the are the initial costs of hiring neutrals, the space for the process, for the service, the counsel, travel, discovery costs and many others. 31 Subsequently, if the hearings are broken up due to scheduling conflicts or illnesses, the cost can be significantly more than either party anticipated. Summary reliefs too are rarely granted,
28 Mark Fotohabadi, Advantages and Disadvantages of ADR, ADR TIMES (Sept. 01, 2022),
https://adrtimes.com/advantages-and-disadvantages-of-adr/. 29 Sterling Miller, The problems and benefits of using alternative dispute resolution, THOMSON REUTERS (Apr. 29, 2022), https://legal.thomsonreuters.com/en/insights/articles/problems-and-benefits-using-alternative-disputeresolution.
30 Umang Yadav, Limitations of Alternative Dispute Resolution, VIA MEDIATION AND ARBITRATION
CENTRE (Accessed: Dec. 16, 2024), https://viamediationcentre.org/readnews/NjQx/LIMITATIONS-OF-
ALTERNATIVE-DISPUTE-
RESOLUTION#:~:text=It%20is%20not%20easy%20to,the%20restricted%20prediction%20of%20outcomes.
31 Fotohabadi, supra note 28.
meaning that you will most likely be headed to a hearing regardless of the strength of your summary judgement motion. 32 Limited Discovery Process – Through litigation, one encounters multiple stages to any trial, be it the extensive investigation or the long evidence producing sessions. This is not a factor in ADR, the procedures having close to no allowance or provisions for discovery. 33 Especially in the context of property disputes, this limitation can lead to an incomplete disclosure of facts, increasing the risk of flawed decisions and unfair outcomes. This only reinforces the need for ADR to be approached with a collaborative nature. Without the parties intent to compromise, ADR will not be possible. 34 No Guaranteed Resolution – Arguably, the most significant pitfall of ADR is that it does not guarantee a resolution.
35 In the event that it is unsuccessful, it can delay the following court proceedings. Parties approach ADR, investing time and resources only to find themselves back to square one, proceeding with traditional litigation and trial. As property disputes are usually high-stake cases, this lack of uncertainty can deter parties from relying on alternative forms of resolution. The issue of surrendering of appeals too falls within this bandwidth. Unless an appeal process is written into your agreement, a binding ADR procedure lacks the ability to appeal the decision. 36 Lack of Accountability – ADR lacks the procedural safeguards that Courts are structured to provide to both the parties. Parties are often discouraged from turning to ADR by their lawyers in order to protect the latter’s financial interests. There is also a lack of accountability from the side of the parties.
Should there be an unfavourable award granted, there are no safeguards in place to hold the parties accountable and to ensure their following through. 37 Despite the significant challenges charted out above in applying ADR to land conflicts and property disputes – such power imbalances, enforceability issues and ADR’s limited access to
32 Miller, supra note 29.
33 Yadav, supra note 30.
34 Fotohabadi, supra note 28.
35 Micharl Coyle, What are the disadvantages of ADR, LAWDIT SOLICITORS (Feb. 16, 2022),
https://lawdit.co.uk/readingroom/adr-disadvantages.
36 Miller, supra note 29.
37 Md. Manjur Hossain Pataori et al., Legal and Administrative Challenges of Alternative Dispute Resolution (ADR) as a Peaceful Means of Resolving the Land Dispute in the Rural Areas of Bangladesh, 11 BEIJING LAW REVIEW 415, 425 (2022).
the economically weaker sections – such limitations are not insurmountable. With the implementation of appropriate safeguards and the State’s recognition of ADR, many of these obstacles can be addressed and overcome. Some official measures such as ensuring the appointment of skilled and impartial neutrals, providing affordable ADR services and integrating ADR more comprehensively into India’s legal framework can help overcome these challenges. The integration of ADR into India’s legislations would mean more accountability towards the people in dispute resolution, more enforceability of the arbitral awards granted and a overall greater awareness of it benefits increasing the reliability of ADR.
4. Comparative Analysis: ADR in Property Disputes Globally
4.1 Case Studies of Key Jurisdictions
4.1.1 England and Wales
England and Wales have developed quite a sophisticated system for resolving disputes, with ADR playing a crucial role in facilitating access to justice as well as reducing the burden on Courts. ADR mechanisms are increasingly being relied upon as viable options to traditional litigation, offering faster and more cost-effective while providing less adversarial methods for dispute resolution. It was the European Commission’s Mediation Directive of 2008 that has bolstered ADR practices in England and Wales by promoting mediation and ensuring its compatibility with judicial proceedings. 38 While the Directive applies to cross-border commercial disputes with the EU (excluding Denmark), its implementation in England and Wales has been instrumental in encouraging mediation for civil and commercial disputes.
Apart from such external Directives, the UK Government’s immense support for ADR has helped skyrocket the importance of ADR. Such support is reflected in the Civil Procedure Rules (CPR), 1998 which requires parties to consider ADR before and during litigation. Courts in the country often stay proceedings while the parties involved, attempt to resolve their disputes through ADR. 39 This policy has proved to be quite important, especially in the resolution of
38 Alternative Dispute Resolution in England and Wales, HOGAN LOVELLS (Jan 2016),
https://www.hoganlovells.com/~/media/hogan-lovells/pdf/publication/2016/7342235v2adr-clientnotelwdlib02.pdf.
39 Ibid.
inheritance claims and boundary disagreements, preserving familial and community relationships while also delivering faster outcomes. More recently, English Courts have become more assertive in encouraging ADR, especially in cases where the parties are reluctant in opting for it. The CPR (Practice Direction – Preaction Conduct and Protocols) now includes provisions for costs sanctions when parties fail to reasonably engage in ADR processes. Factors considered in determining whether a party’s refusal to mediate is unreasonable include the nature of the dispute, the merits of the case, whether other settlement methods were attempted, and the costs of ADR. 40 Further, ADR in England remains undefined.
It has purposefully been left open to allow parties to decide which medium of ADR is most appropriate for their specific matter in order to truly engage the parties with the resolution of their dispute. 41
4.1.2 Ghana
Most relevant to the purpose of this paper is possibly Ghana. The country has emerged as a forerunner in the adoption of ADR to address the challenges in dispute resolution, especially in the context of land conflicts. Ghana has been successful in creating a robust framework for ADR, blending traditional and modern mechanisms to create a platform that is both accessible and efficient. 42 The progress in Ghana’s ADR framework can be attributed to their legislative and policy reforms, such as that of the Alternate Dispute Resolution Act 2010, which explicitly provides for customary arbitration and the promotion of its use. It also formalises the processes for ADR mechanism with the goal of ensuring their effective outcomes. Another such legislation is the Land Act 2020.
This Act mandates that disputants to a land conflict must first explore ADR mechanism before resorting to formal court proceedings. 43 Further, Ghana’s Land Administration Project (LAP) has further institutionalized ADR by establishing ADR committees as an integral part of the Customary Land Secretariats (CLS). The LAP’s decentralization of land governance through CLS ensures that ADR mechanisms are accessible
40 Ibid.
41 Ryan Grace, Courts encourage alternative dispute resolution (ADR) to settle litigation, SO LEGAL (Oct. 17, 2024), https://www.solegal.co.uk/insights/courts-encourage-alternative-dispute-resolution-adr-settle-litigation. 42 Abdul-Salam Ibrahim et al., Resolving land conflicts through Alternative Dispute Resolution: Exploring the motivations and challenges in Ghana, SCIENCE DIRECT (July. 18, 2022), https://www.sciencedirect.com/science/article/abs/pii/S026483772200299X.
43 Uwazie, supra note 18.
even in rural areas, offering a community-driven approach to dispute resolution.44
4.1.3 Singapore
Singapore has long since established itself as a global hub for Alternate Dispute Resolution. Its rapid growth of the ADR sector can see its roots in strategic reforms45, government support46 and a commitment to fostering harmonious dispute resolution culture. ADR in Singapore is designed such that it caters to a diverse range of disputes – including that of property and land conflicts – across commercial, community and international contexts. As we have established, the crux of ADR and the factor that ensures its outcome is collaboration. Singapore, towards the creation of a robust justice system, has shifted its priorities from adversarial to a more consensual and collaborative resolution.
47 Beginning their ADR movement as early as the 1980s, Singapore has managed to meticulously plan the establishment of dispute resolution institutions, amendments to the legislation, the growth of service providers, and most importantly, has achieved support from the government and the judiciary. Arbitration in Singapore, is well-supported by various institutions, expert arbiters and infrastructure to ensure that the arbitration process is seamless, efficient and professional. 48 The setting up of Universities specialising in honing practitioners’ arbitration knowledge and skill, creating two local institutions that promote arbitration (the SIAC and the Singapore Chamber of Maritime Arbitration), charting out ADR extensively within Singapore’s legal framework are all factors that have led to arbitration becoming an efficient and reliable system of adjudication in the country.
4.1.4 Australia
Australia is yet another country with ADR embedded strongly within its judicial system. They too, like others with effective and reliable ADR mechanisms, have utilized legislative and policy reforms to encourage disputants to opt less for traditional litigation and more for alternative resolution mechanisms. The Civil Dispute Resolution Act 2011 (CDR Act) is one
44 Ibrahim, supra note 42.
45 ADR in Asia Pacific: Spotlight on Singapore, HERBERT SMITH FREEHILLS (Feb 2016),
https://simc.com.sg/sites/default/files/content-files/ADRinAsiaPacificSpotlightonSingapore.pdf.
46 Arbitration & ADR in Singapore, SINGAPORE LAW WATCH (Accessed: Dec. 16, 2024),
https://www.singaporelawwatch.sg/About-Singapore-Law/Civil-Practice-ADR.
47 Siddharth Jha & Carina Lim, Evolution of Mediation in Singapore, 9 RBADR 121, 122 (2023).
48 Arbitration & ADR in Singapore, supra note 39.
such Act that mandates that parties take genuine measures to resolve disputes before initiating proceedings in the Federal Court.49 This legislation, couples with the procedural reforms adopted following the Woolf reforms of England and Wales, emphasizes pre-action protocols to ensure that litigation is a last resort.50 Judges in Australia, actively manage cases and evaluate the sustainability of ADR mechanisms early in the litigation process. There are instances where the disputants may be compelled by the Court to attend mediation sessions, subject to certain conditions. The Federal Court Rules
2011 further bolster the institutionalization of ADR by establishing clear guidelines for
arbitration, mediation, and other forms of dispute resolution.51 Another functional and fundamental element to Australia’s adaptation to ADR is their addressal of the unique needs of its Aboriginal communities. Indigenous principles of conflict resolution, including peacemaking and community mediation, are being incorporated into the justice system. These culturally sensitive practices align with the broader goal of shifting away from traditional adversarial models to ensure equitable outcomes for all communities.52
4.2 Comparative Insights and Lessons for India
From the earlier section on Global ADR Practices, it is clear that such countries are able to make these alternative forms of resolution work and on a large scale. It is important, in the course of the discussion on Indian ADR practices, to understand why and how ADR works for other countries, and what the Indian legal framework can learn from it. Mandatory Pre-Litigation ADR – It has been discussed in this paper that one of the foremost fallacies in the Indian legal framework is that there are no criteria for the filing of a case in Court. While it is noble in its intention of allowing all citizens access to justice it fails to account for all those people that get lost in the crowd.
Following from the cases of Ghana and Australia, mandatory pre-litigation ADR could be the first step into reducing the burden on the Courts, and allowing every citizen access to justice at the very first instance. The Land Act of Ghana
49 Alistair Wyvill SC, ADR in the Territory – Where are we now and where might we go, AUSTRALIAN
DISPUTES CENTRE (Nov. 14, 2024), https://disputescentre.com.au/adr-in-the-territory-where-are-we-nowand-where-might-we-go/#_ftn2.
50 Ibid.
51 Assisted Dispute Resolution, FEDERAL COURT OF AUSTRALIA (Accessed: Dec. 18, 2024),
https://www.fedcourt.gov.au/services/ADR.
52 Wyvill, supra note 49.
and the CDR Act of Australia have successfully managed to reduce the workload on courts by mandating such Pre-Litigation ADR. Development of Specialized ADR Institutions – A major issue that instils the general disbelief in ADR is the lack of State institutions. A positive step towards making ADR more inclusive as well as seem more viable to the layman is to establish specialized institutions for the sole purpose of engaging ADR. Great example of this are Singapore’s SIAC and SIMC, and the Australian Land Court to effectively address property disputes with more efficiency. Integrating Customary and Community based ADR – India’s cultural diversity – its large number of ethnic and religious communities – form a large reason for the integration of more community-driven practices of ADR.
Learning from Ghana and Australia’s practices of a bend of traditional and contemporary mechanisms such as Ghana’s LAP initiative that recognizes customary rights and practices as well as Australia’s ADR practices adapted to its Aboriginal communities could positively impact India too. Decentralized ADR for increased Accessibility – The economic disparity and varying sections of Indian society is a serious area for thought. Especially in the case of large-scale policies, there can be no progress without the consideration of such economic classes. To this effect, Ghana’s CLS model demonstrates how decentralized governance structures can make ADR accessible to rural and economically weaker sections, addressing the many accessibility challenges that plague the Indian systems.
Enforceability of ADR Outcomes – Singapore’s Mediation Act 2017 addresses a significant issue faced by the utilisation of ADR mechanisms, i. e. the problem of enforceability. Mediation and Conciliation are non-enforceable except in the cases where they are followed by a Court order. While arbitration is technically enforceable, it is still highly reliant on the compliance of the parties. Singapore’s 2017 Act provides a clear precedent for incorporating enforceable agreements in land and property disputes
5. Conclusion
This research brings to light the critical role that ADR mechanisms can play in redressing India's endemic property dispute crisis. The current reliance on traditional litigation exacerbates delays, costs, and emotional burdens, making access to timely justice increasingly
difficult. ADR offers a promising supplementary mechanism by emphasizing dialogue, flexibility, and cost-effectiveness. Examples from global jurisdiction such as Ghana’s centralized ADR initiatives and Singapore’s focus on the enforcement of arbitral awards, serve as an illustration on the tailoring of frameworks to address socio-economic and cultural contexts. Cost sanctions for the refusal of ADR in England and Wales demonstrate how incentives encourage its adoption while Australian integration of indigenous conflict resolution principles highlight the need for cultural sensitivity. A multi-faceted approach for India: Mandatory pre-litigation ADR can lighten the load from
courts, while ADR-specific institutions can be used to gain confidence of the public. Increasing accessibility among rural and deprived sections of society will become possible through the introduction of customary and community-based mechanisms of ADR. By learning from global practices and addressing local challenges, India has the opportunity to transform its property dispute resolution landscape. A robust ADR framework not only promises to relieve the judicial backlog but also promote a culture of cooperation, efficiency, and harmony in property dispute resolution.