Introduction

Dispute resolution outside of courts is not new. Societies world-over have long used non-judicial,
indigenous methods to resolve conflicts. What is new is the extensive promotion and
proliferation of ADR models, wider use of court-connected Alternative Dispute Resolution, and
the increasing use of Alternative Dispute Resolution as a tool to realize goals broader than the
settlement of specific disputes. In the 1980s, demand for ADR in the commercial sector began to
grow as part of an effort to find more efficient and effective alternatives to litigation. Since this
time, the use of private arbitration, mediation and other forms of ADR in the business setting has
risen dramatically, accompanied by an explosion in the number of private firms offering ADR
services. Internationally, the ADR movement has also taken off in both developed and
developing countries. ADR models may be straight-forward imports of processes found in the
United States or hybrid experiments mixing ADR models with elements of traditional dispute
resolution. ADR processes are being implemented to meet a wide range of social, legal,
commercial, and political goals1.

What is ADR?
ADR is abbreviation for Alternative Dispute Resolution.Sometimes,it is also called as
Appropriate Dispute Resolution2.ADR refers to all the methods of resolving disputes/conflicts
which are alternatives for litigation in the courts.ADR process are decision making process to
resolve disputes/conflicts that do not to involve litigation or violence.ADR includes a variety of
process through which litigants or potential litigants may resolve their disputes.Its focuses on
effective communication and negotiation.
1

Halsburys Laws of England (Butterworths, 4th edition, 1991) para 601,332

.Universal Law Series. Arbitration & ADR. Ashwinie Kumar Bansal, Book foreword by Dr. H.R Bhardwaj, Union
Minister for Law and Justice and Chairman, ICADR.

ADR includes Arbitration, Mediation, Conciliation, Negotiation, Expert

Determination, Early Neutral Evaluation by a third person, Mini-trail, Dispute Resolution
Boarded. The approach of Judges, lawyers and parties throughout the world is changing towards
adoption of ADR instead of court litigation. Arbitral institutions provide ADR services for
quicker; less costly and consensual resolution of civil disputes outside the crowded court
system.ADR provides creative option to the parties to resolve the disputes that are not available
in traditional dispute resolution forums. It promotes together to solve the real concerns
underlying the conflicts by focusing on the parties real interest instead of their position and
claims. Situation where ADR is recommended

(i)

Parties want to control the outcome of the dispute.

(ii)

Parties want to resolve the dispute at the earliest.

(iii)

Parties want to preserve their relationship.

(iv)

Parties want confidentiality or privacy.

(v)

Parties want to end their relationship without undue stress.

(vi)

Parties have multiple issues in dispute.

(vii)
(viii)

Parties want to save money.

Parties have miscommunication and lack of respect for each other.

Part II

ADRs Concepts
Alternative Dispute Resolution uses different concept to resolve out the disputes/conflicts.ADR
has generally many form to resolve the disputes but we will mainly emphasize on four different
and widely used concepts i.e. arbitration, conciliation, mediation and negotiation.

Arbitration
Arbitration is an alternative way to resolve dispute through court-litigation, Arbitration is a
recognized private legal procedure used to resolve dispute between two or more parties.
Arbitration proceedings are administered and managed by a knowledgeable, independent and
impartial third party. The parties to a dispute present their pleadings, evidence and arguments to
the Arbitrator who decides the case and resolve the dispute.
Where two or more persons agree that a dispute or potential dispute between
them shall be decided in a legally binding way by one or more impartial persons in a judicial
manner, that is upon evidence put before him or them, the agreement is called Arbitration
agreement or submission to Arbitration. When, after a dispute has arisen, it is put before such
persons or persons for decision, the procedure is called arbitration, and the decision when made
is called award3.
Arbitration and Alternative Dispute Resolution are alternative options to litigation.
Though included in the generic meaning of the term alternative dispute resolution arbitration is
usually not classed as an ADR procedure. Unlike ADR outcomes an arbitration award is final and
binding. The dispute is determined in private with final and binding effect by the impartial third
person/persons acting in a judicial manner rather than by a court of competent jurisdiction.4
3

Ronald Bernstien Derek Wood in Handbook of Arbitration Practice, Second Edition, p. 9.

See Encyclopedia of Forms and Precedents Vol. 3(1) paragraph 2(11).

An arbitral award is at par with a judgment of the court as recognized by the

supreme court in the case of Ras Pal Gazi Construction Company Ltd vs. FCDA 5.In that case
the Hon. Justice Katsina-Alu pronounced thus:Arbitration proceedings as I have already shown
are not the same things as negotiations for settlement
out of court. An award made, pursuant to arbitration
proceedings constitute the final judgment on all
matters referred to the arbitrator. It has a binding
effect and it shall upon application in writing to the
Court be enforceable by the courtI must say
nowhere in the Act is the High Court given the power
to convert an arbitration award into its own judgment.
See Commerce Assurance Limited vs. Alhaji
Buraimoh Alli
(Supra) what this means simply is this: An Award is on
par with the judgment of the court.

Conciliation
Conciliation is a process in which third party assists the parties to resolve their dispute by
agreement. A conciliator may do this by expressing an opinion about the merits of the dispute to

(2001) 10 NWLR Part 722 page 559 Encyclopedia of Forms and Precedents Vol. 3(1) paragraph 2(11).

help the parties to reach a settlement. Conciliation is a compromise settlement with assistance of
a conciliator.
Conciliation is a voluntary and non-binding process in comparison to Arbitration and
litigation. Any party may terminate conciliation proceedings at any time even without giving any
reason. The important difference is that the parties control the process and the outcome of the
dispute, which is not the case in Arbitration as well as litigation. Conciliation is a consensual
process where as litigation and Arbitration solemnly urge the parties of amicable reconciliation
and have no control on the outcome of the dispute of the process.
Conciliation can be used in almost all contentious matters that are capable of being
resolved under law by agreement between parties. Conciliation can be resorted to in civil
disputes, in particular, commercial, industrial and family disputes. Conciliation is quite
successful in disputes related to banking, contract performance and interpretations, construction
contracts, intellectual property rights, insurance coverage, joint ventures, real estate, partnership
differences, personal injury, product liability, professional liability etc. Conciliation can be
resorted to at any time even while a case is pending in the court of law.
Settlement through conciliation depends on the nature of the dispute. There are
some advantages of Conciliation such as the disputes can be settled within a few hours or a few
days if the parties are willing to settle. Conciliation is the need of the day when a large number of
cases are pending in courts and it can be applied in most of the cases without risking the fairness
and finality of any settlement so arrived at. It is a mode in which justice is hurried but it is not
buried. Mahatma Gandhi was an ADR lawyer who had conducted private compromises in
hundreds of cases. He has recorded in his autography that the both the parties were happy over
the result and both rose in the public estimation.

.
Mediation
The failure of regular methods of dispute resolution had led to the search of alternative methods
of conflicts resolution. One of the methods is handling human relations in a responsive and
positive manner for the good of the people involved and for the betterment of the community.6
DK Sampath in Mediation states the context of conflicting social behavior has to be appreciated
and mediation has to be seen as a part of program of empowerment of the poor which again is
part of the plenary legal aid ideology. Referring to half hidden aspects of Indian Social Justice,
Krishna Iyer says:
It may sound cynical to say that the judiciary as a class, the bar as a profession, the
Government as an instrument and the political echelons as power-wielders are still half-informed about the plenary
legal aid ideology and half afraid of legal aid potential and half hostile to radical legal, services program. 7

Mediation is essentially a search, for a solution, by the promises to the dispute,

themselves, under the guidance of a third party. Mediation is a process, facilitation, an
empowerment. The basic underlying motive of mediation is to provide the parties with an
opportunity to negotiate, converse and explore options aided by a neutral third party, the
mediator, to exhaustively determine if a settlement is possible. The common factor of negotiation
and mediation is that both are based on consent of the parties.

Negotiation
Negotiation is primarily a common mean of securing ones expectation from others. It is form of
communication designed to reach an agreement when two or more parties have certain interests
6

DK Sampath,Mediation,NLSUI,1991,Foreword,p viii
VR Krishna Iyer, Some Half-hidden aspects of Indian Social Justice, EBC, 1980, p 117.

that are shared and certain others that are opposed. 8Ginny Pearson Bames says negotiation is a
resolution of a disagreement using and takes within the context of a particular relationship. It
involves sharing ideas and information and seeking a mutually acceptable outcome.9
The Pepperdine University of USA has developed an explanatory definition for
negotiation:
Negotiation is a communication process used to put deals together or resolve conflicts. It is a
voluntary, non-binding process in which the parties control the outcome as well as the procedures by which they will
make an agreement. Because most parties place very few limitations on the negotiation process, it allows for a wide
range of possible solutions maximizing the possibility of joint gains. 10

M Anstey11 explains core elements of negotiation as follows:

a) A verbal interactive process
b) Involving two or more parties
c) Who are seeking to reach agreement
d) Over a problem or conflict of interest between them and
e) in which they seek, as far as possible, to preserve their interests, but to adjust their views
and positions in the joint effort to achieve an agreement.

PART-III
The Concept of ubi jus ibi remidium

Roger Fisher, William Ury and Bruce Patton, Getting to yes: Negotiating Agreement without Giving In, 1992, p
xiii.
9

Ginny Pearson Bames, Successful Negotiating, P 14.

10

Institute for Dispute Resolution, Pepperdine University (USA), Mediation: The art of facilitating the settlement.

11

M Anstey. Negotiating Conflict, 1991, pp 91-92

In our paper we have emphasized on the legal maxim Ubi jus ibi remidium because this
maxim rightly laid down the foundation of legal system in every human society. It means
whenever any wrong is done to a person, he has the right to approach the court of law. This legal
pattern of resolving dispute has resulted in abundance of pending case, which rightly justifies the
clich Justice delayed is Justice denied. The legal proceedings in a court of law get stretched
down the years consuming oodles of money and which ultimately leads to disruption in business
and career.
There interminable and complex court procedure have prospectus Jurist and legal
personalities to search for alternate to conventional court system. The search was a great success
with the discovery of alternate forum known Alternate Dispute Resolution which commonly
called by its generic acronym ADR.

The term ubi jus ibi remedium is a Latin legal maxim which means where there
is a right, there is a remedy. The basic principle contemplates in the maxim is that, when a
person right is violated, the victim will have an equitable remedy under law. The maxim also
states that the person whose right is being infringed has a right to enforce the infringed right
through any action before a court. All law courts and also guides with same principle of ubi jus
ibi remedium. Right to remedy has been recognizes historically as a fundamental right but that it
should appropriately be considers a fundamental interest under the law. Remedies perform two
critical functions in the law: they define abstract rights and enforce otherwise intangible rights.
Rights standing alone are simply expression of social values. It is the remedy that defines the
right making the value real and tangible by providing specificity and awareness to otherwise
abstract guarantees.

PART-IV
ADR AT LAW AND COMMERCIAL SECTORS BOTH AT NATIONAL AND
INTERNATIONAL LEVEL
International and National Contrasted
International Arbitration takes place within a complex and vitally important international legal
framework. Contemporary international conventions, national arbitration legislation, and
institutional arbitration rules provide a specialized and highly supportive enforcement regime for
most international commercial arbitrations and international investment arbitrations. A
significantly less detailed legal framework exists for interstate arbitrations, although international
law instruments provide a workable enforcement regime even in this context.
The international legal regime for international commercial and investment
arbitration have been established, and progressively refined, with the express goal of facilitating
international trade and investment by providing a stable, predictable, and effective legal
framework in which the commercial activities may be conducted:

Enforcement of international arbitral agreement promotes the smooth flow of international

transactions by removing the threats and incertainty of time-consuming and expensive litigation. 12

The term international is used to mark the difference between arbitrations

which are purely national or domestic and those which in some way transcend national

12

David L. Threlkeld & Co. Metallgesellschaft Ltd, 923 F.2d 245, 248 (2d Cir. 1991).

boundaries and so are international or terminology adopted by Judge Jessup, transnational. 13 It

had been said that every Arbitration is a national arbitration, in that it must be held at a given
place and is accordingly subject to the national law of that place. 14In a narrow sense, it is correct.
If an international arbitration is held in Brussels, the place of the arbitration will be Brussels and
the tribunals award will be Belgian award. But in practice it is usual to distinguish between
arbitration which are purely national or domestic and those which are international. There are
good legal and practical reasons for this.
The procedure in any arbitration is regulated by law, that law is normally the
law of place of arbitration i.e. the law of the place of the arbitration. The parties to a domestic
arbitration usually are private individuals. This means that an element of consumer protection
will almost certainly form part of the law governing domestic arbitrations.

PART-V
Role of Judiciary
In this part the authors have emphasized on the role of judiciary in Alternative Dispute
Resolution at five different countries.
13

Judge Jessup used these terms to describe those rules of law, whether local, national, or international, which
govern cross-border relationship and transactions: see Jessup, Transnational Law, Storrs Lectures on
Jurisprudence (1956).
14

Bangladesh
ADR in Bangladesh: Court Annexed Judicial Settlement15
In June 2000, formalized ADR was introduced in Bangladesh by means of Court Annexed
Judicial Settlement Pilot Prospects, in an effort to decrease delays, expenses and the frustration
of litigants laboring through traditional trial process. Three Pilot Family Courts were established
in the Capital Dhaka Judgeship, which exclusively used judicial settlement to resolve family
cases including, divorce, restitution of conjugal rights, dowry, maintenance and custody of
children. All three Pilot Programs were fully functioning by January 2001, once judges has
began successfully settling cases, the program was expanded slowly to additional courts
throughout the country. By the end of the first year of the program of Judicial Settlement
Procedure in family disputes has effectively been introduced in 16 Pilot family courts in 14
districts of Bangladesh. Bangladesh Mediation is a facilitative, informal, non-binding,
confidential process directed by judicial offices under this system each case assigned to the ADR
track is resolves by association on by mediation within six months of filling. The majority of
ADR in Bangladesh in court annexed. The Mediation Program in Bangladesh is coordinated
through the court registration process which assigns cares to either the mediation or the regular
trial track.

ADR in Italy: Chamber of Commerce Mediation16

15

Data collected from paper presented on the conference organizes institute for the study
and Development of legal system 2005.Report on the Turkish Civil Justice Conference: ADR
learning program By retired Chief Justice Mustafa Kamal

ADR was institutionalized in the Italian legal System in 1993 by the passage of law 580, the
restructuring of the chamber of commerce. This law provides that mediation should be utilized as
a dispute resolution mechanism for commercial disputes at the chamber of commerce Enabled by
the Passage of these and subsequent legislation a national non-court annexes mediation program
has developed at the chamber of commerce in Italy. Italian mediation at the chamber of
commerce is primarily facilitative voluntary and is entirely confidential. Mediation sessions
generally last several hours with follow-up meetings if necessary. In Italy mediation includes
attorneys, notaries and Psychologists; a legal degree is not required. However, 80% of mediators
are lawyers. In Italy the settlement rate for mediation is outstanding over the last few years.

ADR in the Netherland Private and Court Annexed Mediation17

The Netherlands Mediation prospect has been in operation for last few years. It began as a Pilot
Project in one court then expanded to seven courts of first instance and one court of appeal and
has eventually moves to every branch of Jurisdiction. Mediation in the Netherlands in facilitative
voluntary and confidential, no special legislation was introduced for its establishment. The
Netherlands has both Private and court-annexed mediation in the Netherlands, Mediation
sessions are coordinated by a non-Judge coordination. The Netherland Mediation Prospect
evolves on a Pilot basis, slowly expanding to incorporate a large number of courts. As Mediation
first develops courts offers Mediation free of charge during Mediation week.

16

Data collected from paper presented on the conference organized by Institute for the
study and Development of legal system 2005. Report on the Turkish Civil Justice Conference;
ADR learning Program by Stefana Assali.
17

. Paper presented on the conference organizes by (ISDLS) institute for the study and development of Legal
systems (2005) . Report on the Turkish Civil Justice conference ADR learning program By Judge Dery Reling.

ADR in the United States; Private and court Annexed ADR ADR was introduced in US
Courts18
In the early 1980s in an effort to rapidly resolve the large number of backlogged cases pending
before the courts and address the considerable expenses associates with trail. Multiple court
appearances extensive evidentiary discovery and lengthy trials were a considerable monetary
burden on courts attorneys and litigations. The four most prominent ADR mechanisms utilizes in
the United States (i) early judicial case management (ii) an ADR mechanism, such as Mediation,
arbitration, Judicial settlement or early neutral evaluation. The United States utilizes court
annexed and private. ADR program parties can seek settlement either via a neutral retained by
the court through a court annexed program on via private neutral usually employs by a for profit
Mediation center). Typically, court annexed ADR programs are administered by ADR
coordinators who specialize in paining litigants with appropriate settlement officers ADR in the
United States is governed by broad legislation which allows courts throughout the country to
develop unique ADR programs. There programs and mechanisms have been monitored, critically
evaluated and refines in the thirty year since their introduction.

Status of ADR in India- The big question is whether mediation and arbitration have the
same value of litigation?19
Whether the mediation settlement and arbitration awards equal a court degree? The answer is
yes. The Arbitration and conciliation act passed in 1996 ensures high validity for their settlement
Section 34 and 35 of the act says that the arbitration awards share be binding and final to the
parties and person claiming under them, a recourse to a court against an arbitral award may be
18

Paper presented on the conference organizes by ISDLS institute for the study and Development of Legal System
(2005), Reports on the Turkish Civil Justice Conference; ADR leading program.
19

Alternative Dispute resolution The Indian Perspective (Blog)

made only on a few circumstances as like when a matter is decided beyond the scope of
arbitration or the procedure was not in accordance with the agreement between the parties .Even
though the arbitration and conciliation act 1996 was enacted to give importance to conciliation
and giving statutory recognition to conciliated settlement giving the same status of a court
decree for its exception no new effort was taken by the courts or by the lawyers to utilize the
provision and encourage the lawyers to utilize the provision and encourage the litigants to
choose the method . Even though some mediation training and familiarization programs were
conducted it did not create the real effect. The amendment of the CPC referring pending court
matter to ADR was not welcomed by many lawyers and the amendment was challenged. The
honorable supreme court of India has pronounced a landmark in Salem Advocate bar association
Tamilnadu Vs Union of India where it held that reference to mediation conciliation and
arbitration are mandatory for court matters .This judgment of Supreme Court of India will be the
real turning point for the development of mediation in India.

PART-VI
Others approach to Court for promoting ADR
There are different process of approaching court but for promoting ADR the process are as
follows:-

Family Consultants They are retained to work with parties to dispute arising out of
separation and divorce. They are professionals such

as social worker on Psychologist,

experienced in dealing with child and family issues and are appointed by the court.

Less Adversarial Trail20 Its hallmark is the Judges retains the control over the proceedings.
The parties are required to work with a family low consultant before the trial commences.

Receiving on managing expert evidence This kind of conferencing of experts, possibly

using mediation techniques can be uses to assist experts to settle on a Joint expert opinion or
report which might be admitted into evidence.

ADR techniques that might also be applied:

Judicial on early case appraisal An appraisal process would aim act providing an indication
of the strength, weakness or likely outcome of the care. The appraisal could be provided shortly
after filing either by a Judge or a Person engaged by the court and agreed by the parties21.

Case Management Conferencing Conference or conferencing is a general term which refers

to meeting in which the parties or their advocates or third discuss issues in dispute. Conferencing
may have variety of goals and may combine facilitative and advisory dispute resolution.
20

21

Introduced through Family Law Act 2006 in India.

Krishna Sarma Corporate Law Group, India Momota Oinam,Angshuman Kaushik.

Development and Practice of Arbitration in India Has it Evolved as an Effective Legal
Institution available at http://iisdb.stanford.edu/pubs/22693/No_103_Sarma_India_Arbitration_India_509.pdf

Conclusion:Lastly, the importance of ADR mechanism can be aptly put in the words of former U.S President
Abraham Lincoln.

Discourage litigation persuade your neighbours to compromise whenever you can point out to
them how the nominal winner is often a real loser, in fees, expenses, waste of time.