Syllabus Revision Program by Islami Jamiat Talba,

For Batch 19-24 and 20-25,

Punjab University Law College.

Subject: Legal Systems (LL.B Part II)

Topic no: 10

Alternative Dispute Resolution

Introduction:
Alternative Dispute Resolution (ADR) is a term used to describe several different modes of
resolving legal disputes. It is experienced by the business world as well as common men that it is
impracticable for many individuals to file law suits and get timely justice. The Courts are
backlogged with dockets resulting in delay of year or more for the parties to have their cases
heard and decided. To solve this problem of delayed justice ADR Mechanism has been
developed in response thereof.
Interpretation of term ADR:
According to Cambridge Dictionary:
“Alternative dispute resolution is a set of actions that are used by organizations to try to
solve disagreements without using a court of law, for example arbitration and conciliation”.
Concept and Nature of ADR:
The Alternative Dispute Resolution System is simple and free from procedural technicalities:
The methodology applied and techniques used in mechanism of ADR to settle the disputes
between the parties do not follow the ticklish procedure adopted by the Judicial Courts. The
mechanism of ADR system does not partake the course of judicial process. It is completely
different and divorced from judicial technicalities. The ADR process is very simple, cheap, easy,
speedy and result oriented in disposal of the cases. The ADR techniques are extra judicial in
character.

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Scope of ADR:
The mechanism of ADR System and its techniques are extra-judicial remedy to resolve disputes
outside the legal fora. These techniques can be used in all those cases, which are capable of
being resolved, under law, by mutual agreement between the parties. The scope of ADR is wider
and can cover the cases of civil nature, commercial, industrial and family disputes or any other
cases of urgent nature. The ADR works across the full range of business disputes: banking;
contract performance and interpretations, construction contracts, intellectual property rights,
insurance coverage, conflicts in joint ventures, partnership differences, personal injury; product
liability; professional liability, real estate and securities. The mechanism of ADR system may
offer best solution in commercial disputes of an international character. The scope of an ADR
System is not intended to supplant existing means of dispute resolution. It offers only alternative
options to litigation. Every delegate stress for promotion of Mechanism of ADR system using its
various forms conciliation, negotiations, mediation instead of initiating trials in the Court. The
fast-emerging importance of ADR, its wider scope and commendable objectives emphasized for
creation of more Lok Adalat including establishment of Fast Track Courts.

Kinds of Alternative Dispute Resolution:

There are various ADR methods mainly:
Arbitration
Mediation
Conciliation
Negotiation Arbitration:
The introduction of the process of Arbitration in India was made through Arbitration and
Conciliation Act, 1996.
The process commences only if there exists an Arbitration Agreement between the concerned
parties before the dispute occurred. In this process, arbitrator determine the issues and come to a
fair resolution.
Such an Arbitrator is appointed through the parties themselves or the office of the Chief Justice
and panel of such Arbitrators will constitute an Arbitration Tribunal.
The arbitrators so appointed must be in odd numbers.

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The main criticism of Arbitration is the fact that under certain jurisdictions, an arbitral award can
be appealed against in a civil court.
Thus, it’s a process whose main objective is to provide a platform for the speedy resolution of
disputes is itself giving way for the disputes to go back to the old cycle of the adversarial process
which it initially was trying to avoid.
Mediation:
It is a process wherein the parties themselves determine the terms of the agreement and that will
help them resolve the disputes.
A Mediator only oversees the process and helps communicate among the conflicting parties and
is deemed to be impartial.
There are private sessions where the mediator discusses the issue with either of the parties in the
absence of the other so that the parties do not hesitate in sharing any information. Following this,
there are joint sessions where there is an attempt made towards settling the dispute.
It is especially helpful in matrimonial and property disputes where there is a need to understand
the stage at which the dispute triggered and the ways in which each party wants it to be resolved.
Mediation is a voluntary and non-binding process, however, is regulated by the Code of Civil
Procedure, 1908.
In Mediation proceedings, the ultimate decision to agree on the settlement remains with the
parties.
Conciliation:
In Conciliation no prior agreement is needed between the parties, any party can request the other
party to appoint a conciliator.
Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt
to resolve their dispute by conciliation.
One or more Conciliators are appointed by the parties themselves, who acts as a neutral third
party.
Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process
The main difference between the Conciliation and mediation is that in mediation, the parties are
encouraged to find a solution, with the facilitator only acting as a guide. While with conciliation

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the facilitator has the responsibility to identify the objectives of the parties and activity to help
find a solution.
Negotiation:
Negotiation is self-counselling to resolve disputes; the aim of negotiation is the settlement of
disputes by exchange of views and issues concerning the parties.
It is Voluntary method of ADR and no party is forced to participate in a negotiation. Negotiation
occurs in business, non-profit organizations, and government branches, legal proceedings, among
nations and in personal situations such as marriage, divorce, parenting, and everyday life.
There is no need for recourse to a third-party neutral. This is important when none of the parties
wants to involve outside parties in the process
Negotiation involves two, three or dozens of parties. They can range from two individuals
seeking to agree on the sale of a house to negotiations involving diplomats from dozens of States
(e.g., World Trade Organization (WTO)).
Opting for negotiation instead of litigation may be less expensive for the parties and may reduce
delays.
Lok Adalat:
Lok Adalat is called ‘People’s Court’ presided over by a sitting or retired judicial officer, social
activists, or members of the Legal profession as the chairman.
National Legal Service Authority (NALSA) along with other Legal Services Institutions
conducts Lok Adalat on regular intervals for exercising such jurisdiction.
These Parties are in direct interaction with the judge, which is not possible in regular courts. Any
case pending in regular court or any dispute which has not been brought before any court of law
can be referred to Lok Adalat.
There is no court fee and no rigid procedural requirement (i.e., no need to follow the process
given by the Civil Procedure Code or Evidence Act),

ADR- A Historical Synoptic View:

ADR is nothing new. This informal quasi judiciary system is as old civilization. Different forms
of ADR have been in existence for thousands of years. The firm Arbitration (a form of ADR) Act

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was passed in 1698 under William III. This was an Act for rendering the award of arbitrators
more effectual in all cases for the final determination of controversies referred to them by
merchants and traders, or others. In 1854, Common Law Procedure Art expressly empowered
courts to remit an award for reconsideration by the arbitrators. It aims empowered courts to stay
(stop) an action in court if the parties had agreed m take the dispute to arbitration. Effectively,
the Arbitration Act 1440 gifted a number of modem steps to be taken to agree disputes between
the parties: the parties appoint arbitrators court may also appoint arbitrators if the parties fail to
do so; decide the disputes informally, make an award, or settle the dispute by mediation,
compromise or any other mama; court pass a decree in tams of the award found the decision was
made properly, and Arbitration Tribunal shall be competent m appoint expert or legal advisor to
submit report to at an specified question or assessor for assisting it on technical matters.

ADR vis a vis Jirga System:

A jirga is a traditional assembly of leaders that supposed to make decisions by consensus. Its
primary purpose has been to prevent tribal war. Most jirgas are conducted in Afghanistan but
also among the Pashtun tribes in neighboring Pakistan, especially in Khyber Pakhtunkhwa
(KPK). In 2017, the Pakistani government passed The Alternative Dispute Resolution Act, 2017
of Pakistan aiming to integrate jirgas into the formal justice system. In a January 2019 petition
from National Commission on the Status of Women (NCSW), Supreme Court of Pakistan
restrained jirgas up to permissible limits of the law to the extent of acting as arbitration,
mediation, negotiation or reconciliation forums between parties involved in a civil dispute,
amidst continued reports of widespread flouting of constitutional norms and human rights.
Origin:
Jirga might be referring to a large assembly of men forming a very broad circle, initially intended
for laying siege around games or animals to be hunted for sport or for food. Probably, the
Pashtun elders were also sitting initially in a circular formation when debating and hearing a
given dispute.

Functioning methodology:

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The community council meaning is often found in circumstances involving a dispute between
two individuals; a jirga may be part of the dispute resolution mechanism in such cases. The
disputants would usually begin by finding a mediator, choosing someone such as a senior
religious leader, a local notable, or a mediation specialist. In tribal Pashtun society, the Maliks
serve as de facto arbiters in local conflicts, interlocutors in state policy-making, tax-collectors,
heads of village and town councils and delegates to provincial and national jirgas as well as to
Parliament. The mediator hears from the two sides and then forms a Jirga of community elders,
taking care to include supporters of both sides. The jirga then considers the case and, after
discussing the matter, comes to a decision about how to handle it, which the mediator then
announces. The jirga's conclusion is binding.

Factors Favoring Adaption of ADR Process:

There are a number of factors which commended themselves to the adoption of ADR system.
These are:

Factors favoring Conferencing:

The parties are waiting for a decision to be made in an unrelated but relevant matter.
Factors Favoring Mediation
The matter is complex or likely to be lengthy
The matter involves more than two parties
Desire of parties to keep the dispute confidential
Flexible options need to be explored

Factors Favoring Conciliation

The parties would benefit from advice on possible settlement options There
is a conflict in expert opinion or evidence

Factors Favoring Case Appraisal

There is a dispute in relation to an evidentiary or factual issue
The hearing is likely to be lengthy

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 Availability of an expert opinion may further negotiations

Costs of the ADR Process

The parties request an external ADR Practitioner, they will be responsible for any associated
costs

ADR vs Litigation:
Going to court is usually an expensive and time-consuming prospect. Businesses, which
are always looking for ways to more effectively manage costs and other resources, can conserve
both by first considering other ways to resolve disputes. For example, before going to court over
the failure of a third party to properly install equipment, a business might first consider entering
into informal negotiations with the installer to reach a conclusion that is satisfactory to both
sides.
The Parties
Litigation involves the bringing of a legal claim in court by one party or a group of parties
against another party or parties. Several actors are key to the litigation process; be sure you
understand the role of litigants, attorneys, and others involved in the trial process.
Pretrial Procedures
Before the parties even get to trial, there is a great deal of preparation that must take place in
order to have one's day in court. This section discusses the preparation of documents and
exchange of information that must take place in order bring a lawsuit, and covers class-action
lawsuits and the process of discovery, which is an investigative process through which the
parties request and produce evidence. The discovery process is important, because it allows a
party to ascertain their case's strong and weak points. Did you know that 54% of corporations
were charged with a class-action lawsuit in 2014? According to the Manhattan Institute, "more
than one in three such companies faced multiple lawsuits".

Trials and Appeals

When the parties reach the trial stage of a lawsuit, important decisions must be made about the
selection of a jury, opening and closing statements, and the examination of witnesses.

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Judicial Trends on ADR:
Attitude of courts world over for success of an ADR system
The attitude of courts world over is very much relevant for success of an ADR system.

ADR in United States Federal Courts

By way of perspective, for fiscal year 2001 almost 251,000 new civil cases were filed in the
federal trial courts (United States District Courts). At the end of that fiscal year there were
297,265 civil cases pending and these cases were assigned to 665 judges in 94 judicial districts.

In 1990 the United States Congress passed legislation (Civil Justice Reform Act) as an initial
step toward incorporating ADR into the federal court structure. In 1998 Congress passed the
Alternative Dispute Resolution Act of 1998 [28 U.S.C. §§ 651-658] and, as part of that
enactment, made the following pertinent findings:
alternative dispute resolution, when supported by the bench and bar, and utilizing properly
trained neutrals in a program adequately administered by the court, has the potential to provide a
variety of benefits, including greater satisfaction of the parties, innovative methods of resolving
disputes, and greater efficiency in achieving settlements;

(2) certain forms of alternative dispute resolution, including mediation, early neutral evaluation,
minitrials, and voluntary arbitration, may have potential to reduce the large backlog of cases now
pending in some Federal courts throughout the United States, thereby allowing the courts to
process their remaining cases more efficiently.

Legislation on ADR in Pakistan:

In Pakistan the most commonly used methods of ADR under statues are arbitration and
conciliation.
1. Section 89-A of Civil Procedure Code
Main enabling provisions in this behalf are encapsulated as Section -89 of civil procedure.

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2. Section 89-A of CPC provides
The court may where it considers necessary having regards to the facts and circumstances of the
case with the object of securing expeditious disposal of the case in or in a relation to a suit adopt
with the consent of party’s alternate dispute resolution method including mediation and
conciliation.
3. Section 10 and 12 of Family Courts Act 1964
At the pre-trial the court should ascertain the points at issue between the parties and attempt to
affect a compromise between the parties if this be possible. If no compromise is not possible the
Family court should announce its judgment and give a decree.
4. Industrial Relation Act 2010
The industrial relation act 2010 also provides the mechanism to resolve the industrial dispute
through ADR.

New Areas for Adaptation Of ADR:

The company’s ordinance 1984
The Punjab consumers protection act 2005
The drugs act 1976
The income tax ordinance 2001
The insurance ordinance 2000

Conclusion:
ADR mechanism is becoming a fast standard practice in a larger number of contracts
between companies and the government, and their employees, partners, customers, and
suppliers.

References:
• http://www.uop.edu.pk/ADR
• https://en.wikipedia.org/wiki/Alternative_dispute_resolution
• Legal System by M.A Chaudhary.
• https://iamrlawcollege.com/AlternativeDisputeResolution
• https://www.saylor.org.academy

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Prepared by: Noman Rafique

Team Head: Khizer Bajwa

Project by Islami Jamiat e Talaba, Punjab University Law College.

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 BEST OF LUCK … !!

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