An analysis of alternative dispute resolution under section 89 of civil procedure code

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Alternative Dispute Resolution

Abstract

Alternative Dispute Resolution refers to a variety of techniques for resolving disputes by means other than litigation. ADR System seeks to provide cheap, simple, quick and accessible justice. The object behind this provision is to avoid multiplicity of litigation, save valuable time, money and permit parties to amicably come to a settlement which is lawful, is in writing and is a voluntary act on the part of the parties. Further, to reduce burden of the court. The general principle is that all matters, which can be settled in a suit, can also be settled by means of compromise. The Act of 1999 has introduced a new provision, section 89 where the court may by itself, proactively refer a dispute for ADR methods such as Arbitration, Mediation, Conciliation and judicial settlement through Lok Adalat if it appears that elements of settlement, which may be acceptable to the parties to the dispute. This paper is intended to give an overview of procedural aspects as contained in Civil Procedure Code as well as of the different methods of Alternative Dispute Resolution with special reference to the judgement of the Hon’ble Supreme Court in the case of Afcons Infrastructure Limited and Another vs. Cherian Varkey Construction Company Ppvt. ltd. & ors. 2010 by briefly overviewing the history of the section, the recommendations of various law commissions with respect to the same, the relation of the section with other statutes of India and the position of the provision as it stands today. This paper tries to explicit the categories of cases which are suited for ADR processes and the cases which are not suitable for ADR processes. Then the focus shifts on analysing the conditions, advantages  and weakness of ADR. This paper ends by providing some recommendations for solving the issues concerned with Alternative Dispute Resolution.

Introduction  

The philosophy of Alternate Dispute Resolution was well-stated by Abraham Lincoln: “discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.” Litigation does not always leads to a satisfactory result. It is expensive in terms of time and money. A case won or lost in court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute Resolution systems enable the change in mental approach of the parties.[1]

Even in the traditional adjudicatory process, i.e., under the Code of Civil Procedure there is scope for settlement of dispute by using Alternative Dispute Mechanism. After the presentation of the suit in the competent court, it is left to sweet will and wishes of the parties to compromise or adjust or settle it by an agreement or compromise. The object behind this provision is to avoid multiplicity of litigation, save valuable time, money and expenses and permit parties to amicably come to a settlement which is lawful, is in writing and is a voluntary act on the part of the parties. One of the pillars on which the Civil procedure code is based is “Justice delayed is justice denied” and one of the most essential requirement of justice is that it should be provided as quickly as possible. However, when the Civil Procedure Code of 1908 was drafted it had many deformities and lacuna. Even after subsequent amendments it did not helped in bringing down the number of pending cases.

According to a report, currently there is a backlog of approximately three crore cases in courts across the country.[2] Even after a high disposal rate per judge it seems impossible for the judiciary to cope up with the arrears. An effort was made in 1999 to harmonize and blend the judicial and non-judicial dispute resolution mechanisms in order to relieve the court from overburdening of litigations and even providing a way to the parties to resolve their disputed expeditiously. Section 89 of the Civil Procedure Code was enacted to popularize among the public, the options available to them, to resolve their disputes through Alternate Dispute Resolution Mechanisms.

Hypothesis

Alternate Dispute Resolution is a means of increasing access to justice without decreasing the quality of justice though its purpose is defeated due to legal intricacies, draftsmen’s error and lack of awareness among individuals.

Analysis of section 89 and its scheme

Section 89 was added through the Code of Civil Procedure (Amendment) Act 1999  into the Code of Civil Procedure, 1908 and it became effective from 01-07-2002. Section 89 reads as under:

“Section 89 – Settlement of disputes outside the Court.-  

(1)Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for – 

a) arbitration; b) conciliation; c) judicial settlement including settlement through Lok Adalat; or d) mediation  

(2) Where a dispute has been referred- 

(a) for arbitration or conciliation, the provisions of the Arbitration  and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat  in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authorities Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

 (d) for mediation, the court shall effect a compromise between the  parties and shall follow such procedure as may be prescribed.”

The objective of Section 89 is to ensure that the court makes an endeavour to facilitate out-of-court settlements through one of the ADR processes before the trial commences[3]

The related provisions which were incorporated by the same amendment Act are those contained in Rules 1A, 1B and 1C of Order X, CPC, which are extracted hereunder:

1A. Direction of the Court to opt for any one mode of alternative dispute resolution.—After recording the admissions and denials, the court shall direct the parties to suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.” 

1B. Appearance before the conciliatory forum or authority.– where a suit is referred under rule 1A, the parties shall appear before such forum or authority  for conciliation of the suit.” 

1C. Appearance before the Court consequent to the failure of efforts of conciliation.- Where a suit is referred under rule 1A and the forum or authority to whom the matter has been referred is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.” 

With the introduction of these provisions, a mandatory duty has been cast on the civil courts to endeavour for settlement of disputes by relegating the parties to an ADR process. Five ADR methods are referred to in section 89. They are: (a) Arbitration, (b) Conciliation, (c) Judicial settlement, (d) Settlement through Lok Adalat, and (e) Mediation.  

Arbitration as well as Conciliation are governed by the Arbitration and Conciliation Act, 1996 (“AC” Act, for short) which superseded the previous Arbitration Act of 1940. Arbitration, unlike conciliation is an adjudicatory process. Once a civil dispute is referred to arbitration, the case will go outside the stream of the court permanently and will not come back to the court. However, in contrast, a dispute referred to conciliation which is a non-adjudicatory process, does not go out of the domain of the court-process permanently. If there is no amicable settlement, the matter reverts back to the court which has to proceed with the trial after framing issues.

Cases not suited for ADR[4]

S.89 of the Code provides for settlement of disputes outside the Court. The cases, which are not suited for ADR process should not be referred under Section 89. These cases may be broadly categorised as;

(1) representative suits under Order 1 Rule 8 of the Code, involving public interest or interest of persons, who are not parties before the Court;

(2) disputes relating to election to public office, except those, where two groups in case of dispute of management of societies, clubs, associations are clearly identifiable and are represented;

(3) cases involving granting relief in rem, such as grant of probate or letters of administration;

(4) cases involving serious allegations of fraud, fabrication, forgery, impersonation, coercion etc.;

(5) cases involving protection of courts for minors, deities, mentally challenged persons and suits for declaration of title against government;

(6) cases involving prosecution of criminal offences etc. 

Cases suited for ADR[5]

All other suits and cases of civil nature normally suited for ADR processes, are:

(1) all cases relating to trade, commerce and contracts including money claims, consumer disputes, banking disputes, tenancy matters, insurance matters etc.;

(2) all cases arising out of strained or soured relationship (social issues) including matrimonial, maintenance, custody matters; family disputes such as partition/ division, and disputes amongst partners;

(3) all cases in which there is need for continuation of pre-existing relationship inspire of disputes such as easementary rights, encroachments, nuisance, employer and employee matters, landlord and tenant, and disputes involving members of societies, associations, apartment owners;

(4) all cases relating to tortuous liability such as motor accident and other accident claims;

(5) all consumer disputes including disputes with traders, suppliers, service providers, who are keen to maintain their reputation, credibility or product popularity.

ADR mechanisms available under section 89 

Arbitration 

Arbitration is an adjudicatory dispute resolution process by a private forum governed by the AC Act. If there is pre-existing arbitration agreement, the matter has to be referred to arbitration invoking Section 8 or Section 11 of the Act. S.89 CPC pre-supposes that there is no pre-existing arbitration agreement.

The Court can looking to the nature of the dispute and the possibility of settlement, in the category of cases mentioned above such as the disputes relating to trade, commerce and contracts, cases relating to tortuous liability or consumer disputes, may gently persuade the parties, to refer the matter to arbitration with the consent of both the sides and not otherwise.

If the parties agree to arbitration then the provisions of AC Act will apply and the case will go outside the stream of the Court. The Court will in such case, where parties agree to refer the dispute to arbitration, make a short order referring to the nature of the dispute, the agreement between the parties, the name of the arbitrator/ arbitrators; take their consent on record or allow the parties to sign the order and refer the case to arbitrator, closing the file.

Conciliation 

Conciliation is a non-adjudicatory ADR process, also governed by the provisions of the AC Act (Ss.61 to 81). Where the Court, looking to the nature of dispute arrives at a satisfaction that there are elements of settlement, it can make a reference to Conciliation, if both the parties to the dispute agree to have negotiations with the help of third party, or third parties, either by an agreement or by the process of invitation and acceptance provided under Section 62 of the Act followed by appointment of Conciliator(s) as provided in Section 64.

Conciliation may include an advisory aspect. The settlement with the help of the conciliator under S.74 of the AC Act has same status and effect as if it is arbitral award on substance of dispute given by arbitral tribunal under S.30. Where the dispute settled with the help of Conciliator is not subject matter of suit/ proceedings, the Court will have to direct that the settlements shall be governed by S.74 of the AC Act (in respect of conciliation proceedings), or S.21 of the Legal Services Authority Act, 1987, (in respect of settlement by a Lok Adalat or a mediator) to make the settlement effective.

On a reference of conciliation, the matter does not go out of the stream of the Court process permanently. If there is no settlement, the matter returns to the Court for framing of issues and trial.

Lok adalat

The reference to Lok Adalat does not require consent of the parties. The satisfaction of the Court to the nature of the dispute, and the elements of settlement, where the issues are not complicated and do not require determination or adjudication of any dispute, may be referred to the Lok Adalat. The Court should make a short order preferably in a few lines recording its satisfaction that the nature of dispute is not complicated; the disputes are easily sort able and may be settled by applying clear-cut legal principles.

Lok Adalat has no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat under S.20 of Legal Service Authority Act, 1987 determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law from the stage, which was reached before reference. No Lok Adalat has the power to “hear” parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement.

In their conciliatory role, the Lok Adalat is guided by principles of justice, equity, fair play. When the LSA Act refers to ‘determination’ by the Lok Adalat and ‘award’ by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non- adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The ‘award’ of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat[6].

To provide compulsory pre-litigation mechanism for settlement and conciliation relating to public utility services, the parliament has amended Legal Services Authority Act, 1987 in the year 2002, providing for Permanent Lok Adalat in every district, exercising jurisdiction in public utility services, such as transport, postal, communications, water supply, hospitals and insurance. The party can make an application under S.22C of the Act to the Permanent Lok Adalat for assistance to conciliate under Sub-Section (4) to settle the dispute in an independent and impartial manner. If the parties fail to reach an agreement under sub-section (7), the Permanent Lok Adalat shall under sub-section (8), if the dispute does not relate to any offence, decide the dispute. The award will be final and binding on all the parties under S.22E, and will be deemed to be a decree of Civil Court and shall not be called in question in any suit, application or execution proceedings.

Mediation

Mediation is a structured process of dispute resolution in which a mediator, a neutral person trained in the process of mediation, works with the parties to a dispute, to bring them to a mutually acceptable agreement. The mediator does not decide the dispute or give an award. He is only a facilitator and in charge of the process of mediation. Mediation rules of each State under Chapter X CPC, as recommended in Salem Advocate Bar Association (I)[7] and (II)[8] by the Supreme Court provide for a detailed procedure for mediation.

The mediation is a purely voluntary process in which parties continue out of their free will. They can opt out at any time. Once an agreement is reached and signed, and is accepted by the Court, it is enforceable in law by the Court. The mediation avoids adversarial approach and instead adopts cooperative methods. The parties focus on mutual agreement with long term gains, which improve their relationship. It offers win situation putting to end to the dispute in an amicable manner. The mediation looks forward and offers long time acceptable solution to the parties.

In B.S. Joshi vs. State of Haryana[9], the Supreme Court held that in cases such as Section 498A IPC and Section 125 CrPC, where after a settlement no evidence may be led, the High Court can quash the first information report or the proceedings.

The mediation is recommended in all such matters in which the relations between the parties have to survive beyond litigation. The Court should refer all such matters to mediation in which disputes relating to properties, partition, marriage and custody of children, commercial and business are involved. The mediation also succeeds in consumer disputes, suppliers, contractors, banking, insurance, labour matters, doctor and patients, landlord and tenant and in cases relating to intellectual property rights.

Mediation is not recommended, where questions of law are involved to be adjudicated by the Court, or in which offences of moral turpitude and fraud are involved. Mediation is also not recommended, when there is serious imbalance between the positions of the parties, in which fair negotiation is not possible.

The court annexed and court referred Mediation Centres have been established in almost all the High Courts and District Courts. In High Court, the Mediation Centres are run by the Mediation Centres under the Supervisory Committees or Director/ Coordinator. In District Courts, Mediation Centres are run by State Legal Services Authorities with a Judicial Officer appointed as Coordinator in each district. There are five essential requirements for any Mediation Centre namely awareness, infrastructure, training of mediators and referral judges, reference by judges under Section 89 and Order X CPC and funds. The 13th Finance Commission has given grants to set up one Mediation Centre in each of the 600 districts in the country with outlay of 750 courts including one court for ADR centres in each district and remaining amount for training out of which 10% may be spent for awareness.

The mediators receive training from the trainers of MCPC and those mediators, who have gained sufficient experience in Mediation Centres in the High court. In the process of mediation after receiving brief summary of the case from the parties, the mediator gives an opening statement, explaining the entire structure including voluntariness of the mediation process. He commits parties to good behaviour and allows them to sign a form to abide by the terms of the mediation process. He actively listens without showing any sympathy, holds joint and separate sessions, to identify the issues of conflict. He, thereafter, proceeds to discuss the strength and weaknesses of the case with the parties and sets up the agenda. He, thereafter, opens the channels of communication, brain storming the options, which the parties generate among themselves, while controlling the process. He allows the parties to focus on their long term interests, takes them out of impasse, if any such situation arise, and brings out underlying issues. The mediator uses dynamic process of negotiation and bargaining explaining the parties to the Best Alternative to Negotiated Settled Agreement (BATNA) and Worst Alternative to Negotiated Settled Agreement (WATNA).

Parties may agree to resolve the dispute, which may also involve the issues, which are not involved in the case, and may arrive at an agreement, which is mutually beneficial and acceptable. The mediator, thereafter, holds, if the parties reach to a settlement in drafting realistic, legal, valid and effective settlement, which resolves all the issues between them and does not leave anything for any further dispute in future. The agreement then comes to the Court and may be accepted with or without modifications, which the Court may suggest and to which the parties may agree. On the acceptance of the agreement, it becomes binding on the parties under Order 23 Rule 1 CPC against which no appeal lies. The agreement may be vitiated only in case of misrepresentation or fraud. The process is entirely confidential in which the mediator binds himself to the confidentiality and cannot be required to appear in court as a witness to the proceedings. The person in charge of Mediation Centre maintains the confidentiality and ethics amongst mediators and in the process of mediation.

Judicial settlement 

The Court may at the stage of Section 89 or Order X Rule 1A, 1B, 1C, looking to the nature of dispute and on being satisfied that there are elements of settlement, refer the dispute for judicial settlement. If the Court feels that a suggestion or guidance by a judge would be appropriate, it may refer the dispute to another judge for dispute resolution. The Judicial Officer to whom the case is referred shall make efforts for settlement between the parties and follow such procedures as may be prescribed. Where the settlement is arrived at before such other judge, the settlement agreement will have to be placed before the court, which referred the matter, and that Court will make a decree in terms of it. The case may not be tried by the same judge to whom the matter is referred for judicial settlement but the parties did not agree to settle the matter.

In case of arbitration and conciliation, it is essential that the parties shall agree to refer the matter to the Arbitrator or Conciliator. In the case of other three ADR processes namely Lok Adalat, mediation and judicial settlement, the consent of the parties is not essential to refer the matter. The Court may on a satisfaction arrived at, on its own discretion even ex-parte refer the matter to these ADR processes. In Family Courts it is recommended that the ideal stage for mediation is before the respondent files objections/ written statements, as in such case, the pleadings written with the help of lawyers very often leads to allegations, which aggravates the hostility between the parties.

Afcons case: a judicial relook 

Despite a number of loopholes, the validity of section 89 was upheld in the case of Salem Bar Association v. Union of India (I), wherein the court had applied purposive construction to uphold its validity. However in Afcons case, it was stated that if section 89 was implemented in literal sense, it will lead to be a “Trial Judges Nightmare”. According to Justice R. V. Raveendran “It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1).”[10]

The first shortcoming pointed out is that there has been error in drafting the meaning of “Mediation” and “Judicial Settlement” under section 89(2). Clause (c) states that for “judicial settlement”, the court shall refer the same to a suitable institution or person who shall be deemed to be a Lok Adalat and clause (d) states that for “mediation”, the court shall effects a compromise between the parties by following such procedure as may be prescribed. The Supreme Court pointed out that in order to give proper meaning to section 89, the said two words should be interchanged.

The second shortcoming is that section 89 (1) requires the court to formulate the terms of settlement and refer the same to the parties for their observation and once the parties approve it the terms shall be reformulated and refer to appropriate forum. However if the court does these things there will be nothing left for the conciliator or mediator to do as this is the task of the conciliator or mediator at the final stage. Also if the dispute is referred to Arbitration it will be of no use as the arbitrator does not adjudicate upon the terms of settlement. This will in no way reduce the burden of the court and the pendency will continue. Thus formulation and reformulation of terms of settlement by the court is wholly out of place in the pre- reference stage of ADR process.[11]

Thirdly, section 89 states that “where it appears to the court that there exist elements of a settlement” and uses the words “shall” and “may”. This implies that the court needs to determine in each case whether it is suitable for ADR or not and refer only those suits which it thinks are capable of being resolved by ADR. However in Order X Rule 1A the term “shall” makes it mandatory for court to refer the suit for ADR. However this ambiguity was cleared in Afcons’ case where the court held that on harmonious construction of both the provisions it is clear that it is mandatory to consider a case for ADR whether or not it is actually referred to.

Another anomaly is with regard to Court fees. The amendment act of 1999 also brought about an amendment in section 16 of the court fees Act, 1870,[12] which states that where a suit is referred by court to any other mode of settlement under section 89 of CPC, the person shall receive back the full amount of the fees that he had paid for plaint. However no remedy has been suggested in case in the person returns back to the court on failure to resolve the dispute through ADR process.

In Afcons Infrastructure case court has also formulated a list of matters which may or may not be suitable for reference to ADR. Cases like representative suits under order I rule 8, election petitions, suits for grant of probate or letters of administration, cases involving serious allegations of fraud, forgery, coercion etc, suits for declaration of title against government, claims against minors etc are classified as unsuitable for reference to ADR. On the other hand cases relating to trade, commerce and contract, cases involving strained relationships, tort claims or consumer dispute are held to be suitable for ADR.[13]

Advantages of ADR

The advantages of ADR are:

(1) to facilitate access to justice to the poor and disadvantaged;

(2) to provide for informal, quick and inexpensive resolution of disputes;

(3) to take away cases inappropriate for adjudicatory process;

(4) remove petty cases, which do not require any adjudication by courts;

(5) to reduce the burden of statistical load of cases on the courts;

(6) to help promoting in trade and commerce, “fair practice, good commerce and equality”;

(7) to maintain peace and harmony in society, by reducing hostility and promoting resolution of disputes in a peaceful manner;

(8) enhancing faith and confidence in the judicial system; and (9) to provide for dispute resolution by morals and not coercion. 

Implementation of ADR

The implementation of Alternative Dispute Resolution mechanisms as a means to achieve speedy disposal of justice is a crucial issue. . The first step had been taken in India way back in 1940 when the first Arbitration Act was passed. However, due to a lot of loop‐ holes and problems in the legislation, the provisions could not fully be implemented. However, many years later in 1996, The Arbitration and Conciliation Act was passed which was based on the UNCITRAL model, as already discussed in the previous section of the paper. The amendments to this Act were also made taking into account the various opinions of the leading corporates and businessmen who utilize this Act the most. Sufficient provisions have been created and amended in the area of Lok Adalat in order to help the rural and commoner segments to make most use of this unique Alternative Dispute Resolution mechanism in India. Therefore, today the provisions in India sufficiently provide for Alternative Dispute Resolution. However, its implementation has been restricted to just large corporates or big business firms. Lok Adalat, though a very old concept in Indian Society, has not been implemented to its utmost level. People still opt for litigation in many spheres due to a lot of drawbacks. Provisions made by the legislators need to be utilized. This utilization can take place only when a definite procedure to increase the implementation of ADR is followed.

Problems or weakness facing in introducing the adr in the CPC 

The ADR in the Code of Civil Procedure 1908 is totally new initiative which leads a lot problem in application of the ADR. The main problems are:

  • In the CPC there  is  no  general  or  specific  guideline  for  the  mediators  regarding  the  maintenance  of equal  participation  and  opportunity  for  the  parties  that  may  create  serious  problem  in  case  of  power imbalance.  There is  also  no  explicit  provision  pertaining  to  reviewing  the  agreement  arrived  at  upon conclusion of mediation under the CPC
  • Further, the CPC incorporates  mediation  provisions  at  the  pre-trial  and  the  appellate  stage  but mediation mechanism upon conclusion of the trial before the pronouncement of judgment has not been incorporated  into the CPC.  It  is  an  established  fact  that  the  parties  usually  are  aware  of  the  merits  of their  case  just  upon  conclusion  of  the  Therefore, post-trial mediation may prove to be more effective than that of the mediation at the appellate stage. Section 89A as it stands after the amendment in 2012 requires the court to refer the suit for compulsory mediation. If either or both the parties and their lawyers remain absent, the court has no option but to postpone the stage to another date. Again, when the parties are in attendance and the court has referred the  suit  to  the  parties  for  mediation,  but  the  parties  or  any  of  them  does  not  appear  before  mediator, then the mediation is bound to fail. In this backdrop, the section does not empower the court with the tools to enforce the attendance of the parties. Thus the present provision adds to the existing practice of delay.
  • Quite often it happens that after the suit has been referred to mediation any of the party does not want to compromise and withdraws from mediation without assigning any reason in which case a mediator has no other option but to report the court about the failure of the mediation. Under section 89A there is no penal provision for the party who unreasonably withdraws from mediation.
  • It is often alleged that lawyers discourage their clients for resolving their disputes through ADR in fear of reduction of their income level.

Conclusion and recommendations

Although ADR programs can accomplish a great deal, however, no single program can accomplish all these goals. They cannot replace formal judicial systems which are necessary to establish a legal code, redress fundamental social injustice, provide governmental sanction, or provide a court of last resort for disputes that cannot be resolved by voluntary, informal systems. Furthermore, even the best-designed ADR programs under ideal conditions are labour intensive and require extensive management. In the development context, particular issues arise in considering the potential impacts of the ADR. Firstly, some are concerned that ADR programs will divert citizens from the traditional, community-based dispute resolution systems. To modernize the ADR in the Civil Procedure Code the mentioned loopholes should be removed.

The  legal  framework  of ADR  has  developed  in Bangladesh over  the  last  few  years  and acquired  a distinct  position  in  the  dispute  resolution process. ADR mechanisms can now be applied  in  resolving  a  wide array of  commercial  disputes,  family  disputes  and  civil  disputes,  among others, thus  easing  access  to  justice. However, if we juxta pose the ADR provisions under different laws of the country with their functional aspects, then it will be obvious that the court based ADR mechanisms could not manage to yield satisfactory results it has been expected at the time of their introduction. It is true that Court Based ADR under different laws can be transformed not  only  to  an aid  to  the  earlier  resolution  of  litigation but can  also  be  used  as  a tool  for case management. It is  in  the public  interest  that  the  constitutional  function  of  the  judiciary should not  compromised  by blurring  its  boundary   with  non-judicial  services. So  long  as  the  clarity  of  the  distinction  is  maintained  and appropriate  quality  controls,  including  evaluative and  cost-benefit  assessments  undertaken, then the  ADR  has much to offer in connection with the judicial process. Alternatively, mandatory ADR requires careful oversight to ensure that it should not be coercive and should not impose too much of a barrier to trial for those parties who want or need judicial determination.  Thus Alternate Dispute Resolution is a means of increasing access to justice without decreasing the quality of justice though its purpose is defeated due to legal intricacies, draftsmen’s error and lack of awareness among individuals.

Edited by Dhruval Singh
Approved & Published by Sakshi Raje

Reference

[1] Dr. H. K. Bhardwaj, “Legal and Judicial Reforms in India”, the International Centre for Alternative Dispute Resolution, available at http://icadr.ap.nic.in/articles/articles.html.

[2]http://articles.economictimes.indiatimes.com/2014-12-07/news/56802830_1_120-cases-high-courtsexpeditious-disposal.

[3] Law Commission Of India, 238th Report, “Amendment of section 89 of Civil Procedure code, 1908 and Allied Provisions”, pg 4

[4] Justice Sunil Ambwani Judge, Allahabad High Court, Alternative Dispute Resolution, National Judicial Excellence Enhancement Programme, National Judicial Academy India, Bhopal, September 11th, 2011.

[5] ibid

[6] State of Punjab & Anr. Vs. Jalour Singh & Ors., (2008) 2 SCC 660;

[7]Salem Advocate Bar Association (I), (2003) 1 SCC 49;

[8] Salem Advocate Bar Association (II), (2005) 6 SCC 344;

[9] B.S. Joshi vs. State of Haryana, AIR 2003 SC 1386;

[10] Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) Ltd.,2010 7 SC 616.

[11] R.V. Raveendran, “Section 89 CPC: Need for an Urgent Relook” 4 SCC Journal 23 (2007).

[12] Refund of fee: Where the court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 the plaintiff shall be entitled to a certificate from the court authorizing him to receive back from the Collector, the full amount of the fee paid in respect of such plaint.

[13] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., JT 2010 (7) SC 616.