Any dispute is just like a Cancer. If it is resolved sooner, it is better for all the parties concerned to it. If it is not resolved at the beginning, it grows at the very fast rate and with time, it becomes very difficult to resolve it.As new issues emerges and conflicting situation flourish. In this way one dispute leads to another and new complexities arises thereby leading to multiplicity of proceedings. Therefore, it is always better to resolve it at the moment it rears its head. Therefore, it is necessary that the procedure of resolving it must be agreeable by both the parties.
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The adversarial system of justice is plagued by the high cost of litigation, delay, technicalities of law, uncertainty and exploitation of parties by the advocates. Therefore, it is necessary to think over the inquisitorial form of justice. Alternative Dispute Resolution (hereinafter ADR) has emerged as a solution to the problems posed by the adversarial system of Justice at least in the small cases.
HISTORY OF ALTERNATIVE DISPUTE OF RESOLUTION IN INDIA:-
ADR is not new to India. Mediation was a method of dispute resolution in India even centuries before British arrived. In ancient time there was Panchayat System in India. This system was used by the village heads to resolve community dispute. It is prevalent in Indian society till date. Mediation was used as a tool to resolve the dispute even in the businessmen class in pre-British period. At that time impartial and respected businessman were requested by business association members to resolve disputes through informal procedure.
In pre-British period in tribal areas disputes were resolved by panchas, who were wise persons of that locality. The disputant members of a tribe used to present their dispute to the panchas who had to work out for settlement. In case of its failure it was referred to a public forum attended by all interested members of the tribe for resolution. After considering the dispute, available solution, interest of the tribe in great detail, panchas used to try once more to resolve it. If settlement was possible yet, then the panch rendered a decision that was binding upon all the parties. However, the decision of the panchas was not arbitrary rather it was based on the tribal laws as well as such other consideration which was necessary to maintain harmony and prosperity. The main significance of this system was that all proceedings were oral and there was no record of the outcome. Instead of legal authority those kinds of dispute resolution procedures were regularly used and commonly accepted in the Indian society.
Thus, in India ADR is not a new concept rather ADR relating resolution has been amended from time to time to cater speedy dispute resolution. Indian judiciary has also encouraged it at various occasions. For eg : In Salem Advocate Bar Association v. Union of India the Honourable Supreme Court of India directed the constitution of an expert committee to formulate the manner in which the provision relating to ADR incorporated in Section 89 of Civil Procedure Code – 1908 has to be brought into operation. For the effective implementation of ADR mechanism, several organisations and institutions like ICA, ICADR, Consumer Redressal Forum and Lok Ad alat were revived. The Old Arbitration Act, 1940 was repealed and new Arbitration and Conciliation Act, 1996 was enacted. The new Act of 1996 is based on International Trade Law (UNCITRAL) model law on International Commercial Arbitration.
PENDENCY OF CASES IN THE INDIAN COURT:-
Delay in justice not only...