Historical Background of Alternative Dispute Resolution
๐ Historical Background of Alternative Dispute Resolution (ADR)
๐น What is ADR?
Alternative Dispute Resolution (ADR) refers to mechanisms for resolving disputes outside of the traditional court system, such as:
Arbitration
Mediation
Conciliation
Negotiation
Lok Adalats (in India)
ADR systems are less formal, faster, cost-effective, and encourage amicable settlement of disputes.
๐น Global History of ADR
๐บ Ancient Civilizations
ADR is not a modern invention. Informal dispute resolution existed in:
Ancient Greece (village elders acted as mediators)
China (Confucianism encouraged harmony and reconciliation)
Africa (tribal councils and community leaders mediated conflicts)
Islamic Law (Sulh โ amicable settlement)
โ๏ธ English Common Law
Though court systems were dominant in Britain, arbitration and conciliation evolved as private methods to resolve commercial disputes.
The Arbitration Act, 1698 in England gave statutory recognition to arbitration.
๐น Evolution of ADR in India
๐๏ธ Ancient and Medieval India
India has a long and rich history of non-judicial dispute resolution.
1. Panchayati System
Village disputes were resolved by Panchayats โ groups of respected elders.
These were early forms of community-based arbitration and mediation.
It emphasized:
Social harmony
Cost-free justice
Speedy resolution
2. Religious Institutions
Temples and religious leaders often resolved matrimonial or property disputes through conciliation.
3. Guilds and Merchant Bodies
In ancient trading cities like Kanchipuram and Varanasi, merchant guilds arbitrated commercial disputes.
โ๏ธ British India Era
The British introduced a formal legal system, but arbitration was still used.
Civil Procedure Code, 1859 first included provisions for arbitration.
Later replaced by:
Arbitration Act, 1899
Second Schedule of Civil Procedure Code, 1908
These laid the statutory foundation for arbitration and out-of-court settlements.
๐ Post-Independence Development
Arbitration Act, 1940
Modeled on the English Arbitration Act, 1934.
Considered cumbersome and court-dependent.
Required court intervention even at early stages.
๐จ Judicial Criticism of 1940 Act
Case: Guru Nanak Foundation v. Rattan Singh (1981 AIR 2075)
Supreme Court criticized the 1940 Act as:
"A lawyer's paradise... the proceedings under the Act are highly technical, full of traps, and many times, unfair."
This highlighted the need for reform.
๐น Modern ADR System in India
โจ Arbitration and Conciliation Act, 1996
Based on the UNCITRAL Model Law.
Replaced the 1940 Act.
Introduced Conciliation for the first time.
Objectives:
Minimize court intervention
Promote party autonomy
Make arbitration faster and cost-effective
๐น ADR under Legal Services Authorities Act, 1987
Established Lok Adalats โ a statutory forum for compromise and amicable settlement.
Provided legal recognition to a traditional method of ADR.
No court fee and decisions are final and binding.
๐น Important Constitutional & Statutory Recognition
Article 39-A (Directive Principles): Free legal aid and equal justice
Section 89 CPC (Amended in 2002): Mandates courts to refer disputes to ADR mechanisms where appropriate
๐น Important Case Law
1. Afcons Infrastructure Ltd. v. Cherian Varkey Construction (2010)
Supreme Court clarified when and how courts should refer disputes to ADR under Section 89 CPC.
Explained differences between mediation, arbitration, and conciliation.
2. Salem Advocate Bar Association v. Union of India (2003)
Supreme Court upheld the constitutional validity of Section 89 CPC.
Emphasized the need for ADR to reduce court burden and promote speedy justice.
๐น International Influence
India is a signatory to:
New York Convention (1958)
UNCITRAL Model Law (1985)
This has boosted international commercial arbitration in India.
๐งพ Summary Table
| Period | Development in ADR |
|---|---|
| Ancient India | Panchayats, elders, guilds, religious leaders |
| British India | Arbitration Act, 1899; CPC provisions |
| Post-Independence | Arbitration Act, 1940 |
| Judicial Criticism | Guru Nanak Foundation case |
| Modern Era | Arbitration & Conciliation Act, 1996 |
| ADR Expansion | Lok Adalats, Mediation under CPC, Section 89 |
๐ Conclusion
The evolution of Alternative Dispute Resolution in India is rooted deeply in traditional practices, later codified and modernized through legislative reforms. While ancient systems like Panchayats and religious mediation laid the foundation, statutory developments like the 1996 Act and Legal Services Authorities Act, 1987 have institutionalized ADR in India.
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