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counsel on behalf of the complaint would humbly submit before the Learned Session Court that the accused is guilty for dowry death under Sec.304B of IPC as everything changed with the deceased after the marriage. Even though the agreed money was fully paid. The in-laws of the deceased pressurize her for more money. There was a demand for an Audi Car and a fixed deposit of Rs. 1.5 crore. After giving birth to a girl child she was sent to her parental home. Later after 3 months she was brought back by A-1, but his behavio
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(A project work toward the fulfilment of 6th semester BA LLB integrated) Course for the academic session (2019-2024) SUBMITTED BY: NAME: CHAYA DEEPIKA GEDDA REGD.NO: 1941802057 BATCH: B.A.LLB [H] 2019- 24 SOA NATIONAL INSTITUTION OF LAW SOA DEEMED TO BE UNIVERSITY, BHUVUNESWAR.
It gave me immense pleasure, to write a preface on my assigned work the title “ROLE OF ADR IN ACCESS TO JUSTICE” I have divided to the assigned work, in three chapters:- 1st Chapter: - I have introduced the topic. 2nd Chapter: - I have explained the ADR 3rd Chapter: - I have explained the constitutional legitimacy adultery 4th Chapter: - I have concluded the topic I have tried my best to omit the errors but still, if any, then these are deeply regretted & the feedbacks are most humbly welcome…. (Chaya Deepika Gedda)
This is to certify that CHAYA DEEPIKA GEDDA of B.A., LLB course has successfully completed, his “ALTERNATIVE DISPUTE RESOLUTION” on the top “ROLE OF ADR IN ACCESS TO JUSTICE” as provided by the institution for the Session of 2019- 2024
1908, which provided for arbitration, but it was repealed by Section 49 and Schedule III of the Arbitration Act of 1940. By promulgating legislation in the three presidential towns of Calcutta, Bombay, and Madras, the British administration gave the law of arbitration legislative form. The Bengal Resolution Act of 1772 and the Bengal Regulation Act of 1781 gave parties the option of submitting their differences to an arbitrator who was appointed by mutual accord and whose decision was binding on both parties. These were in effect until the Civil Procedure Code of 1859, and they were extended to the Presidency towns in 1862. Today with the backlog of cases in courts across the country slowly being reduced, ADR is increasingly being explored, however; ADR in India is still relatively in its infancy stage. LAWS RELATED TO ADR IN INDIA Civil Procedure Code 1908 India Arbitration Act, 1899 The Arbitration (protocol and convention) act 1937 The Arbitration Act of 1940 Arbitration and Conciliation Act, 1996 Dispute resolution is an important mechanism in order to make social life stable. When civilization began and when people started interacting with each other, the basis of their rights gave birth to the dispute between them. To resolve the dispute between them, a mechanism was required. Dispute resolution mechanism aims to settle and manage disputes, facilitating cooperation between individuals and groups. Thus, it can be argued that it is the stability that people require socially, without which it can be difficult for individuals to carry on with life together. Commercial transactions are increasing in today’s world. All trade can involve disputes, and effective trade must have the means to resolve disputes other than force them. In trade, if two traders are in a dispute over the price or quality of the delivered products, they will normally turn to a third party whom they trust. In the modern world this process is known as arbitration, international commercial arbitration takes formal action at international level as a dispute settlement mechanism between the parties during international trade i.e. when two countries trade with each other.
What is Alternative Dispute Resolution? Alternative Dispute Resolution (ADR) is a term used to describe the various ways in which legal disputes are resolved. The business world as well as common people are discovering that it is impracticable for many individuals to file lawsuits and seek timely justice. The Courts are backlogged with case files resulting in a year or more delay for the parties to hear and resolve their cases. In response to this question of delayed justice, the ADR Mechanism was created. Alternate dispute resolutions approaches are gradually being recognized at both national and international level in the field of law and commercial sectors. The diverse approaches can help parties settle their conflicts efficiently and expeditiously on their own terms. In addition to the trials, alternate conflict resolution strategies are in character. Alternative conflict resolution techniques can be used in almost all contested matters, which can be settled by agreement between the parties according to statute. Alternative conflict resolution methods can be used in different dispute types, in particular; legal, economic, and industrial and family disputes. Alternative dispute resolution strategies provide the best solution with respect to trade disputes to aid the country’s economic development. The aim of justice is to provide redress for the aggrieved and helpless. If, after the death of the petitioner or if the subject matter exhausts, the courts delay the trial and give justice, it cannot be termed as punishment. The alternative dispute resolution process is being implemented because a mechanism was required that worked effectively and offered a friendly and speedy solution to people’s disputes. As the name suggests, ADR is an alternative to the conventional court-led dispute resolution procedure. It is the method of dispute settlement as an alternative to the standard judicial process. Such approaches are appropriate for reform and implemented to improve the judicial system in developing countries. The alternative dispute resolution system has been adopted by many countries like India. The adoption of ADR in India is a major step by lawmakers and the judiciary towards achieving the “Constitutional Target” of complete justice in India. Given the huge number of cases pending, governance and administrative oversight of the judiciary by manual processes has become extremely difficult. The Supreme Court stated emphatically that somehow this matter must be addressed: ‘An impartial and effective judicial system is among our constitution’s core components… It’s indeed our statutory role to check that a bottleneck of cases are reported and that measures are made to expedite case disposition.” By the very technique used, the alternative dispute resolution system will maintain and strengthen personal and business relationships which the adversarial process might otherwise be harmful. It
Arbitration Arbitration, a type of alternative dispute resolution (ADR), is a strategy for resolving conflicts outside of the court system in which the parties to a disagreement refer it to one or more people, known as arbitrators, to whom they intend to be bound by their judgement. It is a method of dispute settlement in which a third person examines the evidence in the case and renders a legally enforceable decision for both parties. Arbitration awards have limited right of review and appeal. Arbitration is not the same as civil and mediation proceedings. Arbitration can be optional, or mandatory. Clearly, mandatory arbitration can only come from a law or arrangement that is mutually signed where the parties agree to arbitrate all current or future disputes without necessarily knowing what disputes will ever occur. In India, if the matter is referred to Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will apply. The main types of ADR are as under: Voluntary Arbitration: - Voluntary arbitration takes place when two parties voluntarily or mutually agree to submit their issue to a third party. It is normally done by parties entering into a formal, written agreement. This is a binding adversarial dispute resolution process where the disrupting parties decide to choose one or more arbitrators to hear their disputes and give a final decision on that matter. Voluntary arbitration is a process of settling disputes by submitting the issue to an independent and neutral third party for a final and binding decision, which is mainly said to be an ‘award’ or ‘decision’. Arbitration in some form has an important place in most of the government systems of labour dispute settlement and is also at times used voluntarily by disputing parties for settling their disputes. The terms of collective agreements may be provided to deal explicitly with rights disputes originating out of the agreement, as is common in the United States and Canada, or to deal with interest disputes that are occurring elsewhere. Compulsory Arbitration : - Compulsory arbitration is arbitration of labour disputes which laws of some communities force the two sides, labour and management, to undergo. These laws mostly apply when the possibility of a strike seriously affects the public interest. Some labour contracts make specific provisions for compulsory arbitration should the two sides fail to reach agreement through the regular system of collective bargaining Other Types of Arbitration Ad-hoc Arbitration;
Institutional Arbitration; Statutory Arbitration; Domestic or International Arbitration. Just like the diversity in causes of disputes, the settlement models are also varied. Alternative Dispute Resolution encompasses a wide array of practices, which are directed towards a cost-effective and quick resolution of disputes. ADR, as the name suggests, is an alternative to the traditional process of dispute resolution through courts. It consists of a set of practices and techniques to resolve disputes outside the courts. Since it actively involves parties themselves to settle their disputes, it results in the amicable settlement of disputes, which is not possible generally through courts. Hence, these practices are escape routes from the tiresome adjudication process. Many of such practices have evolved to settle the disputes with minimum adverse impact on the relationship between the parties. Mahatma Gandhi has said, “I realized that the true function of a lawyer was to unite parties…” Hence, the role of lawyers in promoting non-adversarial dispute settlement mechanisms is undoubtedly very significant. The ADR techniques mainly include arbitration, conciliation, mediation, and negotiation. In India, Look Adalat stands as another additional form of ADR mechanism, which combines different techniques like conciliation, mediation, and negotiation. Conciliation It is a form of alternative dispute resolution in which the parties to a dispute hire a conciliator to help them resolve their issues individually. They do this by reducing conflicts, strengthening coordination, identifying problems, offering technical assistance, discussing possible solutions and bringing about a negotiated settlement. In this manner, it is a bit different from Arbitration. It is a consensual process in which the parties involved are free to reach an agreement and try to resolve their disagreement through conciliation. The method is versatile, which helps the parties to determine the time, duration and content of the conciliation procedure. Those proceedings are seldom public. These are interest- based, as the conciliator must take into account not only the legal positions of the parties but also their; economic, financial and/or personal interests when negotiating a settlement. In the Indian sense, the terms conciliation and mediation are synonymous. Conciliation is a cooperative mechanism through which the conciliator, a qualified and professional neutral, facilitates negotiations between the disputing parties and assists them in recognizing their differences and desires in order to reach an arrangement that is mutually acceptable. Once a settlement has been found before a conciliator between the parties to the conflict, the resolution has the effect of an arbitration award and is legally tenable in any court in the country. Many trade disputes, in which it
agreement obtained through formal negotiations. The first Lok Adalats was conducted as far back as 1982 in Una village of Junagadh (Gujrat). Adalats also recognize cases within their jurisdiction which are pending in regular courts. Section 89 of the Code of Civil Procedure also provides for the appeal to the Lok Adalat of pending civil disputes. When the matter is referred to the Lok Adalat then it will follow the provisions of the Legal Services Authorities Act, 1987. The holding of Lok Adalat is governed by Section 19 of the Legal Services Authorities Act, 1987. Beyond the basic types of alternative dispute resolutions there are other different forms of ADR: Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective Positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement. Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members. Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes. Expert determination: a procedure where a dispute or a difference between the parties is submitted, by mutual agreement of the parties, to one or more experts who make a determination on the matter referred to them. The determination is binding, unless the parties agreed otherwise and is a confidential procedure.[1] Embeds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents. An organizational ombudsman works within the institution to look into complaints independently and impartially. "Alternative" dispute resolution is usually considered to be alternative to litigation. For example, corporate dispute resolution can involve a customer service department handling disputes about its own products; addressing concerns between consumers and independent, third-party sellers; and participating in a reputation- based enforcement mechanism. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.
In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster " appropriate " dispute resolution. That is, some cases and some complaints, in fact, ought to go to a formal grievance, to a court, to the police, to a compliance officer, or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not the courts. "Appropriate" dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue. ADR can increasingly be conducted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive product). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR. Advantages of ADR Alternative dispute resolution (ADR) procedures have several advantages: Reduced time in dispute- It takes less time to reach a final decision. Reduced costs in relating to the dispute resolution- It requires less money i.e. it is cheap. Flexibility-Parties have more flexibility in choosing what rules will be applied to the dispute. They have the freedom to do so. Produce good results- settlement rates of up to 85 percent. Improved satisfaction with the outcome or manner in which the dispute is resolved among disputants. Increased compliance with agreed solutions. A single procedure– Parties can agree to resolve in a single procedure a dispute involving intellectual property. Party autonomy- Because of its private nature, ADR affords parties the opportunity to exercise greater control over the way their dispute is resolved than would be the case in court litigation. In contrast to court litigation, the parties themselves may select the most appropriate decision-makers for their dispute. In addition, they may choose the applicable law, place and language of the proceedings. Increased party autonomy can also result in a faster process, as parties are free to devise the most efficient procedures for their dispute. This can result in material cost savings.
There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. Arbitration decisions are final. With few exceptions, the decision of a neutral arbitrator cannot be appealed. Decisions of a court, on the other hand, usually can be appealed to a higher court. Participation could be perceived as weakness. While the option of making the proceeding confidential addresses some of this concern, some parties still want to go to court “just on principle.” The case might not be a good fit-Alternative dispute resolutions generally resolve only issues of money or civil disputes. There are limits to the discovery process-One should also be aware that he is generally proceeding without the protections offered parties in litigation, such as those rules governing discovery.
Access to Justice Access to Justice and Alternative Dispute Resolution (ADR) movements have influenced both legal thinking of civil procedure and policymaking on the functioning and role of the courts. Both movements have uncovered weaknesses and malfunctions of the traditional court system and civil procedure, and both have offered solutions to improve and develop the systems. The two movements were born in the late 1960s and early 1970s. They both offer a criticism of civil procedure based on practical, ideological and academic knowledge and insights. In this text, the relationship between Access to Justice and ADR will be explored. To start, the two movements will be introduced. Both movements argue that settlements and procedures outside of the courts might be a solution under some circumstances. Then a short presentation of the discussion on the advantages and disadvantages of settlements and different methods of dispute resolution in both movements follows. The ideas of the ADR movement have been partly embraced and implemented by the legislator. The legislators have, however, only taken some limited parts of the ideas of the ADR movement; therefore, the way court- connected ADR is practiced is often far from the original ideas and ideals. After the general discussion on the developments of the two movements, the way ADR can both enhance and hinder access to justice is discussed. Finally, the way ADR can be used to increase access to justice will be analyzed. Access to Justice and Alternative Dispute Resolution Movements The Access to Justice Movement is based on the idea that the civil procedure system and legal rules should be equally accessible to every citizen. The movement has provided insights on how legal and societal structures and institutions influence the function of the courts and how the actual access to justice often is weak for many social groups. A criticism of the traditional purely normative approach to civil procedure is one of the cornerstones of the movement. It is both a reform movement for societal change and a theoretical approach, based on interdisciplinary research, for analyzing the problems in civil procedure. Three “waves” of the movement have been identified: the first wave focused on the cost of litigation and the need for legal aid, the second wave focused on collective and fragmented claims and making use of class or group actions and the third wave focused on using ADR to provide an alternative way to solve disputes. These waves are based on a broad international analysis and do not necessarily fit the Nordic context. In the Nordic countries, consumer protection Boards and ombudsmen have been an accessible way to solve disputes, and legal Aid has been readily available. However, civil (court-connected) mediation and other forms of civil alternative dispute resolution processes are fairly new in Europe. Access to justice refers to any type of hindrances for the citizens to have a practical and usable way to realise their legal rights. The three wave model does not cover all hindrances citizens are facing. There are many other
the parties. The core of the movement has been directed towards developing mediation as a method for dispute resolution. Other strands of the ADR movement have been more focused on involving the parties and the local community, such as the community justice movement and groups developing public mediation initiatives such as regulation–negotiation (reg–neg). Since the 1970s, the ADR field has developed to include many different forms of dispute resolution used in various contexts, a more general theory on different forms of dispute resolution, when to choose what kind of dispute resolution and how to design dispute resolution systems within an institution. Conflict resolution theories, which the ADR movement are based on, have brought new perspectives to dispute resolution. One of the most important insights is the difference between conflicts and disputes, where the word conflict refers to the underlying set of events, facts and relationships forming the backdrop of a dispute, usually a single event that can be legally defined to form the basis for a claim. The dispute is a reformulation and a part of a conflict as it is defined by a lawyer as legally relevant. The conflict is the background of the dispute and is Usually much more complex. By solving the dispute, the underlying conflict is often not solved. The idea of ADR was to provide not only alternative dispute resolution but also appropriate dispute resolution, which means that the process matches the needs of the parties and the kind of dispute at hand. ADR is an integral part of a multi- door courthouse, where disputes are directed into different “rooms”, offering different dispute resolution processes. Judges and legislators were also interested in the reduction in conflict levels because a reduction in the conflict level probably reduces the need for further litigation and for the government to take measures to enforce the agreement. Many were also interested in the possibility to achieve a less stressful, less contentious, and less competitive procedure and better results for the parties. ADR could give citizens more affordable and faster ways of solving their cases than litigation. Especially, small claim mediation and neighborhood justice centers could contribute towards this aim and would therefore also contribute to access to justice. The growth of ADR, especially mediation, outside the courts, has been dependent on three concurrent developments: dissatisfaction with the legal process for creating good results, dissatisfaction with cost and delay of court procedures and the increased legislation on arbitration making arbitration more expensive and less flexible. The dissatisfaction with the procedure itself and the results could to some degree, be compared to the limited aspects of justice, namely mostly the distributive, discussed in court, and the limited legal remedies. As different dispute resolution processes have been developed, ADR today includes theories on different types of dispute resolution and on dispute resolution system design. Different ways of classifying dispute resolution have been developed. One important method of distinguishing between the systems is to look at the role of the third party involved. In adjudicative processes, the third party decides the case for the parties (e.g., arbitration); in non-binding adjudicative processes the third party decides the case but the decision is not binding for the parties (e.g., non-binding arbitration, summary jury trial); in evaluative processes, the third party gives an
evaluation of the case, or a recommendation, but does not give a final decision (e.g., Early Neutral Evaluation, Expert Evaluation); in facilitative processes, the third party helps the parties find a solution but does not decide or give a recommendation (e.g., mediation, conciliation); and in non-third party processes the parties decide the case without involving a third party (e.g., collaborative law, negotiation). There are also mixed or hybrid processes, combining elements from two or more pure processes (e.g., med-arb, evaluative mediation and mini- trial). The second way of classifying processes is to look at the use of norms: are the norms used predominantly legal, social or professional; who decides which norms are used, and are (legal/social) roles used as the sole or primary source for the outcome; or can the parties themselves decide if norms are used and which norms are used? The parties can either get help to form norms to solve the conflict (and future interaction between the parties); the parties could be educated about relevant norms, which they could then adapt and apply in their conflict, or the third person could advocate the use of, and a specific understanding of, a certain set of norms, Usually legal or technical norms. The second way is to look at the level of formality in the processes and categories them as formal, semi-formal and informal. The third way is the most holistic approach as it offers a number of different variables for evaluating the relative formality or informality of any dispute resolution process. From early on, the ADR movement has faced many challenges, especially within the legal court- connected context. Mediation has become a term used to describe a wide range of processes. This is problematic because the movement is not just about finding alternative but also about finding appropriate dispute resolution and requires that many different processes should be available to find the most appropriate procedure to solve a specific dispute. When ADR is reduced to mediation, the benefit of having a range of processes will disappear. Moreover, court-connected mediation has been co-opted by lawyers and often reduced to a process resembling judicial settlement conferences. Much of the criticism of dispute resolution within the court system and much of the ideas for offering alternative, more constructive and economically more sound process and outcomes were lost in the process. This development is discussed in more detail below. Finally, the focus has been on dispute resolution within the court system, as court connected dispute resolution. ADR often refers to dispute resolution where the court mandates or recommends alternative dispute resolution after the parties have filed the case, has shifted focus away from dispute resolution outside the courts and the narrow legal frame, such as dispute resolution boards and neighborhood justice. Consequently, lawyers, policymakers and the legislator often lack an understanding of the idea of ADR as appropriate dispute resolution and of them any different and truly alternative ways to solve disputes. ADR as a synonym for mediation (and sometimes arbitration) is only a small piece of what the movement has to offer for Dispute resolution, the society and research and theories on dispute resolution.
