It has been written by Himani, a second-year law student of Department of Laws, Panjab University, Chandigarh.

INTRODUCTION

Alternative Dispute Resolution (ADR) is required to solve the disputes of various types outside the ordinary court process in India. The practice of Alternative Dispute Resolution (ADR) refers to the processes, which offer an alternative way of approaching a dispute rather than pursuing litigation. ADR is applicable in a broad range of fields, including commercial disputes, family law matters (such as child custody issues), and even work conflicts. Finally, ADR can also extend to international dispute resolution. Its adaptability and resolution of interest-based are employable for a mutually satisfactory conflict resolution. It is mentioned in Section 89 of the Code of Civil Procedure (CPC) 1908. Overall, the dominant intention of Section 89 is to unburden the court and induce parties to settle their disputes through alternative dispute resolution mechanisms. Giving A Simplified, Quick, Cost-Effective and Amicable Resolution Section 89 of the Civil Procedure Code,1908 lays down auspices for reference as an alternative mode of dispute resolution.

Section 89 recognizes Arbitration, Conciliation, Mediation, and Judicial Settlement amongst which Lok Adalat settlements are also significant. Also, any compoundable offense including the offenses of marriage continuing between parties may be referred to mediation by the court under section 6 of the Mediation Act, 2023. However, the results of mediation will also be considered by a court following current legislation.

HISTORY

In India for the first time, the Law Commission recommended the ADR in its 129th report of December 1988. For a similar purpose and to give effect to the 129th report of the Law Commission of India, Clause 3(d) of the Code of Civil Procedure Bill 1997 if it will be made obligatory for the court to refer to the same after the framing of issues to one or the other form of ADR for settlement of the dispute culminating into the effective operation of the aforesaid conciliation scheme. The requirements of Clause 7 are based on the Malimath Committee and Law Commission recommendations. The Amendment Act of 1999 added Section 89 to the CPC, and it went into effect on July 1, 2002.

Ø The section is based on the idea that not every controversy must be resolved in the court, through a lengthy and sometimes expensive trial. Thus, achieving the ADR supported by Section 89 is used to present an option that is less destructive, more effective, and non-adversarial. It allows the court to determine whether the disputes are appropriate for ADR and the parties are encouraged to solve the problems on their own. It is rational and seems to understand that litigation cannot always be the best method to solve conflicts.

Ø However, Section 89 has not been without problems in its operation and this is borne out by the fact that there is low awareness, training, and facilities to support ADR. Nevertheless, it still demands massive legislative endeavors to change the profile of conflict management in India urging for reconciliation enforceable through settlement over the lengthy litigation. Proactively, the judiciary in India has been supporting only ADR methods incorporated under Section 89 which is essential for the authorization of such systems as well as the effective decrease of caseload in the courts of India. The court may revise the terms of a potential settlement and refer them for:

§ the Court shall refer the matter to the Lok Adalat u/s 20(1) of the LSAA, 1987 and all other provisions of the said Act shall be applied for the dispute referred to Lok Adalat. If the parties so desire, the Court shall forward the matter to a suitable institution or person and then, such institution/person shall be deemed to be a Lok Adalat and all the provisions of the LSAA, 1987 would be applied.

§ If the parties accept, the Court will help the parties to solve the problem and will follow the prescribed procedure. For arbitration or conciliation, the provisions of the A & C Act, 1996 (26 of 1966), shall be applicable;

RELATED PROVISIONS

The other related provisions that were inserted by the same Amending Act are enumerated in the following excerpts of Order X CPC’s Rules 1A, 1B, and 1C:

§ Rule 1A- As soon as the admission and denial have been taken it should be the duty of this court to see that the parties to the suit proceed to some one of the modes of settlement out of court referred to u/s 89(1). Hence, the specific time at which the parties will appear in any forum or any other authority will be at the discretion of the court.

§ Rule 1B- This rule also indicates that in case the lawsuit was referred under rule 1A, the parties must present themselves before the authority or forum to be referred for directions.

§ Rule 1C- This rule intends and takes cognizance of the fact that the forum or any other authorities to which a suit has been referred under Rule 1A will dismiss the case in as far as they consider further prosecution would not be in the interest of justice to continue then refer to the proceedings and order the parties to appear on such a date as the court of record shall set.

STAGES FOR REFERRING TO ADR

When the subject is brought up for a preliminary hearing for the examination of parties under Order 10 of the Code, following the conclusion of the pleadings but before the drafting of the issues, the court should investigate whether the matter should be sent to the ADR processes. But even after formulating concerns, the court had, if for any reason, overlooked the chance to take the case under consideration and submit it to ADR procedures under Section 89. But once the evidence starts, the court will not want to send the case to alternative dispute resolution (ADR) proceedings as it may worry that sending things to alternative dispute resolution (ADR) could just drag out the trial and make things more complicated than they already are.[1]

COURT RETAINS JURISDICTION EVEN FOLLOWING REFERRAL

Overlying, the Court maintains its jurisdiction even after a referral has been made.

However, the court does not entirely relinquish its jurisdiction and authority over the case even if it is before the ADR forum, except in cases of arbitration. It exits the court jurisdiction if it is referred to an arbitrator. Section 74 read with Section 30 of the AC Act makes it clear about the enforceability of a Settlement Agreement arrived at during the conciliation process which is like that of a court decision. Similarly, even if a settlement is arrived in some other manner other than Lok Adalat, then under Section 21 of the Legal Services Authorities Act, 1987 the Lok Adalat award can be made executable as a decree of a Civil Court. This means that in a direct referral where the parties reach an agreement on the settlement of the case without or with little interference from the court, the agreement does not need the approval of the court for it to be implemented. However, if the settlement agreement is made consequent to a reference by the court in a pending suit or proceedings, the scenario will be different.

IN SOME CASES, THE REFERENCE MAY ONLY BE MADE WITH THE COURT’S PERMISSION

Arbitration or conciliation can only be done if both parties consent that the certain issue in controversy should be referred to arbitration or conciliation. The court cannot compel the parties into arbitration or conciliation if they do not want to undergo the process. In a case[2], the court held that the attorneys’ oral consent without having a reduction in a memo containing their instructions is unilaterally insufficient to refer a dispute to arbitration under Section 89 of CPC, 1908. These terms must be contained in a written memo or both party's application. In case the amicable settlement of the dispute is achieved through conciliation then the conciliation agreement will be, complied with and realized in the terms of a civil court decree and shall have the status of an arbitration award.

THE DECISION'S BINDING NATURE IN A MATTER REFERRED UNDER SECTION 89

In a case [3] submitted under section 89 of the CPC, the court addressed whether the ruling was binding. Naturally, the matter leaves the civil court's jurisdiction and becomes the subject of arbitration, with the parties agreeing to the arbitrator's ruling. That is untrue, though, if the court directs the parties to alternative conflict resolution procedures because the courts are always competent to handle disputes.

As earlier noted, the recommendation of a matter to arbitration under Section 85 of the act afterward, the case goes outside the arena of the court and becomes a separate process before the arbitral tribunal. Part V of the Act mostly speaks about the Arbitration and it can be observed from this Section 36 of the Act that the award passed is final and no appeal lies against the award as the same shall be complied by the parties as any other court order. Arbitration being a legal procedure, as an adjudicatory procedure, always comes up with a determination after the process they refer to as a judgment. In case throughout arbitration, an award is made, or the settlement arrived at, the award by the arbitral tribunal or the said settlement is equally enforceable and binding.

CRITICISM OF SECTION 89

This is especially the case on the language used under Section 89 where the courts have expressed many views mostly due to the divergence of its language interpretation. Thus, the use of ADR procedures has been disseminated for a long time owing to the lack of certainty in the regulation that deals with their conduct. The problem exists with the application in the Civil Procedure Code’s section. Some critics have claimed that one of them is that where the parties are reluctant, the court cannot refer the problems to ADR. For instance, the courts in such countries as the USA have the jurisdiction to compel the parties to select out-of-court methods of dispute settlement known as ADR. Some countries have the power to sanction parties that refuse to undergo ADR procedures. Section 89 of the Civil Procedure Code does not have such measures and in the event of refusal, the courts have no choice. Also, there is still uncertainty on the difference between the terms of settlement and basic purpose, which will be defined by the courts.

CONCLUSION

The objective of section 89, therefore, is to promote peace and ensure that the perceived backlog of cases does not hinder the serving of justice. The legal system can provide quicker and inexpensive solutions while party relations are preserved through ADR shifting of conflict to different contexts outside traditional courts. The passing of these laws has imposed a discretionary duty on the civil courts to attempt compulsion to settle discord by referring the disputing parties to another form of dispute resolution means. In section 89 various forms of ADR are arbitration, conciliation, mediation, Lok Adalat, and court settlement. The provisions as to the application of disputes which are referred to as both arbitration and conciliation are vested under the Arbitration and Conciliation Act. However, arbitration is a technique for making decisions, unlike conciliation. The provisions as to the matters mentioned in the section that can be referred to both arbitration and conciliation are found under the Arbitration and Conciliation Act. While conciliation is a decision-avoiding process, arbitration on the other hand is a decision-making procedure.

Thus, the ADR framework introduced in Section 89 of the CPC indicates a shift to a more efficient and less confrontational conflict resolution process. It highlights the significance of consensus in resolving conflict, increasing access to justice, and reduction of the pressure placed on the judiciary.

REFERENCES

[1] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24

[2] Kerala State Electricity Board and Anr. v. Kurien E. Kalathil & Anr. 2018 4 SCC 793

[3] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24