With the evolution of society and the advent of information technology, the number and variety of disputes have significantly increased, leading to a surge in criminal and civil cases pending in the court, this has over-burdened the traditional court and has led to delays in the disposal of cases impeding the judiciary's ability to deliver justice on time and safeguard the constitution, it has also contributed in hampering the right of litigants to a speedy trial. It is to be noted that many of the filed cases are trivial in nature and can be quickly resolved, but due to overload on the court, even these cases face delay.

To address this issue, the Alternative Dispute Resolution (ADR) mechanism has been adopted worldwide, where parties get the option for outside court settlement of disputes which may be regarding petty criminal offences, divorce cases, tax or commercial cases. The Process is affordable, less formal, time-efficient, amicable, ensures confidentiality, and gives power to the parties to get more involved in the case which confers more effective and satisfactory judgment.

History of ADR

Ancient Period
The roots of ADR in India trace back to ancient times, the Hindu jurisprudence always promoted amicable resolution. During ancient times, conflicts were resolved by consulting elderly people of the village, and the parties involved had to abide by their decisions. The Panchayats (council of elderly people) headed by a Sarpanch, acted as an informal adjudicating body to mediate an issue between the disputing parties within a community, the Panchayats' decision was honoured as they were considered unbiased and knowledgeable of law and customs.

Medieval period
Islamic rulers also recognized the importance of ADR and promoted the concept of "Sulh" (amicable settlement), the Qazis (Islamic judges) mostly encouraged disputing parties to resolve their disputes by Sulh rather than opting for a formal court system, and reaching reconciliation by mutual agreement.

British Colonial Period
The Britishers reformed the legal System in India by introducing codified laws, they enforced the Civil Procedure Code, 1859, which was later on replaced by the Civil Procedure Code,1908. The uniform civil code primarily focused on enhancing the efficiency of formal adjudication by courts and it also acknowledged the importance of alternate modes of dispute resolution, as out-of-court settlement has already been prevalent in Indian history. Britishers incorporated ADR methods within the legal framework as complementary to the formal judiciary system.

The Britishers introduced the Arbitration Act, of 1899, to provide a legal framework for arbitration, but its applicability was limited to only presidency towns of Calcutta, Bombay, and Madras.

Post-Independence Period

After the independence, the following legislation played a major role in the revolution of the ADR mechanism:
Arbitration Act,1940: This Act was formulated to amend and consolidate all the rules and laws related to arbitration. It deemed arbitration agreements as written agreements, in the case of any conflict in connection with the subject matter of the agreement, a case can be filed for the arbitration process, and the parties get the authority to appoint arbitrators with mutual discussion or request the court to do so. The Act aimed to provide a comprehensive framework for arbitration and delegated arbitrators the power to give binding awards. The Act was subjected to much criticism for excessive interference of the judiciary, complexities, and ineffectiveness. This discouraged people from resorting to arbitration.

Legal Service Authorities Act,1987: This legislation established the concept of Lok Adalat which provided a platform for the parties to resolve their conflicts via conciliation and compromise, this concept became well-liked by people for the settlement of cases regarding matters of motor vehicle accidents, family disputes, and civil dispute.

Arbitration and Conciliation Act,1996: The Act replaced the 1940 Act and aligned Indian arbitration law with international standards (UNICITRAL Model law on Arbitration). It established provisions of arbitration that correspond to both domestic and international standards and gave legal regulation of conciliation. It emphasized the independence of parties, sought to reduce the role of courts, and envisaged a relatively quick, less expensive method of arbitration.

Analysis of Section 89 CPC
The Malimath Committee and the 129th Report of Law Commission of India proposed the notion of conciliation as one of the methods of ADR to make people aware of the available modes of Alternate Dispute Resolution and encourage people to utilize them. Accordingly, it led to the Code of Civil Procedure (Amendment) Act, 1999 which enacted Section 89 and Rules 1A, 1B, 1C to Rule 1 of Order X to lay down the procedure for settlement of disputes outside the court in the civil procedure code. The section has been incorporated with the motive of facilitating amicable settlement, and speedy disposal, of cases without interference from the court

Legal Settlement Options

Settlement outside the court:

The section states that when the court, during examination of a case, becomes confident about the existence of potential elements for settlement which may be acceptable to the parties, in such a case the court shall formulate the terms of settlement and present them to the parties for observation, and upon receiving the term-sheet after observation the court may reformulate the terms of settlement and further refer it for one of the options:

1. Arbitration
2. Conciliation
3. Judicial settlement through Lok Adalat
4. Mediation

Where a dispute has been referred:

1. 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;
2. To Lok Adalat, the court shall refer the same to the Lok Adalat by 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;
3. 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;
4. For mediation, the court shall give effect to a compromise between the parties and shall follow such procedure as may be prescribed.

Significance:

• The sections help in the speedy resolution of cases by providing an alternative to the lengthy process of formal court settlement.
• The section provides different modes under ADR, providing parties flexibility to choose the most suitable option according to their case.
• Methods under ADR are less expensive in comparison to traditional courts.
• The section helps to decongest the formal courts with the overburdening of cases and to focus more on complex cases.
• The section provides an opportunity for the parties for an amicable settlement, preserving harmony between them.

Analysis of Order X CPC:
Order 10 of the Civil Procedure Code,1908 deals with the examination of the parties by court. This section is formulated to examine the case and ascertain the issues of dispute between the parties to facilitate more effective and systematic proceedings. To entirely give effect to section 89 of CP, it must be read with Rule 1,1(A),1(B),1(C) of Order X.

Rule 1: At the first hearing of the suit, the court records the denial or acceptance by the parties or their representatives regarding alleged facts against them in the plaint or written statement by the adverse party.

Rule 1(A): After recording admission and denials of facts by the parties to the suit, the court directs them to opt for one method of dispute resolution as prescribed under sub-section (1) of section 89 CPC. After the selection, upon discussion with the parties, the court schedules a date to appear in front of the forum or authority as elected by the party.

Rule 1(B): Where the suit is referred under Rule 1(A), the parties have to appear in front of such forum for the conciliation of the suit.

Rule 1(C): Where the suit referred under Rule 1(A) is presented in front of an appropriate forum or authority and despite of putting efforts, the forum fails to reach a solution to settle the dispute between the parties, the case will be re-referred to the court and the parties have to re-appear in front of the court on the date fixed for the further proceedings of the suit.

Significance:

1. Order 10 enhances the functioning of the judicial system by solving the problems affecting the trial in the court.
2. Order 10 promotes the aim of the amendment of CPC to promote ADR and mitigate the burden on the traditional courts for expeditious resolution for the parties.
3. The procedures under Order 10 assist in the hearing of the parties, and the courts record their stance to foster a fair trial.

Landmark Judgements Concerning Section 89 CPC

1. Salem Advocate Bar Association v Union of India (2005):
   Judgement:
   
   1. The court upheld the constitutional validity of section 89 CPC and promoted the ADR mechanism to expedite the disposal of cases and alleviate the burden on the court.
   2. The court provided a set of guidelines for the effective implementation of the ADR process and put emphasis on the role of the judges to effectively facilitate the process.
   3. The court directed the formation of several committees at different levels to keep a check on the proper functioning of the ADR mechanism.
   4. The court emphasised the training of judges and advocates to adapt to the procedural changes ushered in CPC by amendments of 1999 and 2002.
   
    
2. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd.
   Judgement
   The Supreme Court clarified various conundrums related to section 89 and its applicability through their judgement in this pivotal case.
   
   1. The court held that the arbitration agreement must be in writing and should explicitly depict the intention of the parties to arbitrate the dispute.
   2. The court held that an arbitral clause in a contract must be separately formulated to give effect to the intention of the parties to arbitrate.
   3. The court stated that under section 89 of CPC before referring the case to an ADR authority, the court doesn't need to formulate or reformulate the terms of the possible settlement; it is sufficient to just ascertain the nature of the dispute and refer the parties to the appropriate authority.
   4. The court reiterated that the definition of judicial settlement and mediation given under clauses (c) and (d) respectively in section 89(2) of CPC, shall be interchanged to correct draftsman error.
   5. The court affirmed that any dispute arising out or in connection with a contract that includes non-performance, breach, or termination of the contract comes within the scope of arbitration, even the dispute related to the validity of the contract that constitutes an arbitration clause falls under the scope of arbitration unless expressly discarded by the parties.
   6. The court stated that as per section 8 of the Arbitration and Conciliation Act when a dispute is subjected to an arbitration agreement, it should be first referred to arbitration authorities except in those circumstances where the court finds prima facie that no valid arbitration agreement exists.
   7. The court reiterated that there should be minimum intervention of the formal courts in matters that are governed by arbitration agreements.
   8. The Court provided a list and clarified non-arbitrable disputes involving rights in rem (right against the world at large) such as criminal offences, matrimonial disputes, winding up and insolvency matters.
       

In support of its findings, the court relied on several prior cases that supported its conclusions:

• Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya (2003): The court discussed the scope of section 8 of the Arbitration and Conciliation Act and stated the obligation of the court to refer the case to Arbitration authorities when a valid arbitration agreement is present.
• Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd (2011): Precisely explained the concept of arbitration and listed out non-arbitrable disputes.
• Reference was made to foreign jurisprudence on arbitration to support the global pro-arbitration stance.

The 238th Law Commission Report
Section 89 along with Rules 1,1(A),1(B),1(C) of Order X of CPC have faced widespread criticism. Thus, to rectify the problems, the Law Commission of India submitted its 238th report titled "Amendments to Arbitration and Conciliation Act 1996", in August 2011. The report supported the findings and rulings of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd. and made suggestions for the amendment.

The report proposed the following principal reforms to the stated Act to conform with the international standards: Some of the measures that have been recommended include expansion of the definition of arbitration agreements, setting of guidelines in the appointment of neutral arbitrators and setting time bars in arbitration to avoid delay. The report also supported the attempt to give arbitral tribunals the power to order interim measures that would curtail the courts' involvement. Faced with such an issue, the report made suggestions on the transparency of fee schedules of the arbitrators.

In addition, it stressed on confidentiality and privacy of arbitration and advocated the use of institutional arbitration to increase its effectiveness. Furthermore, the report called for the proper and effective training and accreditation of the arbitrators and the embracing of technology in the arbitration. In totality, the 238th Law Commission Report aimed to improve arbitration into an effective, economical, and dependable procedure of the dispute resolution system in India.

Conclusion
The adoption of the ADR mechanism has proven to be very important in reducing the congested judiciary and ensuring that people get justice on time. ADR suggests efficient and fast solutions by various methods which are arbitration, mediation, conciliation and Lok Adalat. ADR, originating from the Indian pre-colonial civil rules, developed through statutes, with more changes after the independence to fit the current society.

Section 89 of the Civil Procedure Code and other crucial judgements have bolstered ADR's structure to increase the effectiveness of the solutions to disputes and reduce the number of cases in courts. The landmark judgement of Salem Advocate Bar Association v. Union of India and Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd clarified the ambiguities that arose from section 89 CPC and gave directions for the efficient implementation of the ADR process. The 238th report of the Law Commission opens the way to other improvements in ADR's efficiency and credibility.

In a comprehensive sense, ADR mechanisms ease the burden of courts and rip off the control of the justice process from the judiciary; this shift is progressive in the context of India's judicial structure where the principles of speedy and affordable justice are embraced.

Written By: Tulika Rawat, B.A., LL.B. graduate from Graphic Era Hill University, Dehradun.