UNIT 11 ALTERNATIVE DISPUTE RESOLUTIONS

Structure
11.1 Introduction
Aims and Objectives

11.2 Violent Option

11.3 Negotiation
11.4 Mediation
11.5 Adjudication
11.6 ADR In Domestic Sphere and Abroad
11.7 ADR in India
11.7.1 Lok Adalat

11.8 Summary
11.9 Terminal Questions
Suggested Readings

11.1 INTRODUCTION
There are two broad categories of approaches to solve disputes: Violent and peaceful. Often
violence carries a connotation of reproach or disapproval from an ethical or religious authority.
Buddhism and Jainism are two examples which prohibit adoption of violence as a means of
resolving any issue. Also, violence is becoming increasingly non-feasible, non-practical, counter-
productive, and, indeed self-destructive in the nuclear age. As civilisation spreads and rational
approach expands, violence gives way to debate and discussion, bargain and sharing, peaceful
coexistence and peaceful competition. In the present world more and more peaceful methods
are being explored and employed to resolve conflicts through peaceful rather than war-like or
violent methods, internationally and domestically.
Aims and Objectives
This Unit would enable you to understand:
 The concept and meaning of alternative dispute resolution (ADR)
 ADRs in the domestic sphere and abroad
 ADRs in India.

11.2 VIOLENT OPTION

Since conflicts are universal, efforts made to solve them over the centuries across the world,
have been plenty and variegated. Depending upon the gravity, nature, extent and urgency,
conflicts have been resolved or attempts made to resolve, successfully or otherwise. Until
recently- that is the turn of the twentieth century- violence or war was accepted as a normal,
legal and final way of settlement of disputes among the community of nations. Within the
domestic sphere violence had a limited but nonetheless significant application. The State had
Alternative Dispute Resolutions 115

a right, almost monopolistic, of violence against its own citizens who had transgressed the laws
of the land etc. Also ‘civil violence’- that is violence unleashed by one set of civilians against
others- without the permission of the State, was a common phenomenon everywhere. Though
laws and politics were supposed to tackle it, civil violence could not be anticipated, eliminated
or even managed successfully by the State or other civilian organisations. Movements, political
and social, strikes, protests and frustration over State inaction, ethnic and territorial claims,
attacks by criminal/terrorist elements, and sabotage were all but few of the causes of occurrence
of violence in the domestic sphere.
Nonviolent efforts to contain, manage, reduce and eliminate violence in society have to be
differentiated. At the international level it may be simpler to evolve a mechanism to tackle
violence as there are, nearly always, only two parties (the states) to the dispute. At the
national/state level the answer to violence has to be found in a much more complex manner.
In the following pages, some details are discussed, in a comprehensive manner, about the
various means adopted to tackle conflicts first at the international level and later at the national
one.

11.3 NEGOTIATION
Through the long usages of customs, practices and conventions, one learns that violence or
resort to violence in Inter-State affairs was not the first option. Either on their own or at the
behest of others, states in conflicts tried their hands at peaceful methods of settlement of
disputes.
Time honoured and practicable way out of any conflict is to talk to the opponent. Of course
it is a difficult and complex process of opening the talks. Who should talk to whom, at what
level of authority, what should be aimed at, what portion of the structured problem should
be addressed, should the talks be open, confidential or back-channelled (totally non-formal),
should the solution be claimed as a compromise, victory for one side or merely a tactical
arrangement for the time-being, and how far are the steps/process of implementing solution
binding on the parties, etc. are the questions which needed to be asked and settled if the talks
are to be of any meaning.
In the process of talks, the substance of the dispute has to be identified clearly by both the
parties first and then attempts have to be made to sort out the differences between them. This
is popularly known as negotiation. Reasoning or logical argument may pave way for an
amicable settlement of the dispute. Mutual trust has to be established and then a mutual give-
and-take has to be arranged; finally an open or partially open statement of settlement has to
be announced. Often a series of rounds of talks, held sometimes away from the public glare,
has to be held. It is also true that many a time strenuous, quiet diplomatic rounds of talks are
held which lead to durable solutions.
If the substance of the conflict/dispute is complex, technical or multidimensional (like GATT/
WTO/Nuclear Weapon Control/Climate Control etc.), it is necessary to involve technical
experts in the negotiations. In the earlier centuries, the subject of inter-state dispute used to
be more often than not political. Now-a-days the disputes are complex in nature, be it
economic, technical or military. Not only would there be a multi-layered but also multilateral
and multi-dimensional understanding of disputes. The official ambassadors or diplomats apart,
there might be appointed special negotiators and technical experts attached to the negotiating
team. Now-a-days the holding of conferences for multilateral negotiations involving a large
number of delegates, stretched over a number of years, with an army of hospitality and
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secretarial assistance has become a lucrative business indeed (in Geneva and New York,
especially). The United Nations hosts or calls for several such conferences every year.
It is also noticed that in these days of complex negotiations the main burden of holding talks
falls on the professional diplomats and technical experts. Yet, there is a great need to get back
to the authorities at the headquarters to authorise changes in the basic position of negotiations.
The mass media and the academia also exert enormous pressure on the negotiating posture.
Not only political and technical but also psychological aspects of a negotiation need to be
studied carefully. If, back home there be democracy with an active opposition and mass
media, the task of ‘selling’ a negotiated settlement, although reasonable, would turn out to be
difficult.
When negotiations are stuck with an impasse or deadlock, it has now become fashionable to
hold a summit-meeting that is the heads of governments concerned would meet to take stock
of the situation and give modified instructions so that progress in negotiations is made. Summit-
conferences have of late become popular; they have given good results, no doubt. But at times
they tend to make things difficult when prior preparations are not made properly. Often, the
personality clashes too occur, and cause a setback to the process of negotiations. Kennedy-
Khrushchev meetings in Vienna and Nehru-Ayub or Nehru –Chou-en-Lai meetings could be
cited as examples of “Summit-backfire”. The 1972 Simla meeting between Zulfikar Bhutto
and Indira Gandhi too has been cited as an example of unwarranted summit diplomacy which
could have been better avoided and the normal diplomatic negotiations could have achieved
better results.
Those negotiated settlements are better which are backed, on both sides, by a clear
understanding of (a) basic issue and (b) the barter of give and take. Hasty, ambiguous,
pressurised and highly personalised solutions are no substitute for properly researched, widely
consulted and fair settlements. It is important that a conducive atmosphere should be built
when negotiations are held.
Usually, negotiated settlements end in the announcement of a joint agreed communiqué or, if
the matter is significant, in a treaty/agreement. The United Nations expect that all treaties/
agreements reached between states are filed with the Secretary-General’s office. All agreements
reached after negotiations are expected to be implemented in good faith by all the parties
concerned. This is one of the principles in the international law.
In the new age inaugurated by nuclear weapons, the significance of negotiation has increased
considerably. In the earlier times wars were feasible and called frequently. But having made
war almost obsolete the nuclear weapons have pushed negotiations, including those with a
tinge of deterrence, to the fore. For, no State today is in a position to say: “I’ll declare war
unless my terms are met”. No State can achieve its objectives through a nuclear war as it
would perhaps have got in the pre-nuclear age. War was a continuation of a policy by other
(that is violent) means as Von Clausewitz stated so succinctly. But now negotiations are almost
the only means of solving inter-state disputes. The space vacated by war is occupied by “more
negotiations”. After a series of brushes with adventurism both the nuclear superpowers U.S.
and U.S.S.R. learned to live peacefully without further testing the nerves of the statesmen on
the launching of nuclear warfare (1962).
Before ending this portion on negotiations as a normal and favourite technique of conflict-
resolution, it may be worthwhile to remember why negotiations fail many a time. To quote the
summary of a study made in this regard by I.William Zartman (The Sage Handbook on
Conflict Resolution, 2009):
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“Probably the most challenging issue of the time concerns the profound change in negotiation
brought on by a changing nature of the parties. Negotiating with armed bands, terrorists, anti-
globalist movements, among others, are not the neat two party negotiations that current
analysis so often assumes. Not only does it involve internal politics (as do all negotiations) but
the other party frequently does not exist as a corporate body. There is no leader who can
make a decision and hold an agreement, and no delegates who represent the central organization.
Furthermore, the “party” frequently does not know what it wants… Finally these “parties”
usually do not know how to negotiate and often have to be taken aside and given training,
as in Darfur, Mozambique and Sri Lanka in recent conflicts. Negotiating with or between
amorphous parties needs entirely different models to capture its process in concept and in
reality.”

11.4 MEDIATION
If the parties to a dispute/conflict talk with each other it is described as negotiation. Sometimes
it is not possible for a variety of reasons for states to take up talks with the opposite party
directly. They may be willing or half-willing and yet they are not in a position to open
negotiations. Under such circumstances, it is fortuitous if a friendly state/entity/institution or
even a person of standing were to come forward and bring the parties to the dispute to a
negotiating table. Use of good office, offer of an honest broker and hosting a goodwill
conference may be some of the forms of bringing friends together so that they may overcome
their initial reluctance and begin to talk. The part which facilitates this process is called
mediation. Through this method of mediation, negotiations are given a fillip and a solution is
facilitated without resort to war.
Mediation: Definition and Characteristics
In a brilliant study of mediation as an instrument of conflict resolution by Jacob Bercovitch
(The Sage Handbook of Conflict resolution, 2009), the following points emerge.
The task of the mediator is not an easy one. The sea that he sails is only roughly charted. He
is a solitary artist recognizing at most a few guiding stars, and depending on his personal
powers of divination as Arthur Meyar would put it. Oran young, a renowned scholar in the
field, would define mediation “as any action taken by an actor (i.e., State) that is not a direct
party to the crisis, that is designed to reduce or remove one or more of the problems of the
bargaining relationship and therefore to facilitate the termination of the crisis itself”. In simpler
terms, it is suggested that Mediation is a form of third-party assistance which involves an
outsider to the dispute who, however, lacks power to make decisions for the parties (Linda
Singer). It may be a bit naïve to believe that a mediator is altruistic (May be so at times, like
our own Pt.Jawaharlal Nehru vis-à-vis Korea). Usually, the mediators have got their own
hidden agenda which may not be significant, yet not negligible. The relationship between a
mediator and disputants is hardly devoid of political interest.
Considering a number of incidents of mediation in resolving inter-state conflicts, it may be safe
to assume that the following constitute the essential characteristics, as brought out by Jacob
Bercovitch.
 Mediation is an extension and continuation of peaceful conflict management.
 Mediation involves the intervention of an outsider - an individual, a group or an
organisation with values, resources and interests of their own – into a conflict between
two or more states or other actors.
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 Mediation is a non-coercive, non-violent and ultimately non-binding form of intervention.

 Mediators enter conflict- whether internal or international- in order to affect it, change it,
resolve it, modify it or influence it in some way.
 Mediation is a voluntary form of conflict management.
There are quite a number of examples of mediation in international conflicts in the recent years.
In the Sri Lanka – LTTE conflict, the Netherlands have assumed this role; the then U.S.
president Bill Clinton played a notable role of mediator/facilitator in arranging direct talks
between Palestine and Arab parties (and got Camp-David Accord signed by them), Pandit
Jawaharlal Nehru/Krishna Menon played a significant role in bringing off a truce between
Korea, China and the U.S in 1950-1953 and in the ongoing conflict over Kashmir, several
unsuccessful mediations had been sponsored by the U.N.
More often than not, mediations receive a mild and skeptical reception. The outsiders hardly
understood the complexity of the issue on hand. Nor do they have a great stake in the
resolution of the conflict. Now-a-days the U.S, being the only super power/global power,
envisaged a role for itself in resolving any conflict anywhere in the world. The American
diplomats are generally well-served by area experts or subject experts. They are also a
determined lot. If the U.S. President wills it, it would be pursued relentlessly. Sufficient
incentives or penalties are dangled before the eyes of the disputant parties so that the American
suggestions are taken up and implemented. However, it is noticed that the U.S policy makers
turn their faces away from the issues if their own public opinion is not expressly in favour of
role for the U.S. The well-known ethnic atrocity and breakdown of political stability in the
former Yugoslavia did not figure anywhere in the first presidential election campaign of Bill
Clinton (In the second campaign it was the big issue). When the U.S public is obsessed with
its own economy and politics it adopts a divine silence over the “foreign” issues. If, on the
other hand, it wishes to bring “order” to the world, the U.S leaders jump into the arena of
conflict and wrestle with it whether or not its role is useful to the disputants. Often they leave
the field without settling the issue. Hence, mediation, especially by the U.S. is full of uncertainty.
In Afghanistan, Pakistan, Iraq and Iran, the U.S mediation through the UN good offices have
met with varying degrees of success/failure. Mediation as an instrument of conflict resolution
in international sphere has got limited application.

11.5 ADJUDICATION
The United Nations was set up in order to ward off wars and instill in the hearts of men, hopes
of peaceful settlement of disputes. In its Charter (Article 33) the U.N envisages almost all the
peaceful ways of resolving international conflicts:
“….parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements
or other peaceful means of their choice.”
The preferred approach of the U.N. is clear: either a political negotiation or a judicial settlement.
Leading scholars in the field of jurisprudence and visionaries (“peace through justice”) laid
great emphasis, from the times of the League of Nations, upon a judicial settlement of international
disputes. Following the Treaty of Versailles (1919), the first ever international forum for
adjudication of inter-state disputes, the Permanent Court of International Justice (PCIJ) came
up in 1922 at The Hague. According to their belief if the world had to get rid of wars which
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were threatening the very civilisation on this earth, there was only one hope and one solution
which lay in the hands of an impartial and wise judges of international repute. The PCIJ,
however, proved a dampener. Not so much because of its own limitations but because the
states were not as yet prepared to hand over to it their political power to decide any issue.
The PCIJ existed for 18 years. It ceased its functioning once the war broke out and ceased
to exist after the League of Nations, of which it was a part, was formally dissolved in 1946.
In its brief existence, the Court handled 29 cases of litigations as well as 27 advisory opinions.
It was regrettable that powerful states did not show anything more than lip sympathy to the
Court.
When the United Nations was set up in 1945, the International Court of Justice (ICJ) was
also brought into existence. Along with the charter of the UN, a Statute on the ICJ was also
presented for signing. The Court was made a wing of the UN (Article 7). However, the
jurisdiction of the ICJ was not enforced upon the member-states of the UN automatically.
Each state, which became a member of the UN, had to register separately its accession to
the jurisdiction of the ICJ. However many states have refused to submit themselves to the
jurisdiction of the ICJ (“compulsory jurisdiction”). What is worse an important state like the
US has withdrawn its earlier consent. A large number of states have accepted the jurisdiction
with certain exceptions or conditions which, in effect, take away the effectiveness of the Court.
As a result the ICJ has not been an active body worthy to cite for its contribution to peaceful
settlement of international disputes.
During 1946-2007 the ICJ, it is estimated, has passed 92 judgments on disputes raised before
it and given 25 advisory opinions. Many of the cases referred to it were of minor significance
or of no significance. Though the Court’s performance has not been brilliant it has nonetheless
influenced the evolution, development and codification of international laws especially those
dealing with the laws of sea, environment, treaty-interpretation, economic questions and issues
related to asylum.
The effectiveness of the ICJ has been affected adversely by the so called big powers like the
US and France who have treated it with contempt. Nicaragua complained to the ICJ in 1984
that the US was interfering in its domestic political establishment. The CIA of the US was
accused of armed help, training and financing of the ‘contras’ who were opposing the rule of
domestically elected Sandinista government. Instead of proving its innocence or admitting guilt,
the US withdrew itself from the jurisdiction of the ICJ and justified its stand by referring to
domestic compulsions. The ICJ nonetheless proceeded with the complaint of Nicaragua and
pronounced its ruling in May 1984 which indicted the US in no uncertain terms. But its impact
was negligible on the outcome of the conflict.
It is noteworthy in this context that India has accepted the findings of the ICJ in two cases
it was involved: one over Goa vis-à-vis Portugal and another over the Rann of Kutch vis-à-
vis Pakistan.
On the whole the reputation of the judicial mechanism to solve international conflicts is not
enhanced by the functioning of the ICJ. It does not have enough work to do, of late. Yet, the
glimmer of hope survives. Recently, in 1998, the Rome conference, sponsored by the UN,
adopted the Statute of International Criminal Court, which came into force on July 1, 2002.
But once again the US threw cold water over its functioning by opting out of its jurisdiction.
There are several international tribunals which have been specialised and been functioning with
greater utility. Some of these are: Ad hoc International Criminal Tribunals which dealt with the
120 Introduction to Peace and Conflict Resolution

occurrences in Yugoslavia (ICTY) and Rwanda (ICTR), International Tribunal for the Law of
the Sea, European Court of Justice, European Court of Human Rights, Permanent Court of
Arbitration etc.
The over-all situation remained a bit disappointing. Though the scholars and visionaries lay a
great store by the judicial institutions, chiefly the ICJ, for solving in a rational manner the vexed
problems of international affairs, the performance of the Court as well as the behaviour of the
big powers have proved to be a big let-down. One incident of the Court proving itself to be
of weak and vacillating mind showed up in 1966 in a case related to the use of nuclear
weapons:
“it follows from the above-mentioned requirements that the threat or use of nuclear weapons
would generally be contrary to the rules of international law applicable in armed conflicts and
in particular the principles and rules of international humanitarian law.
However, in view of the current state of international law and of the elements of fact at its
disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstances of self defence, in which the very
survival of a State would be at stake” (1996 ICJ 226)
Many scholars have ridiculed at such a weak-kneed judicial approach to solving conflicts
peacefully at the international level. The adage that laws rule over the poor while the rich rule
over the laws, comes close to the description of the working of the judicial forums in the
community of nations. There is another adage which also comes to mind – the laws are silent
when the guns boom.

11.6 ADR IN DOMESTIC SPHERE AND ABROAD

Alternative Dispute Resolution (ADR) has been recent in phraseology but old in concept. In
the days gone by, laws were not made by any parliament or even by kings; but were laid
down in the scriptures and treatise. Resolution of conflicts/disputes took place, also, in the
manner laid down in these books, customs and practices. Naturally there were changes in
these methods in keeping with the changing times. But with the coming of modern times of
democracy and constitutional governance, the method of judicial pronouncement has become
the primary one in the resolution of conflicts in the domestic sphere. Of late that is, in the past
few decades the load of work of the judiciary has increased enormously, causing undue delay
in dispensation of justice. Also, too many rungs of judiciary can be a cause of delay. The poor
and distantly located people find it hard to pursue their cases in law courts through a battery
of costly lawyers. Alternative forums which could prove to be cheap and easily accessible
have, of late, been tried. These are called Alternative Dispute Resolution Mechanisms (ADRM).
ADR Abroad
In Europe where there existed strong judicial institutions, people were generally disappointed
with the slow grinding of wheels of justice. It also proved to be costly and made to suit the
skill of lawyers rather than the needs of the parties. In the U.K. the ADR took birth in 1974
in the form of advisory, conciliation and arbitration service. In1995 France expanded the
legislative basis for judicial conciliation and mediation. Earlier in the US, following the remarkable
dissertation produced by Rosco Pound entitled “Public dissatisfaction with the American Legal
System”, a wave of judicial reforms took place. The new ADR initiations came in and within
a few years nearly 93% of civil disputes were disposed off without going for trial in the normal
judicial forums. In Japan the judges intervene extensively during the in-court proceedings.
Alternative Dispute Resolutions 121

They remove their formal judicial robes and participate in settlement talks as a friendly mediator.
This gesture is appreciated both by the litigants and lawyers. In China the dictates of Confucius
on the importance of harmony in family and society have come back to influence the disputants
and helped in reducing litigations considerably. In Hong-Kong, the International Arbitration
Centre, the biggest in Asia, has gained immense popularity and prestige because it is fair and
helpful to the clients.

11.7 ADR IN INDIA

Before the on-set of the British rule India had had a sound and time-tested judicial system.
People might have been hierarchy-conscious, caste-ridden and illiterate, even winded by
outworn religious beliefs. But all had their own ways of settling disputes. When the British took
over administration they found it abominable to go by the traditional Indian practices of
resolving disputes. They introduced, rather imposed, a new legal regime here. This gained
some popularity among the educated elite. In due course, the new system emerged strong and
attained uniformity all over India. However, the workload on the courts and the cost of
litigation as well as the long delays in procuring justice even in simple cases, compelled the
government to introduce ADRs so as to ease the burden on the judges and litigant public. The
lawyers though initially unhappy have come round to appreciate the functioning of the ADR.
Some time ago (2006) it was estimated that there were pending 2,53,80,757 cases in the
subordinate courts in India. To try these cases were available (if all the posts were filled up)
less than 15,000 judicial officers/judges. This ratio between judges to population works out
to be 105 judges per one crore population in India whereas it is 509 in the UK, 577 in
Australia, 752 in Canada and 1070 in the U.S. This figure does not give a total picture: the
litigation cases filed by people are not taken into account. After the ADR was introduced,
several thousands of litigations have been disposed off without causing any adverse reactions
from any quarter. This experiment was initiated with the passing of the Legal Services Authorities
Act 1987 (which has been amended from time to time). In 2002, Section 89 of the Civil
Procedure Code was modified to incorporate conciliation, mediation and pre-trial settlement
methodologies for prompt and inexpensive resolution of disputes.

11.7.1 Lok Adalat

The origin and importance of Lok Adalat are given above. The salient features of Lok Adalat
(People’s Court) are mentioned as below:
 Lok Adalats (LA) are legal and authentic forums of justice.
 LA are constituted from time to time in order to solve a number of cases pending before
regular courts for disposal. There may be specific LA for cases related to water, electricity,
banks, pension, transport etc.
 LA are presided over by a sitting or retired judge along with a social worker and a
lawyer
 The cases are transferred to LA from regular courts on demand.
 There is no court fee to be paid to LA (if any fee is paid to the regular courts and the
case is transferred to LA the fees already paid would be refunded if the dispute is settled)
 Lawyer’s assistance is not necessary, though they may offer help.
 The legal process/procedures are not followed strictly. Flexible and liberal attitude adopted.
 The clients/parties to a dispute can interact with the judges freely – which is not possible
in a regular court.
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 If the parties to a dispute agree in the LA. to a compromise, the case is deemed settled
with no possibility of appeal to a higher court (as it is a judgment by consent).
Following the success of the Lok Adalat experiment in the public domain, private and business
organisations too have adopted the model and doing a good job of it. Sometimes the
nomenclature is changed to Ombudsman etc. Essentially the concept of Lok Adalat or
Ombudsman is to help people to help themselves. Thus the tension is eased and finding a
mutually agreeable solution is facilitated by this experiment. Its immense popularity is
understandable. It is an eminently sensible and feasible mechanism of peaceful resolution of
conflict in a civilised society.

11.8 SUMMARY
There are different ways of conflict resolution. Traditionally war has been treated as a form
of settling dispute. But, as civilisation spreads and rational approach expands, violence gives
way to debate and discussion, bargain and sharing, peaceful coexistence and peaceful
competition. In the present world more and more peaceful methods are being explored and
employed to resolve conflicts through peaceful rather than war-like or violent methods,
internationally and domestically. Mediation, Negotiation, Dialogue, Arbitration, Adjudication
and so on are increasingly being recognised as methods of Alternative Dispute Resolutions
(ADRs) that have become more acceptable especially in recent times. In India too, Lok
Adalats have been playing a significant role in settling disputes.

11.9 TERMINAL QUESTIONS

1. List the various means of resolution of conflicts.
2. Why is war not a desirable option to solve interstate disputes?
3. Why is negotiation method universally popular?
4. Account for the poor contribution of the judicial approach in resolving international
conflicts.
5. Bring out the working and importance of Lok Adalat as a forum of peaceful resolution
of disputes.

SUGGESTED READINGS
Bercovitch, Jacob, Victor Kremenyk and I.William Zartman., (eds), SAGE Handbook of
Conflict Resolution, 2009
Fischer, Ronald., Interactive Conflict Resolution, 1997
Holsti, K.J., Peace and War: Armed Conflicts and International Order, 1648-1989, 1991
Intermediaries in International Conflict, 1992
Merrills, J.G., International Dispute Settlement, 2005
Ott, Mervin C., “Mediation as a Method of Conflict Resolution”, International Organization,
vol. 26, no.4, 1972.
Rapoport, Anatol., Fights, Games and Debates, 1960
Schelling, Thomas., The Strategy of Conflict, 1960
Singer, Linda R., Settling Disputes: Conflict Resolution in Business, Families, and the Legal
System, 1990
http://www.sethassociates.com/alternative_dispute_resolution.php