Methods of dispute resolution: adversarial, inquisitorial and ADR

Alternative Dispute Resolution Systems · Unit I · Topic 1 of 18 · 6 min read

The adversarial and inquisitorial methods of trial, the formal and informal alternatives (arbitration, conciliation, negotiation, mediation, Lok Adalat), how each differs from the others, and the advantages and disadvantages of ADR as a whole.

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On this page

1. Adversarial method
2. Inquisitorial method
3. The alternatives: formal and informal methods
4. How the methods differ: the points examiners look for
5. Advantages of ADR
6. Disadvantages and limits
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Start with a spectrum. Every method of resolving a dispute can be placed on a line according to who controls the outcome. At one end the parties decide everything themselves (negotiation). In the middle a neutral helps them decide (mediation, conciliation). At the other end a third person decides for them (arbitration, and finally a court). The further you move towards adjudication, the more formal, binding and expensive the process becomes. Most answers in this unit are built on that one idea.

1. Adversarial method

The common law trial, inherited from England, is adversarial. Each party investigates its own case, chooses its own evidence and witnesses, and presents it through counsel. The judge is a neutral umpire who rules on admissibility, hears both sides and decides on what has been placed before him. Truth is expected to emerge from the contest. Indian civil procedure under the Code of Civil Procedure, 1908 and criminal trials under the Bharatiya Nagarik Suraksha Sanhita, 2023 follow this model, with features such as pleadings, issues, examination-in-chief and cross-examination.

Strengths: party control, equality of arms in theory, a public and reasoned decision, and a right of appeal.
Weaknesses: delay, cost, technicality, dependence on the skill of counsel, and a win-lose result that usually ends the relationship between the parties.

2. Inquisitorial method

In the civil law systems of continental Europe the judge takes the lead. He directs the investigation, questions witnesses himself and builds the record in a dossier; the lawyers play a smaller role. The aim is to find the truth rather than to decide between two versions. Indian law borrows inquisitorial elements in places: the court's power to put any question to a witness (section 168 of the Bharatiya Sakshya Adhiniyam, 2023, old section 165 of the Evidence Act), commissions of inquiry, and tribunals that are not bound by the strict rules of evidence.

3. The alternatives: formal and informal methods

“Alternative” means alternative to the court trial. The syllabus groups the methods as formal and informal.

Negotiation. The parties, or their representatives, discuss the dispute directly and try to reach an agreement. No third party. Wholly voluntary and informal.
Mediation. A neutral third person, the mediator, helps the parties communicate, identify their interests and reach their own settlement. He has no power to impose a decision. The Mediation Act, 2023 now gives the process a statutory frame.
Conciliation. Close to mediation, but the conciliator plays a more active role and may himself propose terms of settlement (section 67(4) of the Arbitration and Conciliation Act, 1996). A settlement signed by the parties has the status of an arbitral award (section 74).
Arbitration. The parties agree to submit the dispute to an arbitral tribunal of their choice, which decides it by a binding award enforceable like a decree (sections 35 and 36 of the 1996 Act). It is adjudication, but private and consensual.
Lok Adalat. A statutory forum under the Legal Services Authorities Act, 1987 that brings parties to a compromise; its award is deemed a decree and is final (section 21).
Hybrids. Med-arb (mediation first, then arbitration of what remains), early neutral evaluation, mini-trial, expert determination, and online dispute resolution.

Of these, arbitration and Lok Adalat are the more formal methods because they end in a binding determination with legal effect; negotiation and mediation are informal because the outcome rests on the parties' agreement. Conciliation sits between: the procedure is informal but the signed settlement is enforceable.

4. How the methods differ: the points examiners look for

Who decides: the parties (negotiation, mediation, conciliation, Lok Adalat) or the neutral (arbitration).
Consent: arbitration needs a prior agreement under section 7; conciliation begins only when the invitation is accepted in writing (section 62); mediation may be by agreement or on reference by a court.
Role of the neutral: the mediator facilitates; the conciliator may evaluate and propose; the arbitrator adjudicates.
Outcome: an award (arbitration), a settlement agreement with the effect of an award (conciliation), a mediated settlement agreement, a Lok Adalat award deemed a decree, or a mere contract (negotiation).
Challenge: an arbitral award can be set aside only under section 34; a Lok Adalat award is not appealable at all; a negotiated contract can be avoided on ordinary contractual grounds.

5. Advantages of ADR

Speed. Arbitral awards must ordinarily be made within twelve months of the completion of pleadings (section 29A); mediation under the Mediation Act, once its process provisions are in force, is to be completed in 120 days, extendable by 60 (section 18).
Cost. Fewer hearings, no court fee in Lok Adalat, and in court-referred matters court fee is refunded on settlement (section 21(1), Legal Services Authorities Act).
Party autonomy. The parties choose the neutral, the place, the language and the procedure.
Expertise. A technical dispute can go to an engineer or accountant.
Confidentiality. Sections 42A and 75 of the 1996 Act protect what happens in the room, and section 22 of the Mediation Act (not yet in force) will do the same for mediation.
Relationships preserved. A consensual settlement allows family members, business partners, employers and workers to keep dealing with each other.
Reduces pendency in courts, which carry crores of pending cases.
Flexible remedies. A settlement can go beyond what a court could decree; section 19(1) of the Mediation Act (not yet in force) allows terms beyond the disputes referred.

6. Disadvantages and limits

No precedent and little publicity: the law does not develop, and wrongdoing may stay hidden.
Imbalance of power: a weaker party (a tenant, a wife, a worker) may be pressured into an unfair settlement where there is no judge to protect him.
Arbitration can be costly and slow in practice, with high fees and repeated court challenges under sections 9, 11, 34 and 37.
Limited appeal: errors of fact or law by an arbitrator usually cannot be corrected (section 34(2A) proviso).
Unsuitable disputes: crimes, matters in rem, and disputes needing a public declaration of rights cannot be compromised privately (see the next note).
Non-binding methods may fail and then add a layer of time before litigation.

Trap. Do not call conciliation and mediation the same thing without qualification. The Mediation Act, 2023 defines “mediation” to include conciliation (section 3(h)) and its Sixth Schedule would replace Part III of the 1996 Act, but that part of the Mediation Act has not been brought into force (see the Mediation Act note). Today the distinction still matters: the conciliator under section 67(4) may propose a settlement; the mediator in court-annexed practice, and under section 16(2) of the Mediation Act when it is in force, only facilitates and does not impose one.

How this is examined

The papers repeatedly ask “Advantages and disadvantages of ADR” (November 2021, June 2019) and “State the concept of Alternative Dispute Resolution System” (December 2019). Open with the spectrum from negotiation to adjudication, contrast the adversarial and inquisitorial methods in a paragraph, then describe each ADR method in two or three lines with its statutory base, and finish with the advantages and limits listed above. A comparison of arbitration, conciliation and mediation in prose (who decides, consent, outcome, challenge) earns marks that a bare list does not.

Now try the real questions: Alternative Dispute Resolution Systems past question papers.