When Courts Are Not Enough: How Alternative Dispute Resolution Is Quietly Reshaping Justice

Author: Muskan Kashyap
Student, DEEN DAYAL UPADAHYAY UNIVERSITY GORAKHPUR UTTAR PRADESH

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💡 3 Quick Takeaways

Alternative Dispute Resolution (ADR) has evolved from a supplementary mechanism into a central pillar of modern justice delivery.
Legislative developments such as India’s Mediation Act, 2023 and international frameworks like the Singapore Convention have significantly strengthened ADR.
While ADR offers speed and efficiency, concerns regarding accessibility, fairness, digital exclusion, and accountability remain unresolved.

Abstract

Courts across the world are struggling under the weight of mounting case backlogs. With more than 50 million cases pending in India alone and similar delays affecting common law jurisdictions globally, Alternative Dispute Resolution (ADR)—including arbitration, mediation, conciliation, and negotiation—has emerged as an increasingly important mechanism for delivering justice.

This article examines the legal and institutional developments driving the expansion of ADR, focusing on India’s Mediation Act, 2023, recent arbitration reforms, the Singapore Convention on Mediation, and the United Kingdom’s Arbitration Act, 2025. It analyses the growing role of international arbitration institutions and evaluates whether ADR is genuinely reducing judicial backlog. The article also explores broader concerns regarding mandatory ADR, online dispute resolution, and investor-state arbitration before identifying key conditions necessary for ADR to fulfil its democratic potential.

Keywords: Alternative Dispute Resolution, Mediation Act 2023, Arbitration, Singapore Convention, Online Dispute Resolution

I. Introduction

Somewhere in Maharashtra, a farmer has been waiting nine years for a court to resolve a land dispute with his neighbour. Three judges have heard the matter. Two have retired. The file has reportedly been misplaced once. The neighbour, who was once a friend, no longer speaks to him. Yet there is still no date for the next hearing.

This is not an isolated story. Across India, millions of cases remain pending before courts. Similar delays affect judicial systems across the world. In the United States, civil disputes often take years to conclude, while in the United Kingdom waiting periods for civil hearings have continued to increase.

In this context, Alternative Dispute Resolution (ADR) has emerged as an increasingly significant component of justice delivery. ADR encompasses a range of dispute resolution mechanisms that operate outside traditional courtroom litigation. These include arbitration, where a neutral third party issues a binding decision; mediation, where parties are assisted in reaching their own settlement; conciliation, which involves a more active role by the neutral facilitator; and negotiation, where parties attempt to resolve disputes directly.

ADR is not a new concept. However, recent years have witnessed a significant transformation. Governments are legislating in its favour, courts are increasingly directing parties towards it, and international institutions are actively promoting it. As a result, countless disputes are now being resolved without ever entering a courtroom.

This article examines the legal developments driving this transformation and considers both the opportunities and challenges presented by ADR’s expanding role.

II. The Laws That Are Changing the Game

A. India Finally Gets a Mediation Law

For many years, mediation in India operated without a comprehensive legislative framework. While parties could voluntarily participate in mediation, enforcement of mediated settlements remained uncertain. If one party subsequently refused to honour the agreement, the other often had limited legal recourse.

The Mediation Act, 2023 fundamentally altered this position. India’s first standalone mediation legislation grants mediated settlement agreements legal enforceability comparable to court orders. It also establishes the Mediation Council of India to regulate and oversee mediation practices.

Importantly, the legislation introduces pre-litigation mediation requirements for specified civil and commercial disputes. Parties are now expected to attempt mediation before initiating formal litigation.

This development carries significance beyond procedural reform. It reflects a broader institutional recognition that mediation is no longer merely an alternative to litigation but an integral component of the justice system itself.

B. Arbitration Reform and Continuing Debate

The Arbitration and Conciliation (Amendment) Act, 2021 generated considerable discussion within legal circles.

The amendment restored automatic stays on arbitral awards where allegations of fraud or corruption are raised. While intended to prevent the enforcement of potentially fraudulent awards, critics argued that the provision could create opportunities for delay and undermine arbitration’s core objective of providing speedy dispute resolution.

At the same time, the Supreme Court’s decision in PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd. (2021) represented a significant development. The Court affirmed that two Indian parties may choose a foreign seat of arbitration, thereby strengthening India’s integration into the global arbitration landscape.

C. The Singapore Convention on Mediation

Among recent international developments, the Singapore Convention on Mediation stands out as particularly transformative.

Prior to the Convention’s entry into force in September 2020, mediated settlements in cross-border disputes faced significant enforcement challenges. Parties could reach agreements through mediation, yet enforcing those settlements across jurisdictions often proved difficult.

The Convention addresses this problem by providing a framework for the international enforcement of mediated settlement agreements, much as the New York Convention facilitates the enforcement of arbitral awards.

With participation from major jurisdictions including India, the United States, and China, the Convention has increased confidence in mediation as a viable mechanism for resolving international commercial disputes.

D. The United Kingdom’s Arbitration Act, 2025

The United Kingdom enacted the Arbitration Act, 2025 as a substantial update to its arbitration framework.

The legislation strengthens arbitrator immunity, clarifies judicial intervention standards, and introduces mechanisms for dismissing meritless claims at an early stage. These reforms reflect efforts to maintain London’s status as a leading international arbitration centre amid growing competition from jurisdictions such as Singapore, Paris, and Dubai.

III. The Rise of Arbitration Institutions

The arbitration landscape has undergone significant institutional transformation over the past two decades.

Where parties once relied heavily on ad hoc arbitration arrangements, specialised institutions now dominate much of the market. Organisations such as the Singapore International Arbitration Centre (SIAC) and the International Chamber of Commerce (ICC) administer thousands of disputes involving billions of dollars in claims.

India has responded by establishing institutions such as the Mumbai Centre for International Arbitration and the Delhi International Arbitration Centre. These initiatives seek to position India as a credible venue for both domestic and international arbitration.

The Supreme Court’s decision in Vidya Drolia v. Durga Trading Corporation (2021) further contributed to legal clarity by identifying categories of disputes that are suitable for arbitration and those that must remain within the jurisdiction of courts. The judgment recognised that issues involving serious allegations of fraud and matters affecting public rights may not be appropriate for private adjudication.

IV. Is ADR Actually Reducing the Backlog?

The strongest argument in favour of ADR is straightforward: disputes resolved outside courts do not contribute to judicial congestion.

India’s Lok Adalat system provides one of the clearest examples. Operating under the Legal Services Authorities Act, 1987, Lok Adalats facilitate settlement of disputes involving areas such as motor accident claims, family disputes, and labour matters. Their disposal figures demonstrate the substantial capacity of non-traditional dispute resolution mechanisms.

Similarly, Section 12A of the Commercial Courts Act, 2015 requires parties to attempt pre-institution mediation before filing specified commercial suits. Judicial enforcement of this requirement, particularly following Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd. (2022), has strengthened the role of mediation within commercial dispute resolution.

Nevertheless, caution remains necessary.

Professor Hazel Genn has argued that excessive reliance on settlement risks privatising justice. Not every dispute should be resolved through compromise. Some cases raise important public questions, establish legal precedents, or involve significant power imbalances between parties.

In such circumstances, litigation performs functions that private dispute resolution mechanisms cannot fully replicate.

V. The Harder Questions

A. Should ADR Ever Be Compulsory?

The concept of mandatory ADR raises important philosophical and practical concerns.

Mediation is traditionally understood as a voluntary process. Requiring parties to participate may appear inconsistent with its foundational principles. Moreover, vulnerable individuals facing debt recovery proceedings, eviction, or family disputes may enter mediation without adequate legal representation or bargaining power.

The Mediation Act, 2023 provides important procedural safeguards but leaves unresolved questions concerning access to legal assistance and protection for vulnerable participants.

B. The Promise and Limits of Online Dispute Resolution

The COVID-19 pandemic accelerated the growth of Online Dispute Resolution (ODR).

Digital platforms now allow parties to conduct mediation sessions, exchange documents, and conclude settlements remotely. Institutions and policymakers increasingly view ODR as a means of expanding access to justice while reducing costs.

However, the benefits of digital dispute resolution are not distributed equally. Access to reliable internet, technological literacy, and digital infrastructure remains uneven across India.

If online systems become the dominant method of dispute resolution without addressing these inequalities, existing barriers to justice may simply be replicated in digital form.

C. When Arbitration Challenges Government Policy

Perhaps the most controversial dimension of ADR involves investor-state arbitration.

Under investment treaty arbitration mechanisms, private corporations may challenge governmental actions before international tribunals. The Philip Morris v. Australia dispute became one of the most prominent examples, involving a challenge to Australia’s tobacco packaging regulations.

Although the claim ultimately failed, the case highlighted concerns regarding the ability of private investors to contest public policy measures adopted by sovereign states.

India’s response included terminating numerous Bilateral Investment Treaties and introducing a new Model Bilateral Investment Treaty in 2016. The revised framework narrows investor protections and requires greater reliance upon domestic remedies before international arbitration may be pursued.

This development reflects an ongoing effort to balance investment protection with democratic governance and regulatory autonomy.

VI. Where Do We Go from Here?

ADR is unlikely to replace courts entirely, nor should it attempt to do so. Instead, its future effectiveness depends upon strengthening four key areas.

Regulating Quality

The Mediation Council of India must establish meaningful standards for accreditation, training, supervision, and accountability. Public confidence in mediation depends upon professional competence and ethical conduct.

Protecting Vulnerable Parties

Mandatory ADR frameworks must include safeguards for individuals facing coercion, violence, or unequal bargaining power. Access to legal aid and clear exemption mechanisms remain essential.

Designing Inclusive Technology

Online dispute resolution must be developed with accessibility in mind. This includes multilingual platforms, offline alternatives, and investment in digital literacy initiatives.

Building Institutional Trust

Arbitration institutions can only succeed if parties perceive them as independent, impartial, and transparent. Efforts to diversify arbitrator appointments and strengthen procedural fairness remain crucial.

VII. Conclusion

The farmer waiting for resolution of his land dispute may still be waiting today. Yet the legal landscape around him is changing.

India’s Mediation Act, 2023 offers the possibility of resolving disputes more efficiently than traditional litigation. Online dispute resolution platforms have the potential to make justice more accessible. Skilled mediators can often preserve relationships that adversarial litigation destroys.

These developments represent the strongest promise of ADR.

However, legal reform alone cannot guarantee meaningful access to justice. Effective implementation, institutional accountability, technological inclusiveness, and protection for vulnerable parties remain essential.

Recent developments—including the Singapore Convention on Mediation, the Mediation Act, 2023, the United Kingdom’s Arbitration Act, 2025, and India’s expanding arbitration infrastructure—demonstrate significant progress. Yet ADR remains an evolving project rather than a completed one.

Ultimately, the question is not whether ADR works. The evidence suggests that it can. The more important question is whether it will be designed and implemented in a manner that serves all participants equally.

Justice, whether delivered inside a courtroom or beyond it, remains an ongoing project that must continually adapt to the needs of society.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of The Lawscape.

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