CENTRAL UNIVERSITY OF SOUTH BIHAR

PROJECT-TOPIC
“Ombudsman as ADR Mechansism"

Submitted To Course Instructor

Submitted By Student

Dr. Deo Narayan Singh Dharam Deepak Vishwash

Assistant Professor, School of BA.LLB.(Hons)
Law & Governance 8th Semester
4th Year
Subject-Alternate Dispute Enrollment No. CUSB1713125013
Resolution
Course Code – Law 453

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 ACKNOWLEDGEMENT

This project consumed huge amount of work, research and dedication. Still, implementation
would not have been possible if we did not have a support of many individuals and
organizations. Therefore I would like to extend my sincere gratitude to all of them.
In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude to Dr. Deo Narayan Singh, Course
Instructor, of Central University of South Bihar for giving me good guidelines for project
throughout numerous consultations. I would also like to expand my gratitude to all those
who have directly and indirectly guided me in writing this project.
Secondly I would also like to thank my parents and friends who helped me a lot in finalizing
this project within the limited time frame.
Many people, especially my classmates have made valuable comment suggestions on my
paper which gave me an inspiration to improve the quality of the project.
At last but not the least, a big thank you to the college library, writers of the book and sites
which gave me an expanded form of information about my topic.

DHARAM DEEPAK VISWASH

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 INDEX

1. Introduction.......................................................................................4-5

2. Alternative Dispute Resolution Mechanism..................................6-

10

3. Ombudsman as ADR
Mechanism......................................................11

4. Conclusion...........................................................................................13

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 1. Introduction
Alternative Dispute Resolution (ADR) is an umbrella that covers a large number of processes
to settle differences between the parties of a dispute by means of extra-judicial mechanisms:
mediation, expert determination, arbitration, or a combination of these schemes. Basically, an
Alternative Dispute Resolution is an outcome of all such problems which are facing by the
public constantly in the litigation. It is like a substitute to the traditional method of resolving
dispute and justice. An ADR mechanism mainly focuses on delivering justice through mutual
consent of the parties in the minimum time without any delay like in litigation. An ADR
mechanism recognized five methods to resolve any dispute such as Arbitration, Conciliation,
Mediation, Lok Adalat and Ombudsman.1

Alternative methods are work on the mutual consensus and try to settle dispute with as early
as practicable. ADR mechanism is an option to the public who don’t want to go for
conventional method or want to resolve their matter without courts interference. These
mechanisms have their own advantage as well as flaws, like any other process have might do.
It is a non–binding procedure in which an impartial third party, the conciliator or mediator,
assists the parties to a dispute in reaching a mutually satisfactory and agreed settlement of the
dispute. Mediation is a process by which disputing parties engage the assistance of a neutral
third party to act as a mediator.2

As a result, Alternative Dispute Resolution mechanisms have become more crucial for
businesses operating in India as well as those doing businesses with Indian firms. So
Alternate Dispute Resolution (herein after as ADR) is necessary as a substitute to existing
methods of dispute resolution such as litigation, conflict, violence and physical fights or
rough handling of situations. It is a movement with a drive from evolving positive approach
and attitude towards resolving a dispute.3

The Ombudsman or Ombudsperson consist the “power and duty” to provide meetings,
mediation or other forms of alternative dispute resolution as may from time to time be

1
Anveksha Padhye, Mediation As An Effective ADR Mechanism, available at:
https://www.mediate.com/articles/padhye-mediation-effective.cfm
2
Avtar Singh, Law of Arbitration & Conciliation and Alternative Dispute Resolution system 520 (Eastern Book
Company, 10th edition).
3
S.Chaitanya Shashank, ADR in India: Legislations and Practices,
https://www.lawctopus.com/academike/arbitration-adr-in-india

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requested by members of the common interest community. In addition, following a review of
a complaint that has been through an association’s “internal dispute resolution” process, the
Ombudsperson may offer ADR in an appropriate case. In either case, the Office of the
Ombudsperson cannot force parties into ADR. All ADR through the Office of the
Ombudsperson is voluntary.4

Ombudsman plays the most important role and in the Indian context this role is played by the
Lokpal. The Office of the Ombudsperson can either facilitate or conduct ADR. The
Ombudsperson can facilitate ADR by accepting the complaint and forwarding it to the
opposing party, and help the parties agree on neutral ADR practitioner if either party objects
to the Ombudsperson. The potential of ADR mechanisms to contribute to the effectiveness of
competition law enforcement has also been highlighted by various consultation papers.5

4
S.Chaitanya Shashank, ADR in India: Legislations and Practices,
https://www.lawctopus.com/academike/arbitration-adr-in-india
5
ibid

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 2. Alternative Dispute Resolution Mechanism
Alternative Dispute Resolution (ADR) mechanisms include several procedures that allow
parties to resolve their disputes out of court in a private forum, with the assistance of a
qualified neutral intermediary of their choice. ADR procedures are offered by different
arbitral institutions. The advantage of ADR is that it is more flexible and avoids seeking
recourse to the courts. In conciliation/mediation, parties are free to withdraw at any stage of
time. It has been seen that resolution of disputes is quicker and cheaper through ADR. The
parties involved in ADR do not develop strained relations; rather they maintain the continued
relationship between themselves. The technique of ADR is an effort to design a workable and
fair alternative to our traditional judicial system. It is a fast track system of dispensing justice.
There are various ADR techniques viz. Arbitration, Mediation, Conciliation, Lok Adalat and
Ombudsman.

Arbitration

Arbitration is one of the cardinal mechanisms in alternative dispute machinery, whereby the
dispute is submitted to one or more arbitrators, who are duly appointed by both the parties.
The process of arbitration can start only if there exists a valid arbitration agreement between
the parties prior to the emergence of the dispute.6 It is much like a trial, in that the parties can
call witnesses, present evidence, and argue the merits of their case to a neutral decision
maker. In many jurisdictions, civil litigants whose claims do not exceed a certain amount may
be ordered to attend arbitration by the court, in an effort to keep the court’s docket clear for
more substantial lawsuits. The law relating to Arbitration and Conciliation is almost the same
as in the advanced countries.

As per Section 7 of Arbitration and Conciliation Act, 1996, such an agreement must be in
writing. The contract, regarding which the dispute exists, must either contain an arbitration
clause or must refer to a separate document signed by the parties containing the arbitration
agreement. The existence of an arbitration agreement can also be inferred by written
correspondence such as letters, telex, or telegrams which provide a record of the agreement.
An exchange of statement of claim and defence in which existence of an arbitration
agreement is alleged by one party and not denied by other is also considered as valid written

6
Mohit Malhotra, Alternate Dispute Resolution System Position in India, available at:
https://www.lawfinderlive.com/Articles-1/Article7.htm?AspxAutoDetectCookieSupport=1

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arbitration agreement.7 Local court rules may also allow litigants to elect for their case to be
sent to arbitration regardless of the dollar amount at stake. In doing so, the parties can agree
that the results of the arbitration will be binding or non- binding. In non-binding arbitration,
the loser can afterwards request a new trial in the civil court.

Mediation

Mediation is a much different type of ADR proceeding. Unlike arbitration, it does not involve
an adversarial hearing, and there is no decision-making official present. Instead, the parties
involved in the dispute are brought together in one location and a neutral facilitator acts as a
go-between. The job of the mediator is to help the parties reach a voluntary settlement of the
case. For litigants and attorneys who have become antagonistic toward each other over the
course of the litigation, or who have unrealistic expectations concerning the outcome of the
case, mediation may be their only chance to avoid having to go to trial. 8 Mediation is an
Alternative Dispute resolution where a third neutral party aims to assist two or more
disputants in reaching agreement. It is an easy and uncomplicated party cantered negotiation
process where third party acts as a mediator to resolve dispute amicably by using appropriate
communication and negotiation techniques. This process is totally controlled by the parties.
Mediator’s work is just to facilitate the parties to reach settlement of their dispute. Mediator
doesn’t impose his views and make no decision about what a fair settlement should be.9

Mediation is the technical term in international law which signifies the interposition by a
neutral and friendly state between two states at war or on the eve of war with each other, of
its good offices to restore or to preserve peace. The mediation is a process, facilitation, an
empowerment. The core value of mediation is that the process provides the parties with an
opportunity to negotiate, converse and explore options aided by a neutral third party, the
mediator, to exhaustively determine if a settlement is possible. It is a process of
empowerment of the parties to control their destiny in their dispute.10

Thus, mediation is necessarily a process of negotiation by which the participant together with
the assistance of a neutral person attempts to resolve the dispute. The third party mediator
makes effort by negotiations with the participants to systematically identify and isolate
7
Sujay Ilnu, Alternate Dispute Resolution Mechanism, available at:
http://www.legalservicesindia.com/article/224/ADR-Mechanism-in-India.html
8
Mohit Malhotra, Alternate Dispute Resolution System Position in India, available at:
https://www.lawfinderlive.com/Articles-1/Article7.htm?AspxAutoDetectCookieSupport=1
9
S.Chaitanya Shashank, ADR in India: Legislations and Practices, available at:
https://www.lawctopus.com/academike/arbitration-adr-in-india
10
ibid

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disputed issues in order to develop options consider alternatives and to reach a congenital
agreement that will accommodate their needs and rights. The third party mediator lacks
authority to decide but only facilitate to create congenial environment to enable the party to
resolve their dispute amicably themselves.

Conciliation

Conciliation is a less formal form of arbitration. This mechanism is also non-binding on the
parties. It is a process by which a third party called "conciliator" meets disputed parties
separately in order to resolve their differences. This process does not require an existence of
any prior agreement. Any party can request the other party to appoint a conciliator. One
conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all
must act jointly. If a party rejects an offer to conciliate, there can be no conciliation. Parties
may submit statements to the conciliator describing the general nature of the dispute and the
points at issue. Each party sends a copy of the statement to the other. The conciliator may
request further details, may ask to meet the parties, or communicate with the parties orally or
in writing. Parties may even submit suggestions for the settlement of the dispute to the
conciliator.11

Conciliation is a form of arbitration but it is less formal in nature. It is the process of

facilitating an amicable resolution between the parties, whereby the parties to the dispute use
conciliator who meets with the parties separately to settle their dispute. Conciliator meets
separately to lower the tension between parties, improving communication, interpreting issue
to bring about a negotiated settlement. There is no need of prior agreement and cannot be
forced on party who is not intending for conciliation. It is different from arbitration in that
way.12

Lok Adalat

“While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards
ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987
is a uniquely Indian approach”. Lok Adalat is called ‘People’s Court’ presided over by a
sitting or retired judicial officer, social activists or members of Legal profession as the
chairman. National Legal Service Authority (NALSA) along with other Legal Services
11

12

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Institutions conducts Lok Adalats on regular intervals for exercising such jurisdiction. Any
case pending in regular court or any dispute which has not been brought before any court of
law can be referred to Lok Adalat. There are no court fees and rigid procedure followed,
which makes the process fast. If any matter pending in court of referred to the Lok Adalat and
is settled subsequently, the court fee originally paid in the court when the petition filed is also
refunded back to the parties.13

Parties are in direct interaction with the judge, which is not possible in regular courts. It
depends on the parties if both the parties agree on case long pending in regular court can be
transferred to Lok Adalat. The persons deciding the cases have the role of statutory
conciliators only, they can only persuade the parties to come to a conclusion for settling the
dispute outside the regular court in the Lok Adalat. Legal Services Authorities (State or
District) as the case may be on receipt of an application from one of the parties at a pre-
litigation stage may refer such matter to the Lok Adalat for which notice would then be
issued to the other party. Lok Adalats do not have any jurisdiction to deal with cases of non-
compoundable offenses.14

Lok Adalat was a historic necessity in a country like India where illiteracy dominated other
aspects of governance. It was introduced in 1982 and the first Lok Adalat was initiated in
Gujarat. The evolution of this movement was a part of the strategy to relieve heavy burden on
courts with pending cases. It was the conglomeration of concepts of social justice, speedy
justice, conciliated result and negotiating efforts.

The Legal Services Authorities Act, 1987 was brought into force on 19 November 1995. The
object of the Act was to provide free and competent legal services to the weaker sections of
the society to ensure that opportunities for securing justice are not denied to any citizen. The
concept of legal services which includes Lok Adalat is a revolutionary evolution of resolution
of disputes. Though settlements were affected by conducting Lok Nyayalayas prior to this
Act, the same has not been given any statutory recognition. But under the new Act, a
settlement arrived at in the Lok Adalats has been given the force of a decree which can be
executed through Court as if it is passed by it. Sections 19, 20, 21 and 22 of the Act deal with

13
Mohit Malhotra, Alternate Dispute Resolution System Position in India, available at:
https://www.lawfinderlive.com/Articles-1/Article7.htm?AspxAutoDetectCookieSupport=1
14
Supra note 12 at 8.

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Lok Adalat. Section 20 provides for different situations where cases can be referred for
consideration of Lok Adalat.15

Honorable Delhi High court has given a landmark decision highlighting the significance of
Lok Adalat movement in the case of Abdul Hasan and National Legal Services Authority v.
Delhi Vidyut Board and Others. The court passed the order giving directions for setting up of
permanent Lok Adalats for redressal of the disputes between parties.

3. Ombudsman as ADR Mechanism

15
S.Chaitanya Shashank, ADR in India: Legislations and Practices, available at:
https://www.lawctopus.com/academike/arbitration-adr-in-india

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An Ombudsman is a person who acts as a trusted intermediary between an organization and
some internal or external constituency and represents not only but mostly the broad scope of
constituent interests. An ombudsman is an official, usually appointed by the government or
by parliament, who is charged with representing the interests of the public by investigating
and addressing complaints reported by individual citizens.16

An Ombudsman Is usually appointed by the organization, but sometimes elected by the

constituency. For example, investigate constituent complaints relating to the organization and
attempt to resolve them, usually through recommendations or mediation and may sometimes
identify organizational roadblocks running counter to constituent interests.17

Ombudsman is more commonly known as the Lokpal or Lokayukta. An Administrative

Reforms Commission (ARC) was set up on 5 January 1966 under the Chairmanship of Shri
Morarji Desai. It recommended two-tier machinery: Lokpal at the Centre and one Lokayukta
each at the State level for redress of people's grievances. The central Government introduced
the first Lokpal Bill, Lokpal and Lokayuktas Bill In 1968, and further legislation was
introduced in 2005, but has so far not been enacted.18

Ombudsman plays the most important role and in the Indian context this role is played by the
Lokpal. Lokayukta the state-level Lokayukta institution has developed gradually.
Maharashtra was the first to establish the institution, in 1972. Orissa was the first state to
present a bill on establishment of Lokayukta in 1970. The structure of the Lokayukta is not
uniform across all the states. Some states have a Lokayukta under the Lokayukta and in some
states; the Lokayukta does not have suo moto powers of instigating an enquiry. The
Government of India has designated several ombudsmen for the redress of grievances and
complaints from individuals in the banking, insurance and other sectors being serviced by
both private and public bodies and corporations. Ombudsman in India is sometimes referred
to as Chief Vigilance Officer or CVO.

An ombudsman is an official, usually appointed by the government, who investigates

complaints (usually lodged by private citizens) against businesses, financial institutions, or
government departments or other public entities, and attempts to resolve the conflicts or
concerns raised, either by mediation or by making recommendations. Ombudsmen may be
16
Lokayukta, available at: https://www.wikiwand.com/en/Lokayukta
17
Pratiksha Shetty, Ombudsman in India, available at:
https://www.scribd.com/document/207715964/Ombudsman-in-India
18
Mohit Malhotra, Alternate Dispute Resolution System Position in India, available at:
https://www.lawfinderlive.com/Articles-1/Article7.htm?AspxAutoDetectCookieSupport=1

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called by different names in some countries, including titles such as a public advocate or
national defender. An ombudsman investigates complaints against businesses and other
organizations, including the government. The decisions of Ombudsmen are not always
legally binding. Although an ombudsman is usually publicly appointed, he or she will
typically have a large degree of independence in fulfilling his or her function. This is to
enable the official to act in a fair and impartial way to all parties involved in a complaint.19

Special courts have been established to ensure that all these processes are completed within a
stipulated time period. It has also been made compulsory by the Act for every State to pass a
law within a given time period of one year to establish a body of Lokayukta at the level of the
State. However there is one problem with this provision and that problem is that the specific
details in relation to the Act have been left completely on the State. To tackle the problems of
corruption at the Central level this Act provides for the establishment of a body called the
Lokpal which would be responsible to look into the matters of investigation, prosecution
against the public officials.20

To deal with the situation of pendency of cases in courts of India, Ombudsman as ADR
Mechanism plays a significant role in India by its diverse techniques. Alternative Dispute
Resolution mechanism provides scientifically developed techniques to Indian judiciary which
helps in reducing the burden on the courts.21

4. Conclusion
From this project I have reviewed the Alternative Dispute Resolution refers to any means of
settling disputes outside of the courtroom. An ADR mechanism mainly focuses on delivering
justice through mutual consent of the parties in the minimum time without any delay like in
litigation. An ADR mechanism recognized five methods to resolve any dispute such as
19
Sumit and Oshoneesh Waghmare, Institution of Ombudsman-A Legislative and Judicial Outlook, available at:
https://www.lawctopus.com/academike/institution-ombudsman-legislative-judicial-outlook
20
Ibid.
21
Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), available at:
https://blog.ipleaders.in/adr-alternative-dispute-resolution

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Arbitration, Conciliation, Mediation, Lok Adalat and Ombudsman. With the advent of the
alternate dispute resolution, there is new avenue for the people to settle their disputes. The
settlement of disputes in Lok Adalat quickly has acquired good popularity among the public
and this has really given rise to a new force to ADR and this will no doubt reduce the
pendency in law Courts. There is an urgent need for justice dispensation through ADR
mechanisms. The ADR movement needs to be carried forward with greater speed. This will
considerably reduce the load on the courts apart from providing instant justice at the door-
step, without substantial cost being involved. If they are successfully given effect then it will
really achieve the goal of rendering social justice to the parties to the dispute.

The other point to be noted is that when the concept of Ombudsman emerged at that point of
time it was made to tackle the problem of maladministration and inefficiency with corruption
just being a part of it but as time passed the problem of corruption grew to such an extent that
now the institution of ombudsman is considered to be made only for the problem of
corruption. This problem of corruption cannot be tackled only through legislation; a
concentrated and unified effort is required from the society as a whole. For corruption to
spread its root so deep into the system of any nation the citizens of the nation are equally to
be blamed because it is not only the administrative officials who are at the wrong side. In
order to make sure that a nation should prosper it becomes very important that the
administrative wing of the nation is functioning properly and efficiently and at the same time
one key point to be noted is that there is no corruption in the administrative department of the
nation. Corruption is actually the deep rooted cause which is the biggest obstacle in the
development of a nation. In order to tackle this problem of corruption the institution of
Ombudsman plays the most important role and in the Indian context this role is played by the
Lokpal.

Bibliography
• Books

 Avtar Singh, Law of Arbitration & Conciliation and Alternative Dispute Resolution
system, Eastern Book Company, 10th edition 2018.
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• Websites

 Alternative Dispute Resolution (ADR) Mechanisms, available at:

https://www.drishtiias.com/to-the-points/Paper2/alternative-dispute-resolution-adr-
mechanisms-paper-2

 Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR),
available at: https://blog.ipleaders.in/adr-alternative-dispute-resolution/

 Anveksha Padhye, Mediation As An Effective ADR Mechanism, available at:

https://www.mediate.com/articles/padhye-mediation-effective.cfm
http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html

 Lokayukta, available at: https://www.wikiwand.com/en/Lokayukta

 Mohit Malhotra, Alternate Dispute Resolution System Position in India, available at:
https://www.lawfinderlive.com/Articles-1/Article7.htm?AspxAutoDetectCookieSupport=1

 S.Chaitanya Shashank, ADR in India: Legislations and Practices,

https://www.lawctopus.com/academike/arbitration-adr-in-india/

 Sujay Ilnu, Alternate Dispute Resolution Mechanism, available at:

http://www.legalservicesindia.com/article/224/ADR-Mechanism-in-India.html

Sumit and Oshoneesh Waghmare, Institution of Ombudsman-A Legislative and Judicial

Outlook, available at: https://www.lawctopus.com/academike/institution-ombudsman-
legislative-judicial-outlook/

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