The popular as well as the technical sense of the term arbitration is that the parties agree to settle any matter or maters in controversy between them by a domestic tribunal of their own choice instead of a resort to a regular and ordinary court of law constituted by authority. In its broad sense, it is a substitution by consent of parties. Its object is the final disposition in a speedy and in-expensive way of the matter involved so that they may not become the subject of future litigation between the parties.

The concept of parties to a dispute settling their disputes in binding manner was not new to the people of Ancient and Medieval India. Parties used to make reference relating to that dispute to a person or persons of their choice and private tribunals. The right of appeal was provided from such decisions to the judges appointed by the King and ultimately to the King himself.

As a first stage, the people of Ancient and Medieval India referred their disputes to: Kula (Families or clan assemblies) Srenis (Guilds-men following the same occupation), Panshads(Assemblies of learned who know law and other autonomous bodies). These bodies used to decide all types of cases including criminal cases. Nyaya Panchayats were there are at the grass-root level until the arrival of Britishers. Even today Kulas, Srenis, Parishads are being used without publicity to resolve the family disputes, disputes between friends, neighbors and disputes between employers and employees in certain areas of the country.

Provide speedy and inexpensive justice in both rural and urban areas. These Lok Adalats can also decide the criminal cases which are compoundable and petty in nature.

It is a well-known fact now that our litigation system in the courts is extremely time consuming and expensive. So, as to avoid this delay which makes the people cynical about the judicial process, we have no other choice except to devise alternative options to litigation to lessen the burden of judicial bodies. These alternative dispute resolution methods have been adopted by developed countries like U.S.A., U.K., Australia, Canada, Germany, Holland, Hongkong, New Zealand, South Africa, Switzerland etc. These countries have been using ADR process over the last 20 years. There is an urgent need to promote ADR in India on a large scale.

The ADR procedure mainly consists of Negotiations, Conciliation, mediation, arbitration and an array of hybrid procedures including mediation and offer arbitration, Minitrial, Med-Arb, and Neutral evaluation. Legislation was also passed to promote the use of ADR by State instrumentalities. ADR techniques are extra judicial in character. The process of ADR can be used in almost all-contentious matters, which are capable of being resolved under law, agreement between the parties. This process has been employed with encouraging results in civil, commercial, industrial and family disputes. This is being most successfully used in banking, contract performance and interpretation; construction contracts; intellectual property rights, insurance coverage; joint ventures; partnerships, personal injury, product liability; professional liability, real estate and securities.

ADR offers best solutions in respect of the above matters. But criminal matters have been paid least attention by ADR process. Even though Lok Adalats have been entrusted with the task of deciding petty and compoundable offences, the work turned out by these Adalats is to be measured as a great success.

The members of a Lok Adalat are usually three, they act as conciliators an drawn generally from serving or retired judicial officers, social workers and advocates. Lok Adalats are organised with financial assistance of Central and State Governments and are monitored by Judiciary.

As on 31^st March, 1996, more than 13,000 Lok Adalats were organised and over 5 million cases were settled, despite that there is a lot of pendency. The cases are primarily Motor accidents, land acquisition, family disputes, encroachments on forest land, Bank loans, workmen's compensation and compoundable criminal offences. Even though Lok Adalats' achievements are significant, they have not been able to attract cases involving heavy financial stakes or important civil or criminal litigation. Even the Government departments do not seem to think of Lok Adalats as a major form of ADR

So there is an urgent need to constitute a new body to settle the disputes of criminal nature which are bailable as per law. As ADR process is concerned with litigation of other types, as there is dearth of institutional support to get the Bailable, Compundable and petty Criminal cases amicably settled, as the nu,mber of cirminal cases pending before the Courts constitute half of the pending cases, there is need for a separate body on the lines of Arbitrator, Conciliator, mediator or Facilitator to decide the Criminal cases which are not cognizable in nature.

According to as study conducted by economist Bibek Debroy, the backlog in our legal system is 25 millions cases, and it takes 324 years to dispose of the backlog at the current disposal rate provided no cases is added. (Reported in Economic Times, dated 3/04/2001).

Out of 25 millions cases pending, the share of criminal cases could be easily about 8 millions, therefore there is an urgent need to find out ways and means to clear the backlogs in criminal courts.

It is interesting to note that a Private International Bank resorted to a novel Ploy of remedy for recovery of debts. The story as reported in The New Sunday Express dated 15^th April, 2001, is:

"Having already tried our goons to recover money from 'bad' customers, private banks in the capital have gone a step ahead and engaged drag queens.

Three such banks have together hired as many as 84 musclemen and 78 cunuchs and the results have been quite encouraging. In any case, the Banks are realising that this method is more effective than approaching the courts for recovery of the amount"

Dr. V.G. Joshi, Principal, ILS Law College, Poona, informed that a survey of 1000 Dowry cases under Sec. 498A covering 8 police stations were conducted in Poona. The results revealed that out of 1000 cases only 2% resulted in conviction and rest were acquittals.

The above situation suggests that had these matters been brought under the method of Alternative Dispute Mechanism, the state would have saved the time and money of the exchequers and the time and money of the parties. These are some of the areas in criminal side, which involve humane touch rather than strict application of law. In the light of the situations discussed above, I intend to suggest a mechanism on lines of Alternative Dispute Resolution System, known as the Institution of Facilitator. The details of the mechanism are as under:

1. The parties themselves create the solution; it is not imposed on them by third person i.e., a judge, or an arbitrator. Thus, the opportunity for finding a win-win solution is virtually unlimited.
2. The adversarial process invariably tarnishes, if not destroys old relationships and throws up substantial roadblock to the creation of new relationships. In contrast, mediation inherently turns adversaries into partners.
3. Mediation also provide ample substantive alternatives for the parties to explore as bases for their solution.

1. Jurisdiction : Matters dealing with bailable offences under 1^st Schedule of Cr.P.C.
2. Mode of Operation: Magistrate shall frame the charge and refer the case to Facilitator.

1. VICTIM / OFFENDER RECONCILIATION (VOR)
2. Discuss the offence as well as the feelings, concerns, and consequences for both the victim and offender.
3. Reach an appropriate and just agreement. This includes financial compensation, repairing damages, returning property and apologizing for the harm done.
4. Arrive at some resolution and reconciliation. This is particularly important when the cases involve people in on going relationships.
5. If a resolution is arrived at, the same shall be sent to the Magistrate to make it a rule of the Court.
6. In case the parties fail to arrive at resolution, the facilitator shall his resolution to the Magistrate, which shall be made rule of the Court.

1. Appeal: An Appeal is provided only on resolutions made by the Facilitator, in the appellate court known as the Criminal Court of Appeal and no further appeal.
2. Place of Operation: An Institution of facilitator shall be constituted at each Mandal /Block and a Criminal Court of Appeal shall be constituted in District Headquarters, preferably in the premises of District and Session Court of each District.
3. Qualification for appointment as Facilitators: Any Advocate of 5 years active practice in Criminal Court shall be eligible for being appointed as Facilitator.
4. Mode of Appointment: By a written examination conducted by Service Commission.
5. The term of Office: The term of office of Facilitator shall be for a period of 3 years, renewable for a further term of 3 years on the basis of performance appraisal report by the Dist. & Sessions Judge of each District.
6. Accountability: Facilitator shall be under the control of the District and Sessions Judge.
7. Remuneration: As per Government rules to the equivalent position.
8. Qualifications for appointment as Judge of Criminal Court of Appeal: Any person eligible to be appointed as District and Session Judge.
9. Mode of Appointment: Same as that of District Judge.
10. Term of Office : 3 years renewable for another terms subject to attainment of 62 years of age.
11. Procedure: The facilitator need not strictly follow the procedural laws like Cr.P.C., Indian Evidence. The object of the Institution of Facilitator is to find amicable solution to the problem to the satisfaction of both the parties, with in the framework of principles of Natural Justice.

Chief Justice of Andhra Pradesh High Court, Hon'ble Justice Satya Brata Sinha, said on the occasion of inauguration of workshop on the "Role of Arbitration in the wake of the Code of Procedure (Amendments Act, 1999), that the United States, only 10% of cases come up for trial in Court with the remaining being resolved through arbitration and conciliation. It would be desirable if atleast 25 percent of the cases were disposed of the India in this manner. Tracing the history of arbitration in India and in the West, he said courts were empowered to refer disputes for arbitration when the British set up mofussil courts in India in the 18^th century but these procedures were abandoned with the passage of time. Several other Acts were passed in the last century to promote the use arbitration, which did not, however, meet their objectives.

* * *