“DISPUTE RESOLUTION SYSTEM IN INDIA: LITIGATION”

ROUGH DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE

TITLED-

Legal Methods and Research Methodology

SUBMITTED TO- SUBMITTED BY-

Mr. VIJAYANT SINHA NAME: SARTHAK SHUKLA

TEACHER ASSOCIATE COURSE: B.B.A, LL.B (Hons.)

ROLL NO- 2038

SEMESTER- 1st

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

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INTRODUCTION

Dispute resolution is the process of resolving disputes between parties. The term dispute
resolution may also be used interchangeably with conflict resolution, where conflict styles can be
used for different scenarios. One could theoretically include violence or even war as part of this
spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes
effectively, and indeed, often only escalates them.

The legal system provides resolutions for many different types of disputes. Some disputants will
not reach agreement through a collaborative process. Some disputes need the coercive power of
the state to enforce a resolution. Perhaps more importantly, many people want a professional
advocate when they become involved in a dispute, particularly if the dispute involves perceived
legal rights, legal wrongdoing, or threat of legal action against them. The most common form of
judicial dispute resolution is litigation. Litigation is initiated when one party files suit against
another. In the United States, litigation is facilitated by the government within federal, state, and
municipal courts. The proceedings are very formal and are governed by rules, such as rules of
evidence and procedure, which are established by the legislature. Outcomes are decided by an
impartial judge and/or jury, based on the factual questions of the case and the application law.
The verdict of the court is binding, not advisory; however, both parties have the right to appeal
the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for
example, involving antagonistic parties or opposing interests seeking an outcome most favorable
to their position.1

Litigation is the term used to describe proceedings initiated between two opposing parties to
enforce or defend a legal right. Litigation is typically settled by agreement between the parties,
but may also be heard and decided by a jury or judge in court.2

1
https://en.wikipedia.org/wiki/Dispute_resolution
2
https://law.freeadvice.com/litigation/litigation/litigation.htm

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TENTATIVE CHAPTERIZATION

1) Origin Of Litigation System In India

The litigation system basically evolved among the Greeks. The reason behind the origin of
the litigation system among the Greeks was the then time disputed and chaos among the people.
This ancient custom is supposed to have been gradually developed into a system under which the
parties were denied the right to seek realization of their claims by private force and compelled to
submit their cases to authorities.3

2) Types of Dispute Resolution System in India.

Negotiation

Definition: Negotiation is the most basic means of settling differences. It is back-and-forth

communication between the parties of the conflict with the goal of trying to find a solution.

Mediation

Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps
with communication and promotes reconciliation between the parties which will allow them to
reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves
unsuccessful.

Arbitration
Definition: Arbitration is the submission of a disputed matter to an impartial person (the
arbitrator) for decision.

3) Litigation System In India

The main disputes resolution methods in India are court litigation and arbitration. Most
large commercial contracts (particularly in the field of infrastructure, financial
transactions and trading) contain arbitration clauses. However, many large contracts do
not contain an arbitration clause, and the parties must use the courts for the resolution of
their disputes. Commercial disputes in India are referred to the Commercial Courts.
India has a common law system. Therefore, the system is adversarial and both parties
must prove their case.

3
https://en.wikipedia.org/wiki/Civil_law_(legal_system)#History

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 4) Advantages and Disadvantages of Litigation

Open system of justice (pubic): Open justice is a legal principle describing legal processes
characterized by openness and transparency.[1] The term has particular emphasis in legal
systems based on British law, such as in the United Kingdom, Commonwealth countries such as
South Africa and Canada and Australia, and former British colonies such as the United States.
The term has several closely related meanings: it is seen as a fundamental right guaranteeing
liberty.

Judicial decision: The judgment of any Court, High Court or Supreme Court is a decision of the
court in that particular case. It would bind the parties on the principle of res judicata but so far as
its binding nature on other courts or other parties is concerned, it has been clearly laid down that
what is binding as a judicial precedent is ‘ratio decidendi’. The expression ‘ratio decidendi’
means the underlying principle

5) Disadvantages of Litigation

Litigation certainly has disadvantages. First of all, litigation is time consuming. Litigation
process is a very complicated process. It needs to go through many steps and stages before the
trial start. It takes long time to complete the pre-trial stages. According to the report written by
Arthur (2008), Edition of the New York Times in 23 March 1983, an experienced lawyer was
explaining to young potential lawyers what they can expect in litigation practice. He said, “You
spend years and years in pre-trial motion practice. I smother the other side with papers and they
smother me with papers until we wear each other out and the judge knocks my head against his
head and we settle. It takes around three or four years."

6) Conclusion And Suggestion

Through the research, researcher came to know about the various flaws in the current litigation
system. The litigation process should become more fast so that the justice can be ensured when
required because in many case it happens that decisions come after a long period of time and
then the decision doesn’t matter for the parties. Another suggestions that researcher would like to
give is that the litigation process should be make cheap. Nowadays, it has become very costly
and in consequence, poor people are not able to get good lawyers and it results in losing of cases
which shows defects in our so called equal justice judicial system.