Adversarial and inquisitorial systems
Courts in different countries find the truth in two main ways.
| Adversarial | Inquisitorial | |
|---|---|---|
| Who leads? | Lawyers of each side collect and present evidence | The judge directs the inquiry and questions witnesses |
| Judge's role | Neutral umpire who checks rules and decides | Active investigator |
| Where used | Common-law countries: UK, USA, India, Australia | Civil-law countries: France, Germany, much of Europe and Latin America |
| Strength | Both sides get a full chance to argue | Less depends on how rich or skilled your lawyer is |
| Weakness | Slow and costly; the better lawyer may win | Much power with the judge |
India mainly follows the adversarial system, though judges can ask questions and order inquiries. Because cases pile up in courts, the law encourages ADR: in India, Section 89 of the Code of Civil Procedure lets courts send suitable cases to arbitration, conciliation, mediation or Lok Adalat.
Negotiation, mediation and conciliation
Negotiation
The two sides talk directly and reach a deal, with no outsider.
Mediation
A neutral mediator helps the parties listen, find what each really needs and reach their own agreement. The mediator does not decide. It is voluntary, private (confidential) and cheap. India passed a Mediation Act in 2023; court-annexed mediation centres also work in many cities. Good for family, neighbour, workplace and business disputes.
Conciliation
A conciliator also helps the parties talk, but is more active: he or she may propose terms of settlement. The parties are free to accept or reject them. Under India's Arbitration and Conciliation Act, 1996, a signed settlement agreement has the same force as an arbitral award. Conciliation is also used in labour disputes.
Arbitration
In arbitration, the parties agree (often by a clause in their contract) to let one or more arbitrators decide. It works like a private court:
- An arbitration agreement exists.
- The parties appoint the arbitrator(s), often 1 or 3.
- Each side submits claims and evidence.
- The arbitrator gives an award, which is binding and can be enforced like a court decree.
Courts can set an award aside only on narrow grounds, such as fraud, lack of a fair hearing or conflict with public policy. India's law (Arbitration and Conciliation Act, 1996) is based on the UNCITRAL Model Law, and foreign awards are enforced under the New York Convention (1958). Benefits: speed, expert deciders, privacy, choice of place and language.
Lok Adalat: the people's court
Lok Adalats get legal force from the Legal Services Authorities Act, 1987. A bench, usually a judicial officer with a lawyer or social worker, helps parties reach a compromise.
- Cases pending in court or not yet filed can be taken up, if the matter can be settled by compromise (for example motor accident claims, bank loans, family and electricity bills). Serious crimes that cannot be compounded are not taken.
- No court fee; fee already paid is refunded when a pending case is settled.
- The award counts as a decree of a civil court, is final, and no appeal lies against it.
- National Lok Adalats are held on fixed days across India. Permanent Lok Adalats deal with public utility services (transport, post, power, water) and can decide the case if no settlement is reached.
Ombudsman, Lokpal and Lokayukta
An ombudsman is an independent official who looks into citizens' complaints against public bodies for corruption, delay or unfair treatment. The idea began in Sweden in 1809 and spread worldwide; many countries also have ombudsmen for banking, insurance or tax.
In India, the Lokpal and Lokayuktas Act, 2013 created:
- Lokpal at the Union level: a chairperson and up to 8 members, half of them judicial members. It can inquire into corruption complaints against public servants, including Union ministers, Members of Parliament and central officials, and even the Prime Minister with special safeguards. The first Lokpal was appointed in 2019.
- Lokayukta in each State, set up by State law, for State ministers and officials. Maharashtra created one of the first, in 1971.
Difference from ADR: ADR settles disputes between parties; an ombudsman checks the conduct of government.
Key formulas and definitions
- Adversarial: lawyers lead, judge = umpire | Inquisitorial: judge leads the inquiry
- Negotiation: parties alone → Mediation: helper, no proposal → Conciliation: helper + proposal → Arbitration: arbitrator decides
- Arbitral award = binding, enforced like a decree; set aside only on narrow grounds
- Lok Adalat award = civil court decree, final, no appeal, no court fee
- Ombudsman (Sweden 1809) → Lokpal (Union) + Lokayukta (State), Act of 2013
Worked examples
1. Two companies signed a contract with a clause saying disputes will be decided by a retired judge. They disagree about late delivery. Which ADR method applies, and is the result binding?
Arbitration. The retired judge is the arbitrator, and the award is binding and enforceable like a court decree.
2. Neighbours argue about a tree. A trained person helps them talk but gives no suggestion; they agree to trim it. Which method is this?
Mediation: the mediator only helped them communicate; the parties made the decision.
3. In the same dispute, if the helper had suggested 'trim it and share the cost equally', what would the method be called?
Conciliation, because the neutral person proposed terms of settlement.
4. A villager's electricity bill is wrong and the case is pending in court. Why might a Lok Adalat suit him?
It is free (court fee refunded), quick and based on compromise, and the award is final, so the matter ends without long appeals.
5. A citizen believes a central government officer took a bribe. Where can she complain under the 2013 Act?
To the Lokpal, which inquires into corruption by central public servants (a Lokayukta handles State officials).
Common mistakes
- Saying a mediator decides the case. A mediator only helps; the arbitrator is the one who decides.
- Thinking you can appeal against a Lok Adalat award. You cannot; it is final.
- Calling the Lokpal an ADR body for private disputes. It checks corruption by public servants.
- Mixing up the systems: in the adversarial system the judge is the umpire, not the investigator.