Assistant Professor

Law

Mayurbhanj Law College

 Takatpur, Baripada, Odisha 

Abstract

The mechanism which acts as a tool to resolve the allegations between two parties outside the ordinary law courts is known as Alternative Dispute Resolution. The current Judicial System is extremely expensive and delaying. The parties to a dispute have to wait for Justice for years. Though ADR system involves huge and expensive process of litigation, as a result of which the faith of common people seems to be reduced.  Alternative remedies provide cheap and quick administration of justice and that is the reason that ADR mechanism is being preferred by the disputing parties for the resolution of their disputes. The supportive nature of of judges, lawyers and parties all over the world is changing in support of gaining of ADR instead of Court litigation. Various allegations such as like consumer complaints, family disputes, construction disputes, business disputes can be positively resolved through ADR. In every kind of dispute, it can be used which can be filed in a court as a civil dispute.

“ADRs are not  rigid that is, in principle the parties are free to have recourse to ADRs, to decide which organisation or person will be in charge of the proceedings, to determine the procedure that will be followed, to decide whether to take part in the proceedings in person or to be represented and, finally, to decide on the outcome of the proceedings.[1]  Differences include: levels of formality, the presence of lawyers and other parties, the role of the third party (for instance the mediator), and the legal status of any agreement reached.[2]      

All ADR processes share several features which are illustrated below:-  

i. less formal than litigation,

ii. provide a quick, relatively inexpensive alternative to litigation,

iii. they usually motivate negotiated settlement rather than adjudicated decisions,

iv. highly secrecy is maintained in relation to litigation,

v. they are not rigid enough to be adapted on a case-by-case basis, because they are not governed by legal rules, and

vi. they are provided by private practitioners for a fee, rather than by judges and lawyers. [3]

Brief History of Alternative Dispute Resolution

The origin and historical aspect of ADR started in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. In the era of late nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in response to the disruptive conflicts between labor and management. In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. In the coming decades, special mediation agencies, such as the Board of Mediation and Conciliation for railway labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation and Conciliation Service (1947) were formed and funded to carry out the mediation of collective bargaining disputes. Additional state labour mediation services followed.

Need for ADR 

The mechanism for delivering justice in India has come under great stress mainly because of the huge pendency of cases in courts. The number of cases filed in India in the courts has shown a huge increase in recent years resulting in pendency and delays underlining the need for ADR methods.

Types of ADR Mechanisms: ADR is generally classified into the following types:-

Arbitration:

The dispute is submitted to an arbitral tribunal which makes a decision (an "award") on the dispute that is mostly binding on the parties. It is less formal than a trial, and the rules of evidence are often relaxed. Generally, there is no right to appeal an arbitrator's decision. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The major dispute resolution processes consist of two main classes: those that reserve authority for resolution to the parties themselves and those in which a third party decides the matter.[4]

Conciliation: 

The non-binding technique in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute.  Conciliation is a less formal form of arbitration. They are totally free to accept or reject the recommendations of the conciliator.

Mediation:

The impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute very well known as the mediation method. The dispute has not been decided by the mediator but helps the parties communicate so they can try to settle the dispute themselves.

Negotiation:

The procedure which involves non-binding technique to settle the various discussions between the parties are initiated without the interference of any other party with the aim and goal of arriving at a negotiated settlement to the dispute. It is the most common method of alternative dispute resolution. This method particularly involves in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life.

Lok Adalats

‘Another form of ADR is Lok Adalat’ which has been created created as per the requirements of people in particular areas. Camps of Lok Adalat were initially started at Gujarat in 1982 and now they have been extended to all over India. The main motto of establishment of Lok Adalats is to reduce the extra burden of pendency of cases in the Courts which were of petty nature.

Importance of Alternative Dispute Resolution (ADR) in India

The vital lies in importance in Alternative Dispute Resolution in India as the various courts have a huge number of pending cases which require a lot of time for their disposal by the courts as the procedure of courts is very lengthy.  Such system is highly demanded for their speedy and quick disposal of case laws. Increase in number of pending cases in the courts, delay in trial, extremely expensive litigation system of Courts are some of the reasons for the enactment of Arbitration and Conciliation Act, 1996.  

Position of ADR System in India

i. Statutory Backing: The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and the new Arbitration and Conciliation Act was enacted in 1996.

ii. Inclusion of Plea Bargaining: Procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005.

a. Plea-bargaining is best described as a "pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution."

iii. Lok Adalats: Lok Adalat or "people's court" comprises an informal setting which facilitates negotiations in the presence of a judicial officer wherein cases are dispensed without undue emphasis on legal technicalities.

a. The order of the Lok-Adalat is final and binding on the parties, and is not appealable in a court of law.

iv. Other Legal Provisions:

a. In 2021, the Lok Sabha passed the Arbitration and Conciliation (Amendment) Bill, 2021 to check misuse by “fly-by-night operators” who take advantage of the law to get favourable awards by fraud.

Merits and Demerits of ADR System in India

In a civil suit the participation of parties is unpleasant and tiring as the expenses and other expenditures involves the court fee, lawyers fee and fee for obtaining copies of court proceedings and orders involve lot of expenses. A party to a case may be required to come many times for proceedings in the case involving expenses in travel to and from the court, spending time in court and meeting other expenses. In addition to that such system has certain benefits too. The determination of legal rights and interpretation of law is required.

It involves considerable benefits as well as significant loopholes. Because of such issue it is highly recommended for disputants to assess current situation and position of their case as to whether it fits any of the ADR method or not. In order to understand advantages of ADR methods, advantages and disadvantages are examined below separately.

Allow Access to Justice: Such system  can be more accessible to those who have limited economical sources.

Efficiency on Time and Cost: The huge as well as  numerous discussions with regard to the efficiency of ADR methods by means of time and cost.

Flexible and Creative: It highly depends on the parties itself to  choose the ADR process that is best for them. For example, in mediation the parties may decide how to resolve their dispute. This may include remedies not available in litigation (e.g. a change in the policy or practice of a business) [5]

Confidential: Unlike the court system where everything is on the public record, ADR can remain confidential. This can be particularly useful, for example, for disputes over intellectual property which may demand confidentiality17.

Win-Win Nature: For establishing long-lasting business relationship, it is quite important to resolve dispute in amicable way and produce win-win outcomes.

Benefits of alternative dispute resolution 

The chances to work through disputed issues with the help of a neutral third party. It is generally faster and less expensive than going to court.

i. lot of time has been saved by allowing resolution in weeks or months, compared to court, which can take years

ii. The court fee including fees for lawyers and experts, and work time lost

iii. Controlling the parties by giving them an opportunity to tell their side of the story and have a say in the final decision

iv. The vital allegations and problems to be discussed which seems to be more important to the people in dispute instead of just their legal rights and obligations

v. Assist the parties to come up with flexible and creative options by exploring what each of them wants to achieve.

Conclusion

Taking into consideration, of aforesaid explanations, it might be recommended for disputants evaluate current status of their case and their goals prior to determine the best method to be used while resolving the issues and allegations at stake. The different methods of ADR have its own benefits as well as drawbacks. Because of such reason it is not possible to reach a conclusion that any of the methods absolutely circumvent others. The clear intrusion and  intention in the business world to apply ADR methods while dealing with the conflicts arisen from international commercial contracts. There are might considerable amount of business people who does not prefer to break their routine on applying litigation.

Suggestions

The system of ADR hopes to develop largely in all parts of the country.

Each court should have Arbitration and Mediation Centres.

The legal recognition of ADR bodies would be of no use unless the people are aware as well as keen to choose ADR over the courts.

Actions must be taken to encourage more voluntary use of ADRs.

Need of establishment of  new private bodies for non-commercial disputes.

The extra burden and workload of the Indian judiciary would also need to be minimised with empowering ADR system.

To cope with the needs of the people and provide them the inherent right to access to justice, the task is to empower the existing ADR systems with more strength.   

References

1. Green Paper, (2002) r on Alternative dispute resolution in civil and commercial matters

2.http://eurlex.europa.eu 

3. Lewis and McCrimmon,The Role of ADR Processes in the Criminal Justice System: A view from Australia‘. Paper presented ALRAESA Conference, Uganda, September 2005. 

4. Lucille M. Ponte, Thomas D. Cavenagh, Alternative Dispute Resolution in Business, West Educational Publishing Company, 1991, p. 28 

5. Lucille M. Ponte, Thomas D. Cavenagh, Alternative Dispute Resolution in Business, West Educational Publishing Company, 1991, p. 29 

6. Victorian Law Reform Commission, Civil Justice Review Report, March 2008, p.214 

7.  Judith Stilz Ogden, Nikki McIntyre Finlay, Strategies for Choosing a Dispute Resolution method.

Endnote

1. Green Paper on alternative dispute resolution in civil and commercial matters COM/2002/0196 Final. Available at http://eurlex.europa.eu 

2. Lewis and McCrimmon ,The Role of ADR Processes in the Criminal Justice System: A view from Australia‘. Paper presented ALRAESA Conference, Uganda, September 2005 at 2. Available at: http://www.justice.gov.za. 

3. Lucille M. Ponte, Thomas D. Cavenagh, Alternative Dispute Resolution in Business, West Educational Publishing Company, 1991, p. 28 

4. Lucille M. Ponte, Thomas D. Cavenagh, Alternative Dispute Resolution in Business, West Educational Publishing Company, 1991, p. 29 

5. Victorian Law Reform Commission, Civil Justice Review Report, March 2008, p.214