2nd Year, National Law Institute University Bhopal
As the global population increases, so do the number of cases before the courts of law.
Punishment of crimes cannot be dealt with unless there are certain major improvements to the common law system. Resolving disputes in the courts, while necessary, does not offer the most appropriate remedy in every situation.
Alternative Dispute Resolution mechanisms have emerged as a viable solution for many who want to avoid the hassles involved in litigation. Arbitration, Conciliation, Judicial Settlement, including the cases settled by Lok Adalat and Mediation, are the agreed forms of Alternative Dispute Resolution (ADR).
What is Alternate Dispute Resolution (ADR):
Any means of settling conflicts without litigation (outside the courtroom) shall be used and this is identified as the Alternative Dispute Resolution System. A dispute occurs when the parties are unable to decide on any subject or topic. The parties can settle the dispute either through litigation or through the Alternative Dispute Resolution (ADR).ADR is a broad term that encompasses all civil dispute resolution procedures other than litigation.
To settle a dispute, the first step to be taken is the identification of the potential areas of dispute and formulation of a productive method for its prevention. ADR is preferred because it allows the parties to deal with cardinal problems efficiently in terms of cost and time. It gives the parties the power to minimize the opposition, restore the coalition, obtain approval of the result, regain control, settle conflicts amicably, and to achieve justice in each case. The conflict is settled confidentially, making it more practical, economic, and effective. The primary goal of the ADR program is to minimize the supervisory position of the courts in the arbitration proceedings. It’s not possible to exclude the court entirely from the proceedings of the ADR.
The judicial process is structured to provide an efficient and unbiased grievance resolution mechanism. Moreover, interference by the courts is appropriate in cases of prejudice by arbitrators, incompetence by the arbitrators, etc. ADR is not meant to fully replace the conventional forms of dispute settlement by forms of litigation.
Common Types of Alternate Dispute Resolution:
The most popular forms of ADR in civil disputes are Conciliation, Mediation, and Arbitration.
- Mediation: Mediation is a very structured process, but the parties also have control of the result. A neutral mediator allows the parties to try to find a mutually satisfactory solution to the conflict. The parties shall track the content of the negotiations and any agreement reached.
The mediator listens and helps them to identify problems in the conflict, to provide mediation solutions, and to support them in the negotiation process.
Mediation can take several forms, depending on the needs of the parties, such as:
- Face to face – the parties interact directly during the process,
- Shuttle – the mediator divides the parties and shuttles between the parties with mediation plans,
- Facilitative – the mediator allows the parties to interact directly or implicitly with each other.
- Evaluative – The mediator shall, at separate meetings, determine the validity of the arguments of the parties and may recommend terms of a settlement.
- Conciliation: The conciliation process is an effective out-of-court dispute resolution method. Like mediation, conciliation is a cooperative, flexible, confidential, and interest-based process. The parties pursue an amicable settlement of the conflict with the help of the conciliator serving as a neutral party.The key difference between conciliation and mediation is that at some stage during conciliation, the parties would be asked to send a non-binding settlement plan to the conciliator. On the other hand, in most situations and as a matter of policy, the mediator should refrain from making such a suggestion.The conciliation procedure guarantees the sovereignty of the parties.The parties may choose the timing, language, place, layout, and content of the conciliation procedure.The conciliation process guarantees the competence of the decision-maker.The parties are free to select their conciliator. There is no requirement for a conciliator to have a specific professional background. Parties can base their selection on criteria such as experience, technical and/or personal knowledge, availability, language, and cultural skills. The conciliator must be neutral and autonomous. Thanks to the informal and versatile aspect of the conciliation process, they can be performed in a timely, confidential, and cost-effective manner.
- Arbitration: Arbitration is the most formal of the ADR processes and takes the decision-making away from the parties. The arbitrator considers the claims and facts from each side and then agrees on the outcome of the conflict. Arbitration is less formal than a jury, and the rules of proof are usually relaxed. At the trial, each party can present evidence and arguments. There is, however, no organized dialogue between the parties. Like other types of ADR, the award is also accompanied by a reasoned opinion (though the parties may agree that no opinion will be issued). Arbitration can be “binding” or “non-binding.” Binding arbitration means that the parties have reserved their right to a court, have agreed to recognize the arbitrator’s decision is final and, as a general rule, there is no right to appeal the decision. If there is a formal arbitration clause in the contract, the matter must be submitted to arbitration and there is no trial. Non-binding arbitration means that the parties can request a hearing if they do not accept the decision of the arbitrator. Some courts may levy costs and penalties if the judgment of the court is not more favorable than that of the arbitral tribunal. Non-binding arbitration is becoming exceedingly uncommon.
Advantages of ADR:
The main advantages of ADR are elaborated as under:
- It provides speedy relief: The estimated backlog of 25 million cases and delays reported in some metropolitan areas for more than 20 years is demoralizing and it undermines the successful enforcement of meaningful civil and commercial rights. Backlog and delay have broad political and economic consequences for Indian society. If India fails to tackle these obstacles, it will not be able to fulfill its legal obligation to democratic and liberal economic policies. All concur that this situation calls for the direct implementation of realistic solutions. For cases such as motor accident lawsuits, claimants may want compensation to be paid without delay to encourage treatment and other expenses. In these cases, ADR systems, such as Lok Adalats, will help victims receive timely relief.
- It is Economical: Alternate conflict settlement methods are fairly inexpensive compared to the ordinary legal procedure. Such arrangements also support litigants who are unable to meet the costs involved in the ordinary conflict settlement process in the courts. The ADR processes strengthen the participation of the group in the conflict resolution process.
- It includes an efficient mechanism: The processes used in the Alternative Dispute Resolution are versatile and informal, in contrast to the structured and standardized processes practiced in the ordinary dispute resolution process of the courts of law. Such mechanisms would also allow greater access to justice.
A more co-operative procedure is involved: ADR calls for the direct involvement of the parties to the conflict, rather than the involvement of lawyers and judges. Most ADR activities are based on an integrated approach. They are more cooperative and less aggressive than adversarial court-based approaches such as litigation. In this regard, ADR appears to generate less hostility and resentment between the parties.
BRYAN A. GARNER, Black’s Law Dictionary (9th edn.).
G.K. KWATRA, ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION (Indian Council of Arbitration 2008).
P. RAO & WILLIAM SHEFFIELD, ALTERNATIVE DISPUTE RESOLUTION 25 (2 ed. Universal Law Publishing Co. 1997).
Rubin, J. Z., Pruitt, D. G., & Kim, S. H. (1994).