An outline about Alternative Dispute Resolution (ADR)

August 18, 2020 7:05 AM

The Preamble of Indian Constitution provides for the term ”Justice”, which comprises of three areas, i.e. social political and moral but this very purpose of the justice as given under the Preamble of the Indian Constitution is not being achieved. The reason for this is, the huge backlog of cases pending in the Indian courts. In order to achieve the very purpose of the justice as enshrined in the Preamble, a system has been developed which is known as the Alternative Dispute Resolution system (ADR). This system is being considered as an alternative for the adversarial litigation system and it is also going to help the courts in reducing the burden of the courts by providing effective and speedy justice .

Historical Background

The concept of alternative dispute resolution is not new in India. Since the ancient time this concept was being followed in the form of the Panchayat system, where the panchayats used to resolve the disputes among the parties at the village level .But with the advent of the East India company and the British regulation this system has taken back foot and which lead to an era of litigation where the laws were being codified for the purpose of the resolution of the disputes. The very first act which came into the being for alternative resolution of dispute was Arbitration Act of 1940. Later on India became party to the UNCITRAL model law i.e. United Nations Commission on International Trade Law and with the advent of the New Industrial Policy in 1991, leading to the L.P.G model that is the liberalization, privatization and globalization, there was a rapid surge in the commercial disputes. But the 1940 Act was not capable enough to resolve such disputes as it covers only the domestic aspects and with the new industrial policy there was increase in the international commercial disputes too, so, India adopted a new Arbitration & Conciliation Act,1996 which was based on the UNCITRAL Model Law which completely replaced the 1940 act of Arbitration.

Alternative dispute resolution

Alternative dispute resolution is a method which is considered to be an alternative to the traditional court system. This method is considered to be a peaceful, effective and speedy method for the resolution of disputes . The disputes maybe of civil nature, commercial nature, industrial matters or the family disputes. The process which is being followed in ADR is that a neutral third party is being involved for the purpose of resolution of the dispute and that third party is being appointed by the parties themselves. Alternative Dispute resolution in India is in consonance with the Indian constitution as it is based upon Article 14 and 21 (i.e : Equality before law and right to life and personal liberty), which guarantees Equal Protection of law and Right to Speedy Justice. It is an attempt to achieve the goal of complete justice. It also incorporates the directive principle concept as given under Article 39A of the constitution of India which states that the state shall make a principle of state policy relating to equal justices and free legal aid.

In order to arrive at an amicable settlement there are various mode of the Alternative Dispute Resolution, which are as follows :

Arbitration
Mediation
Conciliation
Negotiation
Lok Adalat.

Arbitration

Arbitration means a process to resolve the dispute without going for the litigation method. It is a system in which a neutral third party resolves the dispute between the parties. It is an out-of the court settlement. The person who tries to resolve the dispute between the parties is known as an arbitrator. This arbitrator is being appointed either by the parties themselves or if the parties are not capable or does not give the consent, then the court appoints the arbitrator. The judgement or the decisions being laid down in the process of arbitration is known as an award and is considered as binding upon the parties. It is a formal mode of resolution of dispute.

Mediation

This is a method of resolution of the dispute and is considered to be an informal method of resolution of disputes. This process is also the same as of arbitration and here also the parties used to appoint a neutral third person who tries to resolve the dispute among the parties. The method being used over here is an interactive method where the communication process is used to resolve the differences. This method is now the fastest growing method of ADR. The difference between arbitration and mediation is that in mediation the decision is not considered as binding upon the parties, whereas in arbitration award is binding and here a Mediator acts more like a facilitator.

Conciliation

It is also an informal mode method of the resolution of the dispute. It is non-adversarial and non-adjudicatory method. For the purpose of the resolution of the dispute through the conciliation an invitation is being sent by one party to the another party and if the party accept the invitation for the conciliation then only the conciliation procedure takes place, in this method the conciliator meet separately with the parties and then tries to come at a solution.

Negotiation

As Nelson Mandela once said that “Negotiation and discussion are the greatest weapons we have for promoting peace and development.”. Similarly negotiation as a mode of ADR is a method to resolve the disputes without the involvement of the third party, through mutual understanding.

Lok-Adalat

Lok Adalat which is also known as the People’s Court comes under the Legal Service Authorities Act 1987. It is being presided over by the judicial officers of the persons from the legal fraternity or the social activist as their chairperson. The decision of the Lok Adalat is considered to be final and binding and there is no appeal against the order of the Lok Adalat

Other Modes of ADR

There are various other hybrid modes of the ADR exists like

Med-Arb
Mini trial
Medola
Neutral Listener Agreement
Rent a Judge
Online Dispute Resolution ODR

Med-Arb

This includes a process in which the parties first opt for the mediation and if there are certain issues which are not settled through mediation then the parties go for the arbitration process.

Mini-Trial

Mini trial is a process where the panel of the executive listen the part of the dispute and collect the evidences and are being assisted by a third party who is neutral. It is being developed by the business communities and is a non-binding procedure.

Medola

A procedure in which if the parties fail to reach an agreement through mediation, a neutral person, who may be the original mediator or an arbitrator, will select between the final negotiated offers of parties such selection being binding on the parties.[1]

Neutral listener Agreement

Parties to a dispute discuss their respective best settlement offer in confidence with a neutral third party who, after his own evaluation, suggests settlements to assist the parties to attempt a negotiated settlement.[2]

Rent a judge

Disputing parties mutually approach a referee, usually a retired judge, before whom they present their case in an informal proceedings. The referee judge gives his decision which is enforceable in a court of law. The fee of the referee is paid by the parties[3].

Online Dispute Resolution (ODR)

ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration. [4]While courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.[5]

Conclusion

ADR is an effective mode of the resolution of the disputes among the parties which is also termed as out-of-the-court settlement. It can be used by the parties at any time while during the pendency of case in the court. It is a cost effective method for providing speedy justice and to reduce the burden of the courts.

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