Alternative Dispute Resolution
Written by: K. RAJEEV REDDY
Introduction
Alternative Dispute Resolution (ADR) is a term used to describe several different modes of resolving legal disputes. It is experienced by the business world as well as common men that it is impracticable for many individuals to file lawsuits and get timely justice. The Courts are backlogged with dockets resulting in a delay of a year or more for the parties to have their cases heard and decided. To solve this problem of delayed justice ADR Mechanism has been developed in response to thereof.
Alternative dispute redressal methods are being increasingly acknowledged in the field of law and commercial sectors both at the National and International levels. Its diverse methods can help the parties to resolve their disputes on their own terms cheaply and expeditiously. Alternative dispute redressal techniques are in addition to the Courts in character.
The Law Ministers and Law Secretaries in the conference reviewed the working of Lok Adalats all over the country. The delegates have mainly focussed on the mechanism of the ADR system in the country and reviewed the provisions inserted under Section 89 by way of amendments made to the Code of Civil Procedure,1908. The Parliament has made ample provisions enabling the Courts to refer cases for arbitration, conciliation, mediation and judicial settlement including the settlement of the disputes through Lok Adalats.
Meaning of Alternative Dispute System
The Alternative Dispute Resolution is not a particular word or used to denote the specific word. The ADR is a general term, which has been used to describe the processes of dispute resolution amicably through various alternative techniques. The ADR describes its various forms of dispute resolution viz. arbitration, conciliation, negotiation mediation, a compromise settlement, mini-trials, expert determination and early neutral evaluation etc. The ADR is a common term used to define and express various alternative techniques and forms of dispute resolution. The ADR cannot be specifically used for arbitration and its elaborated procedure.
The arbitration process is different and easy from the Court viewpoint of litigation. The arbitration in many important aspects is more common with Court based litigation than various other forms of ADR systems. The arbitration may be a class and form of the ADR system but can’t substitute this mechanism in its entirety. The mechanism of the ADR system and arbitration cannot exchange each other. It would be potentially misleading the mechanism of the ADR System if both the terms are allowed to spell out interchangeably. It will be of worth in supporting this version that different kinds and various forms of ADR system have no statutory recognition as arbitration under the Arbitration and Conciliation Act,1996
Nature and Concept of Alternative Dispute Resolution
The ADR process is very simple, cheap, easy, speedy and results-oriented in the disposal of the cases. The ADR techniques are extra-judicial in character. These are the main reasons for the recognition of ADR techniques. The Mechanism of Alternative Dispute Resolution System does not have a single form or rigid application in one particular way. There is an array of hybrid procedures for the settlement of disputes outside the Court.
The ADR consists of various alternative techniques and forms. For example, Arbitration, Conciliation, Negotiations, Mediation, Judicial Settlement, Mini Trial, Mediation-Arbitration and Settlement Conferences and Neutral Evaluation are the forms of ADR techniques. These techniques are much acceptable both to the judiciary and the common man. The ADR techniques may be used in contentious matters, which are capable of being resolved under the law, by agreement or mutual settlement between the parties.
The dispute resolution in the ADR system does not mean temporary settlement but to end the controversy in perpetuity. It maintains cordiality and harmonious relationships between the parties. The alternative methods of dispute resolution are non-adversarial and reach speedier results because the neutral person, whether Arbitrator, Conciliator or Mediator, as the case may be, always help to formulate the result-oriented discussions during the process settlement.
Scope and Importance of Alternative Dispute Resolution
The mechanism of the ADR System and its techniques are extra-judicial remedies to resolve disputes outside the legal fora. These techniques can be used in all those cases, which are capable of being resolved, under law, by mutual agreement between the parties. The scope of ADR is wider and can cover cases of civil nature, commercial, industrial and family disputes or any other cases of urgent nature.
the ADR works across the full range of business disputes: banking; contract performance and interpretations, construction contracts, intellectual property rights, insurance coverage, conflicts in joint ventures, partnership differences, personal injury; product liability; professional liability, real estate, and securities. The mechanism of the ADR system may offer the best solution in commercial disputes of an international character.
The scope of an ADR System is not intended to replace existing means of dispute resolution. It offers only alternative options to litigation. There is a large number of important areas where there is no substitute for Court decisions. For example, the matter pertaining to Constitutional law and Criminal laws are beyond the purview of an amicable settlement. But the ADR system through conciliation or negotiations offers a viable substitute to resolve the dispute if the matters are of such a nature that is compoundable in the eyes of law.
The demand for the introduction of the ADR system has been persistently gathering momentum from every walk of life. The jurists, legal luminaries including judicial officers presiding over the Courts and administrative heads consider that the application of ADR shall reduce the mounting pressure of cases in the higher and subordinate judiciary. The conferences and meetings on judicial reforms always start with preliminary speeches and address the search for a viable substitute to the existing legal system.
Every delegate stress for promotion of the Mechanism of the ADR system using its various forms of conciliation, negotiations, mediation instead of initiating trials in the Court. The fast-emerging importance of ADR, its wider scope, and commendable objectives emphasized for creation of more Lok Adalats including the establishment of Fast Track Courts. The mechanism of the ADR system offers a spirit of compromise amongst the litigants across the table, which explains the important concept of ‘distributive justice’ and that is the main purpose and object behind the justice delivery system.
The importance of these alternative techniques and formulae exists within ADR policy and its application is not only beneficial from litigation or commercial point of view at the international level but also assuage the sentiments of Constitution makers while helping promotes international peace and security among the nations. ADR is also founded on such fundamental rights, article 14 and 21 which deals with equality before the law and the right to life and personal liberty respectively.
ADR’s motive is to provide social-economic and political justice and maintain integrity in the society enshrined in the preamble. ADR also strives to achieve equal justice and free legal aid provided under article 39-A relating to the Directive Principle of State Policy (DPSP). The Constitution of India under Article 51 provides that the State shall endeavour to promote international peace and security and maintain just and honourable relations between the nations. The Constitution of India under Article 51(c) and (d) specifically emphasized that the State shall foster respect for international law and treaty obligations in the dealings of organized people with one another and would encourage settlement of international disputes by arbitration.
Concluding Thoughts
However, the Mechanism of the Alternative Dispute Resolution System consists of various alternative techniques and different forums such as. arbitration, conciliation, mediation, negotiations and mini-trials including Lok Adalat. India is a poor country and the majority of the litigants are poor and with rural backgrounds. The Mechanism of the ADR System is a viable substitute and an effective instrument in providing speedy, cheap and timely justice to the litigants. It has various advantages. The litigant can opt for any of the various forums.
The ADR System does not mean replacing the existing judicial system. But to aid and assist the existing judicial and justice delivery system in providing timely relief. The ADR System may be able to check the docket problem in the Courts. The ADR system ends the controversy in perpetuity, which is the utmost advantage avoiding a continuation of the cases by way of appeals and revisions in the higher Courts.
The ADR system works on the basis of justice, equity and good conscience. The Mediator, Conciliator or Negotiator always works in good faith, unbiased and to the advantage of both parties. The parties are free to opt for the forum and mode of proceeding in any way mutually acceptable to both parties. The ADR System and its proceedings always maintain confidentiality.
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