Critical Analysis of ADR in different countries & their Methods
Written by: K. RAJEEV REDDY
The history of the ADR forum at the international level can be traced back to the period of the Renaissance when Catholic Popes acted as Arbitrators in solving conflicts arising between European Countries. The basic idea is to facilitate dispute settlement rather than executing, enforcing, and overarching international legal order.
One major reason for this character of the international adjudication is the lack of authority granted to International Courts as reflected in the most meager and rare submission of states to jurisdiction according to Article 36 clause 2 of ICJ statute. The other major reason is that international law’s incoherent structure is more apt and readier to settle a dispute than to enforce coherent doctrine rarely endorsed by the states as the ultimate standard of their international behavior.
ADR has given fruitful results not only in the international political arena but also in the international business world in settling commercial disputes among many cooperative houses. ADR is now a growing and accepted tool of reform for dispute management in American and European countries along with the U.K., Canada, Hong Kong, Australia, New Zealand.
When the entire world was moving in favor of the speedy resolution of commercial disputes, the United Nations Commission on International Trade Law way back in 1985 adopted the UNCITRAL Model Law of International Commercial Arbitration and since then a number of countries have given recognition to that model in their respective legislative system. An important feature of the said model is that it has harmonized the concept of Arbitration and Conciliation in order to designate it for universal application.
ADR Mechanism in Different Countries:
A brief look at the international scenario of the ADR mechanism reveals the popularity of its usage in various countries. The seed of ADR in the U.S.A can be traced back to the early Dutch and British colonial periods in New York City. Shortly, after independence, the ADR found its place in a number of applications, for example, in The Patent Act of 1790, congress also provides for an Arbitration system of competing Patent claims.
In the late 19th century congress organized the Mediation process for the collective bargaining disputes and special Mediation agencies like BMC for railway labor and FMCS was formed to carry out negotiations regarding employment. In the early 20th century, ADR served as a litigation alternative. Later on, several Arbitration laws were enacted including a federal cognate, the federal Arbitration act.
With the formation of the American Arbitration Association in 1926, to guide arbitrators and for developing rules on the proper method of Arbitration throughout the 20th century, ADR grew in popularity at the state and federal government level. Towards the 21st century, American Bar Association showed that the majority of law schools had some form of ADR-related programs including extra-curricular competitions. Today Arbitration exists at all levels of US legal professions to offer ADR mechanisms to individuals and businesses. Thus, ADR as a legal system has become firmly entrenched in the United States.
In Japan, Mediation was used as a primary means of conflict resolution. Judges intervene extensively during the In-Court settlement; every Japanese Judge is expected, both by law and litigants, to move a case towards settlement, this has a force of statutory law. At least 40% of the cases are settled. The Judge, who decides to switch from litigation to a settlement mode, takes off his robe and acts as a mediator.
In China, the ADR theory is quite different from that under the western legal system. Although a similar independent ADR institution now exists in China. The general idea of ADR under the PRC legal system is actually amalgamated into the judicial or Arbitration process in hearing. The People’s Meditation System is the ADR formality for Chinese parties and its oriental experience’ has won high praise in an international judicial circle. ADR in china is more often conducted by the same Court or tribunal during or after the hearing rather than by an independent organ before the hearing. The less confrontational nature of such Mediation methods can also help preserve the commercial relationship between the disputing parties.
In France, legal recognition of Mediation in Francophone Europe started in the early 1990s. A huge increase in the number of divorces in the 1980s and the concern of public authorities of the cost of these procedures was one important factor for the rapid introduction of Mediation into civil law procedures. Mediation was formally recognized by Loi. Under Mediation a Judge hearing a matter can appoint a third person for up to 3 months with the consent of the parties and can be extended to another 3 months if the Mediator requests.
Arbitration in civil and commercial affairs is mainly organized in sections 1442- 1491 of the new Code of Civil Procedure. Arbitrators are free to fix procedures and have the right to exercise their instructions and are assimilated to regular magistrates.
In Russia, there is a growing interest in the out of Court method of dispute resolution. Thus, two of the most important factors reflecting the current position of ADR in Russia are realization by the society of the need to create a parallel system of non-formal jurisdiction; and legislative tendencies toward the development of alternative forms and improvement of proceedings. The long-felt need of Russian society to create an alternative sphere is reflected in the current flurry of such practices, and in the emergence of the so-called public movement for alternative dispute resolution.
Russia does not have varied methods of ADR. Arbitration is the most widely used form of ADR and is actively used in commercial dispute resolution. Aside from this, a certain type of reconciliatory proceedings has been created as a sort of claim order of dispute settlement, friendly negotiations, and Mediation directly initiated by parties to a legal conflict.
The Hong Kong International Arbitration Centre, most probably the largest Arbitration service center in Asia, has held the view as Arbitration as compared to litigation has become very popular for resolving disputes. Similarly, conciliate and Mediation finds an increasing measure of support in the future.
Modes of ADR
Alternative Dispute Resolution circumscribes a diversity of proficiency. One can say that the art and heart of ADR is a range of mechanisms. Thus, ADR involves not only the application of new or different methods to resolve disputes, but also the selection or design of a process that is best suited to the particular dispute and the parties in dispute.
Arbitration– Arbitration is a method of dispute resolution where a neutral person called an arbitrator’ hears arguments and evidence from each side and then decides the outcome of the dispute which is binding.
Mediation– Mediation involves a third party who is unconnected to the dispute taking part and therefore neutral. It appears to help the parties in reaching an agreement. This person is called a mediator, is not entitled to give his personal opinions about the dispute in question but simply to mediate between the disputant.
Negotiation– The word negotiation comes from the Latin word negotium. This process consists of an informal approach between the parties themselves or their lawyers. This is the quickest and cheapest form of solving the dispute. There is not a third entity controlling the affected persons’ decisions.
Conciliation– It means to assemble or win over. It is managed by the conciliator, who has a similar duty to the mediator but the conciliator is entitled to suggest solutions to the case and to approach the parties’ possessions.
Law derives its authority from the obedience of the people. However, the corpulent blockage and sluggish delay of our judicial system defeat the very purpose of a fair and just system of law. The procedural rigidity and extravagant expenses involved in the judicial system make inroads into our legal structure, as the faith of the people in our Judicial system slowly wanes away. Not even the invading armies can stop an idea whose time has come, the time for Alternative Dispute Resolution, as a means to assist regular Court litigation has arrived. The concept of resolution of disputes through modes other than, those involving time-consuming technical procedures, though initially starts on an experimental basis, has in fact gained immense popularity.
In the ultimate analysis, it may be concluded that the widening gap between the common people and the judicially is indeed a serious cause of concern of all those who deal with the administration of Justice. The concept of ADR and its various types of modes should be deeply ingrained in the minds of litigants, Lawyers, and Judges so as to ensure that ADR methods in the desperation of Justice are frequently adopted. The effective utilization of the ADR mechanism would go a long way in plugging the loophole which is obstructing the path of Justice.