It encourages parties to settle disputes at an early stage, avoiding lengthy and costly legal proceedings. Courts strongly promote ADR, and parties may face sanctions for refusing to use it without good reason. ADR offers a flexible and efficient way to resolve disputes, allowing parties to reach a mutually acceptable agreement. By exploring ADR options, parties can save time, money, and stress, and achieve a more satisfactory outcome than through litigation. ADR is a valuable alternative to court proceedings.
KEY WORDS
Alternative Dispute Resolution, Mediation, Conciliation, Lok Adalat, Arbitration.
INTRODUCTION
Alternative Dispute Resolution (ADR) uses a neutral third party to help parties in a dispute reach a mutually acceptable agreement, avoiding traditional litigation. Mediation facilitates discussion and negotiation, while arbitration makes a binding decision. A hybrid approach combines both, offering a flexible and efficient way to resolve conflicts without going to court, increasing the likelihood of a successful resolution.
WHAT IS ADR?
Alternative Dispute Resolution (ADR) is a spectrum of less costly and more expeditious alternatives to litigation, where a neutral party assists the disputing parties in reaching resolution. ADR allows for more creative and collaborative solutions than that of traditional litigation.
HISTORY OF ADR
- 1066: Informal courts in England, led by respected community members, resolve private disputes, marking one of the first forms of arbitration.
- American Colonies (1600s-1700s): Mediation is preferred over traditional courts for dispute resolution.
- Post-US Independence ( late 1700s-1800s): Arbitration is mainly used for patent claims.
- 19th century: Federal Mediation and Conciliation Service (FMCS) is established.
- 1920s: Federal Arbitration Act is enacted by Congress.
- 20th century: ADR gains popularity and becomes a significant part of the American legal system.
TYPES OF ADR
Various Alternative Dispute Resolution mechanisms can be classified as:
- Arbitration
- Conciliation
- Mediation
- Judicial Settlements inclusive of Lok Adalats
- Negotiations
Arbitration
In arbitration, both parties choose a neutral third-party decision maker to hear and resolve their dispute. The goal is to achieve a fair, swift, and cost-effective resolution, avoiding lengthy court proceedings. The arbitrator’s decision is typically binding, providing a final resolution.In India, if the matter is referred to Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will apply.
The main types of ADR are as under
- Voluntary Arbitration;
- Compulsory Arbitration.
Other Types of Arbitration
- Ad-hoc Arbitration;
- Institutional Arbitration;
- Statutory Arbitration;
- Domestic or International Arbitration.
Conciliation
Conciliation is a process where an impartial individual, known as a conciliator, facilitates a settlement between disputing parties. The conciliator actively participates in discussions, negotiations, and issue-resolution to help the parties reach a mutually acceptable agreement. Unlike other forms of dispute resolution, conciliation is non-binding, meaning the parties are not obligated to accept the conciliator’s suggestions or arrive at a settlement. The process continues until the parties voluntarily agree on a resolution, allowing for flexible and collaborative negotiations.
Mediation
A mediator is involved in assisting the parties in dispute to reach an agreement. The parties in dispute themselves set the conditions of the settlement to be reached. The third-party does not impose any decisions on the parties but merely acts as a facilitator involved in improving the dialogue between the parties.
Lok Adalat
The Lok Adalat system, introduced through the Legal Services Authorities Act 1987, aims to expedite dispute resolution by providing a platform for amicable settlement of disputes in the pre-litigation stage. This approach enables parties to resolve their conflicts quickly and peacefully, avoiding lengthy and costly legal proceedings. Lok Adalats are typically presided over by retired judges, legal experts, or social workers who facilitate negotiations and help parties reach a mutually acceptable agreement.
Negotiation
Negotiation is the most common method of alternative dispute resolution, where parties initiate discussions without a third party to reach a mutually acceptable settlement. It’s a non-binding, voluntary process used in various contexts, including business, legal proceedings, personal situations, and international relations, to resolve disputes and find a mutually beneficial solution.
ADVANTAGES OF ADR
1.Paeties can resolve their problems with a short period of time.
2.ADR saves lots of money if one party undergoes with litigation.
3.In ADRinformal ways are applied in resolving dispute.so there is no technicalities
4.People are free to express themselves without any fear of court of law. They can reveal the true facts without disclosing it to any court.
5.there are always chances of restoring relationship back as parties discuss their issues together on the same platform.
DISADVANTAGES OF ADR
1.If ADR is unsuccessful, it can delay the court proceedings.
2.Except for arbitration, ADR is not usually legally binding.
3.All parties to the dispute must agree to using ADR.
4.ADR does not guarantee a resolution to the dispute.
5.An ineffective third party can potentially hinder a resolution.
IMPORTANT PROVISIONS RELATED TO ADR
Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then court formulate the terms of the possible settlement and refer the same for: Arbitration, Conciliation, Mediation or Lok Adalat.
The Acts which deals with Alternative Dispute Resolution are
- Arbitration and Conciliation Act, 1996 and,
- The Legal Services Authority Act, 1987
NEED OF ADR IN INDIA
Alternative Dispute Resolution (ADR) helps reduce India’s court case backlog with techniques like arbitration, conciliation, and Lok Adalat, promoting social, economic, and political justice. Despite success, like Lok Adalats disposing 50 lakh cases annually, awareness about ADR mechanisms needs to be increased.
ALTERNATIVE DISPUTE RESOLUTION IN INDIA
- Lok Adalat and Plea Bargaining are alternative dispute resolution mechanisms in India.
- Lok Adalat is an informal setting for negotiations, with a judicial officer facilitating a final and binding settlement.
- Plea Bargaining is a pre-trial negotiation where the accused pleads guilty in exchange for concessions.
- Both mechanisms aim to reduce court backlogs and promote efficient dispute resolution, supported by key legislation such as the Legal Services Authorities Act (1987) and Arbitration and Conciliation Act (1996).
RECENT TRENDS AND FUTURE POSSIBILITIES IN ADR
The article touches on the evolution of ADR in India, from ancient times to modern legislation like the Arbitration and Conciliation Act, 1996. It emphasizes the need for ADR to reduce the burden on the judiciary and promote access to justice. Additionally, the article mentions the impact of the COVID-19 pandemic on ADR, with the emergence of Online Dispute Resolution (ODR) as a preferred mode of dispute resolution.
RELEVANT CASE LAWS
- Supreme Court in the case of Kinnari Mallick and anr vs. Ghansyam Das Damani held that a court has no jurisdiction for petition under section 34, and the power of court is limited. Such power can be invoked before setting aside a award with the consent of one party
- Supreme court in the case of Vinod Bhaiyalal Jain v. Wadhwani Parmeshwari Cold Storage Pvt. Co ., Ltd. Held that there should be no biasness in part of arbitrators in order to deliver proper justice to the parties.
RECENT DEVELOPMENT
- Tech-Driven Justice: Unraveling The Dynamics Of Online Dispute Resolution:The Future of Justice Was Not Limited to the Court Room. In A Current Scenario the Advancement of Technology and Development. Justice Will be Easily Accessible, less time-consuming, Strong, and Focused on Achieving Fair Outcomes. Alternative dispute resolution (ADR) has already taken place in dispute resolution before going to court. Nowadays, technology has become one of the parts of the justice system. The court heard the matter through a virtual electronic platform
CONCLUSION
ADR can be suitable for claims of any size (large or small), and in July 2022 the government announced that it is looking at expanding a requirement to mediate beyond the current Small Claims Mediation Service (which is currently for small claims valued at under £10,000). This therefore makes understanding, and utilising, ADR ever more important as a tool for resolving disputes quickly.
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WRITTEN BY: KOUSTAV GHOSH
GUIDED BY: ADVOCATE ANIK
