“Conflict and resolution are two sides of the same coin.”
― Haresh Sippy
Alternative Disputes Resolution is a common term that means a wide arrangement of practices, the purpose of which is to quickly resolve the conflicts at a lesser time at a lower cost. It is alternative litigation. In general, there are two types of dispute resolution, RDR and ADR. Regular Dispute Resolution (RDR) which means resolving the dispute through the regular process of litigation and Alternative Dispute Resolution (ADR) is another way to solve the conflict. The term alternative dispute resolution is also called out of court dispute settlement. The methods of this concept are in addition to the Courts in character. The techniques of resolution can be used in almost all types of matters, which are being capable of being resolved by the agreement between the parties. The conflicts related to civil, commerce, family and industries are solved effectively.
ADR is a concept that is recognised globally and various laws are made for resolving international disputes. One of the most recognised and prevalent law is UNCITRAL i.e., United Nations Commission on International Trade Law that deals with ADR in general and arbitration in particular. This law was established by the UN General Assembly in 1966. It is based in Vienna, Austria. Apart from its active role in promoting and making trade related treaties at international level, UNCITRAL has been successful in the field of ADR. It focuses on initiatives that strengthen domestic and international legal authority governing international arbitration (commerical). There are various international treaties and conventions of which UNCITRAL is the central agency for arbitration and conciliation.
ADR: A WELL KNOWN CONCEPT
ADR is not a new concept. It is an informal quasi-judicial system that has been in existence since time immemorial. There was no structured system for the legal resolution of conflicts in all early societies. The justice administered was a “private affair” settled among people. The derivation of dispute settlement may be evolved from the method of village Panchayats in ancient India. The set-up of that time made a considerable contribution in resolving the conflicts based on family, property and among social groups. The majority of disputes were solved by the Panchayats comprising council of a village which had elders of the village called the Panchs, sitting together to discuss and resolve the matter in an effective manner. There is a very prevalent period called ‘Dharma-sutra’ which is called the called period of Indian Legal History. It tells us about the various institutions that were present in different levels of society to administer justice alternatively and effectively. Thus, the concept has been in practice for a very long period. Now, it is being restructured systematically according to the modern society for implementing for a better outcome in the name of Alternative Dispute Resolution.
ADR: ADOPTION IS NECESSARY
India has a vast population which hinders the concept of speedy justice and makes it difficult to provide justice early. So, the system of dispensing justice in India has come under distress due to the huge pendency of cases in courts. Today when about 3 crores of cases are pending in our courts, at least five crores people are directly involved in litigation. These people include the innocent, guilty, witness and all other people related to the cases. Thus, to overcome the much-criticized delay in the deliverance of justice, ADR should be adopted. The other reason for adopting these mechanisms of ADR is that the society, state and the party to the dispute have equal obligation to resolve the dispute as soon as possible before it disturbs the peace in the society or ultimately humanity as a whole. Also according to the studies, it is found that alternative these methods offer the best solution in respect of commercial disputes where the economic growth of the Country rests. ADR is much needed in country like India because litigation causes animosity between the parties due to the torment caused by long standing trials. Hence, ADR has to gain momentum in India today.
ADR picked up pace in the country, with the various legislation passed for it like The Acts which deals with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996, The Legal Services Authority Act, 1987 and Section 89 of the Civil Procedure Code, 1908 provides the 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.
TECHNIQUES: CONSTITUENTS OF ADR
Arbitration:
India has also adopted rules for Arbitration apart from the international treaties. Arbitration and Conciliation Act, 1996 establishes the techniques. Part I of the act formalizes the process of arbitration. Various landmark judgments have defined Arbitration. One of such Judgment is of Collins v. Collins, this case defines Arbitration as “a reference to the decision of one or more persons, either with or without an Arbitrator, of a particular matter in difference between the parties.”In this process, the parties refer the dispute to one or more persons appointed as arbitrators, who review the case. The process cannot take place without a valid arbitration agreement before the emergence of dispute. Any party can start the procedure by appointing the arbitrator. The decision of the arbitrator is bound on parties legally binding. Except for some interim measures, there is very little scope for judicial intervention in the process of arbitration. The decision of the arbitrator is called ‘Award’. The main objective of Arbitration is to get a fair settlement of dispute without much delay and expense.
Conciliation:
Part III of the Arbitration and Conciliation Act, 1996 talks about the procedure of conciliation. It is the less formal form of arbitration as it does not need any prior agreement. The conciliator is appointed by any of the parties. The can be more than one conciliator and if a party rejects an offer to conciliate, there can be no conciliation. Parties submit statements to the conciliator explaining the nature of the dispute and point the issues. Each party sends a copy of the statements to the other. The conciliator may then request the parties to meet and communicate orally or in writing. When it appears to the appointed conciliator that the scope of settlement exists, he may draw up the conditions for settlement. He then sends the terms to the parties for their acceptance. If both parties agree to the conditions and sign the settlement document, it shall be final and binding on both the parties. However, in India, conciliation is a completely informal type of ADR mechanism.
Mediation:
Mediation which is the most common technique of Alternative Dispute Resolution is also called Appropriate Dispute Resolution. It aims to assists two or more disputants to reach to an agreement. In this process, the parties themselves decide the conditions for settlement. It is an easy and uncomplicated technique where a third party is called the mediator is appointed to resolve the dispute amicably by using proper communication and negotiation techniques. Mediation covers almost all types of disputes related to commercial, diplomatic, workplace, legal and family. There are various stages in mediation like the opening statement, joint session, separate session, and the closing. A mediator cannot impose the resolution as the parties are free to decide according to their convenience and terms. Mediation is very prevalent in our country nowadays. Recently, a famous dispute called The Ayodhya case has taken the path of mediation for its resolution.
Below is a flowchart that clears the most common confusion regarding the techniques of ADR:
| TERMS | MEANING | JUDGMENT | PROCEDURE |
| ARBITRATION | An Arbitrator is appointed to resolve the dispute outside the court for cases involving major disputes, where the specific area specialization is required. | An Arbitrator is a judge of the dispute and provides resolution measures which are binding on the parties unless parties beforehand agreed that the outcome of the proceeding won’t be binding | Arbitrator conducts the proceeding strictly by legal restriction and is bound to follow the neutral approach in resolving the dispute. It is given in the Arbitration and Conciliation Act. |
| CONCILIATION | A conciliator is a person who assists the parties in an impartial manner to reach a peaceful settlement of minor disputes. | Conciliator can make a proposal for settlement when there is a scope for settlement and the parties have an issue then the conciliator has the right to reform the settlement proposal. | The conciliator is bound to follow only the process given under the Arbitration and Conciliation Act. |
| MEDIATION | A mediator is chosen to resolve disputes between people, organization, states or any other communities. | Mediator does not deliver judgment. He is a facilitator appointed for developing options. | In the case of Mediation, the mediator has the liberty to select any suitable method of resolve the dispute as there are no strict guidelines to follow. |
Lok Adalats:
Lok Adalat roughly means “People’s Court”. It is established through the Legal Services Authority Act, 1987. This system is an improvement of the system that had been used in the past where disputes were resolved by the mediation of village elders. NALSA and all other Legal Services Institutions of the country conduct Lok Adalats on regular intervals for exercising such jurisdiction. There are no court fees for it. Parties are in direct contact with judges. This adalat is presided by a retired judicial activist, social activist or members of the legal profession. The transfer of the case from the court depends on the agreement of parties. However, Lok Adalats do not have any jurisdiction over the cases of non-compoundable offenses.
Negotiation:
Negotiation is a dialogue intended to resolve disputes in a speedy manner. It aims to produce an agreement according to courses of action and to bargain for an individual. It is an important and primary method for resolving alternatively. It occurs in business, legal proceeding, marriage, divorce etc.. The process is professionally held by Negotiator, who is specialized and work according to negotiation theory.
Alternative Dispute Resolution is an alternative to litigation. Expect for crimes, these techniques are preferred because they are more convenient and effective as it does include a lot of lengthy procedures, unlike the court. The resolution of disputes is more informal and easy as compared to the litigation. While judicial processes are considered fair, a large pendency of cases becomes a problem and frequent adjournments result in unwanted delays before a case is decided. The justice gets delayed which makes it important to consider the option of Alternative Dispute Resolution..
Because it is said that- “Justice delayed is justice denied”.
By- Kanishka Sihare