All you need to know about Alternative Dispute Resolution.
Date : 12 Jun, 2020
Post By Bhupender Tanwar
There is a huge backlog of cases in India. Following the old Colonial traditional way, the Indian courts have been given too many holidays as result of which cases get Indian courts are clogged with long unsettled cases. The scenario is that even after setting up more than a thousand fast track Courts that already settled millions of cases the problem is far from being solved as pending cases are still piling up. As on November, 2019 more than 44.62 lakh cases were pending in the 25 high courts in the country, of which over 94,000 are over 20 years old. As on 1st March 2020 there is a pendency of 60,469 cases in Supreme court of India.
Undoubtedly the biggest problem that the judiciary is facing in 21st century is the late delivery of justice due to huge pile of cases. There are roughly 20 judges for a population of 10 lakhs which is a very small. Hence, in order to tackle this situation of huge pendency the judiciary started delegating its powers to quasi-judicial bodies such as human rights commissions, consumer dispute redressal commissions, other tribunals, etc. Along with the setting up of these quasi-judicial bodies, the judiciary has also developed alternative system to resolve issues. This alternative system is known as Alternative Dispute Resolution (ADR) System.
ADR helps in solving disputes between two parties by a neutral third party. It helps in resolving dispute in a speedier, peaceful and cheaper manner. The outcome of ADR is a type of a settlement which is mutually decided and accepted by both the parties. In India, various laws have been developed in order to provide a legality to the ADR mechanism. First is the Section 89 of the Civil Procedure Code, 1908. The Section lays down the rule that if the court feels that a particular case can be settled outside the court, then the court can formulate the guidelines accordingly and refer such a case for Arbitration, Conciliation, Mediation or Lok Adalat. Second law that deals with ADR is The Legal Services Authority Act, 1987 and the third law is Arbitration and Conciliation Act, 1996. Alternative Dispute Resolution System provides numerous ways of settlement including arbitration, conciliation, mediation, negotiation and lok Adalat.
Lok Adalat
The basic idea to set up lok Adalat was to implement Article 39-A of Directive Principle of State Policy which makes the provision for the state that it should work towards promoting equal justice and provide free legal aid to the poor. Lok Adalat, is a forum where cases which are pending in courts or are at a pre-litigation stage are compromised or settled in an amicable manner. The system of lok Adalat is way to provide informal, cheap and expeditious justice for the common man by way of settling disputes which are pending in courts and also those which have not yet reached courts by various methods such as negotiation, conciliation and by adopting a humane approach to the problems with the assistance of specially trained and experienced member.
Arbitration is another method of ADR, where two parties agree to resolve a dispute arisen between them by a third neutral party (arbitrator) by whose decision they are duty bound. By arbitration parties in dispute decide to approach a third neutral person rather than going to the court for deciding their dispute. The decisions of the arbitrator are legally binding and they are enforceable in the court. Indian laws provide very limited rights of reviewing and appeal for arbitration awards.
The process of arbitration to solve a dispute can be initiated by two ways. Firstly, by a decree of the court where according to Section 89 of Criminal Procedure Code if the court feels that a particular case can be solved outside court by arbitration, them it will formulate guidelines accordingly and order the parties to solve the dispute through arbitration outside the court. Secondly, arbitration process can be initiated by the parties in dispute when parties would have voluntarily agreed to solve their pending or future disputes through arbitration by agreeing the same formally through a contract. There are three types of arbitration: ad-hoc arbitration, institution arbitration and statutory arbitration. Under ad-hoc administration, the parties in dispute need to choose all aspects of administration like number of arbitrators, place, etc. Institutional arbitration is one which takes place in a professional institution which is of permanent characters and the arbitrators decide the dispute there. In a statutory arbitration, if the law prescribes that a particular dispute needs to be resolved through arbitration then the arbitration proceedings are called statutory arbitration.
The third important ADR system is mediation. Mediation is voluntary and an informal way to resolve dispute. The parties in dispute approach a third party, who assist them to solve their dispute amicably, by using specified negotiating and communication techniques. The process of mediation is controlled by the parties and the mediator only acts as a facilitator. The mediator acts neutrally and does not impose his personal views or decisions. Hence, the basic aim of mediation is to provide the parties with an opportunity to negotiate and explore options to settle the disputes mutually in a speedier and a cheaper way rather than going to the courts which is time consuming and expensive also.
The fourth way of ADR settlement is conciliation. Conciliation is a more informal way of settling dispute as compared to arbitration and mediation. In conciliation, a neutral third party meet s the parties in dispute and facilitates communication between the parties in order to settle the dispute arisen between them. Section 61 of the Arbitration and Conciliation Act, 1996 provides for the resolution of disputes resulting from legal relationships, whether contractual or non-contractual, and in all the proceedings relating to them. After its enactment, there can be no objection, for not permitting the parties to enter into a conciliation agreement regarding the settlement of even future disputes.
Negotiation
The fifth way of resolving dispute through alternative mechanism is negotiation. It can be said that it is the basis of all other mechanisms as it involves the two parties voluntarily negotiate with each other rather than involving a third party. Across India, there's no formal recognition of negotiation. Negotiation is self-consultation among the parties to settle their conflict. Negotiation is a mechanism which does not have set rules but which follows a consistent pattern.
Alternative Dispute Redressal mechanism has not only helped in solving disputes domestically but also internationally. International arbitration system is developing on a large scale in this 21st century. In today’s global market where, large-scale businesses are taking place between MNCs in different countries, arbitration is playing a great role in resolving disputes between parties and thus settling disputes on mutually decided decisions.
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International arbitration is comparable to domestic court litigation, but rather than going down before a domestic court it takes place before private adjudicators referred to as arbitrators. It is a consensual, neutral, binding, private and enforceable means of international dispute resolution, which is usually faster and less expensive than domestic court proceedings which makes it more efficient in some aspects. The use of international arbitration has evolved to permit parties from different legal, linguistic and cultural backgrounds to resolve their disputes in a final and binding manner, typically without the formalities of the procedural rules of their own legal systems. The Government of India believed it was necessary to provide a new forum for resolving International and Domestic disputes, in need for Arbitration Dispute Resolution, more efficiently. The International Centre for Arbitration Dispute Resolution or ICADR is an autonomous organization with its headquarters at New Delhi and Regional Centres at Hyderabad and Bengaluru. The Regional Centres of ICADR are fully funded and supported by the respective State Governments. DR. H.R. Bhardwaj is the Founder Patron of ICADR and at the regional level, the Chief Justice of the concerned High Court is the Patron of the Regional Centres. While, the Chief Justice of India is the Chairperson of ICADR. There are experiences of disruptions during the implementation of these procedures and hence, there is a desperate need to create more awareness regarding these methods. In order for promotion of ADR, there is a need for a structured and comprehensive plan which is to be established. The active participation of lawyers, students, judges and volunteers is needed in order to create awareness and Seminars, Workshops, Street plays can be conducted, while posters and social media pages can also be created and circulated. An effort should be made by the lawyers to resolve the issues in an amicable way and not increase the dispute in order to earn more. Arbitration should be regarded as an essential part of legal education and students must be trained well in the key procedures of such methods and encouraged to apply them practically. NGO's are important and make people aware regarding the ADR methods for resolving their disputes and they can also conduct programmes regarding the same.
Besides having so many mechanisms to resolve disputes which are cheaper and do not require parties to knock the doors of the court, they still approach the court because they feel that the settlement by court is more justiciable and formal. As a result of this there are so many cases pending in the Indian courts. With the advent of ADR, many people have benefitted by resolving their disputes in a cheaper, speedier and a more satisfactory way. The settlement of cases by Lok Adalat quickly has acquired good popularity among the public. As result of this speedier justice delivery, there is strong appeal to set up Permanent Lok Adalat. In fact, Delhi High court has given a landmark decision highlighting the significance of Lok Adalat movement in the case of Abdul Hasan and National Legal Services Authority Vs. Delhi Vidyut Board and Others (AIR 1999 Del 88) and also passed the order giving directions for setting up of permanent Lok Adalat.
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