Alternate Dispute Resolution Mechanisms: An overview
The modern legal system has become very complex and due to these complexities, the poor and neglected segment of society suffers a lot. In order to cope up with this disadvantage a new segment namely Alternative Dispute Resolution emerged. Under ADR parties resolve their issues without appearing before the court. Alternate Dispute Resolution or ADR refers to the varied methods by which disputes are resolved between the parties without the use of litigation. This technique has become quite prevalent these days. As there is a serious backlog of cases in Indian Courts, one prefers to resolve their dispute through the mechanisms of ADR. In a country like India, where there is such an excess of cases and a common man is losing confidence in the justice administration, it is important that this faith needs to be reinstated.
By using the mechanisms of ADR, one can significantly make a difference between the litigation procedure and ADR. Following mentioned are some of the pros of adopting the techniques of ADR:
1) Flexible: The proceedings taken in the court possess a certain level of rigidity. However, Alternative Dispute Resolution mechanisms are flexible in nature.
2) Fast-track Procedure: As the mechanisms of ADR involves less or no formalities as well as technicalities, the decisions are resolved at a faster pace. Furthermore, decisions are taken in the best interest of both parties.
3) Confidential: A level of confidentiality is maintained as the proceedings does not take place in an open court in front of various spectators.
4) Finality of awards: The award given under ADR (Arbitration) is final and binding and if one needs to file an appeal against awards so given, it can only be sought by opting for litigation.
5) Cost: When compared to litigation, ADR is considered to be cost-effective.
6) Choice of mediator or arbitrator: ADR gives parties the choice of selecting the mediator or arbitrators of their own choice.
7) No fear of court: Some people usually have a fear of court in expressing their issues freely. ADR stands out to be quite advantageous in such a case.
Thus, these mechanisms totally condemn the statement “Justice Delayed is Justice Denied”. This is so because ADR is denoted as a fast-track system where parties can seek justice at a faster pace.
Following are the mechanisms of Alternative Dispute Resolution:
Negotiation: When conflicting parties come together and try to resolve their dispute by the means of mutual negotiation and understanding, then, it refers to negotiation. It is a non-binding process. Here, the decision between the disputed parties is held without the involvement of any third party. The objective of this method is to reach a negotiated settlement of disputes between the parties.
Conciliation: A neutral third party called a conciliator is appointed who assists the conflicting parties in resolving their disputes in an amicable manner. Conciliation is referred to as a form of arbitration but it is less formal in nature as there is no requirement of a prior agreement and the decision given by the conciliator is non-binding. Also, the conciliator meets the disputing parties separately and try to understand their issues individually. The process of conciliation initiates when the party opting for it sends a formal invitation to another party. On acceptance of the invitation (in writing), the proceeding commences. However, if the party rejects the invitation, it will result in the commencement of no such proceedings. Section 89 of Civil Procedure Code, 1908, provides for Conciliation, Arbitration, Mediation or Lok Adalat as alternative dispute resolution mechanisms in the instance when it appears to the court that the dispute can be solved by usage of given techniques.
Mediation: In mediation, a neutral third party called a mediator is involved. The mediator assists two or more conflicting parties in resolving their disputes amicably and reaching a common agreement. He takes into consideration issues of both parties and advises accordingly. However, this mechanism is entirely controlled by the parties. This, the role of the mediator is only limited to express his views and not impose or direct on the parties. The procedure of mediation functions in the following manner:
1) Opening statement
2) Joint session
3) Separate session
Arbitration is a technique where parties refer or submit their dispute to one or more persons called arbitrators. The resolution of disputes occurs by appointment of the arbitrator who is an independent, impartial third party. It is so referred in the form of an agreement and the decision taken by the arbitrator is final and binding upon the disputing parties. Also, the decision by the arbitrator is referred to as an arbitral award.
Some advantages of Arbitration are as follows:
1) The hearing of arbitration is not conducted in open courts. No transcripts are taken on the public record. This enables in maintaining the confidentiality of clients agreements.
2) Multi party disputes are resolved amicably
3) This process is less formal, effective and speedier.
4) Cases are settled in a peaceful manner.
5) Final decision is long-lasting as the decision is acceptable to all.
Types of Arbitration: Following mentioned are some of the types of Arbitration:
1) Domestic Arbitration
2) Statutory Arbitration
3) Ad Hoc Arbitration
4) Fast-Track Arbitration
5) Contractual Arbitration
6) Institutional Arbitration
Popularly known as People’s Court, lok adalat consists of retired judicial officers, members of legal fraternity, social activists and others. The crucial role played in expanding the functioning of lok adalat is that of National Legal Services Authority (NALSA) along with other legal institutions. Lok Adalat takes into consideration the cases which are pending before any other court or the ones which has never been brought forth any court. Here, the decision is final and binding on the parties. Furthermore, it is non-appealable in a court of law. The procedure is also simplified and no court fee is charged. The most advantageous feature of this mechanism is, that the conflicting parties can directly interact with the judicial officers which is not possible in regular courts.
With the advent of various alternative dispute resolution mechanisms, there is a new possible way for people to settle their disputes. But one of the drawbacks observed is that there is not as much awareness required regarding the availability of the techniques of ADR which one certainly needs to ponder upon. Overall the mechanisms of ADR are inexpensive, less time consuming and effective. Lastly, the mechanisms are mere additions to litigation rather than its replacement as some matters are preferred to be resolved by the court and not through these techniques.
Author Details: Yashika kapoor (student, Fairfield Institute Of Management And
Technology, GGSIPU, New Delhi)