About the Author
This article is written by Adv. Clinton Pinheiro, Lawyer and Victims Rights Cell Volunteer at Kerala High Court Legal Services Committee (KHCLSC).
❝ Arbitration and mediation have a long history in India. Recently, they have acquired prominence across the world as methods of dispute resolution. I have been vocal about my support for such ADR methods. Such methods are beneficial to the parties to a dispute due to various reasons low cost, speed, more control over timelines and process, autonomy of parties, more comfortable environment, and non-adversarial nature. ❞
Former Chief Justice of India N V Ramana
Alternative Dispute Resolution also known as ADR has emerged as a dynamic and effective mechanism for resolving conflicts outside the traditional courtroom setting. ADR encompasses a variety of processes designed to provide parties with alternatives to lengthy and formal litigation, promoting quicker, more cost-effective, and collaborative resolutions. Then also the Parties engaged in ADR often experience quicker resolutions, significant cost savings, and the ability to maintain confidentiality. ADR methods also provide a more flexible and collaborative environment, allowing parties to preserve relationships and craft creative solutions that may not be available through traditional litigation.
Alternative Dispute Resolution
In simple words we can say that Alternative Dispute Resolution refers to a set of processes and methods used to resolve disputes or conflicts outside the traditional way of our judicial system. Alternative dispute resolution offers a way for parties to resolve their conflicts without going through the legal system.
Types of Alternative Dispute Resolution Mechanisms
The alternative dispute resolution is basically divided into five categories:
- Arbitration
- Conciliation
- Mediation
- Negotiations
- Lok Adalats
Arbitration
Arbitration involves submitting a dispute to a neutral third party, the arbitrator or a panel of arbitrators, who make a binding decision based on the evidence presented by the parties. Unlike mediation, arbitration results in a final and enforceable decision. It is often used in commercial disputes, labour disputes, and international transactions.
Conciliation
The conciliation is Similar to mediation, but conciliation involves a neutral third party, called as the conciliator, assisting the parties in reaching a settlement. The conciliator may play a more active role in proposing solutions and suggesting terms for the agreement. Conciliation is also a non-binding. The intention is to facilitate the settlement between the parties. The parties, however, are not obliged or are not bound by the conciliation.
Mediation
Mediation is a form of alternative dispute resolution where a neutral third party, known as a mediator, helps facilitate communication and negotiation between parties in conflict. It is a voluntary and confidential process that aims to assist parties in reaching a mutually acceptable 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.
Negotiation
Negotiation is a simplest form of ADR. It’s a process of communication and discussion between parties in order to reach a mutually acceptable agreement. It involves the exchange of offers, counteroffers, and concessions, with the goal of finding a middle ground that satisfies the interests of all parties involved. Also, negotiation does not involve a neutral third party.
Lok Adalats
Lok Adalats are a unique form of alternative dispute resolution in India. They are a part of the judicial system and aim to provide speedy and cost-effective resolution of disputes. Lok Adalats are based on the principles of conciliation and compromise, where a panel of conciliators, including retired judges, social activists, and legal professionals, help parties resolve their disputes amicably. These panels have the authority to settle both civil and criminal cases, including compoundable offenses.
Alternative Dispute Resolution in India
The Alternative Dispute Resolution in India refers to mechanisms and processes outside of traditional litigation that are used to resolve disputes. ADR methods are seen as efficient and cost-effective ways to settle conflicts. Also, one of the world’s oldest legal systems, Indian courts are overflowing with unresolved cases, making the Indian judiciary increasingly ineffectual at handling pending litigation. As the number of unresolved cases continues to rise despite the construction of over a thousand fast track Courts, the issue is far from being solved.
Articles 14 and 21 of the Indian Constitution, which deal with equality before the law and the right to life and personal liberty, are also the foundation of ADR in India. According to its preamble, ADR’s purpose is to achieve social, economic, and political justice while protecting the integrity of society. An additional goal of ADR is to ensure that everyone has access to equal justice and free legal representation, as stated in Article 39-A of the Directive Principles of State Policy (DPSP).1
Reasons for the Introduction of ADR in India
Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before the Law and the Right to life and personal liberty respectively. These Articles are enshrined under Part III of the Constitution of India which lists the Fundamental Rights of the citizens of India. ADR also tries to achieve the Directive Principle of State Policy relating to Equal Justice and Free Legal Aid as laid down under Article 39-A of the Constitution. The Acts which deal with Alternative Dispute Resolution are the Arbitration and Conciliation Act, of 1996 and the Legal Services Authorities Act, of 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place following the Acts stated above.
Then Alternative Dispute Resolution in India is an attempt made by the legislators and judiciary alike to achieve the “Constitutional goal” of achieving Complete Justice in India. ADR first started as a quest to find solutions to the perplexing problem of the ever-increasing burden on the courts. At thought-process that started off to rectify the docket explosion, later developed into a separate field solely catering to various kinds of mechanisms that would resolve disputes without approaching the Formal Legal System. The reasoning given to these ADR mechanisms is that the society, state, and the party to the dispute are equally under an obligation to resolve the dispute as soon as possible before it disturbs the peace in the family, business community, society, or ultimately humanity as a whole.
Pros of Alternative Dispute Resolution
- It is less expensive.
- It is less time consuming.
- It is free from the technicalities that are present in the court system.
- The parties are free to differ in their opinion and can discuss their opinions with each other, without any fear of disclosure of this fact before the courts.2
Cons of Alternative Dispute Resolution
- ADR is not helpful where a dispute is to be decided on the basis of a precedent.
- When there is a need for court and interim orders, ADR would not be useful.
- ADR is less suitable when there is a need for enforcement.
- When there is a need for live and expert evidence and analysis in a case, then ADR would not be useful.3
Conclusion
In conclusion, Alternative Dispute Resolution also known as ADR is a great way to get justice. The reasons for the success of ADR are its low cost, speed, expertise, accessibility, ability to amicably mediate conflicts, lack of formality, lack of reciprocity and low costs. All disputes may be resolved by following the effective procedures described in Alternative Dispute Resolution. The reason is that ADR methods have so far not provided viable answers. Now our Indian judicial system is also supporting ADR. The reason is that in the ADR procedure, instead of going to court, each party can ask an impartial third party to mediate their dispute. Both sides are advised to consult with an expert, usually a lawyer. It is also necessary that the parties be legally bound by this decision. Because ADR focuses on resolving disputes through communication and compromise rather than litigation, it often results in positive interactions with clients. ADR allows the parties to avoid going to court to resolve their differences. Each judge’s decision only inflames the tension between the two sides. This is because out-of-court dispute resolution methods, and especially mediation, tend to be somewhat powerful. This is because ADR is more proactive and offers proposals to resolve the conflict. Therefore, there is no doubt that ADR is an easy way to resolve disputes for justice.
| LJRF CENTER FOR ADR The Law and Justice Research Foundation’s Centre for Alternative Dispute Resolution (ADR) is dedicated to advancing expertise in all aspects of ADR. Committed to fostering knowledge, the center serves as a hub for research, education, and promotion of alternative dispute resolution methods. Through collaborative initiatives, the center aims to contribute to the evolution and enhancement of ADR practices, making significant strides in the field of law and justice. WhatsApp link to join for LJRF Centre for ADR: https://chat.whatsapp.com/Iw09cLSt8XCHZ9S7ks41GP Convenors Adv. Abhirami G Nair Mob: 7356655325 Adv. Aravind Prakash Mob : 8593815222 |
- All You Need To Know About Alternative Dispute Resolution (ADR) – Ipleaders’ (iPleaders, 2023)
<https://blog.ipleaders.in/adr-alternative-dispute-resolution/> accessed 18 Jan 2023. ↩︎ - Ayush Verma, An Introduction to Alternative Dispute Resolution – iPleaders, IPleaders (Mar. 2, 2020), https://blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution/. ↩︎
- Ayush Verma, An Introduction to Alternative Dispute Resolution – iPleaders, IPleaders (Mar. 2, 2020), https://blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution/. ↩︎
