Disputes are resolved without litigation: Concept of ADR in India

Prefix ADR, Alternative Dispute Resolution, Arbitration, conciliation, Lok Adalat, Mediation

The author of this article is Jineesha P Unnikrishnan, a Third-semester LL.M student at Govt. Law college, Kozhikode. She also worked as Coordinator of the Ljrf internship program for LLB students, 2021. The author is also a Coordinator of Ljrf Get Net Program and a Member of Ljrf chapter, Kozhikode.

“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied with bringing out a private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”: – Mohandas Karamchand Gandhi

INTRODUCTION

Article 39A of the Constitution of India provides free legal aid to the poor and weaker sections of the society and ensures justice for all. Legal aid means giving free legal services to poor people who are helpless and are afraid to go to court for cases and do not have to pay the lawyers fees .it is for the purpose that a mechanism called Alternative Dispute resolution Mechanism is being introduced in India. This ADR mechanism is otherwise known as conflict resolution. The ADR mechanism is one of a number of mechanisms designed to gently resolve disputes between two or more parties or individuals. Through this ADR mechanism, people are able to resolve their various disputes without any court proceedings and these processes are completely privately or generally confidential without loss of money, less stressful, perfectly time bound without any hostility between the parties with perfect friendship.

The concept and meaning of Alternative Dispute Resolution

The concept of ADR refers to settling disputes outside the courtroom. To put it in another way, ADR implies resolving disputes without litigation. Any kind of dispute offer ADR mechanism can be resolved, the matters including civil, commercial, family, industrial, etc., If people are unable to initiate or reach any kind of negotiation, The ADR usually uses a neutral third party to assist the parties in communicating and discussing the differences and lead to resolve the disputes. It is a way of resolving mutual animosities and problems between two or more individuals, also enabling the individuals and groups to maintain coexistence and social order, and providing an opportunity to reduce mutual animosity. As a matter of fact, ADR is used in disputes, which have the potential to lead to litigation.

What types of disputes are considered through ADR?

In the ADR mechanism, there are several types of disputes considered for resolution. It can possibly be implemented for resolving matters including:

Family matters: Disputes including domestic violence, divorce, maintenance, child custody, etc.

Neighboring matters: Disputes including property matter etc.

Personal injury: Disputes including motor vehicles accident, medical malpractice claims
Matters on working places: Disputes including workplace harassment, employment issues, etc.
Environmental matters: Disputes including pollution, waste dumping, etc.
Consumer matters: Disputes including products, warranty, maintenance work, etc.
Contract matters: Disputes including business contract violation etc.

Advantages of Alternative Dispute Resolution

A single procedure: The parties can agree to resolve the disputes in a single procedure when a dispute involving intellectual property is protected in a number of different places.
Neutrality: The parties are sometimes illiterate, poor and any kinds of matters, however, the ADR provides neutrality in solving the disputes.
Confidentiality: ADR proceedings are private. Accordingly, all disputes of the parties will be kept confidential. It prevents misuse of confidential information of parties and it protects reputation.
Less time consuming: it’s easier to settle the cases than to wait years for the courts to come up
Less cost: It saves money in the litigation process compared to the court proceedings
It protects the interest of the parties
It helps to prevent further conflict between the parties and also helps to maintain a good relationship between the parties.

Important provisions related to ADR

Alternative dispute resolution is based on the Indian constitution under Articles 14 and 21 which clearly states about Equality for law and the right to life and personal liberty
Article 39A [1] of Indian constitution provides for free legal aid to poor and weaker sections of society and ensure justice to all
Section 89 [2] of Civil procedure code provides that settlement of disputes outside the court
Arbitration or conciliation proceedings are dealt with regards to alternative dispute under the Arbitration and Conciliation Act1996 and
Section 20 (1) of the Legal services authority ACT 1987, prescribes about Lok Adalat

Kinds of Alternative Dispute resolution

There are various modes of alternate dispute resolution. they are:

Mediation: This is a kind of ADR mechanism where a third party aims to assist two or more disputants reaching an agreement acting as a mediator to resolve the dispute amicably by using appropriate communication techniques.
Arbitration: It is another form of alternative dispute resolution, and also a way to resolve disputes or problems outside the court. The dispute will be decided by arbitrators. Their decision is called the “Award”. The Arbitration aims to settle the disputes between the parties accurately and honestly without any delay.

The state of Jammu and Kashmir & Anr VS Dev Dutt Pandit (1999) [3]

In this case, Hon’ble Supreme Court held that The decision of the Arbitrator shall be final and decisive and the parties are bound by it.

Conciliation: It is also another mode of alternative dispute resolution process that enables a very amicable solution between parties. Through this process, the parties to a dispute use a conciliator, who acts as a neutral third party. Section 62 of the Arbitration and Conciliation Act, 1996 provides the commencement of conciliation proceedings.

P. T. Thomas v. Thomas Job[4]

The court Highlighted the several Benefits of the Legal Services Authorities Act,1987; like, no court fees charged, it is elastic as far as procedural law, it helps the parties to directly interact with judges in a friendly manner, proceedings are not lengthy, etc

Lok Adalat: Lok Adalat is otherwise known as “peoples court”. Any disputes which may be settled by conciliation and which has not been settled in the ordinary court or any dispute which has not been brought to the attention of any court may be referred to the Lok Adalat. The main feature of Lok Adalat is that it has no major procedure or fee.

United India Insurance Co.Ltd vs Ajay Sinha & Anr on May 2008 [5]

Any Award given in the Permanent Lok Adalat will be considered as executable as a decree. Any appeal against there shall not lie. This means that the decision of Lok Adalat will be final and binding on the parties.

Need of ADR in India: Its Implementation in India

The ultimate purpose of the ADR mechanism is to allow the parties to understand each other in a very peaceful and cooperative manner and to be able to talk about their problems very peacefully and resolve issues with a compromising attitude, thereby preventing animosity between them. In India, a number of cases are already pending in the courts. This is due to the inability to settle cases in a timely manner, the length of cases, and the personal animosity of the parties. This places a huge burden on the court delays the judgment of a court on a case and delays the delivery of justice to the parties. Not only that, but it also causes the parties to lose a lot of money. The ADR mechanism thus becomes a solution to all this. ADR mechanism leads to achieving speedy disposal of justice. ADR in India is implemented on the basis of Articles 14 and 21 of the constitution.

Problems in implementation and Suggestions

Lack of faith in Alternative dispute resolution: People in India are ahead of everyone else in education but everyone believes only in the court. they believe that the unresolved issue in court will not be resolved through alternative dispute resolution.
Lack of awareness: A section of people in India are still poor. Poor people have no idea about any other system except the court. Some people still worry about not getting justice without even filing a case for the sake of court costs even if there is some dispute.
Lack of proper laws: Although the Arbitration and conciliation Act was introduced in 1996 in India. Many sections of the business community still have no knowledge of the Arbitration and Conciliation Act, so it is imperative that more comprehensive legislation be enacted and specially amended and made aware of the arbitration process and practice in India.

Suggestions

Creating Awareness: Lack of proper awareness among the people is a major obstacle to the implementation of an alternative dispute resolution mechanism. Therefore, it is essential to create awareness among the people about the positive aspects of this in a positive way.
Introduction of proper laws: It is essential that more laws be introduced to make alternative dispute resolution more effective.
Court intervention is required for promoting the alternative dispute resolution mechanism in India
Empower law students: There is no better source than law students to raise awareness among the public about alternative dispute resolution mechanism and their legal aspects. This will able Law students to be better equipped for activities such as the Adalat and to bring a better experience in their future legal careers and help them in their legal studies.

Conclusion

The Indian Legal system needs a way to resolve cases pending in the courts as soon as possible. India needs an alternative way of resolving disputes without going to court to settle additional cases in a timely manner as soon as possible, to minimize the time–consuming situation of the parties in the courts, to reduce the cost of cash, and to get equal justice for all, rich and poor alike.